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Home My WebLink About14-0536 Supreme Court- ofrPennsylvania Court :of CommonPleas For Prothonotary Use Only: Civil C er.Shi et a� , t� Docket No: j t,F 'S.I 1 C rmberlan'd' County IAI .... ��'� The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: S E Complaint ❑ Writ of Summons ❑ Petition E Transfer from Another Jurisdiction ❑ Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T Westfield Insurance Company Joey G. Harris, Jr. I Are money damages requested? Q Yes El No Dollar Amount Requested: ❑within arbitration limits (check one) Qoutside arbitration limits O N Is this a Class Action Suit? ❑ Yes El No Is this an MDJAppeal? ❑ Yes l No A Name of Plaintiff /Appellant's Attorney: Paul F. D'Emilio, Esquire ❑ Check here if you have no attorney (are a Self- Represented Pro Sel 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 (d0 1701 include Judgments) CIVIL APPEALS Intentional ❑ Buyer Plaintiff Administrative Agencies Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections Nuisance ❑ Dept. of Transportation ❑ Premises Liability ❑ Statutory Appeal: Other S ❑ Product .Liability (does not include Employment :Dispute: E mass tort). El Slander/Libel/ Defamation Discrimination C ❑ Other: ❑ Employment Dispute: Other ❑ Zoning Board T ❑ Other: I ❑ Other: O MASS TORT ❑ Asbestos N ❑ Tobacco Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Other: 1:1 Ejectment El Common Law /Statutory Arbitration B ❑ Eminent Domain /Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord /Tenant Dispute ❑ Non - Domestic Relations ❑ Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partition ❑ Replevin ❑ Legal ❑ Quiet Title ❑ Other: ❑ Medical ❑ Other: ❑ Other Professional: Updated 1/1/2011 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 ATTORNEY FOR PLAINTIFF (610) 338 -0338 WESTFIELD INSURANCE COMPANY COMMON PLEAS COURT OF AS SUBROGEE OF ALYSSA HARRIS CUMBERLAND COUNTY 1 PARK CIRCLE WESTFIELD CENTER, OH 44251 / L7j NO. /'� — .53; VS. JOEY G. HARRIS, JR. 209 INSTITUTION DRIVE HOUTZDALE, PA 16698 CIVIL COMPLAINT NOTICE AVISO YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND LE HAN DEMANDADO A LISTED EN LA CORTE. SI LISTED AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER LAS PAGINAS SIGUIENTES, USTED TIENE (20) DIAS DE PLAZO THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A A PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND LISTED DEBE PRESENTAR UNA APARIENCIA ESCRITA 0 EN FILING IN WRITING WITH THE COURT YOUR DEFENSES OR PERSONA 0 POR ABOGADO Y ARCHIVAR EN LA CORTE SUS OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU DEFENSAS O SUS OBJECIONES A LAS DEMANDAS ENCONTRA ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE UNA ORDEN CONTRA LISTED SIN PREVIO AVISO 0 FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY NOTIFICACION 0 POR CUALQIER QUEJA O ALIVIO QUE OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. ESPEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS PERDER DINERO, SUS PROPIEDADES O OTROS DERECHOS IMPORTANT TO YOU. IMPORTANTES PARA LISTED. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI IF YOU DO NOT HAVE A LAWYER„ GO TO OR TELEPHONE THE NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR WITH INFORMATION ABOUT HIRING A LAWYER. TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE LISTED PUEDE IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE CONSEGUIR ASISTENCIA LEGAL. MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS ATA REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Cumberland County Bar Association Carlisle, PA 17013 32 S. Bedford Street (717) 249 -3166 Carlisle, PA 17013 (800) 990 -9108 (717) 249 -3166 (800) 990 -9108 >- C=J C\j � QZ . r _ L� ) > --j ca KtE 36 Z7 caw C) PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 ATTORNEY FOR PLAINTIFF (610) 338 -0338 WESTFIELD INSURANCE COMPANY COMMON PLEAS COURT OF AS SUBROGEE OF ALYSSA HARRIS CUMBERLAND COUNTY 1 PARK CIRCLE WESTFIELD CENTER, OH 44251 NO. VS. JOEY G. HARRIS, JR. 209 INSTITUTION DRIVE HOUTZDALE, PA 16698 CIVIL COMPLAINT NOTICE UNDER THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.U. §1601 (AS AMENDED) THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT AND CONSUMER PROTECTION LAW, 73 PA.CON.STAT.ANN. §201, ET. SEQ. ( "THE ACTS ") IN AS MUCH AS THE ACTS MAY APPLY, PLEASE BE ADVISED THAT THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. The Plaintiff, Westfield Insurance Company, by its attorney Paul F. D'Emilio, Esquire, bring this action upon a cause whereof the following is a statement: 1. The Plaintiff, Westfield Insurance Company ( "Plaintiff') is a Corporation authorized to do business in the Commonwealth of Pennsylvania, having an office at 1 Park Circle, Westfield Center, OH 44251. Plaintiff brings this action as subrogee of Alyssa Harris herein the ( "Insured ") under a policy of insurance issued by Plaintiff. 2. Defendant, Joey G. Harris, Jr. is an individual residing at SCI Houtzdale, 209 Institution Drive, Houtzdale, PA 16698. 3. On or about March 12, 2012 the Defendant intently started a fire at Plaintiff's Insured's residences located at 4510 Carlisle Road, Gardners, Pennsylvania causing damages hereinafter set forth. 4. Plaintiff avers that the personal Property of the Insured was damaged as a result of the occurrence hereinbefore mentioned, the reasonable costs of repairs thereto being is One Hundred Eight Thousand Twenty Six 57/100 ($108,026.57) Dollars plus the Insured's deductible of Five Hundred and 00/100 ($500.00) Dollars plus the cost of contents damage thereto being is Two Thousand Fifty Two and 05/100 ($2,052.05) Dollars for a total of One Hundred Ten Thousand Five Hundred Seventy Eight and 62/100 ($110,578.62) Dollars. 5. The said occurrence was do to the negligence of the Defendant, Joey G. Harris, Jr. in that he: a. damaged the Insured's property by causing an fire; b. damaged the Insured's property for a unlawful purpose; C. negligently endanger the Insured's property; d. acted intentionally, consciously, deliberately and with malice toward Plaintiffs insured; and e. did violate the various statutes and laws of the County of Cumberland, and the Commonwealth of Pennsylvania Section 18 § 3301 pertaining to Arson. WHEREFORE, Plaintiff demands judgment against the Defendant upon each count in an amount in excess of Fifty Thousand and 00/100 ($50,000.00) dollars together with costs of suit. Date Pau D'Emilio, Esquire Ide ification No. 16654 E -mail address: pauld -demiliolaw.com Paul M. Schofield, Jr., Esquire Identification No. 81894 E -mail address: pauls6a.demiliolawcom 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610 - 338 -0338 Fax no.: 610 - 338 -0303 VERIFICATION Marie Bayer, Claims Recovery Specialist with Westfield Insurance Company in the above captioned matter verifies that the facts contained in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 pa. C.S. Section 4904 relating to unsworn