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Home My WebLink About09-5512 JAMES H. SAUERWINE 217 Allendale Way Camp Hill, PA 17011 Plaintiff V. West Field Insurance Group 1 Park Circle Westfield Center, OH 44251-5001 Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA • dR - 651 0-;tT?r'N'' CIVIL ACTION LAW PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please issue a Writ of Summons in the above-captioned action. The Writ of Summons shall be issued and returned to the undersigned attorney who will serve the out-of-state Defendant pursuant to PA R.C.P. 404. Respectfully submitted, HERBERT P. HENDERSON, II Dated: '?? ??, y, aoy 9 By: Herbert P. Henderson, II, Esquire Supreme Court ID No. 56304 Pecht & Associates, PC 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9809 0 ?y A h r L;i nMr Fj 4'1;,.50 On A7r/ &,tas$(o &'Uslos 1% t JMES H. SAUERWINE, Plaintiff V. WEST FIELD INSURANCE GROUP, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY PENNSYLVANIA : CIVIL ACTION -LAW . NO. CQ - 55,A liivrT?' ft JURY TRIAL DEMANDED WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMECNED AN ACTION AGAINST YOU. Date: 8 Pecht & Associates, PC By: Herbert P. Henderson, II, Esquire Supreme Court ID No. 56304 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 S C . s R. Long, Prothono By D uty Attorney for Plaintiff ? firy? l•i t.J ?y '??y?va .. HERBERT P. HENDERSON, Esquire PA ID No.: 56304 Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorneys for Plaintiff JAMES H. SAUERWINE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 09-5512- CIVIL TERM WESTFIELD INSURANCE GROUP Defendant PROOF OF SERVICE I hereby affirm that I served a copy of the Writ of Summons on Westfield Insurance Group by U.S. First Class Mail, Certified, Return Receipt Requested as follows: Westfield Insurance Group 1 Park Circle Westfield Center, Ohio 44251-5001 The US Postal Service Form 3811 (Domestic Return Receipt) and PS Form 3800 (Certified Mail Receipt) is attached hereto and marked as Exhibit "A." Respectfully submitted, h ? October 5, 2009 Herbert P. Henderson, II PA ID No. 56304 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorney for Plaintiff Er 43 O r r- r- postage a`a r o O E3 Certified Fee ' 18k I jp,?? O O O 0 4 O C3 Return Recce x Fee (Endorsement Required) a. ?? p rl Restricted Delivery Fee (Endorsement Required) 5"1 Q rl ? y m _ a •p a M C3 Westfield Insurance Grou C" O ;: A ? r,4 1 Park Circle ** Westfield Center, Ohio 44251-5001 ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the malipiece, or on the front if space permits. 1. Article Addressed to: RCEIVEo SEP 2 5 2009 "Agan' Addresses B. Received by (PrfmW Name) C. Date of Delivery Is delivery address different from ftVM 93-V'ba, If YES, enter del" address No r nr. t' Westfield Center, Ohio 44251-5001 Elwered ryas Mied Mall ? Express ? ? Return Receipt for Merchandise T ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Ezra Fee) ? Yes 2 AN* idtartbar pltw9itr ADD 7003 3110 0000 7777 0489 Westfield Insurance Group 1 Park Circle P6 Fcrm " l i i t 90mewc Fwturn ii.oeipt 101596-0@-WIM EXHIBIT A 2009 0 C T -9 P l y: 08 Gi: V: Z i . CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA vnI GI NAL PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS JAMES SAUERWINE TERM, CUMBERLAND -vs- CASE NO: 09-5512 WESTFIELD INSURANCE COMPANY C-) C') p 'n C 3 Co As a prerequisite to service of a subpoena for documents and thing si&trrn;= f*7 to Rule 4009.22 '"< -Orn ?D ? dp 2 =-n c:)-n Zp 3 orn MCS on behalf of JULIE MELLETT, ESQ.' t; V certifies that r- (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 10/26/2010 mcs on behalf of /S/ .Die eGLe ?? JULIE MELLETT, ESQ. Attorney for DEFEND R2.33 116-H DE11-1191475 34096-LO1 V COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: JAMES SAUERWINE -VS- WESTFIELD INSURANCE COMPANY COURT OF COMMON PLEAS TERM, CASE NO: 09-5512 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCMUMS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 HIGHMARK, INC. INSURANCE TO: HERBERT P. HENDERSON, II, ESQ., PLAINTIFF COUNSEL MCS on behalf of JULIE MELLETT, ESQ. intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to MCS or by contacting our local MCS office. DATE: 10/06/2010 MCS on behalf of JULIE MELLETT, ESQ. Attorney for DEFENDANT CC: JULIE MELLETT, ESQ. - 142755 THE MCS GROUP INC. HERBERT P. HENDERSON, II, ESQ. 1601 MARKET STREET PECHT & ASSOCIATES #800 1205 MANOR DRIVE PHILADELPHIA, PA 19103 SUITE 200 (215) 246-0900 MECHANICSBURG, PA 17055 R2.33 116-H D202-0716646 34096-CO1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND JAMES SAUERWINE VS. WESTFIELD INSURANCE COMPANY : File No. 09-5512 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for HIGHMARK. INC. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: **** SRE ATTACHED RIDER **** at The MCS Group Inc.. 1601 Market Street, Suite 800, Philadelpha. PA 19103 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: JULIE MELLETT. ESQ. ADDRESS: 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASM& PA 17605 TELEPHONE: 1215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant BY C T: Prothonotary/Clerk, ivil Division Date: Deputy Seal of the Court 34096-01 EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: ,HIGHMARK INC. 14AIE BOX` 890089 LAW DEPT. CAMP HILL, PA 17089 RE: 34096 JAMES H. SAUERWINE Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. Any and all insurance records and PIP files, including but not limited to medical reports and/or records, claims, any and all correspondence, documentation supporting plaintiff's claim, payments including dates of ,payments, payee and reasons for payments, including any and all such items as. may-be stored in a computer database or otherwise in electronic form, pertaining to: Dates Requested: from: 04-09-2005 to 12-31-2009. 'Subject s JAMBS 8. SAUERWINB Social Security #: 210-40-1242 Date of Birth: 12-07-1949 Date of Loss: 05/09/2005 82.33 116-H SU10-0868592 34096=L01 t POST & SCHELL, P.C. BY: GREGORY S. HIRTZEL, ESQUIRE E-MAIL: ghirtzel@postschell.com I.D. # 56027 BY: JULIE S. MELLETT, ESQUIRE E-MAIL: jmellett@postschell.com I.D.