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Home My WebLink About01-1188Jesse Raymond Rtthl, Esquire PA Atty. No.: 55798 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 (717) 241-4829 (fax) MILLERS MUTUAL INSURANCE COMPANY, Plaintiff, CABLE & ASSOCIATES INSURANCE AGENCY, INC. Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW 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 CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Fourth Floor Carlisle, PA 17013 (717) 240-6200 AVISO USTED HA SIDEDEMANDADO/A EN CORTE. Siusteddesea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar ac¢ion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTEDNOTIENE UNABOGADO O NO PUEDE PAGARLEA UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse Fourth Floor Carlisle, PA 17013 (717) 240-6200 Jesse Raymond Ruhl Attorney I,D. No. 55798 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 (717) 2414813 MILLERS MUTUAL INSURANCE COMPANY, Plaintiff, CABLE & ASSOCIATES INSURANCE AGENCY, 1NC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW :NO. o1~ I177 : : Defendant. NOW COMES Plaintiff Millers Mutual Insurance Company, by and through its attorney, Jesse Raymond Ruhl, and files the within Complaint as follows: Millers Mutual Insurance Company (hereinafter "MMIC") is a mutual insurance company licensed to engage in the business of providing insurance to Pennsylvania residents and businesses with a principal place of business located at 805 North Front Street, Harrisburg, PA 17101. Defendant Cable and Associates Insurance Agency, Inc. is a Pennsylvania corporation with a registered place of business located at Murry Corporate Park, 1036 Corporate Drive, Export, PA 15632. 3. To market its insurance business, MMIC engages the services of agents to sell the insurance product to residents and businesses. Agents sell the insurance product, collect the premiums and remit the premiums to MMIC pursuant to their agreement with MMIC. 5. Defendant was an agent of MMIC. MMIC and the Defendant entered into an agency contract whereby Defendant promised to pay to MMIC all premiums accruing on the insurance written under the contract. A true and correct copies of the agency agreement is attached hereto as Exhibit "A" and incorporated herein by reference. The Defendant agreed that all premiums received by the Defendants would be held for MMIC by the Defendant as trustee for MMIC until such time as the premiums were delivered to MMIC. Despite this agreement, Defendant received premiums totaling $6,607.79 which premiums were due to be paid to MMIC, and, despite demand therefore, Defendant has failed to pay to MMIC the premiums totaling $6,607.79. Defendant has breached the terms of the agency agreement by falling to remit the 2 premiums totaling $6,607.79 to MMIC. 10. MMIC has been damaged in the amount of $6,607.79 as a result of the Defendant's breach of the agency agreement. WHEREFORE Plaintiff Millers Mutual Insurance Company demands judgment in its favor and against Defendant in the amount of $6,607.79, plus inte~?a / ( Jesse Ra PA Attc 36 S. H: td costs of suit. hey ID No. 55798 aover Street P.O. B{~{ 1319 Carlisle, PA 17013 (717) 241-4813 Attomey for the Plaintiff 3 VERIFICATION Jesse Ruhl deposes and says, subject to the provisions of 42 Pa.C.S.A. Section 4104 relating to unswom falsification to authorities, that he is the attorney for the Plaintiff, Millers Mutual Insurance Company, and that the facts set forth in the foregoing Complaint are tree and correct to the best of his knowledge, information and belief. Jesse/~uhlv '~. EXHIBIT "A" THIS AGRE£~I£~'L made this AGENCY AGREEMENT Ficst day of danuary A.D. 1999 M.,andbetween C. ahlo & Asmciates of D,r'eysvi 11~ in tbe County of Wes-~mland and State of Pennsylvania bereinafier des:gnated as 'A~,ent T and MII. t£P, S ML TUAL L¥SLRAP; CE COMPA~T a corporation duly organized and ex~sting under and by virtue of the lau5 of the State of Pennsylvania and having its princg~al off~ce in the CiO' of Hamsburg and State of Pennsyh,ama ber~nafter designated as 'Company 7 Pursuant to a request that the unde,=vitingfaci,';ties .f tbe Comt'~any be r,,ade available to the undersl~,nett as Agent, the Company hereby grants authonO, to the Agent to recewe aha accept proposals for such contracts of insurance as the Company bas authority lawful(r to make., subject, bou,m 5 to restrietions placed upon such Agent by the lau.