HomeMy WebLinkAbout01-0111COZEN AND O'CONNOR
BY: KEVIN J. HUGHES
Attorney ID # 50238
The Atrium- 3rd Floor
1900 Market Street
Philadelphia, PA 19103
(215) 665-2739
Counsel for Plaintiff
SUSAN L. PAYNE
2204 Merdmac Lane
Mechanicsburg, Pennsylvania, 17055
and
ENCOMPASS INSURANCE COMPANY
a/s/o Susan L. Payne
P.O. Box 908
Monmouth Junction, NJ 08852
Plaintiffs,
UGI UTILITIES, INC.
460 North Gulph Road,
King of Prussia, PA 19406,
AMERI GAS, INC.
460 North Gulph Road,
King of Prussia, PA 19406,
UG1 CORPORATION
460 North Gulph Road,
King of Prussia, PA 19406
Defendants.
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
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 (20) days after this complaint
and notice are served, by entering a written
appearance personally or by 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
ONECE. 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
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
AVISO
Le han demandado a usted en la
corte. Si usted quiere defenderse de estas
demandas expuestas en las pfiginas
siguientas, usted tiene veinte (20) dias de
plazo al partir de la fecha de la demanda y
la notificaci6n. Hace falta asentar una
comparencia escrita o en persona o con un
abogado y entregar a 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
tomarfi medidas y puede continuar la
demanda en contra suya sin previo aviso o
notificaci6n. A dem~s, la corte puede
decidir a favor del demandante y requiere
que usted cumpla con todas las provisiones
de esta demanda. Usted puede perder
dinero o sus propiedades u otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN
ABOGADO INMEDIATAMENTE. SI
NO TIENE 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.
COMPLAINT
COMES NOW Plaintiffs, Susan L. Payne and Encompass Insurance Company, as
subrogee of Susan L. Payne, by and through its counsel, Kevin J. Hughes, and
complaining of the Defendants, UGI Utilities, Inc., Ameri Gas, Inc. and UGI
Corporation, alleges and says:
PARTIES
1. Plaintiff Susan L. Payne is an adult individual and citizen of the State of
Pennsylvania, (hereinafter "Payne") who, at all times material hereto, owned a residential
dwelling located at 2204 Merrimac Lane, in Mechanicsburg, Pennsylvania, 17055.
(Hereinafter "Payne Home").
2. Plaintiff Encompass Insurance Company, ("Encompass") formerly known as
CNA Personal Insurance Company, is foreign corporation duly authorized by the
Commonwealth of Pennsylvania to engage in the business of, inter alia, issuing and
providing insurance policies in this Commonwealth.
3. Defendant, UGI Utilities, Inc. is, upon information and belief, a Pennsylvania
corporation having a principal place of business located at 460 North Gulph Road, King
of Prussia, Pennsylvania 19406 and a business address at 2121 City Line Road, Lehigh
Valley, Pennsylvania, 18002-5148 (Hereinafter "UGI"). At all times material hereto,
UGI was engaged in the business of, inter alia, selling and distributing propane gas to the
general public.
4. Defendant, Ameri Gas, Inc. is, upon information and belief, a Pennsylvania
corporation having a principal place of business located at 460 North Gulph Road, King
of Prussia, Pennsylvania 19406 and a business address located at 5400 Paxton Street,
Harrisburg, Pennsylvania, 17105. (Hereinafter "AmeriGas"). At all times material
hereto, AmeriGas was engaged in the business of selling and distributing propane gas to
the general public.
5. Upon information and belief, UGI Corporation is a Pennsylvania corporation
having a principal place of business located at 460 North Gulph Road, King of Prussia,
Pennsylvania 19406. At all times material hereto, UGI Corporation was engaged in the
business of, inter alia, selling and distributing propane gas to the general public.
6. Upon information and belief, UGI and AmeriGas are sister companies and/or
subsidiaries of UGI Corporation.
JURISDICTION AND VENUE
7. Jurisdiction and Venue properly lie with this Court as the events leading up to
and causing the complained of damages occurred in Cumberland County and the
defendants, by contxact and/or by their respective actions, have placed themselves under
the j ut/sdiction of this Court.
