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HomeMy WebLinkAbout13-6628 Supreme Co i , 'ennsylvania Cour f o nm ,',, leas For Prothonotary Use Only: Docket No: 31U(i County r err eviii t 1 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: E3 Complaint 0 Writ of Summons 0 Petition S 0 Transfer from Another Jurisdiction 0 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: Weekend Warrior Surplus, LLC and DGR Properties, LLC Shippensburg Select Diner, LLC and Sawyers Kamel T Dollar Amount Requested: d within arbitration limits I Are money damages requested? ® Yes 0 No (check one) 0 outside arbitration limits © ' N Is this a Class Action Suit? 0 Yes 111 No Is this an MDJ Appeal? 0 Yes d No A Name of Plaintiff/Appellant's Attorney: Lawrence R. Rife, IV, Esquire 0 Check here if you have no attorney(are a Self-Represented [Pro Se] Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS O Intentional 0 Buyer Plaintiff Administrative Agencies O Malicious Prosecution 0 Debt Collection:Credit Card 0 Board of Assessment O Motor Vehicle 0 Debt Collection:Other 0 Board of Elections O Nuisance 0 Dept.of Transportation Premises Liability 0 Statutory Appeal:Other r� 0 Product Liability(does not include mass tort) 0 Employment Dispute: 0 Slander/Libel/Defamation Discrimination C 0 Other: 0 Employment Dispute:Other 0 Zoning Board T 0 Other: I -- 0 Other: © MASS TORT 0 Asbestos N 0 Tobacco O Toxic Tort-DES O Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste O Other: 0 Ejectment 0 Common Law/Statutory Arbitration B 0 Eminent Domain/Condemnation 0 Declaratory Judgment O Ground Rent 0 Mandamus 0 Landlord/Tenant Dispute 0 Non-Domestic Relations O Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial 0 Quo Warranto O Dental 0 Partition 0 Replevin O Legal 0 Quiet Title 13 Other: O Medical 0 Other: Complaint O Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT OF PENNSYLVANIA Weekend Warrior Surplus, LLC and Civil Action DGR Properties, LLC, • Plaintiffs : • v. Docket No: • Shippensburg Select Diner, LLC and c `'`' Sawyers Kamel, • �t 111 Y - Defendants • Judge: NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following page, 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 claims 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania Telephone Number: 249-3166 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact the office of the Court Administrator. All arrangements must be made at least 72 hours prior to any hearing or business before the Court. You must attend the scheduled conference or hearing. SHARPE&SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263.8447 f C /97S3 04,9)9 soc?s • IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT OF PENNSYLVANIA Weekend Warrior Surplus, LLC and • Civil Action DGR Properties, LLC, • Plaintiffs • v. • Docket No: • Shippensburg Select Diner, LLC and, : Sawyers Kamel Defendants • Judge: COMPLAINT NOW COMES the Plaintiffs, Weekend Warrior Surplus, LLC and DGR Properties, LLC, by and through their attorneys, Sharpe & Sharpe, LLP, and file a complaint against Defendants, Shippensburg Select Diner, LLC and Sawyers Kamel, on the following cause of action: 1. Plaintiffs are Weekend Warrior Surplus, LLC (hereinafter "Weekend Warrior"), a Pennsylvania Limited Liability Company, and DGR Properties, LLC (hereinafter "DGR Properties"), a Pennsylvania Limited Liability Company, both with a business address located at 12 West King Street, Shippensburg, PA 17257. 2. Defendants are Shippensburg Select Diner, LLC (hereinafter "Select Diner"), a Pennsylvania Limited Liability Company, and Sawyers Kamel a sui juris adult both with a business address located at 2 West King Street, Shippensburg, Pennsylvania 17257. 3. Plaintiff, Weekend Warrior, at all times pertinent hereto is engaged in the retail sale of military surplus, antiques, and related outdoor merchandise. Plaintiff, DGR Properties, at all times pertinent hereto is engaged in the business of property rentals and is the landlord for # rental units located on the second story of Plaintiff's SHARPE&SHARPE,LLP property. ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 4. Defendant, Select Diner, at all times pertinent hereto is engaged in the business of operating a Diner-style restaurant. Defendant, Sawyers Kamel, represented himself as the owner and manager of Select Diner. 5. On or about June 13, 2013, Plaintiffs notice a putrid smell coming from the basement of their building and upon investigation, discovered an oily liquid discharge filling their basement. 6. Plaintiffs contracted licensed plumber, Tim Gruver, to investigate the cause of the discharge in their basement. The plumber concluded the discharge was coming from the area of the basement adjacent to neighbor, Select Diner, and that the discharge was grease and water from Defendants' grease trap. 7. Plaintiff, Weekend Warrior, was forced to unexpectedly close their retail operation for the week of June 17th as a result of the discharge in the basement, the damage to their inventory, and the offensive smell that permeated up into the first floor of their building. Plaintiff, DGR Properties, was forced to provide notice to its tenants and immediately take reasonable measures to mitigate the smell in order to conform to Pennsylvania's Landlord/Tenant habitability laws. 8. On or about June 18th, Plaintiffs informed Shippensburg Borough of the leak