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Home My WebLink About05-4527 LAW OFFICES FRANCIS R GARTNER & ASSOCIATES BY: PATRICKJ. MORAN, ESQUIRE ATTORNEY ID. NO. 61580 UNION MEETING, III, SUITE 215 960-B HARVEST DRIVE BLUE BELL, PA 19422 (215) 619-4322 Attorney for Plaintiffs TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, alslo DONECKERS, INC. 1105 Berkshire Boulevard Wyomissing, PA 19610 COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. OS - I-IS.G7 c-,uJT82.kr1 v. HEARTH & HOME TECHNOLOGIES, INC. and dlbla FIRESIDE HEARTH & HOMES 3640 Concord Road York, PA 17402 and HOWARD HALDEMAN, d/bla HALDEMAN CHIMNEY SWEEP 2577 Banbridge Road Bainbridge, PA 17502 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. AVISO Le han demandado a usted en la corte. Si used quiere defenderse de estas demandas expuestas en las paginas siquientes, used tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita 0 en persona 0 con un abogado y entregar a la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea avisado qui si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previa aviso 0 notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTS. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA 0 LLAMEPOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITAABAJO PARA AVERIGUAR DONDE SE PURDE CONSEQUIR. LAWYER REFERRAL SERVICE, Cumberland County Bar Association 2 E. Liberty Avenue Carlisle, PA 717-249-3166 LAW OFFICES FRANCIS R. GARTNER & ASSOCIATES BY: PATRICKJ. MORAN, ESQUIRE ATTORNEY ID. NO. 61580 UNION MEETING, III, SUITE 215 960-B HARVEST DRIVE BLUE BELL, PA 19422 (215) 619-4322 Attorney for Plaintiffs TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, a/s/o DONECKERS, INC. 1105 Berkshire Boulevard Wyomissing, PA 19610 COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. Of; - 45';),7 C/U~L T 'Cfl..~ v. HEARTH & HOME TECHNOLOGIES, INC. and d/b/a FIRESIDE HEARTH & HOMES 3640 Concord Road York, PA 17402 and HOWARD HALDEMAN, dlbla HALDEMAN CHIMNEY SWEEP 2577 Banbridge Road Bainbridge, PA 17502 CIVIL ACTION COMPLAINT Plaintiffs, Travelers Property Casualty Company of America, as subrogee of Doneckers, Inc., by and through their counsel, herein makes this Complaint against defendants and state as follows: 1. Plaintiff, Travelers Property Casualty Company of America, is a Connecticut corporation engaged in the insurance business and transacts business in the Commonwealth of Pennsylvania at 1105 Berkshire Boulevard, Wyomissing, Pennsylvania 19610. 2. Plaintiff, Doneckers, Inc. is a Pennsylvania corporation, which is authorized to conduct business in the Commonwealth of Pennsylvania and has a principal place of business located at 409 N. State Street, Ephrata, Pennsylvania 17522. 3. Defendant Hearth & Home Technologies, Inc., d/b/a Fireside Hearth & Homes (hereinafter "Hearth & Homes") upon information and belief, is a Pennsylvania corporation, which is authorized to conduct business in the Commonwealth of Pennsylvania and has a principal place of business located at 3640 Concord Road, York, Pennsylvania 17402. 4. Defendant, Howard Haldeman, upon information and belief is an adult individual who conducts business as Haldeman Chimney Sweep with a principal place of business located at 2577 Banbridge Road, Bainbridge, Pennsylvania 17502. 5. At all times relevant hereto, plaintiff Doneckers was in the furniture business and had furnished a model home located at 1735 Eliza Way, Mechanicsburg, Pennsylvania. 6. At all times relevant hereto, defendant Hearth & Home Technologies, Inc. (hereinafter "Hearth & Home") was in the business of, among other things, installing chimneys. 7. At all times relevant hereto, defendant, Howard Haldeman, d/b/a Haldeman Chimney Sweep (hereinafter "Haldeman") was in the business of, among other things, installing Heat-N-Glo fireplaces. 2 8. Sometime prior to October 1, 2004, defendant Hearth & Home installed a chimney in the model home located at 1735 Eliza Way, Mechanicsburg, Pennsylvania. 9. Sometime prior to October 1, 2004, defendant Haldeman installed a Heat-N-Glo fireplace in the model home located at 1735 Eliza Way, Mechanicsburg, Pennsylvania. 10. On or about October 1, 2004, a fire occurred at the model home located at 1735 Eliza Way, Mechanicsburg, Pennsylvania. 11. At all times relevant here, plaintiff Travelers Property Casualty Company of America (hereinafter 'Travelers") insured Doneckers, Inc. 12. As a result of the acts and/or omissions of defendant Hearth & Home, as more fully set forth below, plaintiff Travelers, was required, pursuant to the terms of the applicable insurance policy, to pay Doneckers, Inc. for damages they sustained as a result of the fire which occurred on October 1, 2004. COUNT I - NEGLIGENCE PLAINTIFFS v. DEFENDANT. HEARTH & HOME TECHNOLOGIES. INC. 13. Plaintiffs incorporate by reference paragraphs 1 through 10 above as though fully set forth at length herein. 14. The carelessness, recklessness and negligence of defendant Hearth & Home, by and through its agents, servants, workmen and/or employees, consisted, inter alia, as follows: (a) creating a dangerous and/or hazardous condition; (b) allowing a dangerous and/or hazardous condition to exist; 3 (c) failing to properly install the chimney; (d) failing to properly install the flue pipe and assembly servicing the living room fireplace; (e) failing to utilize the proper connection details; (f) failing to properly inspect the chimney; (g) failing to discover the dangerous conditions of the chimney, and (h) failing to warn of the dangerous and hazardous condition of the chimney; (i) installing a cylindrical metal sleeve slip connector around the flue pipe in contradiction of the manufacturers literature and guidelines; and (j) failing to discover an installation defect where a gap clearly existed between the flue pipes where the metal sleeve connector once existed. 15. As a direct and proximate result of the carelessness, recklessness and negligence of defendant, Hearth & Home Technologies, by and through its agents, servants, workmen and/or employees, plaintiff suffered substantial damages to its property. 16. As a result of the carelessness, recklessness and negligence of defendant, Hearth & Home, plaintiff Doneckers suffered substantial property damage to its furniture in an amount of $100,353.11. 4 17. As a result of the acts and/or omissions of defendant, Hearth & Homes, by and through its agents, servants, workmen and/or employees, plaintiff Travelers, was required, pursuant to the terms of the applicable insurance policy to pay Doneckers $100,353.11 for damages to its property. WHEREFORE, plaintiff, Travelers, as subrogee of Doneckers, Inc., demands judgment against defendant Hearth & Homes in the amount of $100,353.11 plus interest and costs. COUNT II - NEGLIGENCE PLAINTIFFS v. DEFENDANT. HOWARD HALDEMAN. d/b/a HALDEMAN CHIMNEY SWEEP 18. Plaintiffs incorporate by reference paragraphs 1 through 17above as though fully set forth at length herein. 19 The carelessness, recklessness and negligence of defendant Haldeman by and through its agents, servants, workmen and/or employees, consisted, inter alia, as follows: (a) creating a dangerous and/or hazardous condition; (b) allowing a dangerous and/or hazardous condition to exist; (c) failing to properly install the Heat-N-Glo fireplace; (d) failing to properly install the flue pipe and connection details; (f) failing to discover the dangerous conditions of the fireplace, and (g) failing to warn of the dangerous and hazardous condition of the fireplace. 5 20. As a direct and proximate result of the carelessness, recklessness and negligence of defendant, Haldeman, by and through its agents, servants, workmen and/or employees, plaintiff suffered substantial damages to its property. 21. As a result of the carelessness, recklessness and negligence of defendant, Haldeman, plaintiff Doneckers suffered substantial property damage to its furniture in an amount of$100,353.11. 17. As a result of the acts and/or omissions of defendant, Haldeman, by and through its agents, servants, workmen and/or employees, plaintiff Travelers, was required, pursuant to the terms of the applicable insurance policy to pay Doneckers $100,353.11 for damages to its property. WHEREFORE, plaintiff, Travelers, as subrogee of Doneckers, Inc., demands judgment against defendant Haldeman in the amount of $100,353.11 plus interest and costs. FRANCIS R. GARTNER & ASSOCIATES BY: w_ ORAN, ESQUIRE Date: 8/26/05 6 ~UG 29 2005 10:43 FR TO 912155194370 P.02/C2 V E R I Fie AT ION I, Stephanie Indra, hereby depose and state that am a ~6f'7Jr-I-,;"" /<rJ....:tJ,V..I./;,.,(Jj of Travelers Property Casualty Company of America the within named Plaintiff, and that I am authorized to take this Verification on its behalf, and that the facts set forth in the foregoing Complaint are true and correct, to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: f -,.2 9-0) 014135/075 ** TOTAL PAGE.02 ** ")l::) 0 <<l. n ...., ~ c::t ~ U'1 '..~ (.......1 UI cr~ ,.. -~) - ...... () ~ ~ Q "\} -,-.> ~ ~ ~ G) f3 U( ::::, en ..-:;...,. ~;c ~ CJ .< ----.z SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-04527 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TRAVELERS PROPERTY CASUALTY CO VS HEARTH & HOME TECHNOLOGIES ETA R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HEARTH & HOMES TECHNOLOGIES INC DBA FIRESIDE HEARTH & HOME but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On October 4th , 2005 , this office was in receipt of the attached return from YORK , Sheriff's Costs: Docketing Out of County Surcharge Dep York County Postage 18.00 9.00 10.00 28.82 1. 10 66.92 10/04/2005 FRANCIS GARTNER So answe~ ~, , _.~:::~~- /P::;~~ ~~_/----- R. Thomas Kline Sheriff of Cumberland County ~. & ASSOCIATES Sworn and subscribed to before this ~ day of (i1t..~ ,;LlJC)(( A. D. ~ {Z~'arYI me SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2005-04527 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TRAVELERS PROPERTY CASUALTY CO VS HEARTH & HOME TECHNOLOGIES ETA R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: HALDEMAN HOWARD DBA HALDEMAN CHIMNEY SWEEP but was unable to locate Him In his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within COMPLAINT & NOTICE On October 4th , 2005 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing Out of County Surcharge Dep Lancaster Co 6.00 9.00 10.00 55.90 .00 80.90 10/04/2005 FRANCIS GARTNER So answers,? . .. ,,;f?'"\<~"'" / ".. -<l;-~~ "~:.;;~:""......'- R. Thomas Kline ( Sheriff of Cumberland County 7 & ASSOCIATES Sworn and subscribed to before me this ~ day of _@v-+-l~1/'L ,2 (jOO A~ at o~ tary 9/1? COUNTY OF YORK OFFICE OF THE SHERIFF SERVICE CALL (717) 771-9601 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN ~T.tONS ~1iE~""""""'1 tfIRl,f 12 _.'1'_.....ANY.....O~ , PlAINTIFF/S/ 2 COURT NUMBER Travelers Property Casualty Canpany of America 4 TY';E4c?F2k,f~~'t.tMPLAINT Notice & Complain~ - Hearth & Hare Technologies Ine d/b/a Fireside Hea th & Hanes . 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION. ETG TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED. ATTACHED. OR SOLD Hearth. & Hone Technologies Ine d/b/a Fireside Hearth & Hanes 6 ADDRESS (STREET OR RFO WITH BOX NUMBER. APT NO.. CITY. BORD. TV\IP, STATE AND ZIP CODE) 3640 Concord Road York, FA 17402 7 INDICATE SERVICE a PERSONAL Q PERSON IN CHARGE AI DEPUTIZE I..) CERr. MAll (liST CLASS MAIL U POSTED !..J OTHER Sept 6 ,20~ I, SHERIFF o'fWr\~ :e\5tJNTY. PA, do hereby deputize the sheriff of York COUNTY to execute thO ke return th . cording to Jaw. This deputization being made at the request and risk of the plaintiff. ""~~ SHERIFF F 3 DEFENDANT/51 SERVE .. AT { NOW 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT 'Anll ASSIST IN EXPEDITING SERVICE Please nail of service to CUnberland County Sheriff. EtV.:t {)f. r Olli'~ '\lt~J Thank you. TION: N.B. AIVER OF WATCHMAN. Any deputy sheriff Iel/Ying upon or attaching any property under within wnt may leave same without a wiSlChman. in custody of whomever is nd in possession, after notifying person of levy Of attaChment. wtthout liability on the part of such deputy 0( the sheriff 10 any plaintiff herein for any loss. desltUdion. or removal of any property before sheriffS sale thereof ' 9. TYPE NAME and. ADDRESS at ATTORNEY I ORIGINATOR and SIGNATURE A .c!