FACTS SURROUNDING CAUSE OF ACTION
8. Prior to January 9, 1999, Encompass, by and through its former subsidiary,
Continental Insurance Company, issued to Payne an insurance policy affording certain
protections for the Payne Home (hereinafter "Insurance Policy").
9. The Payne Home is located in a residential neighborhood/development known
as Creek Stone Manor.
10. Upon information and belief, prior to January 9, 1999, UGI and/or UGI
Corporation (hereinafter collectively referred to as "UGI Defendants") entered into a
contractual relationstfip with Payne whereby, in return for certain consideration, UGI
Defendants agreed to monitor, service, fill, and maintain the propane tank for the Payne
Home (hereinafter "Payne Contract"). The Payne Contract is, upon information and
belief, in the custody and control of UGI Defendants.
11. Upon information and belief, prior to January 9, 1999, UGI Defendants
entered into contracts similar to that of the Payne Contract with other residents in Creek
Stone Manor.
12. Upon information and belief, UGI Defendants entered into a written contract
and/or oral agreement with AmeriGas whereby, in return for certain consideration,
AmeriGas agreed to monitor and fill propane tanks of houses located in Creek Stone
Manor, including that propane tank that supplied fuel to the Payne Home. (Hereinafter
UGl/AmeriGas Contract").
13. Upon information and belief, on or about January 3, 1999, propane tanks
providing fuel to homes in Creek Stone Manor began to and/or did run out of propane
gas.
14. The pilot light of a home furnace fueled by propane gas will go out, i.e., be
extinguished, once its fuel tank runs out of propane gas. As a result, in order to render a
furnace operable once it is deprived of propane fuel, it becomes necessary to not only
refill the fuel tank with propane gas, but to relight the furnace's pilot light.
15. On or about January 3, 1999, residents of houses that neighbored the Payne
Home advised UGI Defendants employees responding to their complaints of fuel outages
of the fact the Payne Home was unoccupied and was, like their homes, most probably out
of propane fuel.
16. In response to the concerns expressed by the Payne Home neighbors, UGI
Defendants employee(s) assured them that UGI Defendants would refill the Payne Home
propane tank and relight the dwelling's furnace pilot light.
17. Upon information and belief, UGI Defendants had in their possession Payne's
work and home telephone numbers as well as that of the Payne's real estate agent.
18. On January 9, 1999, Payne discovered that a water pipe in the Payne Home
had frozen, thawed, and subsequently ruptured, causing severe damage to the dwelling
(hereinafter "Water Damage").
19. The subject water pipe froze due to the fact the fuel tank that provided gas to
the Payne Home furnace had run out of propane, the tank had not been refueled, and the
Payne Home furnace pilot light had not been relit, thereby depriving the Payne Home of
heat.
20. Pursuant to the Insurance Policy, Payne subsequently submitted a claim to
Encompass or its predecessor company for, inter alia, the Water Damage.
21. Encompass and/or its predecessor company paid to Payne monies in excess of
$10,000.00 under the Insurance Policy for the Water Damage. Encompass is now legally
and equitably subrogated to the rights of its insured to the extent of those payments.
COUNT I
PLAINTIFFS V. UGI DEFENDANTS
22. Plaintiffs incorporate by reference paragraphs 1-21 as fully as if set forth at
length herein.
23. By agreeing to monitor, maintain, supply, and refill the Payne Home propane
tank and by subsequently undertaking to perform those services, UGI Defendants became
legally obligated to perform their services in a prudent, proper, and workmanlike manner.
that they:
a.
24. UGI Defendants negligently and carelessly breached its duties owed Payne in
failed to properly monitor the propane tank providing fuel to the Payne Home
(Hereinafter "Payne Propane Tank") to ensure that it contained appropriate
levels of propane gas;
b. failed to properly supply the Payne Propane Tank with propane gas on a
timely basis;
c. failed to refill the Payne Propane Tank with propane gas on a timely basis;
d. failed to relight the pilot light to Payne Home furnace;
e. failed to promptly notify Payne and/or her real estate agent that the Payne
Propane Tank had run out of propane gas;
f. failed to promptly notify Payne and/or her real estate agent that the Payne
Home furnace pilot light had been extinguished, depriving the Payne Home of
heat; and
g. failed to ensure that Defendant AmeriGas had properly monitored the Payne
Propane Tank and had supplied and/or refilled said tank with propane gas in a
timely and appropriate manner.
