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Home My WebLink About05-0923 JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW A F & L INSURANCE COMPANY, a Pennsylvania corporation, Defendant. : DOCKET NO. CY; - tfd 3 Cdd NOTICE 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, 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, P A 17013 Telephone: 717-249-3166 ~~ , I jlld: It. .McfJlPir TlF( a VivillH.c. .McClI1ir . Pit. 761-769.' ,..o.l.....' . ", . (20 lt1ral tJriw .'1). P'4-7 . I .., C/llIIPJlil1. plJ (7011 . ""' .~ ~,.." 0'.~~. /.(,~ I a: <C),oc:.""".::' ,tif~r~x:::::.Y."'" G ?' J"-..e ;(..:"1.<./ ! / (~t~ j- ~/......~", . -P___ ,. I A 5146 !Q:!;!1922 /7 f 7 3~5888" I . I I , . -"" ~ ,..-:"~ ..~ .- -Q) . m-- ~. 'tNM ='...- Dauphin Deposit Bank aid 1'ust Cornpal')' HARRISBURG. !'f.HH1Io'f\.\lIINl'\ 11105 ,)( .. _y.?J2:f>:, ' ... . ,r'/ dt.&2...:...:....~-~~..'!' ':03.30083"': 5858.11881..11. qq S."b .;'0005000000.1' ------ --___ ~_ _" __._J ..n..... .;.....~~1I~ ~i_"" -.--.-- _.~--~---._._-- Pl.... M.ke Checks Payabl. to AMERICAN FIDELITY & LIBERTY INSURANCE COMPANY Not to Any Individual American Fidelity & Liberty Insurance Company .~'<'Il~:; -a''ll Slgnatu," of Agen , A ,/2 , Roce;vedfrom 1// VIArlJ 1. I7CC.l.AJ,4 a payment of $ .'SQ.. 000 ~n connection with an applicaUon for insurance wlth the American Fidelity & Ubeny Insurance Company. This receipt is not valid unless signed by an 8980tO' rhe Company Of unless any paym6nl made by check, draft or montty order is good and coUectible December 6. 2001 Vivian L. McClair & Jack R. McClair 120 Forest Drive Camp Hill, PA 17011 **Annuity Re Cap December 6,2001 Annuity Value $ 60,658.27 Interest Rate 7.10% Interest Accrued $ 2517.32 Total Value $ 63,175.59 ~~ \ ~. """ 'W ~. ~ ~. \l "'\::> "" \t.-, ~ ~ I 'f.r- V') ~ ~ ~ '\ "'- \.: ~\~ \ ~ (' .--, '-n -1"' ~-~ I' ..- C" .- .. .. C\ (..." - ---- ~ JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, vs. A F & L INSURANCE COMPANY, a Pennsylvania corporation, Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : DOCKET NO. 05-923 CIVIL ACCEPTANCE OF SERVICE I accept service of the Complaint on behalf of A F & L Insurance Company and certifY that I am authorized to do so. Z/Z'2- /O-S- Date [Si IUt'lvpe (). Vas: t:. [Print Name and Title] / (JOL";)~ #'" ArLj_ / ,-,:s. tk, TO THE PLAINTIFF: You are hereby noticed to plead to the attached Preliminary Objections of the Defendant wit' n twenty (20) days of service on or a judgment may be entered I < JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND CO UNTY, PENNSYL VANIA v. CIVIL ACTION - LAW A F & L INSURANCE COMPANY a Pennsylvania corporation, Defendant. DOCKET NO. 05-923 CIVIL DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendant, A F & L Insurance Company, by and through its attorneys, Elliott Greenleaf Siedzikowski & Balaban, and pursuant to Pa. R. Civ. P. Rule 1028, does hereby preliminarily object to the Plaintiffs' Complaint and in support thereof states as follows: 1. Plaintiffs' commenced this civil action by the filing of a Complaint on February, 18,2005. I. Motion to Strike Plaintiffs' Complaint for Failure to Conform to Law and/or Rule of Court 2. Paragraph 1 hereof is incorporated herein by reference as if fully restated in its entirety. 3. Rule l028(a)(2) permits the filing of a preliminary objection where a pleading fails to conform to law or rule of court. 4. Rule 10 19(i) of the Pennsylvania Rules of Civil Procedure requires that where an averment in a pleading is based upon a writing, the pleader must attach a copy of said writing to the pleading and, if such is not available, provide a reason for the unavailability. 5. Plaintiffs' Complaint alleges breach of an annuity contract by and between Plaintiffs and Defendant. 6. No annuity contract is attached or appended to Plaintiffs' Complaint. 7. Plaintiffs have not alleged in their Complaint that the said annuity contract is not available to them. 8. Plaintiffs have not provided a reason in their Complaint for the unavailability of the said annuity contract. - 2 - 9. Plaintiffs' Complaint violates Pa. R. Civ. P. Rule 1019(i), is fatally flawed, and should be stricken. WHEREFORE, Defendant, A F & L Insurance Company, respectfully request this Honorable Court to strike Plaintiffs' Complaint with prejudice. II. Motion to Dismiss for Lack of Lel!al Sufficiency - Demurrer 10. Paragraphs I through 9 hereof are incorporated herein by reference as if fully restated in their entirety. 11. Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure permits the filing of a preliminary objection where a pleading lacks legal sufficiency (fails to state a claim upon which relief may be granted). 12. Plaintiffs Complaint alleges breach of contract by Defendant. 13. A cause of action for breach of contract must be established by pleading: (a) the existence of a contract, including its essential terms; (b) a breach of duty imposed by the contract; and (c) resultant damages. - 3 - Corestates Bank v. Cutillo, 723 A. 2d 1053 (Pa. Super. 1999). While not every term of a contract must be stated in complete detail, every element must be specifically pleaded. Id. 14. Plaintiffs' Complaint fails to allege the existence of a contract, including its essential terms. 15. Plaintiffs' Complaint fails to allege a breach of duty imposed by the said contract. 16. Plaintiffs Complaint, therefore, fails to state a claim upon which any relief may be granted. WHEREFORE, Defendant, A F & L Insurance Company, respectfully requests this Honorable Court grant its Demurrer and dismiss Plaintiffs' Complaint with prejudice for failure to state a claim upon which relief may be granted. Ill. Motion to Dismiss for Nonioinder of Necessary Party 17. Paragraphs I through 16 hereof are incorporated herein by reference as if fully restated in their entirety. - 4 - 18. Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure permits the filing of a preliminary objection where a pleading fails to join a necessary party to an action. 19. Plaintiffs' Complaint alleges certain acts or omissions on the part of Gary Stock. 20. Plaintiffs' Complaint alleges Gary Stock died on February 28, 2002. 21. Plaintiffs' Complaint alleges certain mqumes made of Stock's widow regarding the status of the alleged annuity contract. 22. At all times relevant hereto, Plaintiffs were aware of Stock's demise and, in fact, dealt with decedent's personal representative. 23. Unless all necessary and indispensable parties are parties to an action, a court is powerless to grant relief. Reifsnvder v. Pittsburgh Outdoor Advertising Company, 396 Pa. 320, 152 A.2d 894 (1959). 24. Under the circumstances, the decedent's personal representative is a necessary and indispensable party to the present action. - 5 - 25. Plaintiffs' Complaint fails to join decedent's personal representative to the present action. 26. Pa. R. Civ. P. 2227(a) requires dismissal of an action brought against only one party where there exists no timely attempt to join another necessary party as a defendant. WHEREFORE, Defendant, A F & L Insurance Company, respectfully requests this Honorable Court to dismiss Plaintiffs' Complaint with prejudice for failure to join a necessary party as a defendant to the action. Respectfully submitted, BY: ank . Sluzis, Esquire .1 .#43829 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 717-234-3282 717-233-4264 (1) fcs@ellliottgreenleafcom -6- JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, v. A F & L INSURANCE COMPANY a Pennsylvania corporation, Defendant. ; IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA ; CIVIL ACTION - LAW DOCKET NO. 05-923 CIVIL CERTIFICATE OF SERVICE The undersigned hereby certifies that on this day a copy of Defendant's Preliminary Objections to Plaintiffs' Complaint, by way of First Class U.S. Mail, postage prepaid, on the parties designated below: DATE 3/ t/O:',~ Mark E. Halbruner, Esquire Albert N. Peterlin, Esquire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 Atto ey Plaintiff~ ~ _,J JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PEAS : CUMBERLAND COUNTY, PENN YL VANIA vs. : CIVIL ACTION - LAW A F & L INSURANCE COMPANY, a Pennsylvania corporation, Defendant. : DOCKET NO. 05-923 CIVIL NOTICE 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 amended c mplaint and notice are served, by entering a written appearance personally or by attorney and fili g in writing with the court your defenses or objections to the claims set forth against you. You ar warned that if you fail to do so the case may proceed without you and ajudgment maybe entered a ainst you by the court without further notice for any money claimed in the amended complaint or or any other claim or relief requested by the plaintiff. You may lose money or property or other ri ts important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF Y HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BE OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LA IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY B ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFF R LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 Telephone: 717-249-3166 JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PEAS : CUMBERLAND COUNTY, PENN YL VANIA vs. : CIVIL ACTION - LAW A F & L INSURANCE COMPANY, a Pennsylvania corporation, Defendant. : DOCKET NO. 05-923 CIVIL AMENDED COMPLAINT BREACH OF CONTRACT AND NOW, come Jack R. McClair and Vivian 1. McClair ("Plaintiffs"), by and through their counsel, Gates, Halbruner & Hatch, P.C., and make the following amended omplaint as permitted by PaRC.P. 1028(c)(1) within twenty days after service of Defendant's preliminary objections to the original Complaint: 1. Plaintiffs are a husband and wife whose address is 325 Wesley Drive Apartment 3110, Mechanicsburg, Pennsylvania 17055. 2. A F & L Insurance Company ("Defendant") is a Pennsylvania corporati n having its registered address at 1800 Street Road, Warrington, Bucks County, Pennsylvania 189 6. 3. At all times relevant to this action, Gary 1. Stock ("Stock") was Defen ant's agent. 4. On or about September 3, 1997, Stock solicited an annuity application fr Plaintiffs and accepted Plaintiffs' check for $50,000.00 payable to American Fidelity & Libe Insurance Company, which is the corporate predecessor of Defendant. 5. Stock gave Plaintiffs a receipt for the check on a form bearing the name f American Fidelity & Liberty Insurance Company. A copy of the receipt and the check is attach d hereto as Exhibit "A" and incorporated herein by reference. 6. Plaintiffs' check was cashed, and they received annual statements from Stock indicating the interest rate, accrued interest and total value of their annuity. 7. The most recent statement from Stock, dated December 6,2001, showe a total value of$63, 17 5.59, and a copy of said statement is attached hereto as Exhibit "B" and incorp rated herein by reference. 8. Exhibit "B" recites the terms of the annuity contract as most recently xplained to Plaintiffs by Stock. 9. Stock died on February 28, 2002. 10. Plaintiffs thereafter inquired of Stock's office and his widow regarding the status of their annuity but received no satisfaction. 11. Stock was acting as the agent or apparent agent of Defendant when he solicited Plaintiffs' check and issued the receipt. 12. As Stock's principal, Defendant has a duty to repay the initial sum invested by Plaintiffs and the accrued interest shown on the most recent statement delivered to laintiffs by Stock. 13. Defendant has breached this duty by denying any liability to Plaintiffs. 14. Plaintiffs never received a written annuity contract from Stock or Den ndant other than the annual statements described above, and therefore, no such contract is attache hereto. 15. Plaintiffs believe and therefore aver that no estate has been opened for St ck and that no personal representative has been appointed for Stock. 2 WHEREFORE, Plaintiffs respectfully demand judgment in their favor and against Defendant for $63,175.59, plus interest accrued from December 6, 2001, to the date fjudgment, and such other relief as the Court deems appropriate. Respectfully submitted, GATES, HALBRUNER & HA CH, P.C. Date: March 30, 2005 '1/' /' By: '[/1 Mark E. Halbruner, Esq. Attorney LD. #66737 Albert N. PeterJin, Esq, Attorney LD. #84180 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for PlaintiffS) 3 VERIFICATION The foregoing Amended Complaint is based upon information which has bee gathered by my counsel in preparation of the lawsuit. The language of the document is that of m counsel and is not my own. I have read the document and to the extent that it is based upon info ation which I have given to my counsel, it is true and correct to the best of my knowledge, informati n and belief. To the extent that the content of the document is that of my counsel, I have relied upo my counsel in making this verification. This statement and verification are made subject to the p alties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities, which provides th t if I make knowingly false averments, I may be subject to criminal penalties. Date: :3 os- EXHIBIT "A" !Jad. Je. .McClair 10.71 a ViviaN.c. .McClair PII. 761-7695 ........... '. 120 'Jorrsl :tJrjlJ( .