# 92848 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 717-291-4532 Of THE PRp H N TARP 2011 Attorneys for Defendant Westfield Insurance Company JAMES H. SAUERWINE, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. WESTFIELD INSURANCE COMPANY, NO. 09-5512 Defendant. PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon Plaintiff to file a Complaint within twenty (20) days hereof or suffer the entry of a Judgment of Non Pros. By' Dated: 1 r 10 "i XAAt orneys for Defendant RULE TO\\ F__ILE COMPLAINT AND NOW, this day of c? 2011, a Rule is hereby granted upon Plaintiff to file a Complaint herein within twenty (20) days after service hereof or suffer entry of Judgment of Non Pros. Prothonotary POST & SCIMLL,A'.C. S. ,Esquire CERTIFICATE OF SERVICE I, Lilly A. Torres, an employee of the law offices of Post & Schell, P.C do hereby certify that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the date set forth below. Wayne M. Pecht, Esquire Pecht & Associates, P.C. 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 LILLY A. TORRE DATE: ?_?? ?j Y Wayne M. Pecht, Esquire PA ID No.: 38904 Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorneys for Plaintiff -If r 1UL 20I :11 -I LNII:'+:L =i '_s3•U CUf rr\zR-'t?` E S i ; : E JAMES H. SAUERWINE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 09-5512- CIVIL TERM WESTFIELD INSURANCE GROUP, Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 717-249-3166 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defende se de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de partir de la fecha de la demanda y la notifcacion. Usted debe presentar una apariencia escrita o en persona o por abodago y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENT ABOGADO O SI NO TIENE EL D1NERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 717-249-3166 PECHT & ASSOCIATES, PC Dated: January 31, 2011 ZY V-- - I Wayne M. Pecht, Esquire PA. I.D. No. 38904 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 Phone: (717) 691-9808 Fax: (717) 691-2070 Attorney for Plaintiff Wayne M. Pecht, Esquire PA ID No.: 38904 Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorneys for Plaintiff JAMES H. SAUERWINE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. 09-5512- CIVIL TERM WESTFIELD INSURANCE GROUP, Defendant COMPLAINT And now, comes Plaintiff, James H. Sauerwine, by and through his attorneys Pecht & Associates, P.C., and avers as follows: 1 2 3 Plaintiff James J. Sauerwine is an adult individual residing in Camp Hill, Cumberland County, Pennsylvania. Defendant Westfield Insurance Group is a foreign corporation doing business in Pennsylvania with offices at 1 Park Circle, Westfield Center, Ohio 44251-5001. Defendant Westfield Insurance Group does business in Pennsylvania through agents, including Christian Baker Co., P 0 Box 158, Camp Hill, Pennsylvania 17001. COUNTI BREACH OF CONTRACT 4. All preceding paragraphs are incorporated by reference as if fully set forth herein. 5. Plaintiff was injured in an automobile accident on May 9, 2005. 6. Plaintiff provided Thomas R. Westphal, MD and Lancaster General Hospital with his health insurance provider information from Highmark, Inc. 7. Plaintiff received an Explanation of Benefits from Highmark Blue Shield dated May 10, 2008 stating, "We do not pay for services paid or payable by an automobile insurance plan. Please submit these bills to the automobile insurance company." 8. Plaintiff submitted his claims to Defendant which denied payment of claim, after little or no investigation. 9. Plaintiff had contracted with Defendant to provide certain automobile insurance and paid all premiums for the same. 10. The said insurance coverage should have paid Plaintiffs claim. 11. Defendant has breached its contract with Plaintiff by refusing to pay said claim. 12. By misrepresenting its intention to object to Plaintiff obtaining compensation for his injuries, Defendant has breached its implied obligation to act in good faith in providing Plaintiff s benefits. 13. Plaintiff has suffered injury as a direct result of Defendant's breach of its contract with Plaintiff, and due to Defendant's failure to act in good faith in its dealings with Plaintiff, has paid over $30,000 out of pocket. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems 2 appropriate. COUNT II BREACH OF DUTY TO ACT IN GOOD FAITH 14. All preceding paragraphs are incorporated by reference as if fully set forth herein. 15. There is an implied contractual duty on the part of Defendant to act in good faith in dealing with its injured policy holders, including Plaintiff. 16. Defendant has failed to comply with the duty and has failed to act in good faith. 17. Plaintiff relied to his detriment on the representations of Defendant. 18. Plaintiff reasonably relied on these false representations and omissions, which resulted in injury to Plaintiff and which were the proximate cause of said injury to Plaintiff. 19. Plaintiff has been injured as a direct result of the breach of the duty by Defendant. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT III VIOLATION OF PENNSYLVANIA BAD FAITH STATUTE 20. All preceding paragraphs are incorporated by reference as if fully set forth herein. 21. Pursuant to 42 Pa.C.S. § 8371, in an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of 3 interest plus 3%; (2) award punitive damages against the insurer; and (3) assess court costs and attorney fees against the insurer. 22. Defendant denied Plaintiff's claim based on its assertion that the claim was not covered. 23. Plaintiff signed medical release records and Defendant knew that Plaintiff had done everything in his power to provide all documents Defendant: requested. 24. Defendant asked for many documents multiple times, even though they had previously been provided. 25. Defendant delayed the processing of Plaintiff's claim only to eventually deny the claim for no reason relevant to the claim. 26. Defendant acted in bad faith in denying Plaintiff's claim on the basis it did, knowing Plaintiff had been injured in an accident for which his insurance policy should have paid benefits. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT IV VIOLATION OF THE UNFAIR INSURANCE PRACTICES ACT 27. All preceding paragraphs are incorporated by reference as if fully set forth herein. 28. Defendant has breached its fiduciary duty of good faith and fair dealing owed to Plaintiff as set forth in the Pennsylvania Unfair Insurance Practices Act, 40 P.S. Section 1171, et sea. 4 29. As set forth above, Defendant misrepresented pertinent facts and policies and contract provisions relating to the coverage at issue. 30. Those misrepresentations, as set forth above, mislead Plaintiff and, as such, breached the obligation of Defendant of good faith and fair dealing in its relations with its customers. 31. Further, Defendant violated the aforesaid Act by failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of Plaintiff's claims. 32. The company's obligation is present where, as here, liability under the policy has become reasonably clear. The obligation is set forth in the Insurance Act, 40 P.C.S.A. § 1171.5(a)(10)(vi). 