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HomeMy WebLinkAbout14-5301 Supreme Court ofennsylvania Cour .v4ot�Commo leas For Prothonotary Use Only: C YI! Cover Sheet Docket No: ,S` 1: Cunt'erland� County 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: S x' Complaint [3 Writ of Summons 0 Petition E 0 Transfer from Another Jurisdiction 0 Declaration of Taking C Lead Plaintiff's Name: Lead Defendant's Name: T ESK Steakhouse, Inc. Brethren Mutual Insurance Company Dollar Amount Requested: Dwithin arbitration limits I Are money damages requested? Yes D No (check one) xi outside arbitration limits O N Is this a Class Action Suit? 0 Yes 0 No Is this an MDJAppeal? Q Yes 0 No A Name of Plaintiff/Appellant's Attorney: Michael A. Scherer, Esquire 0 Check here if you have no attorney (are a Self-Represented jPro 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(do not include Judgments) CIVIL APPEALS 0 intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection:Credit Card Board of Assessment 0 Motor Vehicle Debt Collection:Other 0 Board of Elections 0 Nuisance 0 Dept.of Transportation Premises Liability 0 Statutory Appeal:Other S 0 Product Liability(does not include E mass tort) 0 Employment Dispute: 0 Slander/Libel/Defamation Discrimination C 0 Other: Employment Dispute:Other 0 Zoning Board T 0 Other: I Q Other: O MASS TORT 0 Asbestos N 0 Tobacco 0 Toxic Tort-DES 0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Other: 0 Ejectment 0 Common Law/Statutory Arbitration B Eminent Domain/Condemnation 0 Declaratory Judgment Ground Rent 0 Mandamus 0 Landlord/Tenant Dispute 0 Non-Domestic Relations 0 Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial 0 Quo Warranto Dental Partition 0 Replevin Legal 0 Quiet Title 0f Other: 0 Medical r-1 Other: Other Professional: Updated 1/1/2011 'r ti s ESK STEAKHOUSE, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 14- CIVIL ACTION-LAW BRETHREN MUTUAL : INSURANCE COMPANY, Defendant 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 an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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 -U:: s _, Carlisle, Pennsylvania 17013 z Co (717) 249-3166 --a CD bW ,rT� 73 I S r7rp a J #-,17 i(/7Z 1 ESK STEAKHOUSE, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 14- CIVIL ACTION-LAW BRETHREN MUTUAL INSURANCE COMPANY, Defendant COMPLAINT 1. The Plaintiff is ESK Steakhouse, Inc. (hereinafter "ESK"), a Pennsylvania corporation with a principal place of business formerly located at 909 Walnut Bottom Road, Walnut Bottom Road, Cumberland County, Pennsylvania, 17013. 2. The Defendant is the Brethren Mutual Insurance Company (hereinafter "Brethren"), with a mailing address of 149 North Edgewood Drive, Hagerstown, Maryland 21740. 3. ESK brings this action for monies Brethren owes ESK under a contract of insurance Brethren issued to ESK. 4. This Court has jurisdiction over this action because the policy of insurance issued by Brethren insured ESK for business operations which were completely and entirely operated within Cumberland County, Pennsylvania. Background 5. At all times material hereto, ESK operated a "Bonanza" restaurant at 909 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania. 6. At all times material hereto, ESK had in force a policy of business insurance purchased from Brethren and in place relative to ESK's commercial restaurant operations. e 7. Brethren issued ESK a commercial policy (hereinafter "policy"), number CPP0018984 01 which provided ESK insurance coverage for business income loss with a limit of insurance in an amount equal to ESK's actual loss sustained. A copy of the Business Income Coverage Endorsement is attached hereto as "Exhibit A." 8. The relevant business income loss policy language stated at paragraph 3.B. that: "The most we will pay for loss in any one occurrence, which occurs within 12 consecutive months after the date of direct physical loss or damage, is: 1. The actual loss of Business Income you sustain due to the necessary suspension of your "operations" during the "period of restoration." 9. "Period of restoration is not defined in the contract. 