falsification to authorities. I Date: Marie Bayer Claims Recovery Specialist PAUL F. D'EMILIO, ESQUIRE ATTORNEY 1.D. #16654 PAUL M. SCHOFIELD, JR., ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 WESTFIELD INSURANCE COMPANY AS SUBROGEE OF ALYSSA HARRIS 1 PARK CIRCLE WESTFIELD CENTER, OH 44251 VS. JOEY G. HARRIS, JR. 209 INSTITUTION DRIVE HOUTZDALE, PA 16698 ATTORNEY FOR PLAINTIFF COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 14-536 CIVIL COMPLAINT c) c:) rn m PRAECIPE TO REINSTATE THE COMPLAINT TO THE PROTHONOTARY, C.P.: Kindly reinstate the Complaint in the above-captioned EMILIO, ESQUIRE R EY FOR PLAINTIFF (A) cD r n 0.115 PO ATV a-643.4333 3c(pt.a Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY t -Ci i HE r ROTHONO T .a avow 61ctfatt� 2'0111 JUL - I AN n: 5 CUMBERLAND COUNTY ICE OFTHE SHERIFI PENNSYLVANIA Westfield Insurance Company as subrogee of alyssa Harris vs. Joey G Harris Case Number 2014-536 SHERIFF'S RETURN OF SERVICE 06/02/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Joey G Harris, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Adams, Pennsylvania to serve the within Complaint & Notice according to law. 06/09/2014 04:05 PM - The requested Complaint & Notice served by the Sheriff of Adams County upon Joey G Harris, personally, at 611 Funt Road, Aspers, PA 17304. James Mullen, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $37.00 SO ANSWERS, June 25, 2014 RONO R ANDERSON, SHERIFF (c) CountySu;o Sheriff, Teleosott, Inc. James W. Muller Sheriff SHERIFF'S OFFICE OF ADAMS COUNTY Bernard A. Yannetti, Jr. Solicitor Len J. Supenski ;y Chief Deputy Kevin E. Miller Lieutenant WESTFIELD INSURANCE COMPANY vs. JOEY GENE HARRIS, JR Case Number 14-536 SHERIFF'S RETURN OF SERVICE 06/09/2014 04:05 PM - Deputy Angel L. Garcia, being duly sworn according to law, deposes and says, the Complaint & Notice was served upon JOEY GENE HARRIS, JR at 611 FUNT ROAD, ASPERS, PA 17304 by handing a true and attested copy to the Defendant and made known the contents thereof. SHERIFF COST: $30.32 June 23, 2014 ANG 1041 L L. GARCIA, DEP TY SO ANSWERS, W, JAMES W. MULLER, SHERIFF COSTS DATE CATEGORY MEMO CHK # DEBIT CREDIT 06/06/2014 Advance Fee Advance Fee 24335 $0.00 $150.00 06/06/2014 Docket & Return • $9.00 $0.00 06/06/2014 Service $9.00 $0.00 06/23/2014 Mileage $12.32 $0.00 06/23/2014 Refund 2638 $119.68 $0.00 NOTARY Affirmed and subscribed to before me this 23RD day of JUNE 2014 rc} Cou.^.rySuire Sheriff Teleosoft, in BALANCE: $150.00 $150.00 $0.00 2LhM �oe�on �e 5010 Ritter Road Suite 109 Mechanicsburg, PA 17055 PHONE: 717.766.4008 FAX: 717.766.4066 THE PROTHONOTAr1/4 2014 JUL 15 AM ID: j CUMBERLAND COUNTY PENNSYLVANIA JOHN M. KERR, ESQUIRE ATTORNEY I.D.# 26414 JOHN KERR LAW, P.C. 5010 RITTER ROAD SUITE 109 MECHANICSBURG, PA 17055 (717) 766-4008 (717) 766-4066 (FAX) iohn@johnkerrlawpc.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WESTFIELD INSURANCE COMPANY, AS SUBROGEE OF ALYSSA HARRIS 1 PARK CIRCLE WESTFIELD CENTER, OH 44251, Plaintiff v. JOEY G. HARRIS, JR. 209 INSTITUTION DRIVE HOUTZDALE, PA 16698, Defendant : NO. 14-536 CIVIL TERM DEFENDANT'S PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW, comes Joey G. Harris, Jr., Defendant above -captioned, by his counsel, John M. Kerr, Esquire and John Kerr Law, P.C., pursuant to Rule 1028(a)(4) & (6) of the Pennsylvania Rules of Civil Procedure, and files the within Preliminary Objections, the nature of which are as follows: 111 Lew Office of ohn M. 501 0 Miler Road Suite 109 Mechanicsburg, PA 17055 PHONE- 717.766.4008 FAX 717.766.4066 BACKGROUND 1 Plaintiff is Westfield Insurance Company (hereinafter, "Westfield"), an Ohio insurance corporation authorized to do business in the Commonwealth of Pennsylvania. 