per their plumber's recommendation and they sent two representatives, Wade Farner and Rodney Clever, to investigate. The Borough representatives met with Plaintiffs, Plumber Tim Gruver, and Defendants at Select Diner and decided to put pink dye in Defendants" grease trap to see if the discharge could be traced. SHARPE 6 SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 9. Shortly after the Borough put the dye in the grease trap, Defendant Sawyers Kamel, contacted , LLC & Wingert Sanitary Services for the purpose of immediately coming to pump the excess grease and the Borough's dye out of Defendants' grease trap. 10. Upon discovering Defendants' attempt to intentionally obstruct the Borough's investigation, Shippensburg Borough Code Enforcement Officer, Bill Gardiner, ordered Defendants to contact Chamberlin & Wingert Sanitary Services, LLC to return to the location and fill the grease trap with water so the borough could again put dye in Defendants' grease trap to ascertain the cause of Plaintiffs' damage. 11. On or about July 19, 2013, Shippensburg Borough Code Enforcement Officer, Bill Gardiner, returned to Plaintiffs' property to inspect the discharge in the basement. Mr. Gardiner discovered the dye in the basement and concluded that Defendants' grease trap was not functioning properly and was the actual cause the leak that damaged Plaintiff. The Borough gave Defendants 72 hours in order to replace the grease trap. During this time, Defendants chose to continue daily operations in Select Diner rather than temporarily close to mitigate further damage to Plaintiff. 12. On or about June 22, 2013, Chamberlin & Wingert Sanitary Services, LLC installed a new grease trap for Defendants. 13. On or about June 25, 2013, Plaintiffs hired Servpro to begin cleaning the grease and water damage. During that week the discharge of water into Plaintiffs' basement began to increase noticeably. Plaintiffs purchased materials from Lowe's Home Improvement Store to catch and drain the increasing water in order to mitigate SHARPE&SxAxPE,LLP further damage. Plaintiff also rented mitigation equipment from Servpro which was ATTORNEYS AT LAW left at the premises to run twenty four hours a day. 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 14. On or about June 27th, Plaintiff contacted the Borough regarding the visible increasing water flow suspecting it was again coming from Defendants. The Borough responded by sending Water Authority and Sewer Authority representatives to investigate the matter. It was determined that Select had a water leak on their property and the Borough sent a Letter of urgency to Defendants demanding that the problem is fixed immediately and informing Defendants of their responsibility for Plaintiff's damages. A true and correct copy of the Letter is attached hereto as Exhibit "A" and hereby incorporated herein by reference. 15. On or about July 5th, Defendants had still not yet made efforts to rectify the problem. As a result, Shippensburg Borough again sent Dave Koser & Rodney Clever to dump green dye in all of Defendants' drains. A couple minutes after, the same green dye was evident being pumped out of the sump pumps located in Plaintiffs' basement, which at this time are constantly running to combat the constant flow of water coming into Plaintiffs' basement. 16. Upon discovering the green dye, Bill Gardiner gave approval to Defendants' plumber, Randy Heck, to temporarily fix the problem by running a bypass line from the drains directly into the borough sewer line in an attempt to prevent further damage to Plaintiffs. 17. On or about July 9th, Plaintiffs were informed by Code Enforcement officer, Bill Gardiner, that Defendants would finally be closed while the repair work was being done on the pipes. Subsequent to the initial discovery, they identified several more major leaks in Defendants' pipes. The subsequent work was performed by Roto Rooter, due to Chamberlin & Wingert Sanitary Services, LLC unwillingness to perform more work for Defendants due to payment disputes. SHARPE 89 SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 18. On or about, July 25th, Defendants' insurance company, Everett Cash Mutual Insurance Company, sent a letter addressed to Defendants and copying Plaintiffs, informing Defendants' that their insurance will not cover the damages incurred by Plaintiffs. This determination is contrary to assurances made by Defendant, Sawyers Kamel, to Plaintiffs' that his insurance would cover all the damages incurred by Plaintiffs. 19. On or about, September 26, Plaintiffs, through counsel, sent Defendants a demand for the damages Plaintiffs sustained as a result of Defendants' conduct. A true and correct copy of the Letter is attached hereto as Exhibit "B" and hereby incorporated herein by reference. 20. To date, Defendants have failed to speak with Plaintiffs or Plaintiffs' counsel in response to the demand letter to mutually resolve the dispute. Instead, Defendants' forwarded the information to their insurance company. 21. On or about October 7th, Defendant's insurance company, Everett Cash Mutual Insurance Company, through counsel, sent a letter to Plaintiff, copying Defendants, to again state that the damages sustained by Plaintiffs is not covered in Defendants' insurance policy and that Defendants would be liable for the damages. A true and correct copy of the Letter is attached hereto as Exhibit "C" and hereby incorporated herein by reference. 