~"P../ . / .:, .. CIl"" Rill. PIl 17011 , ! . ~~...,. --;r;:: . a ,,-' ~J-.' J',:{;;',,,,,, 6rL-. (.Z I $5; Q:::.x,=<. ::. ~ ')!!!'~~~ . I . I ' i -;'M- r-/....-"J.-J-./ ....,. 7<""<:' ..~.~ -=F~fJj. = ! D Dauphin Deposit Bank and TIusI Comporrv HARRISBURG. PENN5YLII.-.NlA 111011 (. om. 5146 ' """. 922 .c 313 /7'17 585"" .- 1:0 ; ~ ,!oD08 ; l,1: ~ 2:'L~~2~;_.-~;:~~-'-- 5858w88l,~. ~~ S~l,~ ~000500000 ~ .. -------- ----- -- -. rth '~~I'iEU~ ~1i.a!9--- American Fi elity & Liberty Insurance Co pany Pl.... Mak. Ch.eka Payabla to AMERICAN FIDEUTY & LIBERTY INSURANCE COMPANY Not to Any Individual _'(,fln~L~__ 09_ ~I'a ..gnatv,o of Agony ''Y A I~~ Recelvod from I A paymenl of S~ 000 ~n co ecHon with an application for insurance with the Amerlc... Fidelity & U erty Insurance Company. This receipt is not valid unless signed by a agent of the Company orunl"ss any payment made by check, draft or money mer is good and collectible. EXHIBIT "B " December 6, 2001 Vivian L. McClair & Jack R. McClair 120 Forest Drive Camp Hill, PA 17011 **Annuity Re Cap December 6,2001 Annuity Value $ 60,658.27 Interest Rate 7.10% Interest Accrued $ 2517.32 Total Value $ 63,175.59 CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P.c., her by certifY that [ served a true and correct copy of the foregoing document on this date by First lass mail to the following: Frank C. Sluzis, Esquire ELLIOTT GREENLEAF SIEDZIKOWSKI & BALABAN 27 North Front Street P.O. Box 1284 Harrisburg, P A 17108-1284 (Attorneys for Defendant) GATES, HALBRUNER & HA H, P.C. By: Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 Telephone: (717) 731-9600 (Attorneys for Plaintiffs) Date: '5 ( ~r;/0, .;;- f---J , -..;" ",_,01 ;~ .., I "j-'\:; ':.') C:.-:> L-- \..c; TO THE PLAINTIFF: JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, (ra . Sluzis, Esquire : IN THE cob6. OF COM ON PLEAS : CUMBERLAND COUNTY PENNSYLVANIA I , , '- v. CIVIL ACTION - LAW A F & L INSURANCE COMPANY a Pennsylvania corporation, J Defendant. DOCKET NO. 05-923 CI 'IlL DEFENDANT'S PRELIMINARY OBJECTIONS T PLAINTIFFS' AMENDED COMPLAINT Defendant, A F & L Insurance Company, by and through its attorn ys, Elliott Greenleaf Siedzikowski & Balaban, and pursuant to Pa. R. Civ. P. Rule 1028, does hereby preliminarily object to the Plaintiffs' Amended Complaint and in support thereof states a follows: 1. Plaintiffs' commenced this civil action by the filing of a Complaint on February, 18,2005. I I I 2. Defendant filed Preliminary Objections to Plaintiffs' COFplaint on March II, 2005. 3. In response thereto, Plaintiffs filed an Amended Complaint on or about March 30,2005. I. Motion to Dismiss for Lack of Leeal Sufficiency pemurrer , 4. Paragraphs I through 3 hereof are incorporated herein b reference as if fully restated in their entirety. 5. Rule 1028(a)(4) of the Pennsylvania Rules of Civil P ocedure permits the filing of a preliminary objection where a pleading lacks I gal sufficiency (fails to state a claim upon which relief may be granted). 6. Plaintiff s Amended Complaint alleges breach of contrac by Defendant. 7. A cause of action for breach of contract must be establis ed by pleading: (a) the existence of a contract, including its esse ial terms; (b) a breach of duty imposed by the contract; and (c) resultant damages. I I Core states Bank v. Cutillo, 723 A. 2d 1053 (Pa. Sup~r. 1999). While not I every term of a contract must be stated in complete detall, every element must ! I be specifically pleaded. ld. - 2 - 8. Plaintiffs' Amended Complaint fails to allege the existence of a contract, including its essential terms. 9. Plaintiffs Amended Complaint, therefore, fails to state ,a claim upon which any relief may be granted. I , I WHEREFORE, Defendant, A F & L Insurance Company, resp~ctfUllY requests this Honorable Court grant its Demurrer and dismiss Plaintiffs' Amended Co~Plaint with prejudice I for failure to state a claim upon which relief may be granted. I I I i , II. Motion to Dismiss for Non' oinder of N ecessa I I 10. Paragraphs 1 through 9 hereof are incorporated herein bf reference as if fully restated in their entirety. I I I I I 11. Rule 1028(a)(5) of the Pennsylvania Rules of Civil ocedure permits the filing of a preliminary objection where a pleading fail to join a necessary party to an action. 12. I I I I Plaintiffs' Amended Complaint alleges certain acts or otiSSions on the part of Gary Stock. 