2. Defendant is Joey G. Harris, Jr .(hereinafter, "Harris"), an adult individual residing at 611 Funt Road, Aspers, Pennsylvania 17304. Westfield incorrectly identified Harris as residing at SCI-Houtzdale, 209 Institution Drive, Houtzdale, PA 16698. 3. Plaintiff insurance company alleges that on or about March 12, 2012, Harris intentionally [sic] "intently" started a fire at insured's "residences" located at 4510 Carlisle Road, Gardiners, Pennsylvania (Complaint, para. 3). 4. Plaintiff insurance company alleges that damages as a result of said fire amounted to $110,578.62 (Complaint, para. 4). 5. Plaintiff insurance company alleges that "said occurrence was do [sic), due to the negligence of the Defendant, Joey G. Harris, Jr." (Complaint, para. 5). I. PRELIMINARY OBJECTION - DEMURRER 6. The averments contained at paragraphs 1-5 above are incorporated by reference, as if fully set forth in their entirety. 7. The allegations of the Complaint fail to state a cause of action on which relief may be granted, in that the underlying criminal proceeding, docketed at CP -21 -CR -0000841-2012, already contain "insurance company Law Ofllw of ohn 5010 Rifler Road Suite 109 MeChanicsburg, PA 17055 Puos 717.766.4008 FAX 717.766.4066 restitution" (see, Criminal Docket Sheets, appended to these Preliminary Objections). 8. The Criminal Docket Restitution Order provides the sole remedy for Westfield under the facts of this case. WHEREFORE, it is requested that the Court grant said Preliminary Objection and dismiss the Complaint. II. PRELIMINARY OBJECTION - PENDENCY OF PRIOR ACTION 9. Defendant Harris incorporates by reference, as if fully set forth in its entirety, paragraphs 7-8 of the Preliminary Objections. 10. The criminal docket identified above represents a prior action in which the insurance company restitution was the subject of the action. WHEREFORE, it is requested that the Court grant said Preliminary Objection and dismiss the Complaint. Dated: July 15, 2014 Respectfully submitted, gt, Joltn M. Kerr, Esquire Attorney I.D.# 26414 John Kerr Law, P.C. 5010 Ritter Road Suite 109 Mechanicsburg, PA 17055 (717) 766-4008 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ;LP Last Last Payment Date 09/17/2013 Harris, Joey G. Jr. Defendant Costs/Fees Crime Lab User Fee - State Police Sheriff Costs (Cumberland) State Court Costs (Act 204 of 1976) Commonwealth Cost- HB627 (Act 167 of 1992) County Court Cost (Act 204 of 1976) Crime Victims Compensation (Act 96 of 1984) Domestic Violence Compensation(Act 44 of 1988) Victim Witness Service (Act 111 of 1998) Firearm Education and Training Fund (158 of 1994) District Attorney (Cumberland) Plea Fee (Cumberland) Administrative Fee (Cumberland) Sheriff Costs (Cumberland) Automation Fee (Cumberland) Non DUI Central Processing Cost (Cumberland) DNA Detection Fund (Act 185-2004) Costs of Prosecution - CJEA Judicial Computer Project ATJ CJES JCPS Judgment/Satisfaction Fee (Cumberland) Costs of Transportation (Act 143-2006) Fines Crimes Code, etc. Crimes Code, etc. Docket Number: CP -21 -CR -0000841-2012 CRIMINAL DOCKET Court Case Commonwealth of Pennsylvania v. Joey G. Harris Jr. yS FINANCIAL 14:" 0V.16 Page 8 of 9 Total of Last Payment -$20.00 Assessment Payments