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HomeMy WebLinkAbout10-20154c t)';T 2010 K' "2 PH 3: 06 TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. It) -do15 C'1\11ITerm MMG INSURANCE COMPANY, CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, JURY TRIAL DEMANDED Defendants 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 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 MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 (2) 4k.00, PD ATt %t M-0 34l to R-T* (239a(.3 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado 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 puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI 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 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990-9108 TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. MMG INSURANCE COMPANY, CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, JURY TRIAL DEMANDED Defendants COMPLAINT NOW comes the Plaintiff, by his attorneys, Wix, Wenger & Weidner and sets forth as follows: 1. Plaintiff Tarek Eltanbdawy is an adult individual residing at 117 Prince Street, Harrisburg, Pennsylvania 17109. 2. Defendant MMG Insurance is a corporation engaged in the business of liability insurance and having offices located at P.O. Box 729, Presque Isle, Maine 04769. 3. Defendant RestoreCore, Inc. is a corporation having its principal offices located at 2322 North Seventh Street, Harrisburg, Pennsylvania 17110. 4. Defendant Kuan Fang Cheng is an adult individual residing at 11 Bowman Street, Lebanon, Pennsylvania 17046. 5. At all times relevant hereto, Plaintiff was operating the Hampden Diner located at 3421 Simpson Ferry Road, Camp Hill, Pennsylvania 17011. 6. On or about September 15, 2007, Plaintiff entered into a lease with Kuan Fang Cheng who was the owner of the property known as 3421 Simpson Ferry Road. A copy of the Lease Agreement is attached hereto marked Exhibit "A" and incorporated herein by reference. 7. Pursuant to the Lease Agreement, Plaintiff delivered to Defendant Cheng a security deposit in the amount of $11,000.00. 8. Plaintiff also installed new kitchen equipment. 9. On or about October 24, 2008, Plaintiffs purchased an insurance policy from Defendant MMG, a copy of which policy is attached hereto marked Exhibit "B" and incorporated herein by reference. 10. Under the terms of the Lease Agreement, Kuan Fang Cheng warranted that the heating ventilation and air conditioning system was in good condition. 11. Unbeknownst to the Plaintiff, the heating ventilation and air conditioning was not in good condition at the time of the execution of the Lease Agreement, and as a result thereof the system malfunctioned on several occasions in February of 2009 and during the evening of March 4, 2009, pipes in the property froze and burst causing extensive water damage in the work area of the kitchen. 12. Plaintiff immediately called Defendant MMG to report the loss. 13. Plaintiff also called a plumber who immediately came out and fixed the pipe that had frozen. 2 14. Plaintiff did not want to close the restaurant and so advised Defendant MMG. 15. The adjuster for MMG called the Township officials who forced the Plaintiff to close the restaurant on March 4, 2009. 16. Defendant MMG hired Defendant RestoreCore to repair the damages caused by the burst water pipe. 17. Defendant RestoreCore knew of the urgency to make repairs as soon as possible in order that the business could return to operation. 18. Plaintiff was advised by Defendants MMG and RestoreCore that the repairs would take three to five days to complete. 19. RestoreCore negligently delayed making the necessary repairs, and it was not until April 4, 2009, that RestoreCore advised that they had completed their work and that the restaurant could be reopened. 20. Upon inspection of the property, Plaintiff found that the repairs had not been properly made and that the restaurant was covered with dust, that the floor was extremely dirty and that the restaurant could not be reopened. 21. From March 5, 2009 onward, Plaintiff continually requested Defendant MMG to pay him monies so that he could pay the utilities and rent that was ongoing. 22. Defendant MMG failed to make timely payments that were due and owing to the Plaintiffs and as a result thereof various utilities shut off service to the restaurant. 3 23. On or about April 10, 2009, Defendant Cheng acting outside of the law of Pennsylvania locked the restaurant from the outside and placed no trespassing signs on the door. 24. Defendant Cheng has taken possession of Plaintiffs equipment and refuses to return same. 25. As a result of the various Defendants' actions, Plaintiff has suffered from stress and depression requiring medical treatment, and he may continue with such problems and medical treatment in the future. 26. Solely as a result of the actions of the various Defendants, Plaintiff has sustained various losses, including: a) loss of his investment in the business; b) loss of profits; c) loss of future profits; d) damage to his reputation; e) loss of his property; f) mental distress and suffering; and g) past and future medical expenses. WHEREFORE, Plaintiff demands judgment against the Defendants in an amount in excess of $50,000.00. COUNTI Tarek Eltanbawy v. MMG Insurance Company In Assumpsit 4 27. Plaintiff incorporates herein by reference paragraphs 1 through 26 of this Complaint. 28. Under the terms of the insurance policy issued to Plaintiff, Plaintiff is entitled to lost income for a period of one year from March 4, 2009. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. COUNT II Tarek Eltanbawy v. MMG Insurance Company In Trespass 29. Plaintiff incorporates herein by reference paragraphs 1 through 28 of this Complaint. 30. Defendant was negligent in that it: a) caused Township officials to close the restaurant when it was capable of remaining in operation; b) negligently hired a contractor that it knew or should have known that it was not going to properly and promptly repair the damages; and c) negligently failed to supervise the contractor that it had hired to see that the repairs were carried out in a proper and prompt manner. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. COUNT III Tarek Eltanbawy v. RestoreCore. Inc. 5 31. Plaintiff incorporates herein by reference paragraphs 1 through 30 of this Complaint. 32. Defendant was negligent in that it: a) failed to promptly and properly carry out the repairs when it knew that time was of the essence in restoring the restaurant to its previous condition; b) failed to perform its repair work in a good and workmanlike manner; c) failed to replace a wooden floor which had warped as a result of the water leakage; d) failed to repair the drop ceiling in the bathroom, as well as failed to properly repair and replace the toilet stalls and toilet paper holders; e) failed to properly repair the door and failed to put trim in place; f) failed to replace eight-foot lights that had been in the kitchen ceiling; g) failed to paint the drywall in the storage room; h) left the restaurant and floor covered with dust and dirt; i) failed to clean the carpet; j) failed to properly repair the Ladies Restroom; k) failed to properly repair the door between the kitchen and the restaurant; 1) failed to properly repair the room containing the hot water tank and that it failed to install insulation, failed to install the lights and failed to paint the rooms; and m) negligently left the food to remain the refrigerator and freezer which resulted in odors damaging the equipment. 6 WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. COUNT IV Tarek Eltanbawv v. Kuan Fans Chena In Assumpsit 33. Plaintiff incorporates herein by reference paragraphs 1 through 32 of this Complaint. 34. Under the Lease Agreement, Kuan Fang Cheng warranted that the heat/HVAC system was in good condition. 35. The HVAC equipment was not in good condition and did not properly operate, which is what allowed the pipes to freeze and cause the damage that ultimately resulted in the loss of Plaintiffs business. 36. The actions of Defendant Cheng in the padlocking of the restaurant were in violation of the Lease Agreement. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. COUNT V Tarek Eltanbawv v. Kuan Fans Chene In Trespass 37. Plaintiff incorporates herein by reference paragraphs 1 through 36 of this Complaint. 38. The actions taken by Defendant Cheng were in violation of the Landlord and Tenant Law of Pennsylvania. 7 39. The actions of Defendant were intentional and constitute intentional infliction of mental distress. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00 for compensatory and punitive damages. Respectfully submitted, WIX, WENGER & WEIDNER By 1"?,claa L ?. LJx Richard H. Wix, Esq., ID #07274 Attorneys for Plaintiff 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 Dated: 3/19/2010 8 VERIFICATION I, Tarek Eltanbdawy, have read the foregoing Complaint, which has been drafted by my counsel. The factual statements and/or denials contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this verification. This verification is made only as to the factual averments contained therein and not to legal conclusions and averments authorized by counsel in his capacity as attorney for the party or parties hereto. This verification is made subject to the penalties of 18 PA. C.S. Section 4904, relating to unsworn falsification to authorities, which provides that if I knowingly made false averments, I may be subject to criminal penalties. Date: 3I l a a-o i v ° Tarek Eltanbda 1?? ki ? 1'? A LEASE AGREEMENT THIS LEASE made as of this day of Aqsi?-- - , 2008, by and between KUAN FANG CHENG, of Lebanon, Pennsylvania (hereinafter referred to as "Landlord"), and RASHA ELNAGGAR of Harrisburg, Pennsylvania, AMAL EZZAT of Carlisle, Pennsylvania, and TAREK ELTANBDAWY of Harrisburg, Pennsylvania (hereinafter collectively referred to as "Tenant"). WITNESSETH: WHEREAS, Landlord is the owner of a tract of ground with a building erected thereon, situate in Hampden Township, Cumberland County, Pennsylvania, located at 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, more particularly described on a deed recorded at Deed Book 165, Page 237 in the Cumberland County Recorder of Deeds Office (hereinafter the "Premises"); and WHEREAS, Landlord and Tenant have agreed that Landlord shall grant to Tenant and Tenant shall acquire an option 'to purchase the Premises as well as a right of first refusal to purchase the Premises upon the terms and conditions hereinafter set forth; and WHEREAS, Landlord and Tenant have agreed that Landlord shall lease to Tenant and Tenant shall lease from Landlord the Premises upon the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the premises, the mutual covenants herein contained, and the rent reserved to be paid by Tenant to Landlord, the parties hereto, intending to be legally bound, do hereby agree as follows: 1. Premises. The Premises consists of a tract of ground and building thereon located 3421 Simpson Ferry Road, Hampden Township, Camp Hill, Pennsylvania, more particularly 1 described on a deed recorded at Deed Book 165, Page 237 in the Cumberland County Recorder of Deeds Office, having erected thereon a building used for a restaurant. v- 2. Term. This Lease shall commence on September , 2008 and shall continue for five (5) years whereupon Tenant shall have the option to extend and renew this Lease for up to three additional five (5) year terms upon written notification to Landlord no less than six (6) months prior to the end of any of the five (5) year terms. 3. Possession. Landlord shall give possession of the Premises to Tenant on or before August 1, 2008. This is intended to give Tenant one month for renovation without the need to pay rent. Should the business open before September 1, 2008, Tenant shall pay pro-rata rent for the remain portion of August 2008. 4. Rent. Rent for the first five (5) years of this Lease shall be Five Thousand Five Hundred ($5,500.00) Dollars per month, which sum shall be increased by Five Hundred ($500.00) Dollars per month for each of the successive five (5) year terms undertaken by the Tenant in the exercise of Tenant's option to extend this Lease. Payment of rent for September, 2008, in the amount of Five Thousand Five Hundred ($5,500.00) Dollars shall be due on September 1, 2008, and monthly payments shall thereafter be due on the first day of each succeeding month during the term, without demand therefor by Landlord. Rent shall be payable at the office of Landlord or such other place as Landlord may in writing direct. Tenant shall pay a late fee of five percent (5%) of the unpaid balance of the monthly rent for any month in which the rent payment is more than ten (10) days late. 5. Rights of Tenant and Subordination. Tenant shall not have the legal right to mortgage, pledge or otherwise encumber the Premises. This Lease is expressly subordinate to all present and future mortgages or other security instruments granted by Landlord encumbering the buildings or the land upon which they are erected, or fixtures or other appurtenances thereto. Tenant covenants to execute such documents as requested by Landlord to confirm or substantiate such subordination, and upon failure so to do, hereby irrevocably appoints Landlord its agent and 2 ??;2 attorney-in-fact to execute the same on its behalf. With respect to any mortgages or other security instruments entered into by Landlord after the execution of this lease, Tenant's subordination of this Lease shall be subject to a commercially reasonably non-disturbance agreement from the lender which non-disturbance agreement provides that Tenant's possession of the Premises and this Lease, including any options to extend the terms hereof, will not be disturbed so long as Tenant is not in breach hereof and attoms to the record owner of the Premises. 6. Services. Landlord shall not be responsible in any way in the event that the supply of heat, air conditioning, water, electricity, plumbing, or any other utilities, is cut off by reason of any cause beyond the control of Landlord, and Tenant does hereby release Landlord from any damage which may result by reason of any such failure of the supply of such items. 7. Maintenance and Repair. Tenant shall provide all repair and maintenance of the Premises during the term of this Lease Agreement, including all interior repairs, alterations, trash removal, janitorial services, snow removal, parking lot repairs, and common area maintenance, with the exception of major structural repairs, which shall be provided by Landlord. Landlord warrants that the roof and HVAC system are in good condition at the time of execution of this Lease Agreement. Roof and HVAC repairs shall thereafter be Tenant's responsibility. 8. Taxes. Tenant agrees to pay all real estate taxes which are chargeable or assessed against the demised Premises as they become due. 9. Utilities. The cost of utilities furnished to the demised Premises, including, without limitation, the cost of water, heat, gas, electricity, air conditioning, and sewerage, shall be paid by the Tenant. 10. Other expenses. Any charges or costs or other expenses in connection with the Premises not herein expressly provided shall be the obligation of the Tenant. Landlord shall indemnify and hold harmless Tenant against any claims or liabilities accrued or incurred prior to the delivery of possession of the Premises to Tenant, including but not limited to violations of federal and local laws and regulations regarding the use and occupancy of the Premises prior to delivery of possession to Tenant. 11. Alterations and Changes. Tenant shall make no modifications or changes to the appearance of the building, either exterior or interior, without the express written consent of the Landlord, which consent shall not be unreasonably withheld. Attached to this Lease Agreement may be found a list of renovations, alterations and improvements that Tenant plans to make to the Premises upon possession. By signing that list, Landlord indicates his consent to such modifications. 12. Assignment and Subletting. Tenant shall not assign or sublet the Premises or any part thereof without the written consent of Landlord, which shall not be unreasonably withheld. Should Tenant enter into any agreement to assign or sublet the Premises with the consent of Landlord, all provisions of this Lease Agreement shall remain effective, and Tenant shall guarantee performance of all duties under this Agreement, including, but not limited to, the payment of Rent and all other expenses described herein. 13. Liability. Tenant hereby releases Landlord from any future liability for any and all injuries or damages which may be suffered by Tenant, its successors and assigns, in its use of the Premises, as a result of the negligence, business operations, or any other activity of the Tenant, on any portion of the Premises. Tenant covenants and agrees that it will bear, pay and discharge, when and as the same become due and payable, all judgments and lawful claims for damages or otherwise against Landlord arising from Tenant's use or occupancy of said Premises, and will assume the burden and expense of defending all such suits, whether brought before the expiration of this Agreement of Lease, or otherwise, and will protect, indemnify and save harmless the said Landlord, its agents, servants, employees, heirs and personal representatives by reason of or on account of the 6)-- 4 use or misuse of the said Premises hereby leased, or any part thereof, due to the negligence of Tenant, or of its agents, servants or employees. Tenant agrees, at its sole expense, to keep the premises insured against fire and other perils, including liability, in an amount not less than $1,000,000.00 in premises insurance and - $1,000,000.00 in liability insurance, which shall be payable to Landlord. All insurance required hereunder shall be taken out and maintained in generally recognized responsible insurance companies, qualified under the laws of the Commonwealth of Pennsylvania, shall name Landlord as additional insureds, and said policies or certificates evidencing such insurance coverage shall be furnished to Landlord. Prior to the expiration of any such policies, Tenant shall furnish to Landlord evidence reasonably satisfactory to Landlord that such policies have been renewed or replaced by similar policies. Landlord shall have the right to demand and receive proof of insurance coverage on a semi-annual basis. Tenant covenants to maintain adequate insurance against damage or destruction of Tenant's personal property on account of the elements, fire, wind, theft and other perils commonly insured against. Landlord shall not be liable for any damage done to or loss of Tenant's personal property or damage or loss suffered by the business or occupation of Tenant or of other persons from bursting, overflowing or leaking of water or sewer pipes or from the heating or plumbing fixtures or from electric wires, or from gas or odors, or caused in any other amount whatsoever. 14. Option to Purchase. Landlord hereby grants to Tenant an Option to purchase the Premises during the first five (5) year term of this Lease Agreement for the sum of $865,000.00 during the first two years of this Lease Agreement, with the option price increasing to $890,000.00 if purchased during the third, fourth or fifth year of this Lease Agreement. During the remaining length of this Lease Agreement, including any extensions, Tenant shall have an Option to purchase the Premises at market value, with market value determined by arbitration if the parties are unable to reach agreement as to market value. This Option to Purchase shall be automatically terminated should Landlord elect to sell the Premises to another party at any time during the entire term of this Lease Agreement, provided that Landlord first complies with the requirements of Tenant's Right of First Refusal. 5 15. Right of First Refusal. Landlord hereby grants to Tenant during the term of this Lease a Right of First Refusal to purchase the Premises. At such time as Landlord receives an offer to purchase the Premises on terms otherwise acceptable to Landlord, the terms of such offer, together with a copy of any written documentation of such offer, shall be furnished to Tenant in writing, whereupon Tenant shall have ten (10) days to match said offer. In the event Tenant matches said offer, Landlord shall be obligated to sell the Premises to Tenant on the terms and conditions contained in said offer. This Lease Agreement shall remain in full force and effect in the event of the sale or other transfer of Landlord's interest in the Premises to a third party, with that third party solely responsible for Landlord's duties under this Lease Agreement.. 16. Security Deposit. Upon the execution of this Agreement, Tenant shall pay to Landlord the sum of Eleven Thousand ($11,000.00) Dollars, which is to remain on deposit with Landlord during the Term of this Lease and any extensions as security for the payment of rent and the full and faithful performance by Tenant of the covenants and conditions of this Lease. In the event of any default, the sum shall be retained by Landlord and may be applied toward damages arising from such default. Upon yielding of said premises at the termination of this Lease, and provided no default has occurred, said sum shall be returned to Tenant. No interest shall be payable on the deposit. It is understood that Landlord shall always have the right to apply said deposit, or portion thereof, to the curing of any default that may exist. Should Landlord convey its interest under this Lease, the deposit, or the part or portion thereof not previously applied, shall be turned over to Landlord's grantees or assignees; and Tenant hereby releases Landlord from any liability with respect to the deposit and Tenant agrees to look solely to such grantee or assignee and this provision shall also apply to subsequent grantees or assigns. Tenant agrees that it will not assign, pledge, mortgage or otherwise hypothecate its interest in the security deposit. Should Landlord apply any part of this deposit pursuant to these provisions, then Tenant shall, upon written demand by Landlord, remit to Landlord a sufficient amount in cash to restore said security to the original sum deposited, and Tenant's failure to do so within five (5) days after mailing of such demand shall constitute a breach of this Lease. ,a?- 6 17. Default. The following events shall constitute default hereunder: (a) Nonpayment of rent for a period of ten (10) days from its due date; (b) Assignment by Tenant for the benefit of creditors, issuance of execution against Tenant, appointment of a receiver of the assets of Tenant, the filing for, by, or against Tenant of any action under the Federal Bankruptcy Act or comparable state or local legislation; (c) Violation of any of the terms or conditions of this Lease; or (d) Abandonment of the Premises by Tenant. 18. Landlord's Remedies on Default. Upon default by Tenant hereunder, Landlord shall, without by this exposition limiting its rights in law or in equity, have the following remedies: (a) After notice as hereinafter provided, at its option, Landlord may declare the entire rent reserved for the full term of this Lease remaining unpaid due and payable forthwith and proceed for the collection of the same by distress or otherwise, and Landlord may in such event forfeit and annul the unexpired portion of this Lease and enter upon and repossess the Premises with or without process of law; provided, however, that if Tenant after written notice of such default or of breach shall remedy the same within ten (10) days, it shall be restored to its full rights and privileges of this Lease. (b) If Tenant shall make an assignment for the benefit of creditors or be adjudicated a bankrupt, Landlord may proceed forthwith for the collection of the rent for the full term, and in addition thereto forfeit and/or annul the unexpired portion of this Lease and enter upon and repossess said Premises. (c) Failure by Landlord to exercise its rights hereunder in the event of default shall not act as a waiver of its rights so to exercise in the event of a subsequent default. (d) Any attorney may appear for Tenant in an amicable action of ejectment for said Premises in any court having jurisdiction and may confess judgment therein with costs in favor of Landlord, and those claiming under Landlord and against Tenant, and against those claiming under Tenant and Tenant authorizes the immediate issuing of a writ of possession with clauses for the recovery of a money judgment for costs without asking leave of court. (e) If rent or any charges hereby reserved as rent, or any other sum payable hereunder, shall remain unpaid when the same ought to be paid, Tenant hereby empowers any prothonotary or attorney of any court of record to appear for Tenant in any and all actions which may be brought for rent, liquidated damages or other charges or expenses agreed to be paid by Tenant hereunder and to sign for Tenant an Agreement for entering into any competent court an amicable action or actions for the recovery of rent, liquidated damages or other charges or expenses, and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of the rent including, at Landlord's option, the rent for the entire unexpired balance of the term of this Lease, and any other charges, payments, costs and expenses reserved as rent or agreed to be paid by the Tenant as well as liquidated damages, and for attorney's fees, interest and cost together with an attorney's commission of fifteen (15%) percent thereof. Said authority shall not be exhausted by one (1) exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as any of said rent or other charges reserved as rent or liquidated damages shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term or during any extension or renewal of this Lease. 19. Attorneys' Fees. In the event that Landlord shall be required to engage legal counsel for the enforcement of any terms of this lease, whether such employment shall require institution of suit or other legal services required to secure compliance on the part of the Tenant, Tenant shall be responsible for and shall promptly pay to Landlord the reasonable cost of said attorney's fees. 20. Ouiet Enioyment. So long as Tenant is not in default hereunder, Landlord covenants to allow Tenant quietly and peaceably to enjoy possession of the Premises free from interference or interruption of Landlord or any other person claiming under or through Landlord. 21. Condemnation. In the event the Premises or a portion thereof are taken or sold pursuant to the exercise of the right of eminent domain by any authority having or claiming to have the same, rent shall be proportionately reduced (in the case of a partial taking) or this lease shall be terminated (in the case of a taking of the whole), as the case may be; but in no event shall Tenant be entitled to or receive any part of the award or price paid to Landlord in connection therewith. Tenant hereby assigns to Landlord all such awards, compensation and agreed settlements and authorizes payment thereof by the Condemnor directly to Landlord. 22. Landlord's Right of Entry. Tenant shall permit Landlord and its agents to enter into and upon said Premises at all reasonable times for the purpose of inspecting the same. Landlord shall also have the right to enter upon the premises at all reasonable times for the purposes of showing the Premises to prospective purchasers. 23. Cancellation. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall, at the option of Landlord, terminate all or any existing subleases or sub tenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases or subtenancies. 24. No Waiver. The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Landlord of any term, covenant or condition of this Lease, other than the failure to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding at the time of acceptance of such rent. 25. Remedies Cumulative. It is understood and agreed that the remedies herein given to Landlord shall be cumulative, and the exercise of any one remedy by Landlord shall not be to the 9 exclusion of any other remedy. Each and all of said remedies shall be exercisable repeatedly and as often as may be necessary. 26. Brokers. Landlord and Tenant mutually represent and warrant that neither has dealt with any broker or finder in respect to the subject matter of this Lease Agreement. Each party agrees to indemnify and hold the other party harmless from and against all liabilities, claims, losses, costs, damages, and expenses, including attorney's fees, arising out of or from any claims for brokerage commission resulting from any other agreement by such party with any broker or any other person. 27. Construction. Wherever the context so requires, the feminine gender shall be substituted for the masculine, the masculine for the feminine or the neuter for either; the singular shall be substituted for the plural and vice versa. Paragraph headings are for convenience only and do not constitute a part of this Lease. This Lease is made and executed in the Commonwealth of Pennsylvania and shall be construed and enforced in accordance with the laws thereof. 28. Use of Premises. It is the intention of the Tenant to use the premises for a restaurant. _ Tenant warrants to Landlord that none of the products or materials used by it on said premises shall be such as defined by State or Federal Statute as being hazardous or toxic. Tenant agrees to comply with all local, state and federal statutes with regard to the use of any products or materials and for their disposal. Tenant specifically agrees to be fully responsible for the cost of any and all remediation required in the event of any contamination on the site as a result of its activities. Tenant will indemnify and save Landlord, its agents, servants, employees, heirs and personal representatives harmless by reason or on account of the use or storage of said products. 29. Notices. All notices or other communication pursuant hereto to any party shall be deemed given when deposited in the United States mail, postage prepaid, return receipt requested, addressed to the parties at the addresses set out below, or to such other address as the parties may in writing direct: 10 If to Landlord: Kuan Fang Cheng 2125 West Cumberland Street Lebanon, PA 17042 Copy to Landlord's John J. Ferry, Jr., Esquire Attorney: Law Offices of John J. Ferry, Jr. 931 Cumberland Street Lebanon, PA 17042 If to Tenant: Rasha Elnaggar 3102 Hoffer Street Harrisburg, PA 17103 The parties agree that notices need not be sent to co-tenants whose addresses are not listed in this paragraph. Notice upon the co-tenant named in this paragraph shall be considered equivalent to notice upon all co-tenants. 30. Entire Agreement. This Lease contains the entire understanding between the parties hereto and supersedes any prior written or oral agreements between them respecting the within subject matter. There are no representations, agreements, arrangements or understanding, oral or written, between and among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. 31. Successors and Assigns. Except as herein otherwise specified, this Lease shall legally benefit and bind the parties hereto, their respective heirs, beneficiaries, executors, personal representatives, successors and assigns. IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the day and year first written above. LANDLORD: Kuan ?ng Cheng 2- 11 TENANT: Rasha lnaggar Aural Ezzat Tarek Eltanbdawy PERSONAL GUARANTY Intending to be legally bound, and in consideration of this Lease Agreement, the undersigned hereby becomes surety to Landlord for the performance of the Agreement by Tenant and guarantees payment of all sums becoming owing to Landlord by Tenant. The liability of the undersigned is absolute, continuing, and unconditional, and Landlord shall not be required to proceed against Tenant or invoke any other remedy before proceeding against the undersigned. Landlord expressly agrees to notify the guarantor in the event of breach or default. WITNESS: GUARANTORS: Walid S. Khalil 12 EX- tib1 t B BUSINESSOWNERS BP 00 03 07 02 BUSINESSOWNERS COVERAGE FORM Various provisions in this policy restrict coverage. (a) Fire extinguishing equipment; Read the entire policy carefully to determine rights, (b) Outdoor furniture; duties and what is and is not covered. Throughout this Coverage Form the words "you" and "your" refer to the Named Insured shown in the Decla- rations. The words "we", "us" and "our" refer to the Company providing this insurance. In Section 11 - Liability, the word "insured" means any person or organization qualifying as such under Paragraph C - Who Is An Insured. Other words and phrases that appear in quotation marks have special meaning. Refer to Paragraph H. Property Definitions in Section 1- Property and Para- graph F. Liability And Medical Expenses Definitions in Section 11- Liability. SECTION I - PROPERTY A. Coverage We will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Cov- ered Cause of Loss. 1. Covered Property Covered Property includes Buildings as de- scribed under Paragraph a. below, Business Personal Property as described under Para- graph b. below, or both, depending on whether a Limit of Insurance is shown in the Declara- tions for that type of property. Regardless of whether coverage is shown in the Declarations for Buildings, Business Personal Property, or both, there is no coverage for property de- scribed under Paragraph 2. Property Not Cov- ered. a. Buildings, meaning the buildings and struc- tures at the premises described in the Dec- larations, including: (1) Completed additions; (2) Fixtures, including outdoor fixtures; (3) Permanently installed: (a) Machinery; and (b) Equipment; (c) Floor coverings; and (d) Appliances used for refrigerating, ventilating, cooking, dishwashing or laundering; (6) If not covered by other insurance: (a) Additions under construction, altera- tions and repairs to the buildings or structures; (b) Materials, equipment, supplies and temporary structures, on or within 100 feet of the described premises, used for making additions, alterations or repairs to the buildings or structures. b. Business Personal Property located in or on the buildings at the described premises or in the open (or in a vehicle) within 100 feet of the described premises, including: (1) Property you own that is used in your business; (2) Property of others that is in your care, custody or control, except as otherwise provided in Loss Payment Property Loss Condition Paragraph E.6.d.(3)(b); (3) Tenant's improvements and betterments. Improvements and betterments are fix- tures, alterations, installations or addi- tions: (a) Made a part of the building or struc- ture you occupy but do not own; and (b) You acquired or made at your ex- pense but cannot legally remove; and (4) Leased personal property for which you have a contractual responsibility to in- sure, unless otherwise provided for un- der Paragraph 1.b.(2). (5) Exterior building glass, if you are a ten- ant and no Limit of Insurance is shown in the Declarations for Building property. The glass must be owned by you or in your care, custody or control. (4) Your personal property in apartments, 2. Property Not Covered rooms or common areas furnished by Covered Property does not include: you as landlord; a. Aircraft, automobiles, motortrucks and other (5) Personal property owned by you that is vehicles subject to motor vehicle registra- used to maintain or service the buildings tion; or structures or the premises, including: BP 00 03 07 02 © ISO Properties, Inc., 2001 Page 1 of 43 Exhibit "B" nrtu7DDovi b. "Money" or "securities" except as provided in the: (1) Money and Securities Optional Cover- age; or (2) Employee Dishonesty Optional Cover- age; c. Contraband, or property in the course of illegal transportation or trade; d. Land (including land on which the property is located), water, growing crops or lawns; e. Outdoor fences, radio or television antennas (including satellite dishes) and their lead-in wiring, masts or towers, signs (other than signs attached to buildings), trees, shrubs or plants, all except as provided in the: (1) Outdoor Property Coverage Extension; or (2) Outdoor Signs Optional Coverage; f. Watercraft (including motors, equipment and accessories) while afloat. g. Accounts, bills, food stamps, other evi- dences of debt, accounts receivable or "valuable papers and records"; except as otherwise provided in this policy. h. "Computer(s)" which are permanently in- stalled or designed to be permanently in- stalled in any aircraft, watercraft, motortruck or other vehicle subject to motor vehicle registration. This paragraph does not apply to "computer(s)" while held as "stock". 3. Covered Causes Of Loss Risks of direct physical loss unless the loss is: a. Excluded in Paragraph B. Exclusions in Section I; or b. Limited in Paragraph 4. Limitations in Sec- tion L 4. Limitations a. We will not pay for loss of or damage to: (1) Steam boilers, steam pipes, steam en- gines or steam turbines caused by or re- sulting from any condition or event inside such equipment. But we will pay for loss of or damage to such equipment caused by or resulting from an explosion of gases or fuel within the furnace of any fired vessel or within the flues or pas- sages through which the gases of com- bustion pass. (2) Hot water boilers or other water heating equipment caused by or resulting from any condition or event inside such boil- ers or equipment, other than an explo- sion. (3) Property that is missing, where the only evidence of the loss or damage is a shortage disclosed on taking inventory, or other instances where there is no physical evidence to show what hap- pened, to the property. This limitation does not apply to the Optional Coverage for Money and Securities. (4) Property that has been transferred to a person or to a place outside the de- scribed premises on the basis of unau- thorized instructions. (5) The interior of any building or structure caused by or resulting from rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless: (a) The building or structure first sustains damage by a Covered Cause of Loss to its roof or walls through which the rain, snow, sleet, ice, sand or dust enters; or (b) The loss or damage is caused by or results from thawing of snow, sleet or ice on the building or structure. b. We will not pay for loss of or damage to fragile articles such as glassware, statuary, marbles, chinaware and porcelains, if bro- ken, unless caused by the "specified causes of loss" or building glass breakage. This re- striction does not apply to: (1) Glass that is part of the exterior or inte- rior of a building or structure; (2) Containers of property held for sale; or (3) Photographic or scientific instrument lenses. c. For loss or damage by theft, the following types of property are covered only up to the limits shown: (1) $2,500 for furs, fur garments and gar- ments trimmed with fur. (2) $2,500 for jewelry, watches, watch movements, jewels, pearis, precious and semi-precious stones, bullion, gold, sil- ver, platinum and other precious alloys or metals. This limit does not apply to jewelry and watches worth $100 or less per item. (3) $2,500 for patterns, dies, molds and forms. Page 2 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? 5. Additional Coverages a. Debris Removal (1) Subject to Paragraphs (3) and (4), we will pay your expense to remove debris of Covered Property caused by or result- ing from a Covered Cause of Loss that occurs during the policy period. The ex- penses will be paid only if they are re- ported to us in writing within 180 days of the date of direct physical loss or dam- age. (2) Debris Removal does not apply to costs to: (a) Extract "pollutants" from land or water, or (b) Remove, restore or replace polluted land or water. Therefore, if Paragraphs (4)(a) and/or (4)(b) apply, our total payment for direct physical loss or damage and debris re- moval expense may reach but will never exceed the Limit of Insurance on the Covered Property that has sustained loss or damage, plus $10,000. (5) Examples Example #1 (3) Subject to the exceptions in Paragraph (4), the following provisions apply: (a) The most that we will pay for the total of direct physical loss or damage plus debris removal expense is the Limit of Insurance applicable to the Cov- ered Property that has sustained loss or damage. (b) Subject to Paragraph (a) above, the amount we will pay for debris re- moval expense is limited to 25% of the sum of the deductible plus the amount that we pay for direct physi- Example #2 cal loss or damage to the Covered Property that has sustained loss or damage. (4) We will pay up to an additional $10,000 for debris removal expense, for each lo- cation, in any one occurrence of physical loss or damage to Covered Property, if one or both of the following circum- stances apply: (a) The total of the actual debris removal expense plus the amount we pay for direct physical loss or damage ex- ceeds the Limit of Insurance on the Covered Property that has sustained loss or damage. (b) The actual debris removal expense exceeds 25% of the sum of the de- ductible plus the amount that we pay for direct physical loss or damage to the Covered Property that has sus- tained loss or damage. Limit of Insurance $ 90,000 Amount of Deductible $ 500 Amount of Loss $ 50,000 Amount of Loss Payable $ 49,500 ($50,000 - $500) Debris Removal Expense $ 10,000 Debris Removal Expense Payable $ 10,000 ($10,000 is 20% of $50,000) The debris removal expense is less than 25% of the sum of the loss payable plus the deductible. The sum of the loss pay- able and the debris removal expense ($49,500 + $10,000 = $59,500) is less than the Limit of Insurance. Therefore the full amount of debris removal ex- pense is payable in accordance with the terms of Paragraph (3). Limit of Insurance $ 90,000 Amount of Deductible $ 500 Amount of Loss $ 80,000 Amount of Loss Payable $ 79,500 ($80,000 - $500) Debris Removal Expense $ 30,000 Debris Removal Expense Payable Basic Amount $ 10,500 Additional Amount $ 10,000 The basic amount payable for debris re- moval expense under the terms of Para- graph (3) is calculated as follows: $80,000 ($79,500 + $500) x .25 = $20,000; capped at $10,500). The cap applies because the sum of the loss pay- able ($79,500) and the basic amount payable for debris removal expense ($10,500) cannot exceed the Limit of In- surance ($90,000). BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 3 of 43 ? belUJ57OU / The additional amount payable for debris removal expense is provided in accor- dance with the terms of Paragraph (4), because the debris removal expense ($30,000) exceeds 25% of the loss pay- able plus the deductible ($30,000 is 37.5% of $80,000), and because the sum of the loss payable and debris removal expense ($79,500 + $30,000 =$109,500) would exceed the Limit of Insurance ($90,000). The additional amount of cov- ered debris removal expense is $10,000, the maximum payable under Paragraph (4). Thus the total payable for debris re- moval expense in this example is $20,500; $9,500 of the debris removal expense is not covered. b. Preservation Of Property If it is necessary to move Covered Property from the described premises to preserve it from loss or damage by a Covered Cause of Loss, we will pay for any direct physical loss of or damage to that property: (1) While it is being moved or while tempo- rarily stored at another location; and (2) Only if the loss or damage occurs within 30 days after the property is first moved. c. Fire Department Service Charge When the fire department is called to save or protect Covered Property from a Covered Cause of Loss, we will pay up to $1,000 for your liability for fire department service charges: (1) Assumed by contract or agreement prior to loss; or (2) Required by local ordinance. d. Collapse (1) With respect to buildings: (a) Collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose; (b) A building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse; (c) A part of a building that is standing is not considered to be in a state of col- lapse even if it has separated from another part of the building; (d) A building that is standing or any part of a building that is standing is not considered to be in a state of col- lapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expan- sion. (2) We will pay for direct physical loss or damage to Covered Property, caused by collapse of a building or any part of a building that is insured under this policy, if the collapse is caused by one or more of the following: (a) The "specified causes of loss" or breakage of building glass, all only as insured against in this policy; (b) Decay that is hidden from view, un- less the presence of such decay is known to an insured prior to collapse; (c) Insect or vermin damage that is hid- den from view, unless the presence of such damage is known to an in- sured prior to collapse; (d) Weight of people or personal prop- erty; (e) Weight of rain that collects on a roof; (f) Use of defective material or methods in construction, remodeling or reno- vation if the collapse occurs during the course of the construction, re- modeling or renovation. However, if the collapse occurs after construc- tion, remodeling or renovation is complete and is caused in part by a cause of loss listed in Paragraphs (a) through (e), we will pay for the loss or damage even if use of defective ma- terial or methods in construction, re- modeling or renovation, contributes to the collapse. The criteria set forth in Paragraphs (1)(a) through (1)(d) do not limit the coverage otherwise provided under this Additional Coverage for the causes of loss listed in Paragraphs (2)(a), (2Kd) and (2)(e). (3) With respect to the following property: (a) Awnings; (b) Gutters and downspouts; (c) Yard fixtures; (d) Outdoor swimming pools; (e) Piers, wharves and docks; Page 4 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? (f) Beach or diving platforms or appurte- nances; (g) Retaining walls; and (h) Walks, roadways and other paved surfaces; if the collapse is caused by a cause of loss listed in Paragraphs (2)(b) through (2)(f), we will pay for loss or damage to that property only if such loss or damage is a direct result of the collapse of a building insured under this policy and the property is Covered Property under this policy. (4) If personal property abruptly falls down or caves in and such collapse is not the result of collapse of a building, we will pay for loss or damage to Covered Property caused by such collapse of per- sonal property only if: (a) The collapse was caused by a cause of loss listed in Paragraphs (2)(a) through (2)(f) of this Additional Cov- erage; (b) The personal property which col- lapses is inside a building; and (c) The property which collapses is not of a kind listed in Paragraph (3) above, regardless of whether that kind of property is considered to be personal property or real property. The coverage stated in this Paragraph (4) does not apply to personal property if marring and/or scratching is the only damage to that personal property caused by the collapse. Collapse of personal property does not mean cracking, bulging, sagging, bend- ing, leaning, settling, shrinkage or ex- pansion. (5) This Additional Coverage, Collapse, will not increase the Limits Of Insurance pro- vided in this policy. e. Water Damage, Other Liquids, Powder Or Molten Material Damage If loss or damage caused by or resulting from covered water or other liquid, powder or molten material damage loss occurs, we will also pay the cost to tear out and replace any part of the building or structure to repair damage to the system or appliance from which the water or other substance escapes. We will not pay the cost to repair any defect that caused the loss or damage; but we will pay the cost to repair or replace damaged parts of fire extinguishing equipment if the damage: (1) Results in discharge of any substance from an automatic fire protection system; or (2) Is directly caused by freezing. f. Business Income (1) Business Income (a) We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your "operations" during the "period of res- toration". The suspension must be caused by direct physical loss of or damage to property at the described premises. The loss or damage must be caused by or result from a Cov- ered Cause of Loss. With respect to loss of or damage to personal prop- erty in the open or personal property in a vehicle, the described premises include the area within 100 feet of the site at which the described premises are located. With respect to the requirements set forth in the preceding paragraph, if you occupy only part of the site at which the described premises are lo- cated, your premises means: (i) The portion of the building which you rent, lease or occupy; and (ii) Any area within the building or on the site at which the described premises are located, if that area services, or is used to gain access to, the described premises. (b) We will only pay for loss of Business Income that you sustain during the "period of restoration" and that occurs within 12 consecutive months after the date of direct physical loss or damage. We will only pay for ordi- nary payroll expenses for 60 days fol- lowing the date of direct physical loss or damage, unless a greater number of days is shown in the Declarations. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 5 of 43 ? (c) Business Income means the: (i) Net Income (Net Profit or Loss before income taxes) that would have been earned or incurred if no physical loss or damage had occurred, but not including any Net Income that would likely have been earned as a result of an in- crease in the volume of business due to favorable business condi- tions caused by the impact of the Covered Cause of Loss on cus- tomers or on other businesses; and (ii) Continuing normal operating ex- penses incurred, including payroll. (d) Ordinary payroll expenses: (i) Mean payroll expenses for all your employees except: i. Officers; ii. Executives; iii. Department Managers; iv. Employees under contract; and v. Additional Exemptions shown in the Declarations as: • Job Classifications; or • Employees. (ii) Include: L Payroll; ii. Employee benefits, if directly related to payroll; iii. FICA payments you pay; iv. Union dues you pay; and v. Workers' compensation pre- miums. (2) Extended Business Income (a) If the necessary suspension of your "operations" produces a Business In- come loss payable under this policy, we will pay for the actual loss of Busi- ness Income you incur during the pe- riod that: (i) Begins on the date property ex- cept finished stock is actually re- paired, rebuilt or replaced and "operations" are resumed; and Page 6 of 43 (ii) Ends on the earlier of: i. The date you could restore your "operations", with reason- able speed, to the level which would generate the Business Income amount that would have existed if no direct physi- cal loss or damage had oc- curred; or ii. 30 consecutive days after the date determined in Paragraph (a)(i) above, unless a greater number of consecutive days is shown in the Declarations. However, Extended Business Income does not apply to loss of Business In- come incurred as a result of unfavor- able business conditions caused by the impact of the Covered Cause of Loss in the area where the described premises are located. (b) Loss of Business Income must be caused by direct physical loss or damage at the described premises caused by or resulting from any Cov- ered Cause of Loss. (3) With respect to the coverage provided in this Additional Coverage, suspension means: (a) The partial slowdown or complete cessation of your business activities; and (b) That a part or all of the described premises is rendered untenantable, if coverage for Business Income ap- plies. (4) This Additional Coverage is not subject to the Limits of Insurance of Section 1 - Property. g. Extra Expense (1) We will pay necessary Extra Expense you incur during the "period of restora- tion" that you would not have incurred if there had been no direct physical loss or damage to property at the described premises. The loss or damage must be caused by or result from a Covered Cause of Loss. With respect to loss of or damage to personal property in the open or personal property in a vehicle, the de- scribed premises include the area within 100 feet of the site at which the de- scribed premises are located. © ISO Properties, Inc., 2001 BP 00 03 07 02 ? With respect to the requirements set forth in the preceding paragraph, if you occupy only part of the site at which the described premises are located, your premises means: (a) The portion of the building which you rent, lease or occupy; and (b) Any area within the building or on the site at which the described premises are located, if that area services, or is used to gain access to, the described premises. (2) Extra Expense means expense incurred: (a) To avoid or minimize the suspension of business and to continue "opera- tions": (i) At the described premises; or (ii) At replacement premises or at temporary locations, including re- location expenses, and costs to equip and operate the replace- ment or temporary locations. (b) To minimize the suspension of busi- ness if you cannot continue "opera- tions". (c) To: (i) Repair or replace any property; or (ii) Research, replace or restore the lost information on damaged "valuable papers and records" to the extent it reduces the amount of loss that otherwise would have been payable under this Additional Cover- age or Additional Coverage f. Busi- ness Income. (3) With respect to the coverage provided in this Additional Coverage, suspension means: (a) The partial slowdown or complete cessation of your business activities; and (b) That a part or all of the described premises is rendered untenantable, if coverage for Business Income ap- plies. (4) We will only pay for Extra Expense that occurs within 12 consecutive months af- ter the date of direct physical loss or damage. This Additional Coverage is not subject to the Limits of Insurance of Sec- tion I - Property. h. Pollutant Clean Up And Removal We will pay your expense to extract "pollut- ants" from land or water at the described premises if the discharge, dispersal, seep- age, migration, release or escape of the "pollutants" is caused by or results from a Covered Cause of Loss that occurs during the policy period. The expenses will be paid only if they are reported to us in writing within 180 days of the eariier of: (1) The date of direct physical loss or dam- age; or (2) The end of the policy period. The most we will pay for each location un- der this Additional Coverage is $10,000 for the sum of all such expenses arising out of Covered Causes of Loss occurring during each separate 12 month period of this pol- icy. I. Civil Authority We will pay for the actual loss of Business Income you sustain and necessary Extra Expense caused by action of civil authority that prohibits access to the described prem- ises due to direct physical loss of or damage to property, other than at the described premises, caused by or resulting from any Covered Cause of Loss. The coverage for Business Income will be- gin 72 hours after the time of that action and will apply for a period of up to three con- secutive weeks after coverage begins. The coverage for necessary Extra Expense will begin immediately after the time of that action and ends: (1) 3 consecutive weeks after the time of that action; or (2) When your Business Income coverage ends; whichever is later. The definitions of Business Income and Ex- tra Expense contained in the Business In- come and Extra Expense Additional Cover- ages also apply to this Civil Authority Additional Coverage. The Civil Authority Additional Coverage is not subject to the Limits of Insurance of Section I - Property. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 7 of 43 ? bV1UJnnbU / j. Money Orders And Counterfeit Paper Currency We will pay for loss resulting directly from your having accepted in good faith, in ex- change for merchandise, "money" or ser- vices: (1) Money orders issued by any post office, express company or bank that are not paid upon presentation; or (2) "Counterfeit" paper currency that is ac- quired during the regular course of busi- ness. The most we will pay for any loss under this Additional Coverage is $1,000. k. Forgery Or Alteration (1) We will pay for loss resulting directly from forgery or alteration of, any check, draft, promissory note, bill of exchange or similar written promise of payment in "money that you or your agent has is- sued, or that was issued by someone who impersonates you or your agent. (2) If you are sued for refusing to pay the check, draft, promissory note, bill of ex- change or similar written promise of pay- ment in "money", on the basis that it has been forged or altered, and you have our written consent to defend against the suit, we will pay for any reasonable legal expenses that you incur in that defense. (3) The most we will pay for any loss, includ- ing legal expenses, under this Additional Coverage is $2,500, unless a higher Limit of Insurance is shown in the Decla- rations. 1. Increased Cost Of Construction (1) This Additional Coverage applies only to buildings insured on a replacement cost basis. (2) In the event of damage by a Covered Cause of Loss to a building that is Cov- ered Property, we will pay the increased costs incurred to comply with enforce- ment of an ordinance or law in the course of repair, rebuilding or replace- ment of damaged parts of that property, subject to the limitations stated in Para- graphs (3) through (9) of this Additional Coverage. (3) The ordinance or law referred to in Para- graph (2) of this Additional Coverage is an ordinance or law that regulates the construction or repair of buildings or es- tablishes zoning or land use require- ments at the described premises, and is in force at the time of loss. (4) Under this Additional Coverage, we will not pay any costs due to an ordinance or law that: (a) You were required to comply with before the loss, even when the build- ing was undamaged; and (b) You failed to comply with. (5) Under this Additional Coverage, we will not pay any costs associated with the en- forcement of an ordinance or law which requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of "pollutants". (6) The most we will pay under this Addi- tional Coverage, for each described building insured under Section I - Prop- erty , is $10,000. If a damaged build- ing(s) is covered under a blanket Limit of Insurance which applies to more than one building or item of property, then the most we will pay under this Additional Coverage, for each damaged building, is $10,000. The amount payable under this Addi- tional Coverage is additional insurance. (7) With respect to this Additional Coverage: (a) We will not pay for the Increased Cost of Construction: (i) Until the property is actually re- paired or replaced, at the same or another premises; and (ii) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage, not to exceed two years. We may extend this period in writing during the two years. (b) If the building is repaired or replaced at the same premises, or if you elect to rebuild at another premises, the most we will pay for the Increased Cost of Construction is the increased cost of construction at the same premises. Page 8 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? (c) If the ordinance or law requires relo- cation to another premises, the most we will pay for the Increased Cost of Construction is the increased cost of construction at the new premises. (8) This Additional Coverage is not subject to the terms of the Ordinance or Law Ex- clusion, to the extent that such Exclusion would conflict with the provisions of this Additional Coverage. (9) The costs addressed in the Loss Pay- ment Property Loss Condition in Section - Property do not include the in- creased cost attributable to enforcement of an ordinance or law. The amount pay- able under this Additional Coverage, as stated in Paragraph (6) of this Additional Coverage, is not subject to such limita- tion. m. Business Income From Dependent Properties (1) We will pay for the actual loss of Busi- ness Income you sustain due to physical loss or damage at the premises of a de- pendent property caused by or resulting from any Covered Cause of Loss. The most we will pay under this Addi- tional Coverage is $5,000 unless a higher Limit of Insurance is indicated in the Declarations. (2) We will reduce the amount of your Busi- ness Income loss, other than Extra Ex- pense, to the extent you can resume "op- erations", in whole or in part, by using any other available: (a) Source of materials; or (b) Outlet for your products. (3) If you do not resume "operations", or do not resume "operations" as quickly as possible, we will pay based on the length of time it would have taken to resume "operations" as quickly as possible. (4) Dependent property means property owned by others whom you depend on to: (a) Deliver materials or services to you, or to others for your account. But ser- vices does not mean water, commu- nication or power supply services; (b) Accept your products or services; (c) Manufacture your products for deliv- ery to your customers under contract for sale; or (d) Attract customers to your business. The dependent property must be located in the coverage territory of this policy. (5) The coverage, period for Business In- come under this Additional Coverage: (a) Begins 72 hours after the time of direct physical loss or damage caused by or resulting from any Cov- ered Cause of Loss at the premises of the dependent property; and (b) Ends on the date when the property at the premises of the dependent property should be repaired, rebuilt or replaced with reasonable speed and similar quality. (6) The Business Income coverage period, as stated in Paragraph (5), does not in- clude any increased period required due to the enforcement of any ordinance or law that: (a) Regulates the construction, use or repair, or requires the tearing down of any property; or (b) Requires any insured or others to test for, monitor, clean up, remove, con- tain, treat, detoxify or neutralize, or in any way respond to, or assess the ef- fects of "pollutants". The expiration date of this policy will not reduce the Business Income coverage period. (7) The definition of Business Income con- tained in the Business Income Additional Coverage also applies to this Business Income From Dependent Properties Ad- ditional Coverage. n. Glass Expenses (1) We will pay for expenses incurred to put up temporary plates or board up open- ings if repair or replacement of damaged glass is delayed. (2) We will pay for expenses incurred to remove or replace obstructions when re- pairing or replacing glass that is part of a building. This does not include removing or replacing window displays. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 9 of 43 ? Dr1v7.J.JOV o. Fire Extinguisher Systems Recharge Expense (1) We will pay: (a) The cost of recharging or replacing, whichever is less, your fire extin- guishers and fire extinguishing sys- tems (including hydrostatic testing if needed) if they are discharged on or within 100 feet of the described premises; and (b) For loss or damage to Covered Prop- erty if such loss or damage is the re- sult of an accidental discharge of chemicals from a fire extinguisher or a fire extinguishing system. (2) No coverage will apply if the fire extin- guishing system is discharged during in- stallation or testing. (3) The most we will pay under this Addi- tional Coverage is $5,000 in any one oc- currence. 6. Coverage Extensions In addition to the Limits of Insurance of Section 1 - Property, you may extend the insurance provided by this policy as provided below. Except as otherwise provided, the following Ex- tensions apply to property located in or on the building described in the Declarations or in the open (or in a vehicle) within 100 feet of the de- scribed premises, unless a higher Limit of In- surance is shown in the Declarations. a. Newly Acquired Or Constructed Property (1) Buildings If this policy covers Buildings, you may extend that insurance to apply to: (a) Your new buildings while being built on the described premises; and (b) Buildings you acquire at premises other than the one described, in- tended for. (i) Similar use as the building de- scribed in the Declarations; or (ii) Use as a warehouse. The most we will pay for loss or damage under this Extension is $250,000 at each building. (2) Business Personal Property (a) If this policy covers Business Per- sonal Property, you may extend that insurance to apply to: (i) Business Personal Property, in- cluding such property that you newly acquire, at any location you acquire. (ii) Business Personal Property, in- cluding such property that you newly acquire, located at your newly constructed or acquired buildings at the location described in the Declarations; or (iii) Business Personal Property that you newly acquire, located at the described premises. This Extension does not apply to per- sonal property that you temporarily ac- quire in the course of installing or per- forming work on such property or your wholesale activities. The most we will pay for loss or damage under this Extension is $100,000 at each premises. (3) Period Of Coverage With respect to insurance on or at each newly acquired or constructed property, coverage will end when any of the follow- ing first occurs: (a) This policy expires; (b) 30 days expire after you acquire the property or begin construction of that part of the building that would qualify as covered property; or (c) You report values to us. We will charge you additional premium for values reported from the date you acquire the property or begin construc- tion of that part of the building that would qualify as covered property. b. Personal Property Off Premises You may extend the insurance that applies to Business Personal Property to apply to covered Business Personal Property, other than "money" and "securities", "valuable pa- pers and records" or accounts receivable, while it is in the course of transit or at a premises you do not own, lease or operate. The most we will pay for loss or damage under this Extension is $5,000. Page 10 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? AY_ _LV7D`70V / c. Outdoor Property You may extend the insurance provided by this policy to apply to your outdoor fences, radio and television antennas (including sat- ellite dishes), signs (other than signs at- tached to buildings), trees, shrubs and plants, including debris removal expense, caused by or resulting from any of the fol- lowing causes of loss: (1) Fire; (2) Lightning; (3) Explosion; (4) Riot or Civil Commotion; or (5) Aircraft. The most we will pay for loss or damage under this Extension is $2,500, but not more than $500 for any one tree, shrub or plant. d. Personal Effects You may extend the insurance that applies to Business Personal Property to apply to personal effects owned by you, your offi- cers, your partners or "members", your "managers" or your employees.. This exten- sion does not apply to: (1) Tools or equipment used in your busi- ness; or (2) Loss or damage by theft. The most we will pay for loss or damage under this Extension is $2,500 at each de- scribed premises. e. Valuable Papers And Records (1) You may extend the insurance that ap- plies to Business Personal Property to apply to direct physical loss or damage to "valuable papers and records" that you own, or that are in your care, custody or control caused by or resulting from a Covered Cause of Loss. This Coverage Extension includes the cost to research, replace or restore the lost information on "valuable papers and records" for which duplicates do not exist. (2) This Coverage Extension does not apply to: (a) Property held as samples or, for de- livery after sale; (b) Property in storage away from the premises shown in the Declarations. (3) The most we will pay under this Cover- age Extension for loss or damage to "valuable papers and records" in any one occurrence at the described premises is $10,000, unless a higher Limit of Insur- ance for "valuable papers and records" is shown in the Declarations. For "valuable papers and records" not at the described premises, the most we will pay is $5,000. (4) Paragraph B. Exclusions in Section I - Property does not apply to this Cover- age Extension except for (a) Paragraph B.1.c., Governmental Action; (b) Paragraph B.1.d., Nuclear Hazard; (c) Paragraph B.1.f., War And Military Action; (d) Paragraph 13.21, Dishonesty; (e) Paragraph B.2.g., False Pretense; and (f) Paragraph B.3. f. Accounts Receivable (1) You may extend the insurance that ap- plies to Business Personal Property to apply to accounts receivable. We will pay: (a) All amounts due from your customers that you are unable to collect; (b) Interest charges on any loan required to offset amounts you are unable to collect pending our payment of these amounts; (c) Collection expenses in excess of your normal collection expenses that are made necessary by loss or damage; and (d) Other reasonable expenses that you incur to re-establish your records of accounts receivable; that result from direct physical loss or damage by any Covered Cause of Loss to your records of accounts receivable. (2) The most we will pay under this Cover- age Extension for loss or damage in any one occurrence at the described prem- ises is $10,000, unless a higher Limit of Insurance for accounts receivable is shown in the Declarations. For accounts receivable not at the de- scribed premises, the most we will pay is $5,000. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 11 of 43 ? tir1uy_1)50u (3) Paragraph B. Exclusions in Section I - Property does not apply to this Cover- age Extension except for: (a) Paragraph B.I.c., Governmental Action; (b) Paragraph B.1.d., Nuclear Hazard; (c) Paragraph B.1.f., War And Military Action; (d) Paragraph B.2.f., Dishonesty; (e) Paragraph 13.2.g., False Pretense; (f) Paragraph B.3.; and (g) Paragraph B.S. Accounts Receivable Exclusion. B. Exclusions 1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes con- currently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a sub- stantial area. a. Ordinance Or Law (1) The enforcement of any ordinance or law: (a) Regulating the construction, use or repair of any property; or (b) Requiring the tearing down of any property, including the cost of remov- ing its debris. (2) This exclusion, Ordinance Or Law, ap- plies whether the loss results from: (a) An ordinance or law that is enforced even if the property has not been damaged; or (b) The increased costs incurred to com- ply with an ordinance or law in the course of construction, repair, reno- vation, remodeling or demolition of property or removal of its debris, fol- lowing a physical loss to that prop- erty. b. Earth Movement (1) Earthquake, including any earth sinking, rising or shifting related to such event; (2) Landslide, including any earth sinking, rising or shifting related to such event; (3) Mine subsidence, meaning subsidence of a man-made mine, whether or not mining activity has ceased; (4) Earth sinking (other than sinkhole col- lapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing, erosion, improperly compacted soil and the action of water under the ground surface. But if Earth Movement, as described in Paragraphs (1) through (4) above, results in fire or explosion, we will pay for the loss or damage caused by that fire or explosion. (5) Volcanic eruption, explosion or effusion. But if volcanic eruption, explosion or ef- fusion results in fire, building glass breakage or volcanic action, we will pay for the loss or damage caused by that fire, building glass breakage or volcanic action. Volcanic action means direct loss or damage resulting from the eruption of a volcano when the loss or damage is caused by: (a) Airbome volcanic blast or airborne shock waves; (b) Ash, dust or particulate matter; or (c) Lava flow. All volcanic eruptions that occur within any 168-hour period will constitute a sin- gle occurrence. Volcanic action does not include the cost to remove ash, dust or particulate matter that does not cause direct physical loss of or damage to Covered Property. c. Governmental Action Seizure or destruction of property by order of governmental authority. But we will pay for loss or damage caused by or resulting from acts of destruction or- dered by governmental authority and taken at the time of a fire to prevent its spread, if the fire would be covered under this policy. d. Nuclear Hazard Nuclear reaction or radiation, or radioactive contamination, however caused. But if nuclear reaction or radiation, or radio- active contamination, results in fire, we will pay for the loss or damage caused by that fire. Page 12 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? e. Power Failure The failure of power or other utility service supplied to the described premises, how- ever caused, if the failure occurs away from the described premises. But if the failure of power or other utility ser- vice results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss. This exclusion does not apply to loss or damage to "computer(s)" and "electronic media and records". f. War And Military Action (1) War, including undeclared or civil war; (2) Warlike action by a military force, includ- ing action in hindering or defending against an actual or expected attack, by any government, sovereign or other au- thority using military personnel or other agents; or (3) Insurrection, rebellion, revolution, usurped power, or action taken by gov- emmental authority in hindering or de- fending against any of these. g. Water (1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not; (2) Mudslide or mudflow; (3) Water that backs up or overflows from a sewer, drain or sump; or (4) Water under the ground surface pressing on, or flowing or seeping through: (a) Foundations, walls, floors or paved surfaces; (b) Basements, whether paved or not; or (c) Doors, windows or other openings. But if Water, as described in Paragraphs (1) through (4), results in fire, explosion or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage. h. Certain Computer-Related Losses (1) The failure, malfunction or inadequacy of: (i) "Computer" hardware, including microprocessors or other elec- tronic data processing equipment as may be described elsewhere in this policy; (ii) "Computer" application software or other "electronic media and re- cords" as may be described else- where in this policy; (iii) "Computer" operating systems and related software; (iv) "Computer" networks; (v) Microprocessors ("computer" chips) not part of any "computer" system; or (vi) Any other computerized or eleo- tronic equipment or components; or (b) Any other products, and any services, data or functions that directly or indi- rectly use or rely upon, in any man- ner, any of the items listed in Para- graph (a) above; due to the inability to correctly recognize, distinguish, interpret or accept one or more dates or times. An example is the inability of computer software to recog- nize the year 2000. (2) Any advice, consultation, design, evalua- tion, inspection, installation, mainte- nance, repair, replacement or supervi- sion provided or done by you or for you to determine, rectify or test for, any po- tential or actual problems described in Paragraph (1) above. However, if excluded loss or damage, as described in Paragraph (1) above results in a "Specified Cause of Loss" under Section - Property, we will pay only for the loss or damage caused by such "Specified Cause of Loss". We will not pay for repair, replacement or modification of any items in Paragraphs (1)(a) or (1)(b) to correct any deficiencies or change any features. 2. We will not pay for loss or damage caused by or resulting from any of the following: a. Electrical Apparatus (a) Any of the following, whether belong- Artificially generated electrical current, fin- ing to any insured or to others: cluding electric arcing, that disturbs electri- cal devices, appliances or wires. BP 00 03 07 02 ® ISO Properties, Inc., 2001 Page 13 of 43 X But if artificially generated electrical current results in fire, we will pay for the loss or damage caused by fire. We will pay for loss or damage to "com- puter(s)" due to artificially generated electri- cal current if such loss or damage is caused by or results from: (1) An occurrence that took place within 100 feet of the described premises; or (2) Interruption of electric power supply, power surge, blackout or brownout if the cause of such occurrence took place within 100 feet of the described prem- ises. b. Consequential Losses Delay, loss of use or loss of market. c. Smoke, Vapor, Gas Smoke, vapor or gas from agricultural smudging or industrial operations. d. Steam Apparatus Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your con- trol. But if explosion of steam boilers, steam pipes, steam engines or steam turbines re- sults in fire or combustion explosion, we will pay for the loss or damage caused by that fire or combustion explosion. We will also pay for loss or damage caused by or result- ing from the explosion of gases or fuel within the furnace of any fired vessel or within the flues or passages through which the gases of combustion pass. e. Frozen Plumbing Water, other liquids, powder or molten ma- terial that leaks or flows from plumbing, heating, air conditioning or other equipment (except fire protective systems) caused by or resulting from freezing, unless: (1) You do your best to maintain heat in the building or structure; or (2) You drain the equipment and shut off the supply if the heat is not maintained. f. Dishonesty Dishonest or criminal acts by you, anyone else with an interest in the property, or any of your or their partners, "members", offi- cers, "managers", employees, directors, trustees, authorized representatives or any- one to whom you entrust the property for any purpose: (1) Acting alone or in collusion with others; (2) Whether or not occurring during the hours of employment. This exclusion does not apply to acts of de- struction by your employees; but theft by employees is not covered. With respect to accounts receivable and "valuable papers and records", this exclu- sion does not apply to carriers for hire. This exclusion does not apply to coverage that is provided under the Employee Dis- honesty Optional Coverage. g. False Pretense Voluntary parting with any property by you or anyone else to whom you have entrusted the property if induced to do so by any fraudulent scheme, trick, device or false pretense. h. Exposed Property Rain, snow, ice or sleet to personal property in the open. i. Collapse Collapse, except as provided in the Addi- tional Coverage for Collapse. But if collapse results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss. j. Pollution We will not pay for loss or damage caused by or resulting from the discharge, dispersal, seepage, migration, release or escape of "pollutants" unless the discharge, dispersal, seepage, migration, release or escape is it- self caused by any of the "specified causes of loss". But if the discharge, dispersal, seepage, migration, release or escape of "pollutants" results in a "specified cause of loss", we will pay for the loss or damage caused by that "specified cause of loss". k. Neglect Neglect of an insured to use all reasonable means to save and preserve property from further damage at and after the time of loss. 1. Other Types Of Loss (1) Wear and tear; (2) Rust, corrosion, fungus, decay, deterio- ration, hidden or latent defect or any quality in property that causes it to dam- age or destroy itself; (3) Smog; (4) Settling, cracking, shrinking or ,expan- sion; Page 14 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? (6) Nesting or infestation, or discharge or release of waste products or secretions, by insects, birds, rodents or other ani- mals; (6) Mechanical breakdown, including rupture or bursting caused by centrifugal force. This exclusion does not apply with re- spect to the breakdown of "computer(s)"; (7) The following causes of loss to personal property: (a) Dampness or dryness of atmosphere; (b) Changes in or extremes of tempera- ture; or (c) Marring or scratching. But if an excluded cause of loss that is listed in Paragraphs (1) through (7) above results in a "specified cause of loss" or building glass breakage, we will pay for the loss or damage caused by that "specified cause of loss" or building glass breakage. m. Errors Or Omissions Errors or omissions in: (1) Programming, processing or storing data, as described under "electronic me- dia and records" or in any "computer" operations; or (2) Processing or copying "valuable papers and records". However, we will pay for direct physical loss or damage caused by resulting fire or explo- sion if these causes of loss would be cov- ered by this coverage form. n. Installation, Testing, Repair Errors or deficiency in design, installation, testing, maintenance, modification or repair of your "computer" system including "elec- tronic media and records". However, we will pay for direct physical loss or damage caused by resulting fire or explo- sion if these causes of loss would be cov- ered by this coverage form. o. Electrical Disturbance Electrical or magnetic injury, disturbance or erasure of "electronic media and records", except as provided for under the Coverage Extensions of Section I - Property. However, we will pay for direct loss or dam- age caused by lightning. -11 3. We will not pay for loss or damage caused by or resulting from any of the following Para- graphs a. through c. But if an excluded cause of loss that is listed in Paragraphs a. through c. results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss. a. Weather Conditions Weather conditions. But this exclusion only applies if weather conditions contribute in any way with a cause or event excluded in Paragraph B.I. above to produce the loss or damage. b. Acts Or Decisions Acts or decisions, including the failure to act or decide, of any person, group, organiza- tion or governmental body. c. Negligent Work Faulty, inadequate or defective: (1) Planning, zoning, development, survey- ing, siting; (2) Design, specifications, workmanship, repair, construction, renovation, remod- eling, grading, compaction; (3) Materials used in repair, construction, renovation or remodeling; or (4) Maintenance; of part or all of any property on or off the described premises. 4. Business Income And Extra Expense Exclusions a. We will not pay for: (1) Any Extra Expense, or increase of Busi- ness Income loss, caused by or resulting from: (a) Delay in rebuilding, repairing or re- placing the property or resuming "op- erations", due to interference at the location of the rebuilding, repair or replacement by strikers or other per- sons; or (b) Suspension, lapse or cancellation of any license, lease or contract. But if the suspension, lapse or cancellation is directly caused by the suspension of "operations", we will cover such loss that affects your Business In- come during the "period of restora- tion". (2) Any other consequential loss. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 16 of 43 ? Dr1v7JJOVi b. With respect to this exclusion, suspension means: (1) The partial slowdown or complete cessa- tion of your business activities; and (2) That a part or all of the described prem- ises is rendered untenantable, if cover- age for Business Income applies. 5. Accounts Receivable Exclusion The following additional exclusion applies to the Accounts Receivable Coverage Extension: We will not pay for: a. Loss or damage caused by or resulting from alteration, falsification, concealment or de- struction of records of accounts receivable done to conceal the wrongful giving, taking or withholding of "money", "securities" or other property. This exclusion applies only to the extent of the wrongful giving, taking or withholding. b. Loss or damage caused by or resulting from bookkeeping, accounting or billing errors or omissions. c. Any loss or damage that requires any audit of records or any inventory computation to prove its factual existence. C. Limits Of Insurance 1. The most we will pay for loss or damage in any one occurrence is the applicable Limit of Insur- ance of Section I - Property shown in the Deo- larations. 2. The most we will pay for loss of or damage to outdoor signs attached to buildings is $1,000 per sign in any one occurrence. 3. The limits applicable to the Coverage Exten- sions and the Fire Department Service Charge and Pollutant Clean Up and Removal Additional Coverages are in addition to the Limits of In- surance of Section I - Property. 4. Building Limit - Automatic Increase a. The Limit of Insurance for Buildings will automatically increase by the annual per- centage shown in the Declarations. b. The amount of increase will be: (1) The Building limit that applied on the most recent of the policy inception date, the policy anniversary date, or any other policy change amending the Building limit, times (2) The percentage of annual increase shown in the Declarations, expressed as a decimal (example: 8% is.08), times (3) The number of days since the beginning of the current policy year of the effective date of the most recent policy change amending the Building limit, divided by 365. Example: If: The applicable Building limit is $100,000. The annual percentage in- crease is 8%. The number of days since the beginning of the policy year (or last policy change) is 146. The amount of increase is $100,000 x.08 x 146 _ 365 = $3,200. 5. Business Personal Property Limit - Seasonal Increase a. The Limit of Insurance for Business Per- sonal Property will automatically increase by 25% to provide for seasonal variations. b. This increase will apply only if the Limit of Insurance shown for Business Personal Property in the Declarations is at least 100% of your average monthly values during the lesser of: (1) The 12 months immediately preceding the date the loss or damage occurs; or (2) The period of time you have been in business as of the date the loss or dam- age occurs. D. Deductibles 1. We will not pay for loss or damage in any one occurrence until the amount of loss or damage exceeds the Deductible shown in the Declara- tions. We will then pay the amount of loss or damage in excess of the Deductible up to the applicable Limit of Insurance of Section I - Property. 2. Regardless of the amount of the Deductible, the most we will deduct from any loss or damage for Glass and under all of the following Optional Coverages in any one occurrence is the Op- tional Coverage/Glass Deductible shown in the Declarations: a. Money and Securities; b. Employee Dishonesty; and c. Outdoor Signs. Page 16 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? But this Optional Coverage/Glass Deductible will not increase the Deductible shown in the Declarations. This Deductible will be used to satisfy the requirements of the Deductible in the Declarations. 3. No deductible applies to the following Additional Coverages: a. Fire Department Service Change; b. Business Income; c. Extra Expense; d. Civil Authority; and e. Fire Extinguisher Systems Recharge Ex- pense. E. Property Loss Conditions 1. Abandonment There can be no abandonment of any property to us. 2. Appraisal If we and you disagree on the amount of loss, either may make written demand for an ap- praisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdic- tion. The appraisers will state separately the amount of loss. If they fail to agree, they will submit their differences to the umpire. A deci- sion agreed to by any two will be binding. Each party will: a. Pay its chosen appraiser; and b. Bear the other expenses of the appraisal and umpire equally. If there is an appraisal, we will still retain our right to deny the claim. 3. Duties In The Event Of Loss Or Damage a. You must see that the following are done in the event of loss or damage to Covered Property: (1) Notify the police if a law may have been broken. (2) Give us prompt notice of the loss or damage. Include a description of the property involved. (3) As soon as possible, give us a descrip- tion of how, when and where the loss or damage occurred. (4) Take all reasonable steps to protect the Covered Property from further damage, and keep a record of your expenses nec- essary to protect the Covered Property, for consideration in the settlement of-the claim. This will not increase the Limits of Insurance of Section 1- Property. How- ever, we will not pay for any subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss. Also, if feasible, set the damaged prop- erty aside and in the best possible order for examination. (5) At our request, give us complete inven- tories of the damaged and undamaged property. Include quantities, costs, val- ues and amount of loss claimed. (6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records. Also permit us to take samples of dam- aged and undamaged property for in- spection, testing and analysis, and per- mit us to make copies from your books and records. (7) Send us a signed, swom proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms. (8) Cooperate with us in the investigation or settlement of the claim. (9) Resume all or part of your "operations" as quickly as possible. b. We may examine any insured under oath, while not in the presence of any other in- sured and at such times as may be rea- sonably required, about any matter relating to this insurance or the claim, including an insured's books and records. In the event of an examination, an insured's answers must be signed. 4. Legal Action Against Us No one may bring a legal action against us un- der this insurance unless: a. There has been full compliance with all of the terns of this insurance; and b. The action is brought within 2 years after the date on which the direct physical loss or damage occurred. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 17 of 43 ? 5. Electronic Media And Records Limitation We will not pay for any loss of Business Income caused by direct physical loss of or damage to "electronic media and records" after the longer of: a. 60 consecutive days from the date of direct physical loss or damage; or b. The period, beginning with the date of direct physical loss or damage, necessary to re- pair, rebuild or replace with reasonable speed and similar quality, other property at the described premises due to loss or dam- age caused by the same occurrence. Example #1 A Covered Cause of Loss damages a "computer" on June 1. It takes until September l to replace the "computer", and until October 1 to restore the data that was lost when the damage occurred. We will only pay for the Business Income loss sustained during the period June 1 - September 1. Loss during the period September 2 - October 1 is not covered. Example #2 A Covered Cause of Loss results in the loss of data processing programming records on Au- gust 1. The records are replaced on October 15. We will only pay for the Business Income loss sustained during the period August 1 - September 29 (60 consecutive days). Loss dur- ing the period September 30 - October 15 is not covered. 6. Loss Payment In the event of loss or damage covered by this policy: a. At our option, we will either. (1) Pay the value of lost or damaged prop- erty; (2) Pay the cost of repairing or replacing the lost or damaged property; (3) Take all or any part of the property at an agreed or appraised value; or (4) Repair, rebuild or replace the property with other property of like kind and qual- ity, subject to Paragraph d.(1)(e) below. b. We will give notice of our intentions within 30 days after we receive the swom proof of loss. c. We will not pay you more than your financial interest in the Covered Property. d. Except as provided in Paragraphs (2) through (8) below, we will determine the value of Covered Property as follows: (1) At replacement cost without deduction for depreciation, subject to the following: (a) If, at the time of loss, the Limit of Insurance on the lost or damaged property is 80% or more of the full replacement cost of the property im- mediately before the loss, we will pay the cost to repair or replace, after ap- plication of the deductible and without deduction for depreciation, but not more than the least of the following amounts: (i) The Limit of Insurance under Section I - Property that applies to the lost or damaged property; (ii) The cost to replace, on the same premises, the lost or damaged property with other property: i. Of comparable material and quality; and ii. Used for the same purpose; or (iii) The amount that you actually spend that is necessary to repair or replace the lost or damaged property. If a building is rebuilt at a new prem- ises, the cost is limited to the cost which would have been incurred had the building been built at the original premises. (b) If, at the time of loss, the Limit of Insurance applicable to the lost or damaged property is less than 80% of the full replacement cost of the prop- erty immediately before the loss, we will pay the greater of the following amounts, but not more than the Limit of Insurance that applies to the prop- erty: (i) The actual cash value of the lost or damaged property; or (ii) A proportion of the cost to repair or replace the lost or damaged property, after application of the deductible and without deduction for depreciation. This proportion will equal the ratio of the applica- ble Limit of Insurance to 80% of the cost of repair or replacement. Page 18 of 43 0 ISO Properties, Inc., 2001 BP 00 0307 02 ? (c) You may make a claim for loss or damage covered by this insurance on an actual cash value basis instead of on a replacement cost basis. In the event you elect to have loss or dam- age settled on an actual cash value basis, you may still make a claim on a replacement cost basis if you notify us of your intent to do so within 180 days after the loss or damage. (d) We will not pay on a replacement cost basis for any loss or damage: (i) Until the lost or damaged property is actually repaired or replaced; and (ii) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage. However, if the cost to repair or re- place the damaged building property is $2,500 or less, we will settle the loss according to the provisions of Paragraphs d.(1)(a) and d.(1)(b) above whether or not the actual re- pair or replacement is complete. (e) The cost to repair, rebuild or replace does not include the increased cost attributable to enforcement of any or- dinance or law regulating the con- struction, use or repair of any prop- erty. (2) If the "Actual Cash Value - Buildings" option applies, as shown in the Declara- tions, Paragraph (1) above does not ap- ply to Buildings. Instead, we will deter- mine the value of Buildings at actual cash value. (3) The following property at actual cash value: (a) Used or second-hand merchandise held in storage or for sale; (b) Property of others. However, if an item(s) of personal property of others is subject to a written contract which governs your liability for loss or dam- age to that item(s), then valuation of that item(s) will be based on the amount for which you are liable under such contract, but not to exceed the lesser of the replacement cost of the property or the applicable Limit of In- surance; (c) Household contents, except personal property in apartments or rooms fur- nished by you as landlord; (d) Manuscripts; (e) Works of art, antiques or rare articles, including etchings, pictures, statuary, . marbles, bronzes, porcelains and bric-a-brac. (4) Glass at the cost of replacement with safety glazing material if required by law. (5) Tenants' Improvements and Betterments at: (a) Replacement cost if you make re- pairs promptly. (b) A proportion of your original cost if you do not make repairs promptly. We will determine the proportionate value as follows: (i) Multiply the original cost by the number of days from the loss or damage to the expiration of the lease; and (ii) Divide the amount determined in (i) above by the number of days from the installation of improve- ments to the expiration of the lease. If your lease contains a renewal op- tion, the expiration of the renewal op- tion period will replace the expiration of the lease in this procedure. (c) Nothing if others pay for repairs or replacement. (6) Loss or damage to "valuable papers and records" will be valued at the cost of res- toration or replacement, including the cost of data entry, re-programming, com- puter consultation services and the me- dia on which the data or programs re- side. To the extent that the contents of the "valuable papers and records" are not restored, the "valuable papers and records" will be valued at the cost of re- placement with blank materials of sub- stantially identical type. (7) Applicable only to the Optional Cover- ages: (a) "Money" at its face value; and (b) "Securities" at their value at the close of business on the day the loss is dis- covered. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 19 of 43 ? beluy55bu / (8) Applicable only to Accounts Receivable: (a) If you cannot accurately establish the amount of accounts receivable out- standing as of the time of loss or damage: (i) We will determine the total of the average monthly amounts of ac- counts receivable for the 12 months immediately preceding the month in which the loss or damage occurs; and (ii) We will adjust that total for any normal fluctuations in the amount of accounts receivable for the month in which the loss or dam- age occurred or for any demon- strated variance from the average for that month. (b) The following will be deducted from the total amount of accounts receiv- able, however that amount is estab- lished: (i) The amount of the accounts for which there is no loss or damage; (ii) The amount of the accounts that you are able to re-establish or col- lect; (iii) An amount to allow for probable bad debts that you are normally unable to collect; and (iv) All unearned interest and service charges. e. Our payment for loss of or damage to per- sonal property of others will only be for the account of the owners of the property. We may adjust losses with the owners of lost or damaged property if other than you. If we pay the owners, such payments will satisfy your claims against us for the owners' prop- erty. We will not pay the owners more than their financial interest in the Covered Prop- erty. f. We may elect to defend you against suits arising from claims of owners of property. We will do this at our expense. g. We will pay for covered loss or damage within 30 days after we receive the swom proof of loss, provided you have complied with all of the terms of this policy, and (1) We have reached agreement with you on the amount of loss; or (2) An appraisal award has been made. 7. Recovered Property If either you or we recover any property after loss settlement, that party must give the other prompt notice. At your option, you may retain the property. But then you must return to us the amount we paid to you for the property. We will pay recovery expenses and the expenses to re- pair the recovered property, subject to the Lim- its of Insurance of Section I - Property. 8. Resumption Of Operations We will reduce the amount of your: a. Business Income loss, other than Extra Expense, to the extent you can resume your "operations", in whole or in part, by using damaged or undamaged property (including merchandise or stock) at the described premises or elsewhere. b. Extra Expense loss to the extent you can return "operations" to normal and discon- tinue such Extra Expense. 9. Vacancy a. Description Of Terms (1) As used in this Vacancy Condition, the term building and the term vacant have the meanings set forth in Paragraphs (a) and (b) below: (a) When this policy is issued to a ten- ant, and with respect to that tenant's interest in Covered Property, building means the unit or suite rented or leased to the tenant. Such building is vacant when it does not contain enough business personal property to conduct customary operations. (b) When this policy is issued to the owner or general lessee of a building, building means the entire building. Such building is vacant unless at least 31% of its total square footage is: (i) Rented to a lessee or sub-lessee and used by the lessee or sub- lessee to conduct its customary operations; and/or (ii) Used by the building owner to conduct customary operations. (2) Buildings under construction or renova- tion are not considered vacant. Page 20 of 43 0 ISO Properties, Inc., 2001 BP 00 03 07 02 ? Dr_ ?_v»,?vv i b. Vacancy Provisions If the building where loss or damage occurs has been vacant for more than 60 consecu- tive days before that loss or damage occurs: (1) We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss: (a) Vandalism;. (b) Sprinkler leakage, unless you have protected the system against freez- ing; (c) Building glass breakage; (d) Water damage; (e) Theft; or (f) Attempted theft. (2) With respect to Covered Causes of Loss other than those listed in Paragraphs (1)(a) through (1)(f) above, we will re- duce the amount we would otherwise pay for the loss or damage by 15%. F. Property General Conditions 1. Control Of Property Any act or neglect of any person other than you beyond your direction or control will not affect this insurance. The breach of any condition of this Coverage Form at any one or more locations will not af- fect coverage at any location where, at the time of loss or damage, the breach of condition does not exist. 2. Mortgageholders a. The term "mortgageholder" includes trustee. b. We will pay for covered loss of or damage to buildings or structures to each mortgage- holder shown in the Declarations in their or- der of precedence, as interests may appear. c. The mortgageholder has the right to receive loss payment even if the mortgageholder has started foreclosure or similar action on the building or structure. d. If we deny your claim because of your acts or because you have failed to comply with the terms of this policy, the mortgageholder will still have the right to receive loss pay- ment if the mortgageholder: (1) Pays any premium due under this policy at our request if you have failed to do so; (2) Submits a signed, sworn proof of loss within 60 days after receiving notice from us of your failure to do so; and (3) Has notified us of any change in owner- ship, occupancy or substantial change in risk known to the mortgageholder. All of the terms of this policy will then apply directly to the mortgageholder. e. If we pay the mortgageholder for any loss or damage and deny payment to you because of your ads or because you have failed to comply with the terms of this policy: (1) The mortgageholder's rights under the mortgage will be transferred to us to the extent of the amount we pay; and (2) The mortgageholder"s right to recover the full amount of the mortgageholder's claim will not be impaired. At our option, we may pay to the mortgage- holder the whole principal on the mortgage plus any accrued interest. In this event, your mortgage and note will be transferred to us and you will pay your remaining mortgage debt to us. f. If we cancel this policy, we will give written notice to the mortgageholder at least: (1) 10 days before the effective date of cancellation if we cancel for your non- payment of premium; or (2) 30 days before the effective date of cancellation if we cancel for any other reason. g. If we elect not to renew this policy, we will give written notice to the mortgageholder at least 10 days before the expiration date of this policy. 3. No Benefit To Bailee No person or organization, other than you, hav- ing custody of Covered Property will benefit from this insurance. 4. Policy Period, Coverage Territory Under Section I - Property: a. We cover loss or damage commencing: (1) During the policy period shown in the Declarations; and (2) Within the coverage territory or, with respect to property in transit, while it is between points in the coverage territory. b. The coverage territory is: (1) The United States of America (including its territories and possessions); (2) Puerto Rico; and (3) Canada. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 21 of 43 ? Mr1v7JJOV G. Optional Coverages If shown as applicable in the Declarations, the fol- lowing Optional Coverages also apply. These cov- erages are subject to the terms and conditions ap- plicable to property coverage in this policy, except as provided below. 1. Outdoor Signs a. We will pay for direct physical loss of or damage to all outdoor signs at the described premises: (1) Owned by you; or (2) Owned by others but in your care, cus- tody or control. b. Paragraph A.3., Covered Causes Of Loss, and Paragraph B., Exclusions in Section - Property, do not apply to this Optional Coverage, except for (1) Paragraph B.1.c., Governmental Action; (2) Paragraph B.1.d., Nuclear Hazard; and (3) Paragraph BAJ., War And Military Ac- tion. c. We will not pay for loss or damage caused by or resulting from: (1) Wear and tear, (2) Hidden or latent defect; (3) Rust; (4) Corrosion; or (5) Mechanical breakdown. d. The most we will pay for loss or damage in any one occurrence is the Limit of Insurance for Outdoor Signs shown in the Declara- tions. e. The provisions of this Optional Coverage supersede all otherreferences to outdoor signs in this policy. 2. Money And Securities a. We will pay for loss of "money" and "securi- ties" used in your business while at a bank or savings institution, within your living quar- ters or the living quarters of your partners or any employee having use and custody of the property, at the described premises, or in transit between any of these places, re- sulting directly from: (1) Theft, meaning any act of stealing; (2) Disappearance; or (3) Destruction. b. In addition to the Limitations and Exclusions applicable to Section 1 - Property, we will not pay for loss: (1) Resulting from accounting or arithmetical errors or omissions; (2) Due to the giving or surrendering of property in any exchange or purchase; or (3) Of property contained in any "money"- operated device unless the amount of "money" deposited in it is recorded by a continuous recording instrument in the device. c. The most we will pay for loss in any one occurrence is: (1) The limit shown in the Declarations for Inside the Premises for "money" and "se- curities" while: (a) In or on the described premises; or (b) Within a bank or savings institution; and (2) The limit shown in the Declarations for Outside the Premises for "money" and "securities" while anywhere else. d. All loss: (1) Caused by one or more persons; or (2) Involving a single act or series of related acts; is considered one occurrence. e. You must keep records of all "money" and "securities" so we can verify the amount of any loss or damage. 3. Employee Dishonesty a. We will pay for direct loss of or damage to Business Personal Property and "money" and "securities" resulting from dishonest acts committed by any of your employees acting alone or in collusion with other per- sons (except you or your partner) with the manifest intent to: (1) Cause you to sustain loss or damage; and also (2) Obtain financial benefit (other than sala- ries, commissions, fees, bonuses, pro- motions, awards, profit sharing, pensions or other employee benefits earned in the normal course of employment) for: (a) Any employee; or (b) Any other person or organization. b. We will not pay for loss or damage: (1) Resulting from any dishonest or criminal act that you or any of your partners or "members" commit whether acting alone or in collusion with other persons. Page 22 of 43 0 ISO Properties, Inc., 2001 BP 00.03 07 02 ? (2) Resulting from any dishonest act com- mitted by any of your employees (except as provided in Paragraph a.), "manag- ers" or directors: (a) Whether acting alone or in collusion with other persons; or (b) While performing services for you or otherwise. (3) The only proof of which as to its exis- tence or amount is: (a) An inventory computation; or (b) A profit and loss computation. c. The most we will pay for loss or damage in any one occurrence is the Limit of Insurance for Employee Dishonesty shown in the Dec- larations. d. All loss or damage: (1) Caused by one or more persons; or (2) Involving a single act or series of acts; is considered one occurrence. e. If any loss is covered: (1) Partly by this insurance; and (2) Partly by any prior cancelled or termi- nated insurance that we or any affiliate had issued to you or any predecessor in interest; the most we will pay is the larger of the amount recoverable under this insurance or the prior insurance. We will pay only for loss or damage you sustain through acts committed or events occurring during the Policy Period. Regard- less of the number of years this policy re- mains in force or the number of premiums paid, no Limit of Insurance cumulates from year to year or period to period. f. This Optional Coverage is cancelled as to any employee immediately upon discovery by: (1) You; or (2) Any of your partners, "members", "man- agers", officers or directors not in collu- sion with the employee; of any dishonest act committed by that em- ployee before or after being hired by you. g. We will pay only for covered loss or damage sustained during the policy period and dis- covered no later than one year from the end of the policy period. h. If you (or any predecessor in interest) sus- tained loss or damage during the policy pe- riod of any prior insurance that you could have recovered under that insurance except that the time within which to discover loss or damage had expired, we will pay for it under this Optional Coverage, provided: (1) This Optional Coverage became effec- tive at the time of cancellation or termi- nation of the prior insurance; and (2) The loss or damage would have been covered by this Optional Coverage had it been in effect when the acts or events causing the loss or damage were com- mitted or occurred. L The insurance under Paragraph h. above is part of, not in addition to, the Limit of Insur- ance applying to this Optional Coverage and is limited to the lesser of the amount recov- erable under. (1) This Optional Coverage as of its effec- tive date; or (2) The prior insurance had it remained in effect. 4. Mechanical Breakdown a. We will pay for direct damage to Covered Property caused by an Accident to an Ob- ject. The Object must be: (1) Owned by you or in your care, custody or control; and (2) At the described premises. b. Accident means a sudden and accidental breakdown of the Object or a part of the Ob- ject. At the time the breakdown occurs, it must manifest itself by physical damage to the Object that necessitates repair or re- placement. c. None of the following is an Accident: (1) Depletion, deterioration, corrosion or erosion; (2) Wear and tear; (3) Leakage at any valve, fitting, shaft seal, gland packing, joint or connection; (4) Breakdown of any vacuum tube, gas tube or brush; (5) Breakdown of any "computer", including "computer(s)" used to operate production type machinery or equipment; (6) Breakdown of any structure or foundation supporting the Object or any of its parts; BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 23 of 43 ? BP10955607 (7) The functioning of any safety or protec- tive device; or (8) The explosion of gases or fuel within the furnace of any Object or within the flues or passages through which the gases of combustion pass. d. Object means any of the following equip- ment: (1) Boiler and Pressure Vessels: (a) Steam heating boilers and conden- sate return tanks used with them; (b) Hot water heating boilers and expan- sion tanks used with them; (c) Hot water supply boilers; (d) Other fired or unfired vessels used for maintenance or service of the de- scribed premises but not used for processing or manufacturing; (e) Steam boiler piping, valves, fittings, traps and separators, but only if they: (i) Are on your premises or between parts of your premises; (ii) Contain steam or condensate of steam; and (iii) Are not part of any other vessel or apparatus; (f) Feed water piping between any steam boiler and a feed pump or in- jector. (2) Air Conditioning Units - Any air condi- tioning unit that has a capacity of 60,000 Btu or more, including: (a) Inductors, convectors and coils that make use of a refrigerant and form part of a cooling, humidity control or space heating system; (b) Interconnecting piping, valves and fittings containing only a refrigerant, water, brine or other solution; (c) Vessels heated directly or indirectly that: (i) Form part of an absorption type system; and (ii) Function as a generator, regen- erator or concentrator; e. Object does not mean: (1) As Boiler and Pressure Vessels: (a) Equipment that is not under internal vacuum or internal pressure other than weight of contents; (b) Boiler settings; (c) Insulating or refractory material; or (d) Electrical, reciprocating or rotating apparatus within or forming a part of the boiler or vessel. (2) As Air Conditioning Units, any: (a) Vessel, cooling tower, reservoir or other source of cooling water for a condenser or compressor, or any wa- ter piping leading to or from that source; or (b) Wiring or piping leading to or from the unit. f. We will not pay for an Accident to any Ob- ject while being tested. g. Suspension Whenever an Object is found to be in, or exposed to, a dangerous condition, any of our representatives may immediately sus- pend the insurance against loss from an Ac- cident to that Object. This can be done by delivering or mailing a written notice of sus- pension to: (1) Your last known address; or (2) The address where the Object is located. If we suspend your insurance, you will get a pro rata refund of premium. But the suspen- sion will be effective even if we have not yet made or offered a refund. H. Property Definitions 1. "Computer" means: (d) Compressors, pumps, fans and blow- 2. ers used solely with the system to- gether with their driving electric mo- tors; and (e) Control equipment used solely with the system. a. Programmable electronic equipment that is used to store, retrieve and process data; and b. Associated peripheral equipment that pro- vides communication, including input and output functions such as printing and auxil- iary functions such as data transmission. "Computer" does not include those used to op- erate production type machinery or equipment. "Counterfeit" means an imitation of an actual valid original which is intended to deceive and to be taken as the original. .t<.V_LV TSbbVI 3. "Electronic media and records" means the following, if owned by you or licensed to you and used in your business: a. Media, meaning disks, tapes, film, drums, cells or other media which are used with electronically controlled equipment. b. Data, meaning information or facts stored on media described in Paragraph a. above. Data includes "valuable papers and records" converted to data. c. "Computer" program, meaning a set of related electronic instructions which direct the operations and functions of a "computer" or a device connected to it, which enable the "computer" or device to receive, proc- ess, restore, retrieve or send data. d. Software, including systems and applica- tions software. 9. 4. "Manager" means a person serving in a directo- 10. rial capacity for a limited liability company. 5. "Member" means an owner of a limited liability company represented by its membership inter- est, who also may serve as a "manager". 6. "Money" means: a. Currency, coins and bank notes in current use and having a face value; and b. Travelers checks, register checks and money orders held for sale to the public. 7. "Operations" means your business activities occurring at the described premises. 8. "Period of restoration": a. Means the period of time that: (1) Begins: (a) 72 hours after the time of direct physical loss or damage for Business Income Coverage; or (b) Immediately after the time of direct physical loss or damage for Extra Expense Coverage; caused by or resulting from any Covered Cause of Loss at the described prem- ises; and (2) Ends on the earlier of: (a) The date when the property at the described premises should be re- paired, rebuilt or replaced with rea- sonable speed and similar quality; or (b) The date when business is resumed at a new permanent location. 11. b. Does not include any increased period re- quired due to the enforcement of any ordi- nance or law that: (1) Regulates the construction, use or repair, or requires the tearing down of any prop- erty; or (2) Requires any insured or others to test for, monitor, dean up, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the effects of "pollutants". The expiration date of this policy will not cut short the "period of restoration". "Pollutants" means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed. "Securities" means negotiable and non- negotiable instruments or contracts represent- ing either "money" or other property and in- cludes: a. Tokens, tickets, revenue and other stamps (whether represented by actual stamps or unused value in a meter) in current use; and b. Evidences of debt issued in connection with credit or charge cards, which cards are not issued by you; but does not include "money". "Specified Causes of Loss" means the follow- ing: Fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commo- tion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; wa- ter damage. a. Sinkhole collapse means the sudden sinking or collapse of land into underground empty spaces created by the action of water on limestone or dolomite. This cause of loss does not include: (1) The cost of filling sinkholes; or (2) Sinking or collapse of land into man- made underground cavities. b. Falling objects does not include loss of or damage to: (1) Personal property in the open; or (2) The interior of a building or structure, or property inside a building or structure, unless the roof or an outside wall of the building or structure is first damaged by a falling object. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 25 of 43 ? BP10955607 c. Water damage means accidental discharge b. This insurance applies: or leakage of water or steam as the direct (1) To "bodily injury" and "property damage" () y result of the breaking apart or cracking of only if: any part of a system or appliance (other than a sump system including its related (a) The "bodily ,injury" or "property dam- equipment and parts) containing water or age" is caused by an "occurrence" steam. that takes place in the "coverage ter- ritory"' 12. "Stock" means merchandise held in storage or for sale, raw materials and in-process or fin- (b) The "bodily injury" or "property dam- ished goods, including supplies used in their age" occurs during the policy period; packing or shipping. and 13. "Valuable papers and records" means: (c) Prior to the policy period, no insured listed under Paragraph C.I. Who Is a. Inscribed, printed or written: An Insured and no "employee" au- (1) Documents; thorized by you to give or receive no- (2) Manuscripts; and tice of an "occurrence" or claim, knew " " that the bodily injury or "property (3) Records; damage" had occurred, in whole or in including abstracts, books, deeds, drawings, part. If such a listed insured or au- films, maps or mortgages; and thorized "employee" knew, prior to "Electronic media and records" b the policy period, that the "bodily in- . . jury, or property damage" occurred, But "valuable papers and records" does not then any continuation, change or re- mean "money" or "securities". sumption of such "bodily injury" or "property damage" during or after the SECTION II - LIABILITY policy period will be deemed to have been known before the policy period. A. Coverages 1. Business Liability (2) To "personal and advertising injury" caused by an offense arising out of your a. We will pay those sums that the insured business, but only if the offense was becomes legally obligated to pay as dam- committed in the "coverage territory" ages because of "bodily injury", "property during the policy period. damage" or "personal and advertising injury" c. "Bodily injury" or "property damage" which to which this insurance applies. We will occurs during the policy period and was not, have the right and duty to defend the in- prior to the policy period, known to have oc- sured against any "suit" seeking those dam- curred by any insured listed under Para- ages. However, we will have no duty to de- " graph C.I. Who Is An Insured or any "em- fend the insured against any "suit seeking ployee" authorized by you to give or receive damages for "bodily injury", "property dam- notice of an "occurrence" or claim, includes age" or "personal and advertising injury", to any continuation, change or resumption of which this insurance does not apply. We " bodily injuryor property damage after the "bodily injury" "property damage" may at our discretion, investigate any oc- " end of the policy period. that currence" and settle any claim or "suit may result. But: d. "Bodily injury" or "property damage" will be (1) The amount we will pay for damages is deemed to have been known to have oc-. curred at the earliest time when any insured limited as described in Paragraph D - listed under Paragraph C.I. Who Is An In- Liability And Medical Expenses Limits Of sured or any "employee" authorized by you Insurance in Section II - Liability; and to give or receive notice of an "occurrence" (2) Our right and duty to defend end when or claim: we have used up the applicable limit of (1) Reports all, or any part, of the "bodily insurance in the payment of judgments injury" or "property damage" to us or any or settlements or medical expenses. other insurer, No other obligation or liability to pay sums (2) Receives a written or verbal demand or or perform acts or services is covered claim for damages because of the "bod- unless explicitly provided for under Para- ily injury" or "property damage"; or graph f. Coverage Extension - Supplemen- tary Payments. .Fi .l_' JL wJ y ? ti t?' t / (3) Becomes aware by any other means that (a) The "suit" against the indemnitee "bodily injury" or "property damage" has seeks damages for which the insured occurred or has begun to occur. has assumed the liability of the in- e. Damages because of "bodily injury" include demnitee in a contract or agreement damages claimed by any person or organi- that is an "insured contract"; zation for care, loss of services or death re- (b) This insurance applies to such liability sulting at any time from the "bodily injury". assumed by the insured; f. Coverage Extension - Supplementary (c) The obligation to defend, or the cost Payments of the defense of, that indemnitee, (1) In addition to the Limit of Insurance of has also been assumed by the in- Section 11 - Liability we will pay, with sured in the same "insured contract"; respect to any claim we investigate or (d) The allegations in the "suit" and the settle, or any "suit" against an insured we information we know about the "oo- defend: currence" are such that no conflict (a) All expenses we incur. appears to exist between the interests of the insured and the interests of the (b) Up to $250 for cost of bail bonds indemnitee: required because of accidents or traf- fc law violations arising out of the (e) The indemnitee and the insured ask (? use of any vehicle to which Business us to conduct and control the defense Liability Coverage for bodily injury of that.indemnitee against such "suit" applies. We do not have to furnish and agree that we can assi assign the these bonds. same counsel to defend the insured and the indemnitee; and (c) The cost of bonds to release attach- ments, but only for bond amounts (f) The indemnitee: within our Limit of Insurance. We do (i) Agrees in writing to: not have to furnish these bonds. i. Cooperate with us in the inves- (d) All reasonable expenses incurred by tigation, settlement or defense the insured at our request to assist us of the "suit"; in the investigation or defense of the " " ii. Immediately send us copies of claim or suit , including actual loss any demands notices sum- of earnings up to $250 a day because , , monses or legal papers re- of time off from work. ceived in connection with the (e) All costs taxed against the insured in "suit"; the "suit". iii. Notify any other insurer whose (f) Prejudgment interest awarded coverage is available to the against the insured on that part of the indemnitee; and judgment we pay. If we make an offer iv. Cooperate with us with respect to pay the Limit of Insurance, we will to coordinating other applica- not pay any prejudgment interest ble insurance available to the based on that period of time after the indemnitee; and offer. (g) All interest on the full amount of any (ii) Provides us with written authoriza- judgment that accrues after entry of tion to: the judgment and before we have L Obtain records and other in- paid, offered to pay, or deposited in formation related to the "suit"; court the part of the judgment that is and within our Limit of Insurance. H. Conduct and control the de- (2) If we defend an insured against a "suit" fense of the indemnitee in and an indemnitee of the insured is also such "suit". named as a party to the "suit", we will defend that indemnitee if all of the fol- lowing conditions are met: BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 27 of 43 ? BP10955607 (3) So long as the conditions in Paragraph 2. are met, attomeys' fees incurred by us in the defense of that indemnitee, neces- sary litigation expenses incurred by us and necessary litigation expenses in- curred by the indemnitee at our request will be paid as Supplementary Pay- ments. Notwithstanding the provisions of Paragraph B.1.b.