* of the State or States in which such Agent ts authorized to write insurance business and to the terms and conditions bereinafiersetfortb. A L THO RITE The Ago, t has fidl power and authority to receive and accept proposals for insurance covering such classes of risks as the Company may, from time to time. authorize to be insured subject to the Underu~tmg Guide- lines contained in the Agency Manual and'or subsequent rerisions. NOTIFICATION. The Company is to be notified of each binder, endorsement, application or certificate immediateh' upon execution, bia, in no ezent, later than three r3) business dC~ls follouqng execution of the documdnr REMFITA~,'CE OF PREltlL ?d. Agent is gitvn authoriO, to collect and receitv premium in accordance with tbe follot~ng guidelines.. Agency Account Current, (Commercial Accounts onO'). The Agent agrees to pay to the Company all premiums accruing on insurance written under this Agreement WHETHER OR NOT COLLECTED BY THE AGF_.bT FROM THE INSURED except as al> plies to 3.LB.). The Agent agrees that all premiums received by the Agent shall be held by them as Trustee for the Company until delivered to it and the prit~lege, if granted, of taking commission from the premium shall not be constrned as changing the relationship of the respected parties hereto. The Agent agrees that the Compare' sba# be paid not later than 45 days after the end of the month for which the account is rendered~ If Agent fails repay when due any'mong, owed to the Company under the ~ of applieable &'lling procedures, the Compan V may by written notice to the Agent immediatel) suspend, or mod~; any of the provisions of tbis'Agreem~t or terminate this Agree- ment, orA gent ~ authority, to wbatet~r extent the Company may elect. The Agent is authorized to retain out of premiums so collected as.full compensation on basiness so placed with the ¢ompan. g commissions in accordance with the Company's schedule of commiss- ions as may, from time to time, be promulgated. If an Agent bas succeeded to, or carries on an Ageno' former(r ou,ned, or conducted by anotber, the Agency shall pay return commission on return premiums on such business in tbe same manner and to the same extent as upon it ~ ou~ basiness unless tbe parties bate specifically otherwise agreed and the urdtten consent of the Company to such an agreement bas been endorsed hereon Page l (B. ~ Direct Bill. Direct Bill Accounts u~ll be administered as follous. (I.) Agent shall submit all applications prompt!l, with the initial gross premium, or required dou~ palrnent without deduction of commission. Agent name will appear on notices transmitted to Polic.¥bolders and copies of same will be transmitted to Agent. All Direct Bill Pa)rments should be transm#ted from the Policyholder direct to the Corn- paD'. If an3' Direct Bill Pa?nents are received ~. , the Agencyl notification and remittance must be made immediate(v to the Company. Agent is not authorized to deduct commissions on Direct Bill Policies. fY.) Direct Bill policies may not be premium financed. AI. DF/' PROLEDf.~,E. TOe Agent shall have the right to relief from responsibility for the cotlection of premiums developed fiom any Company interim or final audit or t'oluntarv report from an insured, subject to the following conditions.- Within 45 days after receipt by the Agent of any Statement of Premiums de~eloped from such audit, or report, and being unable to collect from the Policyholder after a reasonable attempt to do so. the Agent shall return same to the Company together with uritten adt~ce gwmg the reason the audit. or report, is uncollectible and that he desires relief from such responsibility. TOe Agent agrees to waive commission on an), Statement so returned and the Company shall bate the right to collect such premiums in any manner it ma), elect. If Agent fails to return the Statement to the Componv within tbe pen'od specified in 4.(A), tbe Agent shall be deemed to hate elected to retain responsibiiio, for the pa)~ent of sucb premium to the Company. AGF.