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Home My WebLink About05-3268 F. \F1LES\DA 1 AflLE\General\CuITent\997J.7, ~omJ Created: 5/31/05 8:08AM Revised' 6/24/05 3:46PM '19737 David R. Galloway, Esquire MARTS ON DEARDORFF WILLIAMS & OTTO I.D. Number 87326 10 East High Street Carlisle,PA 17013 (717) 243-3341 Attorneys for Plaintiff DWIGHT W. GOCHENAUR & RlTA M. GOCHENAUR, H/W, Plaintiffs v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. OS'- 32.(,9 CU::J fAAr- CIVIL ACTION - LAW ERIE INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED 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 Plaintiffs. 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 MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 Te1ephone:(717) 249-3166 David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO J.D. Number 87326 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff DWIGHT W. GOCHENAUR & RITA M. GOCHENAUR, H1W, Plaintiffs v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05- 3;L~'i ~ ,"-'- CIVIL ACTION - LAW ERIE INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs Dwight W. and Rita M. Gochenaur are husband and wife residing atl362 Indian Peg Rd., Boiling Springs, Pennsylvania. 2. Defendant Erie Insurance Group ["hereinafter Erie"] is an insurance company that sells auto, property and casualty insurance to individuals and corporations throughout Pennsylvania. Erie's has place of business at 4901 Louise Drive, Mechanicsburg, Cumberland County, Permsylvania. 3. On or about December 8, 2004, Plaintiffs' wood stove chimney, more specifically the 7" x 13" terra catta flue lining, was damaged as a result of a chimney fire. 4. At the time the damage occurred to the chimney flue, Plaintiffs were insured under a homeowner's policy ["the policy"] with Erie, policy number Q56 1003208 H. A copy of the policy is attached hereto as Exhibit "A." 5. Pursuant to the coverages and protections provided in the policy, Plaintiffs made a claim with Erie for the damages caused by the fire. 6. Defendant requested Commonwealth Chimney Sweeps Chimney and Air Duct Cleaning (hereinafter "Commonwealth Chimney) to prepare an estimate for the repair of Plaintiffs' chimney flue. 7. On December 14, 2004, a representative from Commonwealth Chimney prepared an estimate to remove the damaged 7" x 13" terra catta flue lining and replace it with a 6" stainless steel lining and vermiculite insulation. A true and correct copy of the repair estimate showing the cost of repair as $1,945 is attached hereto as Exhibit "B." 8. At the time Commonwealth Chimney prepared the estimate, Plaintiffs relayed their concern to Commonwealth Chimney and to Defendant that the 6" replacement flue was too small to properly vent smoke trom the wood stove to the outside. Additionally, Plaintiffs requested the proposed vermiculite lining be upgraded to F1exwrap insulation for which Plaintiffs offered to pay the difference in price. 9. Despite Plaintiffs' repeated requests for a larger chimney flue, Defendant only offered to pay for the 6" stainless steel flue and vermiculite lining. 10. Instead of using Commonwealth Chimney, Plaintiffs requestedAES Hearthplace, Inc. (hereinafter "AES") to install the 6" stainless steel flue and vermiculite lining. 11. In January 2005, AES installed the 6" stainless steel chimney flue and Flexwrap lining. 12. lmmediate1y after the installation ofthe 6" stainless steel chimney flue and use ofthe wood stove, Plaintiffs began noticing smoke in their home and contacted AES and Defendant. 13. A representative from AES returned to Plaintiffs' home to identify and attempt to remedy the smoke problem. In an attempt to increase ventilation, AES removed the chimney cap, however, the smoke remained in Plaintiffs' home. 14. Following AES' inspection and attempt to remedy, Plaintiffs stopped using the wood stove and Defendants' agent, Jeffrey Lyrm, inspected the chimney flue by taking photographs and measurements. 15. On March 25, 2005, AES prepared an estimate to remove the 6" round stainless steel lining and Flexwrap insulation and replace it with a 6" x 10" rectangular stainless steel lining and requisite insulation. A true and correct copy of that estimate totaling $2,834.02 is attached hereto as Exhibit "C." 16. Defendant refused to pay the estimate provided by AES or repair Plaintiffs' chimney. 17. On or about April 18, 2005, AES installed and Plaintiffs paid for the aforementioned rectangular flex lining and insulation. 18. Since the installation ofthe larger chimney flue liner, Plaintiffs have not had smoke in their home when using their wood stove. 19. Following the installation of the larger chimney flue, Defendantforwarded payment to Plaintiffs for the difference in price between the 6" flue and the 6" x 10" flue. Defendant, however, refused to pay for the related removal of the smaller flue and the installation of the larger flue; Plaintiffs did not accept that payment. COUNT I BREACH OF CONTRACT 20. The allegations contained in paragraphs 1 through 19 above are incorporated by reference as though fully set forth herein. 21. Defendant, pursuant to the express terms of its policy, had a contractual obligation to reimburse Plaintiff for the repair and/or replacement of the wood stove chimney flue to the pre-fire operating condition. 22. Defendant's refusal to cover Plaintiffs' damages constitutes a material breach of its contractual obligations under the policy. WHEREFORE, Plaintiffs demand judgment in their favor in the amount of $2,834.02 against Defendant Erie, together with interest, costs and all other reliefthat the Court deems just and appropriate. Date: June 27, 2005 Respectfully Submitted, WILLIAMS & OTTO By David R. Galloway 1. D. Number 87326 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs ALGRP !E:"AIE ,;.;' INSURANC:[ """.;..... GROUP ~ 100Efle1nS F'I ~UE Erie, PA 165.30 , . ERIE INSURANCE EXCHANGE HOMEPROTECTOR POLICY ULTRACOVER CONTINUATION NOTICE AA7373 J P WOLFE INSUR INC .' ITEM 1. NAMED INSURED ANQ ADDRESS . 08/10/04 TO 08/10/05 Q56 1003208 H ...;;..rrEMS/O)'f!ERIN)'sBJ;S%t....t.....;........................ .. 