13. Plaintiffs' Amended Complaint alleges Gary Stock died bn February 28, 2002. I I i - 3 - 14. Plaintiffs' Amended Complaint alleges certain mqumes made of Stock's widow regarding the status of the alleged annuity contract 15. At all times relevant hereto, Plaintiffs were aware of Stpck's demise and, in fact, dealt with decedent's personal representative. 16. It is the responsibility of a complainant to inquire of the *gister of wills in the I county of the decedent's residence to determine if a p~rsonal representative , i has been appointed, and, if the inquiry leads him I to believe that no I administrator has been appointed, to take action to have sfch person appointed in a timely manner. Nelson v. Estate of Massev. 455 pal Super. 71, 686 A.2d 1350 (1996). 17. Unless all necessary and indispensable parties are partie~ to an action, a court is powerless to grant relief. Reifsn der v. Pittsbur h Outdoor Advertisin Company, 396 Pa. 320, 152 A.2d 894 (1959). 18. , I I I Under the circumstances, the decedent's personal represtntative is a necessary I I I I I and indispensable party to the present action. 19. Plaintiffs' Amended Complaint fails to join decedent's ~ersonal representative to the present action. - 4 - 20. Pa. R. Civ. P. 2227(a) requires dismissal of an action brought against only one party where there exists no timely attempt to join another! necessary party as a defendant. WHEREFORE, Defendant, A F & L Insurance Company, respertfUlly requests this Honorable Court to dismiss Plaintiffs' Amended Complaint with prejUdiC~ for failure to join a I I I Respectfully submitted, i I REENI:?tZlK7KJ /J , BY Fro kC Sl~',~i,"' y(J~., Pa. .D #43829 C) 27 N. Front Street ,- P.O. Box 1284 Harrisburg,PA 17108-1284 717-234-3282 717-233-4264 (f) fcs@ellliottgreenleaf.com necessary party as a defendant to the action. - 5 - . ,. . JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY,IPENNSYLVANIA v. CIVIL ACTION - LAW A F & L INSURANCE COMPANY a Pennsylvania corporation, Defendant. DOCKET NO. 05-923 CIV~L i CERTIFICATE OF SERVICE ' The undersigned hereby certifies that on this day a copy of Defe1dant's Preliminary Objections to Plaintiffs' Amended Complaint, by way of First Class[ U.S. Mail. postage I I I I prepaid, on the parties designated below: Mark E. Halbruner, Esquire \013 Mumma Road, Suite 100 Lem ne A 17043 At m s f; Plaintiffs -..... DATh /-{ 1,1 oS -u ~- .. ~ -~ ") 'tl '7_r, " I ; , " . - :: PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmi.tted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: please list the within matter far the next Argmlent Court. CAPTION OF CASE (entire caption nust be stated in full) Jack R. McClair and Vivian L. McClair, (Plaint:i:ff) vs. A F & L Insurance Company ( Deferxtmt) No. 05.923 Civil 1. State matter to be argued (i.e., plaint:i:ff's IlDtion for new trial. deferxtmt's darurrer to carq;llaint. etc.): Defendant's Preliminary Objections to the Amended Complaint 2. Identify counsel who will argue case: (a) f= plaint:i:ff: Mark E. Halbruner l\ddress: 1013 Mumma Road, Suite 100 Lemoyne PA 17043 (b) f= deferxtmt: Frank C. Sluzis l\ddress: 27 North Front Street P.O. Box 1284 Harrisburg PA 17108.1284 3. I will notify all parties in writing within two days that this case has been listed f= argurent. 4. A:rgt.ment Court Date: June 1, 2005 ~ted: April 18, 2005 741ct1/4;:: )0~~-0 -- Atto:mey f= Plainllffs -;(J - ,S:; "'C\ r;.? c,) X;" JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION - LAW A F & L INSURANCE COMPANY, a Pennsylvania corporation, Defendant. : DOCKET NO. 05-923 CIVIL ANSWER TO PRELIMINARY OBJECTIONS AND NOW, come Jack R. McClair and Vivian L. McClair ("Plaintiffs"), by and through their counsel, Gates, Halbruner & Hatch, P.C., and make the following answer to "Defendant's Preliminary Objections to Plaintiffs' Amended Complaint": 1. Admitted. 2. Admitted. 3. Admitted. I. Motion to Dismiss for Lack of Lel!.al Sufficiency - Demurrer 4. Paragraphs I through 3 above are incorporated herein by reference. 5. Denied as a conclusion oflaw which requires no responsive pleading. 6. Admitted. 7. Denied as a conclusion oflaw which requires no responsive pleading. 8. Denied as a conclusion of law which requires no responsive pleading. 9. Denied as a conclusion oflaw which requires no responsive pleading. WHEREFORE, Plaintiffs respectfully request that the Court overrule the Preliminary Objection and order Defendant to answer the Amended Complaint. II. Motion to Dismiss for Nonjoinder of Necessary Party Paragraphs I through 9 above are incorporated herein by reference. Denied as a conclusion oflaw which requires no responsive pleading. Denied as stated. The Amended Complaint is a document of record which speaks for 10. 