33. In support thereof Plaintiff asserts that Defendant failed to attempt a fair and equitable settlement with Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT V COMMON LAW FRAUD 34. All preceding paragraphs are incorporated by reference as if fully set forth herein. 35. The elements of fraud include: 1) a representation; 2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on 5 it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. 36. Defendant's agents made several material false representations, and several material omissions, as set forth above. 37. Defendant's agents knew, or should have known, that if Plaintiff was aware of the false representations and omissions in purchasing his automobile insurance he would not have purchased and relied on the said policy and the purported coverage. 38. Plaintiff reasonably relied on these false representations and omissions, which resulted in injury to plaintiff and which were the proximate cause of said injury to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT VI UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 39. All preceding paragraphs are incorporated by reference as if fully set forth herein. 40. At all relevant times, Defendant was engaged in trade or commerce as defined in the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et M. 41. The transaction at issue was entered into by Plaintiff for non-commercial purposes. 42. The Unfair Trade Practices and Consumer Protection Law makes it illegal to engage in any Unfair Method of Competition or any Unfair or Deceptive Act or Practice and includes the following conduct within its terms: 6 A. Representing that .......services have ...characteristics, ... uses.... benefits.... that they do not have..... 73 P.S. §201-2(4)(v) B. Advertising ...services with intent not to sell them as advertised. 73 P.S. §201-2(4)(ix) C. Causing the likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the goods and services ....73 P.S. §201-2 (4)(v) D. Engaging in any other fraudulent or deceptive conduct which creates likelihood of confusion or of misunderstanding. 73 P. S. §201- 2(4)(xxi). 43. Defendant has violated the Unfair Trade Practices and Consumer Protection Law (hereinafter "UTPCPL") by : A. Representing that .......services have ...characteristics, ... uses.... benefits.... that they do not have..... 73 P.S. §201-2(4)(v) B. Advertising ...services with intent not to sell them as advertised. 73 P.S. §201-2(4)(ix) C. Causing the likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the goods and services 44. But for the actions and omissions of the Defendant as alleged, Plaintiff would not have relied to his detriment on the Defendant's misrepresentations. 45. Defendant has been unjustly enriched by virtue of the fees, commissions, and profits that have accrued to it due to the unfair and deceptive business practices alleged herein. 7 46. The actions of Defendant's agents acting in furtherance of the business of Defendant arise to the level of reckless indifference. 47. Section 201-3 of the UTPCPL makes all of the foregoing conduct unlawful. 48. Section 201-9.2 of the UTPCPL authorizes an individual to sue under the Act and authorizes the court to award up to three times the actual damages sustained by Plaintiff but not less than $100, and further to provide relief including reasonable attorney's fees and costs. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT VII UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW - VIOLATION OF THE UNFAIR INSURANCE PRACTICES ACT 49. All preceding paragraphs are incorporated by reference as if fully set forth herein. 50. A violation of the Unfair Insurance Practices Act is a violation of the Unfair Trade Practices and Consumer Protection Act. 51. Defendants have violated the Unfair Insurance Practices Act and have therefore violated the Unfair Trade Practices and Consumer Protection Act and are liable for damages as set forth in the Unfair Trade Practices and Consumer Protection Act. 8 WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. Respectfully submitted, PECHT & ASSOCIATES, P.C. January 31, 2011 By: Wa e M. Pecht, Esquire PA ID No.: 38904 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorney for Plaintiff 9 VERIFICATION I, James H. Sauerwine, swear or affirm that the averments contained in the foregoing pleading are true and correct to the best of my knowledge, information, and belief. Further, I am aware that any false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: January 31, 2011 Jame . Sauerwine CERTIFICATE OF SERVICE I hereby certify that I have caused the service of the upon the below-named person, this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Julie S. Mellett, Esquire Post & Schell, PC 1857 William Penn Way P. O. Box 10248 Lancaster, PA 17605-0248 PECHT & ASSOCIATES, PC January 31, 2011 Wayne M. Pecht, Esquire PA. I.D. No. 38904 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 Phone: (717) 691-9808 Fax: (717) 691-2070 Attorney for Plaintiff POST & SCHELL, P.C. BY: RICHARD L. MCMONIGLE, JR., ESQUIRE E-MAIL: rmcmonigle@postschell.com I.D. # 33565 BY: BRYAN M. SHAY, ESQUIRE E-MAIL: bshay@postschell.com I.D. # 205953 FOUR PENN CENTER 1600 JOHN F KENNEDY BLVD. PHILADELPHIA, PA 19103 215-587-1000 JAMES H. SAUERWINE, Attorneys for Defendant Westfield Insurance Group rnrn ? ao rn ao x N CJ r r- ° -{ =--n ? a c:)-n C) 7-1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, VS. NO. 09-5512 WESTFIELD INSURANCE GROUP, Defendant. ENTRY OF APPEARANCE Kindly enter our appearance on behalf of the Defendant, WESTFIELD INSURANCE GROUP, in the above-captioned matter. POST & SCHELL, P.C. By Dated: February 18, 2011 Attorneys :for Defendant Westfield Insurance Group CERTIFICATE OF SERVICE I, Bryan M. Shay, Esquire, hereby certify that I caused a true and correct copy of the foregoing Entry of Appearance on behalf of Defendant Westfield. Insurance Group, to be served by First Class U.S. Mail, postage prepaid on the following persons: Wayne M. Pecht, Esq. PECHT & ASSOCIATES, P.C. 1205 Manor Dr., Suite 200 Mechanicsburg, PA 17055 Attorneys for Plaintiff POST & SCHELL, P.C. By: Dated: February 18, 2011 moneys for Insurance Gi POST & SCHELL, P.C. BY: RICHARD L. MCMONIGLE, JR., ESQ E-MAIL: rmcmonigle@postschell.com I.D. # 33565 BRYAN M. SHAY, ESQ. E-MAIL: bshay@postschell.com I.D. # 205953 FOUR PENN CENTER -13TH FLOOR 1600 JOHN F. KENNEDY BLVD. PHILADELPHIA, PA 19103 PHONE: (215) 587-1000 JAMES H. SAUERWINE, Plaintiff, VS. WESTFIELD INSURANCE GROUP, Defendant. ICE "ONOT r6i 0 j6. t ?ul r*?,?