1."111".111,, .11."1".11.1".11..1,,.1...11.11....1.1.1,.11 DWIGHT W GOCHENAUR & RITA M GOCHENAUR 1362 INDIAN PEG RD BOILING SPRINGS, PA 17007-9671 AS LISTED BELOW OR ON REVERSE SIDE AGENT - J P WOLFE INSUR INC ***** AGENT PHONE - (717) 737-4981 23B WEST MAIN STREET SHIREMANSTOWN PA 17011 6327 ;OVERAGE BEGINS AND ENDS AT 12.01 AM STANDARD TIME AT THE LOCATION OF THE INSURED PROPERTY. UNTIL TERMINATED, THIS POLICY WILL CONTINUE IN FORCE. .OCATION OF RESIDENCE PREMISES IF OTHER THAN STATED IN ITEM 1 OR IF SPECIFIC DESIGNATION IS NEEDED. ZIP CODE - 17007 MONROE TWP, CUMBE CO 'ROPERTY INFORMATION - PRIMARY RESIDENCE, YEAR OF CONSTRUCTION 1989, ALUMINUM OR PLASTIC SIDING, PROTECTION CLASS C. PROPERTY IS OVER 2000 FEET FROM A FIRE HYDRANT AND WITHIN 5 MILES OF A RESPONDING FIRE DEPARTMENT. .UTOMATIC ADJUSTMENT OF COVERAGE WAS APPLIED. YEARLY INCREASE ON DWLG IS 7%. 'HE AMOUNT OF INSURANCE APPLYING TO THE DWELLING IS THE REPLACEMENT COST .T THE TIME OF THE LOSS. :ECTION I - PROPERTY DWELLING OTHER STRUCTURES PERSONAL PROPERTY LOSS OF USE AMOUNT OF INSURANCE $ 177,000 $ 35,400 $ 132,750 LOSS SUSTAINED NOT TO EXCEED 12 CONSECUTIVE MONTHS :ECTION II - HOME AND FAMILY LIABILITY PROTECTION PERSONAL LIABILITY - EACH OCCURRENCE MEDICAL PAYMENTS TO OTHERS - EACH PERSON PREMIUM CHARGE FOR INCREASED LIABILITY LIMITS FULL TERM PREMIUM FOR THIS RESIDENCE - FULL TERM ADDITIONAL COVERAGE PREMIUM - - - TOTAL PREMIUM FOR THIS POLICY - - - - - - - ,ECTION I DEDUCTIBLE $ 250. .PPLICABLE FORMS - 2005 02/01, HP-PA 02/01, UF8705 06/96*, UF6523 08/98*, UF9013 03/04*, HP-FP 02/03, UF3389 03/04*, UF3380 06/03*, HP-GN 05/04*, UF3411 05/04*, HP-BJ 07/98, HP-AAN 01/97, UF2106 05/01*. PROTECTION $ PREMIUMS 589.00 $ $ 500,000 1,000 $ $ $ $ 20.00 609.00 24.00CI 585.00 Exhibit A PRIMARY RESIDENCE-MORTGAGEE COMMERCE BANK/HBG, NA ISAOTA - ATIMA 100 SENATE AVE CAMP HILL PA 17011-2309 PRIMARY RESIDENCE-2ND MORTGAGEE COMMERCE BANK/HBG, NA ISAOTA - ATIMA 100 SENATE AVE CAMP HILL PA 17011-2309 NO BUSINESS PURSUITS ARE CONDUCTED AT THE PREMISES, EXCEPT AS FOLLOWS - ADDITIONAL COVERAGES PREMIUMS SEWERS OR DRAIN BACKUP COVERAGE - UP TO $5,000 AMOUNT OF INSURANCE - $250 DEDUCTIBLE APPLIES PREMISES ALARM SYSTEM - TYPE 1 $ $ 59.00CI 35.00 Q56 1003208 ~ l~I t"l1 P (1 ~"'(ll.- Commonwealth Chimney Sweeps Chimney and Air Duct Cleaning 6059 Allentown Boulevard' Harrisburg, PA17112 P;.\:d.\-' Nu 1)1 IJ,-l~;I_'" Main ()fficf.~' Harrisbur(l (717) 54HH73 Lancaster (717) 393-6777 Palmyra (717) 838-6699 York 7 17) B52-4488 7Jw~ci/lrt-~( T~ (;oc!i[tJIlUKL STREET /3C-.A //lJIJJI1I1J PtZ:.G- fUJ __ crrYSTATEANDZlP;;~ S ;?4111JG S /A /7dO 7 PHONE 'l:?-J~ be DArE I;;' "Il/- 01_00 C( JOB NAME JOB lOCATION 1Yl~ ME.. ARCHITECT DATE Of PLANS JOB PHONE We hereby subrnit specifications and estimates for: j( E U rv F 0 F . t.(/CJt?I/ ,577J (/ t:: 6l'1 ~3/6~T( IVQT&: . 64 Q(g!-,,Lf:uYLj AI ~l2.HS l'1P S. T t3 E P EM t!J(.) I!:. () I IV 0,;(0 e,..) TV et'Ef2M ("'l~/?~Ce:;,~,f;~?/N ~~"d(/F</1/ ~,!L-r [E /A/St.JCAu d/l/-L.. g~ i?tf,-)~~/;J j~1/<?tfC/l1!tJ/Yc-~ ..t, I/UE&Zp V tJl 0"5 t../EE7~e: y 12~ /f-7c? L /T/cJrr...J,. ALL f}~tjl?C5 f!:,.~ !?C:;vt OJF-tJ E12oY'1 JCl8.5(~~ tILE S;+-lftJ E//(JISI-1- J o!3 w (-r;+ .4L L P/2 0/:>,";: /< E-kff.$;-f- /A/C;5 gA/?)A- f fi:.c? (....)/ f'i( E.. tJ SI ""I,u L-F S;; ::;: T,/E E.- L Jt- / ;'U -l!:~ #' e.1I1"" /{/I";- )'tylTJI- ,r;;t//:>"I'C 'K $"'''''''IU~'#!6'5' s,rw-rc . ~~#'M..A./~:;' 3a;C/(:;;C E/cL S/fl'1fL ---- l)Me Jlrop,,,,,e hereby to furnish material and labor -- complete In accordance With above s~iflcations, for t~e sum of: ~--~~I!J TE EN /I(.)~OR.;Zr:J_4.LY.12 ~TLBpE ~$/7 tf5-: od ___I I Payment to be mau.:;s II''; A-J (Vc;,...,/? L /10 rt/ r---------.---- c: . . - __.~____.______._______.___________u. ---.--- ---.----------- -..--..- ~- ----._--.~_.__.----~_. -... n__.________.____~-------- /.-....--~--.. -, --r- ,~;)thc'i;zed .~ /~ #' -. /' ';"<-"-/ - jL".-r- Slgrl31.urr ._-~ ~C~ _....1 _. ._,,___,~~~'__._."__.____ ilil 1"'.lkr;,)1 ,~ gUJr'ant~ed to be as s.pecilied, All "NtH\< to)]e' 'oIT1f'I'ct,."j in j w<.Jrk'Y'''Jlii"c' rl'i:llll",>"r ..;(.v:;n:ling to standarej practices. .filly altf!(dtioil ell d8','i"t")I\ h':,Hi ".'1","'1>; :'l.jf~r:'lt'(;:;J r,G'~S i"-,,oi'J'nf'; ;'.;\r.:1 '~(lSts will be execut"rj only UPO['I '""uitt"fI .."c."'r'.. -.ll"f.! '''',i'l i]"Cf)II,,, _'1'-, l'''!'''~' '.'_1"'1><" r;'-'_'I-;' -:",.1 'JtJlT~'~ \ne e<;t,m"lte_ ,r.,i\ agrecfI1(,nts cur-ti"e'l,.-.t -II.) , ;I;-!i.-_~:;, le' ,-1,,,:1 ,:;r d;':;;.1/" l-'~'jL-Jlld Ollr '~onlrol_ Owner to Cd(('I hr€., \0,'\"1600, :',n'-\ (J!\-,fr ,,1--:':"", -;;J('; i"",i"-""-'-, i}:;r ,:()'-kc,~-:, _'11-", 1;,11/ r",vered by WOrKlllp.n's CompeW,i1ti'lll 11-"",,:..1'1'.' r"lute: Till'; Plfl!iV::,:li Ill<:iV lJf;~ ''i:tl1':1I'1''; 11 i)/ 11':, If ry,r;:,r,,-:q,tt;r1,'iin-111 ..? ? ~ . >1,:>1;':, ---~_.'----_. .---------. ArcL'pbl\\CI' of lSl"\1pll'5ill - Ii,,,.,.,, I'''' "." """"'" ,,_-Id '",- ',nl,,_:',1'-', Ir~ C:,:lti';\~lctl:;r/ ':'11(1;1' hen:I,>, ",,':-r:r,'J_:C_ -(r,t '"-,,i;',' "c-:-,I"'_'" \,':'.1 P'/f'-''-'' I" 'l::":, Exhibit B APR 10 2005 11:06AM HP LASERJET 3200 p.2 . Hpr 04 05 It:07a Bruc. Bradf'ord 717-496-7310 p.l + I' .MER NAflCl'oIAL ct........ SWEEP GUIlL' AES HEARTH PLACE, INC. BLUE SKY CHIMNEY SERVICE 1743 PINE RD. NEWVILLE, PA 17241 CERTIFIED PROFESSIONAL CHIMNEY TECHNICIANS 486-5030 · 1-877-352-3344 WORK PROPOSAL .,..-......... (('iit.~ 'Z..~ .1.135 SUBMmm TO: Name 1>", I....... r';oUfe<NlHI ('_. Street I ~~. z.. 101 Jl "\ tV ~<." (2.~ Cily.Slale.Zipg~..~t....", <:;.I'''',....6<<?A- I'CO'" Phone ....+~- ;;2.... '" Job Location <;' A-;t\ E- Date 3, t....,;-.",- .108 DESCRIPTICIN: 'r.zo./10.2 /'11.--'- tv'I/f"ie:i'l.l,.t- A-tJt> .....,.46.....1'1... -'-c... r:€l...~,..J.€ ""\H";:: Ci-ll""',J~l.\ '-ii,l-i lo;; t./e";';'I~'';... 'f"j-f€" ~:--i,~1"1!..!ew. ~12e-E.c,;'r4..-.J~)(,.;(,., tuC.,'";bSi-t.'lle JNf't-\ F1'ij!c..n~,..Jc.,,("'€Pl.-i:F'Y- "::;'"("AI."-l~'-:'c;.s ,,~c:,-" -p,pe 'L..t+13"'Z. 'T" \.,..J.t.L...IJ,"::>C: Przllr'tof.."",,...t- ("'.c-:' -r.,~ p-'.x.i......rl...Jc1 '" fit.r.H):-Jn -.:5-r-,.....Jc..t::.,,;.S ;;f~;. L- P, Pt='. J~,...J"O .r-i..~'"i-....; rz.. fh='" '1""''';70\1 ~ I (e,..... iNC:;-r".4 L(..jf. T",rJ ,,~.~ tUrBW ~..'::""I:JA.J.""~I~'--'''?-.,( -::'-(H.IN LP-..t:; c;rE.t=L , \-....JPt'?. LV,-rH- T""~~ t2:~&l.:.Il:2..c.~ (NSc/~ liON \~ 'tf")~ \.'>J'>'-'t.-"'" Li1C.~ ue; ''''In ~C'l-I~$"\,J-E:. '-r"'t..~ iJul!...\L. P~.J4,,;e Il.e,UI1N THIS ?~.i't>('W';It'L- --r...~ I"I','!- D';;"'~l("-';; (,1!i'r"1,.I ,(ou,":". ~'bN,4"TJll.t!.. ,.1.- .,.,...€..?"oTICtt'\ ,..rJ'Do ,-I TY::i'c.