(2) Exclusions in Sec- tion If - Liability, such payments will not be deemed to be damages for "bod- ily injury" and "property damage" and will not reduce the limits of insurance. Our obligation to defend an insured's in- demnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: (a) We have used up the applicable limit of insurance in the payment of judg- ments or settlements; or (b) The conditions set forth above, or the terms of the agreement described in Paragraph 2.f. above are no longer met. 2. Medical Expenses a. We will pay medical expenses as described below for "bodily injury' caused by an acci- dent: (1) On premises you own or rent; (2) On ways next to premises you own or rent; or (3) Because of your operations; provided that: (a) The accident takes place in the "cov- erage territory" and during the policy period; (b) The expenses are incurred and re- ported to us within one year of the date of the accident; and (c) The injured person submits to exami- nation, at our expense, by physicians of our choice as often as we rea- sonably require. b. We will make these payments regardless of fault. These payments will not exceed the Limits of Insurance of Section 11- Liability. We will pay reasonable expenses for. (1) First aid administered at the time of an accident; (2) Necessary medical, surgical, x-ray and dental services, including prosthetic de- vices; and (3) Necessary ambulance, hospital, profes- sional nursing and funeral services. B. Exclusions 1. Applicable To Business Liability Coverage This insurance does not apply to: a. Expected Or Intended Injury "Bodily injury" or "property damage" ex- pected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" resulting from the use of rea- sonable force to protect persons or property. b. Contractual Liability "Bodily injury" or "property damage" for which the insured is obligated to pay dam- ages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) That the insured would have in the ab- sence of the contract or agreement; or (2) Assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" oc- curs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an "in- sured contract", reasonable attorney fees and necessary litigation expenses in- curred by or for a party other than an in- sured are deemed to be damages be- cause of "bodily injury" or "property damage", provided: (a) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract"; and (b) Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insur- ance applies are alleged. Paae 28 of 43 0 ISO Prooerties. Inc.. 2001 BP 00 03 07 02 ? BPIU4ttbu,/ c. Liquor Liability (a) At or from any premises, site or loca- "Bodily injury" or "property damage" for tion which is or was at any time which any insured may be held liable by owned or occupied by, or rented or reason of: loaned to, any insured. However, this (1) Causing or contributing to the intoxica- subparagraph does not apply to: tion of any person; (i) "Bodily injury" if sustained within a (2) The furnishing of alcoholic beverages to building and caused by smoke, fumes, vapor or soot from equip- a person under the legal drinking age or ment used to heat that building; under the influence of alcohol; or (3) Any statute, ordinance or regulation (ii) "Bodily injury" or "property dam- age» for which you may be held li- relating to the sale, gift, distribution or able, if you are a contractor and use of alcoholic beverages. the owner or lessee of such prem- This exclusion applies only if you are in the ises, site or location has been business of manufacturing, distributing, sell-, added to your policy as an addi- ing, serving or furnishing alcoholic bever- tional insured with respect to your ages. ongoing operations performed for d. Workers' Compensation And Similar that additional insured at that Laws premises, site or location and Any obligation of the insured under a work- such premises, site or location is not and never was owned or oc- ers' compensation, disability benefits or un- cupied by, or rented or loaned to employment compensation law or any simi- , any insured, other than that addi- lar law. tional insured; or e. Employers Liability (iii) "Bodily injury" or "property dam- "Bodily Injury" to: age" arising out of heat, smoke or (1) An "employee" of the insured arising out fumes from a "hostile fire"; of and in the course of: (b) At or from any premises, site or loca- (a) Employment by the insured; or tion which is or was at any time used by or for any insured or others for the (b) Performing duties related to the con- handling, storage, disposal, process- dud of the insured's business; or ing or treatment of waste; (2) The spouse, child, parent, brother or (c) Which are or were at any time trans- sister of that "employee" as a conse- ported, handled, stored, treated, dis- quence of Paragraph (1) above. posed of, or processed as waste by or This exclusion applies: for: (1) Whether the insured may be liable as an (i) Any insured; or employer or in any other capacity; and (ii) Any person or organization for (2) To any obligation to share damages with whom you may be legally respon- or repay someone else who must pay sible; or damages because of the injury. (d) At or from any premises, site or loca- This exclusion does not apply to liability as- tion on which any insured or any con- sumed by the insured under an "insured tractors or subcontractors working di- contract". rectly or indirectly on any insured's f. Pollution behalf are performing operations if the "pollutants" are brought on or to (1) "Bodily injury" or "property damage" the premises, site or location in con- arising out of the actual, alleged or nection with such operations by such threatened discharge, dispersal, seep- insured, contractor or subcontractor. age, migration, release or escape of However, this subparagraph does not "pollutants": apply to: BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 29 of 43 ? BP10955607 (i) "Bodily injury" or "property dam- (b) Claim or "suit" by or on behalf of a age" arising out of the escape of governmental authority for damages fuels, lubricants or other operating because of testing for, monitoring, fluids which are needed to per- cleaning up, removing, containing, form the normal electrical, hy- treating, detoxifying or neutralizing, draulic or mechanical functions or in any way responding to, or as- necessary for the operation of sessing the effects of, "pollutants". "mobile equipment" or its parts, if However, this paragraph does not apply such fuels, lubricants or other op- to liability for damages because of "prop- erating fluids escape from a vehi- erty damage" that the insured would cle part designed to hold, store or have in the absence of such request, receive them. This exception does demand, order or statutory or regulatory not apply if the "bodily injury" or requirement or such claim or "suit" by or property damage, arises out of on behalf of a governmental authority. the intentional discharge, disper- sal or release of the fuels, lubri- g. Aircraft, Auto Or Watercraft cants or other operating fluids, or "Bodily injury" or "property damage" arising if such fuels, lubricants or other out of the ownership, maintenance, use or operating fluids are brought on or entrustment to others of any aircraft, "auto" to the premises, site or location or watercraft owned or operated by or rented with the intent that they be dis- or loaned to any insured. Use includes op- charged, dispersed or released as eration and "loading or unloading". part of the operations being per- This exclusion applies even if the claims al- formed by such insured, contrac- lege negligence or other wrongdoing in the for or. subcontractor; supervision, hiring, employment, training or (ii) "Bodily injury" or "property dam- monitoring of others by an insured, if the age" sustained within a building "occurrence" which caused the "bodily in- and caused by the release of jury" or "property damage" involved, the gases, fumes or vapors from ma- ownership, maintenance, use or entrustment terials brought into that building in to others of any aircraft, "auto" or watercraft connection with operations being that is owned or operated by or rented or performed by you or on your be- loaned to any insured. half by a contractor or subcontrac- This exclusion does not apply to: tor, or (iii) "Bodily injury" or "property dam- (1) A watercraft while ashore on premises age" arising out of heat, smoke or you own or rent; fumes from a "hostile fire". (2) A watercraft you do not own that is: (e) At or from any premises, site or loca- (a) Less than 51 feet long; and tion on which any insured or any con- (b) Not being used to carry persons or tractors or subcontractors working di- property for a change; rectly or indirectly on any insured's behalf are performing operations if (3) Parking an on, or on the ways "auto" the operations are to test for, monitor, next to, premises you own or rent, pro- " " contain, treat, de- clean up remove is not owned by or vided the auto , , toxify or neutralize, or in any way re- rented or loaned to you or the insured; spond to, or assess the effects of, (4) Liability assumed under any "insured "pollutants". contract" for the ownership, maintenance (2) Any loss, cost or expense arising out of or use of aircraft or watercraft; or any: (5) "Bodily injury" or "property damage" (a) Request, demand, order or statutory arising out of the operation of any of the or regulatory requirement that any in- following equipment: sured or others test for, monitor, (a) Cherry pickers and similar devices remove, contain, treat, de- clean up mounted on automobile or truck , toxify or neutralize, or in any way re- chassis and used to raise or lower spond to, or assess the effects of, workers; and "pollutants"; or ±? rl uy_*?!> bU (b) Air compressors, pumps and genera- tors, including spraying, welding, building cleaning, geophysical explo- ration, lighting and well servicing equipment. h. Mobile Equipment "Bodily injury" or "property damage" arising out of (1) The transportation of "mobile equipment" by an "auto" owned or operated by or rented or loaned to any insured; or (2) The use of "mobile equipment" in, or while in practice for, or while being pre- pared for, any prearranged racing, speed, demolition or stunting activity. i. War "Bodily injury" or "property damage" due to war, whether or not declared, or any act or condition incident to war. War includes civil war, insurrection, rebellion or revolution. This exclusion applies only to liability as- sumed under a contract or agreement. j. Professional Services "Bodily injury", "property damage", "personal and advertising injury" caused by the ren- dering or failure to render any professional service. This includes but is not limited to: (1) Legal, accounting or advertising ser- vices; (2) Preparing, approving, or failing to pre- pare or approve maps, drawings, opin- ions, reports, surveys, change orders, designs or specifications; (3) Supervisory, inspection or engineering services; . (4) Medical, surgical, dental, x-ray or nurs- ing services treatment, advice or instruc- tion; (5) Any health or therapeutic service treat- ment, advice or instruction; (6) Any service, treatment, advice or instruc- tion for the purpose of appearance or skin enhancement, hair removal or re- placement or personal grooming; (7) Optometry or optical or hearing aid ser- vices including the prescribing, prepara- tion, fitting, demonstration or distribution of ophthalmic lenses and similar prod- ucts or hearing aid devices; (8) Body piercing services; and (9) Services in the practice of pharmacy k. Damage To Property "Property damage" to: (1) Property you own, rent or occupy, includ- ing any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, en- hancement, restoration or maintenance of such property for any reason, includ- ing prevention of injury to a person or damage to another's property; (2) Premises you sell, give away or aban- don, if the "property damage" arises out of any part of those premises; (3) Property loaned to you; (4) Personal property in the care, custody or control of the insured; (5) That particular part of real property on which you or any contractor or subcon- tractor working directly or indirectly on your behalf is performing operations, if the "property damage" arises out of those operations; or (6) That particular part of any property that must be restored, repaired or replaced because "your work" was incorrectly per- formed on it. Paragraphs (1), (3) and (4) of this exclusion do not apply to "property damage" (other than damage by fire or explosion) to prem- ises, including the contents of such prem- ises, rented to you for a period of 7 or fewer consecutive days. A separate limit of insur- ance applies to Damage To Premises Rented To You as described in Paragraph D. Liability And Medical Expenses Limit Of Insurance in Section II - Liability. Paragraph (2) of this exclusion does not ap- ply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs (3), (4), (5) and (6) of this ex- clusion do not apply to liability assumed un- der a sidetrack agreement. Paragraph (6) of this exclusion does not ap- ply to "property damage" included in the "products - completed operations hazard". 1. Damage To Your Product "Property damage" to "your product" arising out of it or any part of it. M. Damage To Your Work "Property damage" to "your work" arising out of it or any part of it and included in the "products - completed operations hazard". BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 31 of 43 ? BP10955607 This exclusion does not apply if the dam- aged work or the work out of which the dam- age arises was performed on your behalf by a subcontractor. n. Damage To Impaired Property Or Property Not Physically Injured "Property damage" to "impaired property" or property that has not been physically in- jured, arising out of: (1) A defect, deficiency, inadequacy or dan- gerous condition in "your product" or "your work"; or (2) A delay or failure by you or anyone act- ing on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to "your prod- uct" or "your work" after it has been put to its intended use. o. Recall Of Products, Work Or Impaired Property Damages claimed for any loss, cost or ex- pense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or dis- posal of: (1) "Your product"; (2) "Your work"; or (3) "Impaired property"; if such product, work or property is with- drawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it. p. Personal And Advertising Injury "Personal and advertising injury": (1) Caused by or at the direction of the in- sured with the knowledge that the act would violate the rights of another and would inflict "personal and advertising in- jury". (2) Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its fal- sity; (3) Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period; (4) Arising out of a criminal act committed by or at the direction of any insured; (5) For which the insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agree- ment; (6) Arising out of a breach of contract, ex- cept an implied contract to use another's advertising idea in your "advertisement"; (7) Arising out of the failure of goods, prod- ucts or services to conform with any statement of quality or performance made in your "advertisement"; (8) Arising out of the wrong description of the price of goods, products or services stated in your "advertisement"; (9) Committed by an insured whose busi- ness is: (a) Advertising, broadcasting, publishing or telecasting; (b) Designing or determining content of web-sites for others; or (c) An Internet search, access, content or service provider. However, this exclusion does not apply to Paragraphs 14.a., b. and c. of "per- sonal and advertising injury" under Para- graph F. Liability And Medical Expenses Definitions. For the purposes of this exclusion, the placing of frames, borders or links, or advertising, for you or others anywhere on the Internet, by itself, is not consid- ered the business of advertising, broad- casting, publishing or telecasting. (10) Arising out of the actual, alleged or threatened discharge, dispersal, seep- age, migration, release or escape of "pollutants" at any time. (11) With respect to any loss, cost or expense arising out of any: (a) Request, demand or order that any insured or others test for, monitor, clean-up, remove, contain, treat, de- toxify or neutralize or in any way re- spond to, or assess the effects of, "pollutants"; or (b) Claim or "suit" by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing or in any way responding to, or assess- ing the effects of, "pollutants". Page 32 of 43 0 ISO Properties. Inc.. 2001 BP 00 03 07 02 ? (12) Arising out of an electronic chatroom or bulletin board the insured hosts, owns or over which the insured exercises control. (13) Arising out of the infringement of copy- right, patent, trademark, trade secret or other intellectual property rights. However, this exclusion does not apply to infringement, in your "advertisement", of copyright, trade dress or slogan. (14) Arising out of the unauthorized use of another's name or product in your e-mail address, domain name or metatags, or any other similar tactics to mislead an- other's potential customers. Exclusions c., d., e., f., g., h., i., k., I., m., n. and o. in Section II - Liability do not apply to damage by fire or explosion to premises while rented to you, or temporarily occupied by you with permission of the owner. A separate Dam- age To Premises Rented To You Limit of Insur- ance applies to this coverage as described in Paragraph D. Liability And Medical Expenses Limits of Insurance in Section 11- Liability. 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. To any insured, except "volunteer workers". b. To a person hired to do work for or on behalf of any insured or a tenant of any insured. C. To a person injured on that part of premises you own or rent that the person normally oc- cupies. d. To a person, whether or not an "employee" of any insured, if benefits for the "bodily in- jury" are payable or must be provided under a workers' compensation or disability bene- fits law or a similar law. e. To a person injured while taking part in athletics. f. Included within the "products - completed operations hazard". g. Excluded under Business Liability Cover- age. 3. Applicable To Both Business Liability Coverage And Medical Expenses Coverage - Nuclear Energy Liability Exclusion This insurance does not apply: a. Under Business Liability Coverage, to "bod- ily injury" or "property damage": (1) With respect to which an insured under the policy is also an insured under a nu- clear energy liability policy issued by the Nuclear Energy Liability Insurance Asso- ciation, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Asso- ciation of Canada, or would be an in- sured under any such policy but for its termination upon exhaustion of its limit of liability; or (2) Resulting from the "hazardous proper- ties" of "nuclear material" and with re- spect to which: (a) Any person or organization is re- quired to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof; or (b) The insured is, or had this policy not been issued would be, entitled to in- demnity from the United States of America, or any agency thereof, un- der any agreement entered into by the United States of America, or any agency thereof, with any person or organization. b. Under Medical Expenses Coverage, to expenses incurred with respect to "bodily in- jury" resulting from the "hazardous proper- ties" of "nuclear material" and arising out of the operation of a "nuclear facility" by any person or organization. c. Under Business Liability Coverage, to "bod- ily injury" or "property damage" resulting from the "hazardous properties" of the "nu- clear material"; if: (1) The "nuclear material": h. Due to war, whether or not declared, or any (a) Is at any "nuclear facility" owned by, act or condition incident to war. War in- or operated by or on behalf of, an in- cludes civil war, insurrection, rebellion or sured; or revolution. (b) Has been discharged or dispersed therefrom; (2) The "nuclear material" is contained in "spent fuel" or "waste" at any time pos- sessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 33 of 43 ? BP10955607 (3) The "bodily injury" or "property damage" arises out of the furnishing by an insured of services, materials, parts or equip- ment in connection with the planning, construction, maintenance, operation or use of any "nuclear facility"; but if such facility is located within the United States of America, its territories or possessions or Canada, this Exclusion (3) applies only to "property damage" to such "nu- clear facility" and any property thereat. d. As used in this exclusion: (1) "By-product material" has the meaning given it in the Atomic Energy Act of 1954 or in any law amendatory thereof; (2) "Hazardous properties" include radioac- tive, toxic or explosive properties; (3) "Nuclear facility" means: (a) Any "nuclear reactor"; (b) Any equipment or device designed or used for: (i) Separating the isotopes of ura- nium or plutonium; (ii) Processing or utilizing "spent fuel"; or (iii) Handling, processing or packaging "waste"; (c) Any equipment or device used for the processing, fabricating or alloying of "special nuclear material" if at any time the total amount of such mate- rial in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plu- tonium or uranium 233 or any combi- nation thereof, or more than 250 grams of uranium 235; (d) Any structure, basin, excavation, premises or place prepared or used for the storage or disposal of "waste'; and includes the site on which any of the foregoing is located, all operations con- ducted on such site and all premises used for such operations; (4) "Nuclear material" means "source mate- rial", "special nuclear material" or "by- product material"; (5) "Nuclear reactor" means any apparatus designed or used to sustain nuclear fis- sion in a self-supporting chain reaction or to contain a critical mass of fissionable material; (6) "Property damage" includes all forms of radioactive contamination of property. (7) "Source material" has the meaning given it in the Atomic Energy Act of 1954 or in any law amendatory thereof, (8) "Special nuclear material" has the mean- ing given it in the Atomic Energy Act of 1954 or in any law amendatory thereof; (9) "Spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a "nuclear reactor"; (10) "Waste" means any waste material: (a) Containing "by-product material" other than the tailings or wastes pro- duced by the extraction or concentra- tion of uranium or thorium from any ore processed primarily for its "source material" content; and (b) Resulting from the operation by any person or organization of any "nu- clear facility" included under Para- graphs (a) and (b) of the definition of "nuclear facility". C. Who Is An Insured 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the con- duct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an in- sured. Your members are also insureds, but only with respect to the gonduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive offi- cers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also in- sureds, but only with respect to their liability as stockholders. Page 34 of 43 0 ISO ProDerties. Inc.. 2001 BP 00 03 137 132 n 2. Each of the following is also an insured: a. Your "volunteer workers" only while per- forming duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability com- pany), but only for ads within the scope of their employment by you or while perform- ing duties related to the conduct of your business. However, none of these "employ- ees" or "volunteer workers" are insureds for. (1) "Bodily injury" or "personal and advertis- ing injury": (a) To you, to your partners or members (if you are a partnership or joint ven- ture), to your members (if you are a limited liability company), or to a co- "employee" while in the course of his or her employment or performing du- ties related to the conduct of your business, or to your other "volunteer workers" while performing duties re- lated to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co-"employee" as a consequence of Paragraph (a) above; (c) For which there is any obligation to share damages with or repay some- one else who must pay damages be- cause of the injury described in Para- graphs (a) or (b); or (d) Arising out of his or her providing or failing to provide professional health care services. (2) "Property damage" to property: (a) Owned, occupied or used by, (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any pur- pose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Your legal representative if you die, but only with respect to duties as such. That repre- sentative will have all your rights and duties under this policy. 3. With respect to "mobile equipment" registered in your name under any motor vehicle registra- tion law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organiza- tion responsible for the conduct of such person is also an insured, but only with respect to liabil- ity arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co-"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. No person or organization is an insured with re- spect to the conduct of any current or past part- nership, joint venture or limited liability com- pany that is not shown as a Named Insured in the Declarations. D. Liability And Medical Expenses Limits Of Insurance 1. The Limits of Insurance of Section 11 - Liabil- ity shown in the Declarations and the rules be- low fix the most we will pay regardless of the number of. a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. The most we will pay for the sum of all dam- ages because of all: a. "Bodily injury", "property damage" and medi- cal expenses arising out of any one "occur- rence"; and BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 35 of 43 ? BP10955607 b. "Personal and advertising injury" sustained by any one person or organization; is the Liability and Medical Expenses limit shown in the Declarations. But the most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medi- cal Expenses limit shown in the Declarations. 3. The most we will pay under Business Liability Coverage for damages because of "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of any one fire or explo- sion is the Damage To Premises Rented To You limit shown in the Declarations. 4. Aggregate Limits The most we will pay for: a. All "bodily injury" or "property damage" that is included in the "products-completed op- erations hazard" is twice the Liability and Medical Expenses limit; and b. All: (1) "Bodily injury" or "property damage" except damages because of "bodily in- jury" and "property damage" included in the "products-completed operations haz- ard". (2) Plus medical expenses; (3) Plus all "personal and advertising injury" caused by offenses committed; is twice the Liability and Medical Expenses limit. This Aggregate Limit does not apply to "prop- erty damage" to premises while rented to you or temporarily occupied by you with the permis- sion of the owner, arising out of fire or explo- sion. The Limits of Insurance of Section II - Liability apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the ad- ditional period will be deemed part of the last pre- ceding period for purposes of determining the Lim- its of Insurance. E. Liability And Medical Expenses General Conditions 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our ob- ligations under this policy. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the "occurrence" or offense. b. If a claim is made or "suit" is brought against any insured, you must: (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You must see to it that we receive written notice of the claim or "suit" as soon as prac- ticable. c. You and any other involved insured must: (1) Immediately send us copies of any de- mands, notices, summonses or legal pa- pers received in connection with the claim or "suit"; (2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation, or settlement of the claim or defense against the "suit"; and (4) Assist us, upon our request, in the en- forcement of any right against any per- son or organization that may be liable to the insured because of injury or damage to which this insurance may also apply. d. No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. .r11.V11 Jnn0U b. With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage re- quired by any motor vehicle law. We will provide the required limits for those cover- ages. 4. Legal Action Against Us No person or organization has a right under this policy: a. To join us as a party or otherwise bring us into a "suit" asking for damages from an in- sured; or b. To sue us on this policy unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this policy or that are in excess of the appli- cable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 5. Separation Of Insureds Except with respect to the Limits of Insurance of Section II - Liability, and any rights or du- ties specifically assigned in this policy to the first Named Insured, this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom claim is made or "suit" is brought. F. Liability And Medical Expenses Definitions 1. "Advertisement" means a notice that is broad- cast or published to the general public or spe- cific market segments about your goods, prod- ucts or services for the purpose of attracting customers or supporters. For the purposes of this definition: a. Notices that are published include material placed on the Internet or on similar elec- tronic means of communication; and b. Regarding web-sites, only that part of a web-site that is about your goods, products or services for the purposes of attracting customers or supporters is considered an advertisement. 3. "Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. 4. "Coverage territory" means: a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in Paragraph a. above; or c. All other parts of the worid if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in Paragraph a. above; (2) The activities of a person whose home is in the territory described in Paragraph a. above, but is away for a short time on your business; or (3) "Personal and advertising injury" of- fenses that take place through the Inter- net or similar electronic means of com- munication; provided the insured's responsibility to pay damages is determined in a "suit" on the merits in the territory described in Para- graph a. above or in a settlement we agree to. 5. "Employee" includes a "leased worker". "Em- ployee" does not include a "temporary worker". 6. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar gov- eming document. 7. "Hostile fire" means one which becomes uncon- trollable or breaks out from where it was in- tended to be. 8. "Impaired property" means tangible property, other than "your product" or "your work", that cannot be used or is less useful because: a. It incorporates "your product" or "your work" that is known or thought to be defective, de- ficient, inadequate or dangerous; or b. You have failed to fulfill the terms of a con- tract or agreement; if such property can be restored to use by: 2. "Auto" means a land motor vehicle, trailer or (1) The repair, replacement, adjustment or semitrailer designed for travel on public roads, removal of "your product" or "your work"; including any attached machinery or equip- or ment. But "auto" does not include "mobile (2) Your fulfilling the terms of the contract or equipment". agreement. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 37 of 43 ? BP10955607 9. "Insured contract" means: (3) Under which. the insured, if an architect, a. A contract for a lease of premises. However, engineer or surveyor, assumes liability that portion of the contract for a lease of for an injury or damage arising out of the premises that indemnifies any person or or- insured's rendering or failure to render ganization for damage by fire to premises professional services, including those while rented to you or temporarily occupied listed in Paragraph (2) above and super- by you with permission of the owner is not visory, inspection or engineering ser- an "insured contract"; vices. b. A sidetrack agreement; c. Any easement or license agreement, except in connection with construction or demolition operations on or within 50 feet of a railroad; d. An obligation, as required by ordinance, to indemnify a municipality, except in connec- tion with work for a municipality; e. An elevator maintenance agreement; f. That part of any other contract or agreement pertaining to your business (including an in- demnification of a municipality in connection with work performed for a municipality) un- der which you assume the tort liability of an- other party to pay for "bodily injury" or "prop- erty damage" to a third person or organization. Tort liability means a liability that would be imposed by law in the ab- sence of any contract or agreement. Paragraph f. does not include that part of any contract or agreement: (1) That indemnifies a railroad for "bodily injury" or "property damage" arising out of construction or demolition operations, within 50 feet of any railroad property and affecting any railroad bridge or tres- tle, tracks, road beds, tunnel, underpass or crossing; (2) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or (b) Giving directions or instructions, or failing to give them, if that is the pri- mary cause of the injury or damage; 10. "Leased worker" means a person leased to you by a labor leasing firm under an agreement be- tween you and the labor leasing firm, to per- form duties related to the conduct of your busi- ness. "Leased worker" does not include a "temporary worker". 11. "Loading or unloading" means the handling of property: a. After it is moved from the place where it is accepted for movement into or onto an air- craft, watercraft or "auto"; b. While it is in or on an aircraft, watercraft or "auto"; or c. While it is being moved from an aircraft, watercraft or "auto" to the place where it is finally delivered; but "loading or unloading" does not include the movement of property by means of a mechani- cal device, other than a hand truck, that is not attached to the aircraft, watercraft or "auto". 12. "Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; d. Vehicles, whether self-propelled or not, on which are permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equip- ment such as graders, scrapers or roll- ers; or e. Vehicles not described in Paragraphs a., b., c. or d. above that are not self-propelled and are maintained primarily to provide mo- bility to permanently attached equipment of the following types: (1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, light- ing and well servicing equipment; or 11 belklyn>bIJ / (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in Paragraphs a., b., c. or d. above maintained primarily for pur- poses other than the transportation of per- sons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos": (1) Equipment designed primarily for. (a) Snow removal; (b) Road maintenance, but not construc- tion or resurfacing; or (c) Street cleaning; (2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and (3) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, light- ing and well servicing equipment. 13. "Occurrence" means an accident, including continuous or repeated exposure to substan- tially the same general harmful conditions. 14. "Personal and advertising injury" means injury, including consequential "bodily injury", arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occu- pancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or or- ganization's goods, products or services; e. Oral or written publication, in any manner, of material that violates a person's right of pri- vacy; f. The use of another's advertising idea in your "advertisement"; or 16. "Products - completed operations hazard": a. Includes all "bodily injury" and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. However, "your work" will be deemed completed at the earliest of the following times: (a) When all of the work called for in your contract has been completed. (b) When all of the work to be done at the job site has been completed if your contract calls for work at more than one job site. (c) When that part of the work done at the job site has been put to its in- tended use by any other person or organization other than another con- tractor or subcontractor working on the same project. Work that may need service, mainte- nance, correction, repair or replacement, but which is otherwise complete, will be treated as completed. The "bodily injury" or "property damage" must occur away from premises you own or rent, unless your business includes the sell- ing, handling or distribution of "your product" for consumption on premises you own or rent. b. Does not include "bodily injury" or "property damage" arising out of: (1) The transportation of property, unless the injury or damage arises out of a condi- tion in or on a vehicle not owned or op- erated by you, and that condition was created by the "loading or unloading" of that vehicle by any insured; or (2) The existence of tools, uninstalled equipment or abandoned or unused ma- terials. 17. "Property damage" means: g. Infringing upon another's copyright, trade a. Physical injury to tangible property, includ- dress or slogan in your "advertisement". ing all resulting loss of use of that property. All such loss of use shall be deemed to oc- 15. "Pollutants" mean any solid, liquid, gaseous or cur at the time of the physical injury that thermal irritant or contaminant, including caused it; or smoke, vapor, soot, fumes, acids, alkalis, b. Loss of use of tangible property that is not chemicals and waste. Waste includes materials physically injured. All such loss of use shall to be recycled, reconditioned or reclaimed. be deemed to occur at the time of the "oc- currence" that caused it. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 39 of 43 ? BP10955607 For the purposes of this insurance, electronic data is not tangible property. As used in this definition, electronic data means information, fads or programs stored as, cre- ated or used on, or transmitted to or from com- puter software, including systems and applica- tions software, hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing devices or any other media which are used with electroni- cally controlled equipment. 18. "Suit" means a civil proceeding in which dam- ages because of "bodily injury", "property dam- age", "personal and advertising injury" to which this insurance applies are alleged. "Suit" in- cludes: a. An arbitration proceeding in which such damages are claimed and to which the in- sured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. 19. "Temporary worker" means a person who is fumished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 20. "Volunteer worker" means a person who is not your "employee", and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 21. "Your product": a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a) You; (b) Others trading under your name; or (c) A person or organization whose busi- ness or assets you have acquired; and (2) Containers (other than vehicles), materi- als, parts or equipment furnished in con- nection with such goods or products. b. Includes: (1) Warranties or representations made at any time with respect to the fitness, qual- ity, durability, performance or use of "your product"; and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. 22. "Your work": a. Means: (1) Work or operations performed by you or on your behalf; and (2) Materials, parts or equipment furnished in connection with such work or opera- tions. b. Includes: (1) Warranties or representations made at anytime with respect to the fitness, qual- ity, durability, performance or use of "your work"; and (2) The providing of or failure to provide warnings or instructions. SECTION 111- COMMON POLICY CONDITIONS (APPLICABLE TO SECTION I - PROPERTY AND SECTION 11- LIABILITY) A. Cancellation 1. The first Named Insured shown in the Declara- tions may cancel this policy by mailing or deliv- ering to us advance written notice of cancella- tion. 2. We may cancel this policy by mailing or deliv- ering to the first Named Insured written notice of cancellation at least: a. 5 days before the effective date of cancella- tion if any one of the following conditions exists at any building that is Covered Prop- erty in this policy. (1) The building has been vacant or unoc- cupied 60 or more consecutive days. This does not apply to: (a) Seasonal unoccupancy; or (b) Buildings in the course of construc- tion, renovation or addition. Buildings with 65% or more of the rental units or floor area vacant or unoccupied are considered unoccupied under this provision. (2) After damage by a covered cause of loss, permanent repairs to the building: (a) Have not started, and (b) Have not been contracted for, within 30 days of initial payment of loss. LAF I_UybbbU7 (3) The building has: (a) An outstanding order to vacate; (b) An outstanding demolition order, or (c) Been declared unsafe by govemmen- tal authority. (4) Fixed and salvageable items have been or are being removed from the building and are not being replaced. This does not apply to such removal that is neces- sary or incidental to any renovation or remodeling. (5) Failure to: (a) Fumish necessary heat, water, sewer service or electricity for 30 consecu- tive days or more, except during a period of seasonal unoccupancy; or (b) Pay property taxes that are owing and have been outstanding for more than one year following the date due, except that this provision will not ap- ply where you are in a bona fide dis- pute with the taxing authority regard- ing payment of such taxes. b. 10 days before the effective date of cancel- lation if we cancel for nonpayment of pre- mium. c. 30 days before the effective date of cancel- lation if we cancel for any other reason. 3. We will mail or deliver our notice to the first Named Insured's last mailing address known to us. 4. Notice of cancellation will state the effective date of cancellation. The policy period will end on that date. 5. If this policy is cancelled, we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro rata. If the first Named Insured cancels, the refund may be less than pro rata. The cancellation will be effective even if we have not made or offered a refund. 6. If notice is mailed, proof of mailing will be suffi- cient proof of notice. B. Changes This policy contains all the agreements between you and us concerning the insurance afforded. The first Named Insured shown in the Declarations is authorized to make changes in the terms of this policy with our consent. This policy's terms can be amended or waived only by endorsement issued by us and made a part of this policy. C. Concealment, Misrepresentation Or Fraud This policy is void in any case of fraud by you as it relates to this policy at any time. It is also void if you or any other insured, at any time, intentionally conceal or misrepresent a material fact concern- ing: 1. This policy; 2. The Covered Property; 3. Your interest in the Covered Property; or 4. A claim under this policy. D. Examination Of Your Books And Records We may examine and audit your books and re- cords as they relate to this policy at any time dur- ing the policy period and up to three years after- ward. E. Inspections And Surveys 1. We have to right to: a. Make inspections and surveys at any time; b. Give you reports on the conditions we find; and c. Recommend changes. 2. We are not obligated to make any inspections, surveys, reports or recommendations and any such actions we do undertake relate only to in- surability and the premiums to be charged. We do not make safety inspections. We do not un- dertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. And we do not warrant that conditions: a. Are safe and healthful; or b. Comply with laws, regulations, codes or standards. 3. Paragraphs 1. and 2. of this condition apply not only to us, but also to any rating, advisory, rate service or similar organization which makes in- surance inspections, surveys, reports or rec- ommendations. 4. Paragraph 2. of this condition does not apply to any inspections, surveys, reports or recom- mendations we may make relative to certifica- tion, under state or municipal statutes, ordi- nances or regulations, of boilers, pressure vessels or elevators. F. Insurance Under Two Or More Coverages If two or more of this policy's coverages apply to the same loss or damage, we will not pay more than the actual amount of the loss or damage. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 41 of 43 ? BP10955607 G. Liberalization If we adopt any revision that would broaden the coverage under this policy without additional pre- mium within 45 days prior to or during the policy period, the broadened coverage will immediately apply to this policy. H. Other Insurance 1. If there is other insurance covering the same loss or damage, we will pay only for the amount of covered loss or damage in excess of the amount due from that other insurance, whether you can collect on it or not. But we will not pay more than the applicable Limit of Insurance of Section 1- Property. 2. Business Liability Coverage is excess over: a. Any other insurance that insures for direct physical loss or damage; or b. Any other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional in- sured by attachment of an endorsement. 3. When this insurance is excess, we will have no duty under Business Liability Coverage to de- fend any claim or "suit" that any other insurer has a duty to defend. If no other insurer de- fends, we will undertake to do so; but we will be entitled to the insured's rights against all those other insurers. 1. Premiums 1. The first Named Insured shown in the Declara- tions: a. Is responsible for the payment of all premi- ums; and b. Will be the payee for any return premiums we pay. 2. The premium shown in the Declarations was computed based on rates in effect at the time the policy was issued. On each renewal, con- tinuation or anniversary of the effective date of this policy, we will compute the premium in ac- cordance with our rates and rules then in effect. 3. With our consent, you may continue this policy in force by paying a continuation premium for each successive one-year period. The premium must be: a. Paid to us prior to the anniversary date; and b. Determined in accordance with Paragraph 2. above. 4. Undeclared exposures or change in your busi- ness operation, acquisition or use of locations may occur during the policy period that are not shown in the Declarations. If so, we may re- quire an additional premium. That premium will be determined in accordance with our rates and rules then in effect. J. Premium Audit 1. This policy is subject to audit if a premium designated as an advance premium is shown in the Declarations. We will compute the final pre- mium due when we determine your actual ex- posures. 2. Premium shown in this policy as advance pre- mium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit premiums is the date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the ex- cess to the first Named Insured. 3. The first Named Insured must keep records of the information we need for premium computa- tion, and send us copies at such times as we may request. K. Transfer Of Rights Of Recovery Against Others To Us 1. Applicable to Businessowners Property Cover- age: If any person or organization to or for whom we make payment under this policy has rights to recover damages from another, those rights are transferred to us to the extent of our payment. That person or organization must do everything necessary to secure our rights and must do nothing after loss to impair them. But you may waive your rights against another party in writ- ing: a. Prior to a loss to your Covered Property. b. After a loss to your Covered Property only if, at time of loss, that party is one of the fol- lowing: (1) Someone insured by this insurance; (2) A business firm: (a) Owned or controlled by you; or (b) That owns or controls you; or (3) Your tenant. Our forms then in effect will apply. If you do not You may also accept the usual bills of lading or pay the continuation premium, this policy will shipping receipts limiting the liability of carriers. expire on the first anniversary date that we This will not restrict your insurance. have not received the premium. Paae 42 of 43 0 ISO Properties. Inc.. 2001 BP 00 03 07 02 2. Applicable to Businessowners Liability Cover- age: If the insured has rights to recover all or part of any payment we have made under this policy, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or trans- fer those rights to us and help us enforce them. This condition does not apply to Medical Ex- penses Coverage. L. Transfer Of Your Rights And Duties Under This Policy Your rights and duties under this policy may not be transferred without our written consent except in the case of death of an individual Named Insured. If you die, your rights and duties will be transferred to your legal representative but only while acting within the scope of duties as your legal representa- tive. Until your legal representative is appointed, anyone having proper temporary custody of your property will have your rights and duties but only with respect to that property. BP 00 03 07 02 0 ISO Properties, Inc., 2001 Page 43 of 43 ? BUSINESSOWNERS BP 01 42 07 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PENNSYLVANIA CHANGES This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM A. Section I - Property is amended as follows: 1. The following is added to Paragraph E.6. Loss Payment Property Loss Condition and super- sedes any provision to the contrary: NOTICE OF ACCEPTANCE OR DENIAL OF CLAIM 1. Except as provided in 3. below, we will give you notice, within 15 working days after we receive a property executed proof of loss, that we: a. Accept your claim; b. Deny your claim; or c. Need more time to determine whether your claim should be accepted or de- nied. If we deny your claim, such notice will be in writing, and will state any policy provision, condition or exclusion used as a basis for the denial. If we need more time to determine whether your claim should be accepted or denied, the written notice will state the reason why more time is required. 2. If we have not completed our investigation, we will notify you again in writing, within 30 days after the date of the initial notice as provided in 1.c. above, and thereafter every 45 days. The written notice will state why more time is needed to investigate your claim and when you may expect us to reach a decision on your claim. 3. The notice procedures in 1. and 2. above do not apply if we have a reasonable basis, supported by specific information, to sus- pect that an insured has fraudulently caused or contributed to the loss by arson or other illegal activity. Under such circum- stances, we will notify you of the disposition of your claim within a period of time rea- sonable to allow full investigation of the claim, after we receive a properly executed proof of loss. 2. The following is added to any provision which uses the term actual cash value: Actual cash value is calculated as the amount it would cost to repair or replace Covered Property, at the time of loss or damage, with material of like kind or quality, subject to a de- duction for deterioration, depreciation and ob- solescence. Actual cash value applies to valuation of Covered Property regardless of whether that property has sustained a partial or total loss or damage. The actual cash value of the lost or damaged property may be significantly less than its re- placement cost. B. Section 111 - Common Policy Conditions is amended as follows: 1. Paragraph A. Cancellation is replaced by the following: A. Cancellation 1. The first Named Insured shown in the Declarations may cancel this policy by writing or giving notice.of cancellation. 2. Cancellation Of Policies In Effect For Less Than 60 Days We may cancel this policy by mailing or delivering to the first Named Insured written notice of cancellation at least 30 days before the effective date of cancel- lation. 3. Cancellation Of Policies In Effect For 60 Days Or More If this policy has been in effect for 60 days or more or if this policy is a re- newal of a policy we issued, we may cancel this policy only for one or more of the following reasons: a. You have made a material misrep- resentation which affects the insur- ability of the risk. Notice of cancella- tion will be mailed or delivered at least 15 days before the effective date of cancellation. BP 01 42 07 02 0 ISO Properties, Inc., 2001 Page 1 of 3 ? BP10955607 b. You have failed to pay a premium 6. If this policy is cancelled, we will send when due, whether the premium is the first Named Insured any premium payable directly to us or our agents refund due. If we cancel, the refund will or indirectly under a premium fi- be pro rata and will be returned within nance plan or extension of credit. 10 business days after the effective Notice of cancellation will be mailed date of cancellation. If the first Named at least 15 days before the effective Insured cancels, the refund may be less date of cancellation. than pro rata and will be returned within c. A condition, factor or loss experi- 30 days after the effective date of can- The cancellation will be effec- cellation ence material to insurability has changed substantially or a substan- . tive even if we have not made or of- tial condition, factor or loss expert- fered a refund. ence material to insurability has be- 7. If notice is mailed, it will be by regis- come known during the policy tered or first Gass mail. Proof of mailing period. Notice of cancellation will be will be sufficient proof of notice. mailed or delivered at least 60 days 2. Paragraph K. Transfer Of Your Rights And before the effective date of cancella- Duties Under This Policy is replaced by the tion. following: d. Loss of reinsurance or a substantial K. Transfer Of Your Rights And Duties decrease in reinsurance has oc- Under This Policy curred, which loss or decrease, at shall be cer- the time of cancellation Your rights and duties under this policy , tified to the Insurance Commissioner may not be transferred without our written as directly affecting in-force policies. consent except in the case of death of an Notice of cancellation will be mailed individual Named Insured. or delivered at least 60 days before If you die, your rights and duties will. be the effective date of cancellation. transferred to your legal representative but e. Material failure to comply with policy only while acting within the scope of duties conditions or contractual du- terms as your legal representative. Until your le- , Notice of cancellation will be ties gal representative is appointed, anyone . mailed or delivered at least 60 days having proper temporary custody of your before the effective date of cancella- property will have your rights and duties but tion. only with respect to that property. Other reasons that the Insurance f If you die, this Policy will remain in effect . Commissioner may approve. Notice as provided in 1. or 2. below, whichever is of cancellation will be mailed or de- later: livered at least 60 days before the 1. For 180 days after your death regard- effective date of cancellation. less of the policy period shown in the This policy may also be cancelled from Declarations, unless the insured prop- inception upon discovery that the policy erty is sold prior to that date; or was obtained through fraudulent state- 2. Until the end of the policy period shown ments, omissions or concealment of in the Declarations, unless the insured facts material to the acceptance of the property is sold prior to that date. risk or to the hazard assumed by us. Coverage during the period of time after 4. We will mail or deliver our notice to the your death is subject to all provisions of this first Named Insured's last mailing ad- policy including payment of any premium dress known to us. Notice of cancella- due for the policy period shown in the Dec- tion will state the specific reasons for larations and any extension of that period. cancellation. 