_RLARO COO"? Attorneys for Defendant Westfield Insurance Group IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 09-551.2 JURY TRIAL DEMANDED DEFENDANT WESTFIELD INSURANCE GROUP'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant Westfield Insurance ("Westfield"), by and through its attorneys, Post & Schell, P.C., hereby files these Preliminary Objections to the Complaint of Plaintiff James H. Sauerwine ("Plaintiff'), and in support thereof avers as follows 1. FACTUAL AND PROCEDURAL BACKGROUND 1. Plaintiff initiated the instant action by Writ of Summons on or about August 6, 2009. 2. The Writ of Summons was served on Westfield on or about October 5, 2009. 3. On January 11, 2011, upon Praecipe by Westfield, the Court issued upon Plaintiff a Rule to File a Complaint. 4. On January 31, 2011, Plaintiff filed his Complaint. A true and correct copy of Plaintiff's Complaint is attached hereto, and marked as Exhibit "A." 5. According to Plaintiffs Complaint, Plaintiff was injured in an automobile accident on May 9, 2005. See Ex. "A" at ¶ 5. 6. Plaintiff alleges that the claim for medical benefits that he submitted to Westfield following the accident was denied "after little or no investigation." Id. at ¶ 8. 7. Said claim arises from an April 28, 2008 surgery Plaintiff underwent to his cervical spine. 8. In the Complaint, Plaintiff alleges seven counts: Breach of Contract (Count I); Breach of Duty to Act in Good Faith (Count II); Violation of Pennsylvania Bad Faith Statute (Count III); Violation of the Unfair Insurance Practices Act (Count IV); Common Law Fraud (Count V); Unfair Trade Practices and Consumer Protection. Law (Count VI); Unfair Trade Practices and Consumer Protection Law - Violation of the Unfair Insurance Practices Act (Count VII). 9. For the reasons set forth below, Westfield now timely files these Preliminary Objections, in the nature of a demurrer, to Counts II, IV, V, VI, and VII, and for the reasons set forth below, respectfully requests that the Court dismiss these Counts. 10. Westfield asserts additional Preliminary Objections to Counts V, VI, and VII, for insufficient specificity of a pleading, and for the reasons set forth below, respectfully requests that the Court strike these Counts. II. APPLICABLE LEGAL STANDARDS UNDER PA. R. CIV. PRO. 1028 11. Westfield incorporates the foregoing paragraphs by reference as though the same were set forth herein at length. 2 12. Pennsylvania Rule of Civil Procedure 1028(a)(4) permits a party to file a preliminary objection to a complaint where the plaintiff fails to state a legally-sufficient claim. Pa. R. Civ. P. 1028(a)(4). 13. It is appropriate for a Court to sustain a preliminary objection in the nature of a demurrer where the allegations in a complaint are "clearly insufficient to establish the pleader's right to relief." McClellan v. HMO of Pa., 604 A.2d 1053, 1056 (Pa. Super. 1992). 14. Preliminary objections in the nature of a demurrer will be sustained if the law clearly does not permit recovery under the facts pleaded in the complaint. Green v. Mintzer, 692 A.2d 169, 172 (Pa. Super. 1997). 15. For the purpose of testing the legal sufficiency of a complaint, a preliminary objection pursuant to Rule 1028(a)(4) must admit as true "all well-pleaded material, relevant facts.... and every inference fairly deducible from those facts." McClellan, 604 A.2d at 1056; see also Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994). 16. Such an objection does not, however, admit an;y conclusions of law pleaded by the plaintiff. Pike County Hotels Corp., et al. v. Kiefer, 396 A.2d 677, 681 (Pa. Super. 1978). 17. Pa. R. Civ. P. 1028(a)(3) permits a party to file a preliminary objection to a complaint for "insufficient specificity in a pleading." Pa. R. Civ. P. 1028(a)(3). 18. Pa. R. Civ. P. 1019(a) requires that "the material facts on which a cause of action. .. is based shall be stated in a concise and summary form." Pa. R. Civ. P. No. 1019(a). 19. Moreover, where the complaint alleges fraud or mistake, Rule 1019(b) requires that facts and elements of these causes of action "shall be averred with particularity." Pa. R. Civ. P. 1019(b). 3 20. This specificity requirement imposes an obligation on the pleader to "adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense." Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992). 21. Complying with these requirements "enables the Defendant to prepare a proper responsive defense" and "also promotes the speedy and inexpensive resolution of disputes." Dickerson v. Brind Truck Leasing, 524 A.2d 908, 910 (Pa. Super. 1987). III. PRELIMINARY OBJECTION TO COUNT II OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa. R. Civ. P. 1028(a)(4), IN THE NATURE OF A DEMURRER, AS THIS CLAIM IS DUPLICATIVE OF PLAINTIFF'S CLAIM FOR BREACH OF CONTRACT AND DOES NOT STATE AN INDEPENDENT CAUSE OF ACTION 22. Westfield incorporates the foregoing paragraphs by reference as though the same were set forth herein at length. 23. In Count II of his Complaint, Plaintiff alleges that Westfield breached its implied contractual duty "to act in good faith in dealing with its injured policy holders, including Plaintiff." Id. at ¶ 15. 24. Because the duties of good faith and fair dealing; are duties that are impliedly part of the contract of insurance, an action alleging a breach of these duties is an action for breach of the insurance contract. See, e.g., Gray v. Nationwide Mut. Ins. Co., 223 A.2d 8, 11-12 (Pa. 1966); see also Zaloga v. Provident Life and Accident Ins. Co. of America, 671 F. Supp. 2d 623, 630-31 (M.D. Pa. 2009) ("Whether express or implied, the covenant of good faith and fair dealing acts as a term of the contract, and that covenant arises from the contract itself."). 25. Thus, when Plaintiff claims that Westfield violated its duty of good faith and fair dealing, Plaintiff is simply alleging that Westfield breached an implied term of its contract with Plaintiff. 4 26. Because the claim for breach of the duties of good faith and fair dealing is contractual, it is not a distinct and separate cause of action itself; rather, it is subsumed in the breach of contract claim. See, e.g., LSI Title Agency, Inc. v. Evaluation Services, Inc., 951 A.2d 384, 391 (Pa. Super. 2008); Zaloga, 671 F. Supp. 2d at 631; Bukofski v. USAA Cas. Ins. Co., No. 3:08-cv-1779, 2009 WL 1609402, at *5 (M.D. Pa. June 9, 2009). 