22. Defendants again failed to communicate to Plaintiffs' subsequent to the determination letter sent to both parties by Everett Cash Mutual Insurance Company. SHARPE&SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 COUNT I — DAMAGES 23. Paragraphs 1 through 22 of this Complaint are incorporated by reference herein and as though listed in their entirety. 24. As a result of Defendants failure to properly maintain their grease trap and plumbing, Plaintiffs suffered a number of economic damages and expenses for which they demand reimbursement. 25. Plaintiff, Weekend Warrior, can account for $9,752.34 in destroyed merchandise which was stored in Plaintiffs basement. 26. Plaintiffs were required to rent a storage unit to store merchandise and other personal property in order to mitigate further damage. The cost of which to rent and move the personal property totaled $4,419.00. 27. Plaintiffs were required to contract with Servpro, a mold and water damage mitigation, cleanup, and repair company in order to remove damaged portions of Plaintiffs' real property and to assist in water removal, drying, and cleaning of Plaintiffs' basement. At this time, the total bill for Servpro is $9,893.48. 28. Plaintiffs incurred other miscellaneous damages attributable to damage to their real property, inspection costs, pest control, replacement sump pumps, and out SHARPE&SHARPE,LLP ATTORNEYS AT LAW of pocket expenses to mitigate Plaintiffs' damages. These receipts total $1,523.43. 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 • 29. Plaintiffs were forced to close their business for one (1) week's time while Defendants refused to close their business while the leak was occurring. Plaintiffs estimate their loss of sales for that week based on average annual sales to be approximately $5,535.00. WHEREFORE, Plaintiffs respectfully request this Court grant judgment in favor of Plaintiff for reimbursement for Plaintiffs' damages as a result of Defendants' failure to properly maintain their grease trap and plumbing in the amount of $31,123.25. COUNT II- FRAUD 30. Paragraphs 1 through 29 of this Complaint are incorporated by reference herein and as though listed in their entirety. 31. Plaintiff believes and therefore avers that Defendant, Sawyers Kamel, knew or should have known that the Shippensburg Borough places the dye in Defendants' grease trap for the purpose of identifying the actual cause of Plaintiffs' damage. 32. Plaintiff believes and therefore avers that Defendant knowingly directed Chamberlin & Wingert Sanitary Services, LLC to pump the dye and excess grease from Defendants' grease trap immediately after the Shippensburg Borough representatives left the premises with the willful intent to conceal the suspected source of Plaintiffs' damage by hampering the Borough's investigation. SHARPE&SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 33. As a direct result of Defendant, Sawyer Kamel's, actions; Plaintiffs suffered additional damages resulting from the unnecessary delay in the Borough's investigation into the source of the leak and discharge onto Plaintiffs' property. If not for the actions of Defendant, Sawyer Kamel, the aggregate damage suffered by Plaintiffs could have been significantly mitigated. 34. Plaintiff believes and therefore avers that Defendants, Sawyers Kamel and Select Diner, knew or should have known that their insurance policy through Everett Cash Mutual Insurance Company would not cover Plaintiffs' damages. 35. Plaintiff and Defendant both received an initial determination letter as early as July 25th stating based on the facts known at the time Defendants' insurance would not cover the damage. 36. Plaintiff and Defendant again received a letter, previously referred to as Exhibit C, from Defendant's insurance through their counsel that Defendants' insurance would not cover this damage. 37. Plaintiff believes and therefore avers that Defendant, Sawyers Kamel intentionally misrepresented the coverage of his insurance policy to Plaintiffs beginning on June 19th with the intentions of delaying Plaintiffs' demand or initiation of legal action against Defendants. 38. SHARPE SHARPE,LLP Plaintiffs relied on Defendant, Sawyer Kamel's, false assertions regarding his ATTORNEYS AT LAW insurance coverage and refrained from demanding reimbursement for their costs 257Lrncon Way East incurred as a result of the discharge and leak. Chambersburg,PA 17201 (717)263-8447 39. This delay has caused Plaintiffs' to lose subsequent business opportunities due to having to bear the burden of covering the cost of Plaintiffs' damages attributable to Defendants. 40. Defendants' fraud is so egregious that Defendants' should be required to reimburse Plaintiffs for their reasonable attorney's fees and costs of this action. 