5. Notice of cancellation will state the effective date of cancellation. The pol- icy period will end on that date. Page 2 of 3 0 ISO Properties, Inc., 2001 BP 01 42 07 02 ? .flZ1V7JJV V / 3. The following paragraphs are added and su- persede any provisions to the contrary: M. Nonrenewal If we decide not to renew this policy, we will mail or deliver written notice of nonrenewal, stating the specific reasons for nonrenewal, to the first Named Insured at least 60 days before the expiration date of the policy. N. Increase Of Premium If we increase your renewal premium, we will mail or deliver to the first Named In- sured written notice of our intent to in- crease the premium at least 30 days before the effective date of the premium increase. Any notice of nonrenewal or renewal premium increase will be mailed or delivered to the first Named Insured's last known address. If notice is mailed, it will be by registered or first class mail. Proof of mailing will be sufficient proof of notice. BP 01 42 07 02 0 ISO Properties, Inc., 2001 Page 3 of 3 ? D_t'_LV7:JD0V 7 BUSINESSOWNERS BP 01 91 07 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PENNSYLVANIA NOTICE An Insurance Company, its agents, employees, or service contractors acting on its behalf, may provide services to reduce the likelihood of injury, death or loss. These services may include any of the following or related services incident to the application for, issuance, renewal or continuation of, a policy of in- surance: 1. Surveys; 2. Consultation or advice; or 3. Inspections. The "Insurance Consultation Services Exemption Act" of Pennsylvania provides that the Insurance Com- pany, its agents, employees or service contractors acting on its behalf, is not liable for damages from injury, death or loss occurring as a result of any act or omission by any person in the furnishing of or the failure to furnish these services. The Act does not apply: 1. If the injury, death or loss occurred during the actual performance of the services and was caused by the negligence of the Insurance Com- pany, its agents, employees or service contrac- tors; 2. To consultation services required to be performed under a written service contract not related to a policy of insurance; or 3. If any acts or omissions of the Insurance Com- pany, its agents, employees or service contractors are judicially determined to constitute a crime, ac- tual malice, or gross negligence. Instruction to Policy Writers Attach the Pennsylvania Notice to all new and renewal certificates insuring risks located in Pennsylvania BP 01 91 07 02 0 ISO Properties, Inc., 2001 Page 1 of 1 ? nr_L v»:.) vv BUSINESSOWNERS BP 0417 07 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EMPLOYMENT-RELATED PRACTICES EXCLUSION This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM The following exclusion is added to Paragraph B. Exclusions in Section II - Liability: This insurance does not apply to: 1. "Bodily injury" or "personal and advertising injury" to: a. A person arising out of any: (1) Refusal to employ that person; (2) Termination of that person's employ- ment; or (3) Employment-related practices, policies, acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person; or b. The spouse, child, parent, brother or sister of that person as a consequence of "bodily injury" or "personal and advertising injury" to that person at whom any of the employ- ment-related practices described in Para- graphs (1), (2) or (3) above is directed. 2. This exclusion applies: a. Whether the insured may be liable as an employer or in any other capacity; and b. To any obligation to share damages with or repay someone else who must pay dam- ages because of the injury. BP 0417 07 02 © ISO Properties, Inc., 2001 Page 1 of 1 ? AYL1J7? 'Oll I BUSINESSOWNERS BP 04 41 07 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS INCOME CHANGES - INCREASED PERIOD OF RESTORATION (NO WAITING PERIOD) This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM Section I - Property is amended as follows: C. Paragraph H.8.a.(1) of the "Period of Restoration" A. Paragraph A.51 Civil Authority Additional Cov- definition is replaced by the following: erage is amended by deleting the second and a. Begins: third paragraphs and replacing them with the fol- (1) Immediately after the time of direct physi- lowing: cal loss or damage caused by or resulting This coverage will apply for a period of up to three from any Covered Cause of Loss at the de- consecutive weeks from the date of that action. scribed premises; or B. Paragraph A.5.m.(5)(a) Business Income From Dependent Properties Additional Coverage is replaced by the following: (5) The coverage period for Business Income under this Additional Coverage: (a) Begins immediately after the time of direct physical loss or damage caused by or resulting from any Covered Cause of Loss at the described premises; or BP 04 41 07 02 0 ISO Properties, Inc., 2001 Page 1 of 1 ? cs .e ?_ u y a? a ?.? i BUSINESSOWNERS BP 04 83 07 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. REMOVAL OF INSURANCE-TO-VALUE PROVISION This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM Paragraph E.6.d. Loss Payment Property Loss Con- dition in Section I - Property is amended as follows: A. Paragraph (1)(a) is replaced by the following: (1) At replacement cost without deduction for depreciation, subject to the following: (a) We will pay the cost to repair or replace, after application of the deductible and with- out deduction for depreciation, but not more than the least of the following amounts: (i) The Limit of Insurance under Section 1- Property that applies to the lost or dam- aged property; (ii) The cost to replace, on the same prem- ises, the lost or damaged property with other property: i. Of comparable material and quality; and ii. Used for the same purpose; or (iii) The amount that you actually spend that is necessary to repair or replace the lost or damaged property. If a building is rebuilt at a new premises, the cost is limited to the cost which would have been incurred had the building been built at the original premises. B. Paragraph (1)(b) does not apply. BP 04 83 07 02 0 ISO Properties, Inc., 2000 Page 1 of 1 ? D.CJ_V777q?.J / BUSINESSOWNERS BP 05140103 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAR LIABILITY EXCLUSION This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM The following provisions are added to the Busines- sowners Liability Coverage Form BP 00 06 and Sec- tion II - Liability of the Businessowners Coverage Form BP 00 03: A. Exclusion i. under Paragraph B.1., Exclusions - B. Applicable To Business Liability Coverage is replaced by the following: 1. Applicable To Business Liability Coverage This insurance does not apply to: L War (3) Insurrection, rebellion, revolution, usurped power, or action taken by gov- ernmental authority in hindering or de- fending against any of these. Exclusion h. under Paragraph B.2. Exclusions - Applicable To Medical Expenses Coverage does not apply. Medical Expenses due to war are now subject to Exclusion g. of Paragraph B.2. since "bodily injury" arising out of war is now ex- cluded under Paragraph B.1., Exclusions - Ap- plicable To Business Liability Coverage. "Bodily injury", "property damage", "per- sonal injury", "advertising injury" or "per- sonal and advertising injury", however, caused, arising, directly or indirectly, out of: (1) War, including undeclared or civil war, or (2) Warlike action by a military force, in- cluding action in hindering or defending against an actual or expected attack, by any government, sovereign or other au- thority using military personnel or other agents; or BP 05 14 01 03 0 ISO Properties, Inc., 2003. Page 1 of 1 ? JD r1 v7 J :7vv i BUSINESSOWNERS BP 05 23 01 08 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CAP ON LOSSES FROM CERTIFIED ACTS OF TERRORISM This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM A. The following provisions are added to the Busi- nessowners Policy and apply to Property and Li- ability Coverages: CAP ON CERTIFIED TERRORISM LOSSES "Certified act of terrorism" means an act that is certified by the Secretary of the Treasury, in con- currence with the Secretary of State and the Attor- ney General of the United States, to be an act of terrorism pursuant to the federal Terrorism Risk Insurance Act. The criteria contained in the Terror- ism Risk Insurance Act for a "certified act of terror- ism" include the following: 1. The act resulted in insured losses in excess of $5 million in the aggregate, attributable to all types of insurance subject to the Terrorism Risk Insurance Act; and If aggregate insured losses attributable to terrorist acts certified under the Terrorism Risk Insurance Act exceed $100 billion in a Program Year (Janu- ary 1 through December 31) and we have met our insurer deductible under the Terrorism Risk Insur- ance Act, we shall not be liable for the payment of any portion of the amount of such losses that ex- ceeds $100 billion, and in such case insured losses up to that amount are subject to pro rata al- location in accordance with procedures estab- lished by the Secretary of the Treasury. B. The following provision is added to Businessown- ers Standard Property Coverage Form BP 00 01, Businessowners Special Property Coverage Form BP 00 02 or Section I - Property of Busines- sowners Coverage Form BP 00 03: APPLICATION OF OTHER EXCLUSIONS 2. The act is a violent act or an act that is dan- gerous to human life, property or infrastructure and is committed by an individual or individuals as part of an effort to coerce the civilian popu- lation of the United States or to influence the policy or affect the conduct of the United States Government by coercion. The terms and limitations of any terrorism exclu- sion, or the inapplicability or omission of a terror- ism exclusion, do not serve to create coverage for any loss which would otherwise be excluded under this Coverage Form or Policy, such as losses ex- cluded by the Nuclear Hazard Exclusion or the War And Military Action Exclusion. BP 05 23 01 08 0 ISO Properties, Inc., 2007 Page 1 of 1 0 VS.t!.V1 1DD0'V / BUSINESSOWNERS. BP 05 35 11 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EXCLUSION OF ACTS OF BIOLOGICAL OR CHEMICAL TERRORISM; CAP ON LOSSES FROM CERTIFIED ACTS OF TERRORISM; COVERAGE FOR CERTAIN FIRE LOSSES This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM The following provisions are added to Businessown- ers Standard Property Coverage Form BP 00 01, Businessowners Special Property Coverage Form BP 00 02 or Section 1- Property of Businessowners Coverage Form BP 00 03: A. The following definitions are added with respect to the provisions of this endorsement: 1. "Certified act of terrorism" means an act that is certified by the Secretary of the Treasury, in concurrence with the Secretary of State and the Attorney General of the United States, to be an act of terrorism pursuant to the federal Terrorism Risk Insurance Act of 2002. The cri- teria contained in that Act for a "certified act of terrorism" include the following: a. The act resulted in aggregate losses in excess of $5 million; and b. The act is a violent act or an act that is dangerous to human life, property or infra- structure and is committed by an individual or individuals acting on behalf of any for- eign person or foreign interest, as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Govemment by coercion. 2. "Other act of terrorism" means a violent act or an act that is dangerous to human life, prop- erty or infrastructure that is committed by an individual or individuals and that appears to be part of an effort to coerce a civilian population or to influence the policy or affect the conduct of any government by coercion, and the act is not certified as a terrorist act pursuant to the federal Terrorism Risk Insurance Act of 2002. However, "other act of terrorism" does not in- clude an act which meets the criteria set forth in Paragraph b. of the definition of "certified act of terrorism", when such act resulted in ag- gregate losses of $5 million or less. B. The following exclusion is added: EXCLUSION OF AN "OTHER ACT OF TERRORISM" We will not pay for loss or damage caused directly or indirectly by an "other act of terrorism". Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. But this exclusion applies only when one or both of the following are attributed to such act: 1. The terrorism is carried out by means of the dispersal or application of pathogenic or poi- sonous biological or chemical materials; or 2. Pathogenic or poisonous biological or chemical materials are released, and it appears that one purpose of the terrorism was to release such materials. C. Exception Covering Certain Fire Losses If an "other act of terrorism" results in fire, we will pay for the loss or damage caused by that fire. Such coverage for fire applies only to direct loss or damage by fire to Covered Property. Therefore, for example, the exception does not apply to in- surance provided under Business Income and/or Extra Expense Additional Coverages. D. Cap On Certified Terrorism Losses With respect to any one or more "certified acts of terrorism" under the federal Terrorism Risk Insur- ance Act of 2002, we will not pay any amounts for which we are not responsible under the terms of that Act (including subsequent action of Congress pursuant to the Act) due to the application of any clause which results in a cap on our liability for payments for terrorism losses. BP 05 3511 02 0 ISO Properties, Inc., 2002 . Page 1 of 2 ? .bV1UJDD0U/ E. Application Of Other Exclusions The terms and limitations of any terrorism exclu- sion, or the inapplicability or omission of a terror- ism exclusion, do not serve to create coverage for any loss which would otherwise be excluded under this Coverage Form or Policy, such as losses ex- cluded by the Nuclear Hazard Exclusion or the War And Military Action Exclusion. Page 2 of 2 0 ISO Properties, Inc., 2002 BP 05 3511 02 ? nriv»aov i BUSINESSOWNERS BP 05 3912 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NUCLEAR, BIOLOGICAL OR CHEMICAL TERRORISM EXCLUSION (OTHER THAN CERTIFIED ACTS OF TERRORISM); CAP ON LOSSES FROM CERTIFIED ACTS OF TERRORISM This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM The following provisions are added to the Busines- sowners Liability Coverage Form BP 00 06 and Sec- tion II - Liability of the Businessowners Coverage Form BP 00 03: A. The following exclusion is added: This insurance does not apply to: TERRORISM "Any injury or damage" arising, directly or indi- rectly, out of an "other act of terrorism" that is not a "certified act of terrorism". However, this exclu- sion applies only when one or more of the follow- ing are attributed to such act: 1. The terrorism involves the use, release or escape of nuclear materials, or directly or indi- rectly results in nuclear reaction or radiation or radioactive contamination; or 2. The terrorism is carried out by means of the dispersal or application of pathogenic or poi- sonous biological or chemical materials; or 3. Pathogenic or poisonous biological or chemical materials are released, and it appears that one purpose of the terrorism was to release such materials. B. The following definitions are added: 1. For the purposes of this endorsement, "any injury or damage" means any injury or damage covered under any Coverage Form to which this endorsement is applicable, and includes but is not limited to "bodily injury", "property damage" or "personal and advertising injury" as may be defined in any applicable Coverage Form. 2. "Certified act of terrorism" means an act that is certified by the Secretary of the Treasury, in concurrence with the Secretary of State and the Attorney General of the United States, to be an act of terrorism pursuant to the federal Terrorism Risk Insurance Act of 2002. The federal Terrorism Risk Insurance Act of 2002 sets forth the following criteria for a "certified act of terrorism": a. The act resulted in aggregate losses in excess of $5 million; and b. The act is a violent act or an act that is dangerous to human life, property or infra- structure and is committed by an individual or individuals acting on behalf of any for- eign person or foreign interest, as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. 3. "Other act of terrorism" means a violent act or an act that is dangerous to human life, prop- erty or infrastructure that is committed by an individual or individuals and that appears to be part of an effort to coerce a civilian population or to influence the policy or affect the conduct of any government by coercion, and the act is not certified as a terrorist act pursuant to the federal Terrorism Risk Insurance Act of 2002. However, "other act of terrorism" does not in- clude an act which meets the criteria set forth in Paragraph b. of the definition of "certified act of terrorism" when such act resulted in ag- gregate losses of $5 million or less. Multiple incidents of an "other act of terrorism" which occur within a seventy-two hour period and appear to be carried out in concert or to have a related purpose or common leadership shall be considered to be one incident. BP 05 3912 02 ® ISO Properties, Inc., 2002 Pagel of2 ? zr.LV_11DD0U C. In the event of an "other act of terrorism" that is D. not subject to this exclusion, coverage does not apply to any loss or damage that is otherwise ex- cluded under this Coverage Form or Policy. With respect to any one or more "certified acts of terrorism", we will not pay any amounts for which we are not responsible under the terms of the fed- eral Terrorism Risk Insurance Act of 2002 (includ- ing subsequent acts of Congress pursuant to the Act) due to the application of any clause which re- sults in a cap on our liability for payments for ter- rorism losses. Page 2 of 2 © ISO Properties, Inc., 2002 BP 05 39 12 02 ? POLICY NUMBER: BUSINESSOWNERS BP 05 64 01 07 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CONDITIONAL EXCLUSION OF TERRORISM (RELATING TO DISPOSITION OF FEDERAL TERRORISM RISK INSURANCE ACT) This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE The Exception Covering Certain Fire Losses (Paragraph 8.2.) applies to property located in the following states : Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section I - Property and Section 11 - Liability (2) A renewal, extension or replacement are amended as follows: of the Program has become effective 1. Applicability Of The Provisions Of This without a requirement to make terror- Endorsement ism coverage available to you and a. The provisions of this endorsement with revisions that: become applicable commencing on the (a) Increase our statutory percentage date when any one or more of the follow- deductible under the Program for ing first occurs. But if your policy terrorism losses. (That deductible (meaning the policy period in which this determines the amount of all certi- endorsement applies) begins after such fied terrorism losses we must pay date, then the provisions of this en- in a calendar year, before the fed- domement become applicable on the eral government shares in subse- date your policy begins. quent payment of certified terror- (1) The federal Terrorism Risk Insurance ism losses.); or Program ("Program"), established by (b) Decrease the federal govern- the Terrorism Risk Insurance Act, men Ys statutory percentage share has terminated with respect to the in potential terrorism losses s type of insurance provided under this uch deductible; or above Coverage Form; or BP 06 64 01 07 0 ISO Properties, Inc., 2006 Page 1 of 4 ? (c) Redefine terrorism or make insur- ance coverage for terrorism sub- ject to provisions or requirements that differ from those that apply to other types of events, or occur- rences under this policy. b. If the provisions of this endorsement become applicable, such provisions: (1) Supersede any terrorism endorse- ment already endorsed to this policy that addresses "certified acts of ter- rorism" and/or "other acts of terror- ism", but only with respect to loss or injury or damage from an incident(s) of terrorism (however defined) that occurs on or after the date when the provisions of this endorsement be- come applicable; and (2) Remain applicable unless we notify you of changes in these provisions, in response to federal law. c. If the provisions of this endorsement do NOT become applicable, any terrorism endorsement already endorsed to this policy, that addresses "certified acts of terrorism" and/or "other acts of terror- ism", will continue in effect unless we notify you of changes to that endorse- ment in response to federal law. 2. The following definition is added and applies under this endorsement wherever the term ter- rorism is enclosed in quotation marks. "Terrorism" means activities against persons, organizations or property of any nature: a. That involve the following or preparation for the following: (1) Use or threat of force or violence; or (2) Commission or threat of a dangerous act; or (3) Commission or threat of an act that interferes with or disrupts an electronic, communication, information, or me- chanical system; and b. When one or both of the following applies: (1) (2) The effect is to intimidate or coerce a government or the civilian population or any segment thereof, or to disrupt any segment of the economy; or It appears that the intent is to intimidate or coerce a government, or to further political, ideological, religious, social or economic objectives or to express (or express opposition to) a philosophy or ideology. B. Section I - Property is amended as follows: 1. The following exclusion is added: EXCLUSION OF TERRORISM We will not pay for loss or damage caused di- rectly or indirectly by "terrorism", including ac- tion in hindering or defending against an actual or expected incident of "terrorism". Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. But this exclusion applies only when one or more of the following are attributed to an incident of "terrorism": a. The "terrorism" is carried out by means of the dispersal or application of radioactive material, or through the use of a nuclear weapon or device that involves or produces a nuclear reaction, nuclear radiation or ra- dioactive contamination; or b. Radioactive material is released, and it appears that one purpose of the "terrorism" was to release such material; or c. The "terrorism" is carried out by means of the dispersal or application of pathogenic or poisonous biological or chemical materials; or d. Pathogenic or poisonous biological or chemical materials are released, and it ap- pears that one purpose of the "terrorism" was to release such Materials; or e. The total of insured damage to all types of property in the United States, its territories and possessions, Puerto Rico and Canada exceeds $25,000,000. In determining whether the $25,000,000 threshold is ex- ceeded, we will include all insured damage sustained by property of all persons and en- tities affected by the "terrorism" and busi- ness interruption losses sustained by own- ers or occupants of the damaged property. For the purpose of this provision, insured damage means damage that is covered by any insurance plus damage that would be covered by any insurance but for the appli- cation of any terrorism exclusions. Multiple incidents of "terrorism" which occur within a 72-hour period and appear to be carried out in concert or to have a related purpose or common leadership will be deemed to be one incident, for the purpose of determining whether the threshold is exceeded. Page 2 of 4 © ISO Properties, Inc., 2006 BP 05 64 01 07 ? With respect to this Item 1.e., the immedi- 2. The following exclusion is added: ately preceding paragraph describes the EXCLUSION OF TERRORISM threshold used to measure the magnitude of an incident of "terrorism" and the circum- We will not pay for "any injury or damage" stances in which the threshold will apply, for caused directly or indirectly by "terrorism", in- the purpose of determining whether this cluding action in hindering or defending against Exclusion will apply to that incident. When an actual or expected incident of "terrorism". the Exclusion applies to an incident of "ter- "Any injury or damage" is excluded regardless rorism", there is no coverage under this of any other cause or event that contributes Coverage Form. concurrently or in any sequence to such injury 2. Exception Covering Certain Fire Losses or damage. But this exclusion applies only when one or more of the following are at- The following exception to the Exclusion Of tributed to an incident of "terrorism": Terrorism applies only if indicated and as indi- a. The "terrorism" is carried out by means of cated in the Schedule of this endorsement. the dispersal or application of radioactive If "terrorism" results in fire, we will pay for the material, or through the use of a nuclear loss or damage caused by that fire, subject to weapon or device that involves or produces all applicable policy provisions including the a nuclear reaction, nuclear radiation or ra- Limit of Insurance on the affected property. dioactive contamination; or Such coverage for fire applies only to direct b. Radioactive material is released and it loss or damage by fire to Covered Property. Therefore, for example the coverage does not , appears that one purpose of the "terrorism" , apply to insurance provided under Business was to release such material; or Income and/or Extra Expense coverages or c. The "terrorism" is carried out by means of endorsements that apply to those coverages. the dispersal or application of pathogenic or 3. Application Of Other Exclusions poisonous biological or chemical materials; or a. When the Exclusion Of Terrorism applies in accordance with the terms of Paragraph d. Pathogenic or poisonous biological or 1.a. or 1.b., such exclusion applies without chemical materials are released, and it ap- " " regard to the Nuclear Hazard Exclusion in pears that one purpose of the terrorism this Coverage Form. was to release such materials; or b. The terms and limitations of any terrorism e. The total of insured damage to all types of exclusion, or the inapplicability or omission property exceeds $25,000,000. In determin- of a terrorism exclusion, do not serve to ing whether the $25,000,000 threshold is exceeded we will include all insured dam- create coverage for any loss or damage which would otherwise be excluded under , age sustained by property of all persons this Coverage Form as losses excluded by and entities affected by the Hterrorism and the Nuclear Hazard Exclusion or the War business interruption losses sustained by And Military Action Exclusion. owners or occupants of the damaged prop- erty. For the purpose of this provision, in- C. Section 11 - Liability is amended as follows: sured damage means damage that is cov- 1. The following definition is added and applies ered by any insurance plus damage that under this endorsement wherever the phrase would be covered by any insurance but for any injury or damage, is enclosed in quotation the application of any terrorism exclusions; marks: or "Any injury or damage" means any injury or f. Fifty or more persons sustain death or damage covered under this Coverage Form or serious physical injury. For the purposes of any applicable endorsement, and includes but this provision, serious physical injury is not limited to "bodily injury", "property dam- means: age" or "personal and advertising injury", as (1) Physical injury that involves a substan- may be defined under this Coverage Form or tial risk of death; or any applicable endorsement. (2) Protracted and obvious physical disfig- urement; or BP 05 64 01 07 0 ISO Properties, Inc., 2006 Page 3 of 4 ? Orlu»JOU (3) Protracted loss of or impairment of the function of a bodily member or organ. Multiple incidents of "terrorism" which occur within a 72-hour period and appear to be car- ried out in concert or to have a related purpose or common leadership will be deemed to be one incident, for the purpose of determining whether the thresholds in Paragraph 2.e. or 2.f. are exceeded. With respect to this Exclusion, Paragraphs 2.e. and 2.f. describe the threshold used to meas- ure the magnitude of an incident of "terrorism" and the circumstances in which the threshold will apply, for the purpose of determining whether this Exclusion will apply to that inci- dent. When the Exclusion applies to an inci- dent of "terrorism", there is no coverage under this Coverage Form. In the event of any incident of "terrorism" that is not subject to this Exclusion, coverage does not apply to "any injury or damage" that is oth- erwise excluded under this Coverage Form. Page 4 of 4 © ISO Properties, Inc., 2006 BP 05 64 01 07 ? .D .C _1_ V 7 7 7 0 +,? A POLICY NUMBER: BUSINESSOWNERS BP 05 65 01 07 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CONDITIONAL EXCLUSION OF TERRORISM INVOLVING NUCLEAR, BIOLOGICAL OR CHEMICAL TERRORISM (RELATING TO DISPOSITION OF FEDERAL TERRORISM RISK INSURANCE ACT) This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE The Exception Covering Certain Fire Losses (Paragraph B.2.) applies to property located in the following states : Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section I - Property and Section 11 - Liability (2) A renewal, extension or replacement are amended as follows: of the Program has become effective 1. Applicability Of The Provisions Of This without a requirement to make terror- Endorsement ism coverage available to you and a. The provisions of this endorsement with revisions that: become applicable commencing on the (a) Increase our statuto r g () Pro date when any one or more of the follow- deductible under the ram for e ing first occurs. But if your policy terrorism losses. That d ductible (meaning the policy period in which this determines the amount. of all certi- endorsement applies) begins after such fled terrorism losses we must pay date, then the provisions of this en- date, in a calendar year, before the fed- become applicable on the eral government shares in subse- date your policy begins. date quent of certified terror- (1) The federal Terrorism Risk Insurance ism losses.); losses.); or Program ("Program"), established by (b) Decrease the federal govern- the Terrorism Risk Insurance Act, ment's statutory percentage share has terminated with respect to the in potential terrorism losses type of insurance provided under this above such deductible; or Coverage Form; or (c) Redefine terrorism or make insur- ance coverage for terrorism sub- ject to provisions or requirements that differ from those that apply to other types of events or occur- rences under this policy. BP 05 65 01 07 0 ISO Properties, Inc., 2006 Page 1 of 3 ? bV1Uy55bU / b. If the provisions of this endorsement become applicable, such provisions: (1) Supersede any terrorism endorse- ment already endorsed to this policy that addresses "certified acts of ter- rorism" and/or "other acts of terror- Ism", but only with respect to loss or injury or damage from an incident(s) of terrorism (however defined) that occurs on or after the date when the provisions of this endorsement be- come applicable; and (2) Remain applicable unless we notify you of changes in these provisions, in response to federal law. c. If the provisions of this endorsement do NOT become applicable, any terrorism endorsement already endorsed to this policy, that addresses "certified acts of terrorism" and/or "other acts of terror- ism", will continue in effect unless we notify you of changes to that endorse- ment in response to federal law. 2. The following definition is added and applies under this endorsement wherever the term ter- rorism is enclosed in quotation marks. 'Terrorism" means activities against persons, organizations or property of any nature: a. That involve the following or preparation for the following: (1) Use or threat of force or violence; or (2) Commission or threat of a dangerous act; or (3) Commission or threat of an act that interferes with or disrupts an electronic, communication, information, or me- chanical system; and b. When one or both of the following applies: (1) The effect is to intimidate or coerce a government or the civilian population or any segment thereof, or to disrupt any segment of the economy; or (2) It appears that the intent is to intimidate or coerce a government, or to further political, ideological, religious, social or economic objectives or to express (or express opposition to) a philosophy or ideology. B. Section 1- Property is amended as follows: 1. The following exclusion is added: EXCLUSION OF TERRORISM We will not pay for loss or damage caused di- rectly or indirectly by "terrorism", including ac- tion in hindering or defending against an actual or expected incident of "terrorism". Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. But this exclu- sion applies only when one or more of the following are attributed to an incident of "terrorism": a. The "terrorism" is carried out by means of the dispersal or application of radioactive material, or through the use of a nuclear weapon or device that involves or produces a nuclear reaction, nuclear radiation or ra- dioactive contamination; or b. Radioactive material is released, and it appears that one purpose of the "terrorism" was to release such material; or c. The "terrorism" is carried out by means of the dispersal or application of pathogenic or poisonous biological or chemical materials; or d. Pathogenic or poisonous biological or chemical materials are released, and it ap- pears that one purpose of the "terrorism" was to release such materials. 2. Exception Covering Certain Fire Losses The following exception to the Exclusion Of Terrorism applies only if indicated and as indi- cated in the Schedule of this endorsement. If "terrorism" results in fire, we will pay for the loss or damage caused by that fire, subject to all applicable policy provisions including the Limit of Insurance on the affected property. Such coverage for fire applies only to direct loss or damage by fire to Covered Property. Therefore, for example, the coverage does not apply to insurance provided under Business Income and/or Extra Expense coverages or endorsements that.apply to those coverages. Page 2 of 3 0 ISO Properties, Inc., 2006 BP 05 65 01 07 ? Dr_L V7:.1 DOV / 3. Application Of Other Exclusions a. When the Exclusion Of Terrorism applies in accordance with the terms of Paragraph 1.a. or 1.b., such exclusion applies without regard to the Nuclear Hazard Exclusion in this Coverage Form. b. The terms and limitations of any terrorism exclusion, or the inapplicability or omission of a terrorism exclusion, do not serve to create coverage for any loss or damage which would otherwise be excluded under this Coverage Form, such as losses ex- cluded by the Nuclear Hazard Exclusion or the War And Military Action Exclusion. C. Section II - Liability is amended as follows: 1. The following definition is added and applies under this endorsement wherever the phrase any injury or damage is enclosed in quotation marks: "Any injury or damage" means any injury or damage covered under this Coverage Form or any applicable endorsement, and includes but is not limited to "bodily injury", "property dam- age" or "personal and advertising injury" as may be defined under this Coverage Form. 2. The following exclusion is added: EXCLUSION OF TERRORISM We will not pay for "any injury or damage" caused directly or indirectly by "terrorism", in- cluding action in hindering or defending against an actual or expected incident of "terrorism". "Any injury or damage" is excluded regardless of any other cause or event that contributes concurrently or in any sequence to such injury or damage. But this exclusion applies only when one or more of the following are at- tributed to an incident of "terrorism": a. The "terrorism". is carried out by means of the dispersal or application of radioactive material, or through the use of a nuclear weapon or device that involves or produces a nuclear reaction, nuclear radiation or ra- dioactive contamination; or b. Radioactive material is released, and it appears that one purpose of the "terrorism" was to release such material; or c. The "terrorism" is carried out by means of the dispersal or application of pathogenic or poisonous biological or chemical materials; or d. Pathogenic or poisonous biological or chemical materials are released, and it ap- pears that one purpose of the "terrorism" was to release such materials. In the event of any incident of "terrorism" that is not subject to this Exclusion, coverage does not apply to "any injury or damage" that is oth- erwise excluded under this Coverage Form. BP 05 65 01 07 0 ISO Properties, Inc., 2006 Page 3 of 3 ? .nt11V7DD0V / POLICY NUMBER: BUSINESSOWNERS BP 05 7611 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. LIMITED FUNGI OR BACTERIA COVERAGE This endorsement modifies. insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE* Revised Limit $ Separate Premises Or Locations Option YES ? NO ? If YES, describe the separate remises or locations: Business Income/Extra Expense - Revised number of days *Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Decla- rations. The following provisions apply to Section I - Prop- erty: A. Fungi Or Bacteria Exclusions 1. Paragraph A.51(5) of the Increased Cost Of Construction Additional Coverage is replaced by the following: (5) Under this Additional Coverage, we will not pay for (a) The enforcement of any ordinance or law which requires demolition, re- pair, replacement, reconstruction, remodeling or remediation of prop- erty due to contamination by "pollut- ants" or due to the presence, growth, proliferation, spread or any activity of "fungi", wet or dry rot or bacteria; or (b) Any costs associated with the en- forcement of an ordinance or law which requires any insured or others to test for, monitor, clean up, re- move, contain, treat, detoxify or neu- tralize, or in any way respond to or assess the effects of "pollutants", "fungi", wet or dry rot or bacteria. 2. The following exclusion is added to Paragraph B.I. Exclusions: (i) "Fungi", Wet Rot, Dry Rot And Bacteria Presence, growth, proliferation, spread or any activity of "fungi", wet or dry rot or bac- teria. But if "fungi", wet or dry rot or bacteria re- sult in a "specified cause of loss", we will pay for the loss or damage caused by that "specified cause of loss". This exclusion does not apply: (1) When "fungi", wet or dry rot or bacteria result from fire or lightning; or (2) To the extent that coverage is provided in the Additional Coverage - Limited Coverage For "Fungi", Wet Or Dry Rot and Bacteria (contained in the Limited Fungi or Bacteria Coverage) if any, with respect to loss or damage by a cause of loss other than fire or lightning. BP 05 7611 02 0 ISO Properties, Inc., 2002 Page 1 of 3 ? belUyJSOu 3. Paragraph B.2.1.(2) of the Exclusions is re- (3) Unless a higher limit is selected in placed by the following: Schedule, the coverage described un- (2) Rust or other corrosion, decay, deterio- der this Limited Coverage is limited to ration, hidden or latent defect or any $15,000. If the Schedule indicates that quality in property that causes it to dam- the Separate Premises Or Locations age or destroy itself; Options applies, then the amount of B. Limited Fungi Or Bacteria Coverage coverage is made applicable to sepa- rate premises or locations as described 1. The following Additional Coverage is added in the Schedule. Regardless of the to Paragraph A.S. number of claims, this limit is the most I. Limited Coverage For "Fungi", Wet Rot, we will pay for the total of all loss or Dry Rot And Bacteria damage arising out of all occurrences of "specified causes of loss" (other than (1) The coverage described in Paragraphs fire or lightning) which take place in a B.1.i.(2) and 13.11(6) only applies when 12-month period (starting with the be- the "fungi", wet or dry rot or bacteria are ginning of the present annual policy pe- the result of a "specified cause of loss" riod). With respect to a particular occur- other than fire or lightning that occurs rence of loss which results in "fungi", during the policy period and only if all wet or dry rot or bacteria, we will not pay reasonable means were used to save more than the total of $15,000 unless a and preserve the property from further higher limit is selected in the Schedule damage at the time of and after that oc- even if the "fungi", wet or dry rot or bac- currence. teria continues to be present or active, (2) We will pay for loss or damage by or recurs, in a later policy period. "fungi", wet or dry rot or bacteria. As (4) The coverage provided under this Lim- used in this Limited Coverage, the term ited Coverage does not increase the loss or damage means: applicable Limit of Insurance on any (a) Direct physical loss or damage to Covered Property. If a particular occur- Covered Property caused by "fungi" rence results in loss or damage by , wet or dry rot or bacteria, including "fungi", wet or dry rot or bacteria, and the cost of removal of the "fungi", other loss or damage, we will not pay wet or dry rot or bacteria; more, for the total of all loss or damage, (b) The cost to tear out and replace any than the applicable Limit of Insurance part of the building or other property on the affected Covered Property. as needed to gain access to the If there is covered loss or damage to "fungi", wet or dry rot or bacteria; Covered Property, not caused by and "fungi", wet or dry rot or bacteria, loss (c) The cost of testing performed after payment will not be limited by the terms removal, repair replacement or res- of this Limited Coverage, except to the " " , toration of the damaged property is extent that , wet or dry rot or bac- fungi completed provided there is a rea- teria causes an increase in the loss. Any , son to believe that "fungi" wet or dry such increase in the loss will be subject , rot or bacteria are present. to the terms of this Limited Coverage. Page 2 of 3 0 ISO Properties, Inc., 2002 BP 05 7611 02 ? (5) The terms of this Limited Coverage do b. If a covered suspension of "opera- not increase or reduce the coverage tions" was caused by loss or damage provided under the Water Damage, other than "fungi", wet or dry rot or Other Liquids, Powder Or Molten Mate- bacteria, but remediation of "fungi", rial Damage or Collapse Additional Cov- wet or dry rot or bacteria prolongs erages. the "period of restoration", we will (6) The following applies only if Business pay for loss and/or expense sus- Income and/or Extra Expense Coverage tained during the delay (regardless applies to the described premises and of when such a delay occurs during only if the suspension of "operations" the "period of restoration"), but such satisfies all the terms and conditions of coverage is limited to 30 days unless the applicable Business Income and/or another number of days is indicated Extra Expense Additional Coverage. in the Schedule. The days need not a. If the loss which resulted in "fungi", be consecutive. wet or dry rot or bacteria does not in C. Fungi Definition itself necessitate a suspension of 1. The following definition is added to Paragraph "operations", but such suspension is H. Property Definitions: necessary due to loss or damage to " " "Fungi" means any type or form of fungus in- property caused by fungi , wet or , cluding mold or mildew, and any mycotoxins dry rot or bacteria, then our payment under the Business Income and/or , spores, scents or by-products produced or re- Extra Expense is limited to the leased by fungi. amount of loss and/or expense sus- tained in a period of not more than 30 days unless another number of days is indicated in the Schedule. The days need not be consecutive. BP 05 7611 02 0 ISO Properties, Inc., 2002 Page 3 of 3 ? BUSINESSOWNERS BP 05 7711 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. FUNGI OR BACTERIA EXCLUSION (LIABILITY) This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM The following provisions are added to Section If - (2) Liability: A. The following exclusion is added to Paragraph B.1., Exclusions - Applicable To Business Li- ability Coverage: q. Fungi or Bacteria (1) "Bodily injury", "property damage" or "per- sonal and advertising injury" which would not have occurred, in whole or in part, but for the actual, alleged or threatened inhala- tion of, ingestion of, contact with, exposure to, existence of, or presence of, any "fungi" or bacteria on or within a building or struc- ture, including its contents, regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage. Any loss, cost or expenses arising out of the abating, testing for, monitoring, clean- ing up, removing, containing, treating, de- toxifying, neutralizing, remediating or dis- posing of, or in any way responding to, or assessing the effects of, "fungi" or bacteria, by any insured or by any other person or entity. This exclusion does not apply to any "fungi" or bacteria that are, are on, or are contained in, a good or product intended for consumption. B. The following definition is added Paragraph F. Liability And Medical Expenses Definitions: 1. "Fungi" means any type or form of fungus, including mold or mildew and any mycotoxins, spores, scents or by-products produced or re- leased by fungi. BP 05 7711 02 0 ISO Properties, Inc., 2002 Page 1 of 1 ? IL N 088 09 03 PENNSYLVANIA FRAUD STATEMENT Any person who knowingly and with intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false information, or conceals for the purpose of misleading, information conceming any fact material thereto commits a fraudulent insurance act, which is a crime and subjects such person to criminal and civil penalties. IL N 088 09 03 0 ISO Properties, Inc., 2003 Page 1 of 1 MM 037BP 02 06 EQUIPMENT BREAKDOWN COVERAGE THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EQUIPMENT BREAKDOWN COVERAGE This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM A. The following is added to Paragraph A.3. Covered Causes of Loss in Section I - Property: Additional Coverage-- Equipment Breakdown The term Covered Cause of Loss includes the Additional Coverage Equipment Breakdown as described and limited below. 1. We will pay for direct physical damage to Covered Property that is the direct result of an "accident." As used in this Additional Coverage, "accident" means a fortuitous event that causes direct physical damage to "covered equipment." The event must be one of the following: a. mechanical breakdown, including rupture or bursting caused by centrifugal force; b. artificially generated electrical current, including electric arcing, that disturbs electrical devices, appliances or wires; C. explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control; d. loss or damage to steam boilers, steam pipes, steam engines or steam turbines caused by or resulting from any condition or event inside such equipment; or e. loss or damage to hot water boilers or other water heating equipment caused by or resulting from any condition or event inside such boilers or equipment. 2. The following coverages also apply to the direct result of an "accident." These coverages do not provide additional amounts of insurance. a. Expediting Expenses With respect to your damaged Covered Property, we will pay up to $25,000, the reasonable extra cost to: (1) make temporary repairs; and (2) expedite permanent repairs or permanent replacement. b. Hazardous Substances We will pay for the additional cost to repair or replace Covered Property because of contamination by a "hazardous substance." This includes the additional expenses to clean up or dispose of such property. This does not include contamination of "perishable goods" by refrigerant, including but not limited to ammonia, which is addressed in 2.c.(1)(b) below. As used in this coverage, additional costs mean those beyond what Includes copyrighted material of Insurance Services Office, Inc., with its permission. MM 037BP 02 06 MMG Insurance Company Page I of 5 J3r1VJDD0Ui MM 037BP 02 06 would have been payable under this Equipment Breakdown Coverage had no "hazardous substance" been involved. The most we will pay for loss, damage or expense under this coverage, including actual loss of Business Income you sustain and necessary Extra Expense you incur, is $25,000. C. Spoilage (1) We will pay: (a) for physical damage to "perishable goods" due to spoilage; (b) for physical damage to "perishable goods" due to contamination from the release of refrigerant, including but not limited to ammonia; (c) any necessary expenses you incur to reduce the amount of loss under this coverage to the extent that they do not exceed the amount of loss that otherwise would have been payable under this coverage. (2) If you are unable to replace the "perishable goods" before its anticipated sale, the amount of our payment will be determined on the basis of the sales price of the "perishable goods" at the time of the "accident," less discounts and expenses you otherwise would have had. Otherwise our payment will be determined in accordance with the Loss Payment condition. The most we will pay for loss, damage or expense under this coverage is $25,000. d. Computer Equipment We will pay for loss, damage or expense caused by or resulting from an "accident" to "computers." The most we will pay for loss or damage under this coverage, including actual loss of Business Income you sustain and necessary Extra Expense you incur, is $25,000. Computers used primarily to control or operate "covered equipment" are not subject to this limit. e. Data Restoration We will pay for your reasonable and necessary cost to research, replace and restore the lost information on "electronic media and records." The most we will pay for loss or expense under this coverage, including actual loss of Business Income you sustain and necessary Extra Expense you incur, is $25,000. f. Service Interruption (1) Any insurance provided for Business Income, Extra Expense or Spoilage is extended to apply to your loss, damage or expense caused by an "accident" to equipment that is owned by a utility, landlord or other supplier with whom you have a contract to supply you with any of the following services: electrical power, waste disposal, air conditioning, refrigeration, heating, natural gas, compressed air, water, steam, internet access, telecommunications services, wide area networks or data transmission. The equipment must meet the definition of "covered equipment" except that it is not Covered Property. Includes copyrighted material of Insurance Services Office, Inc., with its permission. MM 037BP 02 06 MMG Insurance Company Page 2 of 5 J & 1 VJ ?-IV V MM 037BP 02 06 (2) Service Interruption coverage will not apply unless the failure or disruption of service exceeds 24 hours immediately following the "accident." B. The following is added to Paragraph B. Exclusions: Equipment Breakdown Exclusions All exclusions in the Businessowners Coverage Form apply except as modified below and to the extent that coverage is specifically provided by this Additional Coverage Equipment Breakdown. 1. The exclusions are modified as follows: a. The following is added to Exclusion B.I.g.: However, if electrical "covered equipment" requires drying out because of Water as described in g.(1) through g.(3) above, we will pay for the direct expenses of such drying out subject to the applicable Limit of Insurance and deductible for Building or Business Personal Property, whichever applies. b. As respects this endorsement only, the next to the last paragraph in Exclusion B. I. h. is deleted and replaced with the following: However, if excluded loss or damage, as described in Paragraph (1) above results in an "accident," we will pay only for the loss, damage or expense caused by such "accident." C. As respects this endorsement only, the last paragraph of Exclusion B.21 is deleted and replaced with the following: But if an excluded cause of loss that is listed in 21(1) through (7) results in an "accident," we will pay for the loss, damage or expense caused by that "accident." d. The following is added to Exclusions B.2.m. and B.2.n: We will also pay for direct physical loss or damage caused by an "accident." 2. We will not pay under this endorsement for loss, damage or expense caused by or resulting from: a. any defect, programming error, programming limitation, computer virus, malicious code; loss of data, loss of access, loss of use, loss of functionality or other condition within or involving "electronic media and records" of any kind. But if an "accident" results, we will pay for the resulting loss, damage or expense; or b.. any of the following tests: a hydrostatic, pneumatic or gas pressure test of any boiler or pressure vessel, or an electrical insulation breakdown test of any type of electrical equipment. 3. With respect to Service Interruption coverage, we will also not pay for: an "accident" caused by or resulting from: fire; lightning; windstorm or hail; explosion (except as specifically provided in A. I. c. above); smoke; aircraft or vehicles; riot or civil commotion; vandalism; sprinkler leakage; falling objects; weight of snow, ice or sleet; freezing; collapse; flood or earth movement. Includes copyrighted material of Insurance Services Office, Inc., with its percussion. MM 037BP 02 06 MMG Insurance Company Page 3 of 5 LJL 1 VJ ??V V MM 037BP 02 06 4. With respect to Business Income, Extra Expense and Service Interruption coverages, we will also not pay for: a. loss caused by your failure to use due diligence and dispatch and all reasonable means to resume business; or b. loss caused by your failure to use due diligence and dispatch and all reasonable means to resume business; or b. any increase in loss resulting from an agreement between you and your customer or supplier. 5. We will not pay for loss, damage or expense caused directly or indirectly by the following, whether or not caused by or resulting from an "accident": Any mold, fungus, mildew or yeast, including any spores or toxins produced by or emanating from such mold, fungus, mildew or yeast. This includes, but is not limited to, costs arising from clean up, removal, or abatement of such mold, fungus, mildew or yeast, spores or toxins. However, this exclusion does not apply to spoilage of personal property that is "perishable goods," to the extent that spoilage is covered under Spoilage coverage. 6. We will not pay under this endorsement for any loss or damage to animals. C. CONDITIONS The following conditions are in addition to the Conditions in the Businessowners Coverage Form. 1. Suspension Whenever "covered equipment" is found to be in, or exposed to, a dangerous condition, any of our representatives may immediately suspend the insurance against loss from an "accident" to that "covered equipment." This can be done by mailing or delivering a written notice of suspension to: a. your last known address; or b. the address where the "covered equipment" is located. Once suspended in this way, your insurance can be reinstated only by an endorsement for that "covered equipment." If we suspend your insurance, you will get a pro rata refund of premium for that "covered equipment" for the period of suspension. But the suspension will be effective even if we have not yet made or offered a refund. 2. Jurisdictional Inspections If any property that is "covered equipment" under this endorsement requires inspection to comply with state or municipal boiler and pressure vessel regulations, we agree to perform such inspection on your behalf. We do not warrant that conditions are safe or healthful. 3. Environmental, Safety and Efficiency Improvements If "covered equipment" requires replacement due to an "accident," we will pay your additional cost to replace with equipment that is better for the environment, safer or more efficient than the equipment being replaced. However, we will not pay more than 125% of what the cost would have been to repair or replace with like kind and quality. This condition does not increase any of the applicable limits. This condition does not apply to any property to which Actual Cash Value applies. Includes copyrighted material of Insurance Services Office, Inc., with its permission. MM 037BP 02 06 MMG Insurance Company Page 4 of 5 D. The following are added to H. Property Definitions: 1. "Covered equipment" a. "Covered equipment" means Covered Property: MM 037BP 02 06 (1) that generates, transmits or utilizes energy, including electronic communications and data processing equipment; or (2) which, during normal usage, operates under vacuum or pressure, other than the weight of its contents. b. None of the following is "covered equipment": (1) structure, foundation, cabinet, compartment or air supported structure or building; (2) insulating or refractory material; (3) sewer piping, underground vessels or piping, or piping forming a part of a sprinkler system; (4) water piping other than boiler feedwater piping, boiler condensate return piping or water piping forming a part of a refrigerating or air conditioning system; (5) "vehicle" or any equipment mounted on a "vehicle"; (6) satellite, spacecraft or any equipment mounted on a satellite or spacecraft; (7) dragline, excavation or construction equipment; or (8) equipment manufactured by you for sale. 2. "Hazardous substance" means any substance that is hazardous to health or has been declared to be hazardous to health by a governmental agency. 3. "One accident" means: If an initial "accident" causes other "accidents," all will be considered "one accident." All "accidents" that are the result of the same event will be considered "one accident." 4. "Perishable goods" means personal property maintained under controlled conditions for its preservation, and susceptible to loss or damage if the controlled conditions change. 5. "Vehicle" means, as respects this endorsement only, any machine or apparatus that is used for transportation or moves under its own power. "Vehicle" includes, but is not limited to, car, truck, bus, trailer, train, aircraft, watercraft, forklift, bulldozer, tractor or harvester. However, any property that is stationary, permanently installed at a covered location and that receives electrical power from an external power source will not be considered a "vehicle." The most we will pay for loss, damage or expense under this endorsement arising from any "one accident" is the applicable Limit of Insurance in the Declarations. Coverage provided under this endorsement does not provide an additional amount of insurance. Includes copyrighted material of Insurance Services Office, Inc., with its permission. MM 037BP 02 06 MMG Insurance Company Page 5 of 5 a-)KivJ.J.JVV MM 051 BP 11-07 THEBUSINESSOWNER VALU-PAK Various provisions in this policy restrict coverage. Read the entire policy carefiilly to determine rights, duties and what is and is not covered. Throughout this polity, the words 'you" and 'yourl' refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the Company providing this insurance. I. COVERAGE We will pay for direct physical loss of or damage to Covered Property described in this Form caused by or resulting from any covered loss, unless the loss is excluded in Section V., Exclusions and Limitations, or elsewhere in this form. Schedule Limit of Insurance A. Accounts Receivable $25,000. on Premises $10,000. off Premises B. Valuable Papers $25,000. on Premises $10,000. off Premises C. Property Off Premises (including transportation) $20,000. D. Property of Others $10,000. E. Fine Arts $10,000. F. Signs $ 5,000. G. Glass $ 5,000. H. Money and Securities $10,000. 1. Employee Dishonesty $10,000. J. Refrigerated Goods Spoilage $15,000. B. Computer & Data Processing $20,000. Hardware $ 5,000. Software L. Business Income from Dependent Properties $10,000. M. Ordinance, Regulation or Law $25,000. N. Ordinance or Law "Increased Period of Restoration" $25,000. 0. Sewer or Drain Back-up $ 5,000. P. Fire Department Service Charge $ 10,000. Q. Lock Replacement $ 2,000. R. Arson Reward $ 10,000. MM 051 BP 11-07 MMG Insurance Company Page 1 of 8 15riU7DDoU i II. DEDUCTIBLE Each loss shall be adjusted separately, and from the amount of such adjusted loss, the sum of $500 (unless otherwise indicated) shall be deducted. III. CONDITIONS A. When not in conflict with the provisions of this form, all of the conditions of the policy to which this form is attached shall apply. B. Unless otherwise specified, if any of the property covered by this form is also covered under any other provisions of the policy of which this form is made a part, you, in the event of loss or damage, may extend the applicable limits provided under this form to those limits provided elsewhere in the policy. C. Valuation. Where not otherwise indicated on this form, we shall not pay beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depredation and shall in no event exceed what it would cost to repair or replace the same with material of like kind and quality. D. The total amount payable in any one occurrence shall not exceed the Limit of Insurance specified on the Schedule of this form, regardless of the nuinber of locations insured. IV. COVERED PROPERTY A. Accoaats Receivable 1. Covers all sums due from your customers, provide that you are unable to collect as the direct result of loss of or damage to records of Accounts Receivable; 2. Covers interest charges on any loan to offset impaired collections, pending repayment of such sums made uncollectible by such loss or damage; 3. Covers collection expense in excess of normal collection costs and made necessary because of such loss or damage; 4. Covers other expenses, when reasonably incurred by you in re-establishing records of accounts receivable following such loss or damage; MM 051 BP 11-07 5. Coverage shall apply both on premises and off premises, subject to the limits shown in the Declarations, it being a condition precedent to any right of recovery hereunder that such records shall be kept in a fire-resistive receptacle at all times when the premises are not open for business, except while such records are in actual use or are being removed to a place of safety because of imminent danger or loss or damage and while being retumed from such place; 6. Recoveries. After payment of loss all amounts recovered by you on accounts receivable for which you have been indemnified shall belong and be paid to us; but all recoveries in excess of the amount we have paid to you shall belong to you; 7. Determination of Receivables: Deductions. When there is proof that a loss covered by this endorsement has occurred, but you cannot accurately establish the total amount of accounts outstanding as of the date of such loss, such amount shall be computed as follows: (a) The monthly average of accounts receivable represented by you and forming part of this policy shall be adjusted in accordance with the percentage increase or decrease in the twelve months average of monthly gross sales of goods and services which may have occurred in the interim; (b) The monthly amount of accounts receivable thus established shall be further adjusted in accordance with any demonstrable variance from that average for the particular month in which the loss occurred, due consideration also being given to the normal fluctuations in the amount of accounts receivable within the fiscal month involved; but in no event shall we pay for more than the maximum monthly amount of accounts receivable represented by you and forming part of this policy, after adjustment to correspond with the trend in average monthly gross sales of goods and services, nor for more than the Limit of Insurance provided herein. There shall be deducted from the total amount of accounts receivable, however established, the amount of such accounts evidenced by records not lost or damaged, or otherwise established or collected by you, and an amount to allow for probable bad debts which would normally have been uncollectible by you. All unearned interests and service charges shall be deducted. MM 051 BP 11-07 MMG Insurance Company Page 2 of 8 MM 051 BP 11-07 A Valuable Papers Declarations for the purpose of display, sale, work, or otherwise in your care or custody. I . Covers cost of research and other expenses necessarily incurred to reproduce, replace, or restore written, printed, or otherwise inscribed documents and records; including books, maps, drawings, abstracts, deeds, mortgages, manuscripts, card index system and other business records, including film, tape, wire, or other recording media, that is your Prolreny. 