< "lorClYJ U'\,-' ,U..4l~ ' J Sk.2J 5 1;. ((..It. oUr. 6 I'9'fJd. 12. SEND NOTICE F SERVICE COpy TO NAME AND ADDRESS BEl. W (This area must be completed if notice is to be mailed) L( y,^-\;){( (onJ 0). SJ\Q(rFf- $PAce:8Q.OW,o.tO$E(lF nE$lito:l:~ - DO NOt WRnlBaOW "M$ UNE 13. I acknowledge receipt oflhe wril I' 14. DATE RECeIVED c:- ar complaint as indicated above. '\.., \.Q VL \ _ 1- Cb ... HOW SERVED PERSONAl ( RESIDENCE ( ) POSTED ( ) SHERIFF'S OFFICE ( ) OTHER ( ) 10. TELEPHONE NUMBER /5 .-? /7'-13<-<.. 11 DATE FILeD C -OS SEe REMARKS BELOW 17. 1. 22. REMARKS: ~ ~ '\ 4'. AFFIRMED and subsCribed to before 42.dayof S~'PT .2oID3 "IS~~ , Oi"j{~ NOTARY COMMON1M'AlTH OF PENNSYlVANIA NOTARIAl SEAl lISAL BOVVMAN NnTARVPI.AIII' 44. Signature of Dep Sheri" 46. Sigoatul'eofYonr; County Sheriff \JILLIMl SHEHIFF 9/20/05 49 DATE 48. Signature of Foreign C":nl.ntv C;;ho:ot'iff 1 ~ 3440 - - ---. ~-~_.~- vI f~3 SHERIFF'S OFFICE 3: H (J) () SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 50 NORTH DUKE STREET. P.O. BOX 83480. LANCASTER, PENNSYLVANIA 17608-3480 . (717) 299-8200 . -0:: .. ,. r:~E ~~OR PflII,NT t6I8LY. .:>> DO.NOt'DETACMANV'C~.','t....f;." 2 COURT-NUMBER" ... 3:l 05-4527 civil :t' :,,: America 1 PLAINTIFF/51 Travelers Property Casualty Canpany of 3 DEFENDANT/S/ 4 TYPE OF WRIT OR COMPLAINT Notice & Complanit Hearth & Hone Technologies Inc et al SERVE {5 NAME OF INDIVIDUAl. COMPANY, CORPORATION, ETC, TO BE SERVED IIIIIIIll... Howa:rd HaldEman d/b/a HaldEman Chminey SWeep ~ 6 '~~;E;s;;g;;;;A;;;.:n~~;:ed:~~:~-e (J--. 7 INDICATE UNUSUAL SERVICE 0 OEPU~;~-~H-Er' Now. SeotEmber 6 20 ~ , I, SHERIFF OF~ COUNTY, PA . do h!!:eb~eputlZe the Sheriff of Lancaster County to execute thiS W( ~~urn thereof ng to law. ThiS deputation being made at the reQuest and risk of the plaintiff.. -- 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE, Cumberland "... Please mail return of service to Cumberland County Sheriff. Thank you. NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching a,'y property under within writ may leave same without a watchman, in custOdy of whomever is found in possession, after notifying person of levy or attachment, without liability on the pan of such deputy or the sheriff to any plaint if! herein for any loss. destruction or removal of any such property before sheriff's sale thereof 9. SIGNATURE of ATTORNEY or other ORIGINATOR 10, TELEPHONE NUMBER 11 DATE PATRICK J. MORAN, ESQ. 215-619-4322 9/1/05 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is 10 be mailed) FRANCIS R OONTER & ASSOC. 960-B HARVEST DR. BLUE BELT", PA. 19422 SPAeE BB-OW FOIU:I$l:OF SHERIFF ONLY - DO NOi WAITE BELOW THIS LINE NAME of Authorized LCSO Deputy or Clerk 14 Dale Received 15 ExpiratIOn/Hearing dale 13 ~~~~~;'~~~f:;i~",,~:f.',~~'~~o~~'l JACKIE MICCICHE 717-299-8200 9/7/05 10/3/05 16' hereby CERTIFY.and RETURN that I ave personally served, 0 have legal eVIdence of service as shown In "Remarks", 0 have executed as shown In "Remarks", the wnt or complaint descn ed on Ihe individual, company, corporation, elc. at the address shown above or on the indiVidual, company, cor- poration. etc. at the address Inserted below by handing a TRUE and .ATTESTED COPY thereof 17 0 I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc, named above (See remarks below) 18 Name and hUe of individual served (il not shown above) (Relationship 10 Defendant) 19 0 No Service See Remarks Below (No, 30) 20 Address of where served (complete only if differenllhan shown above) (Streel or RFD, Apartment No ,City, Bora, Twp Stale and Zip Code) 21 Date of Service 22 TIme .~ <~ EOST 23 ATTEMPTS Dep,lnl. o S_TA / I~ / <:0.....\ 20 c::r (' Ie, lIT \..... p<)lJ!4"tJ . ,/. J .~ufP 31 AFFIRMEO an(f, subscribed to before me this 34 day 01 d vb" . ~. VdA I~ ~~pS~:rtlv{e 01 3J.qa~:z -0 J TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, als!o DONECKERS, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CASE NO.: 05-4527 HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES and Civil Term HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP Defendants ANSWER TO COMPLAINT. NEW MATTER AND CROSSCLAIM Defendant, HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOME ("Hearth & Home"), by and through its undersigned attorneys, hereby answers the Complaint filed by Travelers Property Casualty Company of America, as subrogee of Doneckers, Inc. (hereinafter referred to as "Plaintiff" or "Travelers") by stating as follows: I. The Complaint fails to state a claim upon which relief can be granted. . II. Responding to the averments of the Complaint, Hearth & Home states as follows: I. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph I. 2. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 2. 3. Hearth & Home admits that it is authorized to conduct business in the Commonwealth of Pennsylvania and admits that it has offices located at 3640 Concord Road, York, Pennsylvania 17402, but it denies that such address is its principal place of business and it denies that it is a Pennsylvania corporation. Further responding to the averments of paragraph 3, Hearth & Home states that it is an Iowa corporation with its principal offices located at 20802 Kensington Boulevard, Lakeville, Minnesota 55044, and that it does business under the name "Fireside Hearth & Home" and not Fireside Hearth & Homes. 4. Hearth & Home admits the allegations of paragraph 4 of the Complaint. 5. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 5 of the Complaint. 6. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 6 of the Complaint because the time frame of "at all times relevant hereto" is not sufficiently defined. Further responding to the allegations of the paragraph, Hearth & Home admits that on or about October 1,2004, it was in the business of, among other things, installing fireplaces and their flue systems. 7. Hearth & Home admits the allegations of paragraph 7 of the Complaint. 8. In response to the allegations of paragraph 8 of the Complaint, Hearth & Home states that it agreed to sell and install a fireplace and flue system in the model home located at 1835 Eliza Way, Mechanicsburg, PA. 9. Hearth & Home admits the allegations of paragraph 9 of the Complaint. 10. Hearth & Home admits the allegations of paragraph 10 of the Complaint. 11. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph II of the Complaint. 2 12. Hearth & Home denies the allegations and legal conclusions of paragraph 12 of the Complaint. 13. Hearth & Home incorporates by reference its responses to the averments of paragraphs I through 10 of the Complaint, as though fully set forth at length herein. 14. Hearth & Home denies the averments and legal conclusions of paragraph 14 of the Complaint and of each and every one of the averments and legal conclusions set forth in subparagraphs (a) through G) thereof. 15. Hearth & Home denies the allegations and legal conclusions of paragraph 15 of the Complaint and specifically denies that any such loss or damage was caused by any negligence, breach, act or omission of Hearth & Home. 16. Hearth & Home denies the allegations and conclusions of paragraph 16 of the Complaint and specifically denies that any such loss or damage was caused by any negligence, breach, act or omission of Hearth & Home. 17. Hearth & Home denies the allegations and conclusions of paragraph 17 of the Complaint and specifically denies that any such loss or damage was caused by any negligence, breach, act or omission of Hearth & Home. 18. Paragraphs 18 through 21 and l7( sic) of the Complaint under Count II of the Complaint purport to set forth a cause of action against another defendant to this action and therefore require no response from Hearth & Home. NEW MATTER 19. Hearth & Home specifically denies each and every averment of the Complaint not specifically admittcd herein. 3 20. Plaintiff's injuries and damages, if any, result from the actions, inactions and/or negligence of others over which Hearth & Home has no control or right of control. 21. Others' negligent acts or omissions constituted the direct, intervening or superseding causes of all damages or injuries allegedly sustained. 22. Plaintiff's claims are barred by Plaintiff's own actions, inactions, omissions, negligence and/or breaches. 23. Plaintiff was not injured and damaged as alleged. 24. Plaintiff has released some or all of the claims asserted. 25. Plaintiff's claims may be barred by the Doctrine of Spoliation of Evidence. 26. Without admitting any liability to Plaintiff, Hearth & Home is entitled to a credit in the amount of any settlement(s) between Plaintiff and other parties for alleged injuries and/or damages heretofore and hereafter made. 27. Plaintiff is barred from recovery in this action on the grounds of release. 28. Plaintiff is barred from recovery in this action on the grounds of waiver. 29. Plaintiff's claims may be barred by the applicable statute of limitations. 30. Plaintiff's claims are barred by the doctrine oflaches. 31. Plaintiff may have assumed the risk of its loss. 32. Plaintiff's claims may be barred by the doctrines of estoppel and/or collateral estoppel. 33. Plaintiff failed to mitigate its damages or injuries. 34. Plaintiff's actions may be barred by their failure to join all necessary parties. 4 35. Further responding to the Complaint, Hearth & Home states that the fueplace and flue system in question was installed by a subcontractor, pursuant to a subcontract agreement, and not by Hearth & Home. 36. In the event there is any negligence established by the Plaintiff in this matter, then the negligence of Howard Haldeman, d/b/a Haldeman Chimney Sweep would be the direct, active and superseding cause of the subject fire, and Howard Haldeman, d/b/a Haldeman Chimney Sweep is required to indemnifY Hearth & Home for any damages recovered by Plaintiff. 37. Hearth & Home hereby gives notice that it intends to rely upon any other defense that may become available or appear during the proceedings in this case and hereby reserves its right to amend its Answer to assert any such defense. WHEREFORE, Hearth & Home prays that the Plaintiff's Complaint be dismissed with costs assessed against the Plaintiff, and appropriate fees awarded. CROSS-PLAINTIFF AND DEFENDANT HEARTH & HOME TECHNOLOGIES INC.'S CROSS-CLAIMS AGAINST DEFENDANT HOWARD HALDEMAN, d/b/a HALDEMAN CIDMNEY SWEEP PURSUANT TO PA. R. CIV. P. 2252(a) Cross-Plaintiff and Defendant, Hearth & Home Technologies Inc. ("Hearth & Home"), a named defendant in this action, by and through its undersigned attorneys, and cross-claims pursuant to Pa. R. Civ. P. 2252(a) against Howard Haldeman, d/b/a Haldeman Chimney Sweep, by stating as follows: 38. The Plaintiff in this action, Travelers Property Casualty Company of America, as subrogee of Doneckers, Inc. (hereinafter referred to as "Plaintiff" or "Travelers") has alleged that the Defendants are liable to Plaintiff for damages allegedly sustained from a fire 5 at 1735 Eliza Way, Mechanicsburg, Pennsylvania (the "Stoltzfus Property") on October I, 2004. 39. Plaintiff has alleged that the fire was a direct and proximate result of the negligence, acts and/or omissions of the Defendants in the performance of certain work and services at the Stoltzfus Property, including but not limited to alleged negligent workmanship or services relating to or associated with the construction, installation and/or inspection of a Heat-N-Glo fireplace and flue system. 40. Hearth & Home subcontracted with Howard Haldeman, d/b/a Haldeman Chimney Sweep to install the subject fueplace and flue system at the Stoltzfus Property. 41. Hearth & Home denies any liability to the Plaintiff, but contends that if Plaintiff establishes that Howard Haldeman, d/b/a Haldeman Chimney Sweep was negligent or otherwise caused or contributed to Plaintiff's loss, then Howard Haldeman, d/b/a Haldeman Chimney Sweep is responsible for the damages allegedly sustained from the fire. 42. Without admitting the truth of the allegations of the Complaint, if any monies are owed to the Plaintiff as alleged in the Complaint, the monies are owed by Defendant Howard Haldeman, d/b/a Haldeman Chimney Sweep, and not by Hearth & Home. 43. Without admitting the truth of the allegations of the Complaint, if damages were sustained and monies are owed to the Plaintiff as alleged in the Complaint, it is the result of the conduct, acts and/or omissions of Howard Haldeman, d/b/a Haldeman Chimney Sweep and payment for any such damages is the responsibility of Howard Haldeman, d/b/a Haldeman Chimney Sweep. 