27. Thus, the allegations in Count II are properly alleged within Count I, rather than in a separate count, and the breach of the implied contractual duty of good faith claim set forth in Count II therefore merges with the breach of contract claim set forth in Count I 28. Moreover, Count II is duplicative of Count I, as, both allege a breach of the same contractual duty of good faith. Compare Ex. "A" at ¶ 12 (Count I) ("Defendant has breached its implied obligation to act in good faith in providing Plaintiff's benefits"), with id. at ¶ 16 (Count II) ("Defendant has failed to comply with the duty and has failed to act in good faith.") 29. Accordingly, in the context of the allegations in the Complaint, Count II does not state a legally-sufficient claim upon which relief can be granted, and it should therefore be dismissed pursuant to Pa. R. Civ. P. 1028(a)(4). WHEREFORE, for the reasons set forth above, Defendant Westfield Insurance Group respectfully requests that the Court sustain its Preliminary Objection to Count II of Plaintiffs Complaint, in the nature of a demurrer, and dismiss Count II, with prejudice, pursuant to Pa. R. Civ. P. 1028(a)(4). IV. PRELIMINARY OBJECTION TO COUNT IV OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa. R. Civ. P. 1028(a)(4), IN THE NATURE OF A DEMURRER, AS THE PENNSYLVANIA UNFAIR INSURANCE PRACTICES ACT DOES NOT CREATE A PRIVATE CAUSE OF ACTION 30. Westfield incorporates the foregoing paragraphs by reference as though the same were set forth herein at length. 5 31. In Count IV, Plaintiff alleges that Westfield's actions violated the Pennsylvania Unfair Insurance Practices Act, 40 P. S. § 1171, et SeMc . ("UIPA"). See Ex. "A" at ¶ 28. 32. The UIPA, the provisions of which are enforced by the Insurance Commissioner, does not provide for a private cause of action. See, e.g_, D'Ambrosio v. Pa. Nat. Mut. Cas. Ins. Co., 431 A.2d 966, 969-70 (Pa. 1981); Jones v. Nationwide Prop. and Cas. Ins. Co., 995 A.2d 1233, 1236 (Pa. Super. 2010); Cresswell v. Pa. Nat. Mut. Cas. Ins. Co., 820 A.2d 172, 180 n.4 (Pa. Super. 2003); Fay v. Erie Ins. Group, 723 A.2d 712, 714 (Pa. Super. 1999). 33. Because the UIPA cannot form the basis of Plaintiff private cause of action, Count IV should be dismissed pursuant to Pa. R. Civ. P. 1028(a)(4). WHEREFORE, for the reasons set forth above, Defendant Westfield Insurance Group respectfully requests that the Court sustain its Preliminary Objection to Count IV of Plaintiff's Complaint, in the nature of a demurrer, and dismiss Count IV, with prejudice, pursuant to Pa. R. Civ. P. 1028(a)(4). V. PRELIMINARY OBJECTION TO COUNT V OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa. R. Civ. P. 1028(a)(4), IN THE NATURE OF A DEMURRER, AS PLAINTIFF FAILS TO PLEAD THE REQUISITE ELEMENTS OF A CLAIM FOR COMMON LAW FRAUD 34. Westfield incorporates the foregoing paragraphs by reference as though the same were set forth herein at length. 35. In Count V, Plaintiff alleges that Westfield's handling of his claim for medical benefits constituted fraud. 36. In order to state a claim for common law fraud in Pennsylvania, a plaintiff must allege that the defendant: (1) made a representation; (2) that was material to the transaction; (3) the representation was made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading the plaintiff into relying on the false statement; 6 (5) that plaintiff relied on the misrepresentation, and such reliance was justifiable; and (6) that the injury to the plaintiff was proximately caused by his reliance. See, e.g., Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999); Presbyterian Med. Center v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003). 37. Plaintiff alleges that Westfield made "several material false representations, and several omissions," but does not identify the false representations. Ex. "A" at ¶ 36. 38. Moreover, although Plaintiff contends that he "'reasonably relied on these false representations and omissions, which resulted in injury to Plaintiff and which were the proximate cause of said injury to Plaintiff," he does not identify the ;nature of the injury suffered by Plaintiff. See id. at ¶¶ 18, 29; 38. 39. Furthermore, Plaintiff provides no factual allegations with regard to Westfield's intent in making these allegedly false representations. 40. At best, Plaintiff has set forth mere bare-bones legal conclusions, which are not supported by specific factual allegations and which need not be accepted as true for the purpose of these Preliminary Objections. 41. Because Plaintiff has not alleged the requisite elements of a fraud claim, Count V must be dismissed pursuant to Pa. R. Civ. P. 1028(a)(4), as it fails to state a legally-cognizable claim for relief. WHEREFORE, for the reasons set forth above, Defendant Westfield Insurance Group respectfully requests that the Court sustain its Preliminary Objection to Count V of Plaintiff's Complaint, in the nature of a demurrer, and dismiss Count V, 'with prejudice, pursuant to Pa. R. Civ. P. 1028(a)(4). 7 VI. PRELIMINARY OBJECTION TO COUNT VI OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa. R. Civ. P. 1028(a)(4), IN THE NATURE OF A DEMURRER, AS PLAINTIFF FAILS TO ALLEGE THE REQUISITE ELEMENTS OF A CAUSE OF ACTION UNDER THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 42. Westfield incorporates the foregoing paragraphs by reference as though the same were set forth herein at length. 43. In order to state a claim for relief under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), a plaintiff must allege that he purchased "goods or services primarily for personal, family, or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act, or practice declared unlawful [by the UTPCPL]." 73 P.S. § 201- 9.2(a). 44. Plaintiff alleges only that he purchased the Policy "for non-commercial purposes," which does not establish the requisite standing under the UTPCPL. Ex. "A" at ¶ 41. 45. Moreover, in order to maintain an action under the UTPCPL, a plaintiff must allege that he relied on the allegedly improper actions of the defendant, and that his reliance was justifiable. See, e.g., Hunt v. U.S. Tobacco Co., 538 F.3d 217:,227 (3d Cir. 2008); Toy v. Met. Life Ins. Co., 928 A.2d 186, 201 (Pa. 2007). 46. Here, Plaintiff alleges only that "[b]ut for the actions and omissions of the Defendant as alleged, Plaintiff would not have relied to his detriment on the Defendant's misrepresentations;" he does not allege the acts of Westfield on which he relied. 47. Defendant's reliance on the purported representations made by Westfield regarding coverage is not justifiable, as the parol evidence rule precludes "justifiable reliance" where the alleged misrepresentations that induced the plaintiff to enter into a contract were 8 superseded by a fully-integrated written contract. See, e.g., Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 439 (Pa. 2004). 