¥CY EXPENSES. TOe Company sball not be responsible for agency experaes, such as, rentals, transportation facilities, clerk bite. solicitors 'fees, postage, a&ertising, personal local license fees, adjustment M.. , the Agent o flosses under policies issued h. , the Agency, or any other agency expenses wbatsoet~, except as authorized by the Com- pany in uviting. NO EMPL O YER-£ ~IP L O YEE RELATIONSHIP. Nothing contained herein shall be construed to create the relationship of emplqver and employee betueen the Companv and the Agent. and the Agent shall be free to exercise it's ou'~, judgmen~ as to tbe person.; from whom it unl! solicit insurance and the time and pla~e oJ'solic~tation. Agent is an independo,t contractor. COMPAAT PROPEgI'E Any Company supplies furnished to the Agent h' the Companr shall aluaS~ remain tbe proper~y of the Com- pany and sball be retumed to tbe Company or'its representaiives prompt(v upon demand. ' CANC£IIATION OF RISK. Nothing in this Agreement shall be construed as limiting or restricting the right of the Company to cancel any policy, or policies, or contracts of insurance, issued under this Agreement, and the Company resemes the ngbt to withdraw asabority from the Agent and to decline to accept any particular risk or classes of risk, in accordance with existing statutor)' regulations. ?be Agent shall not insert any adt~nisements respecting the Company in any publications or iss te any cir- cular orpaper referring to the Company u{tbout the consent of the Companyfirst obtained in writing. In case the Company shall be subjected to loss or expense arising from such unauthorized action or state- ment of the Agen'cy, the AgenO, shall be liable for all costs and damages arising therefrom. P~e2 10. 11. 12. EXP1P, A TIOA' O IL~,'ERSHIP In the etent of the termination of tNs Agreement. the Agent not being in default and thereafier prompth' ac- counting for and paying balances not in default for which be may be liable, the Agent S record, use an'd control of expirations sba# be deemed tbe proper~v of the Agent a~td left in his u, ndisputed possession; other wise the records, ase and control of expirations shall be t~ested in the Compan3. COMPAhT ~'D£5INIFICA TION. The Company shall indemnij5, and bold the Agent harmless against all ciril liabiliO; including atiorn05' fees and costs of investigation and defense incident thereto, arising as a direct result of Company error or omission in tbe preparation, processing, handling or hilling of Company-billed or an.,,, other business placed ~, the Agent with the Compan.v. except to the extent that the Agent bas caused such error; Company error or omission in the notification to the Agent or the insured of po&v aggregate limits that have become subject to impairment.. (C ~ rD.) Ac. tual or alle~d failure of the insured to receWe notice of cancellation or non-renewal, or anl' ott)er notice affecting cotvrage, where such notices are sent directl. I to the insured by the Com/)an.g. Actual or alleged failure of the Company to comp!v with the requirements of the Fair Credit Report- ing Act, Federal Tmtb in Lending tau'. Fair Credit Billing Act, federal and state privacy lau5 or any other law where the Agent is using forms supplied by the Company, or following instruction or procedures established by the Compa~¥, except to the extent that the Agent bas caased such failure; or rE.) An.V other action or inaction of the Agent based upon the Agent ~ use of forms supplied by the Com- pany, or follou~ng instructions or precedures established bi, the Compans; except to the extent that the Agent bas caused such failure. ' ' lbe Agent sball promptl~, notO, the Company when it receites notice of any claim or the commencement of ans, action relating to s'ucb liabilities, and the Compare' shall be entitled tb panicipate in such action or to assume the defense of any such action. If the Compare: assumes the defense of any such action, it sba# not be liable to the Agent for'an.l, legal or other exponses siabsequently incurred bt, tbd Agent in connection with such action unless the Compan.v has giten its prior u~tten approval of such 'e. xtx, nses. The Compan.y covenants and agrees with the Agent that the Company u~ll not knowing(r institute or prosec- cute or aid in the institution or pmsecution of any suit. claim demand, action or cause of action against the Asent which alleges the Agent is liable or which seeks contribution or recotw3, from the Agent for any action or inaction for which the Compan.v bas agreed to indemn~, and bold the Agent harmless. Notwithstanding the,a/orego!ng nothing confined in this paragrapb shall operate to do:v the Company the right to deJ~nd itsel./ in an) action against t~e Agent and/or against tbe Agent and tbe &ompany. ' AGE,I~T1NDEMNIFICA TION. .