~1 C 1.1...1.......'" itl'~'" ....,'r~- '" "'- "$1 I..... I' . c) . .-rr.f,.l- N~ \( (J() i DoN ;2e."""",C-,E'''''--. TERMS Of' PRDPDSAl: Amount$ 2f)~'\'<J"" . Proposal good for -;".' lerm!ofpaymenl GO""!" he......-'OJI' p,.,~tALo.Jt.~€'" IjPllN C.')MP'l'=:~ Authotized sign.ture ----10110\1 i-~ days. Du€ Ail malerlal Is. ljIUaranteed Il) be .. specified. AH lI."'t!-i1c 10 be c~ i" a sub&tantlal workmanllka rnar'1Mt ~Ofdl.ng \0 specJlcatlOns: sWmlled, per atendatd practiceB. AnV - aftQQtian 0' dEnria1Ion Itom abow sptQficI11om: involving hila cD&1$ will be elC8CUtBd only upon writl~ lXde~, and w. tleC::ameo an ta\Ia charge over and abave the ISIlrna". An aoreemenb GOnllnO*nt upon sWIgs. acc1den1$ or dDlays beyond our COl'IItOl. plClperty QM1er 10 cvry tile. 10fftall0 and oltllr I'l&e~ InauranCll. Our wor1cer~ are fully covered by WOf'1(mM'I CompenaaUon Insurance. ACCEPTANCE Of PROPOSAL: The above prices, specifications and conditions: are satisfactory nod are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. Signature Date of acc.eptance WHITE - CUSTOMER YELLOW - tNSUFlANCE PINK - FILE Exhibit C VERIFICATION The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. We have read the document and to the extent that it is based upon information which we have given to our counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. n~ Dwight W. Gochenaur R1~ kff ~ , AlA m . j\11rdL{;\. Rita M. Gochenaur F\FILES\DA TAFILEIGeneralICurrent\9973.7coml , n ...~ c:::, 0 ~.:-;- ~ <:,'1 'J c_ =.1:'_-" > "" r ~ lnfc::, ~ -K 1'-.) ,-,-; -..j i:~' ...... -- V- ........ d " .c ~ , "'- ~ ~ ~'. " .... ~ V- c::: inns DWIGHT W. & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE incorrectly identified as ERIE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of Buzgon Davis Law Offices whose address is 525 South Eighth Street, P.O. Box 49, Lebanon, Pennsylvania 17042-0049, as attorneys for Erie Insurance Company, the Defendant, in the above-captioned case. BUZGON DAVIS LAW OFFICES DATE: July 11,2005 BY: SCOTT 1. RENOBLE, ESQUIRE , Attorne . . #72808 525 South Eighth Street P.O. Box 49 Lebanon, P A 17042-0049 (717) 274-1421 DWIGHT W. & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE incorrectly identified as ERIE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that on July 8, 2005 I mailed for filing, in the Office of the Prothonotary of Cumberland County, the original PRAECIPE FOR ENTRY OF APPEARANCE and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to David R. Galloway, Esquire, 10 East High Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiffs. JA Sworn to and subscribed before me this 8th day O[Jill:, AD'200~ ,M~ " Notary Pub' NWEALTH OF PENNSYLVANIA NoIariaI SeoI _Lee Snader, NoIary PubIlc ClIy 0I1.ebanon. Lellanon Cou1Iy ~ Comrnisaion ExpIres Jan. 3, 2009 M~'",. oElMlIyfv3.nie. Associaflon of Notarle' o (::?~ ,..., "'" '5'. ~~:: t:-~ N o -n -' ::r:::n {11C: '-004 --;JV ()(I..) ~~~~ <_-rn ,~ ~.,.\ 1i ..<. :r' :::1'- C2 t>> -' SHERIFF'S RETURN - REGULAR CASE NO: 2005-03268 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GOCHENAUR DWIGHT W ET AL VS ERIE INSURANCE COMPANY RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ERIE INSURANCE COMPANY the DEFENDANT , at 1107:00 HOURS, on the 30th day of June , 2005 at 4901 LOUISE DRIVE MECHANICSBURG, PA 17055 by handing to STEVE GRANOFF, LITIGATION SPECIALIST, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 18.00 9.62 .37 10.00 .00 37.99 ;~~-=4.t::~.J R. Thomas Kline 07/05/2005 MDW&O me this /2. ~ day of By: ~~-X/ Deputy Sheriff Sworn and Subscribed to before C),~ C1M! A.D. . u-Q~ . Prothonotary .~ DWIGHT W. & RITA M. GOCHENAUR, H1W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE incorrectly identified as ERIE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION The parties to the above-referenced litigation hereby stipulate to correct the identification of Erie Insurance Company to "The Erie Insurance Exchange". DAVID R. GALL 'WAY, SQUIRE SCOTT 1. ~ OBLE, ESQUIRE DWIGHT W. & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm ofBuzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that on July 20, 2005 I mailed for filing, in the Office of the Prothonotary of Cumberland County, the original STIPULATION and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to David R. Galloway, Esquire, 10 East High Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiffs. Sworn to and subscribed before me this 20th day of July, A.D., 2005. COMMONWEA~TH OF PENNSY~VANIA Notarial Seal Amanda Lee ~, Nolary PubIlc City 01 Lebanon, Lebanon Cw1Iy My Commission Expinls Jan. 3, 2009 Member, PeMsylvani6. Association of Notaries 0 ...., 0 = C <::;:) -n ~,., L_ ..-1 -r C<-. ......-,-n ..-- fi1--p;: N '1~~ -n ) :~-~ C) >.:;:1<1 r;? ~.") ~:~ .- :~o .. ~< N i'-_dlbJiti: iii<);'I'i-rk' lnsur:lflo; C(lmrHlIlY\(;~l(h:',nallf\Complnjnt to Join Af-''.;, lkanhplih;c(jO( . i',....liiif it: 1 S ..\i\'l, BUZGON DAVIS LAW OFFICES Scott 1. GrenQble, Esquire Attorney LD. #72808 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Fax: (717) 274-1752 E-Mail: sgrenob1e@buzgondavis.com Attornevs for Defendant DWIGHT W. & RITA M. GOCHENAUR, HIW, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED vs. AES HEARTHPLACE, INC., Additional Defendant COMPLAINT TO JOIN ADDITIONAL DiEFENDANT 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 attorn.:y 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 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 MAYBE 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, PA 17013 Telephone: 800-990-9108 or 717-249-3166 AND NOW, comes the Defendant, by its attorneys, Buzgon Davis Law Offices, and files the within Complaint to Join Additional Defendant, averring as follows: 1. Plaintiffs are Dwight W. and Rita M. Gochenaur, husband and wife, residing at 1362 Indian Peg Road, Boiling Springs, Cumberland County, P(:nnsylvania. 2. Defendant, Erie Insurance Group (incorrectly identified as Erie Insurance Company in Plaintiffs' Complaint), is an insurance company licensed to do business in the Commonwealth of Pennsylvania, which has an address of 4901 Louise Drive, Mechanicsburg, Pennsylvania, 17055-0710. - 2 - 3. Additional Defendant, AES Hearthplace, Inc., is a Pennsylvania business corporation with its principal office located at 1743 Pine Road, Newville, Cumberland County, Pennsylvania, 17241. 