48. Additionally, Plaintiff has not pleaded that he was induced to buy the Policy by the alleged misrepresentations or improper conduct of Westfield, which is required in order to maintain an action under the UTPCPL. See, e.g., Hunt, 538 F.3d at 227; Allegrino v. Conway E & S, Inc., No. 09-1507, 2010 WL 1687558, at *12 (W.D. Ila. April 26, 2010); Scardino v. American Int'l Ins. Co., No. 07-282, 2007 WL 3243753, at *7 (E.D. Pa. Nov. 2, 2007); Fisher v. Aetna Life Ins. & Annuity, 39 F. Supp. 2d 508, 511 n. I (M.D. Pa. 1998), aff d without opinion 176 F.3d 472 (3d Cir. 1999). 49. Finally, the basis of Plaintiff's UTPCPL claim is that Westfield improperly failed to pay the medical benefits he alleges were owed under the terms of the Policy. 50. Under Pennsylvania law, a plaintiff must prove that the acts of the defendant that allegedly violated the UTPCPL constituted malfeasance, as opposed to mere non-feasance. See, e.g., Gardner v. State Farm Fire and Cas. Co., 544 F.3d 553, 564-65 (3d Cir. 2008); Bailey v. Nationwide Affinity Ins. Co. of America, No. 10-520, 2010 WL 3167544, at *3 (W.D. Pa. Aug. 10, 2010). 51. The failure to perform an obligation under a contract, including the failure to make payments under an insurance policy alleged by Plaintiff, is only non-feasance, and therefore not actionable under the UTPCPL. See, e.g_, Klinger v. State Farm Ins. Co., 895 F. Supp. 709, 717-18 (M.D. Pa. 1995); see also Carlucci v. Md. Cas. Co., No. 98-cv-3294, 1999 WL 179750 (E.D. Pa. March 15, 1999). 9 52. For all of these reasons, Count VI of Plaintiff's Complaint fails to state a claim for relief under the UTPCPL, and this Count should therefore be dismissed pursuant to Pa. R. Civ. P. 1028(a)(4). WHEREFORE, for the reasons set forth above, Defendant Westfield Insurance Group respectfully requests that the Court sustain its Preliminary Objection to Count VI of Plaintiff's Complaint, in the nature of a demurrer, and dismiss Count VI, with prejudice, pursuant to Pa. R. Civ. P. 1028(a)(4). VII. PRELIMINARY OBJECTION TO COUNT VII OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa. R. Civ. P. 1028(a)(4), IN THE NATURE OF A DEMURRER, AS PLAINTIFF FAILS TO ALLEGE A VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 53. Westfield incorporates the foregoing paragraphs by reference as though the same were set forth herein at length. 54. Plaintiff alleges that Westfield's actions violated the provisions of the UIPA, and that, as a result, Westfield violated the UTPCPL. 55. For the reasons set forth above, the actions alleged by Plaintiff do not constitute violations of the Pennsylvania UTPCPL. 56. Plaintiff has not alleged which acts of Westfield constitute a specific practice defined as improper conduct under 40 P. S. § 1171.5. 57. Plaintiff has also failed to allege that the actions of Westfield that allegedly violate the UIPA were committed "with a frequency that indicated a general business practice," which is required in order to find a violation of the UIPA. See, e.g., Oehlmann v. Metropolitan Life Ins. Co., 644 F. Supp. 2d 521, 531 (M.D. Pa. 2007). 58. Finally, an alleged violation of the UIPA cannot form the basis of a claim under the UTPCPL, as the Court does not have the authority to decide whether the UIPA was violated, 10 and because a violation of the UIPA is not a per se violation of the UTPCPL. See, e.g., Gordon v. Pa. Blue Shield, 548 A.2d 600, 602-04 (Pa. Super. 1988); see also Christopher v. First Mut. Corp, No. 05-0115 and 05-1149,2008 WL 1815300, at **14-15 (E.D. Pa. April 22, 2008). 59. Accordingly, Count VII should be dismissed, pursuant to Pa. R. Civ. P. 1028(a), as it fails to state a claim for relief under Pennsylvania law. WHEREFORE, for the reasons set forth above, Defendant Westfield Insurance Group respectfully requests that the Court sustain its Preliminary Objection to Count VII of Plaintiff's Complaint, in the nature of a demurrer, and dismiss Count VII, with prejudice, pursuant to Pa. R. Civ. P. 1028(a)(4). VIII. PRELIMINARY OBJECTION TO COUNTS V, VI, AND VII OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa. R. Civ. P. 1028(a)(3), FOR LACK OF SUFFICIENCY OF A PLEADING, AS PLAINTIFF FAILS TO SUFFICIENTLY ALLEGE SPECIFIC FACTUAL ALLEGATIONS IN SUPPORT OF HIS CLAIMS FOR FRAUD AND VIOLATIONS OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 60. Westfield incorporates the foregoing paragraphs by reference as though the same were set forth herein at length. 61. As noted above, the rules of pleading in Pennsylvania require that a plaintiff plead sufficiently specific factual allegations to support his claim for relief. See Pa. R. Civ. P. 1019(a); Pa. R. Civ. P. 1028(a)(3). 62. Plaintiffs allegations with respect to Counts V, VI, and VII are insufficiently specific to place Westfield on notice of the bases of Plaintiff's claims. 63. Furthermore, allegations of fraud must be pleaded with specificity. See Pa. R. Civ. P. 1019(b). 64. Plaintiffs alleged common law fraud claim (Count V) fails to plead the specific misrepresentations or statements on which the fraud claim is based. I1 65. Additionally, Count V fails to plead specific factual allegations related to Plaintiffs reliance, the injuries he allegedly suffered as a result of said reliance, and the intent of Westfield. 66. Plaintiffs UTPCPL claims (Counts VI and VII) likewise fail to plead specific factual allegations regarding the allegedly deceptive or unfair trade practices in which Westfield is purported to have engaged. 67. Accordingly, Counts V, VI, and VII are insufficiently specific with respect to the elements of Plaintiff s claims and the factual support for the alleged fraud and UTPCPL claims. WHEREFORE, for the reasons set forth above, Defendant Westfield Insurance Group respectfully requests that the Court sustain its Preliminary Objections to Counts V, VI, and VII of Plaintiffs Complaint, for lack of specificity of a pleading, and strike Counts V, VI, and VII, with prejudice, pursuant to Pa. R. Civ. P. 1028(a)(3). Dated: POST & SCHELL, P.C. By: 12 CERTIFICATE OF SERVICE I, Bryan M. Shay, Esquire, hereby certify that I caused a true and correct copy of the foregoing Defendant Westfield Insurance Group's Preliminary Objections to Plaintiff's Complaint, along with an attached Praecipe for Listing Case for Argument and a proposed form of Order, to be served by First Class U.S. Mail, postage prepaid on the following persons: Wayne M. Pecht, Esq. PECHT & ASSOCIATES, P.C. 1205 Manor Dr. Suite 200 Mechanicsburg, PA 17055 Attorneys for Plaintiff POS' By: Dated: j Insurance Group ? ???? X