41. Defendants' indifference towards the continued damage being caused to Plaintiffs businesses and property and their attempts to delay and frustrate its investigation are so outrageous that Plaintiffs should be entitled to punitive damages against Defendants. WHEREFORE, Plaintiffs respectfully requests the Court grant judgment against Defendants in the sum of $31,123.25, plus simple interest afforded under law, costs of this action, reasonable attorney's fees, and punitive damages as the Court deems fit. Q SH ' RPE : •HARPE, LLP By: ... Lawrence R. Rife, IV, Esq. Attorney for Plaintiff 257 Lincoln Way East Chambersburg, PA 17201 (717)263-8447 PA Bar ID #312976 SHARPE 6 SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 Verification I hereby verify that the facts set forth in the foregoing instrument are true and correct to the best of my knowledge, information and belief, and that I make this verification subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to Authority, as authorized by the Judicial Code and Pennsylvania Rules of Civil Procedure. Weekend Warrior Surplus, LLC Date: 11/5�j Member DGR Properties, LLC Date: ii 5 /3 Member SHARPE&SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 . , . , , Exhibit A SHIPPENSBURG BOROUGH AUTHORITY Gem Torri Secretary Chairperson Nicole Bard Keith Swartz Assistant Secretary 111 North Fayette Street Vice Chairperson P.O. Box 129 Louis Larson Shippensburg, PA 17257-0129 Michael Pimento' Water Foreman (717) 532-2147 Dennis Fleagle FAX# (717) 532-6948 Troy Pomeroy June 28, 2013 Weekend Warrior Surplus Inc. 12 West King St Shippensburg, Pa. 17257 Dear Sir/Madam: The Shippensburg Borough Authority was called to your business for water coming through the wall in your basement. The water appears to be a leak on the water service line to the property at 2 West King St. Attached is the letter that they have been sent to have the problem repaired. If you have any questions please call the Water Foreman, Louis Larson at 717-729-0305, M-F 7:30 AM to 2:30 PM. Sincerely Louis E. Larson Water Foreman Attachments: Letter of June 28, 2013 Rule and Regulations section, 13.2, 13.3, 13.15, and 13.16 The Borough is an Equal Opportunity Employer SHIPPENSBURG BOROUGH AUTHORITY &eno Torri Secretary Chairperson Nicole Bard Keith Swartz Assistant Secretary 111 North Fayette Street Vice Chairperson P.O. Box 129 Louis Larson Shippensburg, PA 17257-0129 Michael Pimental Water Foreman (717) 532-2147 Dennis Fleagle FAX# (717) 532-6948 Troy Pomeroy June 28, 2013 Route 15 Dinner Inc. Shippensburg Select 2 West King St. Shippensburg, Pa. 17257 Dear Sir/Madam: The Water Department was called to the area of 2 West King St. for a possible water leak. During our investigation we believe the leak is coming from your water service line between the water meter and the building. The water from this leak is being billed to your account. Also the water is causing damage to the adjoining property at 12 W. King St. This leak needs to be repaired immediately. The Authority can discontinue water service if this is not repaired in a timely manner of 5 days. If the leak becomes more sever the Authority can discontinue service immediately and the water service will not be restored until the leak is repaired. If you have any questions you can contact the Water Foreman at 717-729-0305, M-F 7:30 AM to 2:00 PM. Sincerely Louis Larson Water Foreman Attachments: Rules and Regulations section 13.2, 13.3. 13.15 &13.16 CC: Nicole Bard, Assistant Secretary, Borough Authority Forest Myers, Solicitor 12 W. King St. The Borough is an Equal Opportunity Employer 13.2 Authority not Responsible for Service Lines. The Authority accepts no responsibility or liability and shall be under no obligation to maintain, repair, or replace any water facility on the customer's service line, with the exception of the water meter and the corporation fitting. 13.3 Access to and Ownership of Service Lines. The service line and fixtures shall be the property of the customer. The customer or contractor is responsible for all costs associated with the installation of said service line. The customer shall be responsible for the maintenance of said service line and fixtures. The customer shall, at all times at the request of the Authority, provide access to the Authority's meters and fixtures. Failure by the customer to provide access to the meters at reasonable times shall result in the termination of service or a Court Order authorizing entry. Customer shall be responsible for all costs associated with gaining entry. 13.15 Leaks in Service Lines. All leaks in service lines shall be promptly repaired by the property owner, at his/her expense. If the property owner fails to make such repair within ten(10) days or, if conditions warrant immediate action, the Authority may repair at the owner's expense or discontinue water service. Water service will not be restored until all proper and necessary expenses incurred in discontinuing and restoring the water service are paid in full. 13.16 Maintenance of, and Damages from, Service Lines. The Authority shall in no event be responsible for maintenance of, or damages done by, water escaping from the service line or from a fixture on the service line. The customer shall make any changes, in accordance with these Rules and Regulations, required on account of change of grade, relocation of service, or otherwise, except that the Authority shall make any changes in the event of relocation of its main. The Borough is an Equal Opportunity Employer • 13.2 Authority not Responsible for Service Lines. The Authority accepts no responsibility or liability and shall be under no obligation to maintain, repair, or replace any water facility on the customer's service line, with the exception of the water meter and the corporation fitting. 