Adiustments Non Monetary Payments Total $344.00 $0.00 $0.00 $0.00 $344.00 $50.70 $0.00 $0.00 $0.00 $50.70 $12.80 $0.00 $0.00 $0.00 $12.80 $19.20 $0.00 $0.00 $0.00 $19.20 $28.00 $0.00 $0.00 $0.00 $28.00 $35.00 -$35.00 $0.00 $0.00 $0.00 $10.00 $0.00 $0.00 $0.00 $10.00 $25.00 -$25.00 $0.00 $0.00 $0.00 $5.00 $0.00 $0.00 $0.00 $5.00 $19.00 $0.00 $0.00 $0.00 $19.00 $175.00 $0.00 $0.00 $0.00 $175.00 $45.00 $0.00 $0.00 $0.00 $45.00 $1.50 $0.00 $0.00 $0.00 $1.50 $5.00 $0.00 $0.00 $0.00 $5.00 $200.00 $0.00 $0.00 $0.00 $200.00 $250.00 $0.00 $0.00 $0.00 $250.00 $50.00 $0.00 $0.00 $0.00 $50.00 $8.00 -$8.00 $0.00 $0.00 $0.00 $3.00 -$2.00 $0.00 $0.00 $1.00 $2.25 $0.00 $0.00 $0.00 $2.25 $10.25 $0.00 $0.00 $0.00 $10.25 $36.75 $0.00 $0.00 $0.00 $36.75 $40.00 $0.00 $0.00 $0.00 $40.00 Costs/Fees Totals: $1,375.45 Fines Totals -$70.00 $0.00 $0.00 $1,305.45 $100.00 $0.00 $0.00 $0.00 $100.00 $100.00 $0.00 $0.00 $0.00 $100.00 $200.00 $0.00 $0.00 $0.00 $200.00 CPCMS 9082 Printed: 09/17/2013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liabilityfor inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a Criminal history background check which can only be provided by the Pennsylvania State Police Moreover an employer who does not comply with theprovisions of the Criminal History Record Information Act may be subject to civil liability as set forth inl8 Pa.C.S. Section 9183. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Harris, Joey G. Jr. Defendant Restitution Insurance Company Restitution Docket Number: CP -21 -CR -0000841-2012 CRIMINAL DOCKET Court Case Commonwealth of Pennsylvania v. Joey G. Harris Jr. Assessment Payments $110,078.62 Restitution Totals: $110,078.62 Grand Totals: $111,654.07 " - Indicates assessment is subrogated t M Adjustments Non Monetary Payments Page 9 of 9 Total -$10.00 $0.00 $0.00 $110,068.62 -$10.00 $0.00 $0.00 $110,068.62 -$80.00 $0.00 $0.00 $111,574.07 CPCMS 9082 Printed: 09/17/2013 Recent entries made in the court filing offices may not be immediately reflected on these docket sheets Neither the courts of the Unified Judicial System of the Commonwealth of Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liabilityfor inaccurate or delayed data, errors or omissions on these reports. Docket Sheet information should not be used in place of a criminal history background check which can only be provided by the Pennsylvania State Police Moreover an employer who does not comply with the provisions of the Criminal History Record Information Act may be subject to civil liability as set forth irtl8 Pa.C.S. Section 9183. CERTIFICATE OF SERVICE The undersigned hereby certifies that he has served a copy of the foregoing, "Defendant's Preliminary Objections to Complaint," on the below - identified individual in the manner indicated: First Class Mail, Postage Prepaid Paul F. D'Emilio, Esquire Paul M. Schofield, Jr. 905 W. Sproul Road Suite 105 Springfield, PA 19064 Dated: July 15, 2014 Lew Office of ohn M e 5010 Ritter Roacl Suite 109 echanIcsburg, PA 17055 PHONE: 717.766.4008 FAX 717.766.4066 If J. 1n M. Kerr, Esquire 5110 Ritter Road Suite 109 Mechanicsburg, PA 17055 (717) 766-4008 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEYLD. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 WESTFIELD INSURANCE COMPANY AS SUBROGEE OF ALYSSA HARRIS 1 PARK CIRCLE • WESTFIELD CENTER, OH 44251 • ▪ COMMON PLEAS COURT OF • ▪ CUMBERLAND COUNTY • VS. JOEY G. HARRIS, JR. • 209 INSTITUTION DRIVE HOUTZDALE, PA 16698 NO. 14-536 CIVIL COMPLAINT PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS Plaintiff, by and through its counsel, the Law Office of Paul F. D'Emilio, hereby files this Answer in response to Defendant's Preliminary Objections. In support thereof, Plaintiff offers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. Plaintiff is without sufficient information to form a belief as to the truth or falsity of the statement, therefore the statement is deemed denied under the rules of civil procedure. 7 Denied. Defendant's argument is without merit and is not offered in good faith. While a criminal proceeding has ordered Defendant to pay restitution to the Plaintiff, the Plaintiff is not a party to that matter and under the law of this Commonwealth that order or judgment does not preclude the Plaintiff from pursuing its own remedy. See 18 Pa.C.S.A. § 1106. 8. Denied. See response to paragraph 7 above. 9. Denied. Plaintiff is without sufficient information to form a belief as to the truth or falsity of the statement, therefore the statement is deemed denied under the rules of civil procedure. 10. Denied. Defendant's argument is without merit and is not offered in good faith. The parties, the case, and the requested relief must be the same in order to prevail with a defense of pendency of a prior action. Penox Technologies, Inc. v. Foster Medical Corp., 376 Pa.Super. 450, 546 A.2d 114, 115 (1988). None of the elements are satisfied in this case, therefore there was no prior action. WHEREFORE, Plaintiff respectfully requests this Honorable Court deny and dismiss the Defendant's objections and order the Defendant Date: e an answer within 20 days. Paul M. Schofield, Jr., Esquire Identification No.: 81894 e-mail address: pauls@demiliolaw.com Paul F. D'Emilio, Esquire Identification No.: 16654 e-mail address: pauld@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax No.: 610-338-0303 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 WESTFIELD INSURANCE COMPANY AS SUBROGEE OF ALYSSA HARRIS 1 PARK CIRCLE WESTFIELD CENTER, OH 44251 VS. JOEY G. HARRIS, JR. • . 209 INSTITUTION DRIVE .• HOUTZDALE, PA 16698 COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 14-536 CIVIL COMPLAINT MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS 1. FACTS On or about March 12, 2012 the Defendant intently started a fire at Plaintiff's Insured's residences located at 4510 Carlisle Road, Gardners, Pennsylvania causing damages hereinafter set forth. Plaintiff avers that the personal Property of the Insured was damaged as a result of the occurrence hereinbefore mentioned, the reasonable costs of repairs thereto being is One Hundred Eight Thousand Twenty Six 57/100 ($108,026.57) Dollars plus the Insured's deductible of Five Hundred and 00/100 ($500.00) Dollars plus the cost of contents damage thereto being is Two Thousand Fifty Two and 05/100 ($2,052.05) Dollars for a total of One Hundred Ten Thousand Five Hundred Seventy Eight and 62/100 ($110,578.62) Dollars. Defendant was charged and pleaded guilty to reckless burning or exploding an unoccupied structure and recklessly endangering another person. Defendant was imprisoned for his crimes and Defendant was ordered to pay the Plaintiff $110,078.62 of which he has paid $210.00. Plaintiff filed suit regarding the amount paid its insured and Defendant demurred and claimed the pendency of the criminal case precluded Plaintiff from pursuing Defendant. 2. QUESTIONS PRESENTED 1. Does Plaintiff state a legally sufficient claim? 