Wayne M. Pecht, Esquire PA ID No.: 38904 Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorneys for Plaintiff JAMES H. SAUERWINE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 09-5512- CIVIL TERM WESTFIELD INSURANCE GROUP, Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 717-249-3166 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defende se de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de partir de la fecha de la demanda y la notifcacion. Usted debe presentar una apariencia escrita o en persona o por abodago y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENT ABOGADO O S1 NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 717-249-3166 PECHT & ASSOCIATES, PC Dated: January 31, 2011 -k; ) Wayne M. Pecht, Esquire PA. I.D. No. 38904 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 Phone: (717) 691-9808 Fax: (717) 691-2070 Attorney for Plaintiff Wayne M. Pecht, Esquire PA ID No.: 38904 Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorneys for Plaintiff JAMES H. SAUERWINE, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 09-5512- CIVIL TERM WESTFIELD INSURANCE GROUP, Defendant COMPLAINT And now, comes Plaintiff, James H. Sauerwine, by and through his attorneys Pecht & Associates, P.C., and avers as follows: 1. Plaintiff James J. Sauerwine is an adult individual residing in Camp Hill, Cumberland County, Pennsylvania. 2. Defendant Westfield Insurance Group is a foreign corporation doing business in Pennsylvania with offices at 1 Park Circle, Westfield Center, Ohio 44251-5001. 3. Defendant Westfield Insurance Group does business in Pennsylvania through agents, including Christian Baker Co., P 0 Box 158, Camp Hill, Pennsylvania 17001. COUNTI BREACH OF CONTRACT 4. All preceding paragraphs are incorporated by reference; as if fully set forth herein. 5. Plaintiff was injured in an automobile accident on May 9, 2005. 6. Plaintiff provided Thomas R. Westphal, MD and Lancaster General Hospital with his health insurance provider information from Highmark, Inc. 7. Plaintiff received an Explanation of Benefits from Highmark Blue Shield dated May 10, 2008 stating, "We do not pay for services paid or payable by an automobile insurance plan. Please submit these bills to the automobile insurance company." 8. Plaintiff submitted his claims to Defendant which denied payment of claim, after little or no investigation. 9. Plaintiff had contracted with Defendant to provide certain automobile insurance and paid all premiums for the same. 10. The said insurance coverage should have paid Plaintiff's claim. 11. Defendant has breached its contract with Plaintiff by refusing to pay said claim. 12. By misrepresenting its intention to object to Plaintiff obtaining compensation for his injuries, Defendant has breached its implied obligation to act in good faith in providing Plaintiffs benefits. 13. Plaintiff has suffered injury as a direct result of Defendant's breach of its contract with Plaintiff, and due to Defendant's failure to act in good faith in its dealings with Plaintiff, has paid over $30,000 out of pocket. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems 2 appropriate. COUNT H BREACH OF DUTY TO ACT IN GOOD FAITH 14. All preceding paragraphs are incorporated by reference as if fully set forth herein. 15. There is an implied contractual duty on the part of Defendant to act in good faith in dealing with its injured policy holders, including Plaintiff. 16. Defendant has failed to comply with the duty and has failed to act in good faith. 17. Plaintiff relied to his detriment on the representations of Defendant. 18. Plaintiff reasonably relied on these false representations and omissions, which resulted in injury to Plaintiff and which were the proximate cause of said injury to Plaintiff. 19. Plaintiff has been injured as a direct result of the breach of the duty by Defendant. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such. damages as the Court deems appropriate. COUNT III VIOLATION OF PENNSYLVANIA BAD FAITH STATUTE 20. All preceding paragraphs are incorporated by reference; as if fully set forth herein. 21. Pursuant to 42 Pa.C.S. § 8371, in an action arising wider an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of 3 interest plus 3%; (2) award punitive damages against the insurer; and (3) assess court costs and attorney fees against the insurer. 22. Defendant denied Plaintiff's claim based on its assertion that the claim was not covered. 23. Plaintiff signed medical release records and Defendant knew that Plaintiff had done everything in his power to provide all documents Defendant requested. 24. Defendant asked for many documents multiple tames, even though they had previously been provided. 25. Defendant delayed the processing of Plaintiff's claim only to eventually deny the claim for no reason relevant to the claim. 26. Defendant acted in bad faith in denying Plaintiff's claim on the basis it did, knowing Plaintiff had been injured in an accident for which his insurance policy should have paid benefits. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT IV VIOLATION OF THE UNFAIR INSURANCE PRACTICES ACT 27. All preceding paragraphs are incorporated by reference as if fully set forth herein. 28. Defendant has breached its fiduciary duty of good faith and fair dealing owed to Plaintiff as set forth in the Pennsylvania Unfair Insurance Practices Act, 40 P.S. Section 1171, et sea. 4 29. As set forth above, Defendant misrepresented pertinent: facts and policies and contract provisions relating to the coverage at issue. 30. Those misrepresentations, as set forth above, mislead Plaintiff and, as such, breached the obligation of Defendant of good faith and fair dealing in its relations with its customers. 31. Further, Defendant violated the aforesaid Act by failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of Plaintiff's claims. 32. The company's obligation is present where, as here, liability under the policy has become reasonably clear. The obligation is set forth in the Insurance Act, 40 P.C.S.A. § 1171.5(a)(10)(vi). 33. In support thereof Plaintiff asserts that Defendant failed to attempt a fair and equitable settlement with Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT V COMMON LAW FRAUD 34. All preceding paragraphs are incorporated by reference as if fully set forth herein. 35. The elements of fraud include: 1) a representation; 2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on 5 it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. 36. Defendant's agents made several material false representations, and several material omissions, as set forth above. 