4. Plaintiffs initiated this action by filing a ComplE~nt with the Cumberland County Prothonotary's Office on or about June 27, 2005; a true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A". 5. Joining Defendant has filed its Answer and New Matter to Plaintiffs' Complaint; a true and correct copy of said Answer and New Matter is attached hereto as Exhibit "B". 6. Plaintiffs' Complaint asserts a claim for damages arising out of a chimney fire that occurred on or about December 8, 2004, in Plaintiffs' chimney at their residence located at 1362 Indian Peg Road, Boiling Springs, Pennsylvania. 7. Plaintiffs allege that a terra cotta flue lining was damaged as a result of the December 8, 2004, chimney fire. 8. In January 2005, Additional Defendant installed a 6" stainless steel chimney flue and Flexwrap lining. 9. According to the allegations of Plaintiffs' Complaint, immediately after the installation of the 6" stainless steel chimney flue and use of the wood stove, smoke appeared in their home. 10. The design and manufacture of the 6" stainless steel chimney flue and Flexwrap lining as provided to Plaintiffs by Additional Defendant was negligent in that it was improper for use at Plaintiffs' wood stove which is over twenty years old. - 3 - 11. The design, construction and installation of the 6" stainless steel chimney flue by Additional Defendant was negligent and done in an unworkmanlike marmer in that it was not safe for its intended use. 12. Defendant avers that if Plaintiffs sustained any damages as is alleged in their Complaint, then Additional Defendant is alone liable or liable over to Plaintiffs for said damages, any liability of the joining Defendant being hereby expressly denied. 13. Joining Defendant hereby crossclaims against Additional Defendant to protect its right of indemnity and contribution, and in the event that it is judicially determined that joining Defendant is jointly or severally liable to Plaintiff, then Additional Defendant is liable over to joining Defendant, the existence of any liability on the part of the joining Defendant being hereby expressly denied. WHEREFORE, Defendant demands judgment against Additional Defendant, AES Hearthplace, Inc. BUZGON DAVIS LAW OFFICES BY: ~~~. Scott 1. Grenoble(Esquire Attorney l.D. #72808 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Fax: (71 7) 274-1752 E-Mail: sgrenoble@buzgondavis.com Attorneys for Defendant -4 - VERIFICATION I, SCOTT L. GRENOBLE, do hereby verify that I am the attorney for The Erie Insurance Exchange, in the within action. The facts set forth in the foregoing Complaint to Join Additional Defendant are true and correct to the best of my knowledge, information and belief, as conveyed to me by my client. My knowledge in this matter is based entirely on what has been passed to me by my client. I hereby further verify that I am signing this Verification on behalf of my client, pursuant to Rule 1 024( c) of the Pennsylvania Rules of Civil Procedure, because my client is unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. r\ Date: August 16, 2005 SCOTT L. GIyi~N I \~ ,. F'.\FlLES\DATAFlLE~Hl.l\Cmttl'.t\g9n,? .\;Or. Created; 5{31f05 8:0BA~ Revised: 6724/05 3:46PM 99n.1 <?2) (?:::::>) ~ ~ David R. Galloway, Esquire MARTS ON DEARDORFF WILLIAMS & OTTO J.D. Number 87326 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff DWIGHT W. GOCHENAUR & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05- 32&i' CM 0- CIVIL ACTION .. LAW v. ERIE INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED 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 aftc:r 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 Plaintiffs. 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 REDUCE FEE OR NO FEE: Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 fHUE COpy FROM RECORO \1\ l~stlmooy wtlereof, , twre unW S61 my t\l(i' ""'.1 the ~ 01 $ald c~ lit Carilsle' . Pt. r~ .2, ~ ~ ~( EXHIBIT A - ( "f' a ~~~ s. David R. Galloway, Esquire MARTS ON DEARDORFF WILLIAMS & OTTO J.D. Number 87326 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. os- 3.11.9 ~ lu-.. CIVIL ACTION- LAW DWIGHT W. GOCHENAUR & RITA M. GOCHENAUR, H/W, Plaintiffs ERIE INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs Dwight W. and Rita M. Gochenaur are husband and wife residing at 1362 Indian Peg Rd., Boiling Springs, Pennsylvania. 2. Defendant Erie Insurance Group ["hereinafter Erie"] is an insurance company that sells auto, property and casualty insurance to individuals and corporations throughout Pennsylvania. Erie's has place of business at 4901 Louise Drive, Mecharlicsburg, Cumberland County, Pennsylvania. 3. On or about December 8, 2004, Plaintiffs' wood stove chimney, more specifically the 7" x 13" terra catta flue lining, was damaged as a result of a chimney fire. 4. At the time the damage occurred to the chimney flue, Plaintiffs were insured under a homeowner's policy ["the policy"] with Erie, policy number Q56 1003208 H. A copyofthe policy is attached hereto as Exhibit "A." 5. Pursuant to the coverages and protections provided in the policy, Plaintiffs made a claim with Erie for the damages caused by the fire. 6. Defendant requested Commonwealth Chimney Sweeps Chimney and Air Duct Cleaning (hereinafter "Commonwealth Chimney) to prepare an estimate for the repair of Plaintiffs' chimney flue. 7. On December 14, 2004, a representative from Commonwealth Chimney prepared an estimate to remove the damaged 7" x 13" terra catta flue lining and replace it with a 6" stainless steel . lining and vermiculite insulation. A true and correct copy of the repair estimate showing the cost of repair as $1,945 is attached hereto as Exhibit "B." 8. At the time Commonwealth Chimney prepared the estimate, Plaintiffs relayed their concern to Commonwealth Chimney and to Defendant that the 6" replacement flue was too small to properly vent smoke from the wood stove to the outside. Addlitionally, Plaintiffs requested the proposed vermiculite lining be upgraded to Flexwrap insulation for which Plaintiffs offered to pay the difference in price. 9. Despite Plaintiffs' repeated requests for a larger chimney flue, Defendant only offered to pay for the 6" stainless steel flue and vermiculite lining. 