~, Ag,,~! sh, a, ll lndemn~ an~ bo,,ld th,,e Company harmless against all cit~l liabiliO,, to the exwnt the Agent is ~auv tiaote to the Compan3 bi Lau and incldding auorne~s' fees and costs all~Jwed bt' law, arising as a direct iesult off .... (A.) Agent error or omission in tbe preparation, prvcessing, or handling of business placed ~, the Agent with the Compan.v, except to the extent that the Compan.v has caused such error,. (B.) Actua~ ~r a~eged fai~ure of tbe Agent to c~mp~v u~t~ tbe requirements ~f t~e Fair Credit Rep~ning Act, Federal Truth in Lending tau', Fair Credit Billing Act, federal or state privacv laus or any otber law, except to tbe extent that tbe Company has caused sucb failure, or; '' ( C.) An V other action or inaction of the Agent, including without limitation, improper use of the forms su~plied by the Company, or failure to follou' instructions or procedures established by the Com- Page 3 pany. except to the extent that the Company bas caused such error. In tbose cases where tbe Agott has agreed to indemni, tS. ' and bold the Como, any harmless, the Agent cotenants and agrees with the Company that the Agent will not knou~ngl)' institute orprosecute or aid in the institution orprosecution of any suit. claim, demand, action or cause of action against the Company which alleges the Company is liable or which seeks contribution or recotery, frvm the Company. Notwith- standing the a foregoing, nothing contained in tbis paragrapb sba# operate to deny the Agent the right to defend itself in any action against the Agent and/or against the Agent and the Co'mpany. 13. ARBITRA TIO.¥. If any dispute or d~sagreement shall ame in connection with any interpretation of this Agreement, its perfor- mance or nonperformance, the panies shall make ever.., effort to meet and senle their d~pute in good faith informal!v. If the part~s cannot agree on a u~tten settlement to the d~pute within one year from the date the dispute ames. or within a longer wr~xl agreed upon ~, the pun~ then the matter in controtevO' shall be settled ~, arbitration in accordance with the rules of the AmeriCan Arbitration Association, and judg ment u;on the award rendered b3' the arbitrator(s) may be entered in any court hatqng /umdiction. The part~es]unhe~ agree that the i, rrms of t~s Agreenwnt shall be comtrued and interpreted according to the lau~ of the Commonwealth of Pennsylt ania. and that any Arbitration held in connection with this Agree- ment and this paragraph shall occur in ftarmburg Pennsylvania The panws may agree to submit the d~7~ae to one arbitrator, otheru~se, there shall be three, one named in uriting by each parer within ten ( 1 O) days after notice of arbitration is sened by either pany upon the other, and a third arbitrator selected by these tut) arbitrators within fifteen (15~ da35 thereafter. If the arbitrators are unable to agree upon a third arbitrator, then the third arbitrator shall be chosen impartial!v b3, the American Arbitration Association. lbe determination of the arbitratoff sJ shall be final and binding on all parties, prot 'ided such determination is made in u~iting and signed ~' a majoriO, of the arb#rator(s). ~ere arbitration results in an award, such award shall include interest, at the current U. S. Treasury Note Rate, per annum ranningfrom the date when the amount that is the subject of the award first came due. The costs of arbitration shall be borne equal!l, M.. ' tbe parties. 