44. Howard Haldeman, d/b/a Haldeman Chimney Sweep entered into an agreement with American Fireplace Company ("AFC"), which agreement was later assigned 6 by AFC to Hearth & Home, to perform fireplace installation work from time to time as agreed by the parties, which included a requirement that Howard Haldeman, d/b/a Haldeman Chimney Sweep indemnify Hearth & Home for any claims arising from the work of Howard Haldeman, d/b/a Haldeman Chimney Sweep. COUNT I (Contribution) 45. Defendant and Cross-Plaintiff Hearth & Home incorporates by reference all of the allegations set forth above in paragraphs 38 through 44, as though fully set forth herein. 46. By reason of the foregoing, if Plaintiff establishes a right to recover any sums against Hearth & Home, then Hearth & Home is entitled to contribution from Howard Haldeman, d/b/a Haldeman Chimney Sweep for any sums recovered by the Plaintiff. WHEREFORE, if Defendant Hearth & Home Technologies Inc. should be found to be liable to Plaintiff in any amount, Defendant Hearth & Home Technologies Inc. demands judgment against Howard Haldeman, d/b/a Haldeman Chimney Sweep for all or a contributable portion of any sums recovered by Plaintiff, plus interest and cost. COUNT II (Indemnification) 47. Defendant and Cross-Plaintiff Hearth & Home incorporates by reference all of the allegations set forth above in paragraphs 38 through 44, as though fully set forth herein. 48. Hearth & Home is the proper assignee of that certain Independent Contractor Agreement between Howard Haldeman, t1a Haldeman's Chimney Sweep, and American Fireplace Company dated March 10, 2000, whereby Howard Haldeman, t1a Haldeman's Chimney Sweep, agreed to perform certain work, including, but not limited to, installation and other work related to fireplaces, facings and fireplace surrounds (the "Haldeman 7 Contract"). A true and accurate copy of the Haldeman Contract is attached hereto as Exhibit 1. 49. Pursuant to the terms and proVlSlons of paragraph 15 of the Haldeman Contract, Howard Haldeman, d/b/a Haldeman Chimney Sweep agreed to indemnify, defend and hold Hearth & Home harmless from any and all claims, liability, loss, or damage, including reasonable attorney's fees, arising by reason of injury to property or other loss or damage arising out of, concerning or affecting the Haldeman Contract or the business conducted by Howard Haldeman, d/b/a Haldeman Chimney Sweep, including but not limited to, any acts or failure to act on the part of Howard Haldeman, d/b/a Haldeman Chimney Sweep, his agents, servants or employees. 508. Howard Haldeman, dIbIa Haldeman Chimney Sweep has failed to provide a defense to Hearth & Home or to agree to indemnify Hearth & Home for any damages awarded in this cases. 51. In the event there is any negligence established by the Plaintiff in this matter, then the negligence of Howard Haldeman, d/b/a Haldeman Chimney Sweep would be the direct, active and superseding cause of the subject fire, and Howard Haldeman, d/b/a Haldeman Chimney Sweep is required to indemnify Hearth & Home for any damages recovered by Plaintiff. 52. By reason of the foregoing, if Plaintiff establishes a right to recover any sums against Hearth & Home, then Hearth & Home is entitled to indemnification from Howard Haldeman, d/b/a Haldeman Chimney Sweep for any and all sums recovered by the Plaintiff. WHEREFORE, Cross-Plaintiff and Defendant Hearth & Home Technologies Inc. demands judgment against Howard Haldeman, d/b/a Haldeman Chimney Sweep for all sums 8 recovered by Plaintiff from Hearth & Home Technologies Inc., plus interest, costs and attorney's fees. Respectfully submitted, /,~ / , ,l,_;" ,'f (..-// ...';, / -<>/' 'It'''''' / j' 't/I/'/// L YNANNE B. WESCOTT, #52928 THE WESCOTT LAW FIRM, PC 239 South Camac Street Philadelphia, PA 19107-5609 Phone: (215) 545-0324 Fax: (215) 545-0326 Counsel for Hearth & Home Technologies Inc. "~I /f" f / l ! "/{l 9 CERTIFICATE OF SERVICE I, Lynanne B. Wescott, served the foregoing Answer, New Matter and Crossclaim on counsel for the parties in this action, or on the parties who have not yet retained counsel, on the date set forth below by first class United States mail, postage prepaid, addressed as follows: Patrick J, Moran, Esquire Law Offices of Francis R. Gartner & Associates Union Meeting, III, Suite 215 960-B Harvest Drive Blue Bell, P A 19422 Howard Haldeman d/b/a Haldeman Chimney Sweep 2577 Bainbridge Road Bainbridge, PA 17502 '/ 'I' '-~' L / ' /:"" Yi/euu/ / ,/'./f( // /v Lynaime B. Wescott October I" ,2005 10 VERIFICATION Florence E. Pedersen, being first duly sworn upon oath, deposes and says that she is the Assistant Secretary of Hearth & Home Technologies Inc., one of the defendants named in the above-entitled case; that she signs the foregoing on behalf of said defendant and is duly authorized to do so; that the matters stated in the foregoing are not within the personal knowledge of the deponent; and that the facts stated in the foregoing have been assembled by authorized employees and counsel of said defendant and deponent is informed by those authorized employees that the facts stated in the foregoing are true and correct to the best of their knowledge, information and belief. This verification is submitted pursuant to 18 Pa. C.S. 4904. HEARTH & HOME TECHNOLOGIES INC. By:Ji.ln'AI~/)~ ~~'AAI-l",^--" Florence E. Pe n Assistant Secretary Dated: October -.LL 2005 CJ I r-_,?, ~-'}l C' ':"".1 r_'':::> ~-1I --; ~~\~~ .r:- ~ t.,) John Flounlacker, Esquire Attorney W, No, 73112 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108.0999 (717) 237-7134 FAX (717) 237-7105 E~Mail: iflounlacker((j)tthlaw.com Attorneys for Defendants: HOWARD HALDEMAN d/b/a HALDEMAN CHIMNEY SWEEP TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, als/o DONECKERS, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs No. 05-4527 Civil Term v. HEARTH & HOME TECHNOLOGIES, INe. and d/b/a FIRESIDE HEARTH & HOMES, Defendants and HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP, Defendants TO THE PROTHONOTARY: Please enter the appearance of John Flounlacker, Esquire, and Thomas, Thomas & Hafer, LLP, as attorneys for Defend2Jlts, Howard Haldeman, d/b/a r-Ialdemarl Chimeny Sweep, in the above- captioned case. Respectfully submitted, Date: I t!j; '1/ t>.S THOMAS, THOMAS & HAFER, LLP By: l)J Jo Flounlacker, Esquire Attorney I.D. # 73112 P.O. Box 999 305 N. Front Street Harrisburg, P A 17108-0999 (717)237-7134 CERTIFICATE OF SERVICE I, Sharon L. Romig, an employee for the law firm of Thomas, Thomas & Hafer, LLP, hereby state that a true and correct copy of the foregoing document( s) was served upon all counsel of record by United States first-class mail, postage prepaid, addressed as follows, on the date set forth below: Patrick J. Moran, Esquire Francis R. Gartner & Associates Union Meeting, III, Suite 215 960-B Harvest Drive Blue Bell, P A 19422 Attorneys for Plaintiffs William Coggins, Esquire Coggins, Harman & Hewitt 8905 Fairview Road, Suite 600 Silver Spring, MD 20910 Attorneys for Hearth & Home Technologies, Inc. THOMAS, THOMAS & HAFER, LLP Dated: IlJjJ'Jjo.S c;;;1j,{/L1fl- cY.~- Sharon L. Romig V 384988,1 ~, ;:~~ <.;.::.> \.:~q ,,) ~Tl ::;3 j'"';1 -< G) -;~1 c...) en TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, als/o DONECKERS, INe. Plaintiff, :IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CASE NO. 05-4527 Civil Term v. HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES Etal Defendants HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES Etal Third Party Plaintiff v. PENN NA nONAL INSURANCE 2 North Second Street Harrisburg, PA 17105 Third Party 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 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 INFORMA nON ABOUR HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMA nON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Associatiofl 2 Liberty A venue, Carlisle, Pennsylvania - telephone number 717-249-3166 TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, als!o DONECKERS, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CASE NO.: 05-4527 HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES, et al. Defendants Civil Term - - - -- - - - -- - - - - - - - - ---- - - - - -- -- -- -- -- -- - - -- - - - - - - - - - - - - - - - -- - -- HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES Third Party Plaintiff v. PENN NATIONAL INSURANCE 2 North Second Street Harrisburg, PA 17105 Third Party Defendant: TIDRD PARTY COMPLAINT Third Party Plaintiff and Defendant Hearth & Home Technologies Inc. d/b/a Fireside Hearth & Home ("Hearth & Home"), a named defendant in this action, by and through its undersigned counsel, and pursuant to Rule 2252, sues the Third Party Defendant, Penn National Insurance ("Penn National"), and for its causes of action states: I. The Plaintiff in this action, Travelers Property Casualty Company of America, as subrogee of Doneckers, Inc. ("Travelers" or "Plaintiff") has alleged that Defendants Hearth & Home and Howard Haldeman, d/b/a Haldeman Chimney Sweep ("Haldeman") are liable to Plaintiff for damages allegedly sustained from a fire at a model home owned by Elam G. Stoltzfus, Jr., Inc. and located at 1735 Eliza Way, Mechanicsburg, Pennsylvania (the "Stoltzfus Property"). Attached are copies of pleadings and motions previously filed in this action. 2. At all times relevant hereto, Third Party Defendant Penn National was and is a Pennsylvania corporation engaged in the insurance business with offices located at 2 North Second Street, Harrisburg, Pennsylvania 17105. 3. Plaintiff has alleged that the fire was a direct and proximate result of the negligence, acts and/or omissions of Defendants Hearth & Home and Haldeman in the performance of certain work related to the installation of fIreplaces and chimney in the Stoltzfus property. 4. Hearth & Home is the proper assignee of that certain Independent Contractor Agreement between Howard Haldeman, t1a Haldeman Chimney Sweep and American Fireplace Company dated March 10, 2000, whereby Haldeman agreed to perform certain work including, but not limited to, installation and other work related to frreplaces, facings and fireplace surrounds (the "Haldeman Contract"). A true and accurate copy of the Haldeman Contract is attached hereto as Exhibit 1. 5. Hearth & Home subcontracted with Haldeman for Haldeman to install the subject fireplace at the Stoltzfus Property pursuant to the terms and provisions of the Haldeman Contract. 6. As part of Haldeman's contract with Hearth & Home, Haldeman was required to indemnify Hearth & Home for any claims arising from the work of Haldeman, including the work at the Stoltzfus Property. 2 7. Pursuant to Haldeman's contract with Hearth & Home, Haldeman was required to indemnify, defend and hold Hearth & Home harmless from any and all claims, liability, loss or damage, including reasonable attorney's fees arising by reason of injury to property or other loss or damage arising out of, concerning or affecting the business conducted by Haldeman., including, but not limited to, any acts or failure to act on the part of Haldeman, his agents, servants or employees. 8. Pursuant to Haldeman's contract with Hearth & Home, Haldeman was obligated to obtain insurance coverage in compliance with Hearth & Home's insurance requirements, including coverage for Haldeman's employees. Such insurance requirements specifically required Haldeman to provide a Certificate of Insurance to Hearth & Home evidencing Commercial General Liability Insurance, including Premises Operations; Products and Completed Operations; Contracted Liability and Personal/Adverting Injury Liability, with such policy to be written on an "Occurrence" basis, including "Per Project Aggregate" and minimum coverage limits of $1,000,000.00 each Occurrence; $1,000,000.00 Personal/Adverting Injury; and $1,000,000.00 Products - Completed Operations Aggregate. 9. Pursuant to Haldeman's contract with Hearth & Home and the insurance requirements attached thereto and incorporated therein, all policies of insurance obtained by Haldeman, except Worker's Compensation, were to name Hearth & Home as an Additional Insured. 10. At all times relevant hereto, Haldeman was the holder of a policy of Commercial General Liability policy of insurance issued by Penn National, which took 3 effect on or about February 15,2004 and was in full force and effect at the time of the ftre on October 1, 2004 (the "Policy"). 11. Under the terms of the Policy, Penn National agreed to pay those sums that the Named Insured becomes legally obligated to pay as damages for personal injuries or property damage arising out of Haldeman's operation of his fireplace installation and chimney sweep business to a general aggregate limit of $2,000,000.00 and a limit of $1,000,000.00 per occurrence. 