11. 12. itself 13. ]4. Itself 15. Admitted. Denied as stated. The Amended Complaint is a document of record which speaks for Denied. Plaintiffs did not deal with Gary Stock's personal representative. No estate has been opened for Stock, and no personal representative has been appointed for Stock. 16. Denied as a conclusion oflaw which requires no responsive pleading. 17. Denied as a conclusion of law which requires no responsive pleading. 18. Denied as a conclusion of law which requires no responsive pleading. 19. Admitted. By way of further answer, there is no personal representative for Stock. 20. Denied as a conclusion of law which requires no responsive pleading. 2 WHEREFORE, Plaintiffs respectfully request that the Court overrule the Preliminary Objection and order Defendant to answer the Amended Complaint. Respectfully submitted, GATES, HALBRUNER & HATCH, P .C. By: l'lt6<-~/'. #.~ Mark E. Halbruner, Esq. Attorney LD. #66737 Albert N. Peterlin, Esq. Attorney 1.0. #84180 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiffs) Date: c;/L-/ / C/-) . 3 VERIFICATION I hereby verifY that the facts averred in the foregoing document are true and correct to the best of my knowledge, information and belief This verification is made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities. This verification is not made by the party because the answers given herein relate to facts known by the undersigned attorney. \Date: c;/il/or::; , 7/V[4_-v~( c!'. ~ ~~:; Mark E. Halbruner CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P.c., hereby certifY that I served a true and correct copy of the foregoing document on this date by First Class mail to the following: Frank C. Sluzis, Esquire ELLIOTT GREENLEAF SIEDZIKOWSKI & BALABAN 27 North Front Street P.O. Box 1284 Harrisburg, PA 17]08-]284 (Attorneys for Defendant) GATES, HALBRUNER & HATCH, P.c. By: 1/2 ' // C .;;' -----::;) / ~ c. '/~::s-""'- Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 Telephone: (717) 731-9600 (Attorneys for Plaintiffs) Date: ~1/0<;- (. C) c' ...., c) -n ::;-,j ,::-') , c.."1 (.,'1 -r,-l (.) c' JACK R. MCCLAIR and VIVIAN L. MCCLAIR, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-0923 CIVIL A.F. & L. INSURANCE CO., a Pennsylvania corporation, Defendant IN RE: PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT BEFORE HESS AND OLER. J.J. ORDER AND NOW, this IT day of August, 2005, following argument thereon, the preliminary objections of the defendant to the plaintiffs' amended complaint are DISMISSED. BY THE COURT, Aark E. Halbruner, Esquire For the Plaintiffs :r\m vPfank. C. Sluzis, Esquire For the Defendant \jH'~'ji\'lASi<i {3d , I' rn("', "....,::l'f\!Il" 1\..1\:",,"- ; "..Jll\1..) LS :8 Wd L I ~l1V son Ab\llONOHlOl:ld 3Hl. ::10 381::!::J(XI31I:l TO THE PLAINTIFF: JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE C RT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW A F & L INSURANCE COMPANY a Pennsylvania corporation, Defendant. DOCKET NO. 05-923 CIVIL ANSWER TO AMENDED COMPLAINT BREACH OF CONTRACT Defendant, A F & L Insurance Company, by and through its attorneys, Elliott Greenleaf Siedzikowski & Balaban, respectfully answer as follows: 1. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, if relevant. 2. Admitted. 3. Denied. It is denied that at all times relevant to Plaintiffs' cause of action, Gary L. Stock ("Stock") was Defendant's agent. On the contrary, at all times relevant hereto, Stock was an employee, president and treasurer, and agent for A F & L Insurance Agency, Inc., a separate and distinct Pennsylvania corporation having its registered address at 115 South Filbert Street, Mechanicsburg, Pennsylvania 17055. 4. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, if relevant. By way of further answer, it is denied that American Fidelity and Liberty Insurance Company is the corporate predecessor of Defendant. Furthermore, at no time relevant hereto was Defendant ever licensed to sell or did sell annuity contracts in the Commonwealth of Pennsylvania. 5. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, ifrelevant. By way of further answer, the receipt and check attached as Exhibit "A" to Plaintiffs' Complaint show that the alleged check and receipt list the name American Fidelity and Liberty Insurance Company and not Defendant. 6. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, if relevant. By way - 2 - of further answer, Plaintiffs' check was never cashed and/or negotiated by Defendant, nor did Defendant issue or authorize the issuance of annual statements to Plaintiffs. 7. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, if relevant. By way of further answer, it is denied that Defendant issued or authorized the issuance of statements to Plaintiffs. 8. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, if relevant. By way of further answer, it is denied that Defendant issued or authorized the issuance of statements to Plaintiffs. Furthermore, it is denied that Defendant entered into an annuity contract with Plaintiffs. 9. Admitted. 10. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, if relevant. - 3 - II. Denied. It is denied that at all times relevant to Plaintiffs' cause of action, Gary 1. Stock ("Stock") was Defendant's agent. On the contrary, at all times relevant hereto, Stock was an employee, president and treasurer, and agent for A F & L Insurance Agency, Inc., a separate and distinct Pennsylvania corporation having its registered address at lIS South Filbert Street, Mechanicsburg, Pennsylvania 17055. As to the remaining averments, they constitute a legal conclusion to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 12. Denied. It is denied that any agency relationship, apparent or otherwise, existed between Defendant and Stock. It is further denied that Defendant owes any duty to Plaintiffs. As to the remaining averments, they constitute a legal conclusion to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 13. Denied. It is denied that Defendant owes any duty to Plaintiffs. As to the remaining averments, they constitute a legal conclusion to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 14. Denied as stated. It is denied that the annual statements constitute a written annuity contract. It is admitted that Defendant and Plaintiffs never entered into a contract. As to Plaintiffs' dealings with Stock, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to -4- the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, ifrelevant. 15. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied and strict proof is demanded thereof, at time of trial, if relevant. WHEREFORE, Defendant prays this Honorable Court to enter judgment in its favor and against Plaintiffs and dismiss Plaintiffs' Complaint with prejudice. NEW MATTER In further answer to Plaintiffs' Complaint, Defendant avers the following New Matter pursuant to Pa. R.C.P. No. 1030: 16. At all times relevant hereto, Stock was an employee, president and treasurer, and agent for A F & L Insurance Agency, Inc. 17. At all times relevant hereto, Stock acted on behalf of A F & L Insurance Agency, Inc., and not on behalf of Defendant. 18. No agency relationship existed between Stock and Defendant. - 5 - 19. At the time the monies were obtained by Stock from Plaintiffs, the name of the company listed was the American Fidelity and Liberty Insurance Company and not Defendant. 20. At all times relevant hereto, Stock lacked apparent authority to act on behalf of Defendant. 21. Plaintiffs' claims are barred by the statute of frauds, because there is no written agreement between Plaintiffs and Defendant. 22. Plaintiffs' claims are barred by failure of consideration by and between Plaintiffs and Defendant. 23. Plaintiffs' claims are barred by the doctrine of laches, in that Plaintiffs never made any inquiry to Defendant with respect to the status of their alleged annuities commencing in 1997. 24. If any contract existed, it was by and between Plaintiffs and A F & L Insurance Agency, Inc. and/or Stock and not Defendant. 25. If Plaintiffs suffered any damages, they are the result of third parties not named in Plaintiffs' action and not by Defendant. - 6 - WHEREFORE. Defendant respectfully requests this Honorable Court to enter judgment in its favor and against Plaintiffs and dismiss Plaintiffs' Complaint with prejudice. Respectfully submitted, BY: Fra C. Sluzis, Esquire . .D. #43829 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 717-234-3282 717-233-4264 (f) fcs@ellliottgreen1eaf.com Dated: 1 !