10. On October 19, 2013, the building located at 909 Walnut Bottom Road, Carlisle, Pennsylvania, from which ESK operated the Bonanza Restaurant, was completely destroyed by fire. 11. ESK made a claim under the policy with Brethren, for, among other things, business income loss coverage. . 12. Brethren paid ESK proceeds from the policy for ESK's business income loss for a period of six months after the fire. 13. The "period of restoration" as stated in the policy extends for the entire twelve months after the fire. 14. Brethren owes ESK an additional six months of business income loss coverage under the policy representing coverage for business income loss for months seven through twelve following the fire. 15. Brethren has a contractual obligation to pay ESK business income loss coverage for the entire duration of the twelve month "period of restoration" for which ESK purchased coverage pursuant to the terms of the policy. COUNT I - BREACH OF CONTRACT 16. Brethren's failure to pay ESK business income loss as required by the policy written and issued by Brethren constitutes a breach of Brethren's contractual obligations under insurance contract with ESK. WHEREFORE, ESK demands judgment against Brethren for the entire business income loss coverage provided for in the policy, plus interest and costs of suit and such further relief as the Court deems appropriate. COUNT II - BAD FAITH UNDER 42 Pa.C.S.A. Section 8371 17. Paragraphs one through sixteen above are incorporated herein. 18. ESK, through its president, Edward Kujawa, and undersigned counsel, have repeatedly demanded the Brethren pay the insurance proceeds it owes to ESK. 19. Brethren refuses to pay ESK the insurance proceeds it owes ESK. 20. ESK, through counsel, has repeatedly asked Brethren's counsel for justification of Brethren's refusal to pay the insurance proceeds due and owing to ESK. 21. Counsel for Brethren refuses to explain Brethren's refusal to pay the policy proceeds it owes ESK except to generically state that Brethren does not owe ESK any additional monies pursuant to the policy. 22. Brethren's vague denial of liability for further payment of business income loss proceeds under the policy does not afford ESK a reasonable opportunity to address Brethren's refusal to make further payment under the policy. 23. ESK has been forced to employ legal counsel to assert its rights under the policy. 24. Brethren owes ESK a duty of good faith and fair dealing, which includes a reasonable explanation of Brethren's analysis of the policy language and justification for denial of further coverage, and not a general denial with absolutely no reference to policy provisions or language. 25. Brethren has no reasonable basis to deny ESK's request for additional business loss coverage. 26. Brethren has demonstrated a lack of good faith in completely replying to ESK's coverage claim. 27. Brethren's refusal to pay additional business loss coverage under the policy illegal, unjust and in breach of Brethren's duty of good faith owed to ESK. 28. Brethren has failed to act and proceed in good faith in evaluating and processing this claim, thereby exposing ESK to unwarranted delay in receipt of insurance proceeds, costs and legal fees. [REMAINDER OF THIS PAGE BLANK] WHEREFORE, ESK respectfully requests that this Honorable Court enter judgment in its favor and against Brethren and to award ESK with such damages as the Court deems just as enumerated in 42 Pa.C.S.A. section 8371. Respectfully submitted, BARIC SCHERER LLC 1�41-41 It VLZV MF I Mi h e A. Sc erer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. ESK Steakhouse, Inc. Date:C `� By: Edward Kujawa President Brethren Mutu,-d Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Business Income (and Extra Expense) Enhancement Endorsement This endorsement modifies Insurance provided under the following: BUSINESS INCOME (AND EXTRA EXPENSE) COVERAGE FORM -CP 00 30 The BUSINESS INCOME (AND EXTRA 3• B. LIMITS OF INSURANCE is replaced with: EXPENSE) COVERAGE FORM -CP 00 30 is amended as follows: The most we will pay for loss in any one occurrence, which occurs within 12 consecutive 1• Under A. COVERAGE, 5.Additional months after the date of direct physical loss or Coverages, b:Alterations and New damage, is: Buildings, (3) is amended to show 1;000 feet of the described premises. 1. 