12. The Policy further provided that Penn National would defend any action against a Named Insured alleging such injuries and seeking damages that are payable under the terms of the policy. 13. The Policy included coverage for bodily injury or property damage for which the insured was obligated to pay damages by reason of assumption of liability in an "insured contact," provided the bodily injury or property damage occurred subsequent to the execution of the Insured Contract. An "Insured Contract" is defmed in the Policy to include that part of any other contract or agreement pertaining to the insured's business under which the insured assumed the tort liability of another party to pay for bodily injury or property damage to a third person or organization, provided the bodily injury or property damage was caused in whole or in part by the insured or those acting on the insured's behalf. 14. Pursuant to the terms of the Policy, Penn National further agreed that if it defended an insured against a suit and an indemnitee of the insured was also named as a party to the suit, Penn National would defend the indemnitee provided certain conditions were met, and all such conditions were met with respect to the instant matter. 4 15. On or about October 1,2004, while the Policy was in full force and effect, a fIre occurred at the Stoltzfus Property, which Plaintiff has alleged was caused by the negligence, acts or ornissions of the Defendants in the performance of certain work related to the installation of the fireplace and chimney in the Stoltzfus Property. 16. Thereafter, on or about September 1, 2005, Travelers filed this action against Defendants Haldeman and Hearth & Home. 17. The Complaint filed by Travelers states facts that, if proved to be true, I could support a judgment against Hearth & Home that would come within the coverage of the Policy issued by Penn National to Haldeman and to which Hearth & Home was added as an Additional Insured, and that was in effect at the time of the October 1, 2004 fire. 18. On or about September 19, 2005, Hearth & Home's counsel sent a copy of Traveler's Complaint to Penn National along with a written request that Penn National undertake to defend Hearth & Home in this action pursuant to the provisions of the Policy. 19. Although the facts stated in Traveler's Complaint against Haldeman and Hearth & Home stated a claim within or potentially within the coverage of the Policy, on October 5, 2005 Penn National notified Hearth & Home, through its counsel, that it would neither defend nor indemnify Hearth & Home. I Hearth & Home does not admit the troth of such allegations. 5 COUNT ONE (Breach of Contract) 20. Hearth & Home incorporates by reference all of the allegations set forth above in paragraphs 1 through 19, as though fully set forth herein. 21. In refusing to defend and indemnify Hearth & Home, Penn National materially breached the Policy and wrongfully and without good cause denied Hearth & Home the right and remedies to which it was entitled as an Additional Insured under the Policy and as an indemnitee in an Insured Contract covered by the Policy. 22. As a proximate result of Penn National's refusal to undertake the defense of this action as herein alleged, Hearth & Home was compelled to engage counsel to defend it in this action and has incurred, and will continue to incur, attorney's fees and other costs and expenses in preparation and trial of this action. 23. Should judgment be entered in favor of Travelers and against Hearth & Home, Hearth & Home will suffer additional damages in such amount. WHEREFORE, Hearth & Home prays judgment against Penn National as follows: 1. For all sums incurred by Hearth & Home for attorney's fees and costs in defending the cause of action asserted by Travelers against it; 2. For all sums recovered by Travelers from Hearth & Home, plus interest and costs; 3. For attorney's fees incurred and costs of suit herein incurred; and 4. For such other and further relief as the court may deem proper and just. 6 COUNT TWO (Breach of Covenant of Good Faith and Fair Dea1in2) 24. Hearth & Home incorporates by reference all of the allegations set forth above in paragraphs 1 through 19, as though fully set forth herein. 25. In refusing to defend the action brought by Travelers against Hearth & Home, Penn National breached the covenant of good faith and fair dealing implied in the Policy, in that Penn National failed to adequately investigate the facts surrounding the fire and refused to defend Hearth & Home despite the existence of facts indicating potential coverage. 26. As a proximate result of Penn National's refusal to undertake the defense of this action as herein alleged, Hearth & Home was compelled to engage counsel to defend it in this action and has incurred and will continue to incur attorney's fees and other costs and expenses in preparation and trial of this action. 27. Should judgment be entered in favor of Travelers and against Hearth & Home, Hearth & Home will suffer additional damages in such amount, and any such award of judgment would be within the coverage and terms of the Policy and the indemnity provisions of the Insured Contract. WHEREFORE, Hearth & Home prays judgment against Penn National as follows: a For all sums incurred by Hearth & Home for attorney's fees and costs in defending the cause of action asserted by Travelers against it; 7 b. For all sums recovered by Travelers from Hearth & Home, plus interest and costs; c. For attorney's fees incurred and cost of suit herein incurred; and d. For such other and further relief as the court may deem proper and just. COUNT THREE (])eclllratorv Jud.....ent) 28. Hearth & Home incorporates by reference the allegations of paragraphs 1 through 19 as fully set forth herein. 29. This is an action for a declaratory judgment pursuant to Title 42 ~ 7531, et seq. of the Pennsylvania Code for the purpose of determining a question of actual controversy between the parties, as herein more fully appears. 30. Although the Complaint filed by Travelers states fucts that, if proved to be true, could support a judgment against Hearth & Home that would come within the coverage of the Policy issued by Penn National and to which Hearth & Home was added as an additional insured, Penn National has refused to either defend or indemnify Hearth & Home. 3 I. There is an actual controversy of a practicable issue between Hearth & Home and Penn National within the jurisdiction of this Court involving the rights and liabilities of the parties under and by virtue of the Policy, which controversy may be determined by judgment of this Court. 32. Penn National asserts that if any of Hearth & Home's employees assisted Haldeman in the installation of the fireplace and it was determined that the negligence of 8 Hearth & Home's employee(s) caused or contributed to cause the ftre, Hearth & Home would not be entitled to either defense or indemniftcation under the Policy. 33. Hearth & Home asserts that it is entitled to indemnity and defense even if its employee(s) assisted Haldeman in the installation of the fireplace because such employee(s) would have been assisting Haldeman in the performance of the work Haldeman contracted to perform, which work was covered by the Policy, and because Hearth & Home was a named Additional Insured under the Policy and was an indemnitee under an Insured Contract covered by the Policy. 34. Because Penn National maintains that Hearth & Home is not entitled to defense and indemnification under the Policy and Hearth & Home maintains coverage does exist, there exists a question of construction under the Policy which may be determined by this Court. WHEREFORE, Hearth & Home prays: a. That this Court determine and adjudicate the rights and liabilities of the parties with respect to the Policy; b. That this Court find and declare that Penn National is under a duty to defend Hearth & Home with respect to this action asserted against it by Travelers; c. That this Court find and declare that Penn National and its insured, Haldeman, are required to indemnify Hearth & Home for any and all sums recovered by Travelers; 9 d. That this Court find and declare that Penn National acted in bad faith in denying Hearth & Home coverage under the Policy and in refusing to defend Hearth & Home; e. That this Court award to Hearth & Home the costs of these proceedings; and f. That this Court award to Hearth & Home its attorneys' fees incurred in litigation of this declaratory judgment action. Respectfully submitted, ,. , " A' ,. ,Jf.;, .' ??u, i:!: -t '" :??^ /rr L i\NNE 8. WESCOTT, #52928 THE WESCOTT LAW FIRM, PC 239 South Carnac Street Philadelphia, PA 19107-5609 Phone: (215)545-0324 Fax: (215) 545-0326 Counsel for Hearth & Home Technologies, Inc. 10 hj' f">,'J , ,~ -' " ",1 ", 'J ,(, ~ <\ '1::L, VERIFICATION Florence E. Pedersen, being first duly sworn upon oath, deposes and says that she is the Assistant Secretary of Hearth & Home Technologies Inc., one of the defendants named in the above--entitled case; that she signs the foregoing on behalf of said defendant and is duly authorized to do so; that the matters stated in the foregoing are not within the personal knowledge of the deponent; and that the facts stated in the foregoing have been assembled by authorized employees and counsel of said defendant and deponent is informed by those authorized employees that the facts stated in the foregoing are true and correct to the best of their knowledge, information and belief. This verification is submitted pursuant to 18 Pa. C.S. 4904. HEARTH & HOME TECHNOLOGIES INC. BY: ~A-7IAlA.l /;O(fJ hA~ Florence E. Pedersen, Assistant Secretary Dated: October~, 2005 CERTIFICATION OF SERVICE I, Lynanne B. Wescott served the document described as THIRD PARTY COMPLAINT on counsel for the parties in this action, by first class United States mail, postage prepaid, addressed as follows: Patrick J. Moran, Esquire Law Offices of Francis R. Gartner & Associates Union Meeting, III, Suite 215 960-B Harvest Drive Blue Bell, P A 19422 John Flounlacker, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, P A 17108 October Ji., 2005 ?'Uttttl ~'IJ $t4~r / I.~/ L:lHearthHome\SloltzfusIPldlThird,Party,Complainl 11 TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, als!o DONECKERS, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CASE NO.: 05-4527 HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES and Civil Term n c ...., c;::::l C:;:~ <-n C) ,~.~) --4 .- ~ j , ~"" o -n ..... T::o rll- r :!],[g -:'" '1 (.~ (~ -T"-" -~Il :.;: (") <.. en '.) -.j )> ,:.;J .< HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP . \..! ...- Defendants ....-'. ( -, ~:2 r- N ANSWER TO COMPLAINT. NEW MATTER AND CROSSCLAIM Defendant, HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOME ("Hearth & Home"), by and through its undersigned attorneys, hereby answers the Complaint filed by Travelers Property Casualty Company of America, as subrogee of Doneckers, Inc. (hereinafter referred to as "Plaintiff" or "Travelers") by stating as follows: I. The Complaint fails to state a claim upon which relief can be granted. ll. Responding to the averments of the Complaint, Hearth & Home states as follows: 1. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 1. 2. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 2. 3. Hearth & Home admits that it is authorized to conduct business in the Commonwealth of Pennsylvania and admits that it has offices located at 3640 Concord Road, York, Pennsylvania 17402, but it denies that such address is its principal place of business and it denies that it is a Pennsylvania corporation. Further responding to the averments of paragraph 3, Hearth & Home states that it is an Iowa corporation with its principal offices located at 20802 Kensington Boulevard, Lakeville, Minnesota 55044, and that it does business under the name "Fireside Hearth & Home" and not Fireside Hearth & Homes. 4. Hearth & Home admits the allegations of paragraph 4 of the Complaint. 5. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 5 of the Complaint. 6. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 6 of the Complaint because the time frame of "at all times relevant hereto" is not sufficiently defined. Further responding to the allegations of the paragraph, Hearth & Home admits that on or about October 1, 2004, it was in the business of, among other things, installing fireplaces and their flue systems. 7. Hearth & Home admits the allegations of paragraph 7 of the Complaint. 