13.3 Access to and Ownership of Service Lines. The service line and fixtures shall be the property of the customer. The customer or contractor is responsible for all costs associated with the installation of said service line. The customer shall be responsible for the maintenance of said service line and fixtures. The customer shall, at all times at the request of the Authority, provide access to the Authority's meters and fixtures. Failure by the customer to provide access to the meters at reasonable times shall result in the termination of service or a Court Order authorizing entry. Customer shall be responsible for all costs associated with gaining entry. 13.15 Leaks in Service Lines. All leaks in service lines shall be promptly repaired by the property owner, at his/her expense. If the property owner fails to make such repair within ten (10) days or, if conditions warrant immediate action, the Authority may repair at the owner's expense or discontinue water service. Water service will not be restored until all proper and necessary expenses incurred in discontinuing and restoring the water service are paid in full. 13.16 Maintenance of, and Damages from, Service Lines. The Authority shall in no event be responsible for maintenance of, or damages done by, water escaping from the service line or from a fixture on the service line. The customer shall make any changes, in accordance with these Rules and Regulations, required on account of change of grade, relocation of service, or otherwise, except that the Authority shall make any changes in the event of relocation of its main. The Borough is an Equal Opportunity Employer Exhibit B HARPE ARPE,LLP ATTORNEYS AT LAW J.McDowell Sharpe Lawrence R. Rife, W jack @sharpeandsharpe.com lawrence @sharpeandsharpe.com Mary Beth Shank marybeth@sharpeandsharpe.com September 26, 2013 Shippensburg Select Diner, LLC FILE cna Attn: Sawyers Kamel 2 West King Street Shippensburg, PA 17257 RE: Damages caused to Weekend Warrior Surplus, LLC and DGR Properties, LLC Dear Mr. Kamel: I am writing this letter to inform you that we at the law office of Sharpe & Sharpe, LLP represent Weekend Warrior Surplus, LLC and DGR Properties, LLC in their legal matters. According to information provided to us, your diner's grease trap and water supply line both suffered serious malfunctions whereby grease and water leaked into our clients' building located at 12 West King Street in Shippensburg. This event caused serious ongoing damage to our clients' real and personal property. As a result, our clients were forced to incur expenses in order to mitigate damage to their personal property and to hire professionals to assess and repair the damage to their real property. This event further caused our client to temporarily close their business for a period of time in June resulting in lost revenue. As of the date of this letter, the total damage incurred by our clients is estimated to be $32,000.00. We hereby demand you fully reimburse our clients for the damage caused or suit will be filed against you as well as any other relevant parties. I respectfully request that we receive a prompt reply from you regarding this matter. It is my personal opinion that it would be in everyone's best interest to swiftly establish a dialogue and resolve this matter given the costly and time consuming nature of litigation. If you fail to respond to this demand or refuse to pay for any of the resulting damage, litigation will likely to follow. Your immediate attention to this matter is appreciated Sincerely, / awrence R. 'i e, IV, Esquire 257 Lincoln Way East • Chambersburg, PA 17201 Telephone 717-263-8447 • Fax 717-263-0279 ENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY I Complete items 1,2,and 3.Also complete A. Signatu item 4 if Restricted Delivery is desired. ' ~ D Agent I Print your name and address on the reverse X pi , '. L.,Rr l�: ❑Addressee so that we can return the card to you. --ceived Printed N., =I # C. F- e of Delivery I Attach this card to the back of the mailpiece, l! or on the front if space permits. L3� ` D. Is delivery address different from item ? 0 Yes • Article Addressed to: If YES,enter delivery address belo 0 No Shippensburg Select Diner, LLC Attn: Sawyer Kamel 2 West King Street Shippensburg, PA 17257 3. Segjce Type Certified Mail Oppress Mail 0 Registered Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery?(Extra Fee) 0 Yes Article Number 7 013 0600 0 0 01 1582 4 017 (Transfer from service label) S Form 3811,February 2004 Domestic Return Receipt 102595-02-nn-1 U.S. Postal Service' , CERTIFIED MAILTt., RECEIPT (Domestic Mail Only;No Insurance Coverage Pmvlded) For delivery information visit our website at ccm, ,/ ru ( ' co Postage $ y is) W Certified Fee 3 - !t nip (J Return Receipt Fee �Q v Postmark�� O (Endorsement Required) `� ', 5V" Here 0 p Flestricted Delivery Fee p400 (Endorsement Required) O // Total Postage&Fees $ (.0• I m S titlokji b _ Select � fir Lie r-1 Street,Apt No.; C l or PO Box No. ,? west. / " S -f, e- r` City,sr�re, IP+4 _ r'!A TI 42 57 PS Form 3800,August 2006 See Reverse for Instructions Exhibit C MARGOLIS EDELSTEIN Stephen L.Dugas,Esquire ATTORNEYS AT LAW Central Pennsylvania Office www.margolisedelstein.com sdugasgmaraolisedelstein.com CENTRAL PENNSYLVANIA OFFICE: P.O. Box 628 October 7, 2013 HOLLIDAYSBURG, PA 16648 814-695-5064 Fax 814-695-5066 Lawrence R. Rife, IV, Esquire PHILADELPHIA OFFICE:* Sharpe and Sharpe, LLP THE CURTIS CENTER 257 Lincoln Way East 170 