14. PREt'7OL5 A GREEME/~T$. This Agreement supersedes all pret'ioas Agreements, whether oral or u~uen, betueen the Millers Mutual In- surance Company and/or Paradise Mutual Insurance Company and the Agent, and this Agreement may be terminated by eitber pany at any time upon written not~ce to the other (subject to statutog' regulations). I5. AGRI BUSLYESS (Non-Farmoumer5). It is understood and agreed that the pro~sions outlined in this Agency Agreement u,ill not apply to business insured in the Company ~ Agri Department. All bus 'ness 'nth$ catego~. , is coterea under a separate Brokerage Contract. 16. C03L~IISSIOAS. Attached herewith is the Commission schedule to be ased for the various lines of insurance which the Company will consider under this Agreement. 7be commissions herein agreed upon mai' be changed bs' the Company during the duration of this Agree- ment by un~tten notice.from the Compani' to the Agent, tb be effective hinetv (90) das5 tberea~ or as mai' be reqfiired M.. , the laus or regulations of the State wherein the c- ontract of i'nsurancd is u~tten' . The new ' commission shall be effectite for not less than one (1).year after the effectite date. Notwithstanding the aforegoingprotqsions, the Agent and the Company may mutually agree in uriting at am' time to change the commission rates for contracts of insurance sold by the Agent. ~,loreover, the terms of this Agreement shall not probibit the negotiation of special commission rates on indit'idual policies M. , mutual agreement between the Agent and the Company. 17. TRA&SFER OR SALE. The Agent agrees to give advance notice to the Company of any transfer or sale of the Agent's b asiness in Page 4 order that tbe Company rna) at its option and sole discretion.. (A.) Enter into a new Agency Agreement ultb the successor; (B.) Place in effect a Limited Agency Agreement uqtb the successor, or; (C ) Terminate this Agreement. lf tbe pta<basing, transferee or successor Agency does not meet the Company's cr~teria for agency appoint- ment in the Compam, g sole discretion the Company bas the r~gbt not to appoint said Agency. 18. In the et~ont of termination of this Agreement, the Companr uqll comp!3' t,~tb all existing statutory obliga- tions. In the e~vnt of termination of this Agreement, the C~mpany agrees to furnish the Agent a list of existing Direct Bill Polioybolders includingpolicr number~, exI~ration dates, and insureds' names. 19. ERROR3 A.¥ D OMISSIO,'~S L~,SLTOL¥CE. This Agreement is contingent upon Agent maintaining in force Errors and Omissions Insurance cottage. IN WI'Ih'ESS WHEREOF the Companr bas caused its corporate name to be subsc~bed thereto and the Agent bas set it ~ band and seal on the day and.~ar fir~t abot~ u~t~l. A TIF. ST. (Title) (Title) To be executed in case of incorporated agencies, making individuals interested liable fo(premiums not accounted for ~, the Corpomtion: In cons~era, tion of the above named insurance company appointing the above named Agent, and ~ an induce- rnent so to ao, lgr/F, here~ guarantee tbe faithful perfortilance of the obligations above mentioned h such Agent and firmly bind MYSELF/OUI[S~L VES topaz, any sum for which said Agent mai, become liable to pas, to the Companv h' virtde of the Agency created under tb~ for~oing Agreement and which SliCb Agent shall fail t' o'or refiae to pa.' v: ' WI"I~T. SS (Seal) WIT~T. SS (Seal) gqTNF. SS (Seal) Page 5 Donald J. Balsley Jr. Attorney I.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222~2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, Plaintiff, CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendam. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No.01-1188 To: Prothonotary PRAECIPE FOR APPEARANCE Please enter my appearance on behalf of the defendant Cable & Associates Insurance Agency, Inc., in the above-captioned matter. Donald J. Balsley Jr. PA I.D. No. 33638x 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 Attorney for Defendam CERTIFICATE OF SERVICE I, Donald J. Balsley Jr., Esquire, hereby certify that a true and correct copy of the foregoing Praecipe for Appearance was served by placing said document in the United States mail, first-class, postage prepaid, this 12th day of March, 2001, upon the below named person at the following address: Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 Donald J. Balsley J'. Donald J. Balsley Jr. Attorney I.