10. Instead of using Commonwealth Chimney, Plaintiffs requested AES Hearthplace, Inc. (hereinafter "AES") to install the 6" stainless steel flue and vermiculite lining. 11. In January 2005, AES installed the 6" stainless steel chimney flue and Flexwrap lining. 12. Immediately after the installation ofthe 6" stainless steel chimney flue and use of the wood stove, Plaintiffs began noticing smoke in their home and contacted AES and Defendant. 13. A representative from AES returned to Plaintiffs' home to identify and attempt to remedy the smoke problem. In an attempt to increase ventilation, AES removed the chimney cap, however, the smoke remained in Plaintiffs' home. 14. Following AES' inspection and attempt to remedy, Plaintiffs stopped using the wood stove and Defendants' agent, Jeffrey Lynn, inspected the chimney flue by taking photographs and measurements. 15. On March 25, 2005, AES prepared an estimate to remove the 6" round stainless steel lining and Flexwrap insulation and replace it with a 6" x 10" rectangular stainless steel lining and requisite insulation. A true and correct copy of that estimate totaling $2,834.02 is attached hereto as Exhibit "C." 16. Defendant refused to pay the estimate provided by AES orrepair Plaintiffs' chimney. 17. On or about April 18, 2005, AES installed and Plaintiffs paid for the aforementioned rectangular flex lining and insulation. 18. Since the installation ofthe larger chimney flue liner, Plaintiffs have not had smoke in their home when using their wood stove. 19. Following the installation ofthe larger chimney flue, Defendantforwarded payment to Plaintiffs for the difference in price between the 6" flue and the 6" x 10" flue. Defendant, however, refused to pay for the related removal of the smaller flue and the installation ofthe larger flue; Plaintiffs did not accept that payment. COUNT I BREACH OF CONTRACT 20. The allegations contained in paragraphs 1 through 19 above are incorporated by reference as though fully set forth herein. 21. Defendant, pursuant to the express terms of its polJlcy, had a contractual obligation to reimburse Plaintiff for the repair and/or replacement ofthe wood stove chimney flue to the pre-fire operating condition. 22. Defendant's refusal to cover Plaintiffs' damages constitutes a material breach of its contractual obligations under the policy. WHEREFORE, Plaintiffs demand judgment in their favor in the amount of $2,834.02 against Defendant Erie, together with interest, costs and all other relief that the Court deems just and appropriate. Respectfully Submitted, By Davi R. Galloway I. D. Number 87326 10 East High Street Carlisle, P A 17013 (717) 243-3341 Date: June 27, 2005 Attorneys for Plaintiffs r \jkT\Pkadlngs\I': CindK'naur\,'\nswn!o CnrnplillllLdoc - 7129/0') .IS7 Pl'\'1 BUZGON DAVIS LAW OFFICES Scott L. Grenoble, Esquire Attorney I.D, #72808 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Fax: (717) 274-1752 E-Mail: sgrenoble@buzgondavis.com Attornevs for Defendant DWIGHT W. & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Ys. NO. 05-3268 THE ERIE INSURANCE EXCHANGE, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To Plaintiffs, Dwight M. and Rita M. Gochenaur; You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. DEFENDANT'S ANSWER AND NEW MA TTl~R TO COMPLAINT AND NOW, comes the Defendant, by its attorneys, Buzgon Davis Law Offices, and files this Answer and New Matter to Plaintiffs' Complaint, averring as follows: 1. Admitted upon information and belief. 2. Admitted in part and denied in part. It is admitted that The Erie Insurance Exchange is the appropriate Defendant in this case. It is denied that the Erie Insurance Group has any relationship to this matter. EXHIBIT B 3. Admitted upon information and belief. 4. Admitted in part and denied in part. It is admitted that Plaintiff was insured pursuant to a homeowner's insurance policy. The policy is documented in writing and speaks for itself. The confirmation of the copy of a policy attached as Exhibit A to Plaintiffs' Complaint is pending, 5. Admitted in part and denied in part. It is admittc:d that Plaintiffs made a claim to Erie for said damages. The policy itself is a document in writing and speaks for itself. 6. Admitted. 7. Admitted upon information and belief. 8. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 8, strict proof being demanded at trial. 9. Denied, 10. Admitted upon information and belief. 11. Admitted upon information and belief. 12. Admitted upon information and belief. 13. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 13, strict proof being demanded at trial. 14. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 14, strict proof being demanded at trial. 15. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 15, strict proof being demanded at trial. 16. Admitted. By way of further response, said c:laimed costs were not covered pursuant to the terms and conditions of Plaintiffs' insurance polky, -2- 17. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 17, strict proof being demanded at trial. 18. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 18, strict proof being demanded at trial. 19. Admitted in part and denied in part. It is admitted that Defendant forwarded payment for additional costs associated with the initial claim. It is denied that Plaintiffs are entitled to any further payments under the terms and conditions of the policy. COUNT I - BREACH OF CONTRACT 20. The answers to paragraphs 1 through 19 incorporated herein by reference as if textually set forth at length. 21. Denied. Paragraph 21 sets forth conclusions of law which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 22. Denied. Paragraph 22 sets forth conclusions of law which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiffs' Complaint with prejudice. II, NEW MATTER By way of further answer and defense, Defendant avers the following New Matter in accordance with Pennsylvania RuJe of Civil Procedure 1030: 23. Plaintiffs' claims are not covered under the terms and conditions of the insurance contract. - 3 - 24, Plaintiffs relied upon third parties in reconstructing said chimney and, therefore, Defendant has no responsibility for any negligence attendant thereto. 25. Defendant is entitled to an offset and/or crediil for any and all sums paid to Plaintiffs previously. 26. Plaintiffs' claims are barred in whole or in part by the doctrine of spoliation of evidence. 