S. INDEPENDENCE MALL W. SUITE 400E Cham g bersbuT , PA 17201 PHILADELPHIA, PA 19106-3337 215-922-1100 HARRISBURG OFFICE:* Re: Claimant: Weekend Warrior Surplus,LLC 3510 TRINDLE ROAD CAMP HILL, PA 17011 Insured: Shippensburg Select Diner, LLC 717-975-8114 Insurer: Everett Cash Mutual Insurance Company PITTSBURGH OFFICE: Policy No.: BOP12733 525 WILLIAM PENN PLACE D/L: 06/12/2013 SUITE 3300 Claim No: 0011300949 PITTSBURGH, PA 15219 412-281-4256 Our File No: 39500.7-00137 WESTERN PENNSYLVANIA OFFICE: 983 THIRD STREET Dear Mr. Rife: BEAVER,PA 15009 724-774-6000 I have been asked to review and respond to your letter to the above- SCRANTON OFFICE: named Insured dated September 26, 2013 on behalf of the Insurer, Everett 220 PENN AVENUE Cash Mutual Insurance Company. At this point, based on the Insurer's prior SUITE 305 p p SCRANTON, PA 18503 investigation, it would appear that there is no liability coverage under the 570-342-4231 identified Policy for your client's losses and damages. SOUTH NEW JERSEY OFFICE:* 100 CENTURY PARKWAY The loss was first brought to the attention of the Insurer on June 18, SUITE 200 MOUNT LAUREL, NJ 08054 2013. According to the Property Loss Notice, Denise Russell, proprietor of 856-727-6000 Weekend Warrior,"a business operating out of the premises located at 12 West NORTH NEW JERSEY OFFICE: King Street, Shippensburg, PA 17257, discovered oily water coming into her CONNELL CORPORATE CENTER basement on 06/12/2013. An adjuster then conducted an on-site investigation. 400 CONNELL DRIVE SUITE 5400 By that time, it appeared that temporary repairs had been made, whereby a BERKELEY HEIGHTS, NJ 07922 temporary bypass pipe had been spliced into the sewer line running beneath the 908-790-1401 sidewalk adjacent to the insured premises and that of your client. The adjuster DELAWARE OFFICE: was informed by the Shippensburg Borough Code Enforcement Officer, who 750 SHIPYARD DRIVE SUI TE 102 was responsible for the installation of the temporary repairs,that the grease trap WILMINGTON, DE 19801 on the Insured's sewer line was clogged,as a result of which sewage backed up 302-888-1112 into the basement of the structure housing Weekend Warrior. This appears consistent with your description of the cause of the loss,namely,the"...grease *MEMBER OF THE HARMONIE GROUP trap and water supply lines both suffered serious malfunctions whereby grease • Lawrence R. Rife, IV, Esquire Sharpe and Sharpe, LLP October 7, 2013 Page 2 and water leaked into..."your client's building. The Everett Cash Mutual Insurance Company provided insurance under the subject policy to Shippensburg Select Diner, LLC, including Commercial Liability Coverages, as follows: COVERAGE L - BODILY INJURY LIABILITY/PROPERTY DAMAGE LIABILITY "We"pay all sums which an"insured"becomes legally obligated to pay as "damages"due to"bodily injury"or"property damage" to which this insurance applies. The"bodily injury"or"property damage"must be caused by an"occurrence"which takes place in the"coverage territory," and the"bodily injury"or"property damage"must occur during the policy period. The Policy also contains the following applicable: EXCLUSIONS "We" do not pay for a loss if one or more of the following excluded events applies to the loss, regardless of other causes or events that contribute to or aggravate the loss, whether such causes or events act to produce the loss before, at the same time as, or after the excluded event. EXCLUSIONS THAT APPLY TO BODILY INJURY, PROPERTY DAMAGE, PERSONAL INJURY AND/OR ADVERTISING INJURY 10. "We" do not pay for: a. "Bodily injury" or"property damage"arising out of the actual, alleged, or threatened discharge, dispersal, seepage, migration,release, or escape of pollutants: 1) At or from any premises, site, or location which is, or was at any time, owned by, occupied by,rented to, or loaned to any "insured", unless the "bodily injury" or "property damage"arises from the heat, Lawrence R. Rife, IV, Esquire Sharpe and Sharpe, LLP October 7, 2013 Page 3 smoke, or fumes of a fire which becomes uncontrollable or breaks out from where it was intended to be located; 2) At or from any premises, site, or location which is or was at any time used by or for any"insured" or others, for the handling, storage, disposal, processing, or treatment of waste; 3) Which are or were at any time transported,handled, stored,treated,disposed of, or processed as waste by or for any"insured"or any person or organization for whom any"insured"may be illegally responsible; or b. Any loss, cost, or expense arising out of any: 1) Request,demand,or order that any"insured" or others test for, monitor, clean up,remove, contain,treat, detoxify, neutralize, or in any way respond to or assess the effects of pollutants; or 2) Claim or suit by or on behalf of any governmental authority relating to testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralizing, or in any way responding to or assessing the effects of pollutants. Pollutants means: a) Any solid, liquid, gaseous,thermal, or radioactive irritant or contaminant, including acids, alkalies, chemicals, fumes, smoke, soot, vapor and waste. Waste includes materials to be disposed of as well as recycled,reclaimed, or reconditioned. As a result of the policy terms and exclusions quoted above, it is the opinion of the Everett Cash Mutual Insurance Company that there is no coverage afforded for the losses and damages