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Home My WebLink About11-8234a ?V OC T 3 ! IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, as Subrogee of Callen Kinback, Inc., CIVIL DIVISION No.: Plaintiff, vs. COMPLAINT MEL'S HEATER SERVICE, LLC, Defendant. Filed on Behalf of Plaintiff, Pennsylvania National Mutual Casualty Insurance Company, as Subrogee of Callen Kinback, Inc. Counsel of Record For This Party: Christopher P. Deegan, Esquire PA I.D. #85635 Email: cdeegan(&wglaw.com WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Firm #594 Two Gateway Center, Suite 1450 603 Stanwix Street Pittsburgh, PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 ??) 9Q - 01) pl, al? ek-4 a i97 / IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, as Subrogee of Callen Kinback, Inc., CIVIL DIVISION NO.. Plaintiff, VS. MEL'S HEATER SERVICE, LLC, Defendant. NOTICE TO DEFEND TO: Mel's Heater Service, LLC 16 Queen Road Intercourse, Pennsylvania 17531 YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOREGOING 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: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, as Subrogee of Callen Kinback, Inc., Plaintiff, CIVIL DIVISION NO.. VS. MEL'S HEATER SERVICE, LLC, Defendants. COMPLAINT AND NOW, comes the Plaintiff, Pennsylvania National Mutual Casualty Insurance Company, as Subrogee of Callen Kinback, by and through its attorneys, Christopher P. Deegan, Esquire and the law firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, and files the following Complaint: 1. Plaintiff, Pennsylvania National Mutual Casualty Insurance Company (hereinafter referred to as "Penn National"), as Subrogee of Callen Kinback, Inc., is a corporation doing business within the Commonwealth of Pennsylvania and having a place of business at Two North Second Street, Harrisburg, Pennsylvania 17101. 2. Callen Kinback, Inc. (hereinafter referred to as "Callen Kinback") is a corporation organized under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 905 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 3. At all times relevant hereto, Callen Kinback was the holder of a policy of insurance issued by Penn National which covered its property and contents located at 905 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 4. Defendant, Mel's Heater Service, LLC (hereinafter referred to as "Mel's Heater Service") is a limited liability company with its principal place of business located at 16 Queen Road, Intercourse, Pennsylvania 17531. 5. Callen Kinback contracted with Defendant for the purchase and service of a waste oil furnace located on Callen Kinback's aforementioned property. 6. Defendant attempted to service and/or repair the waste oil furnace on several occasions, including but not limited to October 15, 2009, November 13, 2009, December 28, 2009 and December 29, 2009. 7. Defendant was the only servicer and/or repairer of the waste oil furnace. 8. On or about December 30, 2009, an employee of Callen Kinback arrived at the property at approximately 6:00 a.m. and discovered soot and/or oil blowing out of the aforementioned waste oil furnace, which was located in the garage of Callen Kinback's aforementioned property. 9. As a result of the soot and/or oil emitting from the furnace, Callen Kinback's property and contents sustained significant damage. 10. Upon learning of the damage, John Kinback of Callen Kinback called "Mel" from Mel's Heater Service to notify him of the problem. 11. "Mel" arrived at the scene at approximately 8:00 a.m., inspected the furnace and said that Mel's Heater Service would take responsibility for the damage. 12. Pursuant to its policy of insurance, Penn National has reimbursed Callen Kinback for the aforementioned damages in the amount of $166,566.92. 13. Pursuant to its policy of insurance and common law, Penn National retains subrogation rights against any party or parties liable for causing damage to the covered property -2- owned by Callen Kinback and/or for payments made pursuant to its policy of insurance to others as a result of the same. COUNT ONE - NEGLIGENCE 14. Paragraphs 1 through 13 of this Complaint are incorporated herein by reference as if the same were set forth at length below. 