8. In response to the allegations of paragraph 8 of the Complaint, Hearth & Home states that it agreed to sell and install a fireplace and flue system in the model home located at 1835 Eliza Way, Mechanicsburg, PA. 9. Hearth & Home admits the allegations of paragraph 9 of the Complaint. 10. Hearth & Home admits the allegations of paragraph 10 of the Complaint. 1 I. Hearth & Home is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 11 of the Complaint. 2 12. Hearth & Home denies the allegations and legal conclusions of paragraph 12 of the Complaint. 13. Hearth & Home incorporates by reference its responses to the averments of paragraphsl through 10 of the Complaint, as though fully set forth at length herein. 14. Hearth & Home denies the averments and legal conclusions of paragraph 14 of the Complaint and of each and every one of the averments and legal conclusions set forth in subparagraphs (a) through (j) thereof. 15. Hearth & Home denies the allegations and legal conclusions of paragraph 15 of the Complaint and specifically denies that any such loss or damage was caused by any negligence, breach, act or omission of Hearth & Home. 16. Hearth & Home denies the allegations and conclusions of paragraph 16 of the Complaint and specifically denies that any such loss or damage was caused by any negligence, breach, act or omission of Hearth & Home. 17. Hearth & Home denies the allegations and conclusions of paragraph 17 of the Complaint and specifically denies that any such loss or damllge was caused by lmY negligence, breach, act or omission of Hearth & Home. 18. Paragraphs 18 through 21 and l7(sic) of the Complaint under Count II ofthc Complaint purport to set forth a cause of action against anothcr dcfcndant to this action and therefore require no resflOnse from Hearth & Home. NEW MATTER 19. Hearth & Home specifically denies each and every averment of the Complaint not specifically admittcd herein. 3 20. Plaintiff's injuries and damages, if any, result from the actions, inactions and/or negligence of others over which Hearth & Home has no control or right of control. 21. Others' negligent acts or ornissions constituted the direct, intervening or superseding causes of all damages or injuries allegedly sustained. 22. Plaintiff's claims are barred by Plaintiff's own actions, inactions, omissions, negligence and/or breaches. 23. Plaintiff was not injured and damaged as alleged. 24. Plaintiffhas released some or all of the claims asserted. 25. Plaintiff's claims may be barred by the Doctrine of Spoliation of Evidence. 26. Without admitting any liability to Plaintiff, Hearth & Home is entitled to a credit in the amount of any settIement(s) between Plaintiff and other parties for alleged injuries and/or damages heretofore and hereafter made. 27. Plaintiff is barred from recovery in this action on the grounds of release. 28. Plaintiff is barred from recovery in this action on the grounds of waiver. 29. Plaintiff's claims may be barred by the applicable statute oflimitations. 30. Plaintiff's claims are barred by the doctrine oflaches. 31. Plaintiff may have assumed the risk: of its loss. 32. Plaintiff's claims may be barred by the doctrines of estoppel and/or collateral estoppel. 33. Plaintiff failed to rnitigate its damages or injuries. 34. Plaintiff's actions may be barred by their failure to join all necessary parties. 4 35. Further responding to the Complaint, Hearth & Home states that the fireplace and flue system in question was installed by a subcontractor, pursuant to a subcontract agreement, and not by Hearth & Home. 36. In the event there is any negligence established by the Plaintiff in this matter, then the negligence of Howard Haldeman, d/b/a Haldeman Chimney Sweep would be the direct, active and superseding cause of the subject fire, and Howard Haldeman, d/b/a Haldeman Chimney Sweep is required to indemnify Hearth & Home for any damages recovered by Plaintiff. 37. Hearth & Home hereby gives notice that it intends to rely upon any other defense that may become available or appear during the proceedings in this case and hereby reserves its right to amend its Answer to assert any such defense. WHEREFORE, Hearth & Home prays that the Plaintiff's Complaint be dismissed with costs assessed against the Plaintiff, and appropriate fees awarded. CROSS-PLAINTIFF AND DEFENDANT HEARTH & HOME TECHNOLOGIES INC.'S CROSS-CLAlMS AGAINST DEFENDANT HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP PURSUANT TO PA. R. CIV. P. 2252(a) Cross-Plaintiff and Defendant, Hearth & Home Technologies Inc. ("Hearth & Home''), a named defendant in this action, by and through its undersigned attorneys, and cross-claims pursuant to Pa. R. Civ. P. 2252(a) against Howard Haldeman, d/b/a Haldeman Chimney Sweep, by stating as follows: 38. The Plaintiff in this action, Travelers Property Casualty Company of America, as subrogee of Doneckers, Inc. (hereinafter referred to as "Plaintiff" or "Travelers'') has alleged that the Defendants are liable to Plaintiff for damages allegedly sustained from a fire 5 at 1735 Eliza Way, Mechanicsburg, Pennsylvania (the "Stoltzfus Property") on October I, 2004. 39. Plaintiff has alleged that the fire was a direct and proximate result of the negligence, acts and/or omissions of the Defendants in the performance of certain work and services at the Stoltzfus Property, including but not limited to alleged negligent wor1cman"hip or services relating to or associated with the construction, installation and/or inspection of a Heat-N-Glo fireplace and flue system. 40. Hearth & Home subcontracted with Howard Haldeman, d/b/a Haldeman Chimney Sweep to install the subject fireplace and flue system at the Stoltzfus Property. 41. Hearth & Home denies any liability to the Plaintiff, but contends that if Plaintiff establishes that Howard Haldeman, d/b/a Haldeman Chimney Sweep was negligent or otherwise caused or contributed to Plaintiff's loss, then Howard Haldeman, d/b/a Haldeman Chimney Sweep is responsible for the damages allegedly sustained from the fire. 42. Without admitting the truth of the allegations of the Complaint, if any monies are owed to the Plaintiff as alleged in the Complaint, the monies are owed by Defendant Howard Haldeman, d/b/a Haldeman Chimney Sweep, and not by Hearth & Home. 43. Without admitting the truth of the allegations of the Complaint, if damages were sustained and monies are owed to the Plaintiff as alleged in the Complaint, it is the result of the conduct, acts and/or omissions of Howard Haldeman, d/b/a Haldeman Chimney Sweep and payment for any such damages is the responsibility of Howard Haldeman, d/b/a Haldeman Chimney Sweep. 44. Howard Haldeman, d/b/a Haldeman Chimney Sweep entered into an agreement with American Fireplace Company ("AFC''), which agreement was later assigned 6 by AFC to Hearth & Home, to perform fireplace installation work from time to time as agreed by the parties, which included a requirement that Howard Haldeman, d/b/a Haldeman Chimney Sweep indemnify Hearth & Home for any claims arising from the work of Howard Haldeman, d/b/a Haldeman Chimney Sweep. COUNT I (Contribution) 45. Defendant and Cross-Plaintiff Hearth & Home incorporates by reference all of the allegations set forth above in paragraphs 38 through 44, as though fully set forth herein. 46. By reason of the foregoing, if Plaintiff establishes a right to recover any sums against Hearth & Home, then Hearth & Home is entitled to contribution from Howard Haldeman,. d/b/a Haldeman Chimney Sweep for any sums recovered by the Plaintiff. WHEREFORE, if Defendant Hearth & Home Technologies Inc. should be found to be liable to Plaintiff in any amount, Defendant Hearth & Home Technologies Inc. demands judgment against Howard Haldeman, d/b/a Haldeman Chimney Sweep for all or a contributable portion of any sums recovered by Plaintiff, plus interest and cost. COUNT n (Indemnification) 47. Defendant and Cross-Plaintiff Hearth & Home incorporates by reference all of the allegations set forth above in paragraphs 38 through 44, as though fully set forth herein. 48. Hearth & Home is the proper assignee of that certain Independent Contractor Agreement between Howard Haldeman, tla Haldeman's Chimney Sweep, and American Fireplace Company dated March 10, 2000, whereby Howard Haldeman, tla Haldeman's Chimney Sweep, agreed to perform certain work, including, but not limited to, installation and other work related to fireplaces, facings and fIreplace surrounds (the "Haldeman 7 Contract"). A true and accurate copy of the Haldeman Contract is attached hereto as Exhibit 1. 49. Pursuant to the terms and provisions of paragraph 15 of the Haldeman Contract, Howard HaldelIlllI1. dIbIa Haldeman Chimney Sweep agreed to indemnify, defend and hold Hearth & Home harmless from any and all claims, liability, loss, or damage, including reasonable attorney's fees, arising by reason of injury to property or other loss or damage arising out of, concerning or affecting the Haldeman Contract or the business conducted by Howard HaldelIlllI1. d/b/a Haldeman Chimney Sweep, including but not limited to, any acts or failure to act on the part of Howard Haldeman, dIbIa Haldeman Chimney Sweep, his agents, servants or employees. 508. Howard HaldelIlllI1. dIbIa Haldeman Chimney Sweep has failed to provide a defense to Hearth & Home or to agree to indemnify Hearth & Home for any damages awarded in this cases. 51. In the event there is any negligence established by the Plaintiff in this matter, then the negligence of Howard Haldeman, d/b/a Haldeman Chimney Sweep would be the direct, active and superseding canse of the subject fire, and Howard Haldeman, d/b/a Haldeman Chimney Sweep is required to indemnify Hearth & Home for any damages recovered by Plaintiff. 52. By reason of the foregoing, if Plaintiff establishes a right to recover any sums against Hearth & Home, then Hearth & Home is entitled to indemnification from Howard Haldeman, d/b/a Haldeman Chimney Sweep for any and all sums recovered by the Plaintiff. WHEREFORE, Cross-Plaintiff and Defendant Hearth & Home Technologies Inc. demands judgment against Howard Haldeman, d/b/a Haldeman Chimney Sweep for all sums 8 recovered by Plaintiff from Hearth & Home Technologies Inc., plus interest, costs and attorney's fees. Respectfully submitted, , '/ 'j /. --/,., /l,' // /CirLtt Ui( Y/,/4'/{'l':P L YNiNNE B. WESCOTT, #52928 THE WESCOTT LAW FIRM, PC 239 South Camac Street Philadelphia, PA 19107-5609 Phone: (215) 545-0324 Fax: (215) 545-0326 Counsel for Hearth & Home Technologies Inc. It /f'l/cr 9 CERTIFICATE OF SERVICE I, Lynanne B. Wescott, served the foregoing Answer, New Matter and Crossclaim on counsel for the parties in this action. or on the parties who have not yet retained counsel, on the date set forth below by first class United States mail, postage prepaid, addressed as follows: Patrick J, Moran, Esquire Law Offices of Francis R. Gartner & Associates Union Meeting, ill, Suite 215 96O-B Harvest Drive Blue Bell, PA 19422 Howard Haldeman d/b/a Haldeman Chimney Sweep 2577 Bainbridge Road Bainbridge, PA 17502 c!/' (, I J ,.-:-7J / YtAitt.w '//;! c /Z/ N ,. /" Lynanne B. Wescott October N , 2005 10 VERIFICATION Florence E. Pedersen, being first duly sworn upon oath, deposes and says that she is the Assistant Secretary of Hearth & Home Technologies Inc., one of the defendants named in the above-entitled case; that she signs the foregoing on behalf of said defendant and is duly authorized to do so; that the matters stated in the foregoing are not within the personal knowledge of the deponent; and that the facts stated in the foregoing have been assembled by authorized employees and counsel of said defendant and deponent is informed by those authorized employees that the facts stated in the foregoing are true and correct to the best of their knowledge, information and belief. This verification is submitted pursuant to 18 Pa. C.S. 4904. HEARTH & HOME TECHNOLOGIES INC. By:JJ..tn,AI.(1 ~ ~~'A.AII.l",^--" Florence E. P en Assistant Secretary Dated: October -.LL 2005 l 34/29/2005 B9:52 APR-2~2005 ' 10: II :.-tEA::tlTY SlJe It'1C "" :3814954950 ~IRESIDE HE~TH ~ HOME NO. 785 va:; 717 600 8166 P.B2/06 INDEPENDENT CONTllAcrOR AGREEMENT AMERICAN fiREPLACE COMPANY (hereinafter referred to as "Comp;any-l ;mG J-l-\:.P",,,,~', c.\..:""y S. -f (hereinafter referred 10 as -Contractor")' agree as fo llows: I, llldependenl CourriICtor. Sllbjcct to the terms AIlG ~ooditlol1S of tltit Agreement. the COmpllllY' hereby enllllgtS lI1e COOlTilClOr as an indepenaent COtlltac;tOf to perfom elle work set forth herein. and the Contractor hereby ",ccpts such engagement. 