~ 10::,- { I -7 - VERIFICATION I, Frank C. Sluzis, Esquire, hereby state that the allegations in Answer to Amended Complaint Breach of Contract and New Matter are true and correct to the best of my knowledge, information and belief. I understand that an alse statements are subject to the penalties contained at 18 Pa. C.S. 94904, relating to uns om Dated: , JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW A F & L INSURANCE COMPANY a Pennsylvania corporation, Defendant. : DOCKET NO. 05-923 CIVIL CERTIFICATE OF SERVICE The undersigned hereby certifies that on this day a copy of Answer to Amended Complaint Breach of Contract and New Matter, by way of First Class U.S. Mail, postage prepaid, on the parties designated below: Mark E. Halbruner, Esquire 1013 a Road, Suite 100 , P A 17043 s for Plaintiffs DATE 1/; jos- n t~~. ,.., "'" l:::;t <f' <.1) r<l -0 (.:'<~ ~;- "j ::< ..0 -0 :z r:-? ~ ~:o fTlr: -r)m~ ::JS '=..;) ::s~, ~,("1 t:{c'\ t! :~ en N JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW A F & L INSURANCE COMPANY, a Pennsylvania corporation, Defendant. : DOCKET NO. 05-923 CIVIL REPLY TO NEW MATTER AND NOW, come Jack R. McClair and Vivian L. McClair ("Plaintiffs"), by and through their counsel, Gates, Halbruner & Hatch, P.C., and make the following reply to the New Matter raised by Defendant: 16. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the averment. As such, said averment is denied, and strict proof thereof is demanded at trial if relevant. 17. Denied. The facts averred in the Amended Complaint are incorporated herein by reference. 18. Denied as a conclusion oflaw which requires no responsive pleading. 19. Denied as stated. The check and receipt are documents which speak for themselves. Copies thereof are attached to the Amended Complaint as Exhibit "A" and are incorporated herein by reference. 20. Denied as a conclusion oflaw which requires no responsive pleading. 21. Denied as a conclusion of law which requires no responsive pleading. 22. Denied as a conclusion oflaw which requires no responsive pleading. 23. Denied as a conclusion oflaw which requires no responsive pleading. 24. Denied as a conclusion oflaw which requires no responsive pleading. 25. Denied as a conclusion oflaw which requires no responsive pleading. WHEREFORE, Plaintiffs respectfully demand judgment in their favor and against Defendant for the relief specified in the Amended Complaint. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. By:J~~.l/~ Mark E. Halbruner, Esq. Attorney 1.0. #66737 Albert N. Peterlin, Esq. Attorney 1.0. #84180 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) Date: cr /x::>/o" 2 VERIFICATION I hereby verify that the facts averred in the foregoing document are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. g4904 relating to unsworn falsification to authorities. Date:~ 2~ ;ZCQj- CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P .C., hereby certify that I served a true and correct copy of the foregoing document on this date by First Class Mail to the following: Frank C. Sluzis, Esquire ELLIOTT GREENLEAF SIEDZIKOWSKI & BALABAN 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (Attorneys for Defendant) GATES, HALBRUNER & HATCH, P.C. By: ~Z'1r-~ Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 Telephone: (717) 731-9600 (Attorneys for Plaintiffs) Date: or /." 6( 0 ') n c~ ....' c,::::> c::;'l ~, o co -., \ ,-" 4, ~ .--\ "1:..,., rY\p ~'r,ltD ~-')'-j ~-~~, (~\!~ ~? ~~~ "') ::.-1 -\= ~ t:? --' . .- .-. JACK R. McCLAIR and VIVIAN L. McCLAIR, Plaintiffs, vs. A F & L INSURANCE COMPANY, a Pennsylvania corporation, Defendant. TOTHE PROTHONOTARY: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : CIVIL ACTION - LAW : DOCKET NO. 05-923 CIVIL PRAECIPE Please mark the above-captioned action as settled and discontinued. Respectfully submitted, GATES, HALBRUNER & HATCH, P.C. BY: /2~c{r:~:> Mark E. Halbruner, Esquire Supreme Court LD. #66737 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATE: \\ 11'il/6) <," \" CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certifY that I served a true and correct copy of the foregoing document on this date by First Class Mail to the following: Frank C. Sluzis, Esquire ELLIOTT GREENLEAF SIEDZIKOWSKI & BALABAN 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (Attorneys for Defendant) GATES, HALBRUNER & HATCH, P.C. By: ~~kL,~ Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, P A 17043 Telephone: (717) 731-9600 (Attorneys for Plaintiffs) Date: \ \ I \ Ii 105" (.." -