2. Coverage shall apply both on premises and off premises, subject to the limits shown in the Declarations, it being a condition precedent to any right of recovery hereunder that such records shall be kept in a fire-resistive receptacle at all times when the premises are not open for business, except while such valuable papers and records are in actual use or are being removed to a place of safety because imminent danger of loss or damage, and while being returned from such place. 2. Loss, if any, at our option, may be adjusted with and paid to you for account of whom it may concern, or with and paid directly to the owner of the property to whom you are responsible. E. Fine Arts 1. Covers antiques and objects d'art of every nature and description which is your property, or the property of others for which you may be liable, while on the premises described in the Declarations or while at exhibition or otherwise in your custody. 2. Valuation. We shallnot pay for more than the agreed value of property which is yours as indicated on sales slip or appraisal, nor, in the event of property of others, for more than the value agreed upon prior to loss, otherwise, at actual cash value. 3. Packing. You agree that the property insured 3. Valuable Papers and Records does not mean hereunder shall be packed and unpacked by money or securities. competent and experienced people. C. Property OffPremises 1. Covers your property, or property of others, for which you are responsible or may be liable (excluding money and securities, and property in the care, custody, or control of salespeople) while such property is in due course of transit, or otherwise temporarily away from the premises described in the Declarations. 4. Exhibition. Coverage is not provided on the premises of any National or International Exposition unless such premises are specifically described in an endorsement amending this form. F. Signs Covers any signs while on your premises which are your property or the property of others for which you may be liable. 2. You agree to keep a true record of all shipments of your property, and property of others for which you are responsible. Such records shall be open to inspection by our representatives at all times during business hours. 3. Valuation. Property shipped shall be valued at the invoice amount at the time of shipment. 4. This coverage does not apply to property that is more specifically described in other coverages of this form. D. Properly of Others G. Glass 1. Covers damage to glass at the premises described in the Declarations which is part of or attached to the building, and to the lettering and ornamentation thereon, by breakage of the glass or by chemicals accidentally or maliciously applied. 2. We will pay for. (a) repairing or replacing frames immediately encasing and contiguous to such glass when necessary because of such damage; (b) installing temporary plates in or boarding 1. Covers property of others that you are responsible up openings containing such glass when for while at the premises described in the necessary because of unavoidable delay in repairing or replacing such damaged glass; MM 051 BP 11-07 MMG Insurance Company Page 3 of 8 Dr1VJ JJVV (c) removing or replacing any obstructions, other than window displays, when necessary in replacing such damaged glass, lettering, or ornamentation. 3. We will pay no more than $5,000. in the aggregate for all damage covered under 1 and 2 above which is the result of a single occurrence. H. Money and Securities 1. Covers money and securities used in the conduct of your operations subject to the following conditions: (a) On Premises: while in or on the premises described in the Declarations, or within a bank or savings institution; and (b) Off Premises: while en route to or from such described premises, bank, or savings institution or within the living quarters of the custodian of such funds. 2. You shall keep records of all property in such manner that we can accurately determine therefrom the amount of loss. 3. The most we will pay for loss or damage in any one occurrence is the applicable Limit of Insurance shown on this endorsement but not more than: (a) what it would cost at the time of loss to replace the property with other of like kind and quality, or (b) the actual cash value thereof at the time of loss, provided, however, at your option, payment of the cost of replacing securities may be determined by the market value at the time of such settlement. 4. "Money" means currency, coins, bank notes and bullion; and travelers checks, register checks and money orders held for sale to the public. 5. "Securities" means all negotiable and non- negotiable instruments or contracts representing either money or other property and includes revenue and other stamps in current use, tokens and tickets, but does not include money. MM 051 SP 11-07 L Employee Dishonesty Covers for loss of money, securities and other business personal property by dishonest or fraudulent acts of your employees subject to the following conditions: 1. the most we will pay for loss in any one occurrence is the applicable Limit of Insurance shown on this form but not more than the replacement cost thereof at the time of loss, provided, however, at your option, payment of the cost of replacing securities may be determined by the market value at the time of such settlement; 2. coverage does not apply to any employee immediately upon discovery by you, or any of your partners or officers, of any dishonest or fraudulent act committed by that employee; 3. dishonest or fraudulent acts, or a series of similar or related acts, of any employee acting alone or in collusion with others during the policy period shall be deemed to be one occurrence for the purpose of applying the deductible and the Limit of Insurance; 4. loss is covered only if discovered not later than one year from the end of the policy period, and then this insurance shall apply only to loss sustained during the policy period; 5. if more than one insured is covered under this policy, the most we will pay shall not exceed the amount for which we would pay if there was only one insured; 6. regardless of the number of years this policy shall continue in force, the Limit of Insurance shown in the form shall not be cumulative from year to year. Loss under Prior Bond or Policy. We agree that this coverage applies to loss which would have been recoverable by you or by any predecessor in your interest under a prior bond or policy, except for the fact that the time within which to discover loss there under has expired, provided: 1. coverage is substituted for the prior bond or insurance policy at the time the policy is terminated, cancelled, or allowed to expire; 2. the insurance under this condition shall not increase the Limit of Insurance under Employee Dishonesty coverage; 6. Dishonest or fraudulent acts of any employee 3. such loss would have been covered under this acting alone or in collusion with others is excluded coverage had this coverage, subject to all its under Money and Securities coverage. conditions and limitations at the time of such MM 051 BP 11-07 MMG Insurance Company Page 4 of 8 MM 051 BP 11-07 substitution, been in force when the acts or events causing such loss occurred; and 4. recovery under this coverage shall not exceed the smaller of the following. (a) the amount which would have been recoverable under such prior bond or insurance, had such prior bond or policy continued in force until the discovery of such loss; or time. We will charge you an additional premium for this coverage from the date you acquire the equipment. (b) We will automatically cover scheduled Computer and Data Processing Equipment covered under this form while in transit or temporarily located elsewhere within the 48 contiguous United States of America for a limit up to $20,000. (b) the amount which would have been recoverable under this optional coverage, had this coverage been in force when such acts or events were committed. J. Reftrmted Goods Spoilage 1. Covers direct loss or damage from spoilage to refrigerated and frozen goods located on your premises. 2. Property not covered: a) refrigerated or frozen goods stored in vehicles, b) damage to any refrigeration or heating unit including mechanical parts, gas pipes or lines, motors, glass, etc. K Computer & Data Processing 1. Covers Computer and Data Processing Equipment you own, lease, or rent from others, or are legally responsible for, from any external cause except for property or losses described in the Exclusion Section of this form. 2. "Computer and Data Processing Equipment" means the automatic electronic machinery or related equipment which can convert input information or raw data into usable or storable form, perform calculations or produce data according to a prescribed program. This equipment is generally referred to as "Hardware". 3. It does not include data, media, computer or data processing programs or instructions that operate the equipment, normally referred to as "Software". 4. We agree to automatically extend coverage for the following subject to the Declarations, Conditions, and Endorsements. (a) We will automatically cover newly acquired Computer and Data Processing Equipment for up to $20,000. for sixty (60) days from the date of acquisition while at the premises described in the Declarations. You agree to report to us all newly acquired equipment within sixty (60) days of acquisition or this coverage will cease at the (c) We will cover losses that result when you move property covered under this form to or from and while at a place of safety because of imminent danger of physical loss or damage by a peril insured against. You agree to report to us the moving and location of property covered under this policy within sixty (60) days of removal or coverage will cease at that time. 5. We will provide the following additional benefits to your Computer and Data processing Equipment coverage. These benefits are in addition to the limits of your coverage. (a) We will pay the necessary reasonable expenses that you incur for removing debris of insured property that is damaged or destroyed by a loss covered under this form. (b) We will cover direct physical loss or damage to data, media, or computer programs that you own, or for which you are legally responsible, that are used in your Computer and Data Processing Equipment covered under this form. We will pay up to $5,000. at each location covered under this form and up to $2,500. while in transit to and from each location. (c) We will pay the necessary extra expenses that you incur to continue, as nearly as practicable, the normal operations of your business because of direct physical loss or damage to data, media, computer programs, or equipment covered by a loss under this form. We will cover these expenses for up to $5,000. at each location covered under this form. We will pay the amount you actually lose, but no more. We will pay these expenses from the date of the damage covered under this form for as long as it would reasonably take to repair or replace damaged or destroyed data, media, computer programs or equipment, but no longer. MM 051 BP 11-07 MMG Insurance Company Page 5 of 8 L. Business Income from Dependent Properties We will pay for the actual loss of Business Income you sustain due to the necessary suspension of your "operations" during the "period of restoration." The suspension must be caused by direct physical loss or damage at the premises of a "contingent business property," caused by or resulting from a Covered Cause of Loss. "Contingent Business Property" means property operated by others you depend on to: (a) Deliver materials or services (other than water, communications or power supply) to you, or to others for your account (Contributing Locations); (b) Accept your products or services (Recipient Locations); (c) Manufacture products for delivery to your customers under contract of sale (Manufacturing Locations); (d) Attract customers to your business (Leader Locations). M. Ordinance, Regulation, or Laws 1. If a Covered Cause of Loss occurs to a covered building property, we will pay: for increased costs to repair, rebuild or reconstruct that specific portion of building property damaged by a Covered Cause of Loss and due to the enforcement of any building, zoning, or land-use ordinance, regulation or law. 2. Exclusions. (a) We will not pay for the costs associated with the enforcement of any ordinance, regulation, or law which requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the affects of "pollutants". (b) We will not pay for increased construction costs: 1) until the property is actually repaired or replaced at the same premises or elsewhere; and 2) unless the repairs or replacement are made as soon as reasonably possible after the loss or damage, not to exceed two years. 3. "Pollutants" means any solid, liquid, gaseous, or thermal irritant or contaminant, including but not limited to smoke, vapor, soot, fumes, acids, alkalis, MM 051 SP 11-07 lead products, fuel oil, chemicals, and waste. Waste includes material to be recycled, reconditioned, or reclaimed. 4. The most we will pay for loss in any one occurrence is the applicable Limit of Insurance shown on this form. 5. The terms listed above separately to each covered building to which this coverage applies. N. Ordinance or Law "Increased Period of Restoration" If a Covered Cause of Loss occurs to covered building property at the premises described in the Declarations, Business Income Coverage is extended to include the amount of actual and necessary loss you sustain during the increased period of suspension of "operations" caused by or resulting from the enforcement of an ordinance or law that 1. Regulates the construction or repair of any property; and 2. Is in force at the time of loss. However, coverage is not extended to include loss caused by or resulting from the enforcement of any ordinance or law which requires any Insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the affects of "pollutants," and asbestos whether or not such asbestos is deemed to be a "pollutant". 0. Water Back--up of Sewers or Drains We will pay for direct loss caused by water which backs up through sewers or drains, or water which enters into and overflows from within a sump pump, sump pump well, or other type system designed to remove subsurface water which is drained from the foundation area. This coverage does not apply if the loss is caused by the negligence of any insured. P. Fire Department Service Charge When the Fire Department is called to save or protect Covered Property from a Covered Cause of Loss, we will pay for your liability for fire department service charges; (1) Assumed by contract or agreement (2) Required by local ordinance Q. Lock Replacement MM 051 BP 11-07 MMG Insurance Company Page 6 of 8 MM 051 BP 11-07 We will pay the cost to repair or replace the door locks or tumblers of your described premises due to theft of your door keys. No deductible applies. R. Arson Reward In the event that a covered fire loss was the result of an act of arson, we will pay on your behalf a reward for information leading to an arson conviction. This reward will not be increased, regardless of the number of informants that provide information that leads to a conviction. V. EXCLUSIONS AND LIMITATIONS We will not pay for loss or damage caused by or resulting from any of the following. A. Due to delay, loss of market, or loss of use; B. Occasioned by gradual deterioration,'moths, vermin, or inherent vice; C Caused by, or resulting from, strikes, lockouts, labor disturbances, or the acts of any person or persons taking part in any such disorder, D. From any unexplained loss, mysterious disappearance, or shortage disclosed on taking inventory; E. To any property outside of the continental United States and Canada; overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not; 3) water which backs up through sewers or drains except as indicated under Section IV Covered Property, 0. Water Backup of Sewers or Drains; or 4) water below the surface of the ground including that which exerts pressure on or flows, seeps, or leaks through sidewalks, driveway foundations, walls, basement or other floors; 5) explosion, rupture or bursting of water pipes, steam boilers, steam pipes, steam turbines or steam engines, unless fire or explosion as insured against ensues, and then we shall be liable for only loss caused by the ensuing fire or explosion; I.1 and 2 does not apply to Accounts Receivable, Valuable Papers, and Property Off Premises. J. With regard to Property Off Premises: 1) on shipments which have been refused or which are returned by the consignee thereof; 2) on any shipments by the United States Postal Service. K With regard to Property of Others: 1) to property insured which has been in your custody for a period in excess of six months except as may be otherwise specifically provided; 2) to motor vehicles. L. With regard to Fine Arts: sustained due to and resulting from any repairing, restoration or retouching process. M. With regard to Money and Securities: due to (a) the giving or surrendering of money and securities in any exchange or purchase or (b) accounting or arithmetical errors or omissions; F. 1) Due to bookkeeping, accounting, billing errors or omissions, or loss directly resulting from errors or omissions in processing or copying unless fire or explosion ensues, and then only for direct loss caused by such ensuing fire or explosion; 2) due to electrical or magnetic injury, disturbance, or erasure of electronic processing or recording, except by lightning; G. Due to any fraudulent, dishonest, or criminal act by you, any partner, or otherwise any officer, or director or trustee thereof while working or otherwise, and whether acting alone or in collusion with others; H. Voluntary parting with any property by you or anyone else to whom you have entrusted the property if induced to do so by any fraudulent scheme, trick, device, or false pretense. L Loss caused by, resulting from, contributed to or aggravated by any of the following. 1) earth movement, including but not limited to earthquake, volcanic eruption, landslide, mud flow, earth sinking, earth rising or sinking; 2) flood, surface water, waves, tidal water or tidal wave, N. With regard to Refrigerated Goods Spoilage coverage: 1) the disconnecting of any refrigeration units from the source of electrical power or terminating of electrical power caused by throwing or turning off any switch or other device (on premises) usual to the shutting off of electrical current or electrical power, 2) the inability of a power source at the described premises to provide sufficient power due to lack of generating capacity to meet demand; 3) insufficient fuel or complete lack of fuel used in the normal operation of the heating unit. 0. War and Military Action. 1) War, including undeclared or civil war, 2) Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign, or other authority using military personnel or other agents; or 3) Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these. A Nuclear Hazard. Nuclear reaction or radiation, or radioactive contamination, however caused. MM 051 BP 11-07 MMG Insurance Company Page 7 of 8 BP1U9bbbU'/ But if loss or damage by fire results, we will pay for that resulting loss or damage. Nothing herein centaixed shall be held to vary, alter, wave, or extend any of the terns, conditions, ag rements, or 1uxitations of the PoGiy other than as above stated This form must be attached to change endorsement when weed after the pohsy is written. MM 051 BP 11-07 MM 051 BP 11-07 MMG Insurance Company Page 8 of 8 ZMHC 01 PA 1106 NOTICE OF MEMBERSHIP IN MAINE MUTUAL GROUP AND NOTICE OF ANNUAL MEETING By virtue of this policy, the Insured is a Member of Maine Mutual Group, a mutual holding company of MMG Insurance Company, and is entitled to vote either in person or by proxy at any and all meetings of Maine Mutual Group. The annual meeting of Maine Mutual Group is held at the Home Office of MMG Insurance Company, Presque Isle, Maine, on the second Wednesday of April in each year at 10:00 o'clock A.M., local time. The By-laws of Maine Mutual Group establish procedures for business to be properly brought before an annual or special meeting by a Member, including timely notice thereof by a Member to the Clerk of the Corporation not less than 120 days prior to the meeting. The By-laws also contain provisions for nominations by Members for elections to the Board of Maine Mutual Group, which require a petition signed by voting Members to be filed with the Secretary of the Corporation not later than 120 days before the date of the annual meeting at which the persons nominated are to be voted upon. The By-laws set forth additional procedures regarding proper business at meetings and nominations to the Board by Members. Copies of the By-laws of the Corporation may be obtained by voting Members on written request to the Secretary of the Corporation. Larry M. Shaw, President and CEO Michael M Young, CFO ZMHC 01 PA 1106 Maine Mutuat Group Page 1 of 1 POLICY NUMBER: BUSINESSOWNERS BP 04 02 07 02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - MANAGERS OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SCHEDULE* Designation Of Premises (Part Leased To You): Name Of Person Or Organization (Additional Insured): Additional Premium: *Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Decla- rations. A. The following is added to Paragraph C. Who Is An Insured in Section 11- Liability: 4. The person or organization shown in the Schedule is also an insured, but only with re- spect to liability arising out of the ownership, maintenance or use of that part of the prem- ises leased to you and shown in the Sched- ule. B. The following exclusions are added to Section 11 - Liability: This insurance does not apply to: 1. Any "occurrence" that takes place after you cease to be a tenant in the premises de- scribed in the Schedule. 2. Structural alterations, new construction or demolition operations performed by or for the person or organization designated in the Schedule. BP 04 02 07 02 © ISO Properties, Inc., 2001 Page 1 of 1 ? MMG INSURANCE COMPANY Presque Isle, Maine Po: !y No. BP10955607 Po: :y Period (ANNUAL) 10, :/2008 To 10/24/2009 SPECIAL BUSINESS OWNERS POLICY DECLARATIONS Policy Type Direct Bill NEW 12:01 A.M. Eastern Standard Time aped Insured 0469694 HI 'DEN DINER LLC 34 SIMPSON FERRY RD C2 ' HILL PA 17011-6404 Agent 002 37 717-652-4902 ENDERS INSURANCE ASSOCIATES 5912 LINGLESTOWN RD PO BOX 6118 HARRISBURG PA 17112-0118 SCHEDULE OF ENDORSEMENT ADDITIONAL INFORMATION BF Def 34? Nan KUP 81] .k& 02 (07-02) Additional Insured(s) Mation of Premises (Part Leased to You): SIMPSON FERRY RD CAMP HILL, PA 17011 of Person or Organization (Additional Insured): FANG CHENG ;OWMAN ST LEBANON, PA 17046 Tonal Premium:16 )RIB I NAL COPY Page 3 of 3 M MMG INSURANCE P. n9 your pi? of =^m -1d MMG Insurance Company Privacy Policy Notice Title V of the Gramm-Leach-Bliley Act (GLBA) and federal and state laws place some limitations on how we may share nonpublic personal information we receive or obtain about you with a third party and in certain instances require that we provide you with this notice of our privacy policies and practices. In compliance with the GLBA and the laws of this State, we are providing you with this Privacy Policy Notice, which notifies you of the privacy policies and practices of MMG Insurance Company. At MMG Insurance Company, maintaining the confidentiality of our customers' nonpublic personal information is of the highest importance. MMG Insurance Company does not disclose any nonpublic personal information to any affiliated or nonaffiliated third party for marketing purposes. OUR PRIVACY POLICIES AND PRACTICES 1. Information We Collect: We collect nonpublic personal information about you from the following sources: • Information from you on applications or other forms such as your name, address, phone number, driver's license number, Social Security number, date of birth, gender, marital status, type of vehicle, information from property inspections, etc; • Information about your transactions with us, our affiliates or others including your insurance coverage, limits and rates, payment and claims history, and billing and payment information ; and • Information from consumer reporting agencies, such as motor vehicle reports, claim reports and consumer credit information where permitted by law. • Information gathered when you visit our public websites which is unique to Internet transactions between you and MMG Insurance Company as explained further under "If you are an Internet User", described below. 2. Information We May Disclose to Third Parties: MMG Insurance Company will not disclose information about you to others without your written consent unless the disclosure is necessary to conduct our business. We may disclose nonpublic personal information about you to third parties as permitted by law. In the course of our general business practices, we may disclose the nonpublic personal information that we collect (as described above) about you without your permission to the following types of institutions for the reasons described: • To a third party such as your agent if the disclosure will enable that party to perform a business, professional or insurance function for us or administer transactions as requested or authorized by you; • To another insurance company, insurance support organization, agent, or credit reporting agency in order to detect or prevent criminal activity, fraud or misrepresentation in connection with an insurance transaction; • To another insurance company, agent, reinsurance company or credit reporting agency to enable this Company or the entity to whom we disclose the information to perform a function in connection with an insurance transaction involving you; • To a medical care institution or medical professional in order to verify coverage or conduct an audit that would enable us to verify treatment; • To a state insurance department in connection with the regulation of our business; • To a state insurance department, law enforcement authority, or other governmental authority in order to protect our interests in preventing or prosecuting fraud or other illegal policyholder activities; • To claims adjusters, appraisers, investigators and attorneys who need the information to investigate, defend or settle a claim involving you; • In response to an administrative or judicial order such as a subpoena or search warrant, or otherwise as required or permitted by law, • To a lien-holder, mortgagee, assignee, lessor, or other person shown on our records or our agent's records as having a legal or beneficial interest in a policy of insurance; • To an actuarial or research organization for the purpose of conducting actuarial or research studies. 3. Access To and Correction of Your Personal Information: You may request access to the personal information that we record about you. Upon proper request, we will inform you of the nature and substance of the recorded personal information, the identity of any institutional source from which we obtained the information, and the identity of any persons to whom we have disclosed such information within 2 years prior to your request. You may view such information and copy it in person, or request that a copy of it be sent to you by mail (for which we may charge you a reasonable fee to cover our costs). You may also request corrections, amendments, or deletions of any information in our possession. The procedures that you must follow to request access to or an amendment of your information are as follows: To obtain access to your information: You should submit a request in writing to Privacy Coordinator, MMG Insurance Company, P.O. Box 729, Presque Isle, ME 04769-0729. The request should include your name, address, social security number, telephone number, and the recorded information to which you would like access. The request should state whether you would like access in person or a copy of the information sent to you by mail. Upon receipt of your request, we will contact you within 30 business days to arrange providing you with access in person or the copies that you have requested. Certain types of information generally collected when evaluating claims or possible lawsuits need not be disclosed to you. To correct amend. or delete any of your information: You should submit a request in writing to Privacy Coordinator NIMG Insurance Company, P.O. Box 729, Presque Isle, ME 04769-0729. The request should include your name, address, social security number, telephone number, the specific information in dispute, and the identity of document or record that contains the disputed information. Upon receipt of your request, we will contact you within 30 business days to notify you either that we have made the correction, amendment or deletion, or that we refuse to do so and the reasons for the refusal. In the event that we do not make the requested change, you will be permitted to file a concise statement setting forth what you think is correct, and this statement will become a part of your recorded information so that anyone reviewing the information will be made aware of your statement. 4. Our Practices Regarding Information Confidentiality And Security: We restrict access to nonpublic personal information about you to those employees who need to know that information in order to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. We educate our employees so that they will understand the importance of confidentiality of nonpublic personal information and administer our Company work rules accordingly to enforce these important privacy rules. 5. H You Are An Internet User. To better serve you, our public website, hbtp://www.nua-cm.com/ provides information about MMG Insurance Company, our products, and the agencies that represent us as well as a link to our secured MyMMG website (httpsJ/my.mmgins.com/) where you can transact certain business online.. When accessing our MyMMG. secured website, you will be required to read and accept the terms of our Use Policy that appears there. In addition to the information contained in this Important Notice, our Online Privacy and Security Policy provides important information relating to your use of our web sites, including, for example, information regarding: 1) our use of "cookies", 2) our use of your e-mail address with your approval, and 3) your ability to access and correct your personal information . This Policy also contains important information you should consider regarding the degree of security of information transmitted over the Internet. 6. Change of Policy. We reserve the right to change our information practices at any time, but before doing so, we will provide you with a notice of any material changes in our information practices which would adversely affect your privacy rights relative to sharing your nonpublic personal information with nonaffiliated third parties other than as described under Information We Disclose To Third Parties above. We hope you have found this notice helpful. If you have any questions or would like more information, please do not hesitate to contact your MMG Insurance Company agent, or visit http://www.mmgm.com/. MMG Privacy Notice 03.07.07 2 BPIU9!)bbU,/ AA 00 13 12 2007 POLICYHOLDER DISCLOSURE TERRORISM INSURANCE COVERAGE ACT Coverage for acts of terrorism is included in your policy. You are hereby notified that under the Terrorism Risk Insurance Act, as amended in 2007, the definition of act of terrorism has changed. As defined in Section 102 (1) of the Act: The term "act of terrorism" means any act that is certified by the Secretary of the Treasury - in concurrence with the Secretary of State, and the Attorney General of the United States - to be an act of terrorism; to be a violent act or an act that is dangerous to human life, property, or infrastructure; to have resulted in damage within the United States, or outside the United Sates in the case of certain air carriers or vessels or the premises of a United States mission; and to have been committed by an individual or individuals as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. Under your coverage, any losses resulting from certified acts of terrorism may be partially reimbursed by the United States Government under a formula established by the Terrorism Risk Insurance Act, as amended. However, your policy may contain other exclusion which might affect your coverage such as an exclusion for nuclear events. Under the formula, the United States Government generally reimburses 85% of covered terrorism losses exceeding the statutorily established deductible paid by the insurance company providing the coverage. The Terrorism Risk Insurance Act, as amended, contains a $100 billion cap that limits U.S. Government reimbursement as well as insurers' liability for losses resulting from certified acts of terrorism when the amount of such losses exceeds $100 billion in any one calendar year. If the aggregate insured losses for all insurers exceed $100 billion, your coverage may be reduced. The coverage provided by your policy for certified acts of terrorism (like all coverages) is limited by the terms, conditions, exclusions, limits and other provisions of your policy. You will not be required to pay a premium for coverage for certified acts of terrorism at this time. If, upon renewal of your policy, a premium is going to be charged for such terrorism coverage, we will provide you with notification of what that premium will be. Nothing in this notice should be construed as an offer to reinstate coverage for a cancelled/expired policy. AA 00 13 12 2007 MMG Insurance Company Page 1 of 1 THOMAS, THOMAS &HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 km cnamara@tth law. com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, Plaintiff v. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants 20lQfi~~~ -~ ~~- I~ ~i? ,a , u~: r r '; a,~-* IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED DEFENDANT MMG INSURANCE COMPANY'S PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Based upon the filing of an Amended Complaint, the Preliminary Objections in the above-referenced matter are moot and should be withdrawn. Please remove this matter from the Court's Argument List of May 12, 2010. Respectfully submitted, THOMA ,THOMAS &HAFER, LLP C ~~l By: Kevin C. McNamara, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant MMG Insurance Company DATE: S~`~~! ~ 807899-1 r CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the Y'- United States mail, postage prepaid, on the ~ day of ~~ 2010: Richard A. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: ~ e- -~ ~ cwv~d~ Kevin C. McNamara, Esquire 807899-1 TAREK ELTANBDAWY, Plaintiff vs. MMG INSURANCE COMPANY, RESTORECORE, Inc. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0. 10-2015 Civil CIVIL ACTION -LAW JURY TRIAL DEMANDED DEFENDANT, KUAN FANG CHENG'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT ~ ~ ,"-, ..~- :~. ~ -„ r._ =~ ~ ..- 3 .~ `-~~' .r ~~' .,-; ~ r ~-a~ c.> .. C'~ ~ -.~ =-c AND NOW COMES, the Defendant, KUAN FANG CHENG, by his attorneys, Christianson Meyer, in response to the Amended Complaint and respectfully alleges as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. It is admitted that Exhibit "A" is a Lease. 7. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereof. 8. Admitted. -~- 9. Denied. Defendant has no knowledge of any new kitchen equipment being installed. 10. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereof. 11. Denied. It is contrarily alleged that no warranties were given other than what might have been included in any written document. 12. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereof. Answering Defendant has no knowledge of any malfunctions in the system. 13. Requires no answer on behalf of the Answering Defendant. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereof. 14. Requires no answer on behalf of the Answering Defendant. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereof. 15. Requires no answer on behalf of the Answering Defendant. 16. Requires no answer on behalf of the Answering Defendant. 17. Requires no answer on behalf of the Answering Defendant. 18. Requires no answer on behalf of the Answering Defendant. 19. Requires no answer on behalf of the Answering Defendant. -2- 20. Requires no answer on behalf of the Answering Defendant. 21. Answering Defendant has no knowledge nor was he informed of what repairs, if any, were being made to the premises. 22. Requires no answer on behalf of the Answering Defendant. 23. Requires no answer on behalf of the Answering Defendant. 24. Denied. Defendant Cheng had no knowledge of any action that was being taken by the Plaintiff or any other Defendants and received no income from the premises and reasonably assumed that the Plaintiff had abandoned the property. 25. Admitted. It is admitted that Defendant Cheng locked the restaurant because he has not received rent and assumed that the property had been abandoned. 26. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereof. It is denied, however, that any action on behalf of Defendant Cheng caused any medical problems or any stress or depression. 27. Upon reasonable investigation, the truth of the allegation cannot be ascertained and proof is demanded thereof. It is denied, however, that any actions on behalf of Defendant Cheng caused any damage to the Plaintiff. WHEREFORE, Answering Defendant, Kuan Fang Cheng, requests that this Amended Complaint be dismissed. -3- COUNT III Tarek Eltanbawy v. Kuan Fan_ Cheng In Assumpsit 35. The Answers to previous paragraphs 1 through 27 are incorporated herein by reference. 36. To the best of Answering Defendant's knowledge, the operating systems were in good condition. 37. Denied. If there was any damage done to the premises, it was the result of the Plaintiff's failure to maintain the property. 38. Denied. It is denied and on the contrary alleged that Answering Defendant Cheng reasonably assumed that the property had been abandoned by the Plaintiff. WHEREFORE, Answering Defendant, Kuan Fang Cheng requests that this Amended Complaint be dismissed. COUNT V Tarek Eltanbawy v Kuan Fang Cheng In Trespass 39. The Answers to previous paragraphs 1 through 27 and 35 through 38 are incorporated herein by reference. -4- 40. Denied. It is denied that any actions taken by Answering Defendant Cheng were in violation of the Laws of the Commonwealth of Pennsylvania. 41. Denied. It is denied that any actions of Answering Defendant Cheng caused mental distress to the Plaintiff. WHEREFORE, Answering Defendant, Kuan Fang Cheng requests that this Amended Complaint be dismissed. Geor~E. Christianson, ID # 06310 Christianson Meyer 411 Chestnut Street Lebanon, Pennsylvania 17042 (717) 273-1651 Attorneys for Answering Defendant, Kuan Fang Cheng -5- AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF LEBANON ) GEORGE E. CHRISTIANSON, Attorney for KUAN FANG CHENG, the Answering Defendant herein, being duly sworn according to law, deposes and says that the facts set forth in the foregoing DEFENDANT, KUAN FANG CHENG'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT are true and correct to the best of his knowledge and information. George E. Christianson Sworn and subscrib~ to before me this _%~ day of - ~_, 2010. '~J~J~~ t~~~ Notary Public NOTARIAL SEAL t3AR8ARA ANN FOSTER, Notary Pubtic City of Lebanon, Lebanon County. PA Commission Expires April 2, 2413 CERTIFICATE OF SERVICE I, BARBARA A. FOSTER, an employee of the law firm of CHRISTIANSON MEYER, of 411 Chestnut Street, Lebanon, Pennsylvania, do hereby certify that I served a true and correct copy of the within DEFENDANT, KUAN FANG CHENG'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT by United States First Class Mail, Postage Paid, on May 12, 2010, addressed to the following: Richard H. Wix, Esquire Wix, Wenger & Weidner 4705 Duke Street Harrisburg, Pennsylvania 17109-3041 Attorney for Plaintiff Kevin C. McNamara, Esquire Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, Pennsylvania 17108-0999 Rolf E. Kroll, Esquire Margolis Edelstein 3150 Trindle Road Camp Hill, Pennsylvania 17011 ~'' ,i" ,~' 4 , ~ Barbara A. Foster FILLU-~ , ,:, ZQ I O ~~ `r` f 8 P~ 3: ;~ ~ TAREK ELTANBDAWY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. MMG INSURANCE COMPANY, RESTORECORE, Inc. and KUAN FANG CHENG, Defendants NO. 10-2015 Civil CIVIL ACTION -LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4099.22, Plaintiff certifies that: (1) A notice of intent to serve a 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 subpoenas are sought to be served, (2) a copy of the notice of intent, including the proposed subpoenas, is attached to this certificate, (3) no objection to the subpoena has been received, (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Respectfully submitted, WIX, WENGER & WEIDNER Richard H. Wix, Esq., ID #07274 Attorneys for Plaintiff 4705 Duke Street Harrisburg, PA 17109-3099 (717) 652-8455 Dated: 5/17/2010 CERTIFICATE OF SERVICE AND NOW, this 17th day of May, 2010, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiff hereby certify that I served the within Certificate Prerequisite to Service of a Subpoena this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kevin C. McNamara, Esq. Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108 Rolf E. Kroll, Esq. Margolis Edelstein 3610 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esq. Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 WIX, WENGER & WEIDNER C11~ Gaye Cri t TAREK ELTANBDAWY, Plaintiff v. MMG INSURANCE COMPANY, RESTORECORE, Inc. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 Civil CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 To: MMG Insurance Company c/o Kevin C. McNamara, Esq., attorney for Defendant Plaintiff 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 no objection is made, the subpoena may be served. Respectfully submitted, WIX, WENGER & WEIDNER By (~~~ ~ . ~,c Richard H. Wix, Esq., ID# 07274 Attorneys for Plaintiff 4705 Duke Street Harrisburg, PA 17109-3099 (717) 652-8455 Dated: 4/22/2010 CERTIFICATE OF SERVICE AND NOW, this 22nd day of April, 2010, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiff hereby certify that I served the within Notice of Intent to Serve Subpoenas this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kevin C. McNamara, Esq. Thomas, Thomas 8~ Hafer P.O. Box 999 Harrisburg, PA 17108-0999 Rolf E. Kroll, Esq. Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esq. Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 WIX, WENGER & WEIDNER Gaye Cris COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Tarek Eltanbdawy, Plaintiff : v. MMG Insurance Company, RestoreCore, Inc., File No. 10-2015 Civil Kuan Fang Cheng, ' Defendants SUBPOENATO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Arthur Reeher Company, Inc., P.O. Box 6215, Harrisburg, PA 17112 (Name of Person or Entity) Within hventy (20) days after service of .this subpoena, you are ordered by the court to produce the following documents or things: The complete file, including, but not limited to, correspohdence, notes, e-mails and any other documents relating to Hampden Diner for MMG Insurance Co., your file number H00522. at Wix, Wenger & Weidner, 4705 Duke Street,'°Harrisburg, PA 17109-3041 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together vrith 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 vrith it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOVI~ING PERSON: Name Richard H. Wix, Esq. Address: 4705 Duke Street Harrisburg, PA 17109-3041 Telephone: (717) 652-8455 Supreme Court ID ~ 07274 Attorney For: Plaintiff BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of the Court Deputy FLAG -;;'.;.,:: ;:;rry t~ r~r ~r f7' ^ - ~~~4;t'`.. tr TF",C. ~ . ,; Y THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 2Q1~ J~~ ~7 PM 1 ~ 27 Kevin C. McNamara, Esquire Attorney LD. 72668 717-237-7132 Attorneys for Defendants TAREK ELTANBDAWY, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants NO. 10-2015 CIVIL TERM JURY TRIAL DF,MANDED CERTIEICAT`E PREREOUISTTE TO SERVICE OF SUBPOENAS PURSI)AI~TT TO RULE 48A9ZZ As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. Plaintiff does not object to the subpoenas and waives the Notice of Intent to Service Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21; 2. A copy of a letter dated July 23, 2010, and executed by Plaintiff s counsel, Richard H. Wix, Esquire, indicating no objections and waiver of the notice of intent is attached to this Certificate; 3. A copy of the proposed subpoena is attached to this certificate; and 4. The subpoena which will be served is identical to the subpoena which is attached to this certificate. THOMAS, THOMAS & HAFER, LLP Date: 1 Z (~ G C~ 1/. _ i/1... , Kevin C. McNamar Esquire I.D. Number: 72668 305 N. Front Street Post Office Box 999 Harrisburg, PA 17108 (717) 237-7132 836157.1 0712612010 09:37 ?176526290 WIXWENGERWEIDNER PAGE 03'03 - _ -... THQM.AS ~ ~-~~. - - - F:G:~I,1,1> r r , _ ----....,_ Flnr,r„c~ .. -- - AI I,.~w. $arcct Addrecc; 305 Ncnt.h Frrna1 Street. Harrisburg, fA 1?101 Muffing Addreas: P.O. Liox ~a5'g, Han-isiimT., PA 171(F$ Plmnc: 717,237.71(x1 fix: 717..37.7105 Kcvira C. McNuaTrara (i17) 237-?13J. lcnacaaaaaaara[ci?tthlmn ~. cnna ,Tuly 23, 2010 Richard 11. Wix, Esq>.ure WiX, W]NG)CR ~ VN)EIDN)GR, PC 4705 Duke Street Harrisburg, .PA 171.09-3041 .1Fe: T•arek .~'lta~abdawV v. 14~MG.irnsurance Cnnapax~v, et al Ctu~nberland County C.C.P_ No. 10-2015 Our file No. Ci53.0{)fi04 Dear Attorney Wix: l;nclosed please find a lriotice of intent to Serve Subpoena to Ha,a~~pder~ Tnvvnsl~ip, pursuant to Ttule 4009-21._ .l.fyou Have r~o objection to the suhpoez~aing oFthese records and are wil.l.ing to waive the 20-day notice pcrio<i. plca.sc sign. v~al.~cre ind.icatcd axxd rciuxn a copy oI'this later to me at: your earl ies1: conv~3icncc. Thank you. 'For ycsua' attention to this matter, /r1s:83542?.1 Enclosure cc: Rolf E. Kroll, Esquire (w/encl. j (-ieorge E- Christenson, Esquire (w/~;nc1.) Very truly yours, THOMAS, THOMAS ~ HA~+)GR, lu)u)P By: Ricl: Stains, .Tr., Pp.rA.l.egA1 to Is.c~vin C. McNamara I, Wjti i c.~~~,~~ __(-f . ~ i }s ,Esquire, co~uisei for Plaintiff have no objection to the serving of the subpoenas identified irz the attached Notice c>'f Intent and hereby waive the 2(?-day notice period. Counsel for Defendant shall provide tn~: with copies of all records they obtain l~ursuarFt: to these subpoenas. Date. ?/~~~C~ -~ - Qaltlmore U'ethl°hem -~ Harrisburg Philadelphia Pil,l.:b~r~i Wilkes-A~rre www.trhiaw,ecsin TAREK ELTANBDAWY". Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. 10-2015 v. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUALA FANG CHENG, CIVIL TERM JURY TRIAL DEMANDED Defendants NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant, MMG Insurance Company, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed belov,~ in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena maybe served. Date: 7~,2 3 ~ tc~ THOMAS, THOMAS & IIAFER, LLP Kevin C. McNamara Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attor°nc~~ for Defendant MMG bzsurance Cot~~panv £335420.1 TAREK ELTANBDAWY, Plaintiff v. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Hampden Township, 230 S. Sporting Hill Road, Mechanicsburg, PA 17050. (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: Any and all records with respect to the property located at 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, including, but not limited to, building permits, applications for approval, building inspection reports, complaints, building and code violations, maintenance issues, public health or public safety issues from 2005 to the Present. In particular, any and all investigative materials relative to the closure of the Hampden Diner on March 4, 2009. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 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: Kevin C. McNamara Espuire ADDRESS_305 N. Front Street, P. O. Box 999 Harrisburg, PA 17108 TELEPHONE: (717) 237-7132 SUPREME COURT ID No: 72668 ATTORNEY FOR: Defendant -MMG InSUranCe CO. DATE: Seal of the Court ProthonotarylClerk, Civil Division Deputy 835411.1 CERTIFICATE OF SERVICE I, Rick Stains, Jr., Paralegal for the law firm Thomas, Thomas, Thomas & Hafer, LLP. hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Richard A. Wix, Esquire WIC, VVENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411. Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By:_ Rick Stains, Jr., Paralegal o Kevin. C. McNamara Date: ~~ 23~/v 835420.1 CERTIFICATE OF SERVICE I, Rick Stains, Jr., a Paralegal for the law firm Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the date set forth below: Richard H. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: Rick Stains, Jr., Paralegal to Kevin C. McNamara Date: ~?.~lv 836157.1 OF ECN',' C TAPY 10 ?.U! Gj 30 PM 3.00 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg. PA 17108 Kevin C. McNamara, Esquire Attornev I.D. 72668 CUMPs 717-237-7132 Defers ants TU'?lvv,VAN? Attorneys for Defendants TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENAS PURSUANT TO RULE 4409.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. A Notice of Intent to Serve the Subpoenas with a copy of the Subpoenas attached thereto was mailed to each party at least twenty (20) days prior to the date on which the Subpoenas are sought to be served. 2. A copy of the Notice of Intent including the proposed Subpoenas are attached to this Certificate. 3. No objection to the Subpoenas has been received. 4. The Subpoenas which will be served are identical to the Subpoenas which are attached to the Notice of Intent. THOMAS, THOMAS & HAFER, LLP Date: _ ?i'- Z (o - t c) xe' ?_ C-?' _ Kevin C. McNamara, Esquire I.D. Number: 72668 305 N. Front Street Post Office Box 999 Harrisburg, PA 17108 (717) 237-7132 836157.2 TAREK ELTANBDAWY. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. 10-2015 V. MMG INSURANCE COMPANY RESTORECORE. INC. and KUALA FANG CHENG. CIVIL TERM JURY TRIAL DEMANDED Defendants NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant. MMG Insurance Company, intends to sen,,e 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. I;` no objection is made, the subpoena may be served. Date: S ) S/r v THOMAS, THOMAS & HAFER, LLP B y: Kevin C. McNamara Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg. PA 17108-0999 (717) ?37-7132 Attorn.ci> for- Dekndant MMG L2surancc Compar71' 8354202 TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Department of Revenue, Lobby, Strawberry Square, Fourth and Walnut Streets, Harrisburg, PA 17128. (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: Any and all tax records including, but not limited to, quarterly sales tax reports and sales tax payments made and/or owed by Hampden Diner, 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, and/or the owners thereof, from Auqust 1, 2008 to September 1, 2009. at THOMAS. THOMAS 8, HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 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: Kevin C. McNamara, Esquire ADDRESS 305 N. Front Street P. O. Box 999 Harrisburg. PA 17108 TELEPHONE (717) 237-7132 SUPREME COURT ID No: 72668 ATTORNEY FOR Defendant - MMG Insurance Co. DATE: Seal of the Court Prothonotary/Clerk. Civil Division Deputy 835411.2 CERTIFICATE OF SERVICE 1. Rick Stains. Jr., Paralegal for the law firm Thomas, Thomas. Thomas & Hafer. LLP, herebv certify that 1 have served a true and correct copy of the foregoing document on the following persons by placing; a copy of the same in the United States mail.. first class mail, directed to their office addresses as follows: Richard A. Wia, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: ??. Rick Stains, Jr., Paralegal to Kevin C. McNamara Dater S33a2U.1 CERTIFICATE OF SERVICE I, Rick Stains, Jr., a Paralegal for the law firm Thomas, Thomas & Hafer., LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the date set forth below: Richard H. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: Rick Stains, Jr., Paralegal t Kevin C. McNamara Date: 1 836157.2 a W rl, ED-Or FICE CF TKE PROTlioNOTARY 2311 si2N I1 Pyn 2: %J v'JtISERLAND COUNTY ENNSYLVANIA THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 kmcnamara@tthlaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED DEFENDANT MMG INSURANCE COMPANY'S MOTION TO COMPEL AND NOW, comes Defendant MMG Insurance Company, by and through its attorneys, Thomas, Thomas & Hafer, LLP, and brings the following Motion to Compel Discovery: 1. This is a breach of contract case as to MMG Insurance Company in which the Plaintiff asserts, among other things, that the Defendant insurance company failed to pay certain benefits related to a property damage claim. 2. On August 3, 2010, MMG Insurance Company served the Plaintiffs attorney with a combined set of Interrogatories and Requests for Admissions. A copy of the Interrogatories and Requests for Admissions is attached hereto and marked Exhibit A. 3. The time to respond to the Interrogatories and Requests for Admissions has long since passed and the Request for Admissions are now conclusively established. 4. To date, the Plaintiff has not answered the Defendant's Interrogatories, has not requested an extension of time and has not made any objection to the Interrogatories. 5. It has been far greater than 30 days since the discovery was served on the Plaintiff, answers are overdue and this matter is languishing. 6. Informal requests to resolve this discovery dispute and obtain answers have been ignored. WHEREFORE, Defendant MMG Insurance Company respectfully requests that a Court Order be entered directing the Plaintiff to answer the Defendant's Interrogatories, without objection within 15 days of the Court Order, or face the imposition of sanctions. Respectfully submitted, THOMA THOMAS & HAFER, LLP By: Kevin C. McNamara, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 DATE: 611, (717) 237-7132 Attorneys for Defendant MMG Insurance Company 956522.1 2 THOMAS, THOMAS d HAFER LLP Kevin C. McNamara, Esquire Identification Number 72668 305 N. Front Streel P.O. Box 999 Harrisburg, PA 17108 (717) 237-7132 kmcnamara??lthlaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHEN G, Defendants NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED DEFENDANT, MMG INSURANCE COMPANY, INTERROGATORIES AND REQUESTS FOR ADMISSIONS DIRECTED TO PLAINTIFF To: Tarek. Eltanbdawy, Plaintiff c% Richard A. Wix, Esquire Wix:, Wenger & Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 PURSUANT TO THE PROVISIONS of the Pennsylvania Rules of Civil Procedure, as amended, you are required to forward a copy to the undersigned and retain the original of your Answers and objections, if any, in writing and under oath, to the following Interrogatories, within thirty (30) days of service hereof. The Answers shall be inserted in the spaces provided following each Interrogatory. If there is insufficient space to answer an Interrogatory, the remainder of the Answer shall follow on a supplemental sheet. 835375.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEFINITIONS AND INSTRUCTIONS A. "Document" - writings or recordings of any kind, whether handwritten, typed, or printed, and including, but not limited to, letters, memoranda, bulletins, orders, photographs, microfilms, resolutions, books, computer printouts, computer cards. papers, pamphlets, notebooks, diaries, notes, recording tapes, recording discs, recording wires; manuals, regulations, rules, and fonns. B. "Identify" - when used with reference to a person, shall mean and include the full name, present or last known business address, and if an individual, present or last known home address; each of his or her employers titles with respect to the period covered by these Interrogatories; a description of each duty and responsibility held by each such individual. When used with references to a document or writing, the work "identify" shall mean to include the date it was written; identify each person to whom it was addressed and identify each person to whom a copy was identified as being directed, identify each person who received a copy of the document or writing with a description of the document or writing as for instance, "letter", "memorandum"; include the present location and identify its custodian. If any document or writing is no longer in your possession or subject to your control, state what disposition was made of it, the reason for such disposition, the date thereof, and identify its current or last known location and custodian. C. "Concern", "concerned", or "concerning" - means referring or relating to, pertaining to, commenting on, or connected with, in any manner whatsoever. 835375.1 D. "You", "your" - means the person in whose name this action is brought, his employees, officers, representatives, agents, and attorneys, or any person working for such persons. These Interrogatories are deemed to be continuing in nature, in accordance with the provisions of the Rules of Civil Procedure, as amended. If, between the time of forwarding your original Answers to these Interrogatories and the time of trial of this matter, you or anyone acting on your behalf learn the identity and location of additional persons having knowledge of discoverable facts and the identity of persons expected to be called as an expert witness at trial not disclosed in your Answers, or if you or an expert witness obtain information upon the basis of which you or he know that an Answer was incorrect when made or knows that an Answer, though correct when made, is no longer true, then you shall promptly supplement your original Answers under oath to include such information thereafter acquired and promptly furnish such a supplemental Answer to the undersigned. 835375.1 INTERROGATORIES State: (a) Your full name; (b) Each other naive, if any, which you have used or by which you have been known; (c) The address of your present residence and the address of each other residence which you have had during the past five years; (d) Your present occupation and the name and address of your employer; (f) The schools you have attended and the degrees or certificates awarded, if any. ANSWER: 835375.1 State with particularity the legal basis and the factual basis for each claim or defense you are asserting in this case. ANSWER: (a) Identify each person who: (1) Was a witness to any fact which relates to your claims through sight or hearing; and/or (2) Has knowledge of facts concerning the happening of the incident(s) or any conditions or circumstances at the scene of the incident(s) prior to, at the time of, or after the incident(s) giving rise to your claim. (b) With respect to each such person identified, state that person's exact location and activity at the time of the incident(s) giving rise to your suit. ANSWER: 835375.1 4. if you know of anyone that has given any statement (as defined by the Rules of Civil Procedure) concerning this action or its subject matter, state: (a) The identity of such person; (b) When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and (c) The identity of any person who has custody of any such statement feat was reduced to writing or otherwise recorded. ANSWER: 5. Identify documents (except reports of experts subject to Pa.R.C.P. No. 4003.5) which describe the incident(s) giving rise to your cause(s) of action. ANSWER: 835375.1 6. If you know of the existence of any photographs, motion pictures. video recordings, maps, diagrams, or models relevant to the incident(s) giving rise to your action, state: (a) The nature or type of such item, (b) The date when such item was made; (c) The identity of the person that prepared or made each item; and (d) The subject that each item represents or portrays. ANSWER: 7. Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person identified, state your relationship with the witness and the substance of the facts to which the witness is expected to testify. ANSWER: 835375.1 8. Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: (a) The subject matter about which the expert is expected to testify, and (b) The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this Interrogatory, the report of the expert or have the Interrogatory answered by your expert.) ANSWER: 9. Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: 835375.1 10. If you intend to use any admission(s) of a party at trial. identify such admission(s). ANSWER: 835375.1 IL Identify by name and address each and every contractor who inspected, observed and/or performed service(s) for or related to the subject loss, including the date of same. ANSWER: 12. Itemize and describe with particularity all damages and losses you suffered and seek recovery for, in this action against Defendants. ANSWER: 835375.1 1 ?. 1,VIth respect to Paragraph 16 of Plaintiffs Amended Complaint, Plaintiff alleges that "The adjuster for Defendant MMG Insurance Company called the Township officials who forced the Plaintiff to close the restaurant on March 4, 2009". As to the foregoing averment, please state, separately and with particularity, the following information: (a) Who is the "adjuster" that made the contact with Township Officials and on what date was this contact made?; (b) How did you learn of the contact between an MMG representative and a Township representative as set forth in Paragraph 16 of you Complaint?; (c) What justification for the closure was provided by the Township and did you contest this determination?; (d) Please provide a copy of each and every document given or sent to you by the Township regarding the alleged March 4, 2009 closing of the restaurant. ANSWER: 835375.1 14. Between August 4, 2008 and April 4, 2009, please provide a list of the rental payments made by you on the premises that are the subject of this litigation. Your list should include the date payment was made, the method of payrnent (check, cash, etc.) and if any payments were made late, the reason for the late payments. ANSWER: 15. Prior to April 10, 2009 had you received any written or oral notices or warnings from your landlord concerning late rental payments or eviction/repossession of the property that is the subject of this litigation? If so, please attach all such written notices to your answers and please state the date and/or circumstances and content of any oral notices or warnings. ANSWER: 835375.1 16. Please provide the name of the bank, branch location and account numbers for your business banking accounts for the period of time from August 1, 2008 through June 15, 2010. ANSWER: 17. Please provide the name and address of the accountant who handled your business and personal financial matters from January 1, 2008 through the present. ANSWER: 18. What is the basis for your claim that MMG owes you lost income for a period of one year from March 4, 2009? ANSWER: 835375.1 19. Please provide the basis for your assertion that MMG owes you an amount in excess of %50,000? ANSWER: 20. Please state the specific amount which you believe MMG's owes you for lost business income under the insurance policy attached to your Complaint. Please also attach and explain the substantiation/rationale for your income loss calculation. ANSWER: 835375.1 21. Please specify the basis for your contention that MMG breached its contract agreement to see that repairs were made in a prompt and workmanlike mariner. Where can this agreement/duty be found in the insurance contract? ANSWER: 22. Please specify the basis for your assertion that MMG had a contractual duty to supervise the contractor (Restorecore) who actually perfonned the repairs and remediation on the premises that are the subject of this litigation. Where can this duty be found in the insurance contract? ANSWER: 835375.1 23. In view of the fact that you entered into a written contract with Restorecore on March 11, 2009, for the repair work referenced in your Amended Complaint, what is the basis in Paragn-aph 31 of your Amended Complaint for your claim that MMG hired Restorecore to carry out the repair work? If you have a copy of a contract between MMG and Restorecore or can set forth its essential terms, please set forth those terms or attach a copy of the contract to your answers to these Interrogatories. ANSWER: 835375.1 REQUESTS FOR ADMISSIONS Attached hereto as Exhibit A is a copy of a document entitled RESTORATION CONTRACT:-COMMERCIAL. With regard to Exhibit A: 1. Do you admit the authenticity of this document? ADMIT Deny ?. Do you admit that your signature appears in the lower left part of Exhibit A by the X under the word "OWNER"? ADMIT Deny 3. Do you admit that Exhibit A pertained to work to be perfonned on the premises that are the subject of the Amended Complaint as a result of the pipe bursts and water damage alleged in the Amended Complaint? ADMIT Deny Respectfully submitted, THOMAS, THOMAS & HAFER, LLP J _ By: / W Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17101 (717) 237-7154 Attonzeys for Defendant Date: ? U 835375.1 I ?fir RestoreCore RESTORATION CONTRACT: ,COMMERCIAL kcsonru,, home-, businux, ui nl Iirrx Job Number: 10-0903-1008 n lu-- o-i c)-,--I D t8 Claim Number: Date :March 11, 2009 This Work Authorization ("Agreement") is agreed to between: Owner Hampden Diner And RestoreCore, Inc. 3421 Simpson Ferry Road 2322 North Seventh Street Camp Mill, PA 17011 Harrisburg, I'A 17110 Phone : 717-232-1500 Fax: 717-232-9936 www.restorecore.com Deductible: $ for repairs and/or services at the following property: 3421 Simpson Ferry Road Camp Hill, PA 17011 SCOPE OF WORK: Owner ugrees that RestoreCore works directly for Owner, and not any insurance company, agent or adjustor. RestoreCore shall furnish labor and material to complete the designated services and/or repairs to the building or other property required.as a result of fire, water, storm or other casualty damage. All work shall be performed by RestoreCore in a good and workmanlike manner in accordance with industry standards. If necessary, RestoreCore agrees to complete an additional scope of work in accordance with insurance industry procedures, as described on any Change Order to be agreed to by RestoreCore and Owner and, if required, Owner's insurance company. Any Change Order shall be attached to this Agreement and incorporated herein verbatjT'?. Description of Services: //Gcrti 7-G'r/1LJ lenll?i?_ Amy r..?//C f[u/I? PAYMENT. Owner is primarily liable for all work and shall pay any applicable deductible to RestoreCore hnmediately upon RestoreCore's request. Owner hereby grants RestoreCore the authority to work directly with any mortgagees of Owner and agrees to cooperate with RestoreCore and such mortgagees to provide progress payments for work performed and all required information regarding this Agreement and the work provided hereunder to Owner's insurance company. TERMS: Owner agrees to make all payments for work performed by or at the direction of RestoreCore immediately upon Owner's receipt of each invoice from RestoreCore. Owner farther agrees to make final pavment of all remaining amounts immediately upon completion. Interest on any unpaid balance shall be charged at the rate of 1.5% per month. Owner shall be responsible for reasonable attorney's fees and costs in the event that collection efforts (including legal action) are required to collect any unpaid balance. ASSIGNMENT: Owner, by execution of this Agreement, hereby assigns to RestoreCore such amount that is due Owner under any applicable policy of insurance. Owner hereby directs such insurance company to include "RestoreCore" as a co-payee on any draft or check to be issued to Owner in this matter and Owner agrees to endorse and immediately deliver any such draft. or check to RostoreCore. COMMENCEMENT & CONTLETION: Work shall commence within a reasonable period of time following RestoreCore's receipt of this Agreement as signed by Owner and any necessary payment or work authorization from Owner's insurance companies. RestoreCore anticipates substantial completion within days of obtaining a building permit. RestoreCore is not liable for delays due to causes beyond its control, including acts of God, strikes, labor or materials shortages or unusually severe weather. LIMITATION OF LIABILITY: The parties acknowledge that the liability of RestoreCore, if any, and Owner's sole and exclusive remedy for damages for any claim of any kind whatsoever, regardless of the legal theory and whether arising in tort or contract, shall be limited to the total amount of the payments received by RestoreCore pursuant to this Agreement. In no event shall RestoreCore (or any of its affiliates, officers, directors, employees and assigns) be liable for any special, indirect, incidental or consequential damages of any kind including, but not limited to, compensation, reimbursement or damage on account of the loss of present or prospective profits or for any other reason whatsoever. Furthermore, RestoreCore shall be responsible only for the personal property listed on the attached inventory list, if any, as signed by Owner and RestoreCore. INCORPORATION: The terms and conditions on page 2 are incorporated herein verbatim. IN WITNES?SsN REOF, the p ' have entered into this Agreement as of the date first written above. Oy rNE ?/ REST CORE X ?"1.,(:?k. Date Primed on 03/11109 at 9:39 am 'EXHIBIT a >s Date Page 1 of 2 Form WA012706 A044 CERTIFICATE OF SERVICE 1, Kevin C. McNamara, Esquire, of the law firm of Thomas, Thomas and Hafer, LLP, hereby certify that a copy of the foregoing document was served upon the following, by enclosing a true and correct copy in an envelope addressed as follows, postage prepaid: Richard A. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP B Y: / T c ,;? Kevin C. McNamara Dated: J? 835375.1 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the / qo??` United States mail, postage prepaid, on the/V day of tti w? , 2011: Richard A. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: Kevin C. McNamara, Esquire 956522.1 3 f FILED-OFFICE OF THE PROTHCNOT„RY 2011 JUN 30 Ali 11: 33 THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 kmcnamara@tthtaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants CUMBERLAND COUNITY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED ORDER AND NOW, this 10 *day of 2011, upon consideration of the Motion to Compel Discovery of Defendant MMG Insurance Company, said Motion is granted, and the Plaintiff is ORDERED to answer MMG's Interrogatories, without 30 objection, within )o6days of the date of this Order. BY T OURT: 'Oki gom Pet): 1, 4)4 xto rk 1 lam. ?; Caltqr cW (<tJi usy eop;es ma./ed Aelzt J. 3 956522.1 TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDEI!Q3'> =CD ..l, CERTIFICATE PREREQUISITE TO SERVE A SUBPOENA PURSUANT TO RULE 4009.22 As a Prerequisite to service of a Subpoena for Documents and Things pursuant to Rule 4009.22, Defendants certify that: A Notice of Intent to Serve the Subpoena with a copy of the Subpoena attached thereto was mailed to each party at least twenty (20) 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. No objection to the Subpoena has been received. 4. The Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent. THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire I.D. Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Date: g/ ' J 985596.1 TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED Defendants NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant, MMG Insurance Company, 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 no objection is made, the subpoena may be served. THOMAS, THOMAS & HAFER, LLP Date: + Kevin C. McNamara Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorney for Defendant MMG Insurance Company 835420.3 TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Department of Agriculture, Bureau of Food Safety and Laboratory Services, 2301 North Cameron Street, Harrisburg, PA 17110. (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: Any and all records including, but not limited to, correspondences, consumer or municipal complaints, warnings, fines or penalties and/or reports from scheduled or unannounced food safety or sanitation inspections for Hampden Diner, 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, from August 1, 2008 to September 1 2009. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, P.O. Box 999, Harrisburg, PA 17108 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: Kevin C. McNamara Esquire ADDRESS 305 N. Front Street, P. 0. Box.999 Harrisburg. PA 17108 TELEPHONE: (717) 237-7132 SUPREME COURT ID No: 72668 ATTORNEY FOR: Defendant - MMG Insurance CO DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy 974277.1 CERTIFICATE OF SERVICE I, Rick Stains, Jr., Paralegal for the law firm Thomas, Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Richard A. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: Rick Stains, Jr., Paralegal to Kevin C. McNamara Date: 835420.3 CERTIFICATE OF SERVICE I, Rick Stains, Jr., a Paralegal for the law firm Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the date set forth below: Richard A. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: l Rick Stains, Jr., Paraleg to Kevin C. McNamara Date: 1/?:'/ " 985596.1 r, ROLF E. KROLL, ESQUIRE Pa. Supreme Court I.D. No. 47243 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: 17171 975-8114 Direct Dial: (717) 760-7502 Fax: 17171975-8124 E-Mail: rkroll@margolisedelstein.com Attorneys for Defendant: RESTORECORE, INC. TAREK ELTANBDAWY, V. MMG INSURANCE COMPANY, RESTORECORE, INC., and KUAN FENG CHENG, IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-2015 CIVIL TERM Defendants. : JURY TRIAL DEMANDED AND NOW, on this A 0 *? day ofl.awl tfat . 2012, upon consideration of the Motion to Compel discovery of Defendant, Restorecore, Inc., and any response thereto, it is hereby ordered and decreed that said Motion is hereby GRANTED. As such, the Court directs that Plaintiff, Tarek Eltanbdawy, provide full and complete answers to the Interrogatories and Request for Production of Documents served upon him within twenty (20) days or suffer sanctions upon further motion to the Court. RT: N C J W r-5 . < > a? -? CD C) = C-a r Distribution List: 717-975-8114 717-760-7502 3510 Trindle Road PA 17011 I/ Rolf E Kroll Margolis Edelstein Camp Hill , , , , , , . Richard H. Wix, Esquire, Wix, Wenger & Weidner, 4705 Duke Street, Harrisburg, PA 17109, 717-652-8455 V Kevin C. McNamara, Esquire, Thomas, Thomas & Hafer, LLP, 305 North Front Street, Harrisburg, PA 17 108- 0999, 717-237-7132 George E. Christianson, Esquire, Christianson Meyer, 411 Chestnut Street, Lebanon, PA 17042, 7 17-273-1 651 ? ? -Is ma ? 1 f c?,3`la _ i TAREK ELTANBDAWY; ? !' '.`, €1 W .: THE COURT OF COMMON PLEAS OF Cj,1MBERLAND Gr t COUNTY, PENNSYLVANIA lr?, Pla#??f? ` ??L r, ? ? ? NO. 10-2015 V. CIVIL TERM MMG INSURANCE COMPANY, RESTORECIORE, INC. and KUAN JURY TRIAL DEMANDED FANG CHENG, Defendants CERTIFICATE PREREQUISITE TO SERVE SUBPOENAS PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. Plaintiff does not object to the subpoenas and waives the Notice of Intent to Service Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21; 2. A copy of a letter dated May 25, 2012, and executed by Plaintiff's counsel, Richard A. Wix, Esquire, indicating no objections and waiver of the notice of intent is attached to this Certificate; 3. A copy of the proposed subpoenas are attached to this certificate; and 4. The subpoenas which will be served are identical to the subpoenas which are attached to this certificate. THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire I.D. Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Date: 4VI) 7i- 985596.2 r VTH THOMAS, THOMAS & HAFERLLP Attorneys At Law Street Address: 305 North Front Street, Harrisburg, PA 17101 Mailing Address: P.O. Box 999, Harrisburg, PA 17108 Phone: 717.237.7100 Fax: 717.237.7105 Kevin C. McNamara (717) 237-7132 kmcnamara@tthlaw.com Richard A. Wix, Esquire WM WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 May 25, 2012 Re: Tarek Eltanbdawy v MMG Insurance Company, et aL Cumberland County C.C.P. No. 10-2015 Our File No. 653.00604 Dear Attorney Wix: Enclosed please find a Notice of Intent to Serve Subpoenas, pursuant to Rule 4009.21. If you have no objection to the subpoenaing of these records and are willing to waive the 20-day notice period, please sign where indicated and return a copy of this letter to me at your earliest convenience. Thank you for your attention to this matter. Very truly yours, THOMAS, THOMAS & HAFER, LLP By: / Rick Stains, Jr., Paralegal to Kevin C. McNamara /ris:835427.12 Enclosure cc: Rolf E. Kroll, Esquire (w/encl.) George E. Christanson, Esquire (w/encl.) 1, R? rc- rd R • W 11-A , Esquire, counsel for Plaintiff, have no objection to the serving of the subpoenas identified in the attached Notice of Intent and hereby waive the 20-day notice period. Counsel for Defendant shall provide me with copies of all records they obtain pursuant to these subpoenas. Date: J a"Z Harrisburg Bethlehem Pittsburgh r Esquire Philadelphia Wilkes-Barre Baltimore, MD Clinton, N! www.tthlaw.com TAREK ELTANBDA'WY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUALA FANG CHENG. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED `NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS A ID THINGS FOR'DISCOVERY P R- SLANT TO RULE 400921 i Defendant, MMG Insurance Company, intends to serve subpoenas identical to the ones that are 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 subpoenas. 11'no objection is made, the subpoenas may be served. Date: S)'rll Z.' THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara Esquire Identification Number: 72668 305 North Front Street P.O. Boa 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorney for Defendant MMG Insurance Company 835420.4 TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Feesers Food Distributors, 5561 Grayson Road, Harrisburg, PA 17111. (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: Any and all records including, but not limited to, purchase orders, invoices, payment history records, late notices and statements, etc., with regards to Hampden Diner, 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, from August 1 200§ to September 1. 2009. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 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: Kevin C McNamara Esquire ADDRESS 305 N.' Front Street. P. 0. Box 999 Harrisburg PA 17108 TELEPHONE: (717) 237-7132 SUPREME COURT ID No: 72668 ATTORNEY FOR: Defendant -- MMG Insurance Co. DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy 1094458.1 TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, PPL, 827 Hausman Road, Allentown, PA 18104-9392. (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: Any and all utility records including, but not limited to, invoices, payment history records, late notices and statements, and utility shut off information, etc., with regards to Hampden Diner, 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, from Auaust 1 2008 to September 1 2009. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 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: Kevin C McNamara Esquire ADDRESS 305 N. Front Street P. O. Box 999 Harrisburg PA 17108 TELEPHONE: (717) 237-7132 SUPREME COURT ID No: 72668 ATTORNEY FOR Defendant - MMG Insurance Co. DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy 1094458.2 TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CHENG, Defendants NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, UGI, 2525 N. 12th Street, Reading, PA 19605. (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: Any and all utility records including, but not limited to, invoices, payment history records, late notices and statements, and utility shut off information, etc., with regards to Hampden Diner, 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, from August 1 2008 to September 1. 2009. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street.. POB 999, Harrisburg, PA 17108 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: Kevin C 'McNamara Esquire ADDRESS 305 N.' Front Street. P. O. Box 999 Harrisburg PA 17108 TELEPHONE: (717) 237-7132 SUPREME COURT ID No: 72668 ATTORNEY FOR: Defendant - MMG Insurance CO. DATE: Seal of the Court IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Prothonotary/Clerk, Civil Division Deputy 1094458.3 TAREK ELTANBDAWY, Plaintiff V. MMG INSURANCE COMPANY, RESTORECOkE, INC. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 CIVIL TERM JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, PA American Water, 800 W. Hersheypark Drive, Hershey, PA 17033. (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: Any and all utility records including, but not limited to, invoices, payment history records, late notices and statementsl, and utility shut off information, etc., with regards to Hampden Diner, 3421 Simpson Ferry Road, Camp Hill, Pennsylvania, from August 1 2008 to September 1. 2009. at THOMAS, THOMAS & HAFER, LLP, 305 N. Front Street, POB 999, Harrisburg, PA 17108 subpoen the documents r address produce things e. Youthavettheb ght"to seek inaadvvance, thetreaso able cost of ica You may tto the or mail making copies of compliance. party m 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: Kevin C McNamara Esquire ADDRESS 305 N. Front Street P. O. Box 999 Harrisburg PA 17108 TELEPHONE: (717) 237-7132 SUPREME COURT ID No: 72668 ATTORNEY FOR: Defendant - MMG Insurance Co. DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy 1094458.4 CERTIFICATE OF"SERVICE 1. Rick Stains. Jr., Paralegal for the law firm Thomas, Thomas, Thomas & Hafer.. LLP, hereby certif} that I have served a true and correct copy of the foregoing document on the following persons by placing a copy of the same in the United States mail. first class mail, directed to their office addresses as follows: Richard A. Wix, Esquire WIX, WENGER & WEIDNER, PC 470 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3 10 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Mever 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP r By: Rick Stains, Jr., Paraleg to Kevin C. McNamara Date: Z Sam/ L 835420.4 CERTIFICATE OF SERVICE 1, Rick Stains, Jr., a Paralegal for the law firm Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing same in the United States mail, postage prepaid, on the date set forth below: Richard A. Wix, Esquire WIX, WENGER & WEIDNER, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 George E. Christianson, Esquire Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 THOMAS, THOMAS & HAFER, LLP By: ?. Rick Stains, Jr., Paralegal to Kevin C. McNamara Date: S/ LS/ l Z- 985596.2 }.. ~ { ~.. ,. c ~ `fl`i PRAECIPE FOR LISTING CASE FOR TRIAL ~~' ~ 2 ~~~ (Must be typewritten and submitted in triplicate) ' a MBE , A h+D TO THE PROTHONOTARY OF CUMBERLAND COUNTY ~'~N S YLV Please list the following case: X^ for JURY trial at the next term of civil court. ^ for trial without a jury. --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) ~._ X^ Civil Action -Law ~; % N Tarek Eltanbdawy ^ Appeal from arbitr~ ^ M ~~ rt'? ~ Crj a.. (other) ~~ ~ ~~~ ~~ ~ ~~ (Plaintiff) ~' ~ ~ ~-,~";, c:~ ca -n _ ~ vs. The trial list will be called on Oct. 3 2 T ~ ~,'G--, . MMG Insurance Co. and t~ RestoreCore, Inc. and Trials commence on November 26, 2012 Kuan Fang Cheng (Defendant) Pretrials will be held on November 14, 2012 vs. (Briefs are due S days before pretrials No. 2015 2010 Term Indicate the attorney who will try case for the party who files this praecipe: Richard H. Wix, Esquire Indicate trial counsel for other parties if known: Kevin C. McNamara, Esq.; Rolf E. Kroll, Esq.; George E. Christianson, Esq. This case is ready for trial. Date: ~ y .~ /2 Signed: Print Name: Richard H. Wix Plaintiff Attorney for: ~~~ a,~}eaa.~s pa a~ Ck.~ 4s~9 2x aBOaay CERTIFICATE OF SERVICE AND NOW, this 4th day of September, 2012, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiff, hereby certify that I served the within Praecipe for Listing Case for Trial this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kevin C. McNamara, Esq. Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108-0999 (Counsel for MMG Insurance) Rolf E. Kroll, Esq. Margolis Edelstein 3150 Trindle Road Camp Hill, PA 17011 (Counsel for RestoreCore) George E. Christianson, Esq. Christianson Meyer 411 Chestnut Street Lebanon, PA 17042 (Counsel for Cheng) WIX, WENGER & WEIDNER Gaye C ist TAREK ELTANBDAWY Plaintiff vs. MMG INSURANCE CO., RESTORECORE, Inc. and KUALA FANG CHENG Defendants ITJ THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, c~ .-~ PENNSYLVANIA c N ~' cv No. 10-2015 =~~ " o ~ -c3~--, ~ (" IV %J ~-- mss.' ~~ ~ ' ~ } C': CIVIL ACTION ~: ~' .. °~ ~ .~~ ~- _ r? C~~,_ ..-i G~ - .~ JURY TRIAL DEMANDED DEFENDANT KUALA FANG CHENG'S MOTION TO STRIKE FROM THE NOVEMBER TRIAL LIST PURSUANT TO C.C.R.P. 213-2 AND NOW, comes the Defendant, Kuan Fang Cheng, by and through his attortleys Salzmann Hughes, P.C. and respectfully represents as follows in support of this Motion to Strike From The November Trial List Pursuant to C.C.R.P. 213-2: l . Defendant Cheng is currently represented by George E. Christianson, Esquire in the above captioned matter in addition to a concurrent action docketed to Cumberland County Civil Action 09-7268, Kuan Fang Cheng v. Tarek-Eltanbdawy, Amal Essat, Kasha 1:'Inaggar and Walid Khalil involving the same lease agreement and involving essentially the same facts between Defendant Cheng and Plaintiff. 2. Plaintiff's counsel caused the above captioned matter to he uisted for trial in the November term without discovery having been completed. ,. Pursuant to C.C. R.P. 213-?, any case not ready for trial in all respects shall, at the option of the court, be placed at the foot of the list or stricken from it. 4. Additionally, Defendant's current counsel is unable to continue representation of Defendant Cheng and Defendant Cheng desires to transfer both Cumberland County civil actions to the law firm of Salzmann Hughes, P. C. S. Salzmann Hughes, P.C. is willing to represent Defendant Cheng in both Cumberland County actions in Attorney Christianson's absence. 6. The file is in the process of being transferred to the law fine of Salzmann Hughes, P.C. ?. Salzmann Hughes, P.C. will need additional time to complete discovery and prepare for trial. 8. Salzmann Hughes, P.C. requires time to review the above captioned matter and the matter at Docket #09-7268 to determine if the two actions should be consolidated for judicial c;conomy. 9. Defendant Cheng believes this matter will be ready for the next trial term. 10. Defendant MMG Insurance Co. concurs in Defendant's Kuan Fang Cheng"s Motion to Strike Frond Trial List Pursuant to C.C.R.P. 213-2. ] 1. Defendant Restorecore Inc. concurs in Defendants Kuan Fang Cheng's 1~2otion to Strike to Trial List Pursuant to C.C.R.P. 213-2. 12. Plaintiff's attorney does nct concur in Defendant's Kuan Fang Cheng's ~-lotion to Strike From Trial List Pursuant to C.C.R.P. 213-2. Vb'HEREFORE, Defendant Cheng respectfully requests that this Honorable Co~.~rt enter an Order pursuant to C.C.R.P. 213-2 striking this cause from the November trial list whereby Plaintiff or any of the, Defendants may list this cause for the next trial team upon filing a Praecipe to List for Trial with the Prothonotary. Date: ~~) ~_ G(~z _ Respectfully submitted, SALZMANN HUGHES, P.C, c; ~~t't T. Wyland, Esquire attorney ID#52660 Jason E. Kelso, Esquire Attorney ID# 209107 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Counsel for Defendant Cheng CERTIFICATE OF SERVICE I hereby certify that on the 26TH day of October, 2012, I served a true and con•ect copy of the foregoing document via United States mail, first class mail, postage prepaid, and addressed as follows: Richard A. Wix, F;squire Wix, Wenger & Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041. Kevin C. McNamara., Esquire Thomas, Thomas & Hafer, LLP 305 North Front ;Street Harrisburg, PA 17101 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Harrisburg, PA 17011 Salzmann Hughes, P.C. ~~ !~ ~~ By: Jason E. Ke so, Esquire G~ "i~ ~12i~~h i~,i.~I~,~N131~)~~i~~~Y, ~'iaitrtifi~ t >, 1ii!'1(: t1~SiiR.~~N('t+; C't)i1~1I'.AN'Y, l2!?S'i'EJIt1~aC'f)t21"~, i1\'(. ~!!Id !)ei'c~rrclat~#a iv ~riil; ct~CFit 1~ or t.~c~>>li~io~v 1'1,1~,~~5, CU1`II~I<;IZt,,~11ti1) C'()[1N'f'j` . i'7 C ~ -r; N t - ~ 'O Z ~ ~ - N fr, O ~. .if'Itl' "t'R1~4.1: i?11i<`I~1`~'[31~;l = ~~' ~' --ta ` = :z -: ; -~ c ~' ~ ~ ~ 7q ~'I2.r1,1a,C'II'I~, 'ly() WI't'11I)lif1,1~' ~~,t'l'i+.r1,l2f~1NC"l~~ -~ " -~ !?~_~~r~~i: `s~itl~tlra~ti~ {iCC)1~(;('_ E.. ('E{IZh~"I~~[~1'l~~ty`~, I~;~;quire t7(~C'I1T~' I`'~ [ Ir0 ~. ,E ~ ``~'l~:E~ ,~~, ~,'~~t~n~,cf ~~~ r;'cc}rs_l #s~i E°; Ci~~,'`,; Ft~Nti t~°11Ft1t i ir7 t}7~~ <tlr~~~,~:-r~~~fc~ri°r~c'~~~1 rrr,rttt.~r t:cc~rLc E~:. C`lu~isiiarrst?rr. (.:scE~rirc ,~1ttc>r~rre~, II )'l 6 ~ i Ci ~~41 l C`hc~~tnut Sir~~i~t (ii ;') ~`~'? %{iii O~rt~~cl: TAREK EL,TANBDAWY, . Plaintiff v s. , MMG INSURANCE COMPANY, RESTORECORE, INC. and . KUALA FANG CHENG, . Defendants IN THE COURT OF COMMON :PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA c ~ "~ ~v _ '~' ~~.. i~ ~ ~r`-= NO. 10-2015 CIVIL b ~N ~ r - --~ JURY TRIAL DEMANDE>~~; _ . w .:=- ^t o PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of SCOTT T. WYLAND, Esquire and JASON E. KELSO, Esquire, of SALZMANN HUGHES, P.C. as counsel of record for KUALA FANG C'HENG in the above-referenced matter. SALZMANN HUGHES, P.C. JASON E. KELSO, Esquire Attorney ID# 209107 354 Alexander Spring Road Suite 1 Carlisle, PA 17015 (717) 249-6333 S LAND, Esquire Attorne 52660 Dated: CERTIFICATE OF SERVICE I, Jason E. Kelso, Esquire, hereby certify that I served a copy of the foregoing Praecipe to Withdraw and Praecipe to Enter Appearance upon all parties to this action, by mailing a copy thereof on this 26`'' day of October, 2012, to: Richard H. Wix, Esquire Wix, Wenger & Weidner 4705 Duke Street Harrisburg, PA 17109-3041 Attorney for Plaintiff Kevin C. McNamara, Esquire Thomas, Thomas & Hafer P.O. BOX. 999 Harrisburg, Pennsylvania 17108-0999 Rolf E. Kroll, Esquire Margolis Edelstein 3150 Trindle Road Camp Hill, Pennsylvania 17011 By ason E. Kelso, Esquire SALZMANN HUGHES, P.C. ~' -- I ' . + ~~ ~;-a TAREK ELTANBDAWY, Plaintiff v. MMG INSURANCE COMPANY, RESTORECORE, Inc. and KUAN FANG CHENG, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2015 Givil CIVIL ACTION -LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT KUAN FANG CHENG'S MOTION TO STRIKE AND NOW, comes the Plaintiff, Tarek Eltanbdawy, by his attorneys, Wix, Wenger & Weidner, and sets forth as follows: 1. It is admitted that Defendant Cheng is represented by George E. Christianson, Esquire. It is denied that the litigation docketed to Cumberland County Civil Action 09-7268 involves essentially the same facts. No discovery has taken place in Civil Action 09-7268, and in addition involves three parties who are not parties to this present action. 2. The allegations of paragraph 2 are denied. To the contrary, the above matter was listed for trial by letter dated September 4, 2012, after counsel indicated that they did not desire any additional discovery. All of the parties have exchanged written answers to Interrogatories and Request for Production of Documents. In addition, numerous depositions have been taken and the case is ready for trial. 3. It is denied that the case is not ready for trial. 4. At no time did Attorney Christianson indicate till October 12, 2012, that there was any desire to change counsel for Defendant Cheng. 5. Admitted. E. Plaintiff is without knowledge as to what is being transferred. 7. The trial of this matter would not be before November 26, 2012, which would be more than enough time to prepare for trial inasmuch as this is not a complicated factual situation. 8. It is denied that the two actions should be consolidated. No discovery has taken place in the matter docketed to 09-7268, and additionally it involves three persons who are not parties to the present action and who had absolutely nothing to do with the damages and repairs to the property which is the subject of the action filed to Civil Action 10-2015. 9. This matter has already been pending since March 22, 2010. Plaintiff desires to have the matter heard at the November Term of Court. 10 Admitted. 11 Admitted. 12 Admitted. 2 WHEREFORE, Plaintiff requests your Honorable Court to dismiss Defendant Cheng's Motion to Strike. Date: l~~ ~ ~~ ~~~~~ Respectfully Submitted, WIX, WENGER & WEIDNER _.. By e-~-.~- .,~ ~ (, J ~P..~=- Richard H. Wix, Esq., ID #07274 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 Counsel for Plaintiff 3 CERTIFICATE OF SERVICE AND NOW, this 31 st day of October, 2012, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiff, hereby certify that I served the ~nrithin Plaintiff's Answer to Defendant Kuan Fan Cheg's Motion to Strike this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Jason E. Kelso, Esq. Salzmann Hughes 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Kevin C. McNamara, Esq. Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108-0999 Rolf E. Kroll, Esq. Margolis Edelstein 3150 Trindle Road Camp Hill, PA 17011 WIX, WENGER & WEIDNER _~ ~~ ~~ __ Gaye C st TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF. Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MMG INSURANCE COMPANY, RESTORECORE, INC. and KUALA FANG CHENG, Defendants NO. 10-2015 CIVIL TERM IN RE: CIVIL TRIAL LIST ORDER OF COURT AND NOW, this 6th day of November, 2012, at the request of counsel for Defendant Cheng, and over the objection of the Plaintiff, this matter is stricken from the November trial list and listed for trial to begin on Monday, February 25, 2013, at 9:30 a.m., and will stay on the trial list without the necessity of the Plaintiff having to relist for the next trial term. It is noted that this Court has indicated to defense counsel that this would be the last defense continuance. By the Court, c ~ -~'; -ow N --~ ---r- Christ ee L. Peck, J. ~ ~'' ~+~" < i .ti r--- ~''~ /Richard H . Wix, Esquire ~z ~~ m a. o~ ~ For Plaintiff i© ~ ~~ /Kevin C. McNamara, Esquire _ D= ..~ _ ~. _.,. o~ For Defendant MMG Insurance -~ ~ -4 r/ Rolf E. Kroll, Esquire For Defendant RestoreCore Jason E. Kelso, Esquire For Defendant Kuan Fang Cheng Pcb C~~bi e.s /y~Ct~ ~Gq~ l ~1~~~.Z TL Scott T. Wyland, Esquire _, Attorney I.D.No. 52660 l } _ Jason E. Kelso, Esquire 613MAp IS Attorney I.D. No. 209107, Messa L. Klso Esquire . Attorney I.D. 306793 `f IA SALZMANN HUGHES,P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717)249-6333 TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 10-2015- CIVIL MMG INSURANCE COMPANY RESTORECORE,Inc. and KUALA FANG CHENG, , Defendants DEFENDANT KUAN FANG CHENG'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR DELAY DAMAGES PURSUANT TO PA.R.C.P.238 1. Plaintiff is not entitled to delay damages or prejudgment interest on the jury's award of Forty Thousand Dollars($40,000.00). 2. Pursuant to Pa.R.C.P. 238(a)(1), "at the request of the plaintiff in a civil action seeking monetary relief for bodily iniurv,death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant...found to be liable to the plaintiff."(emphasis added). 3. Plaintiff,however, cannot recover delay damages during any period that the plaintiff caused the delay in trial. 4. Plaintiff did not receive an award for property damages from the jury. 1 5. Specifically,while Plaintiff initially seemingly requested compensation for alleged improperly seized property, such issue was not even posed to the jury as the Court determined that the present case was not one of wrongful distraint but of wrongful eviction. 6. The jury was not instructed to determine an award of damages for property damage. 7. In fact,Defendant was precluded from even arguing his defenses to Plaintiff's original claim that he improperly seized Plaintiff's personal property to the jury. 8. The verdict therefore necessarily does not include an award for property damage. 9. Rather, Plaintiff s verdict award encompasses his claimed lost investment opportunity and lost business profit,which Defendant Cheng timely filed a Motion for Post Trial Relief seeking to strike. 10. Plaintiff cannot recover delay damages for either his claimed lost investment or lost profit. 11. For example,the Pennsylvania Superior Court has previously held that an aggrieved plaintiff-employee would not recover delay damages on the theory that his defendant- employer interfered with the plaintiff's right to pursue his occupation because this injury did not constitute"property damage." Butler v. Flo-Ron Vending Co., 557 A.2d 730(Pa. Super 1989), appeal denied 567 A.2d 650. 12. The Court also cannot permit the assessment of delay damages for"property damage" for an aggrieved plaintiffs lost profits at the hand of the liable defendant. Contractor Utility Sales Co., Inc. v. Certain-Teed Corp., 748 F.2d 1151 (7t"Cir. 1984)(applying Pennsylvania law). 2 13. In fact, an Appellate Court will reverse a trial court's permitted assessment of delay damages in an action in which the plaintiff recovered only lost profits. Hughes v. Consol- Pennsylvania Coal Co, 945 F.2d 594 (3d Cir. 1991), 14. Rule 238 not apply to actions for rent or rental value of real estate or for claims of wrongful use and detention of real estate. Kincade v.Laurel Courts Inc., 644 A.2d 1268 (Pa. Super. 1994). 15. Plaintiff did not receive an award for claimed property damages and he therefore cannot recover delay damages in addition to the jury's verdict. 16. Additionally, even should the Court find that the jury awarded Plaintiff damages for"property damage,"which Defendant does not concede and which would directly conflict with the Court's instructions to the jury and Verdict Slip, Plaintiff cannot recover delay damages for any period in which he caused delay of trial. 17. Prior to imposing delay damages,the Court may hold a hearing to determine what periods of delay may have been attributed to Plaintiffs failure to proceed. Craig v. Magee Memorial Rehabilitation Center, 515 A.2d 1350(Pa 1986). 18. In determining a plaintiffs entitlement to delay damages,the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties'respective responsibilities in requesting continuances; the parties' compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors. Id. 19. Plaintiffs inaction with proceeding with his case caused periods of delay throughout litigation in this matter. 3 20. After reasonable investigation,Defendant Cheng asserts that Plaintiff at no time issued a demand to him. 21. Additionally,Plaintiff failed to pursue his claims and seasonably proceed with discovery of this matter throughout its litigation. 22. Plaintiff initiated this action on March 22, 2010. 23. Defendants commenced with discovery by serving Plaintiff with written discovery requests beginning in August 2010. 24. Plaintiff failed to respond to these requests for nearly one year. A similar amount of time passed between Plaintiff s responses to other requests. 25. Between August 2011 and February 2012,Plaintiff failed to timely respond to proper discovery requests and failed to proceed with litigation of this matter as demonstrated, in part,by co-Defendant's necessity of filing a Motion to Compel. 26. Further, Defendant Cheng served Plaintiff with written discovery requests in December 2012. 27. Plaintiff, despite repeated prompting, failed to serve Defendant Cheng with responses to his Requests for Production of Documents up to and including through trial of this matter and to the present day. 28. Without accurate discovery responses and given Plaintiffs refusal to provide information that would permit Defendant Cheng to adequately evaluate his claims,Defendant Cheng could not have made Plaintiff a reasonable offer or assess his potential damages. 29. Given Plaintiff s refusal to provide Defendant Cheng with proper and complete discovery responses through the time of trial, any delay in litigation was necessarily attributable to Plaintiff. 4 30. The Court should therefore deny Plaintiffs Motion for Delay Damages because Pa.R.C.P. 238 does not permit their recovery in this matter because Plaintiff did not receive an award for bodily injury, death or property damage. 31. In the alternative, and in addition, Plaintiff cannot recover delay damages for all periods of time during which a delay in litigation is attributable to Plaintiff. 32. The Court should therefore also deny Plaintiff's Motion because Plaintiff failed to provide Defendant Cheng with information that would have permitted Defendant to properly evaluate Plaintiff s claims and submit a reasonable offer of settlement throughout the entirety of this litigation. 33. In the alternative,the Court should hold a hearing to determine what portions of the delay in litigation are attributable to Plaintiff. WHEREFORE,Defendant Kuan Fan Cheng respectfully requests that this Honorable Court enter the attached Order and deny Plaintiff's Motion for Delay Damages. Respectfully submitted, SALZMANN HUGHES,P.C. r Date: f 1 Scott T. Wyland, Esquire Attorney I.D. No. 52660 Melissa L. Kelso, Esquire Attorney I.D. No. 306793 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Counsel for Cheng Kuan Fang Cheng 5 CERTIFICATE OF SERVICE I hereby certify that on the J)� day of OA� `.J1 , 2013, I served a true and correct copy of the foregoing document via United States first class mail,postage prepaid, and addressed as follows: Richard A. Wix, Esquire Wix, Wenger&Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Kevin C. McNamara, Esquire Thomas, Thomas&Hafer, LLP 305 North Front Street Harrisburg, PA 17101 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Harrisburg, PA 17011 SALZMANN HUGHES, P.C. By. .. t> Melissa L. Kelso, Esquire 7 t FILED-OFFICE OF THE PROTHONO TAI-N", 1013 MAR 15 AM If: 24 THOMAS, THOMAS&HAFER,UP CUMBERLAND COUNTY Kevin C. McNamara,Esquire PENNSYLVANIA identification Number. 72668 P.O.Box 999 Harrisburg,PA 17108-0999 717/237-7132 kmcnamara(Mtthiaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-2015 MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CIVIL TERM CHENG, Defendants JURY TRIAL DEMANDED DEFENDANT MMG INSURANCE COMPANY"S CROSS MOTION FOR POST-TRIAL RELIEF AND FOR PARTIAL TRANSCRIPT OF TRIAL AND NOW, comes Defendant MMG Insurance Company, by its attorneys, Thomas, Thomas & Hafer, LLP, and brings the following Cross Motion for Post-Trial Relief: 1. As to MMG, this case ended in a jury verdict for the Defense on March 1, 2013. 2. The jury concluded that the Plaintiff committed a material breach of contract which precluded any recovery against MMG. The jury's verdict was amply supported by evidence in the trial record. 3. The Plaintiff had, in part, asserted that MMG breached the insurance contract with the Plaintiff by failing to properly calculate business income loss. 4. In the Plaintiffs case in chief, he failed to offer sufficient evidence from which the jury could calculate loss of business income without resort to speculation or guesswork. 5. In the Plaintiff's case in chief, he failed to offer any expert testimony from which the jury could calculate loss of business income without resort to speculation or guesswork. 6. In the Plaintiffs case in chief, he failed to offer any lay testimony, foundation or basis from which the jury could calculate loss of business income without resort to speculation or guesswork. 7. In the Plaintiffs case in chief, he failed to offer any documentary evidence from which the jury could calculate loss of business income without resort to speculation or guesswork. 8. The documentary evidence offered by the Plaintiff in his case in chief to support his claim for loss of business income was inadequate to provide any basis whatsoever for the jury to calculate income loss as the Plaintiff, himself, acknowledged that the primary financial record he offered to show business income, his 2008 Federal Income tax return, contained errors and was incorrect. 9. At the close of the Plaintiffs case in chief, a motion for compulsory non-suit was made on behalf of Defendant MMG with respect to the claim for loss of business income on the grounds that the Plaintiff had failed to produce sufficient evidence upon which a jury could calculate business income without resort to speculation or guesswork. 10. MMGs motion for compulsory non-suit was incorrectly denied by the Court. 11. During the charge, the Court instructed the jury that MMG had essentially misinterpreted the Business Income definition (located at p. 6 of 43 in the main policy form) in the insurance policy to offset a net loss of earnings against the amount due for continuing normal operating expenses. 12. The jury was instructed by the Court that MMG had a duty dictated by the policy to pay both net profit and continuing normal operating expenses and that a net loss of income could not be used to offset the amount due for continuing normal operating expenses. 2 13. The Court's instructions with respect to the policy definition of Business Income and its application to the facts of this case were contrary to the policy language and to the law. 14. The Plaintiff has filed a Motion for Post-trial relief seeking a new trial based upon alleged errors at trial. 15. MMG believes the Plaintiffs Post-trial Motion has no merit and should be denied. MMG's response to the Plaintiffs Motion for Post-trial Relief is incorporated herein as if set forth at length. 16. However, if the Plaintiffs Motion for Post-trial relief is granted, MMG asserts that judgment should be entered in its favor as to the Business Income loss claim as the Plaintiff failed to sustain his burden of proving business income loss during his case in chief. MMG's position was timely preserved by an appropriate motion at the close of Plaintiffs case. 17. Alternatively, should the Plaintiffs Motion for Post-trial relief be granted, and should MMG's motion for compulsory non-suit be denied, MMG submits that upon retrial, the jury should be instructed in accordance with the insurance policy provisions that a net loss of earnings can be used to offset payments due for continuing normal operating expenses. MMG's Request for Transcription of Testimony Pursuant to Rule 227.3 MMG designates the following portions of the record to be transcribed in order for the Court to fully evaluate and dispose of the pending Motions for Post-trial Relief: 1 The entire record of all proceedings beginning at the conclusion of opening statements and ending at the conclusion of the Defendant's oral motions for compulsory non- suit made at the close of the Plaintiffs case in chief; 2. The testimony of Jeff Clark taken Thursday, February 28, 2013; 3. The entire record of all proceedings from Friday, March 1, 2013. WHEREFORE, MMG respectfully requests that if the Plaintiffs Motion for Post-trial relief is granted, that judgment should be entered in favor of MMG as to the Business Income loss claim as the Plaintiff failed to sustain his burden of proving his business income loss during his 3 case in chief. Alternatively, should the Plaintiffs Motion for Post-trial relief be granted, and should MMG's motion for compulsory non-suit be denied, MMG submits that upon retrial, the jury should be instructed in accordance with the insurance policy provisions that a net loss of earnings can be used to offset payments due for continuing normal operating expenses. Respectfully submitted, THOMAS, THOMAS & HAFPR, LLP By: C Kevin C. McNamara, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 (717)237-7132 Attorneys for Defendant MMG Insurance Company Date: 31513 4 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the,��day of /r�4t /C , 2013: The Honorable Edward Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Richard A. Wix, Esquire Wix, Wenger&Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Jason Eugene Kelso, Esquire Salzmann Hughes, PC 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Laura Handley, Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP By: -C ;Vn Kevin C. McNamara, Esquire 5 FILED-OFFICT OF THE FUTNDNQ TjrA 2913 MAR 15 AM I I: 25 THOMAS, THOMAS&HAFER,LLP CUMBERLAND CGUN t`j' Kevin C.McNamara, Esquire PENNSYLVANIA Identification Number: 72668 P.O.Box 999 Harrisburg, PA 17108-0999 717/237-7132 kmcnamara @tthlaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-2015 MMG INSURANCE COMPANY, CIVIL TERM RESTORECORE, INC. and KUAN FANG CHENG, JURY TRIAL DEMANDED Defendants DEFENDANT MMG INSURANCE COMPANY'S RESPONSE TO PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AND NOW, comes Defendant MMG Insurance Company, by its attorneys, Thomas, Thomas & Hafer, LLP, and responds to Plaintiff's Motion for Post-Trial Relief as follows: 1. Denied. 2. Denied. The jury's conclusion that the Plaintiff committed a material breach of contract was amply supported by the evidence in the case. 3. Admitted with qualification. During deliberations, the jury posed a question, the substance of which was a request for identification of the provision in the insurance policy that MMG was relying upon to support the defense that the Plaintiff had committed a material breach of his duties and obligations under the insurance contract. 4. Admitted with qualification. It is admitted that, in part, MMG relied upon the quoted provision of the policy which was offered into evidence during MMG's case in chief. The provision was displayed to the jury and Plaintiff's counsel offered no objection to this evidence. 5. Denied. The jury's conclusion that the Plaintiff committed a material breach of contract was amply supported by the evidence. Moreover, these grounds for post-trial relief were not properly preserved at the time of trial. 6. Admitted with qualification. While the Court did not charge on the issue of fraud, the Court did charge the jury with respect to what constituted a material breach of contract and the Court did instruct the jury that both parties to a contract owe the other a duty of good faith and fair dealing. The fact that the jury was not charged on fraud is of no consequence as the jury was also justified in concluding that the Plaintiff at some point intentionally concealed or misrepresented a material fact concerning the policy, the covered property, his interest in the covered property or his claim under the subject policy or that the Plaintiff violated his duty of good faith and fair dealing. Moreover, these grounds for post-trial relief were not properly preserved at the time of trial. 7. Denied. The record was replete with evidence that the Plaintiff intentionally misled or misrepresented material facts to the Defendant, e.g., the submission of inconsistent and inflated sales data, understatement of expense data and submission of a 2008 income tax return that overstated net income. Upon cross examination, the Plaintiff could not even attest to the fact that his own 2008 income tax return was correct. On this information alone, the jury was justified in concluding that either a material misrepresentation of fact had occurred with respect to this insurance claim or that the Plaintiff breached his duty of good faith and fair dealing. Moreover, these grounds for post-trial relief were not properly preserved at the time of trial. 8. Admitted with qualification. While the Court did not specifically charge the jury on what would constitute intentional concealment or misrepresentation of a material fact, the Court 2 did instruct the jury on the issue of material breach of contract as well as the general duty of good faith and fair dealing and no further instruction was necessary. Moreover, these grounds for post-trial relief were not properly preserved at the time of trial. 9. Denied. The Plaintiffs characterization of what the evidence did or did not show is inaccurate and irrelevant. Moreover, while the forensic accountant may have testified that he recognized misstatements and/or misrepresentations in the financial submissions offered by the Plaintiff and his representative during the course of the claim, no showing of reliance is necessary where an insured intentionally-conceals or misrepresents a material fact concerning a claim under the insurance policy. Additionally, no showing of reliance is necessary to establish that the Plaintiff breached his own duty of good faith and fair dealing in contractual matters. Moreover, these grounds for post-trial relief were not properly preserved at the time of trial. 10. Denied. The Plaintiff's characterization of what the evidence did or did not show is inaccurate and irrelevant. Moreover, while the forensic accountant may have testified that he saw and recognized misstatements and/or misrepresentations in the financial submissions offered by the Plaintiff and his representative during the course of the claim, no showing of reliance is necessary where an insured intentionally conceals or misrepresents a material fact concerning a claim under the insurance policy. Additionally, no showing of reliance is necessary to establish that the Plaintiff breached his own duty of good faith and fair dealing in contractual matters. Moreover, these grounds for post-trial relief were not properly preserved at the time of trial. Reauest for Transcription of Testimony Pursuant to Rule 227.3 MMG designates the following portions of the record to be transcribed in order for the Court to fully evaluate and dispose of the pending Motions for Post-trial Relief: 3 1. The entire record of all proceedings beginning at the conclusion of opening statements and ending at the conclusion of the Defendant's oral motions for compulsory non- suit made at the close of the Plaintiff's case in chief; 2. The testimony of Jeff Clark taken Thursday, February 28, 2013; 3. The entire record of all proceedings from Friday, March 1, 2013. WHEREFORE, Defendant MMG Insurance Company respectfully requests that the Plaintiffs Motion for Post-Trial Relief be denied and dismissed. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By. T 711�12 100, Kevin C. McNamara, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 (717)237-7132 Attorneys for Defendant MMG Insurance Company Date: V11 4 CERTIFICATE OF SER1nCE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing document or e following persons by placing same in the United States mail, postage prepaid, on the day of Make A , 2013: The Honorable Edward Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Richard A. Wix, Esquire Wix, Wenger&Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Jason Eugene Kelso, Esquire Salzmann Hughes, PC 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Laura Handley, Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 THOMAS, THOMAS & HAFER, LLP By: Kevin C. McNamara, Esquire 5 TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-2015 MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CIVIL TERM CHENG, Defendants JURY TRIAL DEMANDED ORDER G� tiG�AND NOW, this � l day of , 2013, upon consideration of Defendant MMG Insurance Company's Cross Motion for Post-Trial Relief, it is ORDERED that the assigned Court Reporter shall prepare a transcript of all proceedings 1) beginning at the conclusion of opening statements and ending at the conclusion of the Defendants' oral motions for compulsory nonsuit made at the close of Plaintiffs case in chief; 2) the testimony of Jeff Clark taken on Thursday, February 8, 2013; and 3) the entire record of all proceedings from Friday, March 1, 2013; and shall serve such transcripts upon the undersigned and upon counsel of record upon notification and payment of the costs thereof. ' -- =- BY U a !A-Q Q Q Ll....y� rM. C J J V� J. z -1W � wz t�x = CO j- ✓ TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2010-2015 CIVIL TERM MMG INSURANCE COMPANY, CIVIL ACTION - LAW RESTORECORE, INC. , and KUAN FANG CHENG, Defendants JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this 12th day of April, 2013 , all parties having requested substantial portions of the transcript, it is ordered and directed that the court reporter shall prepare the entire transcript and allocate the costs evenly among the parties (Defendant RestoreCore excepted. ) By the Court, Edward E. Guido, J. CHARD H. WIX, Esquire For the Plaintiff EVIN M. McNAMARA, Esquire For Defendant MMG Insurance V'<LF E . KROLL, Esquire For Defendant RestoreCore ,,,C:OTT T. WYLAND, Esquire , For Defendant Cheng C: z =a srs �V , r-° C7. } Z- ',. TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. MMG INSURANCE COMPANY, NO. 2010-2015 CIVIL TERM RESTORECORE, INC. , and KUAN FANG CHENG, CIVIL ACTION - LAW Defendant ORDER OF COURT AND NOW, this 2ND day of AUGUST, 2013, ARGUMENT on all Post Trial Motions will be heard before the undersigned on FRIDAY, AUGUST 30, 2013, at 10 :30 a.m. in Courtroom # 3 . Briefs in support of Post Trial Motions shall be filed in these Chambers by close of business on Friday, August 16, 2013 . Reply briefs shall be filed by close of business on Wednesday, August 28, 2013 . Any issue not briefed shall be deemed waived. By t e'�Court . Edward E. Guido, J. /RICHARD H. WIX, ESQUIRE KEVIN M. MCNAMARA, ESQUIRE r-y ,"ROLF E. KROLL, ESQUIRE y �--1 -,-, c-✓SCOTT T. WYLAND, ESQUIRE �; �� ' COURT ADMINISTRATOR : sld O Cl, y ' I Is Melissa L. Kelso, Esquire ,t3l, tt `°�¢ � Attorney I.D. No. 306793 J /fir SALZMANN HUGHES, P.C. 354 Alexander Spring Road, Suite 1 pEII, S ��D C p�'tJ , Carlisle, PA 17015 �ANIA (717) 249-6333 TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 10-2015 - CIVIL MMG INSURANCE COMPANY RESTORECORE, Inc. and KUAN FANG CHENG, Defendants DEFENDANT KUAN FANG CHENG'S PETITION FOR RELIEF And now comes Defendant, Kuan Fang Cheng, who hereby petitions this Honorable Court for relief as follows: 1. This Court,by the Honorable Judge Edward E. Guido, held a five(5) day jury trial in the above captioned matter that commenced on February 25, 2013. 2. On or about Friday, March 1, 2013, the jury returned a verdict in favor of Plaintiff Tarek Eltanbdawy("Plaintiff') and against Defendant Kuan Fang Cheng for a total amount of one hundred twenty thousand dollars ($120,000.00). 3. Subsequently, Defendant Kuan Fang Cheng("Defendant Cheng") timely filed his Motion for Post-Trial Relief, which, after the submission of briefs, this Court heard argument on on August 30, 2013. 4. Defendant Cheng's Motion for Post-Trial Relief remains pending before the Court. 5. Pursuant to Pa.R.C.P. 3022(a), the jury verdict became a lien on any property that Defendant Cheng owns within Cumberland County, including the property at issue located at 2431 Simpson Ferry Road, Camp Hill, Pennsylvania(the"Property"). 6. Defendant Cheng now seeks to sell the Property to its current commercial tenant and the parties have set a closing date of November 5, 2013. 7. Given the jury verdict lien, however, the involved title insurance company will not agree to insure the purchase and title of the Property without resolution of this outstanding lien. 8. Therefore, in order to sell the Property, Defendant Cheng must resolve this jury verdict lien in a manner that removes the lien from the Property's title. 9. The undersigned has spoken with Richard Wix, Esquire, counsel for Plaintiff, repeatedly throughout the last few weeks. 10. The parties have discussed the feasibility of placing a portion of the proceeds of the sale equal to or greater than the jury verdict in an escrow account pending the final resolution of this matter. 11. Mr. Wix, however, cannot reach Plaintiff because Plaintiff is in Egypt and therefore cannot agree to such an arrangement. 12. Mr. Wix therefore cannot concur in this Petition. 13. Defendant Cheng now petitions this Honorable Court for relief in the form of a Court Order that releases the jury verdict lien on the Property upon Defendant Cheng's escrow of a portion of the proceed of the sale equal to or greater than the jury verdict amount. 14. Defendant Cheng will submit these funds either to the Court for holding as the Court has done in smaller mechanic's lien cases or will place them in a private escrow account to which Mr. Wix, c/o Plaintiff-is an interested party and/or beneficiary with the condition that, should the jury amount be reduced, Plaintiff is only entitled to the reduced amount pending any appeal; Defendant Cheng will compensate Plaintiff from these funds for whatever verdict amount becomes the final resolution and award of the instant matter. 14. Defendant Cheng notes that sale of this Property will have no detrimental affect on Plaintiff s rights or interests because any approved arrangement will provide for liquid funds to pay the judgment amount, saving Plaintiff from any argument regarding lien rights on the Property, given the current tenant's right of first refusal and the necessity of collecting the judgment in other means. 