25. In failing to properly discharge its duties in a good, prudent, and non-
negligent manner, UGI Defendants proximately caused and/or permitted the Payne Home
to be deprived of heat during a period of ambient freezing temperatures.
26. UGI Defendants knew or should have known that, if left without heat, the
water pipes in the Payne Home would be subjected to freezing temperatures and thus
could freeze and subsequently rupture, causing severe water damage to the dwelling.
27. The negligent acts and omissions by UGI Defendants, as hereinbefore averred,
was the direct and proximate cause of the Water Damage.
WHEREFORE, Plaintiffs request that judgment be entered in their favor and
against Defendants UGI Utilities, Inc. and UGI Corporation, and that they be awarded
their compensatory damages for the Water Damage and related losses in an amount in
excess of $10,000.00, together with prejudgment interest and the costs associated with
this action.
COUNT II
PLAINTIFFS V. AMERIGAS
28. Plaintiffs incorporate by reference paragraphs 1-21 as fully as if set forth at
length herein.
29. Upon information and belief, by agreeing to monitor, maintain, supply, and
refill the Payne Home propane tank, and by undertaking to perform those services,
AmefiGas became legally obligated to perform its services in a prudent, proper, and
workmanlike manner.
30. Upon information and belief, AmefiGas negligently breached its duties owed
Payne in that they:
a. failed to properly monitor the propane tank providing fuel to the Payne Home
(Hereinafter "Pa3me Propane Tank") to ensure that it contained appropriate
levels of propane gas;
b. failed to properly supply the Payne Propane Tank with propane gas on a
timely basis;
c. failed to refill the Payne Propane Tank with propane gas on a timely basis;
d. failed to relight the pilot light to Payne Home furnace;
e. failed to promptly notify Payne and/or her real estate agent that the Payne
Propane Tank had run out of propane gas; and
f. failed to promptly notify Payne and/or her real estate agent that the Payne
Home furnace pilot light had been extinguished, depriving the Payne Home of
heat.
31. In failing to properly discharge its duties owed Payne in a good, prudent, and
non-negligent manner, AmeriGas proximately caused and/or permitted the Payne Home
to be deprived of heat during a period of ambient freezing temperatures.
d.
36.
Damage.
32. AmeriGas knew or should have known that, if left without heat, the water
pipes in the Payne Home would be subjected to freezing temperatures and thus could
freeze and subsequently rapture, causing severe water damage to the dwelling.
33. The negligent acts and omissions by AmeriGas, as hereinbefore averred, was
the direct and proximate cause of the Water Damage.
WHEREFORE, Plaintiffs request that judgment be entered in their favor and
against Defendant AmeriGas and that they be awarded their compensatory damages for
the Water Damage and related losses in an amount in excess of $10,000.00, together with
prejudgment interest and the costs associated with this action.
COUNT III
BREACH OF CONTRACT
PLAINTIFFS V. UGI DEFENDANTS
34. Plaintiffs incorporate by reference paragraphs 1-21 as fully as if set forth at
length herein.
35. UGI Defendants breached their contractual duties and obligations owed to
Payne under the Payne Contract in that they:
a. failed to properly supply the Payne Propane Tank with propane gas on a
timely basis;
failed to properly monitor Payne Propane Tank to ensure that it contained
appropriate levels of propane gas;
failed to refill the Payne Propane Tank with propane gas on a timely basis;
and
failed to relight the pilot light to Payne Home furnace.
The breach by UGI Defendants of the Payne Contract caused the Water
37. The Water Damage is the type of damage that would necessarily be expected
to flow from a breach of the Payne Contract during periods of freezing temperatures.
38. Upon discovery of the breach of the Payne Contract, UGI Defendants were
given prompt and reasonable notice of the Water Damage.