27. Plaintiffs have failed to state a cause of action upon which relief can be granted. 28, The damages allegedly sustained by Plaintiffs were not proximately caused by Defendant. 29. The negligent acts or omissions of other individuals or entities may have constituted superseding causes of the damages alleged to have been sustained by Plaintiffs. 30. Plaintiffs' policy of insurance does not provide coverage for defective workmanship. 31. Plaintiffs' damages were caused in whole or in part by their continued use of a defective and/or obsolete wood stove. 32. Plaintiffs' claims are barred in whole or in part by the terms and conditions of Plaintiffs' policy, which include, but are not limited to, the (:xclusion for damages or losses arising from defective construction. 33. The damages allegedly sustained by Plaintiffs were caused by Plaintiffs' own negligence, carelessness and recklessness, 34. Plaintiffs' claims are barred in whole or in part by their failure to mitigate their damages, -4- 35. Plaintiffs' insurance policy does not provide coverage for losses caused by defective workmanship and/or wear and tear. 36, Plaintiffs' claims are barred by the affirmative defenses identified in Pennsylvania Rule of Civil Procedure 1030, including but not limited to (a) waiver; (b) estoppel; (c) statute of limitations; (d) laches; ( e) illegality; (f) release; (g) impossibility of performance; (h) fraud; (i) assumption of risk; and CD payment. 37. Defendant is entitled to various credits and/or offsets for payments which have already been made to Plaintiffs. 38. Any claim or request in this action for damages for delay pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure is in contravention to and barred by the United States and Pennsylvania Constitutions because: (a) the rule exceeds tlle rule-making authority granted to the judiciary by the Pennsylvania Constitution; (b) the rule violates the equal protection clauses of the United States and Pennsylvania Constitutions; (c) the rule violates the standards of due process guaranteed by the United States and Pennsylvania Constitutions; and (d) the rule violates the excessive fines clause of the United States Constitution, WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiffs' Complaint with prejudice, BUZGON DAVIS LAW OFFICES BY: Scott L. Greno e quire-Attorney I.D, #'72808 525 South Eighth treet Post Office Box 49 Lebanon, PA 17042-0049 (717) 274-1421 Fax: (717) 274-1752 E-Mail: sgrenoble@buzgondavis.com Attorneys for Defendant -5- VERIFICATION I, SCOTT L. GRENOBLE, do hereby verify that 1 am the attorney for The Erie Insurance Exchange, in the within action. The facts set forth in the foregoing Defendant's Answer and New Matter to Complaint are true: and correct to the best of my knowledge, information and belief, as conveyed to me by my client. My knowledge in this matter is based entirely on what has been passed to me by my client. I hereby further verify that I am signing this Verification on behalf of my clic:nt, pursuant to Rule 1 024( c) of the Pennsylvania Rules of Civil Procedure, because my client is unavailable to timely file this Verification within the time allowed for filing a pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. Date: August 16, 2005 DWIGHT W. & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE incorrectly identified as ERIE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVIC]~ COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) 1, Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that on August 16, 2005 I mailed for filing, in the Office of the Prothonotary of Cumberland County, the original DEFENDANT'S ANSWER AND NEW MATTER TO COMPLAINT and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to David R. Galloway, Esquire, 10 East High Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiffs. Sworn to and subscribed before me this 16th day M~j~~r Notary Publi COMMONWEALTH OF PENNSYLVANIA Notarial Seal Amanda Lee Snader, Nolluy Public City 01 Lebanon, Lebenon County My Commission Exp!"", Jan. 3, 2009 Member, Pennsylvania Association of Notaries DWIGHT W. & RITA M, GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE incorrectly identified as ERIE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that on August 16, 2005 I mailed for filing, in the Office of the Prothonotary of Cumberland County, the original COMPLAINT TO JOIN ADDITIONAL DEFENDANT and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to David R, Galloway, Esquire, 10 East High Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiffs. J Sworn to and subscribed before me this 16th day of August, A.D., 2005. tJh,~rdc;-- Notary Pubic . COMMONWEALTH OF PENNSYLVANIA NoIariaI Seal Amanda Lee Snader, Nclaly PuIlIic CIty 01 Labanon, LebanJl1 County My Commission Expires .Ian. 3, 2009 Member, PennsylvanIa Associ:ition of Notaries -:'1"' ., n ( - () 0'=1 --~ r-> ~3 ,;;,J"t :r- ,,- 6=) <:fi --I :r: fl1E -,"Il.!' :f)Ci:J (-~C). ::1' =tl S~(/ ~"'c<n" Q --( ~ ~Q -' -0 :;l.: r:-? cf1 0-' j H;.cPkazlllH,',<X, Ci\lclK'IWur\;\llii\h'l' tn,ComplainLdoc H '1;:~9/oS ,1::>7 I'M BUZGON DAVIS LAW OFFICES Scott L. Grenoble, Esquire Attorney I.D. #72808 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Fax: (717) 274-1752 E-Mail: sgrenoble@buzgondavis.com Attorneys for Defendant DWIGHT W. & RITA M, GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 05-3268 THE ERIE INSURANCE EXCHANGE, Defendant CIVIL ACTION - LAW JURY TR1~L DEMANDED NOTICE TO PLEAD To Plaintiffs, Dwight M. and Rita M. Gochenaur: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you, DEFENDANT'S ANSWER AND NEW MATTER TO COMPLAINT AND NOW, comes the Defendant, by its attorneys, Buzgon Davis Law Offices, and files this Answer and New Matter to Plaintiffs' Complaint, averring as follows: 1. Admitted upon information and belief. 2. Admitted in part and denied in part. It is admitted that The Erie Insurance Exchange is the appropriate Defendant in this case. It is deni(:d that the Erie Insurance Group has any relationship to this matter. 3. Admitted upon information and belief. 4. Admitted in part and denied in part. It is admitted that Plaintiff was insured pursuant to a homeowner's insurance policy, The policy is documented in writing and speaks for itself. The confirmation of the copy of a policy attached as Exhibit A to Plaintiffs' Complaint is pending. 