2. Does the prior Criminal case preclude Plaintiffs case? 3. SUGGESTED ANSWERS No, the prior criminal case against Defendant does not preclude Plaintiff's claims and Plaintiff has pleaded a legally sufficient case. 4. ARGUMENT When faced with a preliminary objection in the nature of a demurrer, the court must accept as true all well -pleaded facts contained in the complaint along with every reasonable inference which may be drawn therefrom. Al Hamilton Contracting Company v. Cowder, 434 Pa.Super. 491, 495-97, 644 A.2d 188, 190 (1994). A demurrer can only be sustained if the pleading is clearly insufficient to establish the party's right to relief. Bash v. Bell Telephone Company of Pennsylvania, 411 Pa.Super. 347, 352-54, 601 A.2d 825, 828 (1992). Defendant's position is without merit. Plaintiff has clearly stated a claim upon which relief could and should be granted. Defendant's position that a criminal restitution order precludes a victim or its subrogee from pursuing its own remedy is contrary to the law of this Commonwealth. 18 Pa.C.S.A. § 1106 clearly states that nothing will debar or preclude the victim of a tort of its private remedy. Defendant is merely given credit for the amount paid under the restitution order. 18 Pa.C.S.A. § 1106(g). Finally, Defendants argument that the Criminal case brought against the Defendant by the Commonwealth offers the Defendant a defense to the Plaintiff's claims is completely without merit or support in the Courts of this Commonwealth. Pendency of a Prior Action is a defense if there is a nexus of the parties, the relief and the case. It is well settled that a party asserting the pendency of a prior action as a defense will be held to a strict test to show the parties are the same, and the rights and relief prayed for is the same. The purpose of the prior pendency defense is to protect a defendant from having to defend several suits on the same cause of action at the same time. Norristown Auto. Co. v. Hand, 386 Pa.Super. 269, 562 A.2d 902, 904 (1989). Prior Pendency is not a proper defense in this matter because the Commonwealth's case is not the same as Plaintiff's and it is not pending, therefore Defendant's argument fails. 5. CONCLUSION Because Defendant's arguments that the Commonwealth's Restitution Order precludes Plaintiff's claims are without merit, the Court should deny relief to the Defendant and Order him to file an Answer. Date: ( M. Schofield, Jr., Esquire Identification No.: 81894 e-mail address: pauls@demiliolaw.com Paul F. D'Emilio, Esquire Identification No.: 16654 e-mail address: pauld@demiliolaw.com 905 W. Sproul Road, Suite 105 Springfield, PA 19064 Telephone No.: 610-338-0338 Fax No.: 610-338-0303 PAUL F. D'EMILIO, ESQUIRE ATTORNEY I.D. #16654 PAUL M. SCHOFIELD, JR, ESQUIRE ATTORNEY I.D. #81894 905 W. SPROUL ROAD, SUITE 105 SPRINGFIELD, PA 19064 (610) 338-0338 WESTFIELD INSURANCE COMPANY AS SUBROGEE OF ALYSSA HARRIS 1 PARK CIRCLE WESTFIELD CENTER, OH 44251 VS. JOEY G. HARRIS, JR. 209 INSTITUTION DRIVE HOUTZDALE, PA 16698 COMMON PLEAS COURT OF CUMBERLAND COUNTY NO. 14-536 CIVIL COMPLAINT CERTIFICATE OF SERVICE I, PAUL M. SCHOFIELD, JR., ESQUIRE, attorney for Plaintiff, does hereby certify that true and correct copy of the attached pleadings or documents was served the 8th day of September, 2014, by first class mail, postage prepaid to the following: John M. Kerr, Esquire 5101 Ritter Road Suite 109 Mechanicsburg, PA 17055 aul . Schofield, Jr., Esquire Attorney for Plaintiff