WHEREFORE, Plaintiffs request that judgment be entered in their favor and
against Defendants UGI Utilities, Inc. and UGI Corporation, and that they be awarded
their compensatory damages for the Water Damage and related losses in an amount in
excess of $10,000.00, together with prejudgment interest and the costs associated with
this action.
COUNT IV
BREACH OF CONTRACT
PLAINTIFFS V. AMERIGAS
39. Plaintiffs incorporate by reference paragraphs 1-21 as fully as if set forth at
length herein.
40. Payne was and would have been a third party beneficiary of the
UGI/AmeriGas Contract.
41. Defendant AmeriGas breached its contractual duties and/or obligations owed
to Payne under the UGI/AmeriGas Contract in that they:
a. failed to properly supply the Payne Propane Tank with propane gas on a
timely basis;
b. failed to properly monitor Payne Propane Tank to ensure that it contained
appropriate levels of propane gas;
c. failed to refill the Payne Propane Tank with propane gas on a timely basis;
and
d. failed to relight the pilot light to Payne Home furnace.
42. The breach by AmeriGas of the UGI/AmeriGas Contract directly and
proximately caused the Water Damage.
43. The Water Damage is the type of damage that would flow from a breach of
the UGl/AmeriGas Contract during periods of freezing temperatures.
44. Upon discovery of the breach of the UGl/AmeriGas Contract, AmeriGas was
given prompt and reasonable notice of the Water Damage.
WHEREFORE, Plaintiffs request that judgment be entered in their favor and
against Defendant AmeriGas and that they be awarded their compensatory damages for
the Water Damage and related losses in an amount in excess of $10,000.00, together with
prejudgment interest and the costs associated with this action.
COZEN AND O'CONNOR
VlhlrJ. HUGHES, ESQUIRE
OF COUNSEL:
T. DAVID HIGGINS, JR., ESQ.
HIGGINS MINSKER, P.L.L.C.
1208 South Tryon Street
Charlotte, NC 28203
(704) 370-7700
JAM. $.8001 18:~TPM CMA IMSURAMCE CO M0.393
VERIFICATION
Susan Taibbi, of Encompass Insurance Company, avers that the allegafior~
contained/n the foregoing Complaint are true and correct to the b~st of her knowledge,
information and belief; and that the statements in the said Complaint are made subject to
the penalties of 18 Pa. C.S. § 4904 relating to unswom fals/fications ~o authorities.
day of Sanuary, 2001.
215 665 2013 JA~.05'2001 12:47 RECEIVED FROM: #6340-002
SHERIFF'S RETURN
~AS~ ~O: 2001-00111 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PAYNE SUSAN L ET AL
VS
UGI UTILITIES INC ET AL
- OUT OF COUNTY
R. Thomas Kline
duly sworn according to law,
and inquiry for the within named DEFENDANT
ANERI GAS INC
but was unable to locate Them in his bailiwick.
deputized the sheriff of MONTGOMERY County,
serve the within COMPLAINT & NOTICE
, Sheriff or Deputy Sheriff who being
says, that he made a diligent search and
to wit:
He therefore
Pennsylvania, to
On February 5th , 2001
attached return from MONTGOMERY
Sheriff's Costs:
Docketing
Out of County
Surcharge
6.00
.00
10.00
.00
.00
16.00
02/05/2001
COZEN & O'CONNER
Sworn and subscribed to before me
this '?~ day
22a~o/ A.D.
/ ProthOnotary
this office was in receipt of the
Sheriff of Cumberland County
lin The Court of Common Pleas of Cumberland County, Pennsylvania
": Su's~n L. Payne, et. al. VS.
UGI Utilities, Inc,, et. al.
Serve: Ameri Gas, Inc.'Q~-- '~ ~o. 2001-111
b'
NOW, 1/1.7/01
hereby deputize the Sheriff of
,20 0 ~, I, SHERI2~I;' OF CLTMBEP,_LAN'D COI/NTY, PA, do
MontGomery COURty to execute Lhis Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
~0'~/~
within
~oon
o':Iock ~
· cop5' of the odfnal
and made known to
Swora and subscrit;~;i before
COSTS
SERVICE
.TvffLEAGE
.AFFIDAVIT