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, Plaintiff, CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No.01-1188 DEFENDANT'S PRELIMINARY OBJECTIONS PURSUANT TO 42 PA.C.S.A. §1028(a)(6)AND MOTION TO STAY PROCEEDINGS AND COMPEL ARBITRATION Defendant Cable & Associates Insurance Agency, Inc. ("Cable Agency"), by and through its attorney, Donald J. Balsley Jr., Esquire, hereby files its Preliminary Objections pursuant to 42 PA.C.S.A. §1028(a)(6), to the plaintiff's Complaint and requests this Court to stay these proceedings and compel plaintiff to arbitrate its claims before the American Arbitration Association. In support of its Motion, Cable Agency sets forth the following matters: In paragraph 6 of its Complaint, plaintiff identifies an Agency Agreement between Cable Agency and Millers Mutual Insurance Company ("Millers Mutual"). 2. Millers Mutual has attached the Agency Agreement to its Complaint as Exhibit "A". Millers Mutual alleges in paragraph 9 of its Complaint that Cable Agency has failed to remit premiums and that Cable Agency has breached the terms of the Agency Agreement. Millers Mutual has set forth a dispute or disagreement in connection with the Agency Agreement. The Agency Agreement, paragraph 13, clearly and concisely sets forth that "the matter in controversy shall be settled by arbitration in accordance with the rules of the American Arbitration Association." Cable Agency and Millers Mutual have entered an agreement for alternative dispute resolution. WHEREFORE Cable & Associates Insurance Agency, Inc., requests this Court to (a) sustain its Preliminary Objection; (b) compel Millers Mutual Insurance Company to assert its claims before the American Arbitration Association, and (c) dismiss this action pending arbitration in accordance with the parties' agreement to arbitrate. PA I.D. No, 33638"- 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 (412) 765-1760 Attorney for Defendant -2- Donald J. Balsley Jr. Attorney I.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, Plaintiff, CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No.01-1188 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S PRELIMINARY OBJECTIONS AND MOTION TO STAY PROCEEDINGS AND COMPEL ARBITRATION II. ISSUE PRESENTED Whether Cable Agency's Preliminary Objections should be sustained and its Motion to Compel Arbitration be granted based on the fact that plaintiff signed an agreement to arbitrate any claim it might have arising out of an Agency Agreement? Answer: Yes PENNSYLVANIA STANDARD FOR PRELIMINARY OBJECTIONS Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (6) pendency of a prior action or agreement for alternative dispute resolution. 42 Pa.C.S.A. §1028(a)(6). III. STATEMENT OF FACTS Plaintiff Millers Mutual Insurance Company ("Millers Mutual") and defendant Cable & Associates Insurance Agency, linc. ("Cable Agency") entered an Agency Agreement whereby Cable Agency promised to pay Millers Mutual all premiums which Cable Agency collected on insurance policies issued by Millers Mutual. (Complaint, paragraph 6) Millers Mutual now claims that Cable Agency collected $6,607.79 which it has failed to remit. (Complaint, paragraph 8) A dispute or disagreement has now resulted between Cable Agency and Millers Mutual with respect to the Agency Agreement. (Complaint, paragraph 9) The Agency Agreement provides the following: If the parties cannot agree on a written settlement to the dispute within one year from the date the dispute arises, or within a longer period agreed upon by the parties then the matter in controversy shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. (Complaint, Exhibit "A", paragraph 13) IV. ARGUMENT A. Pennsylvania law favors arbitration. As a matter of public policy, Pennsylvania courts favor the settlement of disputes by arbitration. Waddell v. Shriber, 464 Pa. 20, 348 A.2d 96, 98 (1975)(holding that a parmer in a dissolved securities firm was required to arbitrate his claims before the NYSE in accordance with the partnership agreement he had signed and the Constitution and Rules of the NYSE). -2- When parties agree to arbitration in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements. Smith v. Cumberland Group. Limited, 45 Pa. Super. 