9-he-actual loss of�Business Income you 'Sustain due to the necessary:suspension of 2• Under A. COVERAGE, 6. Coverage -your"operations"during the"period of Extension is replaced with: restoration", and You may extend the insurance provided by 2• The,necessary Extra.Expenseyou incur this Coverage Part as follows: during the"period of restoration"that you• would not have incurred if there had been Newly Acquired Locations no direct physical loss or damage to - I property at the described premises. a• You maylextend the Business Income and Extra Expense Coverages to apply 4. D.ADDITIONAL CONDITION -Coinsurance is to property at any location you acquire deleted. A minimum Coinsurance percentage is other than fairs or exhibitions. not required to activate this Coverage b. The most we will pay under this Enhancement Endorsement. Extension,for the sum of Business 5. Under E. OPTIONAL COVERAGES,the only Income loss and Extra Expense optional coverage that applied to this Coverage incurred, is$250,000 at each location. Enhancement Endorsement is: C. Insurance under this Extension for each 1- Maximum Period Of Indemnity. newly acquired location will end when any of the following first occurs: The following optional coverages are deleted: (1) The Ifolicy expires, 2. Monthly Limit of Indemnity, (2) 30 days expire after you acquire or 3. Business Income Agreed Value,and begin to construct the property: or t (3) You report values to us. 4. Extended Period of Indemnity. We will charge you additional premium for values reported from the date you acquire the property. This Extension is additional insurance. �J Includes copyrighted material of Insurance Services Office, Inc., BMI 90 04 01 10 with its permission. Page 1 of 1 "EXHIBIT All DURKIN LAW OFFICES, P.C. By: Martin A. Durkin, Esquire Attorney ID No: 37279 1760 Market Street - Suite 602 Philadelphia, PA 19103 Phone: (215) 569-9090 4:e D PR 2114 sep 7 pe sio'Br_f-R1.4,y0 Attorney for Defecrfd#1/2r,. vAL.N147 Y ESK STEAKHOUSE, INC. Plaintiff, V. BRETHREN MUTUAL INSURANCE COMPANY ' Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW No. 14-5301 JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our Appearance as counsel for the Defendant, Brethren Mutual Insurance Company. By: Respectfully submitted, DURKIN LAW OFFICES, P.C. Martin A. Durkin, Esquire Attorney for Defendant CERTIFICATE OF SERVICE I, Martin A. Durkin, Esquire, hereby certify a true and correct copy of the foregoing Entry of Appearance was served upon the following attorney of record via telecopier on the 15th day of September, 2014, addressed as follows: Michael A. Scherer, Esquire BARIC SCHERER LLC 19 West South Street Carlisle, PA 17013-3432 Telecopier No.: (717) 249-5755 BY: DURKIN LAW OFFICES, P.C. Martin A. Durkin, Esquire Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY r CFFICF. OF Ti ti $ SRIF= 2.3111 SEP 22 PM 2: 29 CUMBERLAND COUNTY PENNSYLVANIA ESK Steakhouse, Inc. vs. Brethren Mutual Insurance Company Case Number 2014-5301 SHERIFF'S RETURN OF SERVICE 09/10/2014 Ronny R Anderson, Sheriff, who being duly sworn according to law, states that he served the within Complaint & Notice upon the within named defendant, Brethren Mutual Insurance Company, in the following manner: On September 10, 2014 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint & Notice to the defendant's last known address of 149 North Edgewood Drive, Hagertown, MD 21740. The certified mail return receipt card was received by the Cumberland County Sheriff's Office signed by Brethren Mutual Insurance Company on Rob Stouffer. SHERIFF COST: $34.69 SO ANSWERS, September 16, 2014 (c) County,Suite Sheriff, Teleosoft, Inc. RONZ ANDERSON, SHERIFF r SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of t or on the front if space permi 1. Article Addressed to: - —, Brethren Mutual Insuran 149 Nodgewood Drive Hagertown, MD 21740 COMPLETE THIS SECTION ON DELIVERY A. nat�s 0 Agent 0 Addressee egeivec} by Cinte. . ') C. Date of Delivery 2-1(1 D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No 53D1 -fin 3. Service Type 0 Certified Mails 0 Priority Mall Express' 0 Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service labe° 7 07 0710 0003 2210 4266 PS Form 3811, July 2013• • • Domestic Return Receipt