37. Defendant's agents knew, or should have known, that if Plaintiff was aware of the false representations and omissions in purchasing his automobile insurance he would not have purchased and relied on the said policy and the purported coverage. 38. Plaintiff reasonably relied on these false representations and omissions, which resulted in injury to Plaintiff and which were the proximate cause of said injury to Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT VI UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 39. All preceding paragraphs are incorporated by reference: as if fully set forth herein. 40. At all relevant times, Defendant was engaged in trade or commerce as defined in the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et M. 41. The transaction at issue was entered into by Plaintiff for non-commercial purposes. 42. The Unfair Trade Practices and Consumer Protection Law makes it illegal to engage in any Unfair Method of Competition or any Unfair or Deceptive Act or Practice and includes the following conduct within its terms: 6 A. Representing that .......services have .-characteristics, ..uses.... benefits.... that they do not have..... 73 P.S. §201-2(4)(v) B. Advertising ...services with intent not to sell them as advertised. 73 P.S. §201-2(4)(ix) C. Causing the likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the goods and services ....73 P.S. §201-2 (4)(v) D. Engaging in any other fraudulent or deceptive conduct which creates likelihood of confusion or of misunderstanding. 73 P.S. §201- 2(4)(xxi). 43. Defendant has violated the Unfair Trade Practices and Consumer Protection Law (hereinafter "UTPCPL") by : A. Representing that .......services have ...characteristics, ... uses.... benefits.... that they do not have..... 73 P.S. §201-2(4)(v) B. Advertising ... services with intent not to sell them as advertised. 73 P.S. §201-2(4)(ix) C. Causing the likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the goods and services 44. But for the actions and omissions of the Defendant as alleged, Plaintiff would not have relied to his detriment on the Defendant's misrepresentations. 45. Defendant has been unjustly enriched by virtue of the fees, commissions, and profits that have accrued to it due to the unfair and deceptive business practices alleged herein. 7 46. The actions of Defendant's agents acting in furtherance of the business of Defendant arise to the level of reckless indifference. 47. Section 201-3 of the UTPCPL makes all of the foregoing conduct unlawful. 48. Section 201-9.2 of the UTPCPL authorizes an individual to sue under the Act and authorizes the court to award up to three times the actual damages sustained by Plaintiff but not less than $100, and further to provide relief including reasonable attorney's fees and costs. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. COUNT VII UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW - VIOLATION OF THE UNFAIR INSURANCE PRACTICES ACT 49. All preceding paragraphs are incorporated by reference as if fully set forth herein. 50. A violation of the Unfair Insurance Practices Act is a violation of the Unfair Trade Practices and Consumer Protection Act. 51. Defendants have violated the Unfair Insurance Practices Act and have therefore violated the Unfair Trade Practices and Consumer Protection Act and are liable for damages as set forth in the Unfair Trade Practices and Consumer Protection Act. 8 WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant and award such damages as the Court deems appropriate. Respectfully submitted, PECHT &: ASSOCIATES, P.C. January 31, 2011 B y All, Wa e M. Pecht, Esquire PAID No.: 38904 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorney for Plaintiff 9 VERIFICATION I, James H. Sauerwine, swear or affirm that the averments contained in the foregoing pleading are true and correct to the best of my knowledge, information, and belief. Further, I am aware that any false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. 7 Dated: January 31, 2011 Jame . Sauerwine CERTIFICATE OF SERVICE I hereby certify that I have caused the service of the upon the below-named person, this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Julie S. Mellett, Esquire Post & Schell, PC 1857 William Penn Way P. O. Box 10248 Lancaster, PA 17605-0248 January 31, 2011 PECHT & ASSOCIATES, PC ?IA Wayne . Pecht, Esquire PA. I.D. No. 38904 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 Phone: (717) 691-9808 Fax: (717) 691-2070 Attorney for Plaintiff 34k PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) James H. Sauerwine, Plaintiff. vs. Westfield Insurance Group, Defendant. C ° rnV0 -n zr+n ? r.. ?CC 31- ?n :X ZO ?, C .. No. 09-5512 Civil .? m Q 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Obiections (demurrer to complaint and insufficient specificity) 2. Identify all counsel who will argue cases: (a) for plaintiffs: Wayne M. Pecht, Esq. (Name and Address) Pecht & Associates, P.C., 1205 Manor Dr., Suite 200, Mechanicsburg, PA 17055 (b) for defendants: Richard L. McMonigle, Esq.; Bryan M. Shay, Esq. (Name and Address) Post & Schell, P.C., Four Penn Center, 1600 John F. Kennedy Blvd., Philadelphia, PA 19103 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Araument Court Date: March 25. 2011 Print your name Defendant Westfield Insurance Group February 18, 2011 Attorney for Date: ;x 8c° ?a or INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 'HE PIRCTHOt-o Wayne M. Pecht, Esquire PA ID No.: 38904 Pecht & Associates, PC 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attornevs for Plaintiff 2312 JUL 23 PM 12: 51 CUMBERLAND COUNT i PENNSYLVANIA JAMES H. SAUERWINE, Plaintiff V. WESTFIELD INSURANCE GROUP, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 0%5512- CIVIL TERM PRAECIPE TO SETTLE SATISFY and DISCONTINUE To: David Buell, Prothonotary: Please mark the above-captioned action settled, satisfied, discontinued. Respectfully submitted, PECHT & ASSOCIATES, P.C. July 23, 2012 By: Wayne M. Pecht, Esquire PA ID No.: 38904 1205 Manor Drive Suite 200 Mechanicsburg, PA 17055 (717) 691-9808 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that I have caused the service of the upon the below-named person, this by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Steven J. Schildt, Esquire Post & Schell, PC Four Penn Center 1600 John F. Kennedy Boulevard Philadelphia, PA 19103 PECHT & ASSOCIA July 23, 2012 Wayne M. Vecht, Esquire PA. I.D. No. 38904 1205 Manor Drive, Suite 200 Mechanicsburg, PA 17055 Phone: (717) 691-9808 Fax: (717) 691-2070 Attorney for Plaintiff