276,687 A.2d 1167, 1170 (1997). Further, if an arbitration clause does not contain a particular limitation, the court will not impose such a limitation. Goral v. Fox Ridge, Inc., 453 Pa. Super. 346, 683 A.2d 931,933 (1996). Pennsylvania's policy favoring arbitration is also evidenced by statute: A written agreement to subject any existing controversy to arbitration or a provision in written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract. 42 Pa.C.S.A. §7303fi In the instant case Cable Agency and Millers Mutual executed an unambiguous Agency Agreement to arbitrate "any dispute or disagreement" that might arise between them before the American Arbitration Association. Cable Agency's Preliminary Objections should be sustained and its Motion to Compel Arbitration granted. ~The provisions of §7303 are made applicable to the instant case, which involves common law arbitration, pursuant to 42 Pa.C.S.A. §7342(a). -3- V. CONCLUSION Accordingly, pursuant to the terms of the Agency Agreement, this Court should and must stay these proceedings and compel arbitration of Millers Mutual's claims against Cable Agency before the American Arbitration Association. 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 (412) 765-1760 Attorney for Defendant -4- Donald J. Balsley Jr. Attorney I.D. No. 33638 535 Smithfield Street, Suite 619 Pittsburgh, PA 15222-2302 Telephone: (412) 765-1760 MILLERS MUTUAL INSURANCE COMPANY, Plaintiff, CABLE & ASSOCIATES INSURANCE AGENCY, INC., Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No.01-1188 ORDER AND NOW, to-wit, this day of ,2001, after consideration of Defendant's Preliminary Objections to Plaintiff's Complaint, it is hereby ORDERED, ADJUDGED and DECREED, · Defendant's Preliminary Objections are sustained, · Millers Mutual Insurance Company is compelled to assert its claims before the American Arbitration Association, and · This action is dismissed pending arbitration in accordance with the parties' agreement to arbitrate. BY THE COURT: CERTIFICATE OF SERVICE I, Donald J. Balsley Jr., Esquire, hereby certify that a true and correct copy of the foregoing Defendant's Preliminary Objections Pursuant to 42 PA.C.S.A. §1028(a)(b) and Motion to Stay Proceedings and Compel Arbitration and Memorandum of Law in Support thereof was served by placing said document in the United States mail, first-class, postage prepaid, this /3~day of March, 2001, upon the below named person at the following address: Jesse Raymond Ruhl, Esquire 36 S. Hanover Street P.O. Box 1319 Carlisle, PA 17013 Donald J. Balsley lr~~' SHERIFF'S RETURN - CASE NO: 2001-01188 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MILLERS MUTUAL INSURANCE CO VS CABLE & ASSOCIATES INSURANCE OUT OF COUNTY R. Thomas Kline , duly sworn according to law, and inquiry for the within named DEFENDANT CABLE & ASSOCIATES INSURANCE AGENCY INC but was unable to locate Them in his bailiwick. deputized the sheriff of WESTMORELAND County, serve the within COMPLAINT & NOTICE says, that he made a diligent to wit: Sheriff or Deputy Sheriff who being search and He therefore Pennsylvania, to On March 13th , 2001 , this office was in receipt of the attached return from WESTMORELAND Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 DEP. WESTMORELAND 34.70 .00 71.70 03/13/2001 JESSE RAYMOND RUHL So ans~: ~.~ j~f._~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this /q - day of ~ .2o~ J A.D. Prothonotary tn Tt~e Court of Common Pleag of Cumberland County, Pennsylvania Millers Mutual Insurance Company VS. Cable & Associates Ins. Agency, Inc. --Murray Corporate Pakk 1036 Corporate Drive Export, PA 15632 NOW, 3/2/0] hereby deputize the Sheriff of O&31 ,20 0 ~, I, SHERIFF OF CUMBERLAND CO!J!xTTY, PA, do Westmoreland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, 3- ~ - ,20 Ol , at /.'./.C' o'clock ? M. served the and made lmown to Notarial Seal MaP/Ann Jordan, Notary Publio Gmensburg, Westmoreland County My Commission Expires June 14, 2004 copy of the original the contents thereof. So answers, ,,~ Sworn and subscribed before rnethis ~ day of ,/J~(///X-A; 20OI COSTS SERVICE MILEAGE .AFFIDAVIT 3q. qo