claimed. Consequently,the Everett Cash Mutual Insurance Company has no choice but to deny the claim you have tendered on behalf of your client. Lawrence R. Rife, IV, Esquire Sharpe and Sharpe, LLP October 7, 2013 Page 4 Of course, if you believe the facts are other than those that have been brought to our attention, or believe that the interpretation of the policy is other than that which we have set forth, please feel free to continue to correspond with . Otherwise, I will assume you are in agreement with our interpretation and will advise the surer accordingly. Thank you. ery truly yours, S en L. Dugan, Esquire SLD/vmd cc: Shippensburg Select Diner, LLC Everett Cash Mutual Insurance Company(by email) SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff pR`l 1 HONi3 I/-.,_ �e��t�,ci Cuiribett ry Jody S Smith Chief Deputy 2013 NOV 27 M4 : 35 Richard W Stewart CUMBERLAND COUN j' Solicitor PENNSYLVANIA Weekend Warrior Surplus, LLC (et al.) vs. Case Number Shippensburg Select Diner(et al.) 2013-6628 SHERIFF'S RETURN OF SERVICE 11/20/2013 11:40 AM - Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Sammy Bebawy, Part Owner, who accepted as"Adult Person in Charge"for Shippensburg Select Diner at 2 - t King Street, Shippensburg Borough, Shippensburg, PA 17257. ,f74',". CLINE, DEPUTY 11/20/2013 11:40 AM - Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Sammy Bebawy, Part Owner, who accepted as"Adult Person in Charge"for Sawyers Kamel at 2 West King Stre t, Shippensburg Borough, Shippensburg, PA 17257. CLI E, DEPUTY SHERIFF COST: $75.60 SO ANSWERS, November 21, 2013 RONNR ANDERSON, SHERIFF ,:7un;y3ui.0 She^B,?ee.oso`t L.,,- OR1GUIAL BENNETT,BRICKLIN & SALTZBURG LLC Attorney for Defendants BY: Michael W. Wagman Shippensburg Select Diner, LLC Attorney I.D. No.: 28690 and Sawyers Kamel 222 East Orange Street Lancaster, PA 17602 (717) 393-4400 WEEKEND WARRIOR SURPLUS, LLC and • COURT OF COMMON PLEAS DGR PROPERTIES, LLC • OF CUMBERLAND COUNTY, PENNSYLVANIA v. • • SHIPPENSBURG SELECT DINER, LLC and • CIVIL ACTION- LAW SAWYERS KAMEL • DOCKET NO.: CI-13-6628 ENTRY OF APPEARANCE Kindly enter the appearance of this firm on behalf of Defendants Shippensburg Select Diner, LLC and Sayers Kamel in the above-captioned matter. All documents filed in the matter hereafter may be served upon me at the address noted above. BENNETT, BRICKLIN & SALTZBURG LLC BY: ��L ie //( hael W. Wagman, Atto ►eys for Defendants ippensburg Select Dine LLC and Sawyers Kamel Date: ✓otAA mCD c ri �. cc) to r- -- c • BENNETT, BRICKLIN & SALTZBURG LLC Attorney for Defendants BY: Michael W. Wagman Shippensburg Select Diner, LLC Attorney I.D. No.: 28690 and Sawyers Kamel 222 East Orange Street Lancaster, PA 17602 (717) 393-4400 WEEKEND WARRIOR SURPLUS, LLC and • COURT OF COMMON PLEAS DGR PROPERTIES, LLC • OF CUMBERLAND COUNTY, • PENNSYLVANIA v. • SHIPPENSBURG SELECT DINER, LLC and CIVIL ACTION - LAW SAWYERS KAMEL • DOCKET NO.: CI-13-6628 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of my Entry of Appearance on the person listed below by first class mail, postage prepaid: Lawrence R. Rife, IV, Esquire SHARPE & SHARPE, LLP 257 Lincoln Way East Chambersburg, PA 17201 (Attorneys for Plaintiffs) BENNETT, BRICKLIN& SALTZBURG LLC BY: ;ate/ea/7/ hael W. man, Atto -ys for Defendants ippensburg Select Dine LC and Sawyers Kamel Date: iu4 / BENNETT,BRICKLIN & SALTZBURG LLC Attorney for Defendants BY: Michael W. Wagman Shippensburg Select Diner, LLC Attorney I.D. No.: 28690 and Sawyers Kamel 222 East Orange Street Lancaster, PA 17602 '1363 ca rri (717) 393-4400 =.7.3 ;.:; Nt ca -4 WEEKEND WARRIOR SURPLUS, LLC and • COURT OF COMMON W.8.ASM z c DGR PROPERTIES, LLC • OF CUMBERLAND CO Y,`P. • PENNSYLVANIA V. • SHIPPENSBURG SELECT DINER, LLC and • CIVIL ACTION - LAW SAWYERS KAMEL • DOCKET NO.: CI-13-6628 DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW COME DEFENDANTS, BY AND THROUGH THEIR ATTORNEYS, BENNETT,BRICKLIN&SALTZBURG LLC PRELIMINARILY OBJECTING TO PLAINTIFFS' COMPLAINT PURSUANT TO PA.R.C.P. NO. 1028 AND STATING IN SUPPORT THEREOF THE FOLLOWING: 1. This is an action for alleged property damages which was commenced by the filing of a Complaint on November 8, 2013. 2. The claims arise from a grease trap waste disposal problem and plumbing leaks that occurred in the basement of Defendants' property which allegedly caused damage to Plaintiffs' adjoining property and personal property of Plaintiffs stored there. Complaint, ¶¶5-16. 3. The problem is alleged to have started on or about June 13, 2012. Complaint, If 5. 4. Apparently on or about that same date, Plaintiffs confirmed that the source of the problem in their basement was grease and water from the grease trap in Defendants' basement. 1 Complaint¶ 6. 5. Rather than so inform Defendants,however, Plaintiffs apparently waited until June 17 when they were,"[fjorced to unexpectedly close their retail operation for the week. . . as a result of the discharge in the basement . . . ." Complaint,¶7. 6. On June 18,Plaintiffs,representatives of Shippensburg Borough and Defendants met at Defendants' diner and put dye in the grease trap to see if the discharge could be traced. Complaint, If 8. 7. Defendant then began to pump the excess grease and water from the grease trap. Complaint, ¶ 9. 8. Believing Defendants were attempting to obstruct the Borough's investigation, the Borough immediately had Defendants pump water back into the grease trap. Complaint, If 10. 