15. The undersigned has discussed such an arrangement with Defendant Cheng and the attorney for the purchaser of the Property, Jonathan Rudd, Esq., and these parties consent and agree to such an arrangement. WHEREFORE, Defendant Kuan Fang Cheng respectfully requests that this Honorable Court enter the attached Order and lift the verdict lien assessed on Defendant Cheng's Property located at 2431 Simpson Ferry Road, Camp Hill, Pennsylvania, upon Defendant Cheng's submission of a portion of the proceeds of the sale of the Property either into the Court or into another Court ordered and approved escrow account to which Plaintiff is a beneficiary pending final resolution of the instant matter. Respectfully submitted, SALZMANN HUGHES, P.C. Melissa L. Kelso, Esquire Attorney I.D. No. 306793 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333 CERTIFICATE OF SERVICE I hereby certify that on the�—)L day of n 2013, 1 served a true and correct copy of the foregoing document via United States mail, first class mail, postage prepaid, and addressed as follows: Richard A. Wix, Esquire Wix, Wenger&Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Kevin C. McNamara, Esquire Thomas, Thomas &Hafer, LLP 305 North Front Street Harrisburg, PA 17101 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Harrisburg, PA 17011 Salzmann Hughes, P.C. By: elissa L. Kelso, Esquire 5 f THE PPUTHQNQ iAt Scott T. Wyland, Esquire Attorney I.D. No. 52660 2013 NOV -7 API 9: 32 Melissa L. Kelso, Esquire CUMBERLAND COUNTY Attorney I.D. No. 306793 PENNSYLVANIA SALZMANN HUGHES, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333 TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. . No. 10-2015 - CIVIL MMG INSURANCE COMPANY RESTORECORE, Inc. and • KUAN FANG CHENG, Defendants PRAECIPE TO THE PROTHONOTARY: Kindly release the jury verdict lien on the Property located at 3421 Simpson Ferry Road, Camp Hill, Pennsylvania and submit and hold the funds of the enclosed check for one hundred forty-four thousand dollars and zero cents ($144,000.00) in an interest bearing account in accordance with this Court's November 5, 2013, Order. Thank you. Respectfully submitted, SALZMANN HUGHES, P.C. � / B — .�-- Date: t y. Scott T. Wyland, Esquire Attorney I.D. No. 52660 Melissa L. Kelso, Esquire Attorney I.D. No. 306793 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Counsel for Kuan Fang Cheng 9. s o /$ Cs'4 P.479 /•Zb CERTIFICATE OF SERVICE I hereby certify that on the--1 day of�0\-A..A.AA-1.--, 2013, I served a true and correct copy of the foregoing document via United States mail, first class mail,postage prepaid, and addressed as follows: Richard A. Wix, Esquire Wix, Wenger&Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Kevin C. McNamara, Esquire Thomas, Thomas &Hafer, LLP 305 North Front Street Harrisburg, PA 17101 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Harrisburg, PA 17011 Salzmann Hughes, P.C. By (Cis-Q Melissa L. Kelso, Esquire r� TAREK ELTANBDA`VY, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 10-2015- CIVIL MMG INSURANCE COMPANY RESTORECORE, Inc. and KCUAN FANG CHENG, Defendants ORDER AND NOW, this `� i day of / � , 2013, upon consideration of Defendant Kuan Fang Cheng's Petition for Relief it is hereby Ordered and Decreed that this Petition is GRANTED. The Jury Verdict Lien assessed against the Property located at 2431 Simpson Ferry Road will be automatically lifted upon the Court's receipt of funds of the proceed of Defendant Cheng's sale of the Property to GTD Properties, LLC/Fusion f - . Fire Asian Restaurant equal to the jury verdict of one hundred AvAy thousand dollars The Court will hold these funds pending the final resolution of the above captioned action, at which point Defendant Cheng agrees that the Court may compensate Plaintiff for any damages from the escrowed funds held in Plaintiffs benefit. By t Court, Jam, i t CD fs '>�� r x.01 ifiCti� t� ��;� , to bank , -� �� +3��'� c: 33 Zf3 . CUMBERLAND C01""' J.epos+ PENNSYLVANIA COMMUNITY SETTLEMENT LLC ESCROW ACCOUNT 058408 Date: 11/06/13 Amount: 144,000.00 File Number: 040-680 Check n: 58408 Pay To: Cumberland County Prothonotary's Office Buyer: GTD Properties, LLC, a Pennsylvania limite Seller: Kuan Fang Cheng Property: 3421 Simpson.Ferry Road, Camp Hill; PA '17011 144,000.00 Verdict Lien 10-2015-Civil, : - 1` r 1F . 0 � �I i •!•' +C, I•I U ,IO• 7� L 7 i e. i i i , - 7 — '1. .. 7! a . COMMUNITY SETTLEMENT LLC SUSQUEHANNA a 058408 Pennsylvani ESCROW ACCOUNT.. ao-9i2r�i3 1 1-2,MARKET STREET,5TH FLOOR 1 7 1 7101 . 58408 DATE AMOUNT 11/06/13 ***$144,000.00*** The Sum ONE.HUNDRED. FORTY FOUR THOUSAND DOLLARS and 00/100 PAY To THE Cumberland County Prothonotary.'s Office ORDER VOID MS' OF i 1 M, _ — AUTHORFZffO SIGNAtUAE Harr rs II'OS84013n, 1.0313091231: 4501S90909 III D TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, . PENNSYLVANIA vs. No. 10-2015 - CIVIL MMG INSURANCE COMPANY RESTORECORE, Inc. and KUAN FANG CHENG, Defendants ,p ORDER AND NOW, this ��` day of /t)ar"4'41 , 2013, upon consideration of Defendant Kuan Fang Cheng's Petition for Relief, it is hereby Ordered and Decreed that this Petition is GRANTED. The Jury Verdict Lien assessed against the Property located at 2431 Simpson Ferry Road will be automatically lifted upon the Court's receipt of funds of the proceed of Defendant Cheng's sale of the Property to GTD Properties, LLC/Fusion Fire Asian Restaurant equal to the jury verdict of one hundred t Y thousand dollars if I )WV.dt . The Court will hold these funds pending the final resolution of the above captioned action, at which point Defendant Cheng agrees that the Court may compensate Plaintiff for any damages from the escrowed funds held in Plaintiffs benefit. By t - ourt, • V)/ s rn "11 rn CD CP�. cJ1 C. Q CD r i TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants IN RE: DEFENDANT KUAN FANG CHENG'S MOTION FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW, this 18TH day of NOVEMBER, 2013, upon consideration of Defendant Kuan Fang Cheng's myriad requests for relief contained in his Post-Trial Motion, and having reviewed the lengthy brief in support thereof, as well as having heard argument thereon, the Motion is DENIED. the Co r, Edward E. Guido, J. Richard H. Wix, Esquire 'Kevin C. McNamara, Esquire (-) Rolf E. Kroll, Esquire r ' �elissa Kelso, Esquire C./)<? /13 CD :sld Y; zr 7 ES rn.V3 --4 /f )af13 =in ti TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AGAINST DEFENDANT MMG INSURANCE COMPANY & DEFENDANT MMG INSURANCE COMPANY'S CROSS MOTION FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW,this 18TH day of NOVEMBER, 2013, upon consideration of Plaintiff's Motion for Post-Trial Relief, as well as the brief in support thereof, and having heard argument thereon, said Motion is DENIED. In light of our decision on Plaintiff's Motion, Defendant MMG's Cross Motion is DISMISSED. n e Cou rr, G l Edward E. Guido, J. Richard H. Wix, Esquire Kevin C. McNamara, Esquire /lf E. Kroll, Esquires` '; Melissa Kelso, Esquire r r�� ~ ' r, rsa :sld c yes -�: c: P� /C172,Ofi 3 =3 �- TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants IN RE: PLAINTIFF'S MOTION FOR DELAY DAMAGES ORDER OF COURT AND NOW, this 18TH day of NOVEMBER, 2013, Plaintiff's Motion for Delay Damages is DENIED. B,, e Court, �1� V6 Edward E. Guido, J. '' Richard H. Wix, Esquire Kevin C. McNamara, Esquire Rolf E. Kroll, Esquire Melissa Kelso, Esquire c' ' :sld = c:=, -0 0-6r'es irL .A.lixt_ , . c-)4,. c-.., ,.p, c—S ciao/r3 , ■ • • THE PPOTHONO is ,. 2313 O C 18 AM 1•:1 10 CUMBERLAND COUNTY PENNSYLVANIA TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION- LAW :RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants NOTICE OF APPEAL Notice is hereby given that Tarek Eltanbdawy, Plaintiff above named, hereby appeals to the Superior Court of Pennsylvania the Order entered in this matter on the 20th day of November 2013. This Order has been entered in the docket as evidenced ti by the attached copy of the docketed order. Respectfully Submitted, WIX, WENGER &WEIDNER By . 1.��-'� Richard H. Wix, Esq., ID#07274 4705 Duke Street Harrisburg, PA 17109-3041 4 7 �O r VC/171j (717) 652-8455 Dated: 1418/13 Counsel for Plaintiff (iN g5 -F99.571% apv 57(7 fly TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and. KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AGAINST DEFENDANT MMG INSURANCE COMPANY & DEFENDANT MMG INSURANCE COMPANY'S CROSS MOTION FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW,this 18Th day of NOVEMBER, 2013, upon consideration of Plaintiff's Motion for Post-Trial Relief, as well as the brief in support thereof, and having heard argument thereon, said Motion is DENIED. In light of our decision on Plaintiff's Motion,Defendant MMG's Cross Motion is DISMISSED. i e Co r' Edward E. Guido, J. Richard H. Wix, Esquire Kevin C. McNamara, Esquire Rolf E. Kroll,Esquire rn - Zrn o Melissa Kelso,Esquire cn N .sld CD 5 C9 741 -4 - ='� CERTIFICATE OF SERVICE AND NOW, this 18th day of December, 2013, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiff, hereby certify that I served the within Plaintiffs Notice of Appeal this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: The Honorable Edward E. Guido, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Kevin C. McNamara, Esq. Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108-0999 Rolf E. Kroll, Esq. Margolis Edelstein 3150 Trindle Road Camp Hill, PA 17011 Melissa Kelso, Esq. Salzmann Hughes 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 WIX, WENGER &WEIDNER Gaye Crist mmmimmommimmmmmmimimm • PYS511 Cumberland County Prothonotary' s Office Page 1 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed • 3/22/2010 Case Type • REAL PROPERTY - LANDLO Time 3 : 08 Judgment . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date . 0/00/0000 Case Comments Higher Crt 1 . : Higher Crt 2 . : ******************************************************************************** General Index Attorney Info ELTANBDAWY TAREK PLAINTIFF WIX RICHARD H 117 PRINCE ST HARRISBURG PA 17109 MMG INSURANCE COMPANY DEFENDANT MCNAMARA KEVIN C PO BOX 729 PRESQUE ISLE ME 04769 RESTORECORE INC DEFENDANT KROLL ROLF E 2322 N 7TH ST HARRISBURG PA 17110 CHENG KUAN FANG DEFENDANT WYLAND SCOTT T 11 BOWMAN ST KELSO JASON E LEBANON PA 17046 ******************************************************************************** Judgment Index Amount Date Desc ELTANBDAWY TAREK 3/01/2013 VERDICT MMG INSURANCE COMPANY 3/01/2013 VERDICT CHENG KUAN FANG 40, 000 . 00 3/01/2013 VERDICT CHENG KUAN FANG 80, 000 . 00 3/01/2013 VERDICT ELTANBDAWY TAREK 11/07/2013 RELEASE MMG INSURANCE COMPANY 11/07/2013 RELEASE INC 11072013 RELEASE CHENG RKUAN EFANG 11/07/2013 RELEASE ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY 3/22/2010 COMPLAINT - CIVIL ACTION RICHARD H WIX ESQ 4/05/2010 SHERIFF' S RETURN - 3/25/10 - LEBANON COUNTY - COMPLAINT AND NOTICE UPON DEFT KUAN FANG CHENG AT 280 REIST ROAD LEBANON 17046 SHERIFF' S RETURN - 3/29/10 - DAUPHIN COUNTY - COMPLAINT AND NOTICE UPON DEFT RESTORECORE INC AT 2322 N 7TH STREET HARRISBURG PA 17110 SHERIFF' S COST $62 . 44 4/07/2010 BRAECIPE F FOR RCENNTRYAOFSAAPPEARANCE FOR DEFT MMG INSURANCE COMPANY - Y KEVIN 4/13/2010 PRAECIPE TO ENTER APPEARANCE FOR DEFT RESTORECORE INC - BY ROLF E KROLL ESQ 4/14/2010 DEFENDANT MMG INSURANCE COMPANYS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY 4/19/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT MMG INSURANCE COMPANY' S PRELIMINARY OBJECTIONS TO PLFS COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY 4/20/2010 DEFENDANT KUAN FANG CHENGS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY GEORGE E CHRISTIANSON ATTY FOR DEFT KUAN FANG CHENG 4/23/2010 AMENDED COMPLAINT - BY RICHARD H WIX ATTY FOR PLFF 4/23/2010 CERTIFICATE OF SERVICE - AMENEDED COMPLAINT UPON KEVIN C MCNAMARA ESQ ROLF E KROLL ESQ AND GEORGE E CHRISTIANSON ESQ - BY RICHARD H WIX ATTY FOR PLFF PYS511 Cumberland County Prothonotary' s Office Page 2 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed • 3/22/2010 Case Type • REAL PROPERTY - LANDLO Time 3 : 08 Judgment . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc. : Disposed Date. 0/00/0000 Case Comments Higher Crt 1 . : Higher Crt 2 . : 5/05/2010 DEFENDANT MMG INSURANCE COMPANYS PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY KEVIN C MCNAMARA ATTYF OR DEFT MMG INSURANCE COMPANY 5/13/2010 DEFENDANT KUAN FAND CHENGS ANDWER TO PLFFSA AMENDED COMPLAINT - BY GEORGE E CHRISTIANSON ATTY FOR ANSWERING DEFT KUAN FANG CHENG 5/18/2010 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY RICHARD H WIX ATTY FOR PLFF 6/07/2010 DEFENDANT MMG INSURANCE COMPANYS ANSWER WITH NEW MATTER AND CROSSCLAIMS TO PLFFS AMENDED COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY 7/27/2010 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFT 8/30/2010 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFS 9/09/2010 ANSWER WITH NEW MATTER AND NEW MATTER IN THE NATURE OF A COUNTER-CLAIM OF DEFENDANT RESTORECORE INC TO AMENDED COMPLAINT OF PLAINTIFF TAREK ELTANBDAWY - WITH NOTICE TO PLEAD - BY ROLF E KROLL ATTY FOR DEF RESTORECORE INC 6/17/2011 MCNAMARATATTY FOR MMMGCINSURANCE' MOTION TO COMPEL - KEVIN C CO/DEFT 6/30/2011 ORDER DATED 6-29-11 IN RE MOTION TO COMPEL DISCOVERY IS *GRANTED* PLAINTIFF IS TO ANSWER WITHIN 30 DAYS OF THE DATE OF THIS ORDER -BY THE COURT EDWARD E GUIDO J- COPIES MAILED 6-30-11 9/01/2011 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFT 1/18/2012 MOTION TO COMPEL DISCOVERY OF DEFENDANTS RESTORECORE INC - BY ROLF E KROLL ATTY FOR DEF 1/23/2012 ORDER - 1/20/12 - IN RE: MOTION TO COMPEL - GRANTED COURT DIRECTS THAT PLFF PROVIDE FULL AND COMPLETE ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS SERVED UPON HIM WITHIN 20 DAYS OR SUFFER SANCTIONS UPON FURTHER MOTION TO THE COURT - BY EDWARD E GUIDO J - COPIES MAILED 1/23/12 5/30/2012 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFT 9/05/2012 PRAECIPE FOR LISTING CASE FOR JURY TRIAL BY - BY RICHARD H WIX ATTY FOR PLFF 10/26/2012 DEFENDANT KUAN FANG CHENG' S MOTION TO STRIKE FROM THE NOVEMBER TRIAL LIST PURSUANT TO CCRP 213-2 - BY JASON E KELSO ATTY FOR DEFT/CHENG 10/26/2012 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY GEORGE E CHRISTIANSON ATTY FOR KUAN FANG CHENG 10/26/2012 PRAECIPE TOEENTEREAPAPPEARANCE - BY JASON E KELSO AND SCOTT T WYLAND ATTYS FOR 11/01/2012 PLAINTIFF' S ANSWER TO DEFENDANT KUAN FANG CHENG' S MOTION TO STRIKE - BY RICHARD H WIX ATTY FOR PLFF 11/08/2012 ORDER OF COURT DATED 11-6-12 IN RE CIVIL TRIAL LIST - STRICKEN FROM NOVEMBER TRIAL LIST - LISTED FOR TRIAL ON FEBRUARY 25 2013 AT 9 30 AM - BY THE COURT CHRISTYLEE L PECK J- COPIES MAILED 11-8-12 • PYS511 Cumberland County Prothonotary' s Office Page 3 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed 3/22/2010 Case Type • REAL PROPERTY - LANDLO Time 3 : 08 Judgment . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date. 0/00/0000 Case Comments Higher Crt 1 . : Higher Crt 2 . : 12/31/2012 MOTION OF KUAN FANG CHENG TO CONSOLIDATE ACTIONS - BY MELISSA L KELSO ATTY FOR DEFT CHENG 1/04/2013 ORDER OF COURT DATED 1-4-13 IN RE RULE IS ISSUED UPON ALL PARTIES TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 1-4-13 1/10/2013 DEFENDANT KUAN FANG CHENG' S PETITION FOR LEAVE OF COURT TO AMEND HIS ANSWER TO ADD NEW MATTER AND COUNTERCLAIM - BY MELISSA L KELSO ATTY FOR DEFT 1/10/2013 MELISSA A L K KUAN OFATGYCHENG' S MOTIONGFOR SUMMARY JUDGMENT - BY FOR 1/10/2013 J PRAECIPE FOR DGMENT - LISTING ATTYMFOR DEFT/ KUANMFANGN SUMMARY CHENG 1/23/2013 DEFENDANT MMG INSURANCE COMPANY' S RESPONSE TO RULE TO SHOW CAUSE ON DEFENDANT CHENG' S MOTION TO CONSOLIDATE MATTERS - BY KEVIN C MCNAMARA ATTY FOR DEFT 1/23/2013 ORDER OF COURT DATED 1-23-13 - IN RE RULE IS ISSUED UPON PLFF AND CO-DEFTS TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 1-23-13 2/08/2013 PLAINTIFFS ANSWER TO DEFENDANT CHENG' S MOTION FOR SUMMARY JUDGMENT - BY RICHARD H WIX ATTY FOR PLFF 2/08/2013 PLAINTIFFS ANSWER TO DEFENDANTS CHENG' S PETITION FOR LEAVE TO AMEND HIS ANSWER - BY RICHARD H WIX ATTY FOR PLFF 2/13/2013 ORDER IN RE PRETRIAL CONFERENCE DATED 2-13-13 - BY THE COURT EDWARD E GUIDO J- 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE PETITION FOR LEAVE TO AMEND HIS ANSWER TO PLFF COMPLAINT IS **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE MOTION TO CONSOLIDATE CASES IS **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE MOTION FOR SUMMARY JUDGMENT IS **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 2/19/2013 MOTION IN LIMINE OF DEFENDANT KUAN FANG CHENG TO PRECLUDE PLAINTIFF FROM RECOVERING EMOTIONAL DISTRESS DAMAGES - BY MELISSA L KELSO ATTY FOR DEFT CHENG KUAN FANG CHENG 2/19/2013 MOTION IN LIMINE OF DEFT KUAN FANG CHENG TO PRECLUDE TESTIMONY BY RICK MCCLURE - BY MELISSA L KELSO ATTY FOR DEFT 2/19/2013 MOTION IN LIMINE OF DEFENDANT KUAN FANG CHENG TO PRECLUDE PLAINTIFF FROM RECOVERING PUNITIVE DAMAGES - BY MELISSA L KELSO ATTY FOR DEFT 2/19/2013 DEFENDANT MMG INSURANCE COMPANYS MOTION IN LIMINE - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE 2/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO LIMIT DAMAGES AFTER APRIL 10 2009 - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE 2/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO PRECLUDE RECOVERY OF DAMAGES IN EXCESS OF CONTRACTUAL LIMITATION ON DAMAGES CLAUSE - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE 2/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO PRECLUDE EVIDENCE OF LOST PROFITS - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE PYS511 Cumberland County Prothonotary' s Office Page 4 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed • 3/22/2010 Case Type • REAL PROPERTY - LANDLO Time 3 : 08 Judgment . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date . 0/00/0000 Case Comments Higher Crt 1 . : 2/19/2013 PLAINTIFF' S MOTION IN LIMINE TO EXCLUDE DEFT hCHENG' S2OFFER TO SUBMIT INTO EVIDENCE ATTY WALLACE ' S LETTERS OF 4/23/09 AND 9/20/09 - BY RICHARD H WIX ATTY FOR PLFF 2/22/2013 RESTORECOREUINC'SN MOTION GIN LIMINE STOI LIMIT ODAAMAGEST DEFT AFTER 4/10/09 - BY SCOTT WYLAND ATTY FOR DEFRT 2/22/2013 DEFENDANT MIATOPPOSITION PLFF' S TO EXCLUDE ATTORNEY WALLACE ' S WALLACE ' SLETTERSOF MOTION IN LIMINE 4/23/09 AND 9/20/09 - BY SCOTT T WYLAND ATTY FOR DEFT 2/22/2013 DEFENDANT KUAN FANG CHENG' S RESPONSE IN OPPOSITIONI TO DEFT MMG INSURANCE CO' S MOTION IN LIMINE - BY SCOTT T WYLAND ATTY FOR DEFT 2/28/2013 DEFENDANTS MOTION TO PRECLUDE PLFF FROM SUBMITTING HIS CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS TO THE JURY - BY JASON E KELSO ATTY FOR DEFTS 3/01/2013 VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13- IN RE TAREK ELTANBDAWY VS MMG INS CO - QUESTION 1 - DO YOU FIND THAT DEFT MMG INS CO BREACHED ITS CONTRACT OF INSURANCE WITH PLFF - YES QUESTION 2 - DO YOU FIND THAT PLFF MATERIALLY BREACHED HIS OBLIGATION UNDER THE POLICY - YES 3/01/2013 VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13 - IN RE TAREK ELTANBDAWY VS RETORECORE INC - QUESTION 1 - DO YOU FIND THAT DEFT RESTORE CORE INC WAS NEGLIGENT IN ITS REPAIR OF PLFF' S PREMISES - NO 3/01/2013 VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13 - IN RE - TAREK ELTANBDAWY VS KUAN FANG CHENG - QUESTION 1 - DO YOU FIND THAT DEFT CHENG BREACHED THE TERMS OF HIS LEASE WITH PLFF WITH RESPECT TO THE WARRANTY OF THE HEATING SYSTEM - NO IF YOU ANSWERED NO PROCEED TO QUESTION 3 QUESTION 3 - DO YOU FIND THAT DEFT CHENG' S BREACH OF THE WARRANTY PROVISION CAUSED ECONOMIC DAMAGE TO THE PLFF - NO QUESTION 4 - DO YOU FIND THE DEFT CHENG BARRED THE PLFF FROM THE PREMISES ON OR ABOUT 04/10/09 - YES QUESTION 5 - WAS DEFT CHENG' S LOCKING OF THE PLFF OUT OF THE RESTAURANT IN VIOLATION OF THE LANDLORD TENANT ACT - YES QUESTION 6 - DO YOU FIND THAT PLFF ABANDONED THE PROPERTY PRIOR TO DEFT CHENGS LOCKING HIM OUT OF THE RESTAURANT - NO QUESTION 7 - DO YOU FIND THAT THE UNLAWFUL LOCKING OF THE PREMISES CAUSED ECONOMIC DAMAGE TO THE PLFF - YES QUESTION 8 - STATE THE TOTAL AMOUNT OF ECONOMIC DAMAGES SUSTAINED BY PLFF AS A RESULT OF DEFT CHENGS CONDUCT - $40 . 00 . 00 QUESTION 9 - WAS DEFT CHENGS CONDUCT IN BARRING THE PLFF FROM THE PREMISES OUTRAGEOUS - YES QUESTION 10 - STATEFTHEHAMOUNT$O0, 000IOOVE DAMAGES IF ANY TO BE 3/11/2013 PLFFS MOTION FOR POST TRIAL RELIEF PURSUANT TO PA RCP 227 . 1 AGAINST DEFT MMG INSURANCE COMPANY - BY RICHARD H WIX ATTY FOR PLFF 3/11/2013 PLAINTIFF' S MOTION FOR DELAY DAMAGES PURSUANT TO PA RCP 238 - BY RICHARD H WIX ATTY FOR PLFF 3/11/2013 DEFENDANT KUAN FANG CHENG' S MOTION FOR POST-TRIAL RELIEF - BY MELISSA L KELSO ATTY 3/14/2013 ORDER DATED 3-14-13 IN RE PLFF MOTION FOR POST-TRIAL RELIEF - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 3-14-13 3/15/2013 DEFENDANT KUAN FANG CHENG' S RESPONSE IN OPPOSITION TO PLAINTIFF' S MOTION FOR DELAY DAMAGES PURSUANT TO PA RCP 238 - BY MELISSA L KELSO ATTY FOR DEFT CHENG PYS511 Cumberland County Prothonotary' s Office Page 5 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed 3/22/2010 Case Type REAL PROPERTY - LANDLO Time 3 : 08 Judgment . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date. 0/00/0000 Case Comments Higher Crt 1 . : Higher Crt 2 . : 3/15/2013 DEFENDANT MMG INSURANCE COMPANY' S CROSS MOTION FOR POST TRIAL RELIEF AND FOR PARTIAL TRANSCRIPT OF TRIAL - BY KEVIN C MCNAMARA ATTY FOR DEFT 3/15/2013 DEFENDANT MMG INSURANCE COMPANY' S RESPONSE TO PLAINTIFF' S MOTION FOR POST-TRIAL RELIEF - BY KEVIN C MCNAMARA ATTY FOR DEFT 3/20/2013 ORDER DATED 3-19-13 IN RE DEFT CROSS MOTION - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 3-20-13 4/16/2013 ORDER OF COURT DATED 4-12-13 IN RE REQUEST FOR TRANSCRIPT - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 4-16-13 5/14/2013 TRANSCRIPT OF PROCEEDINGS - IN RE: JURY TRIAL - 2/25/13 - 2/26/13 BEFORE HONORABLE EDWARD E GUIDO JUDGE - VOL I-II & III 7/23/2013 TRANSCRIPT OF PROCEEDINGS - IN RE: CLOSING STATEMENTS AND JURY CHARGE - VOLUME IV BY EDWARD E GUIDO J 8/02/2013 ORDER OF COURT DATED 8-2-13 IN RE ARGUMENT ON POST TRIAL MOTIONS SCHEDULED FOR AUGUST 30 2013 AT 10 30 AM IN CR 3 - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 8-2-13 11/01/2013 DEFENDANT KUAN FANG CHENG' S PETITION FOR RELIEF - BY MELISSA L KELSO ATTY FOR DEFT 11/07/2013 PRAECIPE TO RELEASE JURY VERDICT LIEN ON PROPERTY LOCATED AT 3421 SIMPSON FERRY RD CAMP HILL PA AND HOLD FUNDS OF ENCLOSED CKECK FOR $144000 . 00 IN INTEREST BEARING ACCOUNT IN ACCORDANCE WITH 11/513 COURT' S ORDER - BY MELISSA L KELSO ATTY FOR DEFT/KUAN FANG C E G 11/05/2013 ORDER DATED 11-05-13 - THE LIEN AGAINST PROPERTY WILL BE LIFTED UPON THE COURT' S RECEIPT OF FUNDS OF $144 , 000 . 00 - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 11-12-13 11/07/2013 DEPOSITED MONIES AS DIRECTED BY THE ORDER OF COURT DATED 11-05-2013 - IN THE AMOUNT OF $144 , 000 . 00 IN MIDPENN BANK ACCOUNT #17003708 - DAVID D BUELL, PROTHONOTARY 11/20/2013 ORDER OF COURT - 11/18/13 - IN RE: DEFT KUAN FANG CHENG' S MOTION FOR POST-TRIAL RELIEF - *DENIED* - BY THE COURT EDWARD E GUIDO J COPIES MAILED 11/20/13 11/20/2013 ORDER OF COURT - 11/18/13 - IN RE: PLFF' S MOTION FOR POST-TRAIL RELIEF AGAINST DEFT MMG INS CO & DEFT MMG INS CO' S CROSS MOTION FOR POST-TRIAL RELIEF - MOTION FOR POST-TRIAL RELIEF *DENIED* - DEFT MMG' S CROSS MOTION IS *DISMISSED* - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 11/20/13 11/20/2013 ORDER OF COURT - 11/18/13 - IN RE: PLFF' S MOTION FOR DELAY DAMAGES - *DENIED* - BY THE CO RT EDWARD E GUIDO J COPIES MAILED 11/20/13 LAST ENTRY ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pmts/Adi End Bal ******************************** ******** ****** ******************************* COMPLAINT 55 . 00 55 . 00 . 00 TAX ON CMPLT . 50 . 50 . 00 SETTLEMENT 8 . 00 8 . 00 . 00 AUTOMATION 5 . 00 5 . 00 . 00 JCP FEE 23 . 50 23 . 50 . 00 SUBPOENA 14 . 00 14 . 00 . 00 PRAECIPE TRIAL 29 . 75 29 . 75 . 00 PREACIPE ARGUME 19 . 75 19 . 75 . 00 PYS511 Cumberland County Prothonotary' s Office Page 6 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed 3/22/2010 Case Type • REAL PROPERTY - LANDLO Time 3 : 08 Judgment . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date. 0/00/0000 Case Comments Higher Crt 1 . : Higher Crt 2 . : BOND 144000 . 00 144000 . 00 . 00 JDMT/RELEASE 9 . 50 9 . 50 . 00 144165 . 00 144165 . 00 . 00 ******************************************************************************** * End of Case Information * ******************************************************************************** TRUE COPY FROM RECOr, In Testimony whereof,t here unto set my hand and th ligg!of said Co t Carlisle,Pa. This Il) ' day of _� e ,20 r"--- fftesQaProthonotary 01 MONO TA, 2013 DEC 3 11 Apc 0 THOMAS, THOMAS&HAFER,LLP CUMBERLAND COUNTY Kevin C. McNamara, Esquire PENNSYLVANIA Identification Number: 72668 Stephanie L. Hersperger, Esquire Identification Number: 78735 P.O. Box 999 . Harrisburg, PA 17108-0999 717/237-7132 kmcnamara @tthlaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-2015 MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CIVIL TERM CHENG, Defendants JURY TRIAL DEMANDED NOTICE OF CROSS APPEAL OF�DEFENDANT, MMG INSURANCE�CQMFANY Notice is hereby given that Defendant, MMG Insurance Company, hereby cross appeals to the Superior Court of Pennsylvania pursuant to Pa.R.A.P. 511 and from the judgment entered in this matter on December 23, 2013, in favor of Defendant, MMG Insurance Company, after a verdict was entered in favor of Defendant, MMG Insurance Company, after trial on March 1, 2013. The judgment has been entered on the docket as evidenced by the attached copy of the docket. On December 18, 2013, Plaintiff filed a Notice of Appeal from the judgment. Gum a, ct a Gig Defendant previously requested that the transcript of the jury trial be prepared and same was lodged of record. Thus, no further transcript is necessary. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Az' Kevin C. Mc amara, Esquire Stephanie L. Hersperger, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant MMG Insurance Company Date: December 27, 2013 0910Q112272013 Cumberland County Prothonotary' s Office Page 1 'PYS510 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed. . . . . . . . : 3/22/2010 Case Type . . . . . : REAL PROPERTY - LANDLORD/TENAN Time . . . . . . . . . : 3 : 08 T DISPUTE Judgment . . . . . . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date . 0/00/0000 ------------ Case Comments ------------- Higher Crt 1 . : 2243MDA2013 Higher Crt 2 . : ******************************************************************************** General Index Attorney Info ELTANBDAWY TAREK PLAINTIFF WIX RICHARD H 117 PRINCE ST HARRISBURG PA 17109 MMG INSURANCE COMPANY DEFENDANT MCNAMARA KEVIN C PO BOX 729 PRESQUE ISLE ME 04769 RESTORECORE INC DEFENDANT KROLL ROLF E 2322 N 7TH ST HARRISBURG PA 17110 CHENG KUAN FANG DEFENDANT WYLAND SCOTT T 11 BOWMAN ST KELSO JASON E LEBANON PA 17046 Judgment Index Amount Date Desc ELTANBDAWY TAREK 3/01/2013 VERDICT MMG INSURANCE COMPANY 3/01/2013 VERDICT CHENG KUAN FANG 40 , 000 . 00 3/01/2013 VERDICT CHENG KUAN FANG 80 , 000 . 00 3/01/2013 VERDICT ELTANBDAWY TAREK 11/07/2013 RELEASE MMG INSURANCE COMPANY 11/07/2013 RELEASE RESTORECORE INC 11/07/2013 RELEASE CHENG KUAN FANG 11/07/2013 RELEASE ELTANBDAWY TAREK 12/23/2013 JUDG ON THE VERDICT ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 3/22/2010 COMPLAINT - CIVIL ACTION RICHARD H WIX ESQ -------- ----------------------------------------------------------- 4/05/2010 SHERIFF ' S RETURN- 3/25/10 - LEBANON COUNTY - COMPLAINT AND NOTICE UPON DEFT KUAN FANG CHENG AT 280 REIST ROAD LEBANON 17046 SHERIFF ' S RETURN - 3/29/10 - DAUPHIN COUNTY - COMPLAINT AND NOTICE UPON DEFT RESTORECORE INC AT 2322 N 7TH STREET HARRISBURG PA 17110 SHERIFF ' S COST $62 . 44 ----- -------------------------------------------------------------- 4/07/2010 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFT MMG INSURANCE COMPANY - BY KEVIN C MCNAMARA ESQ ------------------------------------------------------------------- 4/13/2010 PRAECIPE TO ENTER APPEARANCE FOR DEFT RESTORECORE INC - BY ROLF E KROLL ESQ ------------------------------------------------------------------- 4/14/2010 DEFENDANT MMG INSURANCE COMPANYS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY ------------'------------------------------------------------------- 4/19/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT MMG INSURANCE COMPANY' S PRELIMINARY OBJECTIONS TO PLFS COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY ------------------------------------------------------------------- 4/20/2010 DEFENDANT KUAN FANG CHENGS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY GEORGE E CHRISTIANSON ATTY FOR DEFT KUAN FANG CHENG ------------- ------------------------------------------------------ 4/23/2010 AMENDED COMPLAINT - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 4/23/2010 CERTIFICATE OF SERVICE - AMENEDED COMPLAINT UPON KEVIN C MCNAMARA ESQ ROLF E KROLL ESQ AND GEORGE E CHRISTIANSON ESQ - BY RICHARD H 0910Q112272013 Cumberland County Prothonotary' s Office Page 2 'PYS510 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No . . : Filed. . . . . . . . : 3/22/2010 Case Type . . . . . : REAL PROPERTY - LANDLORD/TENAN Time . . . . . . . . . : 3 : 08 T DISPUTE Judgment . . . . . . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date . 0/00/0000 ------------ Case Comments ------------- Higher Crt 1 . : 2243MDA2013 WIX ATTY FOR PLFF Higher Crt 2 . : ------------------------------------------------------------------- 5/05/2010 DEFENDANT MMG INSURANCE COMPANYS PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO .PLFFS COMPLAINT - BY KEVIN C MCNAMARA ATTYF OR DEFT MMG INSURANCE COMPANY ------------------------------------------------------------------- 5/13/2010 DEFENDANT KUAN FAND CHENGS ANDWER TO PLFFSA AMENDED COMPLAINT - BY GEORGE E CHRISTIANSON ATTY FOR ANSWERING DEFT KUAN FANG CHENG ------------------------------------------------------------------- 5/18/2010 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 6/07/2010 DEFENDANT MMG INSURANCE COMPANYS ANSWER WITH NEW MATTER AND CROSSCLAIMS TO PLFFS AMENDED COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY ------------------------------------------------------------------- 7/27/2010 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFT ------------------------------------------------------------------- 8/30/2010 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFS ------------------------------------------------------------------- 9/09/2010 ANSWER WITH NEW MATTER AND NEW MATTER IN THE NATURE OF A COUNTER-CLAIM OF DEFENDANT RESTORECORE INC TO AMENDED COMPLAINT OF PLAINTIFF TAREK ELTANBDAWY - WITH NOTICE TO PLEAD - BY ROLF E KROLL ATTY FOR DEF RESTORECORE INC ------------------------------------------------------------------- 6/17/2011 MCNAMARATATTY FOR UMRMGCINSUMRANCE ' CO/DEFMOTION TO COMPEL - KEVIN C ------------------------------------------------------------------- 6/30/2011 ORDER DATED 6-29-11 IN RE MOTION TO COMPEL DISCOVERY IS *GRANTED* PLAINTIFF IS TO ANSWER WITHIN 30 DAYS OF THE DATE OF THIS ORDER -BY THE COURT EDWARD E GUIDO J- COPIES MAILED 6-30-11 ------------------------------------------------------------------- 9/01/2011 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFT ------------------------------------------------------------------- 1/18/2012 MOTION TO COMPEL DISCOVERY OF DEFENDANTS RESTORECORE INC - BY ROLF E KROLL ATTY FOR DEF ------------------------------------------------------------------- 1/23/2012 ORDER - 1/20/12 - IN RE : MOTION TO COMPEL - GRANTED COURT DIRECTS THAT PLFF PROVIDE FULL AND COMPLETE ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS SERVED UPON HIM WITHIN 20 DAYS OR SUFFER SANCTIONS UPON FURTHER MOTION TO THE COURT - BY EDWARD E GUIDO J - COPIES MAILED 1/23/12 ------------------------------------------------------------------- 5/30/2012 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 . 22 - BY KEVIN C MCNAMARA ATTY FOR DEFT ------------------------------------------------------------------- 9/05/2012 PRAECIPE FOR LISTING CASE FOR JURY TRIAL BY - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 10/26/2012 DEFENDANT KUAN FANG CHENG' S MOTION TO STRIKE FROM THE NOVEMBER TRIAL LIST PURSUANT TO CCRP 213-2 - BY JASON E KELSO ATTY FOR DEFT/CHENG ------------------------------------------------------------------- 10/26/2012 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY GEORGE E CHRISTIANSON ATTY FOR KUAN FANG CHENG ------------------------------------------------------------------- 10/26/2012 ATTYSIFORTO ENTER CHENGPEARANCE - BY JASON E KELSO AND SCOTT T WYLAND ------------------------------------------------------------------- 11/01/2012 PLAINTIFF ' S ANSWER TO DEFENDANT KUAN FANG CHENG' S MOTION TO STRIKE - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 11/08/2012 ORDER OF COURT DATED 11-6-12 IN RE CIVIL TRIAL LIST - STRICKEN FROM NOVEMBER TRIAL LIST - LISTED FOR TRIAL ON FEBRUARY 25 2013 AT 09100112272013 Cumberland County Prothonotary' s Office Page 3 "PYS510 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed. . . . . . . . : 3/22/2010 Case Type . . . . . : REAL PROPERTY - LANDLORD/TENAN Time. . . . . . . . . : 3 : 08 Judgment . . . . . . T DISPUTE 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date . 0/00/0000 ------------ Case Comments ------------- Higher Crt 1 . : 2243MDA2013 Higher Crt 2 . : 9 30 AM - BY THE COURT CHRISTYLEE L PECK J- COPIES MAILED 11-8-12 ------------------------------------------------------------------- 12/31/2012 MOTION OF KUAN FANG CHENG TO CONSOLIDATE ACTIONS - BY MELISSA L KELSO ATTY FOR DEFT CHENG ------------------------------------------------------------------- 1/04/2013 ORDER OF COURT DATED 1-4-13 IN RE RULE IS ISSUED UPON ALL PARTIES TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 1-4-13 ------------------------------------------------------------------ - 1/10/2013 DEFENDANT KUAN FANG CHENG' S PETITION FOR LEAVE OF COURT TO AMEND HIS ANSWER TO ADD NEW MATTER AND COUNTERCLAIM - BY MELISSA L KELSO ATTY FOR DEFT ------------------------------------------------------------------- 1/10/2013 MELISDEFENDANT L KUALA FANG CFORGDEFTOTIONGFOR SUMMARY JUDGMENT - BY ------------------------------------------------------------------- 1/10/2013 J PRAECIPE FOR DGMENT - LISTING ATTYMFOR DEFT /KUANMFATNG CHENG SUMMARY NG ------------------------------------------------------------------- 1/23/2013 DEFENDANT MMG INSURANCE COMPANY' S RESPONSE TO RULE TO SHOW CAUSE ON DEFENDANT CHENG' S MOTION TO CONSOLIDATE MATTERS - BY KEVIN C MCNAMARA ATTY FOR DEFT ------------------------------------------------------------------- 1/23/2013 ORDER OF COURT DATED 1-23-13 - IN RE RULE IS ISSUED UPON PLFF AND CO-DEFTS TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 1-23-13 ------------------------------------------------------------------- 2/08/2013 PLAINTIFFS ANSWER TO DEFENDANT CHENG' S MOTION FOR SUMMARY JUDGMENT - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 2/08/2013 PLAINTIFFS ANSWER TO DEFENDANTS CHENG' S PETITION FOR LEAVE TO AMEND HIS ANSWER - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 2/13/2013 ORDER IN RE PRETRIAL CONFERENCE DATED 2-13-13 - BY THE COURT EDWARD E GUIDO J- ------------------------------------------------------------------- 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE PETITION FOR LEAVE TO AMEND HIS ANSWER TO PLFF COMPLAINT IS **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 ------------------------------------------------------------------- 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE MOTION TO CONSOLIDATE CASES IS **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 ------------------------------------------------------------------- 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE MOTION FOR SUMMARY JUDGMENT IS **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 ------------------------------------------------------------------- 2/19/2013 MOTION IN LIMINE OF DEFENDANT KUAN FANG CHENG TO PRECLUDE PLAINTIFF FROM RECOVERING EMOTIONAL DISTRESS DAMAGES - BY MELISSA L KELSO ATTY FOR DEFT CHENG KUAN FANG CHENG ------------------------------------------------------------------- 2/19/2013 MOTION IN LIMINE OF DEFT KUAN FANG CHENG TO PRECLUDE TESTIMONY BY RICK MCCLURE - BY MELISSA L KELSO ATTY FOR DEFT ------------------------------------------------------------------- 2/19/2013 MOTION IN LIMINE OF DEFENDANT KUAN FANG CHENG TO PRECLUDE PLAINTIFF FROM RECOVERING PUNITIVE DAMAGES - BY MELISSA L KELSO ATTY FOR DEFT ------------------------------------------------------------------- 2/19/2013 DEFENDANT MMG INSURANCE COMPANYS MOTION IN LIMINE - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE ------------------------------------------------------------------- 2/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO LIMIT DAMAGES AFTER APRIL 10 2009 - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE ------------------------------------------------------------------- 2/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO PRECLUDE RECOVERY OF DAMAGES IN EXCESS OF CONTRACTUAL LIMITATION ON DAMAGES CLAUSE - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE ------------------------------------------------------------------- 09100112272013 Cumberland County Prothonotary' s Office Page 4 'PYS510 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed. . . . . . . . : 3/22/2010 Case Type . . . . . : REAL PROPERTY - , LANDLORD/TENAN Time . . . . . . . . . : 3 : 08 T DISPUTE Judgment . . . . . . . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date . 0/00/0000 ------------ Case Comments ------------- Higher Crt 1 . : 2243MDA2013 Higher Crt 2 . : 2/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO PRECLUDE EVIDENCE OF LOST PROFITS - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE ------------------------------------------------------------------- 2/19/2013 PLAINTIFF ' S MOTION IN LIMINE TO EXCLUDE DEFT CHENG' S OFFER TO SUBMIT INTO EVIDENCE ATTY WALLACE ' S LETTERS OF 4/23/09 AND 9/20/09 - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 2/22/2013 CHENGIS RLEMINESTOILIMMITODAMAGGEST T AFTER 4/10/09 - BY SCOTT WYLAND ATTY FOR DEFRT ------------------------------------------------------------------- 2/22/2013 DEFENDANT KUAN FANG CHENG' S RESPONSE IN OPPOSITION TO PLFF ' S MOTION 9/20/09 BY SCCOTTCTUWYLANDOATTY FORLDEFTS LETTERS OF 4/23/09 ------------------------------------------------------------------- 2/22/2013 DEFENDANT KUAN FANG CHENG' S RESPONSE IN OPPOSITIONI TO DEFT MMG INSURANCE CO ' S MOTION IN LIMINE - BY SCOTT T WYLAND ATTY FOR DEFT ------------------------------------------------------------------ - 2/28/2013 DEFENDANTS MOTION TO PRECLUDE PLFF FROM SUBMITTING HIS CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS TO THE JURY - BY JASON E KELSO ATTY FOR DEFTS ------------------------------------------------------------------- 3/01/2013 VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13- IN RE TAREK ELTANBDAWY VS MMG INS CO - QUESTION 1 - DO YOU FIND THAT DEFT MMG INS CO BREACHED ITS CONTRACT OF INSURANCE WITH PLFF - YES QUESTION 2 - DO YOU FIND THAT PLFF MATERIALLY BREACHED HIS OBLIGATION UNDER THE POLICY - YES ------------------------------------------------------------------- 3/01/2013 VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13 - IN RE TAREK ELTANBDAWY VS RETORECORE INC - QUESTION 1 - DO YOU FIND THAT DEFT RESTORE CORE INC WAS NEGLIGENT IN ITS REPAIR OF PLFF ' S PREMISES - NO ------------------------------------------------------------------- 3/01/2013 VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13 - IN RE - TAREK ELTANBDAWY VS KUAN FANG CHENG - QUESTION 1 - DO YOU FIND THAT DEFT CHENG BREACHED THE TERMS OF HIS LEASE WITH PLFF WITH RESPECT TO THE WARRANTY OF THE HEATING SYSTEM - NO IF YOU ANSWERED NO PROCEED TO QUESTION 3 QUESTION 3 - DO YOU FIND THAT DEFT CHENG' S BREACH OF THE WARRANTY PROVISION CAUSED ECONOMIC DAMAGE TO THE PLFF - NO QUESTION 4 - DO YOU FIND THE DEFT CHENG BARRED THE PLFF FROM THE PREMISES ON OR ABOUT 04/10/09 - YES QUESTION 5 - WAS DEFT CHENG' S LOCKING OF THE PLFF OUT OF THE RESTAURANT IN VIOLATION OF THE LANDLORD TENANT ACT - YES QUESTION 6 - DO YOU FIND THAT PLFF ABANDONED THE PROPERTY PRIOR TO DEFT CHENGS LOCKING HIM OUT OF THE RESTAURANT - NO QUESTION 7 - DO YOU FIND THAT THE UNLAWFUL LOCKING OF THE PREMISES CAUSED ECONOMIC DAMAGE TO THE PLFF - YES QUESTION 8 - STATE THE TOTAL AMOUNT OF ECONOMIC DAMAGES SUSTAINED BY PLFF AS A RESULT OF DEFT CHENGS CONDUCT - $40 . 00 . 00 QUESTION 9 - WAS DEFT CHENGS CONDUCT IN BARRING THE PLFF FROM THE PREMISES OUTRAGEOUS - YES QUESTION 10 - STATE THE AMOUNT OF PUNITIVE DAMAGES IF ANY TO BE ASSESSED AGANIST DEFT CHENG - $80 , 000 . 00 ----------------------------------------------- -------------------- 3/11/2013 PLFFS MOTION FOR POST TRIAL RELIEF PURSUANT TO PA RCP 227 . 1 AGAINST DEFT MMG INSURANCE COMPANY - BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 3/11/2013 PLAINTIFF ' S MOTION FOR DELAY DAMAGES PURSUANT TO PA RCP 238 BY RICHARD H WIX ATTY FOR PLFF ------------------------------------------------------------------- 3/11/2013 DEFENDANT KUAN FANG CHENG' S MOTION FOR POST-TRIAL RELIEF - BY MELISSA L KELSO ATTY ------------------------------------------------------------------- 3/14/2013 ORDER DATED 3-14-13 IN RE PLFF MOTION FOR POST-TRIAL RELIEF - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 3-14-13 09100112272013 Cumberland County Prothonotary' s Office Page 5 PYS510 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed. . . . . . . . : 3/22/2010 Case Type. . . . . : REAL PROPERTY - LANDLORD/TENAN Time . . . . . . . . . : 3 : 08 T DISPUTE Judgment . . . . . . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1 . : 2243MDA2013 Higher Crt 2 . : ------------------------------------------------------------------ - 3/15/2013 DEFENDANT KUAN FANG CHENG' S RESPONSE IN OPPOSITION TO PLAINTIFF ' S MOTION FOR DELAY DAMAGES PURSUANT TO PA RCP 238 - BY MELISSA L KELSO ATTY FOR DEFT CHENG ------------------------------------------------------------------- 3/15/2013 DEFENDANT MMG INSURANCE COMPANY' S CROSS MOTION FOR POST TRIAL RELIEF AND FOR PARTIAL TRANSCRIPT OF TRIAL - BY KEVIN C MCNAMARA ATTY FOR DEFT ------------------------------------------------------------------- 3/15/2013 DEFENDANT MMG INSURANCE COMPANY ' S RESPONSE TO PLAINTIFF ' S MOTION FOR POST-TRIAL RELIEF - BY KEVIN C MCNAMARA ATTY FOR DEFT ------------------------------------------------------------------- 3/20/2013 ORDER DATED 3-19-13 IN RE DEFT CROSS MOTION - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 3-20-13 ------------------------------------------------------------------- 4/16/2013 ORDER OF COURT DATED 4-12-13 IN RE REQUEST FOR TRANSCRIPT - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 4-16-13 ------------------------------------------------------------------- 5/14/2013 TRANSCRIPT OF PROCEEDINGS - IN RE: JURY TRIAL - 2/25/13 - 2/26/13 BEFORE HONORABLE EDWARD E GUIDO JUDGE - VOL I-II & III ------------------------------------------------------------------- 7/23/2013 TRANSCRIPT OF PROCEEDINGS - IN RE : CLOSING STATEMENTS AND JURY CHARGE - VOLUME IV BY EDWARD E GUIDO J -------- ----------------------------------------------------------- 8/02/2013 ORDER OF COURT DATED 8-2-13 IN RE ARGUMENT ON POST TRIAL MOTIONS SCHEDULED FOR AUGUST 30 2013 AT 10 30 AM IN CR 3 - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 8-2-13 ------------------------------------------------------------------- 11/01/2013 DEFENDANT KUAN FANG CHENG' S PETITION FOR RELIEF - BY MELISSA L KELSO ATTY FOR DEFT ------------------------------------------------------------------- 11/07/2013 PRAECIPE TO RELEASE JURY VERDICT LIEN ON PROPERTY LOCATED AT 3421 SIMPSON FERRY RD CAMP HILL PA AND HOLD FUNDS OF ENCLOSED CKECK FOR COURT ' S N R BEARING ACCOUNT I C O D SS ORDER INTEREST BYMELISALKELSOATTYFORDEFT/KUANWFANGICHEN 3 G ------------------------------------------------------------------- 11/05/2013 ORDER DATED 11-05-13 - THE LIEN AGAINST PROPERTY WILL BE LIFTED UPON THE COURT ' S RECEIPT OF FUNDS OF $144 , 000 . 00 - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 11-12-13 ------------------------------------------------------------------- 11/07/2013 DEPOSITED MONIES AS DIRECTED BY THE ORDER OF COURT DATED 11-05-2013 - IN THE AMOUNT OF $144 , 000 . 00 IN MIDPENN BANK ACCOUNT #17003708 - DAVID D BUELL, PROTHONOTARY ------------------------------------------------------------------- 11/20/2013 ORDER OF COURT - 11/18/13 - IN RE : DEFT KUAN FANG CHENG' S MOTION FOR POST-TRIAL RELIEF - *DENIED* - BY THE COURT EDWARD E GUIDO J COPIES MAILED 11/20/13 ------------------------------------------------------------------- 11/20/2013 ORDER OF COURT - 11/18/13 - IN RE : PLFF ' S MOTION FOR POST-TRAIL RELIEF AGAINST DEFT MMG INS CO & DEFT MMG INS CO ' S CROSS MOTION FOR POST-TRIAL RELIEF - MOTION FOR POST-TRIAL RELIEF *DENIED* - DEFT MMG' S CROSS MOTION IS *DISMISSED* - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 11/20/13 ------------------------------------------------------------------- 11/20/2013 ORDER OF COURT - 11/18/13 - IN RE : PLFF ' S MOTION FOR DELAY DAMAGES - *DENIED* - BY THE COURT EDWARD E GUIDO J COPIES MAILED 11/20/13 ------------------------------------------------------------------- 12/18/2013 NOTICE OF APPEAL TO SUPERIOR COURT - BY RICHARD H WIX ATTY FOR PLFF ---------------------------------------------------------------- --- 12/23/2013 PRAECIPE FOR ENTRY OF JUDGMENT BY STEPHANIE L HERSPERGER ESQ --------- ---------------------------------------------------------- 12/23/2013 CERTIFICATE OF SERVICE BY STEPHANIE L HERSPERGER ESQ ------------------------------------------------------------------- 12/26/2013 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 2243 MDA 2013 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 09100112272013 Cumberland County Prothonotary' s Office Page 6 `PYS510 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No. . : Filed. . . . . . . . : 3/22/2010 Case Type . . . . . : REAL PROPERTY - LANDLORD/TENAN Time . . . . . . . . . : 3 : 08 T DISPUTE Judgment . . . . . . 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial . . . . Disposed Desc . : Disposed Date . 0/00/0000 ------------ Case Comments ------------- Higher Crt 1 . : 2243MDA2013 Higher Crt 2 . : ******************************************************************************** * Escrow Information * Fees & Debits Be *Bal***P*ymts/Ad End Bal ******************************** *** * ****** ******************************* COMPLAINT 55 . 00 55 . 00 . 00 TAX ON CMPLT . 50 . 50 . 00 SETTLEMENT 8 . 00 8 . 00 . 00 AUTOMATION 5 . 00 5 . 00 . 00 JCP FEE 23 . 50 23 . 50 . 00 SUBPOENA 14 . 00 14 . 00 . 00 PRAECIPE TRIAL 29 . 75 29 . 75 . 00 PREACIPE ARGUME 19 . 75 19 . 75 . 00 BOND 144000 . 00 144000 . 00 . 00 JDMT/RELEASE 9 . 50 9 . 50 . 00 APPEAL HIGH CT 57 . 00 57 . 00 . 00 JDMT 16 . 50 16 . 50 . 00 ------------------------ ------------ 144238 . 50 144238 . 50 . 00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the se I of said Co rt at Carlisle, Pa. This day of L 20 �3 ,p Prothonotar v�G TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. NO. 10-2015 MMG INSURANCE COMPANY, RESTORECORE,'INC. and KUAN CIVIL TERM FANG CHENG, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Stephanie L. Hersperger, Esquire, of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that pursuant to Pa.R.A.P. 121 and Pa.R.A.P. 906, 1 served the Notice of Cross Appeal of Defendant, MMG INSURANCE COMPANY, to the following persons via overnight mail: The Honorable Edward E. Guido, Jr. Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 And upon the following person(s) via first class mail, postage prepaid: Melissa L. Kelso, Esquire Salzmann Hughes, P.C. 354 Alexander Springs Road, Suite 1 Carlisle, PA 17015 Richard A. Wix, Esquire Wix, Wenger &Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3150 Trindle Road Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP By: Step anie L. Hersperger, Esquire 1333989-1 2 THOMAS, THOMAS B HAFER,LLP P64sl_ }` coU �. Kevin G. McNamara, Esquire Identification Number: 72668 Stephanie L. Hersperger, Esquire Identification Number: 78735 P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 kmcnamara@fthlaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-2015 MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CIVIL TERM CHENG, Defendants JURY TRIAL DEMANDED !'ft1E #PE,F{ R EITIR"YIIr JCItfT_: TO THE PROTHONOTARY: A jury verdict in favor of Defendants, MMG Insurance Company and RestoreCore, Inc., and against Defendant, Kuan Fang Cheng, having been entered at the conclusion of trial on March 1, 2013, and the trial court having denied Plaintiff's Motion for Post-Trial Relief and the Cross Motion for Post-Trial Relief of Defendant, MMG Insurance Company, via Order dated November 18, 2013, a copy which is attached hereto, and having denied the Motion for Post-Trial Relief of Defendant, Kuan Fang Cheng via Order dated November 18, 2013, a copy which is attached hereto, please enter judgment upon the jury's verdict against Plaintiff as to Defendants, MMG 6,WJ aIbI.S� gta1 ti - - Insurance Company a +aF- enre, and " 12 AP2 eng. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: )4& Kevin C. cNamara, Esquire Stephanie L. Hersperger, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant MMG Insurance Company Date: 1 G' 2 TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 10-2015 Civil MMG INSURANCE COMPANY, CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants : IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF AGAINST DEFENDANT MMG INSURANCE COMPANY&DEFENDANT MMG INSURANCE COMPANY'S CROSS MOTION FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW,this 18TH day of NOVEMBER,2013,upon consideration of Plaintiffs Motion for Post-Trial Relief,as well as the brief in support thereof,and having heard argument thereon, said Motion is DENIED. In light of our decision on Plaintiff s Motion,Defendant MMG's Cross Motion is DISMISSED. e Cou , Edward E. Guido,J. Richard H. Wix, Esquire Kevin C. McNamara,Esquire c7 �_ Rolf E. Kroll, Esquire MW M p Melissa Kelso,Esquire o :sld TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 10-20 15 Civil MMG INSURANCE COMPANY, CIVIL ACTION - LAIN RESTORECORE, Inc. and KUALA FANG CHENG, : JURY TRIAL DEMANDED Defendants IN RE: DEFENDANT KUAN FANG CHENG'S MOTION FOR POST-TRIAL RELIEF ORDER OF COURT AND NOW,this 18TH day of NOVEMBER,2013,upon consideration of Defendant Kuan Fang Cheng's myriad requests for relief contained in his Post-Trial Motion,and having reviewed the lengthy brief in support thereof,as well as having heard argument thereon,the Motion is DENIED. the Co , Edward E. Guido,J. Richard H. Wix,Esquire Kevin C.McNamara,Esquire cz Rolf E.Kroll,Esquire :z m ° i- tn NO C� Melissa Kelso,Esquire C-1 ' :sld >C- co -�''t TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. NO. 10-2015 MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN CIVIL TERM FANG CHENG, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Stephanie L. Hersperger, Esquire, of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that In this date I served the Praecipe to Enter Judgment on the Verdict to the following persons via first class mail, postage prepaid: Melissa L. Kelso, Esquire Salzmann Hughes, P.C. 354 Alexander Springs Road, Suite 1 Carlisle, PA 17015 Richard A. Wix, Esquire Wix, Wenger &Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Ralf E. Kroll, Esquire Margolis Edelstein 3150 Trindle Road Camp Hill, PA 17011 THOMAS, THOMAS & HAFER, LLP B : ! �Z f� �I.3 y S e ante L. Hersperger, Esquire 1333989-1 2 4, 1'346,11f%Iktrikai)\ buperior Court of Veuuopibania Joseph D.Seletyn,Esq. Pennsylvania Judicial Center Prothonotary Middle District P.O.Box 62435 Mary A.Graybill,Esq. 601 Commonwealth Avenue,Suite 1600 Deputy Prothonotary Harrisburg,PA 17106-2435 December 19, 2013 (717)772-1294 www.pacourts.us/courts/superior-court Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 n RE: Tarek Eltanbdawy _ Appellant v. 2- MMG Insurance Company, Restorecare, Inc., Kuan Fang Cheng a 2243 MDA 2013 Trial Court Docket No: 10-2015 Civil Dear David D. Buell: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Mary A. Graybill, Esq. Deputy Prothonotary /alv Enclosure 3:53 F.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 2243 MDA 2013 Page Pa 1 of Secure g December 19, 2013 d T�N',�"k � C i ��«. �• ,.r. � „M �V k �°����A, ,v. u,�,�RAI��IVN a L _ 4u 'I iu 4�,��bn €�fibP d.�� Jti '"� ,4W "au 9i .kk:. 4 ....rat Tarek Eltanbdawy Appellant v. MMG Insurance Company, Restorecare, Inc., Kuan Fang Cheng I. �m ' A,i t 4 ah r :ra h N � N F �y 31 KatrgtN0 t.n ya+s ? Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: December 19, 2013 Awaiting Original Record Journal Number: Case Category: Civil Case Type(s): Civil Action Law CONSOLIDATED CASES ' �'' r ' RELATELI CA Sw "'`' ,,"}4 d V4;I'4 kr a n•' }'� s" k ;e 'Y P 4Jd , r y a�'� a u �, 1P: s.. CIEDULED-EVENt47,07': � , � . .,z, � ..,.. -d:`7s s.._ �.. Next Event Type: Receive Docketing Statement Next Event Due Date: January 2, 2014 Next Event Type: Original Record Received Next Event Due Date: February 18, 2014 k r e tSEINFOM�'T�ON a r x a ,#�x�M� �rd * t t„i � �4 7R 7 Appellant Eltanbdawy,Tarek Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Wix, Richard H. Bar No: 007274 Law Firm: Wix, Wenger&Weidner, P.C. Address: Wix Wenger&Weidner 4705 Duke St Harrisburg, PA 17109--3041 Phone No: (717) 652-8455 Fax No: Receive Mail: Yes Receive EMail: No EMail Address: Appellee Restorecare, Inc. Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Kroll, Rolf E. Bar No: 047243 Law Firm: Margolis Edelstein Address: 3510 Trindle Rd Camp Hill, PA 17011 Phone No: (717) 975-8114 Fax No: (717) 975-8124 Receive Mail: Yes Receive EMail: No EMail Address: 3:53 P,M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 2243 MDA 2013 Page � xte� g Secure 4, - December 19, 2013 .,...��rt 5�s. n �`"„k_c"E�w .�..,'rt .n:ry- .. Appellee MMG Insurance Company Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: McNamara, Kevin Charles Bar No: 072668 Law Firm: Thomas, Thomas& Hafer, L.L.P. Address: Thomas Thomas & Hafer Llp 305 N Front St PO Box 999 Harrisburg, PA 17108--0999 Phone No: (717)237-7132 Fax No: Receive Mail: Yes Receive EMail: Yes EMail Address: kmcnamara @tthlaw.com Appellee Cheng, Kuan Fang Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Kelso, Melissa Lynn Bar No: 306793 Law Firm: Salzmann Hughes, P.C. Address: 105 N. Front Street Suite 205 Harrisburg, PA 17101 Phone No: (717) 234-6700 Fax No: (717)249-7334 Receive Mail: Yes Receive EMail: Yes EMail Address: mkelso @saltmannhughes.com aY& ;r 4 :rva i, a a ikn'n INFbRMATION X 01 �y� t : Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 12/18/2013 Notice of Appeal 73.50 12/19/2013 2013-SPR-M-001131 73.50 ..; . is x I�GEI � 2i�11:COURT'§I ±D iVfAY TION Y ,t Y a s khN.r.h t'; ti '�* 1411° 1 ^rcm eg a ; t 'Iddd Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: November 20, 2013 Judicial District: 09 Documents Received: December 19, 2013 Notice of Appeal Filed: December 18, 2013 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):10-2015 Civil Lower Ct Judge(s): Guido, Edward E. Judge 9 4 P7 ate. iii ip° �� R�G�IkQRD°C©NT �I Original Record Item Filed Date Content Description Date of Remand of Record: ya,D NS' t?,, np '' z .9, '�fl,M”dr n. � t i of ogrAz C� ,o,,A,fi tit3 ' i�P x EM ,; * {�r cH r t Auk � IBRIF k7r 'I'IEI]VI�� 'i r �vr..3w ns xw, None None 3:5a P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 2243 MDA 2013 Page , AxV=**,;," g Secure December 19, 2013 Filed Date Docket Entry/Representing Participant Type Filed By December 19, 2013 Notice of Appeal Docketed Appellant Eltanbdawy, Tarek December 19, 2013 Docketing Statement Exited (Civil) Middle District Filing Office • c -t 'upertor Court of 3enuzprbania Joseph D.Seletyn,Esq, Pennsylvania Judicial Center Prothonotary Middle District Y P.O.Box 62435 Mary A.Graybill,Esq, 6W Commonwealth Avenue,Suite 1600 Deputy Prothonotary Harrisburg,PA 17106-2435 January 9, 2014 (717)772-1294 www.pacourts.us/courts/superior-court Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Tarek EltanbdawyF1 v. MMG Insurance Company, Restorecare, Inc., `A' c� Kuan Fang Cheng -� - �-- Appellant .Tj 45 MDA 2014 ; Trial Court Docket No 10-2015 Civil Dear David D. Buell: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Mary A. Graybill, Esq. Deputy Prothonotary /ca Enclosure 11:35 A.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 45 MDA 2014 . Page of ,. g Secure = �� January 9, 2014 ,y "z CAPTION Tarek Eltanbdawy v. MMG Insurance Company, Restorecare, Inc., Kuan Fang Cheng Appellant CASE INFORMATION Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: January 7, 2014 Awaiting Original Record Journal Number: Case Category: Civil • Case Type(s): Civil Action Law CONSOLIDATED CASES RELATED CASES Docket No/ Reason Type 2243 MDA 2013 Consolidated-Cross Appeal Cross Appeal SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: January 23, 2014 Next Event Type: Original Record Received Next Event Due Date: February 28, 2014 COUNSEL INFORMATION Appellant MMG Insurance Company Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: McNamara, Kevin Charles Bar No: 072668 Law Firm: Thomas, Thomas & Hafer, L.L.P. Address: Thomas Thomas & Hafer Lip 305 N Front St PO Box 999 Harrisburg, PA 17108--0999 Phone No: (717)237-7132 Fax No: Receive Mail: Yes Receive EMail: Yes EMail Address: kmcnamara @tthlaw.com • 11:35 A.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 45 MDA 2014 Page `. Pa g Secure January 9, 2014 ��L �5 ` COUNSEL INFORMATION • Appellee Restorecare, Inc. Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Kroll, Rolf E. Bar No: 047243 Law Firm: Margolis Edelstein Address: 3510 Trindle Rd Camp Hill, PA 17011 Phone No: (717) 975-8114 Fax No: (717) 975-8124 Receive Mail: Yes Receive EMail: No EMail Address: Appellee Eltanbdawy,Tarek Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Wix, Richard H. Bar No: 007274 Law Firm: Wix, Wenger&Weidner, P.C. Address: Wix Wenger&Weidner 4705 Duke St Harrisburg, PA 17109--3041 Phone No: (717) 652-8455 Fax No: Receive Mail: Yes Receive EMail: Yes EMail Address: rhwix @hotmail.com Appellee Cheng, Kuan Fang Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Kelso, Melissa Lynn Bar No: 306793 Law Firm: Salzmann Hughes, P.C. Address: 105 N. Front Street Suite 205 Harrisburg, PA 17101 Phone No: (717)234-6700 Fax No: (717) 249-7334 Receive Mail: Yes Receive EMail: Yes EMail Address: mkelso @saltmannhughes.com FEE INFORMATION Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 12/30/2013 Notice of Appeal 73.50 01/07/2014 2014-SPR-M-000029 73.50 ,r AGENCY/TRIAL COURT INFORMATION 'Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: December 23, 2013 Judicial District: 09 Documents Received: January 7, 2014 Notice of Appeal Filed: December 30,2013 Order Type: Judgment of Sentence OTN(s): Lower Ct Docket No(s):10-2015 Civil 11:35 A.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 45 MDA 2014 Page 3 of 3 Secure �r January 9, 2014v�:r4z�. Lower Ct Judge(s): Guido, Edward E. Judge ORIGINAL RECORD CONTENT Original Record Item Filed Date Content Description Date of Remand of Record: BRIEFING SCHEDULE None None DOCKET ENTRY Filed Date Docket Entry/Representing Participant Type Filed By January 7, 2014 Notice of Appeal Docketed Appellant MMG Insurance Company January 9, 2014 Docketing Statement Exited (Civil) Middle District Filing Office TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. MMG INSURANCE COMPANY, : NO. 2010-2015 CIVIL RESTORECORE, INC. and KUAN FANG CHENG, : CIVIL ACTION - LAW Defendants ORDER OF COURT AND NOW, this 13TH day of JANUARY, 2014, Plaintiff shall file of record and serve on this judge within twenty-one (21) days of this date, a concise statement of errors complained of on appeal. Any issue not properly included in the concise statement timely filed and served pursuant to Rule 1925 (b) shall be deemed waived. By the Edward E. Guido, J. Richard H. Wix, Esquire 4705 Duke Street Harrisburg, Pa. 17109-3041 ✓ Kevin C. McNamara, Esquire Stephanie L. Hersperger, Esquire P.O. Box 999 Harrisburg, Pa. 17108-0999 f--3 :sld __ QC?IF-S' t LEL •- 4T / TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA V. MMG INSURANCE COMPANY, : NO. 2010—2015 CIVIL RESTORECORE, INC. and KUAN FANG CHENG, : CIVIL ACTION - LAW Defendants ORDER OF COURT AND NOW, this 13TH day of JANUARY, 2014, Defendant MMG Insurance Company shall file of record and serve on this judge within twenty-one (21) days of this date, a concise statement of errors complained of on appeal. Any issue not properly included in the concise statement timely filed and served pursuant to Rule 1925 (b) shall be deemed waived. By the Co Edward E. Guido, J. ✓ Richard H. Wix, Esquire 4705 Duke Street Harrisburg, Pa. 17109-3041 Kevin C. McNamara, Esquire Stephanie L. Hersperger, Esquire P.O. Box 999 Harrisburg, Pa. 17108-0999 :sld - CO l*ES ir&tilrgc(„ c 1/3/1/ teary .7 • pq I t!j o, :rAic 2°13 DEC 30 F c CUMBERLAND N u0: 58 YLVACNIA Wix, Wenger &Weidner Richard H. Wix, Esq. Identification Number: 72668 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 rhwixRhotmail.com Attorneys for Plaintiff TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants PRAECIPE FOR ENTRY OF JUDGMENT TO THE PROTHONOTARY: A jury verdict in favor of Defendants, MMG Insurance Company and RestoreCore, Inc., and against Defendant, Kuan Fang Cheng, having been entered at the conclusion of trial on March 1, 2013, and all Post-Trial Motions having been denied, of 2Waccx &Au. /tIcaled please enter judgment upon the jury's verdict against Plaintiff as to Defendant RestoreCore, Inc. and in favor of the Plaintiff against Defendant Kuan Fang Cheng in the amount of One Hundred Twenty Thousand ($120,000.00) Dollars. Respectfully Submitted, WIX, WENGER &WEIDNER By r xiy,..