2, Pescriplionof Worll - Contractor allrees 10 perform ....ork. includin~. but noUimite(l 10. inslaliation and Other work related to fireplaces. facings and fireplace surrounds J, Term of Agreement:" The initial term of diis Agreement sbaU ~OllU!lellce Oil me dale of rhis Agreement and shall continue in full force :md effect for one (1) year, After the initial term. this Agreemem shall automatically renew for adduional temlS of one (l) year each. NotwithsL1lldillg /.he above. either pany may t~rminate this Agreement at any time, by giVing the other parl)' at leasl chllty (30) days written !lOtice 4 Tennioation. This Ag~eemeDI may be lenllL."1.atea widiout ""use by either party by giving written notice to tne OIlier at leasl thirty (30J days prior 10 me effective :lale of termination scaced in die norice. NQlWiwlAlldmg any oilier proviSion to the connary, lermlnation of this Agreement sball not prejudice any claim of either party arisinll prior to termilUlion, or relieve eilher part) from liability arising prior to ~:mimlCion, nor shall if reHeve Contractor or its duty 10 correct an~ defeclive work performed or Co in<1eClUlify. defend ana bold Company bannJess in those i.nsClULCe5 re1:jlliled by this Agreement. III the evenc of cennitlarioD of !!lis Agreement, for allY reasOlh all provisiacs conWDed berein sball conlinue in torce and effect as 10 any claims and other matters arising out of or cOlUlectetl with this Agrcemeut1Jllti! all snell claims and malters are lllIly resolver!. 5. Paymcllt - Company alr~ r.o compean!e CODlraclOr acc;ordillr to W !elmS and condicions of the Cllrrellt Rate Sebellule that is allacbcd nereto, Rates contained in the Rale Schedule are subject to change by ,die COllIpany, Company wi!( notify ConuaetOr, in advance of any chanies in the Rate Schedule, 6. Terms of Payment - Company will make payments CO COlltrlCfOl' 011 a weekly bas is, subject 10 the retenliOll set forth in jl.rllflltlb sevelI (7) berein. The makinll of lIIlY payment to Conlra~lOr sbaJl Dot be cOllSuucd as l\J:ceptante of die work or waiver of any rights of Comp.1IY und,r llIiI A8l'eemenr aIICl shilll not relieve COlltrilCtOr 0 f llIIY of il$ obligations hereunder until final approvl1 aDd aCcqltallce of the work by the Camp:my. Woclt is QCt aa:epcable ifCompany'sl;1jW)mer refUses 10 accept lite worl< and/or lhe work is not done according 10 cbl; appHuble fireplace ~... lOlll'on O~/29/2005 09:52 HEARTH SUC INC ~ ~3014954990 Mr"ro:.-.::r-~~:;- L\."J; 1~ r lRESIDE HEARTH 8. HOME t'lO. 785 1105 717 600 8166 P. El4/l!6 COlllpiDY'S customers for atly purpose wbalsaevi>r. exeept in its' perfOl1llllllt:e of services IIcreunder, 10 Authorizalion 10 Investigate - COlluaclcr authorizes CompllnY or any other ~Illity at the requeSI of Compill~. .10 make .suc.h illvestiplion as it deelll:l.apprapriale, Wcluding bue not limiled to review of employment, ed.ucatloll. fl.nlUlcial or crUninal history records. iDd aulltoriu$ any ,persllo, edllC4tionaJ wlillllion. employer. credit agellCY or caliri 10 ptovid~ Company (dlrectly or Ulrougb another collty) wilb aay informatloa. whetller public or privare, rJiai may be reqLle~ced by Compaay. Contractor hereby releases and indemnifies Ibe Company from any demands. claims or liabiliry arising from the galherinll and ute of the informalion obtaim:d under 11Iis plll'~lltapll, 1 L Labor, Services. Equipment & Tools - Excepl as otherwise provid.ed herein, CoolTactor shall provide all labor, services. equipment and [ools of every killd required for the prompl and efficient execution of Ihe work descrj~d herein. Coarractor, may. at Contractor's expense, employ an adeqllllte llumber of compeCCllt, skillecl employees. as Conll'aClO( Q:ems necessary to perfonn Ibe work: sel forlb in tlJi.; All.eement. Conlraclor shall be solely reifponsible for canlral and superYision of allY employees and shall be solely responsible for Ih. payment of wales. salill'ies ilIl<l benefits to irs emplo,'ees, The Company shall have tne righl to .eql!esl thaI 3DY employee o. subcontractor of Contractor not perform work purs~anl (0 this Agreemeul J such employee or subcontractor is for any reason objectionable to the CompallY, 12. Fireplace Components &. Materials - Company shall fuqlish 10 Contraclor all fireplaces ana com\Xlncm pw necessary to perfonn the WOI k sel fqrth herein. Contractor shall be liable fur any 1053 Of darnalle occurring 10 such materials provided by Company 10 Conlraelor Conlraclor shall bear and be liable for any loss or damage to illly such materials placed at a jab 3ilc, LIlcluding. though not limited 10, loss or dill'llage dlle 10 theft, trespa53 or vandalism. prior to Final completion of the work. All mareriaLs 001 lISed in the work described herein shall be returned undimaged to tlJe Company, 13. Taxes - COllll"aCIOr ullllerslalllls llIat Company will not coutribulc to Medicare, Social Security, unemployment illSurance or any aliter required employJDl!llf taXes, nor will Company withhold l'ed.~ral or slare income taxes from compensation paid 10 Contractor, CODuKtor understands he will ~ responsible fo( payment of ill! applicable employmenl ami income taxes and he s!tall indemnity and hold the Company bann!ess from allY liabllllY for lhe nOIlJliYltlent of lalItS owed by 11Ie COftll'aclor, 14. EmploYmelIl Benelilll - Conll'aClOl' understands and !lfffi dtal, lie is acdIIa as an illdcpendenl COll1raclor. and maintains his office and principal place of ~ al his own td4ress. CompallY Ilas no ripl bereu!lder to discourage or iDhibh !be COlllraclOl's rtalll 10 enter inca, other conlracts as ContraClor sees iii. As an independenl conlTaClOr, Coruractor KknowledCcs he is nOI entilled 10 all)' employalll1l a.., 10/1M'9 3 'J~,29/2005 09,52 HEARTH SUC i>lC . 1301a954990 . __ ___ ..w'..... rl~c:.:=lll.)t: n~IM IS NLJr'1l::. >10. 785 ~05 717 60l!l 6166 P.~ bl!nelirs. including. but 001 limited 10. healthimurance, relirflllliOt bc:aefirs. worker's l;On\pensatiOD insurance, aA1IlIn~mploymenl ins~rance, 15, Indemnification - COl1tra.ctor shall IIldcmnif)'. defel1d IWd bold CompaIIY hannless rrom any alId all claims, liability. loss, or damage, inclulSilIe reasouable attorney's fees, arising by reason of the death or' bodily injury of persons. injury 10 property or alher lass or daraale ati&iII& out of, cOllCerlliD1 ar at'(ccliIIi this All'emICDt or t/Ie buswess coalluclC'll by ColillKtor. iilchlllina but Dot llmired to, any acts ar fail~re 10 act on the part orme COntrac:lor.hi~ agents, servanlS or employ~~, 16 OSHA Safely Requirements. COlUraclllr represents thai be isaWilI'e of all OSHA and any Slate or local governing body's safety requir~mentS as they relate [0 me "'orlc to be performed under Ibis Agreement" Conlractor is solely responsible for compliance .....ilh sucb safety requiremems' a.od in the enel of a vialatiollOf sllClI rcquirl!ll1eDts. COnlracwr is solely responsible for. and shall itldemnity and hold Campany barmI~ss Itom any fines. peualties, or assessments lIIille by any goverrunenlillllnit for illY violations of S<lfety requirements 17, !ns\Jnnce - Contractor agrees thai he will oblJin insurance coverage in c;ompliance with alllhe Company's Insurance Requiremenrs as set fonh in the anached Exhibit A, including coverage for ContraclOr's employees. J( ContraclOr fails to comply with ille iMUral'lCe requirCll1elllS lIlell Contractor wiU not be pmnifted to perform any further worlc for CompallY until insurlllCe coveralle is obtained. If it is sUbscquencly aetennitled tlm work was ~rfurmed without the required inslll'atlc: coverage, m~tl Company will baclc charge Conuactor as set fortb in paragraph eight (8) herein for the relipCl;tive premiwns lSue as set form below for' all work periormed withOllt the required insuriJIce coveralle. For work performed without the insutaJIce caverage the following percenUlges of payments due ContraClor will be bau, cbarlled u reimbursement to Compatiy for their additional in.sll~e liability: WORKER'S COMPENSA TION PREMIUM GENERAL UABllliY PREMIUM 'I. .... 18 Defaull. The occurrence of lIIIY one or more of the followipg shall be . deemed 10 be an evenl of default under tlIis ^en:emem: (8) the failure of ClIlIIrilCtOr III operare in accordance with this Agreement: (0) the abandonmenl of worlc Ilereuodcr; (e) eIIe failure of Comraetot 10 pay lllIy mOMY due the ComplUlY; (d) the laillll'e of COlltraclOr to provide tb~ Company with evidence of insuram:e as required Ilereill; (~) the c;gllduel by Contractor at busiDcS6 ill violalion of lIle law or in a lll4lIMr dt"'I"""t by the CompallY to be preJlllIiclal to theCompallY's iateresl. 'Upon atijI eveue of clefalllt, the OomJlilllY. may. al its option, immeclialdy tl!nniAate this. AgreelllCln: by wriUCII notice 10 Coau~lllr ang all rigbts of Contrac:cor hereunder sball be !ermi.. tJpol1' Il/lY evenl of defallll. in addition to lIIIY olber remedies available. !be CoCpa)' may elUe suell defau It or cause such defalll:' 10 be cllred. acd ConlTBCtOr shall pay to tile ....11II1IJ9!l 4 . -;,<-."" HEARTH sue !NC ~ 13014954990 ~l~~~IV~ M~~~I~ ~ ~ NO. 785 ~07 717 ~a S~G6 1",064!S., ' 0<1/29/2005 09,52 Campall)' upon demaId I $II/ll equal to tile unollll1, ~peadcd by tile COIU)lUY tllereiDre audlor COlllllcmr hereby aurlloriles !be CompllIIY 10 deduCI such Illl!JYIlt from lIIlY sums ll:Ien due or lbereafter bec:amilll due tel ContraClor from ll:Ie COIllpal1Y. In the event of defaull by COlllrllCmr, all amounts due 10 the Company under cIl,is Aare~1 sllall bccomc immedialely dlle and payable. 19. Assill1llneat - All)' assigiuncQ( by Ibe COllUlIl:1Cr of ll:Iis A~ tlf uy iJIIcresl ill if or any IIKIIICY due or 10 become: duels llOt valid wilbout ~ upresa prior wrideO c:ouselll of ll:Ie CampallY. . The Company shall 'have' Ibe rilllltlO IflIIl$fer or assiglllhis Agreemenllo a preselll or future pare!!l. subsidiary, or affiliate. ZOo Attorlleys' Fees. Sbould the: COl1lPAAY !mgale the seJ'lilces of iIJl anomy 10 ' enforce ~y of its t'iplS bereuoder. or 10 collecl aDY amoullLS dlle. Coorraetor llba.Il pay the COlllpany for ill costs ud e~pellSOS inc!,rred. including teasoaab/e lUO,meys' fees. 21. Prior Asreel2l'D1S iIld AmeadmeAts. This AgreerMlll $etS fQtI:b the emire ulldcrslallditlg of Ibe patties berm IIld supcrsc4cs all oll:ler a~ iIId, uadcrstalldings among or becween lhe parties: This Alreemenl ClUlllOl be changed or modified orally, Any challg~ (0 the Agr~emel\l mllst be in wriling llllll sigllCd by tile panic:s. 22. Words aad Headings - Words used berein shall iIlclude the plural as well as the sillgular Words usCl! ill Ibe llIaScllliIle iellder illclwle the: fC'",i";ft~ IUId aevter, The section beadings u.sed bereill are for ~nvllllienee only aud sbaIl bave 110 effect upon the: cOllStrUclloa or iIIlclrprctalioD of lIllY pari of Ibis Agreemeo[ Z3. Governing Laws - This contracl sbaH be govel'Jltd by tile laws of tile Swe of Maryland, The parties further aaree that Maryland sball be the place of V~l1ue for all dispull:.\ iIll.d Ibal they waive their riilll10 a jury trial. IN WITNESS WHEREOF, tile plUties bave duly cleculCd this Aireemeat tJlis ' 'ill- day of it'\ QF...I-- , ~ t\a-t) CONTRACTOR (Sign) /i? a ./ (Prim) /1..;, AMERJCAN FIREPLACE COMPANY Wltlless silGlllU,re .... 101111" $ TOTFll.. P.l!l6. 2;f:S:28D5 ~G:55 SE~-1b-2005 06:~4 3E;.lf)'358!S2 C'~\'LCR Ur!~eE~"vr ~nc; ~I .&....e ,~!oj GI'OAGE 5T.. VORl<., PA 17401 PAGE Cl 717 see 9:66 P,02'11 . (717) 771.'1601 SHl!RIfF SERVICE PRocess RECIIPT and AFnOAVlT OF RETURN ..RUCTIONS pi "'ASE TYPE ONI. Y LINE 1 THRU :12 DO NOT DETACH IIIfY elll Wf , pl..AlffnF1:1$1 Z COURT_ 3 ot!l:ENo,.NTISI . TYPE Of' vo.tID LAINT " Notice & CalplainJ;. - Hearth & Hone Technologies Inc d/b/a Fl.resid.. H " lbnes ' SP-~ { S NI'Mt Of ..DMOUAl. COMPANY COI'POfVl,'tto.o. ETC TO SERVE 0" DESC'lIP'1ON O~ PROPERTY ro BE l.E\I1'EO. ATTACHED. 011 SOU] "".~ H,,,,rtl':. I, H~ Tp.chnoJ ogi"" Inc d/b/" Fir....id.. Hearth & Hanes ...' . ""_""..,,.,.TO..'O,,",T" 00,""".'. .pr "0,011",.0.0 ,..,.......,,"""tlPcO"", ..-.,..--- AT 3640 Ca'lcom!lOad York, PA 17402 1 IHOICATESERVlCE OP'ER~A,l ,LJPe"'SO~IN_~_"'~~~ .lOE~~... ~'~~6t_W1STCuutsWJl +JP08'T!'O '.JtmfEF NOVV - ~t.._&___~_.._..", ,20..Q..L.. I, SHERIF~ 0 NTY, PA, do hereby deputize \he sheri" 01 YOLk~.,__ ,. r.OUNTY'oexeCUlelh.1~)IlIri\'~k~retum~h , r<t1"!J to taw ThIS depulization _bei~g mad'! at the request and risk of the p1ain1lff ____.~ "':"";~';:<13 _ _. ~.~ i 9P!;CIAl.l.N$11tUcfU:)fitS OA OTffEIlt INf()1U4l.TIl)N n..A,T l.'V'ItlA.$SISl nt EXPEDITING. SEp\''1CE '_Ll1':e G-lLt % ';,t'l'''''':L. , '--Ll,""~J...