9. The following day,June 19(July 19,2013 in the Complaint),the Borough concluded that the original assessment was correct and that the discharge in Plaintiffs' basement was coming from Defendants' grease trap. Complaint,¶ 11. 10. On June 22, Defendants had the grease trap replaced. Complaint, If 12. 11. Subsequently, additional water leaks apparently were discovered in Defendants' basement and were repaired on or about July 9, 2013. Complaint, ¶¶ 14 - 17. 12. The Complaint in this action contains two Counts. Count I is for "damages"to be awarded under some unspecified theory of liability. 13. Count II is for "fraud" and is based on Defendants having attempted to correct the situation by initially pumping the water and excess grease from their grease trap, and the "fraudulent"representation that Defendants had insurance that would cover Plaintiffs' damages. 2 PRELIMINARY OBJECTION TO COUNT I FOR A MORE SPECIFIC PLEADING UNDER PA.R.C.P. NO. 1028(a)(3) 14. Paragraphs 1 - 13 hereof are incorporated in this paragraph by reference as though set forth herein at length. 15. If Count I is intended to sound in negligence, then it wholly fails to specify the negligent conduct that occurred. 16. The catch-all phrase "failed to properly maintain" is insufficient to put Defendants on notice of what they did or failed to do that was negligent and caused the leaking problem. 17. Defendants are therefore unable to prepare a proper defense to Count I of the Complaint and the Court should order Plaintiffs to file a more specific pleading. PRELIMINARY OBJECTION TO COUNT II IN THE NATURE OF A DEMURRER UNDER PA.R.C.P. NO. 1028(a)(4) OR IN THE ALTERNATIVE MOTION TO STRIKE PARAGRAPHS 40 AND 41 OF THE COMPLAINT 18. Paragraphs 1 - 17 hereof are incorporated in this paragraph by reference as though set forth herein at length. 19. Plaintiffs' Complaint fails to state the elements of an action for common law fraud because it fails to allege any facts demonstrating causation between any reasonable reliance by Plaintiffs on conduct or statements of Defendants and the damages allegedly sustained. 20. A common law action in fraud affords no grounds for an award of attorney's fees under Pennsylvania law. 21. Accordingly, even if Count II would state a claim for fraud, Paragraph 40 of the Complaint fails to state a valid claim and should be stricken. 22. Similarly, the mere pleading of the term "fraud" does not justify the imposition of 3 punitive damages. 23. The Complaint fails to allege facts that are wanton and reckless and thus does not justify a claim for punitive damages under Pennsylvania law. 24. Accordingly, even if Count II would state a claim for fraud, Paragraph 41 of the Complaint fails to state a valid claim for punitive damages and should be stricken. WHEREFORE, Defendants respectfully request that this Honorable Court enter an Order granting their Preliminary Objections,ordering a more specific statement with respect to Count I and dismissing Count II, or the specified paragraphs thereof, as hereinabove set forth. BENNETT, BRICKLIN & SALTZBURG LLC BY: / iii 7 / //i/� Mi, ael W. W.gman, Attorneys .r Defendants S. ippensburg Select Diner,LL and Sawyers Kamel Date: /040 4 BENNETT, BRICKLIN & SALTZBURG LLC Attorney for Defendants BY: Michael W. Wagman Shippensburg Select Diner, LLC Attorney I.D. No.: 28690 and Sawyers Kamel 222 East Orange Street Lancaster, PA 17602 (717) 393-4400 WEEKEND WARRIOR SURPLUS, LLC and • COURT OF COMMON PLEAS DGR PROPERTIES, LLC • OF CUMBERLAND COUNTY, PENNSYLVANIA v. SHIPPENSBURG SELECT DINER, LLC and • CIVIL ACTION - LAW SAWYERS KAMEL • DOCKET NO.: CI-13-6628 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of Defendants' Preliminary Objections to Plaintiffs' Complaint on the person listed below by first class mail,postage prepaid: Lawrence R. Rife, IV, Esquire SHARPE & SHARPE, LLP 257 Lincoln Way East Chambersburg, PA 17201 (Attorneys for Plaintiffs) BENNETT, BRICKLIN & SALTZBURG LLC BY: L,.■ 't //. Mir ael W. Wa_man, Attorneys 'or Defendants S►ippensburg Select Diner,LL r and Sawyers Kamel Date: 4-/M//3 IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT OF PENNSYLVANIA Weekend Warrior Surplus, LLC and • Civil Action DGR Properties, LLC, • Plaintiffs • -r, f?3 • rico V. • Docket No: CI-13-661:r- • Shippensburg Select Diner, LLC and • Sawyers Kamel, • =c) ra � ` Defendants : Judge: PRAECIPE TO DISCONTINUE To the Prothonotary: Please enter Plaintiffs', Weekend Warrior Surplus, LLC and DGR Properties, LLC, voluntary termination of this action as to all Defendants pursuant to Pa. R.C.P. 229. 1 Date: January 6, 2014 By • ^� Lawrence R. Rife, IV, Esq. 257 Lincoln Way East Chambersburg, PA 17201 (717)263-8447 Attorney for Plaintiffs SHARPE&SHARPE,LLP ATTORNEYS AT LASS 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447 CERTIFICATE OF SERVICE I hereby certify that this 6th day of January, 2014, I have served a copy of the foregoing instrument upon the following person(s) by forwarding the same by hand delivery, addressed as follows: Michael W. Wagman, Esq. C/O Bennett, Bricklin & Saltzburg, LLC 222 E. Orange St. Lancaster, PA 17602-2915 /jA 7 Lawrence 'I. Life, IV, Esq. 257 Lincoln Way East Chambersburg, PA 17201 (717)263-8447 Attorney for Plaintiffs SHARPE&SHARPE,LLP ATTORNEYS AT LAW 257 Lincoln Way East Chambersburg,PA 17201 (717)263-8447