5. Admitted in part and denied in part. It is admitted that Plaintiffs made a claim to Erie for said damages, The policy itself is a document in writing and speaks for itself. 6. Admitted, 7. Admitted upon information and belief. 8, Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 8, strict proof being demanded at trial, 9. Denied. 10. Admitted upon information and belief. 11. Admitted upon information and belief, 12. Admitted upon information and belief. 13. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 13, strict proof being demanded at trial. 14. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 14, strict proof being demanded at trial. 15. Denied, After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 15, strict proof being demanded at trial. 16. Admitted. By way of further response, said e1aimed costs were not covered pursuant to the terms and conditions of Plaintiffs' insurance policy. -2- 17. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 17, strict proof being demanded at trial. 18. Denied. After reasonable investigation, Defendant is without sufficient information to respond to averments of paragraph 18, strict proof being demanded at trial. 19. Admitted in part and denied in part. It is admitted that Defendant forwarded payment for additional costs associated with the initial claim, It is denied that Plaintiffs are entitled to any further payments under the terms and conditions of the policy, COUNT I - BREACH OF CONTRACT 20. The answers to paragraphs 1 through 19 incorporated herein by reference as if textually set forth at length. 21. Denied. Paragraph 21 sets forth conclusions of law which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. 22. Denied, Paragraph 22 sets forth conclusions: of law which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiffs' Complaint with prejudice. II. NEW MATTER By way of further answer and defense, Defendant avers the following New Matter in accordance with Pennsylvania Rule of Civil Procedure 1030: 23. Plaintiffs' claims are not covered under the terms and conditions of the insurance contract. - 3 - 24. Plaintiffs relied upon third parties in reconstructing said chimney and, therefore, Defendant has no responsibility for any negligence attendant thereto. 25. Defendant is entitled to an offset and/or credit for any and all sums paid to Plaintiffs previously. 26. Plaintiffs' claims are barred in whole or in part by the doctrine of spoliation of evidence. 27. Plaintiffs have failed to state a cause of action upon which relief can be granted, 28. The damages allegedly sustained by Plaintiffs were not proximately caused by Defendant. 29. The negligent acts or omissions of other individuals or entities may have constituted superseding causes of the damages alleged to have been sustained by Plaintiffs. 30. Plaintiffs' policy of insurance does not provide coverage for defective workmanship. 31. Plaintiffs' damages were caused in whole or in part by their continued use of a defective and/or obsolete wood stove, 32. Plaintiffs' claims are barred in whole or in part by the terms and conditions of Plaintiffs' policy, which include, but are not limited to, the ,~xc1usion for damages or losses arising from defective construction. 33. The damages allegedly sustained by Plaintiffs were caused by Plaintiffs' own negligence, carelessness and recklessness. 34. Plaintiffs' claims are barred in whole or in part by their failure to mitigate their damages. -4- 35. Plaintiffs' insurance policy does not provide coverage for losses caused by defective workmanship and/or wear and tear. 36. Plaintiffs' claims are barred by the affirmative defenses identified in Pennsylvania Rule of Civil Procedure 1030, including but not limited to (a) waiver; (b) estoppel; (c) statute of limitations; (d) laches; (e) illegality; (f) release; (g) impossibility of performance; (h) fraud; (i) assumption of risk; and G) payment. 37. Defendant is entitled to various credits and/or offsets for payments which have already been made to Plaintiffs. 38. Any claim or request in this action for damages for delay pursuant to Rille 238 of the Pennsylvania Rules of Civil Procedure is in contravention to and barred by the United States and Pennsylvania Constitutions because: (a) the rule exceeds the rule-making authority granted to the judiciary by the Pennsylvania Constitution; (b) the rule violates the equal protection clauses of the United States and Pennsylvania Constitutions; ( c) the rule violates the standards of due process guaranteed by the United States and Pennsylvania Constitutions; and (d) the rule violates the excessive fines clause of the United States Constitution. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiffs' Complaint with prejudice. BUZGON DAVIS LAW OFFICES Scott L. Greno quire-Attorney J.D. #72808 525 South Eighth treet Post Office Box 49 Lebanon, PA 17042-0049 (717) 274-1421 Fax: (717) 274-1752 E-Mail: sgrenoble@buzgondavis.com Attorneys for Defendant BY: - 5 - VERIFICATION I, SCOTT L. GRENOBLE, do hereby verify that I am the attorney for The Erie Insurance Exchange, in the within action. The facts set forth in the foregoing Defendant's Answer and New Matter to Complaint are true and correct to the best of my knowledge, information and belief, as conveyed to me by my client. My knowledge in this matter is based entirely on what has been passed to me by my client. I hereby further verify that I am signing this Verification on behalf of my client, pursuant to Rule 1024(c) of the Pennsylvania Rules of Civil Procedure, because my dient is unavailable to timely file this Verification within the time allowed for filing a pkading, I understand that false statements herein are made subject to the penalties of 18 Pa.C.S, S4904 relating to unsworn falsification to authorities. Date: August 16, 2005 .// ~ SCO DWIGHT W. & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO, 05-3268 THE ERIE INSURANCE EXCHANGE incorrectly identified as ERIE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) 1, Janelle K. Worcester, an employee of the law finn of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that on August 16, 2005 I mailed for filing, in the Office of the Prothonotary of Cumberland County, the original DEFENDANT'S ANSWER AND NEW MATTER TO COMPLAINT and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to David R. Galloway, Esquire, 10 East High Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiffs. Sworn to and subscribed before me this 16th day of A"g~', AD, :J Ie/.; h. .J.. 0. Or Chf~;~~* l COMMONWEALTH OF PENNSYLVANIA Notarial5eal Amanda Lee Snader. NoI<"Y PubI'lC City Of Lebanon. Lebenon County My CommISSIOn Expires Jan 3. 