~ lt1dllJ\ yOU. rL'avelars ~rty Cdsualty Canpdny of i'Jner:!:.ca Please llla.il P-~turl; '.::>[ 5erY'JCe ';0 CtmOer-lano COt.:nty ::'nl:-'..r~:tt. o..dVu.>'\wl ~,yj ~('~ . ._ NiIJR: ONL V ~uo~ ON OF EJI:. liON: ".8. AJYI;ft Qa:: WM,TCHMAM . ~ ~ snenl" leVying ~ ClI ~ lift)' pmpiItty' "'*, WiIlM ""'" tMylftW UtI'Il!!' wilNMIla~. inCUlCoCtr d~r" ncIln POUMI'On.~' !'IClltt1ftODel'lOn oIlny Of :M'\JIeh1t'lll'l'l1. WI\houlllaOll....on thf: Nftd 5UdI-*Puty or the ehlariftlO an, ~trff heIIlInlor.,IOQ.~.Of,~of.wr~brlOt'e"'~"'J.""elhweol' . ,TYPtMMl&dfIADORESSoIAlTO"NE'f!ORIC,..,"TORWldSlGNA-rURE - .5.1- r. j) 'd<, tlZora" ,[,"~' L t.v' ,;.r.' )""l1..< ,1JL: I 7<- ..(j. J fl . tV'ti, .;:)r, , ' I'f'''f J,J. 12 SEMD P4O'I1CE IIVIce ctJ/P'Y TO N'-"*. AND I\ODRESS atL (~.re. 'T'lfS1 ~'~Ied <f I'I.Ql~ '" 10 be ,,"-ledl ,4 '~~; ~~~,~ J~~~,~ DO NOT ~ IlELOW 1MS ~ lj I~O lit.~lrwctlP'Or1h.-""r'l - I.., 1\ 104 lJIlPoTEREClJvED r, lS~~f; ~_x_.._ \ C C, I, ',,' i , C;.;-(.;-.:, 'Q-f-c":::,, -----~-----.----_.-- - ---- ~-------_.------- -------.-- --~-- 1& \iO'N~ PeRSONAl! \ RESiQENCE I "os,jt.O( 1 POFI j SIil:RIFF'SOffIC[( I OT04Ill:( i srrR,EliIAfu(5Aom ~T'O'I~aM~.,~,.OU;;r;-~I.I?]I.Jll'lIJIlII*~loQIf!h,l'IdIWfulll~~,I!'It. nlmlld:lbl:M: (Serrtll1llltl-~.1 ..---- ,......' OF ~"-:ED~:~;~L~';YE!:"-'~;:~=;,":~""':;:" ~,Dm,,_.t l~""~= ,- ,M"'i '1:1: jY"" U'J:t'''l:l'~ l~rnT:-r"'I'?'" !T'r; ': .0 TEUiPHONE N~fl IS.(,.lf~-r:t<-<. '" / 'I ,~ .....\S,1 \- 10000" .., .. OATt 41.AFf:lfIME08I'd~ lO~melhrs ..., ""01___.2(1 _.3 pqoTHY I tfOlA~Y 1?DAl'i ~t. DAT! 5 1 OA TI! FtiECefVEC I 1M4fTE.lw.!\1~ Z PlHI( .A",Of~w 3 CAN,.,Jlty. S1'\'!'f1"lI01'1\r.r .. Blur:. ~'i0fl\a 2S;~6'=085 ~~:55 3D: ~.~581f.":' C'A''T'LOR "S I:J€ HEP?T~, R "0'11" . 717 60" 8166 PAGE C:J P.133/11 SEF-16-2005 05:45 .. LAW OFFICES FRANCIS R G,AflTNE~ & ASSOCIATES BY: PATRiCK 1. rv:ORM, E:SQUIRE .ATTORNEY 10 NO, 6'580 UNION MEETING. III SUITE 215 950.8 HARVEST DRIVl BLUE B:::LL, PA 1~?( '215\ 619.,J322 >\l!D'ney lor Plaintiffs IRA VFI ERS PROF!'RT\ CASU 1\,,"\ COMPANY OF AMERICA a/sla ::OONECKERS, '''c 1105 Rerkshire Bflulevard Wyomissing, PA 19610 '=OURT OF COMMON PlHS CJMBERLAND COIJNTV NO, 0S - ,y~.:n C0j.~~"'1 " HEARTH & HOME TECHNOLOGIES, INC and d/bla FIRESIDE HEARTH & HOMES ::\640 Concord Road York, PA 17402 and HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNFY SW'"'FP ?Sn Banbridgc RD3l! 8ainbridgE', i"A fiSO: L~Ol1i:J; You have been sued in Court If you wish to defend against the claims set forth in the following pages, you must take action wit~in twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attomey and filing in writing With the Coun your defenses or objections to the claims set forth against you. You are wamed that If you tail to do so, the case may proceed without you and a iudgmant may be entered against you by the Court without further notice for any money claimed in the Complaint Or for anv other claim or relief requested by the PJaintJft, 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 TO FIND OUT WHERE YOU CAN GET LEGAL HELP, AVISO r' ":'" '.. r_. , -.., ..... . . '"!-:' L...~~'~ ~r";/~ 1'1 _~~E'd~'~~ .-: I'ZDVz<,. " . ...... . :'9/'_; S/2f.j8: 3~':' S95S1 S2 CTA'!LC~ ~SIDE ~~~TH ~ ~ME 71? 600 8166 '"!..,.J:=: ~'::,.o. ~--' . SEP-16-2005 05'45 La han demandada a ustea en la corte, S; used quiere defenderse de eslas demandas expuestas en las paginas siqUlentes used liene veinte (20) dias de pl~za al partir de Ie feche de la demanda y la notiticaclDn Hace falta asentar una como"rencia eS"rita 0 en persona 0 con un abogado y emregar a la corte en forma escrita sus defensas 0 Sus obJet;tiones alas demandas en contra de su Op.!rsona Sea avisado Olll Sl us1ed 1"'0 se defiende, 13 carte torrar2 medidas y puede continuar 19 demanda en contra suya Sin prevlo avisa 0 nolificacion, Ademas, la corte puede dec.d,f ~ favor del demandante y ,equiere que usted cumple con lodas las pmvisiones de asta demanda. Usted puede pe'de, LLEVE ES1A DEMANDA A UN ABOGADO IMMEOIA lAMENTS, SI NO TIENE ABOGADO 0 $1 NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SE'RVICIQ VAY.'\ EN PERSONA 0 L1AMEPOR TELEFONO A LA OFICINA CUy.., DIRECCION SE ENCLJFNTRA ESCR1TA ABAJO PARA AVFRIGIJAR DONnF SE PURDE CQNSCQUIR LAWYER REFERRAL SERVICe, Cumberland County Bar Association 2 E. Liberty Avenue Carlisle, PA 717.249-3166 PAGE 0" P.04/11 , !>S/'l~,. ~D1J5 ~C: 55 30!..=958152 I:;T;j'/LJR esIDE -1E~TH & HOME . 717 601i! 8166 5EP--16-= 06:45 I AW ~;:'~lr1=(' FR,A,N(:IS P, G4H i h.f_k f. ~~~I.JLt~ I r-:~ BY' PAm:Ct\ J MORAtJ ESCUIRf: ATTORNEY 10, NO, 61580 UNION MEETING, ill SUIT!:: 215 960-8 HARVEST DRIVf 8lUi: BELL, FA 1(:14/7 (215) 619.432; Attorney for Plaintiffs TRAVEiERS PROPER;'( CASUALTY COMPANY OF AMERICA. als/o JONE.CKERS, INC 1105 Berl(shi", Boulevard Wyomissing, FA 19610 cou-n OF COMMON PLEAS CUMBERLAND COVNT( NO, v HEARTH & HOME TECHNOLOGIES, INC, and dlbla FIRESIDE HEART"! & HOMES 3640 CQOCOrd Road YorK, PA 17402 and HOWARD HAl DEMAN, d/b/a rlALDEMAN CHIMN~V SWEEP 2577 Banbridge Road I.la'nbridge, P A 17502 CIVIL ACTION COMPLA1Nl: Plaintiffs, Travelers Property Casualty Company of America, as subrogee of Doneckers, Inc" by and through their counsel, herein makes this Complaint against defendants and stale as follows: 1. Plaintiff. Travelers Property Casualty Company of America. is a Connecticut corporation engaged in the insurance business and lr8nsacls business in the Commonwealth of Pennsylvania at 1105 Berkshire Boulevard, Wyomissing, Pe~~~~rh!at'l~~ 19'310. PAGE 05 P.E1S/11 "' ~~9/.~;/~005 00:55 0-" "950' Eo" CT~"',-O;:' "'.-, ,o.SEE K;.P'FH & l.JJ'E . 71? 60121 8166 =-\6-2005 Ot'4S 2. Plaintiff, Doneckers, Inc, IS a Pennsylvania corporafion, which is ",Ulnonzeo tc conouct (Juslness 11'1 iI.e ,;omn.onwea1tt, of Pennsylvani" and has a principal place of business located at 409 N, State Street, Fphr"IA, Pennsylvania 17577 3, Defendant Hearth & Home Technologies Ine, d/b/a Fireside He'lrth R. Hnme, fherr~in'lft"f "Hearth R. Hom,,~") uoan inform3tion "net helief. is a Pennsylvania corporation, which IS authori"ed to conduct business in fhe Comrnonwealth of Pennsvlvaniel elnd has a princin~1 "I",.." of busi"f?sS I08"ted "I 3640 Concord Road. York, Pennsyfvania 17402, 4 Defendant, Howard Heideman, upon information and belief;s an adult individual who conducts business 8S Haldeman Chimney Sweep with a principal place of business located at 2577 8anbridge Road, Bainbridge. Pennsylvania 17502, 5, At all times relevant hereto [J1<linlifl Doneckers was in the furniture business and had furnished a model home loealed al1735 Eliza Way, Mecllamcsburg, PennsylvaClia, 6, At all times relevant hereto, defendant Hearth & Home " echnologies. Inc, (hereinafter "Hearth & Home") was in the business of, among other things. installing chimneys. 7 At all times relevant hereto, defendant, Howard Haldeman. dlbJa Haldeman Chimney Sweep (hereinafter 'Haldeman") was in the business of, among other things. installing Heat-N-GIo fireplaces. 2 PAGE BS P .86/11 ;::5;': 5::005 8;:: 55 3~_ S :;58i 52 eTA"LO:: SEP-16-2005 :36:46 .1?JE ;..IEP~T:-r & HOME ~ 71? 600 8166 8. Sometime prior to October 1. 2004. defendant Hearth & Home installed a chimney In the model home loc"tPod "t 1735 Eliza Way, Mechanicsbvrg, Pennsylvania, ~ Somelime prior 'Cl Odober 1, 2GO~, defendanl Haldeman installed n Heat N.Glo fireplace In the model home located at 1735 Eliza Way, Mechanlcsbvrg, Pennsvlvanla, 10 On or aboLlt OClober 1, 2004, a fire occurred at the model home located at 1735 Eliza Way M",r.h,mir.sbvrg, Pennsylvania 11, At all times relevant here, plaintiff Travelers Property Casualty Company of America (heremafter 'Traveters") insured Doneckers. Inc 12 As a result of the acts and lor omissions of defendant Hearth & Home. as more fully set forth below, plaintiff Travelers, was required, pursuant to the terms of the applicable insurance policy, to pay Doneckers, Inc for damages they sustained a5 " ",,,ull of the fire which occurred On October 1 200"i, COUNT I - NEGLIGENCE PLAINTIFFS v. DEFE:f'(O~NT, HEARTH & HOME TECH.NOLOGI!=S,)NC. 13, Plaintiffs incorporate by reference paragraphs 1 through 10 above as though fully set forth 81 length herein 14, The carelessness, recklessness and negligence of defendant Hearth & HarM, by and through its agents, servants. workmen and/or employees, consisted, inter alia, as follows: (a) creating a dangerous and/or hazardous condition, (b) allowing a dangerous andlor hazardous condition to exist: 3 L_ PAGE I.F P.07/11 - ;::~";:o-S/2JC5 'i3G: 55 30:5358152 CTAYLO~ ~SlLE ~=HRTH ~ ~OME . ":7 60<1 8166 SEO-16-2005 66'46 (,..\ t~ilin'] fr"'l rr0~,,?rh,' ;f\c:',t~lI thf"'o ':'""hi'T'f"o~!: (d) failing to properly installlhe flue pipe and assembly servicing the living room fireolace (e) falling to utilize the proper conneclion details; (f) failing to properly .nspect the chimney; (9.1 failmg to discover the dangerous conditions of the chimney, and (h) failing to warn of the dangerous and hazardous condition or the chimney, Ii) installing a cylindrical metal sleeve slip connector around the flue pipe in contradiction of the manufach"sos literature and guidelines. and (j) failing to discover an installation defect where a gap clearly existed vetween the flue pipes where Ih.. metal sleeve' connector once I?xisted. 15, As a di.ect and pmxlmate result of the carelessness. rE'ckl€ssness and negligence of defendant, Hearth & Home Technologies, by and through its agents. servants, workmen and/or employees, plaintiff suffered substantial damages 10 its property, 16, As a result of the carelessness. recklessness and negligence of defendant. Hearth & Home, plaintiff Doneckers suffered substantial property damage to its furniture in an amount of $100.353,11 4 FAGE 88 p.08/11 C9~lSf20@5 ~O:5~ 3n~ ~o,5e.lb:' CT.4'ti..OP ~ .S:DE HEAR7H 8. HIJ!'E . 717 600 8166 SEP-16,.2e(l5 126:46 1? As a result of the acts and/or omissions of defendant. Hearth & Homes, by and through its agents, servants, workmen and/or employees, plaintiff Travelers, was teq,,,,ed, pursuant to the terms of the 8Pphcable .nsurance polley to pay Ooneckers $100,35311 for damages to ils oroperty WHEREFORE. plaintiff. Travelers, as subrogee of Doneckers. Inc~. demands judgment against defendant Hearth & Homes in the amount of $100,353 11 plus interest and costs COUNT 1/ - NEGLIGENCE P'!'AINTlFFS v. DEFENDANT, HOWARD HALDEMAN, d/b/a HALDEMA.N CHIMNEY SWEEP 18~ Plaintiffs incorporate by reference paragraphs 1 through 17above as though fully set forth at length herein 19 The carelessness. recklessn!!!ls and negligence of defendant Haldeman by and through its agents, servants. workmen and/or employees, consisted. inter alia, as follows: (a) creating a dangerous and/or hazardous condition: (b) allowing a dangerous and/or hazardous condition to exist: (c) failing 10 properly inslalllhe Heat-N-Glo fireplace; (d) fBiling to properly install the flue pipe and connl!ction details; (I) failing to discover the dangerous conditions of the fireplace, and (9) failing 10 warn of the dangerous and hazardous condition of the fireplace, 5 PAGE ;jg P,1:l9/11 - DS~15!2085 0~:55 SEP-16-2e05 06:46 30:5958152 (TAYLOR ~51DE rlEP~TH & HOME 717 600 8166 . 20, As a direct and proximate result of the carelessness, recklessness and negligence of defendant, Haldeman. by and through its agents, ~ervants, workmen and/or employees, plaintiff suffered substantial damages to .ts property 21, As a result of the carelessness. reclllessness and negligence of defendant. Haldeman, plaintiff Doneckers suffered substantial property damage to its furniture in an amount of $100,35311, 17 As a I esull of the acts and/or omissions of rlefendan!, Haldeman, by and through 'Is agents servants, workmen and/or employees, plaintiff Travelers, was required. pursuant to the terms of the applicable insurance policy to pay Doneckers 5100,353,11 for damages to its property. WHEREFORE, plaintiff, Travelers. as subrogee of Donecksrs. Inc" demands judgment against defendant Haldeman in the amount of $100,35311 plus Interest and costs FRANCIS r.;:, GARTNER & ASSOCIATE'S .<1/ 5 1iClr:F10 fti#_ ------.-.-- PATRICK J ORAN, ESQUIRE BY Date 8/26/05 6 PAGE lD P.10/11 ~ 051.10/2825 DO: 55 30:SS58102 CTA'!lOR """'-1'0-"",<>:> 'lb'45 .RESIDE H:RPTH 3, HOME . PAGE 1: 7176008156 P.11/11 V E R I Fie AT ION I. Stephanie Indra. hereby depose and stale that am a ..;l.6r3f"1-,"" 1<rA.