„.4. Richard H. Wix, Esq., ID #07274 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 Dated: la' -1 13 Counsel for Plaintiff • CERTIFICATE OF SERVICE AND NOW, this 27th day of December, 2013, I, Gaye Crist, an employee of the firm of Wix, Wenger &Weidner, attorneys for Plaintiff, hereby certify that I served the within Praecipe for Entry of Judgment this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Rolf E. Rolf E. Kroll, Esq. Margolis Edelstein 3150 Trindle Road Camp Hill, PA 17011 Melissa Kelso, Esq. Salzmann Hughes 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Kevin C. McNamara, Esq. Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108-0999 WIX, WENGER & WEIDNER Gaye Crist 'D � 3 TAREK ELTANBDAWY, • IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, . PENNSYLVANIA vs. No. 10-2015- CIVIL MMG INSURANCE COMPANY RESTORECORE, Inc. and • KUAN FANG CHENG, • Defendants • 'p ORDER AND NOW, this `��` day of /0 at"114e4 , 2013, upon consideration of Defendant Kuan Fang Cheng's Petition for Relief, it is hereby Ordered and Decreed that this Petition is GRANTED. The Jury Verdict Lien assessed against the Property located at 2431 Simpson Ferry Road will be automatically lifted upon the Court's receipt of funds of the proceed of Defendant Cheng's sale of the Property to GTD Properties, LLC/Fusion Fire Asian Restaurant equal to the jury verdict of one hundred t vy thousand dollars if !Lig,ovv.atxz-11 . The Court will hold these funds pending the final resolution of the above captioned action, at which point Defendant Cheng agrees that the Court may compensate Plaintiff for any damages from the escrowed funds held in Plaintiff's benefit. By t - ourt, • • c? n v rnr_ rrl ` <C) .11 cD-n C t fri 73 r t r ui��if+r t��4 4Jer�" THOMAS, THOMAS&HAFER,LLP 'YL A Kevin C. McNamara, Esquire PF� S CGtlt�rY Identification Number: 72668 ' Stephanie L. Hersperger, Esquire Identification Number:78735 P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 kmcnamara @tthlaw.com shersperger @tthlaw.com Attorneys for Defendant MMG Insurance Company TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-2015 MMG INSURANCE COMPANY, RESTORECORE, INC. and KUAN FANG CIVIL TERM CHENG, Defendants JURY TRIAL DEMANDED 'ar+a - - T Defendant, MMG Insurance Company ("MMG"), filed a Notice of Cross Appeal on December 30, 2013. Pursuant to the Order of this Honorable Court dated January 13, 2014, MMG hereby files this Concise Statement of the Matters Complained of on Cross Appeal in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). It is respectfully submitted that Plaintiff's appeal based on this Honorable Court's denial of Plaintiff's Post-Trial Motion has no merit. However, if Plaintiff's request for post-trial relief is granted, MMG asserts that this Honorable Court erred in not granting MMG's motion for non-suit as to the Business Income loss claim as the Plaintiff failed to sustain his burden of proving business income loss during his case in chief. In particular, this Honorable Court should have granted MMG's motion for compulsory non-suit with respect to the claim for loss of business income for the following reasons: 1. In the Plaintiff's case in chief, he failed to offer sufficient evidence from which the jury could calculate loss of business income without resort to speculation or guesswork; 2. In the Plaintiff's case in chief, he failed to offer any expert testimony from which the jury could calculate loss of business income without resort to speculation or guesswork; 3. In the Plaintiff's case in chief, he failed to offer any lay testimony, foundation or basis from which the jury could calculate loss of business income without resort to speculation or guesswork; 4. In the Plaintiff's case in chief, he failed to offer any documentary evidence from which the jury could calculate loss of business income without resort to speculation or guesswork; and 5. The documentary evidence offered by the Plaintiff in his case in chief to support his claim for loss of business income was inadequate to provide any basis whatsoever for the jury to calculate income loss as the Plaintiff, himself, acknowledged that the primary financial record he offered to show business income, his 2008 Federal Income tax return, contained errors and was incorrect. Thus, to the extent that Plaintiff's request for post-trial relief has any merit, which MMG denies, judgment should still be entered in favor of MMG as a result of its timely motion for compulsory non-suit. Alternatively, should Plaintiff's request for post-trial relief be granted, and should MMG's motion for compulsory non-suit be denied, it is respectfully submitted that this Honorable Court committed error in its jury instructions, and that upon retrial, the jury should be instructed in accordance with the insurance policy provisions that a net loss of earnings can be used to offset payments due for continuing normal operating expenses. It is submitted that this Honorable Court committed reversible error because it instructed the jury that MMG had essentially misinterpreted the Business Income definition (located at p. 6 of 43 in the main policy form) in the insurance policy to offset a net loss of earnings against the amount due for continuing normal operating expenses. This Honorable Court further committed 2 reversible error as it instructed the jury that MMG had a duty dictated by the policy to pay both net profit and continuing normal operating expenses and that a net loss of income could not be used to offset the amount due for continuing normal operating expenses. The Court's instructions with respect to the policy definition of Business Income and its application to the facts of this case were contrary to the policy language and to the law. Thus, if Plaintiff is granted a new trial, which MMG opposes, then this Honorable Court should properly instruct the jury in accordance with the insurance policy provisions that a net loss of earnings can be used to offset payments due for continuing normal operating expenses. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Kevin C. McNamara, Esquire Stephanie L. Hersperger, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Defendant, 'r MMG Insurance Company Date: 3 CERTIFICATE OF SERVICE I, Stephanie L. Hersperger, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that pursuant to Pa.R.A.P. 121 and Pa.R.A.P. 906, on this 24th day of January, 2014, 1 served the following persons with a true and correct copy of the Concise Statement of Matters Complained of on Cross Appeal via first class mail, postage prepaid: The Honorable Edward Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Richard A. Wix, Esquire Wix, Wenger&Weidner, PC 4705 Duke Street Harrisburg, PA 17109-3041 Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Jason Eugene Kelso, Esquire Salzmann Hughes, PC 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 THOMAS, THOMAS & HAFER, LLP By: .� l Stephanie L. Hersperger, Esquire 4 FILED-OFFICE OF V'HE PROTHONOTAR 201'i JAN 31 AM ; 25 PENNSCOUNTY PENNSYLVANIA TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL. DEMANDED Defendants CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL BY PLAINTIFF TAREK ELTANBDAWY PURSUANT TO Pa.R.A.P 1925 Plaintiff appeals from the Court's Interrogatory to the jury asking "Did the Plaintiff materially breach his obligations under the policy?" The insurance company's defense was that Plaintiff had committed fraud or made misrepresentations. Under Pennsylvania law as set forth in Section 17.240 of the Standard Pennsylvania Civil Law Instructions on Fraud and Misrepresentations, in order to be actionable, the fraud or misrepresentation must be relied upon by the party who claims fraud or misrepresentation. Defendant MMG Insurance Company called only two witnesses at trial, and neither of those witnesses testified that MMG relied upon anything that Plaintiff had communicated with them. In fact, their testimony was just the opposite, mainly that they did not rely upon anything that Plaintiff submitted to them in making their decision to deny the Plaintiffs claim. The Court did not instruct the jury with regard to the law on fraud or misrepresentation. The Court did correctly instruct the jury that under the language of the insurance policy MMG would be responsible for paying to the Plaintiff the net profit that was incurred by the loss, as well as continuing normal operating expenses. There was no dispute that Plaintiff had a continuing rental expense of $5,000.00 per month, and therefore, the jury's failure to return any damages to the Plaintiff from MMG was clearly in error. Respectfully Submitted, WIX, WENGER & WEIDNER Richard H. Wix, Esq., ID #07274 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 Dated: r /3111Y. Counsel for Plaintiff 2 CERTIFICATE OF SERVICE AND NOW, this 31st day of January, 2014, I, Gaye Crist, an employee of the firm of Wix, Wenger &Weidner, attorneys for Plaintiff, hereby certify that I served the within Concise Statement of Matters Complained of on Appeal by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kevin C. McNamara, Esq. Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108-0999 And by hand delivery by Richard H. Wix, Esquire to: The Honorable The Honorable Edward E. Guido, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 WIX, WENGER &WEIDNER Gaye Cris{ Of THE PROTHOHO TAR? 20141 JAN 31 AM 23 CUt ERLAND COUNTY PENNSYLVANIA TAREK ELTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants PRAECIPE TO THE PROTHONOTARY: Please mark the above matter settled and discontinued and the judgment as paid in full as to Defendant Kuan Fang Cheng upon paying to the Plaintiff, Tarek Eltanbdawy, and Richard H. Wix, Esquire, his attorney, the sum of One Hundred Twenty-Six Thousand, Three Hundred Ninety Four and 60/100 ($126,394.60) Dollars. The balance of the funds deposited with the court shall be paid to Kuan Fang Cheng. Respectfully:Submitted, WIX, WENGER &WEIDNER By Richard H. Wix, Esq., ID #07274 4705 Duke Street Harrisburg, PA 17109-3041(717) 652-8455 4. 5DP.11 Dated: 1 (314 Counsel for Plaintiff 9. es4 ejOaa CERTIFICATE OF SERVICE AND NOW, this 31st day of January, 2014, I, Gaye Crist, an employee of the firm of Wix, Wenger &Weidner, attorneys for Plaintiff, hereby certify that I served the i within Praecipe by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Melissa Kelso, Esq. Salzmann Hughes 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Kevin C. McNamara, Esq. Thomas, Thomas & Hafer P.O. Box 999 Harrisburg, PA 17108-0999 Rolf Rolf E. Kroll, Esq. Margolis Edelstein 3150 Trindle Road Camp Hill, PA 17011 WIX, WENGER &WEIDNER -,270-v/A. fiLd Gaye Crist FILED-OFFICE: OF THE PROTHONOTARY 2014 JAN 3 I AM 9: 3 I- CUMBERLAND COUNTY PENNSYLVANIA TAREK EILTANBDAWY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 10-2015 Civil MMG INSURANCE COMPANY, : CIVIL ACTION - LAW RESTORECORE, Inc. and KUAN FANG CHENG, : JURY TRIAL DEMANDED Defendants ORDER AND NOW this 3 day of pLa414S4 / , 2014, the Court being advised that Defendant Kuan Fang Cheng 'has not taken any appeal to the Superior Court, and further, the Court being advised that the attorneys for Mr. Cheng and the Plaintiff have agreed upon the distribution of the funds previously paid into Court by Defendant Cheng, it is hereby ORDERED AND DECREED as follows: 1. The sum of $126,394.60 shall be paid to Tarek Eltanbdawy and Richard H. Wix, Esquire, his attorney. 2. The balance of the funds previously paid into Court shall be paid to Kuan Fang Cheng. BY T- COU T: J. Distribution: ,/Richard H. Wix, Esq., 4705 Duke Street, Harrisburg, ,PA 17109 - ,id 7Je/Lered Melissa Kelso, Esq.. 354 Alexander Spring Road, Suite 1, Carlisle, PA 17015 -Copy 00,2iLPd Air TAREK ELTANBDAWY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. C- c� MMG INSURANCE COMPANY, NO. 2010-2015 CIVIL TERM -.M:r RESTORECORE, INC., & KUAN FANG CHENG, Defendants rv _ A c-) c:) IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido,J.April 3U,2014 Plaintiff and defendant MMG Insurance Company(hereinafter MMG) have each filed appeals from our order of November 18, 2013,denying their respective post-trial motions. Plaintiff contends that we erred in submitting a specific interrogatory asking the jury"Did the Plaintiff materially breach his obligations under the policy?i1 MMG argues that we erred in 1)failing to grant its request for a compulsory non-suit with respect to the claim for loss of business income; and 2) misinterpreting the definition of"Business Income" contained in the policy. We will discuss each of those issues in the opinion that follows. FACTUAL BACKGROUND This was a complicated case in which the plaintiff sued his own insurance company(defendant MMG), his landlord and a contractor. We will recite only the relevant evidence necessary for the discussion of the issues set forth above. Plaintiff opened the Hampden Diner on August 28, 2008.2 The business was insured under a business owner's policy issued by defendant MMG.3 When plaintiff arrived to work on March 4, 2009 he 1 See"Concise Statement of Matters Complained of on Appeal by Plaintiff." Z Trial Transcript, p.237, Plaintiff's Exhibit 15. 3 See Plaintiffs Exhibit 1. discovered that a pipe had burst and the diner had flooded.4 He immediately reported the loss to his insurance agent who contacted defendant MMG.5 An adjuster was on site immediately and helped the plaintiff arrange to have the premises repaired as quickly as possible.6 Since he operated on a cash basis, he needed to be open in order to pay his bills.' Nevertheless,over his objection, plaintiff was forced to close the restaurant while the repairs were being made.8 Plaintiff paid $5500 per month plus property taxes to rent the premises.9 He employed a chef, two cooks, bus boys,eight waitresses and himself.10 Plaintiff testified that in the six months he was open before the flood the business generated enough cash to pay all of his bills, including his payroll, rent and over$11,000 in property taxes." In addition,the business was profitable enough to allow him to pay$8000 against the$20,000 debt incurred for startup inventory.12 He also used the business income to purchase$10,000 worth of additional equipment.13 MMG paid for the repairs to the premises. However,the parties were unable to agree upon how much the plaintiff was entitled to receive for his loss of business income. The policy obligated MMG to pay the "actual loss of Business Income" sustained during the time the business was not operable.14 The policy goes on to provide: 4 Trial Transcript, p.245. 5 Trial Transcript, p. 246. 6 Trial Transcript, p.250. Trial Transcript,p.240. 8 Trial Transcript,p. 250. 9 Trial Transcript, p. 241. 10 Trial Transcript, p.239. 11 Trial Transcript, p.241. 12 Trial Transcript, p.304. 13 Trial Transcript, p.305. 14 See Plaintiffs Exhibit 1, p.5. 2 (c) Business Income means the: (i) Net Income (Net Profit or Loss before income taxes)that would have been earned or incurred if no physical loss or damage had occurred, . . . ; and (ii) Continuing normal operating expenses incurred, including payroll.15 The plaintiff submitted a profit and loss statement to MMG which showed gross sales of $270,000 for the period of September 30, 2008 through the end of February 2009.16 MMG's forensic accountant computed that the gross sales over that time period were only$123,867.17 The insurance policy provides that"(t)his policy is void . . . if you . . .at any time intentionally conceal or misrepresent a material fact concerning . . . (a) claim under this policy."18 Jury Interrogatory re: Plaintiff's Material Breach of Contract Plaintiff argued that we should not have allowed the jury to consider whether he materially breached his obligations under the policy.19 He contended that there was no evidence that MMG relied upon any alleged misrepresentation. While reliance may be a requirement for the tort of fraud or misrepresentation that is not what was at issue in the instant case. The issue was framed by the language of the policy. There was evidence that the plaintiff had submitted substantially overstated figures to support his claim. Plaintiff argued that he is not a bookkeeper and that he relied upon others to compile and submit the figures on his behalf. Defendant argued that plaintiff was aware of what was going on, and intentionally padded his claim. Whether or not plaintiff intentionally misrepresented a material fact in connection with his claim was a question of fact for the jury to determine. If he did so, the express language of the policy voided coverage. It was for that reason we submitted the interrogatory to the jury. is See Plaintiff's Exhibit 1, p.6. 16 Trial Transcript, p.480. 17 Trial Transcript,p.480. 18 Plaintiffs Exhibit 1, p.41. 19 We note that Plaintiff objected to the verdict slip which contained the interrogatory. However, he did not object to the wording of our charge on the issue. See Trial Transcript,pp.636 to 641. 3 Refusal to Grant Non Suit on Loss of Business Income Defendant MMG argued that the plaintiff did not present sufficient evidence upon which to base a claim for loss of business income. We disagreed. The plaintiff submitted several exhibits in support of his claim. They included copies of his 2008 and 2009 federal income tax return S,20 a list of cash and credits for the business from August 2008 through January 200921 and the general ledger for the business operation through December 31, 2008.22 MMG contended that the documents were incomplete, which was conceded by plaintiff on cross examination. However,we were satisfied that there was still sufficient evidence to submit the matter to the jury. Plaintiff testified that he was not very sophisticated when it came to accounting and record keeping. He also testified that despite the incomplete records,the business was profitable enough to allow him to pay the yearly property tax bill of$11,000; reduce his debt by$8000 and make a cash outlay of$10,000 for equipment. Based upon that testimony alone,the jury could make a reasoned calculation of his lost business income. Policy Language The interpretation of an insurance contract is a question of law. Donegal Mutual Insurance Co. v. Baumhammers, 595 Pa. 147, 155, 938 A.2d 286, (2007). "When the language of the policy is clear and unambiguous,we must give effect to that language." Id. However, "when a provision in the policy is ambiguous,the policy is to be construed in favor of the insured to further the contract's prime purpose of indemnification and against the insurer, as the insurer drafts the policy and controls coverage." Id. 20 Plaintiff's Exhibits 11 and 12. 21 Plaintiffs Exhibit 15. 22 Plaintiffs Exhibit 25. 4 As we looked at the policy language at the time of trial,we felt that it was ambiguous. The policy obligates the insurer to pay"actual loss of Business Income.i23 It goes on to define Business Income as"(i) net income (net profit or loss before income taxes) . . . and (ii) Continuing normal operating expenses incurred, including payroll."24 Based upon the policy language we charged the jury as follows: The issue in the MGM (sic)case deals with the payment of the business income, and the policy defined business income as,one, net profit or loss before income taxes that would have been earned or incurred if no physical loss or damage had occurred, and,two,and also continuing normal operating expenses incurred during the period of the loss. And one can't offset the other as I'm telling you the policy is to be interpreted. If you have a negative net profit, but you still have rent or utilities or payroll accruing,that still has to be paid.25 MMG objected. It contended that"Business Income" was the sum of(i) net income and (ii) continuing normal operating expenses. In other words it felt that it should be able to deduct any business loss against the normal operating expenses. Plaintiff argued that"Business Income" encompassed two separate categories,i. e. (i) net profits and (ii) continuing operating expenses. If the net profits were negative the insurer had no obligation to pay any amount for that category. However, it was still obligated to pay the full amount for the category of normal operating expenses. 23 Plaintiffs Exhibit 1,p.5. 24 Plaintiffs Exhibit 1, p.6. 25 Trial Transcript, pp.627,628. 5 We were satisfied that either interpretation was viable. Therefore, under the settled law of this 26 commonwealth we interpreted the policy in favor of the plaintiff/insured. Edward E.Guido,J. evin C. McNamara, Esquire P.O. Box 999 Harrisburg, Pa. 17108-0999 chard H.Wix, Esquire 4705 Duke Street Harrisburg, Pa. 17109-3041 :sld Co p n�1/�CZ ��Cai &,-CV SAP =:rl 26 In point of fact even without the presumption in his favor,we were of the opinion that plaintiff's argument was the correct one under the clear terms of the policy. The"net income"and "normal operating expenses"were set forth in separate numbered sections giving weight to the argument that they were separate categories of "Business Income." 6 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: TAREK ELTANBDAWY Vs. MMG INSURANCE COMPANY, RESTORECORE, INC and KUAN FANG CHENG 2010-2015 CIVIL TERM 2243 MDA 2013 45 MDA 2014 The documents comprising the record have been numbered from No. 1 to 1436, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 05/05/2014. lif Da .: ell, Pro onotary Alma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: 1, David D. Buell , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein TAREK ELTANBDAWY Plaintiff, and MMG INSURANCE COMPANY, RESTORECORE, INC and KUAN FANG CHENG Defendant, as the same remains of record before the said Court at No. 2010-2015 of Civil Term. In TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 5TH day of MAY D., 2014 1 _. ! y �V Prothonotary 1, Kevin A. Hess President. Judge of the Ninth Judicial District, composed of the County of Cumberland, do certify that David D. Buell , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland to the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by th roper officer. Commonwealth of Pennsylvania County of Cumberland 1 David D. Buell , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. ss: President .fudge IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 5TH-� day o MAY A.D. 2014 . Prothonotary No Term 19 2010-2015 CIVIL TERM No, 2243 MDA 2013 45 MDA 2014 TAREK ELTANBDAWY Versus MMG INSURANCE COMPANY, RESTORECORE, INC and KUAN FANG CHENG EXEMPLIFIED RECORD From Cumberland County Debt, $ Int. from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county ( in the Commonwealth of Pennsylvania 2010-2015 CIVIL TERM 2243 MDA 2013 to No. 45 MDA2014 Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY TAREK ELTANBDAWY vs. MMG INSURANCE COMPANY, RESTORECORE, INC and KUAN FANG CHENG **SEE CERTIFIED COPY OF DOCKET ENTERIES** PYS511 Cumberland County Prothonotary's Office Civil Case Print 2010-02015 ELTANBDAWY TAREK Reference Case Tye Judgment Judge Assigned: Disposed Desc.: Case (vs) MMG INSURANCE COMPANY ET AL Page 1 No Filed 3/22/2010 Time 3:08 Execution Date 0/00/0000 Jury Trial Disposed Date0/00/0000 Higher Crt 1.: 2243MDA2013 Higher Crt 2.: 45 MDA 2014 ******************************************************************************** REAL PROPERTY - LANDLO 120,000.00 GUIDO EDWARD E Comments General Index ELTANBDAWY TAREK 117 PRINCE ST HARRISBURG PA 17109 MMG INSURANCE COMPANY PO BOX 729 PRESQUE ISLE ME 04769 RESTORECORE INC 2322 N 7TH ST HARRISBURG PA 17110 CHENG KUAN FANG 11 BOWMAN ST LEBANON PA 17046 PLAINTIFF DEFENDANT DEFENDANT DEFENDANT Attorney Info WIX RICHARD H MCNAMARA KEVIN C KROLL ROLF E WYLAND SCOTT T KELSO JASON E ******************************************************************************** Judgment Index ELTANBDAWY TAREK MMG INSURANCE COMPANY CHENG KUAN FANG CHENG KUAN FANG ELTANBDAWY TAREK MMG INSURANCE COMPANY RESTORECORE INC CHENG KUAN FANG ELTANBDAWY TAREK ELTANBDAWY TAREK CHENG KUAN FANG CHENG KUAN FANG Amount 40,000.00 80,000.00 120,000.00 Date Desc 3/01/2013 3/01/2013 3012013 3/01/2013 11/07/2013 11/07/2013 11/07/2013 11/07/2013 2013 12/30/2013 112013 /31/2014 ********************************************************** * Date Entries ********************************************************** j— 853/22/2010 a_ ao 4/05/2010 ql- q 4/07/2010 a3- 4/13/2010 q --g74/14/2010. (us 4/19/2010 (1q.- I0S'4/20/2010 10‘)- I '4/23/2010 FIRST ENTRY VERDICT VERDICT VERDICT VERDICT RELEASE RELEASE RELEASE RELEASE JUDG ON THE VERDICT JUDGMENT ON VERDICT JUDGMENT ON VERDICT RELEASE ************** ************** ******** * ******** COMPLAINT - CIVIL ACTION RICHARD H WIX ESQ SHERIFF'S RETURN - 3/25 10 - LEBANON COUNTY - COMPLAINT AND NOTICE UPON DEFT KUAN FANG CHE G AT 280 REIST ROAD LEBANON 17046 SHERIFF'S RETURN - 3/29/10 - DAUPHIN COUNTY - COMPLAINT AND NOTICE UPON DEFT RESTORECORE INC AT 2322 N 7TH STREET HARRISBURG PA 17110 SHERIFF'S COST $62.44 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFT MMG INSURANCE COMPANY - BY KEVIN C MCNAMARA ESQ PRAECIPE TO ENTER APPEARANCE FOR DEFT RESTORECORE INC - BY ROLF E KROLL ESQ DEFENDANT MMG INSURANCE COMPANYS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT MMG INSURANCE COMPANY'S PRELIMINARY OBJECTIONS TO PLFS COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY DEFENDANT KUAN FANG CHENGS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY GEORGE E CHRISTIANSON ATTY FOR DEFT KUAN FANG CHENG AMENDED COMPLAINT - BY RICHARD H WIX ATTY FOR PLFF PYS511 Cumberland County Prothonotary's Office Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE Reference No..: Case Type • Judgment Judge Assigned: Disposed Desc.: Case REAL PROPERTY - LANDLO 120,000.00 GUIDO EDWARD E 117 4/23/2010 176- 177 5/05/2010 irN- I8/ 5/13/2010 Jv l 5/18/2010 110 _2006/07/2010 ZO‘7/27/2010 �Ocl_ ,2,.lt 8/30/2010 .2379/09/2010 241241. . .26z 6/17/2011 Ago 6/30/2011 A34419/01/2011 - 311 1/18/2012 412.6 g 1/23/2012 311'3205/30/2012 321.322_9/05/2012 32„32_710/26/2012 3.2.g 10/26/2012 3q„33010/26/2012 331^33111/01/2012 Comments COMPANY ET AL Filed Time Execution Date Jury Trial Disposed Date Higher Crt 1.: Higher Crt 2.: Page 2 3/22/2010 3:08 0/00/0000 0/00/0000 2243MDA2013 45 MDA 2014 CERTIFICATE OF SERVICE - AMENEDED COMPLAINT UPON KEVIN C MCNAMARA ESQ ROLF E KROLL ESQ AND GEORGE E CHRISTIANSON ESQ - BY RICHARD H WIX ATTY FOR PLFF DEFENDANT MMG INSURANCE COMPANYS PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY KEVIN C MCNAMARA ATTYF OR DEFT MMG INSURANCE COMPANY DEFENDANT KUAN FAND CHENGS ANDWER TO PLFFSA AMENDED COMPLAINT - BY GEORGE E CHRISTIANSON ATTY FOR ANSWERING DEFT KUAN FANG CHENG CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY RICHARD H WIX ATTY FOR PLFF DEFENDANT MMG INSURANCE COMPANYS ANSWER WITH NEW MATTER AND CROSSCLAIMS TO PLFFS AMENDED COMPLAINT - BY KEVIN C MCNAMARA ATTY FOR DEFT MMG INSURANCE COMPANY CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY KEVIN C MCNAMARA ATTY FOR DEFT CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY KEVIN C MCNAMARA ATTY FOR DEFS ANSWER WITH NEW MATTER AND NEW MATTER IN THE NATURE OF A COUNTER -CLAIM OF DEFENDANT RESTORECORE INC TO AMENDED COMPLAINT OF PLAINTIFF TAREK ELTANBDAWY - WITH NOTICE TO PLEAD - BY ROLF E KROLL ATTY FOR DEF RESTORECORE INC DEFENDANT MMG INSURANCE COMPANY'S MOTION TO COMPEL - KEVIN C MCNAMARA ATTY FOR MMG INSURANCE CO/DEFT ORDER DATED 6-29-11 IN RE MOTION TO COMPEL DISCOVERY IS *GRANTED* PLAINTIFF IS TO ANSWER WITHIN 30 DAYS OF THE DATE OF THIS ORDER -BY THE COURT EDWARD E GUIDO J- COPIES MAILED 6-30-11 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY KEVIN C MCNAMARA ATTY FOR DEFT MOTION TO COMPEL DISCOVERY OF DEFENDANTS RESTORECORE INC - BY ROLF E KROLL ATTY FOR DEF ORDER - 1/20/12 - IN RE: MOTION TO COMPEL - GRANTED COURT DIRECTS THAT PLFF PROVIDE FULL AND COMPLETE ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS SERVED UPON HIM WITHIN 20 DAYS OR SUFFER SANCTIONS UPON FURTHER MOTION TO THE COURT - BY EDWARD E GUIDO J - COPIES MAILED 1/23/12 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 - BY KEVIN C MCNAMARA ATTY FOR DEFT PRAECIPE FOR LISTING CASE FOR JURY TRIAL BY - BY RICHARD H WIX ATTY FOR PLFF DEFENDANT KUAN FANG CHENG'S MOTION TO STRIKE FROM THE NOVEMBER TRIAL LIST PURSUANT TO CCRP 213-2 - BY JASON E KELSO ATTY FOR DEFT/CHENG PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY GEORGE E CHRISTIANSON ATTY FOR KUAN FANG CHENG PRAECIPE TO ENTER APPEARANCE - BY JASON E KELSO AND SCOTT T WYLAND ATTYS FOR DEFT/CHENG PLAINTIFF'S ANSWER TO DEFENDANT KUAN FANG CHENG'S MOTION TO STRIKE - BY RICHARD H WIX ATTY FOR PLFF PYS511 Cumberland County Prothonotary's Office Page 3 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No..: Case Type • Judgment Judge Assigned: Disposed Desc.: Case Filed 3/22/2010 REAL PROPERTY - LANDLO Time 3:08 120,000.00 Execution Date 0/00/0000 GUIDO EDWARD E Jury Trial Disposed Date0/00/0000 Comments Higzer Crt 1.: 2243MDA2013 Higher Crt 2.: 45 MDA 2014 ORDER OF COURT DATED 11-6-12 IN RE CIVIL TRIAL LIST - STRICKEN FROM NOVEMBER TRIAL LIST - LISTED FOR TRIAL ON FEBRUARY 25 2013 AT 9 30 AM - BY THE COURT CHRISTYLEE L PECK J- COPIES MAILED 11-8-12 337-34S12/31/2012 MOTION OF KUAN FANG CHENG TO CONSOLIDATE ACTIONS - BY MELISSA L KELSO ATTY FOR DEFT CHENG 335-11/08/2012 3361/04/2013 ORDER OF COURT DATED 1-4-13 IN RE RULE IS ISSUED UPON ALL PARTIES TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 1-4-13 3(1..q...366-1/10/2013 DEFHISENDANT ANSWERKUAN FANG TO ADD NEWHMATTERPANDTION FOR COUNTERCLAIME-OF BYCMURT TO ELISSA AMEN MKELLSO ATTY FOR DEFT 364 - 061/10 / 2013 DEFINDANT A L KUANOFANGYCHENG'FORSFMHS OTIONN GFOR SUMMARY JUDGMENT - BY S (437 1/10/2013 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S MOTION FOR SUMMARY JUDGMENT - BY MELISSA L KELSO ATTY FOR DEFT/KUAN FANG CHENG 08- 11111 1/23/2013 DEFENDANT MMG INSURANCE COMPANY'S RESPONSE TO RULE TO SHOW CAUSE ON DEFENDANT CHENG'S MOTION TO CONSOLIDATE MATTERS - BY KEVIN C MCNAMARA ATTY FOR DEFT 34b 1/23/2013 ORDER OF COURT DATED 1-23-13 - IN RE RULE IS ISSUED UPON PLFF AND CO-DEFTS TO SHOW CAUSE - RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 1-23-13 40.072/08/2013 PLAINTIFFS ANS D SWEER IXTOO TDDEFEND PTFFHENG'S MOTION FOR SUMMARY JUDGMENT - BY 144_ 4512/08/2013 AMENDTHISSANSWER ANSWER -TBYO DRICHARDTH WIXS NATTYG'S PFORTPLLFFION FOR LEAVE TO Is-+� ',_ 8912/13/2013 ORDER IN RE PRETRIAL CONFERENCE DATED 2-13-13 - BY THE COURT -[ 7 •c EDWARD E GUIDO J- -145-145 -5- S 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE PETITION FOR LEAVE TO AMEND HIS ANSWER TO PLFF COMPLAINT IS **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 �J,5'6 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE MOTION TO CONSOLIDATE CASES IS "'�� **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 JSal 2/14/2013 ORDER OF COURT DATED 2-13-13 IN RE MOTION FOR SUMMARY JUDGMENT IS i **DENIED** - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 2-14-13 La -11612/19/2013 PLLAINTIFF LIMINE CDEFENDANT FCHENG PRECLUDE BY MELISSA L KELSO ATTY FOR DEFT CHENG KUAN FANG CHENG - 9(7/2/19/2013 MOTION IN LIMINE OF DEFT KUAN FANG CHENG TO PRECLUDE TESTIMONY BY RICK MCCLURE - BY MELISSA L KELSO ATTY FOR DEFT 1! 2-4 77 2/19/2013 MOTION IN LIMINE OF DEFENDANT KUAN FANG CHENG TO PRECLUDE `f 1 PLAINTIFF FROM RECOVERING PUNITIVE DAMAGES - BY MELISSA L KELSO ATTY FOR DEFT L g - qgZ 2/19/2013 DEFENDANTATTY MMG FOR SUR FCEMMG COMPANYSINSUAMOTION IN LIMINE - BY KEVIN C �83 - j"Vg2/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO LIMIT DAMAGES AFTER APRIL 10 2009 - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE 5D41- Va- 5312/19/2013 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO PRECLUDE RECOVERY OF DAMAGES IN EXCESS OF CONTRACTUAL LIMITATION ON DAMAGES CLAUSE - BY ROLFE KROLL ATTY FOR DEFT RESTORECORE PYS511 Cumberland County Prothonotary's Office Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No..: Case Type • Judgmen- Judge Assigned: Disposed Desc.: Case REAL PROPERTY - LANDLO 120,000.00 GUIDO EDWARD E 532-5152/19/2013 5U-5-102/19/2013 seil-576 2/22/2013 577 -5122/22/2013 5g3 -5V7 2/22/2013 Sit - 404 2/22/2013 O5 -o7 2/22/2013 bog - (;(c) 2/22/2013 0_ 6/5 2/22/2013 (0/(/... 6/72/22/2013 671& 62...0 2/22/2013 h.2I_62.6, 2/22/2013 627_10322/28/2013 633-639 3/01/ 2013 63 636 3/01/2013 637-0/ 3/01/2013 Comments Filed Time Execution Date Jury Trial Disposed Date Higher Crt 1.: Higher Crt 2.: Page 4 3/22/2010 3:08 0/00/0000 0/00/0000 2243MDA2013 45 MDA 2014 MOTION IN LIMINE OF DEFENDANT RESTORECORE INC TO PRECLUDE EVIDENCE OF LOST PROFITS - BY ROLF E KROLL ATTY FOR DEFT RESTORECORE PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE DEFT CHENG'S OFFER TO SUBMIT INTO EVIDENCE ATTY WALLACE'S LETTERS OF 4/23/09 AND 9/20/09 - BY RICHARD H WIX ATTY FOR PLFF DEFENDANT KUAN FANG CHENG'S RESPONSE IN OPPOSITION TO DEFT RESTORECORE INC'S MOTION IN LIMINE TO LIMIT DAMAGES AFTER 4/10/09 - BY SCOTT WYLAND ATTY FOR DEFRT DEFENDANT KUAN FANG CHENG'S RESPONSE MOTION IN LIMINE TO EXCLUDE ATTORNEY AND 9/20/09 - BY SCOTT T WYLAND ATTY IN OPPOSITION TO PLFF'S WALLACE'S LETTERS OF 4/23/09 FOR DEFT DEFENDANT KUAN FANG CHENG'S RESPONSE INSURANCE CO'S MOTION IN LIMINE - BY IN OPPOSITION TO DEFT MMG SCOTT T WYLAND ATTY FOR DEFT PLFF'S ANSWER TO MOTION IN LIMINE OF DEFT CHENG TO PRECLUDE PLFF FROM RECOVERING PUNITIVE DAMAGES - BY RICHARD H WIX ATTY FOR PLFF PLFF'S ANSWER TO MOTION IN LIMINE OF DEFT CHENG TO PRECLUDE PLFF FROM RECOVERING EMOTIONAL DISTRESS DAMAGES - BY RICHARD H WIX ATTY FOR PLFF PLFF'S ANSWER TO MOTION IN LIMINE OF DEFT CHENG TO PRECLUDE EXPERT TESTIMONY BY WITNESS RICK MCCLURE - BY RICHARD H WIX ATTY FOR PLFF PLFF'S ANSWER TO DEFT MMG INS CO'S MOTIONS IN LIMINE - BY RICHARD H WIX ATTY FOR PLFF PLFF'S RESPONSE TO MOTION IN LIMINE OF DEFT RESTORECORE INC TO LIMIT DAMAGES AFTER 4/10/09 - BY RICHARD H WIX ATTY FOR PLFF ANSWER OF PLFF TO DEFT RESTORECORE INC'S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF LOST PROFITS - BY RICHARD H WIX ATTY FOR PLFF ANSWER OF PLFF TO DEFT RESTORECORE INC'S MOTION IN LIMINE TO PRECLUDE RECOVERY OF DAMAGES IN EXCESS OF CONTRACTUAL LIMITATIONS BY RICHARD H WIX ATTY FOR PLFF DEFENDANTS MOTION TO PRECLUDE PLFF FROM SUBMITTING HIS CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS TO THE JURY - BY JASON E KELSO ATTY FOR DEFTS VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13- IN RE TAREK ELTANBDAWY VS MMG INS CO - QUESTION 1 - DO YOU FIND THAT DEFT MMG INS CO BREACHED ITS CONTRACT OF INSURANCE WITH PLFF - YES QUESTION 2 - DO YOU FIND THAT PLFF MATERIALLY BREACHED HIS OBLIGATION UNDER THE POLICY - YES VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13 - IN RE TAREK ELTANBDAWY VS RETORECORE INC - QUESTION 1 - DO YOU FIND THAT DEFT RESTORE CORE INC WAS NEGLIGENT IN ITS REPAIR OF PLFF'S PREMISES - NO VERDICT - JURY TRIAL - JURORS SELECTED 02/25/13 - IN RE - TAREK ELTANBDAWY VS KUAN FANG CHENG - QUESTION 1 - DO YOU FIND THAT DEFT CHENG BREACHED THE TERMS OF HIS LEASE WITH PLFF WITH RESPECT TO THE WARRANTY OF THE HEATING SYSTEM - NO IF YOU ANSWERED NO PROCEED TO QUESTION 3 QUESTION 3 - DO YOU FIND THAT DEFT CHENG'S BREACH OF THE WARRANTY PROVISION CAUSED ECONOMIC DAMAGE TO THE PLFF - NO QUESTION 4 - DO YOU FIND THE DEFT CHENG BARRED THE PLFF FROM THE PREMISES ON OR ABOUT 04/10/09 - YES QUESTION 5 - WAS DEFT CHENG'S LOCKING OF THE PLFF OUT OF THE RESTAURANT IN VIOLATION OF THE LANDLORD TENANT ACT - YES 643 PYS511 2010-02015 Reference Case Type. Judgment Judge Assi Disposed D (116 3/11/2013 6q7- 6933/11/2013 6s CR ( 3/11/2013 6i/2 3/14/2013 60--6$8 3/15/2013 6q0 --69`f 3/15/2013 (QqS-7003/15/2013 alr 3/20/2013 ?01 4/16/2013 X70,?_ /24'45/14/2013 fz0. (3", 7/23/2013 /3/? 8/02/2013 136q-137311/01/2013 )36" 11/05/2013 137T-137" 1/07/2013 11/07/2013 Cumberland County Prothonotary's Office Page 5 Civil Case Print ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL No..: Filed 3/22/2010 ....: REAL PROPERTY - LANDLO Time 3:08 120,000.00 Execution Date 0/00/0000 gned: GUIDO EDWARD E Jury Trial esc.: Disposed Date0/00/0000 Case Comments Higher Crt 1.: 2243MDA2013 Higher Crt 2.: 45 MDA 2014 QUESTION 6 - DO YOU FIND THAT PLFF ABANDONED THE PROPERTY PRIOR TO DEFT CHENGS LOCKING HIM OUT OF THE RESTAURANT - NO QUESTION 7 - DO YOU FIND THAT THE UNLAWFUL LOCKING OF THE PREMISES CAUSED ECONOMIC DAMAGE TO THE PLFF - YES QUESTION 8 - STATE THE TOTAL AMOUNT OF ECONOMIC DAMAGES SUSTAINED BY PLFF AS A RESULT OF DEFT CHENGS CONDUCT - $40.00.00 QUESTION 9 - WAS DEFT CHENGS CONDUCT IN BARRING THE PLFF FROM THE PREMISES OUTRAGEOUS - YES QUESTION ION - STDEFT STATE THE EHAO AMOUNT OF PUNITIVE DAMAGES IF ANY TO BE $80,000.00 PLFFS MOTION FOR POST TRIAL RELIEF PURSUANT TO PA RCP 227.1 AGAINST DEFT MMG INSURANCE COMPANY - BY RICHARD H WIX ATTY FOR PLFF PLAINTIFF'S MOTION FOR DELAY DAMAGES PURSUANT TO PA RCP 238 - BY RICHARD H WIX ATTY FOR PLFF DEFENDANT KUAN FANG CHENG'S MOTION FOR POST -TRIAL RELIEF - BY MELISSA L KELSO ATTY ORDER DATED 3-14-13 IN RE PLFF MOTION FOR POST -TRIAL RELIEF - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 3-14-13 DEFENDANT KUAN FANG CHENG'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR DELAY DAMAGES PURSUANT TO PA RCP 238 - BY MELISSA L KELSO ATTY FOR DEFT CHENG DEFENDANT MMG INSURANCE COMPANY'S CROSS MOTION FOR POST TRIAL RELIEF AND FOR PARTIAL TRANSCRIPT OF TRIAL - BY KEVIN C MCNAMARA ATTY FOR DEFT DEFENDANT MMG INSURANCE COMPANY'S RESPONSE TO PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF - BY KEVIN C MCNAMARA ATTY FOR DEFT ORDER DATED 3-19-13 IN RE DEFT CROSS MOTION - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 3-20-13 ORDER OF COURT DATED 4-12-13 IN RE REQUEST FOR TRANSCRIPT - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 4-16-13 TRANSCRIPT OF PROCEEDINGS - IN RE: JURY TRIAL - 2/25/13 - 2/26/13 BEFORE HONORABLE EDWARD E GUIDO JUDGE - VOL I-II & III TRANSCRIPT OF PROCEEDINGS - IN RE: CLOSING STATEMENTS AND JURY CHARGE - VOLUME IV BY EDWARD E GUIDO J ORDER OF COURT DATED 8-2-13 IN RE ARGUMENT ON POST TRIAL MOTIONS SCHEDULED FOR AUGUST 30 2013 AT 10 30 AM IN CR 3 - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 8-2-13 DEFENDANT KUAN FANG CHENG'S PETITION FOR RELIEF - BY MELISSA L KELSO ATTY FOR DEFT ORDER DATED 11-05-13 - THE LIEN AGAINST PROPERTY WILL BE LIFTED UPON THE COURT'S RECEIPT OF FUNDS OF $144,000.00 - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 11-12-13 PRAECIPE TO RELEASE JURY VERDICT LIEN ON PROPERTY LOCATED AT 3421 SIMPSON FERRY RD CAMP HILL PA AND HOLD FUNDS OF ENCLOSED CKECK FOR $0.00 IN UNT CE ITH COURTS ORDER - INTERMELIEST DEPOSITED MONIES AS DIRECTED BY THE ORDER OF COURT DATED 11-05-2013 - IN THE AMOUNT OF $144,000.00 IN MIDPENN BANK ACCOUNT #17003708 - DAVID D BUELL, PROTHONOTARY 1376 11/20/2013 ORDER OF COURT - 11/18/13 - IN RE: DEFT KUAN FANG CHENG'S MOTION PYS511 Cumberland County Prothonotary's Office Civil Case Print (vs) MMG INSURANCE COMPANY ET AL No. ' Filed REAL PROPERTY - LANDLO Time 120,000.00 Execution Date gned: GUIDO EDWARD E Jury Trial esc.: Disposed Date0/00/0000 Case Comments Higgzer Crt 1.: 2243MDA2013 Crt 2.:MDA FOR POST -TRIAL RELIEF - *DENIED* - BY THECOURTEDWARD E4GUIDO 5 J014 COPIES MAILED 11/20/13 2010-02015 ELTANBDAWY TAREK Reference Case Tyoe Judgmen Judge Assi Disposed D 1311 11/20/2013 t31iS 11/20/2013 1-67q-112712/18/ 202.3 13gg-13' / 12/23/2013 13$2.43q312/23/2013 1 c q/� I3gr712/26/2013 I3gg_ /q0'712/30/2013 1(,1112/30/2013 12/30/2013 /4/2- /4/C1/13/2014 /'# 6 1/13/2014 14171/13/2014 1gr8- �7zi 1/27/2014 pf22_/g21/1/31/2014 /LL,Z _-./C/2b 1/31/2014 /(/271/31/2014 2/07/2014 2/07/2014 1433 5/02/2014 Page 6 3/22/2010 3:08 0/00/0000 ORDER OF COURT - 11/18/13 - IN RE: PLFF'S MOTION FOR POST -TRAIL RELIEF AGAINST DEFT MMG INS CO & DEFT MMG INS CO'S CROSS MOTION FOR POST -TRIAL RELIEF - MOTION FOR POST -TRIAL RELIEF *DENIED* DEFT MMG'S CROSS MOTION IS *DISMISSED* - BY THE COURT EDWARD E GUIDO J - COPIES MAILED 11/20/13 ORDER OF COURT - 11/18/13 - IN RE: PLFF'S MOTION FOR DELAY DAMAGES - *DENIED* - BY THE COURT EDWARD E GUIDO J COPIES MAILED 11/20/13 NOTICE OF APPEAL TO SUPERIOR COURT - BY RICHARD H WIX ATTY FOR PLFF PRAECIPE FOR ENTRY OF JUDGMENT BY STEPHANIE L HERSPERGER ESQ CERTIFICATE OF SERVICE BY STEPHANIE L HERSPERGER ESQ SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 2243 MDA 2013 NOTICE OF APPEAL TO SUPERIOR COURT - BY KEVIN C MCNAMARA ATTY FOR DEFT/MMG INS CO PRAECIPE FOR ENTRY OF JUDGMENT ON JURY VERDICT AGAINST PLAINTIFF AS TO DEFENDANT RESTORECORE INC AND IN FAVOR OF THE PLAINTIFF AGAINST DEFENDANT KUAN FANG CHENG IN THE AMOUNT OF 120,000.00 - BY RICHARD H WIX ATTY FOR PLFF NOTICE MAILED SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 45 MDA 2014 ORDER OF COURT - 1/13/14 - PLFF SHALL FILE OF RECORD AND SERVE ON THIS OF ERRORS �COMPLAINED OF ONGE WITHIN 21 AYS APPEALHIS - BYYATHEA COURTIEDWARD TEMENT GUIDOFJ COPIES MAILED 1/13/14 ORDER OF COURT - 1/13/14 - DEFT MMG INS CO SHALL FILE OF RECORD STD SERVE ON THIS JGE WITHIN 21OF ATEMENT OF ERRORSUCOMPLAINED OF ONYS APPEALHISBYATHEA COURTISE EDWARD E GUIDO J - COPIES MAILED 1/13/14 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON CROSS APPEAL OF DEFT MMG INSURANCE CO - BY STEPHANIE L HERSPERGER ATTY FOR DEFT CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL BY PLAINTIFF TAREK ELTANBDAWY PURSUANT TO PA RAP 1925 - BY RICHARD H WIX ATTY FOR PLFF PRAECIPE - DISCONTINUED JUDGMENT AS TO DEFT CHENG - BY RICHARD H WIX ATTY FOR PLFF ORDER DATED 1-31-14 IN RE DEFT CHENG HAS NOT TAKEN ANY APPEAL - THE PROTHONOTARY IS TO DISTRIBUE THE FUNDS PREVIOUSLY PAID INTO COURT - BY THE COURT EDWARD E GUIDO J- COPIES MAILED AND HAND DELIVERED 1-31-14 MIDPENN BANK CHECK ISSUED TO TEREK ELTANBDAWY AND RICHARD H WIX ESQ IN THE AMOUNT OF $126,394.60 (MIDPENN BANK CHECK #305225) MIDPENN BANK CHECK ISSUED TO KUAN FANG CHENG IN THE AMOUNT OF $17,841.46 (MIDPENN BANK CHECK #305446) OPINION PURSUANT TO PA RAP 1925 DATED 4-30-14 - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 5-2-14 /Ytemorandvms, 1bef1. Cbe43 6x4,6 s. -- -- pq1r: o(61 ?L5 /136 --� — — e��. ges4o re cor e h 1.4 i YLs PYS511 Cumberland County Prothonotary's Office Page 7 Civil Case Print 2010-02015 ELTANBDAWY TAREK (vs) MMG INSURANCE COMPANY ET AL Reference No..: Filed 3/22/2010 Case Type • REAL PROPERTY - LANDLO Time.........: 3:08 - Judgment- - 120-,000.00 Execution -Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 Case Comments Higzer Crt 1.: 2243MDA2013 Hicher Crt 2.: 45 MDA 2014 5/02/2014 NOTICE OF DOCKET ENTRIES MAILED TO RICHARD 2 WIX ATTY KEVIN C MCNAMARA ATTY ROLF E KROLL ATTY SCOTT T WYLAND ATTY AND JASON E KELSO ATTY LAST ENTRY ******************************************************************************** * Escrow Information * * Fees & Debits Beg Bal Pymts/Adi End Bal * ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 SUBPOENA 14.00 14.00 .00 PRAECIPE TRIAL 29.75 29.75 .00 PREACIPE ARGUME 19.75 19.75 .00 BOND 144000.00 144000.00 .00 JDMT/RELEASE 9.50 9.50 .00 APPEAL HIGH CT 57.00 57.00 .00 JDMT 16.50 16.50 .00 APPEAL HIGH CT 57.00 57.00 .00 JDMT 16.50 16.50 .00 JDMT/RELEASE 9.50 9.50 .00 BOND 17841.46- 17841.46- .00 REFUND 17841.46 17841.46 .00 BOND 126158.54- 126158.54- .00 REFUND 126158.54 126158.54 .00 144321.50 144321.50 .00 ******************************************************************************** * End of Case Information * ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof,1 here unto set my hand and the spiel eI of said at Carlisle, Pa. 5 This _.day of , 20 /'f Prothonotary JerevoiC Dp6 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: TAREK ELTANBDAWY Vs. MMG INSURANCE COMPANY, RESTORECORE, INC and KUAN FANG CHENG `"2010-2015 CIVIL TERM 2243 MDA 2013 45 MDA 2014 The documents comprising the record have been numbered from No. 1 to 1436, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 05/05/2014. RECORD FILED IN SUPERIOR COURT MAY 002014 ell, Pry honotary Alma Kostjerevac Deputy An additional copy HARRISMIiicate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Joseph D. Seletyn, Esq. Prothonotary Jennifer Traxler, Esq. Deputy Prothonotary iiupertor Court of fiehttopthania Middle District Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.pacourts.us/courts/superior-court CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: David D. Buell Prothonotary RE: Eltanbdawy, T. v. MMG Insurance Company et al 2243 MDA 2013 Intermediate Court Docket No: Trial Court: Cumberland County Court of Common Pleas Associated Case(s): 45 MDA 2014 Consolidated - Cross Appeal Trial Court Docket No: 10-2015 Civil Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Original Record May 6, 2014 2 Parts Exhibit(s) May 6, 2014 3 Envelopes Remand/Remittal Date: 12/29/2014 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Very truly yours, C7 rZ CJIMV g r a• M M CD ::, Jennifer Traxler, Esq. cnr" CO moi; Deputy Prothonotary r ' I c_ <1= /as >c )=--- Enclosure v c= cc: The Honorable Edward E. Guido, Judge "' s; - Melissa Lynn Kelso, Esq. Rolf E. Kroll, Esq. Kevin Charles McNamara, Esq. Richard H. Wix, Esq. J -A26031-14 NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 TAREK ELTANBDAWY IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. MMG INSURANCE COMPANY, RESTORECARE; INC., KUAN FANG CHENG Appellees No. 2243 MDA 2013 Appeal from the Judgment Entered December 23, 2013 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 10-2015 Civil TAREK ELTANBDAWY Appellee v. MMG INSURANCE COMPANY, RESTORECARE, INC., KUAN FANG CHENO IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants No. 45 MDA 2014 Appeal from the Judgment Entered December 23, 2013 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 10-2015 Civil BEFORE: BOWES, J., MUNDY, J., and JENKINS, J. MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 20, 2014 r) Cr: J -A26031-14 Appellant, Tarek Eltanbdawy, appeals from the December 23, 2013 judgment', entered in favor of Appellee, MMG Insurance Company (MMG). MMG has filed a cross-appeal from the same judgment. After careful review, we affirm the judgment entered in favor of MMG. As a consequence of our affirmance, we dismiss MMG's cross-appeal as moot. The trial court summarized the relevant factual and procedural history of this case as follows. [Appellant] opened the Hampden Diner on August 28, 2008. The business was insured under a business owner's policy issued by [] MMG. When [Appellant] arrived to work on March 4, 2009 he discovered that a pipe had burst and the diner had flooded. He immediately reported the loss to his insurance agent who contacted [] MMG. An adjuster was on site immediately and helped [Appellant] arrange to have the premises repaired as quickly as possible. Since he operated on a cash basis, he needed to be open in order to pay his bills. Nevertheless, over his objection, 1 Although Appellant purports to appeal from the November 20, 2013 order denying his post -trial motion, his appeal properly lies from the entry of judgment. Hart v. Arnold, 884 A.2d 316, 325 n.2 (Pa. Super. 2005) (citation omitted), appeal denied, 897 A.2d 458 (Pa. 2006). Therefore, we have corrected the caption accordingly. 2 Additionally, judgment was entered in favor of Appellant and against Appellee Kuan Feng Cheng (Cheng), who was the owner of the property in question, in the amount of $120,000.00. Judgment was also entered in favor of Appellee RestoreCare and against Appellant. Appellant does not appeal from any part of the judgment pertaining to his claim against RestoreCare. In addition, Cheng and Appellant reportedly settled their dispute. As a result, Cheng and RestoreCare are not parties to this appeal. -2 J -A26031-14 [Appellant] was forced to close the restaurant while the repairs were being made. [Appellant] paid $5[,]500 per month plus property taxes to rent the premises. He employed a chef, two cooks, bus boys, eight waitresses and himself. [Appellant] testified that in the six months he was open before the flood the business generated enough cash to pay all of his bills, including his payroll, rent, and over $11,000 in property taxes. In addition, the business was profitable enough to allow him to pay $8[,]000 against the $20,000 debt incurred for startup inventory. He also used the business income to purchase $10,000 worth [of] additional equipment. MMG paid for the repairs to the premises. However, the parties were unable to agree upon how much [Appellant] was entitled to receive for his loss of business income. The policy obligated MMG to pay the "actual loss of [b]usiness [i]ncome" sustained during the time the business was not operable. The policy goes on to provide: (c) Business Income means the: (i) Net Income (Net Profit or Loss before income taxes) that would have been earned or incurred if no physical loss or damage had occurred, ... ; and (ii) Continuing normal operating expenses incurred, including payroll. [Appellant] submitted a profit and loss statement to MMG which showed gross sales of $270,000 for the period of September 30, 2008 through the end of February 2009. MMG's forensic accountant computed that the gross sales over that time period were only $123,867. The insurance policy provides that "(t)his policy is void ... if you ... at any time intentionally conceal or misrepresent a material fact concerning ... (a) claim under this policy." J -A26031-14 Trial Court Opinion, 5/2/14, at 1-3 (internal footnote citations omitted). On March 22, 2010, Appellant filed a complaint against MMG, Cheng, and RestoreCare, Inc. (RestoreCare), the company hired by MMG to make repairs to the property, alleging claims of breach of contract and negligence against MMG, a claim of negligence against RestoreCare, and claims of breach of contract and intentional infliction of emotional distress against Cheng. On April 23, 2010, Appellant filed an amended complaint, alleging breach of contract claims against MMG and Cheng, a negligence claim against RestoreCare, and a claim of intentional infliction of emotional distress against Cheng. On February 25, 2013, this case proceeded to a jury trial. On March 1, 2013, at the conclusion of said trial, the jury found that both Appellant and MMG breached the contract, and the jury declined to award damages to Appellant on his claims against MMG. The jury also found in favor of RestoreCare. However, as to Appellant's claims against Cheng, the . jury awarded Appellant a total of $120,000.00 in compensatory and punitive damages. On March 11, 2013, Appellant filed a timely post -trial motion. On March 15, 2013, MMG filed a timely cross-motion for post -trial relief. On November 20, 2013, the trial court entered an order denying Appellant's post -trial motion and dismissing MMG's cross-motion as moot. On December 30, 2013, judgment was entered in favor of MMG and RestoreCare and against Appellant. However, judgment was also entered in -4- J -A26031-14 favor of Appellant and against Cheng. On December 18, 2013, Appellant filed a timely notice of appeal. On December 30, 2013, MMG filed a timely notice of cross-appeal.3 On appeal, Appellant raises the following two issues for our review. 1. Did the [trial c]ourt err in submitting an interrogatory to the jury on the issue of whether Appellant made misrepresentations or committed fraud when there was no evidence that MMG relied upon any such alleged misrepresentations or fraud? 2. Did the [trial c]ourt err in failing to grant a new trial when the evidence showed that [Appellant] had paid his insurance premiums and wad, therefore, entitled to at least $5,000.00 for the month that his business was closed for repairs? Appellant's Brief at 4. On its cross-appeal, MMG raises the following issues for this Court's review. A. Whether [] Appellant presented sufficient evidence from which a jury could conclude that he sustained a loss of business income under the applicable insurance policy? B. Whether the business income loss provision in MMG's policy must be interpreted to offset ongoing expenses with net business losses so as to give effect to all of the language in the policy and avoid compensation that is greater than the actual loss sustained? MMG's Brief at 1. 3 Appellant, MMG, and the trial court have complied with Pa.R.A.P. 1925. 5 J -A26031-14 Both of Appellant's issues on appeal ask for a new trial. We begin by noting our well-settled standard of review. Our review of the trial court's denial of a new trial is limited to determining whether the trial court acted capriciously, abused its discretion, or committed an error of law that controlled the outcome of the case. In making this determination, we must consider whether, viewing the evidence in the light most favorable to the verdict winner, a new trial would produce a different verdict. Consequently, if there is any support in the record for the trial court's decision to deny a new trial, that decision must be affirmed. Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014) (citations omitted). In his first issue, Appellant avers that the trial court erred in submitting an interrogatory to the jury that instructed that if Appellant materially breached his contract with MMG, he cannot recover damages. Appellant's Brief at 9. In Appellant's view, "the trial [court] failed to instruct the jury that if there was a misrepresentation or fraud, MMG had to rely on it in order for it to be actionable." Id. at 9-10. In examining jury instructions, our scope of review is limited to determining whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. Error in a charge is sufficient ground for a new trial if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Error will be found where the jury was probably [misled] by what the trial judge charged or where there was an omission in the charge. A charge will be found adequate unless the 6 J -A26031-14 issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to a fundamental error. In reviewing a trial court's charge to the jury[,] we must look to the charge in its entirety. Because this is a question of law, this Court's review is plenary. Passarello v. Grumbine, 87 A.3d 285, 296-297 (Pa. 2014) (citation omitted). Appellant avers that the trial court erred in its interrogatory to the jury concerning whether Appellant materially breached the contract because MMG was required to show that it relied on Appellant's alleged misrepresentations. Appellant's Brief at 9-10. In support of this contention, Appellant cites to our Supreme Court's decisions in Porreco v. Porreco, 811 A.2d 566 (Pa. 2002) (plurality) and Bortz v. Noon, 729 A.2d 555 (Pa. 1999). Appellant's Brief at 10. In Porreco, our Supreme Court considered a divorce case involving a pre -nuptial agreement. Porreco, supra at 569-570. The Porreco Court framed the issue as whether the husband "fraudulently induced [the wife] to sign the prenuptial agreement by misrepresenting the value of the engagement ring on the list of her individual assets, which he prepared as part of the prenuptial agreement." Id. at 570. Our Supreme Court listed the six prong test for fraudulent misrepresentation as follows. In order to void a contract due to a fraudulent misrepresentation, the party alleging fraud must prove, by clear and convincing evidence: (1) a -7- J -A26031-14 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 it; (5) justifiable reliance on the misrepresentation; and (6) resulting injury proximately caused by the reliance. Id. The Porreco Court cited to Bortz for this test. The Court went further to observe that "[t]o be justifiable, reliance upon the representation of another must be reasonable." Id. at 571. Ultimately, our Supreme Court rejected the wife's argument that her "alleged reliance on [her husband's] misrepresentation of the value of the ring on the schedule of her assets was justifiable." Id. at 571-572. This precluded the wife from having the pre- nuptial agreement declared void. Id. at 572. In Bortz, our Supreme Court discussed intentional misrepresentations as actionable in tort. Id. at 560. Specifically, the Bortz Court granted allocatur to decide whether a real estate agent "had a duty to ascertain whether the septic system had actually passed the dye test and if her failure to do so amounted to a misrepresentation to the [b]uyer." Id. at 559. Our Supreme Court noted that the six -element test it recited initially originated from the Restatement (Second) of Torts. Id. at 560. Ultimately, the Bortz Court concluded that "[w]hile the Agent made an affirmative misrepresentation that the dye test was clear, there is no finding that the Agent made any misrepresentation with knowledge that it was false." Id. at -g J -A26031-14 561. As a result, the buyer could not recover against the real estate agent for intentional misrepresentation. Id. In this case, the specific insurance policy provision at issue states that the policy is void if the insured "at any time, intentionally conceal[s] or misrepresent[s] a material fact concerning ... a claim under [the] policy." Appellant's Amended Complaint, 4/23/10, Exhibit B, at 41. As the trial court pointed out, "[w]hether or not [Appellant] intentionally misrepresented a material fact in connection with his claim was a question of fact for the jury to determine ... [because i]f he did so, the express language of the policy voided coverage." Trial Court Opinion, 5/2/14, at 3. The policy does not purport to incorporate the elements of common law fraud in any way. Neither Appellant nor MMG raised a claim for the tort of intentional misrepresentation, nor was either seeking to rescind the entire contract on this basis. Rather, MMG believed it did not have to pay certain benefits under the policy based on its belief that Appellant made material misrepresentations concerning the value of part of his claim. This was a question for the jury to decide. As a result, neither Porreco nor Bortz control the instant case. Based on these considerations, we conclude the trial court did not abuse its discretion in submitting this interrogatory to the jury for its consideration. See Passarello, supra. In his second issue, Appellant avers that even if he did make any misrepresentations, he would still be entitled to a new trial because "the -g J -A26031-14 evidence showed that Appellant had paid his insurance premiums and was, therefore, entitled to at least $5,000.00 for the month that his business was closed for repairs." Appellant's Brief at 13. However, before we may review the merits of Appellant's claim, we must first ascertain whether Appellant has waived this issue. Pennsylvania Rule of Appellate Procedure 2119 states that an appellant's "argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part --in distinctive type or in type distinctively displayed --the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a). The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities. This Court will not consider the merits of an argument which fails to cite relevant case or statutory authority. Failure to cite relevant legal authority constitutes waiver of the claim on appeal. In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (internal quotation marks and citations omitted). In this case, Appellant's brief consists of his argument heading, which we have quoted above, followed by one sentence stating Appellant is entitled to a new trial. Appellant's Brief at 13. Appellant then block quotes an unattributed "Section 19.110," which is a jury instruction on material breach - 10 - J -A26031-14 of contract. Id, Appellant includes with the quote a block quote to a subcommittee note, containing citations to two federal district court cases from the Western District of Pennsylvania.4 Id, In our view, Appellant's second argument on appeal is woefully lacking in development as it contains one original sentence and relies entirely on one unattributed block quote. Appellant's brief does not make any attempt to explain the applicability of the quoted charge to this case or provide any explanation as to why this entitles him to a new trial. As a result, we deem Appellant's second issue on appeal waived for lack of development. See In re Estate of Whitley, supra. Based on the foregoing, we conclude both of Appellant's issues on appeal are either waived or devoid of merit. Accordingly, the trial court's December 23, 2013 judgment in favor of MMG and against Appellant is affirmed. As we have resolved all of Appellant's issues in MMG's favor, we need not address any issues in its cross-appeal. Therefore, MMG's cross- appeal is dismissed as moot. 4 Appellant does not provide a source citation for this instruction or the subcommittee note that follows it. - 11 - J -A26031-14 Judgment affirmed. Cross-appeal dismissed.• yl Judgment Entered. J•seph D. Seleyn, Prothonotary Date: 11/20/2014