2009 Member, Pennsylvania Association of Notaries C2 ~:".~ i; '. ...., c.;) = en ""' C:: GO) ~ :r:!] nlhi =Ba {:)(~) ..J ~T, -L..,., (::)-~ ::~fn '2. "" '0 :< - - -0 ;JI: 1;;> en 0' DWIGHT W. & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA YS. NO. 05-3268 THE ERIE INSURANCE EXCHANGE incorrectly identified as ERIE INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that on August 16, 2005 I mailed the original and one copy of INTERROGATORIES and REQUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT DIRECTED TO PLAINTIFF by First Class mail, in a postpaid envelope, to David R. Galloway, Esquire, 10 East High Street, Carlisle, Pennsylvania 17013, Attorney for Plaintiffs. JA Sworn to and subscribed before me this 16th day of August, A.D., 200 . COMMONWEALTH OF PI:NNSYLVANIA Notarial Seal Amanda lae Snader, NoIaIy Public City Of Lebanoo, Lebanon County My Commission Expires Jan. 3. 2009 Member, Pennsylvania Association of Notaries 0 ...., 0 = ,::; = -n cr' -cri:"-:: :r... :J:! n-'~l-' c::: n,:n tf; ;,;- G-' :grn -l :)0 ~~~ ; 02- .---l~l -u :.1: .or; , ::::;1: 0- :P~ -~~ .,-( r:-? S ~ (.[1 :iJ 0'> -< F: \FILES\DA T AFILE\General\Current\9973_7 .reply I/tdc: Created: 5/31/05 8:08AM Revised: 8/23/05 10:37AM 9973_7 David R Galloway, Esquire MARTS ON DEARDORFF WILLIAMS & OTTO J.D. Number 87326 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff DWIGHT W. GOCHENAUR & RITA M. GOCHENAUR, H/W, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-3268 CIVIL ACTION - LAW ERIE INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S NEW MATTER 23. Denied. To the contrary, Defendant had an obligation to replace the terra cotta flue lining with a similar size and quality lining. 24. Denied. To the contrary, Defendant only authorized a six inch lining to be installed. 25-29. Denied. The averments of Paragraphs 25 - 29 constitute conclusions oflaw to which no responsive pleading is required by Pa. RC. p, 1029. To the extent a response is deemed required, said averments are denied and strict proof thereof is demanded at trial. 30. Denied. To the contrary, Defendant had an obligation to replace the terra cotta flue lining with a similar size and quality lining. 31. Denied. To the contrary, Plaintiffs wood stove was neither defective nor obsolete. 32-34. Denied. The averments of Paragraph 32 -34 constitute conclusions oflaw to which no responsive pleading is required by Pa. RC. P. 1029. To the extent a response is deemed required, said averments are denied and strict proof thereof is demanded at trial. 35. Denied. To the contrary, Defendant had an obligation to replace the terra cotta flue lining with a similar size and quality lining. 36-38. Denied, The averments of Paragraph 36-38 constitute conclusions oflaw to which no responsive pleading is required by Pa. R.C. P. 1029. To the extent a response is deemed required, said averments are denied and strict proof thereof is demanded at trial. Respectfully Submitted, Date: Attorneys for Plaintiffs VERIFICATION The foregoing Reply to Defendant's New Matter is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. We have read the document and to the extent that it is based upon information which we have given to our counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. ~ 12dn1r\ )~ Rita M. Gochenaur F:\FILES\DAT AFILE\GeneraIICurrent\9973.7.replyl ~ECF\,\ /l.\.\b ,?, \ v F \FlLES\DA T AFILEIFORMSICERTIFICate TDE Created', 91l10S [Q:48AM Revised: 9/1105 IO:48AM CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Plaintiffs' Reply to Defendant's New Matter was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Scott L. Grenoble, Esquire BUZGON DAVIS 525 South Eighth Street P.O. Box 49 Lebanon, P A 17042 MARTS ON DEARDORFF WILLIAMS & OTTO ~. J~4 cia D. Eckenroad . en East High Street Carlisle, P A 17013 (717) 243-3341 Dated: September 1, 2005 0 ....' 0 c:;:, C c:::> ,.on "-" .-\ ('" -:L"ll r" {l1p --0 rr. I C) f'J CJ .....", :.r.:. .~'~ c: ,-> 11' c:? -:,{ - .=-i <.J1 ~ -< (,..r; ...~ SHERIFF'S RETURN - REGULAR CASE NO: 2005-03268 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GOCHENAUR DWIGHT W ET AL VS ERIE INSURANCE COMPANY SHARON LANTZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT JOINING ADDL was served upon AES HEARTHPLACE INC the ADD'TL DEFEND. , at 1847:00 HOURS, on the 31st day of August 2005 at 1743 PINE ROAD NEWVILLE, PA 17241 by handing to RICK SOCCIO, PRESIDENT a true and attested copy of COMPLAINT JOINING ADDL together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 18.00 9.60 .37 10.00 .00 37.97 :r}~~.6(~ . . R. Thomas Kline 09/01/2005 BUZGON DAVIS day of Sworn and Subscribed to before By: F\FILES\DA T AFILE\GeneralICurrent\9973. 7pral \rnas Created 03107/000948:31 AM Revised: 0110610603:5738 PM 99737 J George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiffs DWIGHT W. GOCHENAUR & RITA M. GOCHENAUR, H/W, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-3268 CIVIL ACTION - LAW ERIE INSURANCE COMPANY, Defendant, v. AES HEARTHPLACE, INC., Additional Defendant. JURY TRIAL DEMANDED PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark the above-referenced matter as settled, discontinued and ended. MARTSON DEARDORFF WILLIAMS & OTTO ~-, By George er, Jr., Esquire MARTSON DEARDORFF W J.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiffs Date: January 9, 2006 I ~ CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for MARTS ON DEARDORFF WILLIAMS & OTTO, hereby certify that a copy ofthe foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Scott L. Grenoble, Esquire BUZGON DAVIS 525 South Eighth Street P.O. Box 49 Lebanon, P A 17042 AES Hearthplace, Inc. c/o Ms. Mary C. Hartless Mid-Continent Insurance Co. 124 N. Center Avenue P.O. Box 632 Somerset, PA 15501-0632 MARTS ON DEARDORFF WILLIAMS & OTTO Bylr\w~ Q !, Melissa A. Scholly 10 East High Street Carlisle, P A 17013 (717) 243-3341 Dated: January 9,2006 C) -;1 ..-\ c........ -T.--::"1. -;\1 -:...~ c.-."' L')