15. Defendant was negligent in general and breached its duty of care owed to Callen Kinback in the following particulars: (a) in failing to service and/or repair and/or maintain the waste oil furnace in a safe, proper and workmanlike manner; (b) in failing to follow industry safety standards during the service and/or repair and/or maintenance of the waste oil furnace; (d) in failing to properly test and inspect the waste oil furnace during and following Defendants' service and/or repair and/or maintenance; (e) in violating the applicable standards, local ordinances and national codes; (f) in failing to follow the instructions of the manufacturer when servicing and/or repairing and/or maintaining the furnace; (g) in causing soot and/or oil to emit from the waste oil furnace; (h) in bypassing the primary control in the waste oil furnace; (i) in failing to properly adjust the burner in the waste oil furnace; and (j) in allowing the waste oil furnace to keep operating when it was not working properly; (k) in failing to properly supervise its employees and/or agents and/or representatives; (1) in failing to properly train its employees and/or agents and/or representatives; -3- (m) in failing to properly protect Callen Kinback's property from the possibility of damage from the waste oil furnace; (n) in acting in a careless, reckless, negligent manner; (o) in permitting its employees and/or agents and/or representatives to act or admit to act as described in the above subparagraphs (a) through (n); and (p) in failing to provide Callen Kinback with the standard of care owed to it under the existing circumstances 16. As the sole, direct, legal and proximate result of Defendant's negligence as aforesaid, 4'allen Kinback has suffered the damages as set forth above. WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Company, as Subrogee of Callen Kinback, demands judgment in its favor and against the Defendant, Mel's Heater Service, LLC, in the amount of $166,566.92, exclusive of interest and costs. COUNT TWO - BREACH OF CONTRACT 17. Paragraphs 1 through 16 of this Complaint are incorporated herein by reference as if the same were set forth at length below. 18. Defendant entered into an oral contract with Callen Kinback for the sale, servicing and maintenance of the waste oil furnace. 19. Defendant breached the terms of the contract, generally and in the following particulars (a) in failing to service and/or repair and/or maintain the waste oil furnace in a safe, proper and workmanlike manner; (b) in failing to follow industry safety standards during the service and/or repair and/or maintenance of the waste oil furnace; (d) in failing to properly test and inspect the waste oil furnace during and following Defendants' service and/or repair and/or maintenance; -4- (e) in violating the applicable standards, local ordinances and national codes; (f) in failing to follow the instructions of the manufacturer when servicing and/or repairing and/or maintaining the furnace; (g) in bypassing the primary control in the waste oil furnace; (i) in failing to properly adjust the burner in the waste oil furnace; and (j) in allowing the waste oil furnace to keep operating when it was not working properly; 20. As the direct and proximate result of Defendants' aforementioned breaches, Callen Kinback suffered damages as set forth above. WHEREFORE, Plaintiff, Pennsylvania National Mutual Casualty Company, as Subrogee of Callen Kinback, demands judgment in its favor and against the Defendant, Mel's Heater Service, LLC, in the amount of $166,566.92, exclusive of interest and costs. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: ?A(19 Christopher. Deegan, Esquire Attorneys for Plaintiff -5- VERIFIED STATEMENT I, Christopher P. Deegan, Esquire, being the attorney for Pennsylvania National Mutual Casualty Insurance Company in the within action, am duly authorized to make this Verified Statement on its behalf. I hereby verify that the statements set forth in the foregoing COMPLAINT are true and correct to the best of my information and belief based upon knowledge obtained from representatives of Pennsylvania National Mutual Casualty Insurance Company. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authorities. Christoph P. Deegan, Esquire DATE: October 28, 2011 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy ,.ieo%Ot r 0 CI'it'a? f??A T11r PROT1 10?JOT 'D11 's' Richard W Stewart Solicitor % 11 P4OV 3D AM 11: 60 CUMBERLAND OMNI"( PENNSYLVANIA Pennsylvania National Mutual Casualty Insurance Company Case Number vs. Mel's Heater Service, LLC 2011-8234 SHERIFF'S RETURN OF SERVICE 11/15/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Mel's Heater Service, LLC, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within Complaint and Notice according to law. 11/21/2011 04:10 PM - Lancaster County Return: And now November 21, 2011 at 1610 hours I, Terry A. Bergman, Sheriff of Lancaster County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Mel's Heater Service, LLC by making known unto Melvin Stoltzfus, adult in charge for Mel's Heater Service, LLC at 16 Queen Road, Intercourse, Pennsylvania 17531 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.00 November 28, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF jc Cour,`.ySuite Shesnft. Tel.eowlt. Lac. SHERIFF'S O.EF1CE OF CUMBERLAND COUNTY Ronny R Anderson C111114 Sheriff Jody S Smith Richard W Stewart Chief Deputy r= Solicitor 3 Pennsylvania National Mutual Casualty Insurance Company Case Number vs. Mel's Heater Service, LLC 2011-8234 cb? ED SERVICE COVER SHEET M Service Details: rt n Category. Civil Action Complaint & Notice Zone: X Manner. Deputize Expires: 11/30/2011 Warrant. W Notes: From Cumberland County n m M 0- Serve To: Name: Mel's Heater Service, LLC Served: Personall dult In Cha? rg Posted Other =) Primary 16 Queen Road Adult In Address:. Intercourse, PA 17531 Charge: `4?l.. W 4.. __. .._ " Z >x. Phone: DOB: Relation: ?`- _ - re, a Alternate / pnq 0 Address: Date: Time: ?f . JO?- w Phone: Deputy: " ileage: ZC/ Attorney f 0rRjkm*or:> Name: Christopher P. Deegan Phone: 412-281-4541 dw,z Service A Y Date: ( Z[ ?c? tl U Time: N ` CJ Mileage: C 7, Gr) 109- ?O Deputy: n 49( , Notes / Special lnsawc brm. ui R#4305 $150.00 $36.50 U W fn • w Now, ovember 15, 2011 I, Sheriff of Cumberland County, Pennsylvania do hereby deputize the Sheriff of Lancaster County d to exe ute service of the documents herewith and make return thereof according to law. W W Return To: -i Cumberland County Sheriffs Office One Courthouse Square Carlisle, PA 17013 onny R Anderson, Sheriff t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA NATIONAL MUTUAL CIVIL DIVISION- "4-- CASUALTY INSURANCE COMPANY, as - r-n Subrogee of Callen Kinback, Inc., NO.: 11-8234 Plaintiff, ems... vs. PRAECIPE TO SETTLE. D DISCONTINUE MEL'S HEATER SERVICE, LLC, Defendant. Filed on Behalf of Plaintiff, Pennsylvania National Mutual Casualty Insurance Company, as Subrogee of Callen Kinback, Inc. Counsel of Record For This Party: Christopher P. Deegan, Esquire PA I.D. 485635 Email: cdeegan(?wglaw.com WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP Firm #594 Two Gateway Center, Suite 1456 603 Stanwix Street Pittsburgh, PA 15222 Phone: (412) 281-4541 Fax: (412) 281-4547 r I t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PFNNSYI.VANIA PENNSYLVANIA NATIONAL MUTUAL ) CIVIL DIVISION CASUALTY INSURANCE COMPANY, as ) Subrogee of Callen Kinback, Inc., ) NO.: Plaintiff, ) vs. MEL' S HEATER SERVICE, LLC, Defendants. PRAECIPE TO SETTLE AND DISCONTINUE TO: DAVID D. BUELL, PROTHONOTARY Kindly settle and discontinue the above-captioned action. Respectfully submitted, WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: ??" '?? Christop r P. Deegan, Esquire Attorneys for Plaintiff h CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PRAECIPE TO SETTLE AND DISCONTINUE has been served by first class U.S. Mail, postage prepaid, this 8th day ol' March, 2012, upon the following party: George B. Faller, Jr, Esquire Marston Law Offices 10 East High Street Carlisle, PA 17013 Christopher P. Deegan. Esquire