~J,Le..u"tiL- Of Travelers Property Casually Company of Am@rica l~e within named Plaintiff. and thai I am author'zed to take this Verification on , its behalf, and that thE' facts sel forth in the foregoing Complaint are true and correct, to the best of my knowledge, information and belief. I understand t1at false statements herein made are subject to the penalties of 18 Pa. C.S, Sect;on 4904. relat:ng In unsworn falsification to authorities, l~~ Trave ers Prope Casualty Company Ot America Daled:1-:..2 ,,-os::_ 0",351075 .". -,.,...,.. f""n,...... on.... ...... TOTAL P. 11 . , 't C.' John Flounlacker, Esquire Attorney 1.0. No. 73112 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108-0999 (717) 237.7134 FAX (717) 237.7105 E-Mail: ifIounlackeravtthlaw.com Attorneys for Defendants: HOWARD HALDEMAN d/b/a HALDEMAN CHIMNEY SWEEP TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, a/s/o DONECKERS, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs No, 05-4527 Civil Term v. HEARTH & HOME TECHNOLOGIES, INC. and d/b/a FIRESIDE HEARTH & HOMES, Defendants and HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP, Defendants ., NOTICE TO PLEAD TO PLAINTIFF: YOU ARE HEREBY REQUIRED to respond to the within New Matter within twenty (20) days of the date of service hereof or a default judgment may be entered against you. Respectfully submitted, Date: /J/7/oS By: 'It J Flounlacker, Esquire Attorney I.D. # 73112 P.O. Box 999 305 N. Front Street Harrisburg, PAl 71 08-0999 John Flounlacker, Esquire Attorney 1.0, No, 73112 THOMAS, THOMAS & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, Pennsylvania 17108-0999 (717) 237.7134 FAX (717) 237-7105 E-Mail: iflounlacker@tthlaw.com Attorneys for Defendants: HOWARD HALDEMAN d/b/a HALDEMAN CHIMNEY SWEEP IRA VELERS PROPERTY CASUALTY COMPANY OF AMERICA, a/s/o DONECKERS, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs No. 05-4527 Civil Term v. HEARTH & HOME TECHNOLOGIES, INC. and d/b/a FIRESIDE HEARTH & HOMES, Defendants and HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP, Defendants DEFENDANT HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW ONTO COURT, through undersigned counsel, comes the Defendant, Howard Haldeman, d/b/a Haldeman Chimney Sweep, who, in Answer to the Complaint of the Plaintiff, respectfully represent that: 1. Admitted that Plaintiffs are who they say they are. 2. Admitted that Plaintiffs are who they say they are. 3. The averments in this paragraph are directed towards another party and, therefore, no answer is required of Answering Defendant. 4. Admit. 5. The averments in this paragraph are denied generally in accordance with Pa.R.C.P. 1029(e). 6. The averments in this paragraph are directed towards another party and, therefore, no answer is required of Answering Defendant. 7. Admitted. 8, The averments in this paragraph are directed towards another party and, therefore, no answer is required of Answering Defendant. 9. Denied as stated. By way of further explanation, the Answering Defendant admits that he assisted in the installation of a fireplace at the location described in the Plaintiffs Complaint. 10, The averments in this paragraph are denied generally in accordance with Pa.R.c.P. 1029(e). 11. The averments in this paragraph are denied generally in accordance with Pa.R.C.P. 1029(e), 12. The averments in this paragraph are directed towards another party and, therefore, no answer is required of Answering Defendant. By way of further explanation, the averments in this paragraph are denied generally in accordance with Pa.R.c.P. 1029(e). COUNT I - NEGLIGENCE PLAINTIFFS v. DEFENDANT, HEARTH & HOME TECHNOLOGIES, INC. 13. Paragraphs I through 10 of Defendant's answer are incorporated herein and made a part hereof as if set forth in full. 14. The averments in Paragraph 14(a) through G) are directed towards another party and, therefore, no answer is required of Answering Defendant. 2 I J 15. The averments in this paragraph are directed towards another party and, therefore, no answer is required of Answering Defendant 16. The averments in this paragraph are directed towards another party and, therefore, no answer is required of Answering Defendant 17. The averments in this paragraph are directed towards another party and, therefore, no answer is required of Answering Defendant COUNT II - NEGLIGENCE PLAINTIFFS v. DEFENDANT. HOWARD HALDEMAN. d/b/a HALDEMAN CHIMNEY SWEEP 18. Paragraphs 1 through 17 of Defendant's answer are incorporated herein and made a part hereof as if set forth in full. 19. The Answering Defendant submits that any allegations contained within this paragraph of the Plaintiffs Complaint alleging any carelessness, recklessness or negligence on the part of the Answering Defendant amount to legal conclusions which require no answer. By way of further explanation, those averments are specifically denied. 20. The Answering Defendant submits that any allegations contained within this paragraph of the Plaintiffs Complaint alleging that any of the Answering Defendant's conduct was negligent, reckless or careless or that any of the Answering Defendant's conduct amounted to a direct and/or proximate cause for the Plaintiffs damages amount to legal conclusions which require no answer. By way of further explanation, the Answering Defendant submits that the allegations contained within the paragraph of the Plaintiffs Complaint amount to legal conclusions which require no answer. 21. The Answering Defendant submits that the allegations contained within this paragraph of the Plaintiff s Complaint alleging that the Answering Defendant was careless, reckless or negligent 3 amount to legal conclusions which require no answer. .By way of further explanation, those averments are specifically denied. By way offurther explanation, the remains of the averments in this paragraph of Plaintiff's Complaint are denied as after reasonable investigation, Answering Defendant lacks information or knowledge sufficient to form a basis to the belief as to the truth of the averments contained in this paragraph and same are therefore denied, strict proof being demanded at trial, if relevant. 17. Denied. NEW MATTER 18. The Plaintiff may have failed to state a cause of action upon which relief can be granted. 19. Future discovery may show that some and/or all of the Plaintiff's claims would be reduced and/or barred by operation of the applicable statute oflimitations. 20. Future discovery may show that the Plaintiff's Complaint has failed to state a cause of action against the Answering Defendant for which relief can be granted. 21. Future discovery may show that the Answering Defendant was not negligent. 22. Future discovery may show that the Answering Defendant's conduct was not a substantial factor in bringing about the Plaintiff's harm and/or damages. 23. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial causes or factors of the subject incident and did not result in the damages or losses as alleged by the Plaintiff. 24. Future discovery may show that the negligent acts and/or omissions of other individuals and/or entities may have constituted an -intervening, superseding cause of the damage and/or losses alleged to have been sustained by the Plaintiff. 4 25. Future discovery may show that the incident or damages allegedly to have been sustained by the Plaintiff were not proximately caused by the Answering Defendant. 26. Future discovery may show the Plaintiffs may not have properly mitigated their damages. 27. At all times relevant to the incident as averred to in the Plaintiff's Complaint, the Answering Defendant conducted themselves in a reasonable manner. 28. At all times relevant to the incident as averred to in the Plaintiffs Complaint, the Answering Defendant honored any obligations it may have owed to the parties in this litigation. 29, Future discovery may show that some and/or all of the Plaintiff's claims may be reduced and/or barred by operation of release, collateral estoppel, waiver, laches, or the doctrine of spoliation of evidence, WHEREFORE, Defendant, Howard Haldeman, d/b/a Haldeman Chimney Sweep, hereby prays that the Complaint be dismissed in its entirety, at the cost of Plaintiff, and judgment entered in his favor. NEW MATTER PURSUANT TO PA.R.C.P. 2252 DIRECTED TO HEARTH & HOME TECHNOLOGIES, INC. d/b/a FIRESIDE HEARTH & HOMES If Plaintiff is able to prove the alleged allegations within his Complaint then the Defendant, Howard Haldeman, d/b/a Haldeman Chimney Sweep, in accordance with the Pennsylvania Rules of Civil Procedure of 2252(d) hereby joins Defendants Hearth & Home Technologies, Inc. d/b/a Fireside Hearth & Homes, for the purpose of contribution and/or indemnification, hereby averments said Defendants are alone liable to Plaintiff, are liable over to Defendant or are jointly or severally liable to/with the joined Defendant. 5 Respectfully submitted, Date: 11/'7/0S By: Jo Flounlacker, Esquire Attorney I.D. # 73112 P.O. Box 999 305 N, Front Street Harrisburg, P A 17108-0999 (71 7)237- 7134 384991.1 6 VERIFICATION I, Defendant, Howard Haldeman, d/b/a Haldeman Chimney Sweep, hereby state that the statements made in the foregoing document(s) are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa,C.S.A. 94904 relating to unsworn falsification to authorities. d IIJ0' Howard Haldeman d/b/a Haldeman Chimney Sweep CERTIFICATE OF SERVICE I, Sharon 1. Romig, an employee for the law firm of Thomas, Thomas & Hafer, LLP, hereby state that a true and correct copy of the foregoing document( s) was served upon all counsel of record by United States first-class mail, postage prepaid, addressed as follows, on the date set forth below: Patrick J. Moran, Esquire Francis R. Gartner & Associates Union Meeting, III, Suite 215 960-B Harvest Drive BlueBell,PA 19422 Attorneys for Plaintiffs Lynanne B. Wescott, Esquire The Wecott Law Firm P.c. 239 South Camac Street Philadelphia, P A 19107-0324 Attorneys for Defendant Hearth & Home Technologies, Inc. THOMAS, THOMAS & HAFER, LLP Dated: I / J 1 /05 r;:fl,d/(/XJ::P, ~(j haron 1. Romig 384988,1 " >" (..J.) \ C;J ~-(' ;".) ",0 ,.. . TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, als/o DONECKERS, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, v. CASE NO.: 05-4527 HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES and Civil Term HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP Defendants ANSWER TO NEW MATTER PURSUANT TO PA R.c.P. 2252 Denied as a conclusion oflaw. Any facts that are alleged in this sununary paragraph are denied. Hearth & Home Technologies Inc. incorporates its answer, new matter and counterclaim filed in this case. WHEREFORE, defendant Hearth & Home Technologies Inc. requests the Complaint be dismissed and costs and attorneys fees awarded to it. Respectfully, ~S~E~ Attorney ID 52928 The Wescott Law Firm P.C. 239 S. Camac Street Philadelphia, P A 19107 Dated: November 22, 2005 CERTIFICATE OF SERVICE I, Lynanne B. Wescott, served the foregoing on counsel for the parties in this action, or on the parties who have not yet retained counsel, on the date set forth below by first class United States mail, postage prepaid, addressed as follows: Patrick J, Moran, Esquire Law Offices of Francis R. Gartner & Associates Union Meeting, III, Suite 215 960-B Harvest Drive Blue Bell, P A 19422 John Flounlacker, Esquire PO Box 999 305 N. Front Street Harrisburg, P A 17108 ~cff~~?Y Dated: November 22, 2005 C) ,...on <:: I.,,;'.,) --,. .; ..) C:J , t TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, a/s/o DONECKERS, INC, Plaintiff, v. HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES et al: Defendants HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES et al: Third Party Plaintiff v. PENN NATIONAL INSURANCE 2 North Second Street Harrisburg, PA 17105 Third Party Defendant: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CASE NO.: 05-4527 Civil Term ACCEPTANCE OF SERVICE I agree to accept service on behalf of Third Party Defendant Penn National Insurance and I am authorized to do so. The date of service is Nov. J ~ 02005" . Dated: ~~A:1i.~ Title: / f..UtL /-lad>>.- .," (. CERTIFICATE OF SERVICE I, Lynanne B. Wescott, served the foregoing on counsel for the parties in this action, or on the parties who have not yet retained counsel, on the date set forth below by first class United States mail, postage prepaid, addressed as follows: Patrick J, Moran, Esquire Law Offices of Francis R. Gartner & Associates Union Meeting, III, Suite 215 960-B Harvest Drive Blue Bell, PA 19422 John Flounlacker, Esquire PO Box 999 305 N. Front Street Harrisburg,PA 17108 Lambros Z. Economides Kokonos & Economides One Veterans Square, Suite 201 Media, PA 19063 ~<<a ~~7!- Lyn e B. Wescott Dated: November 30, 2005 r." ,) ,-, rT-: ._ '. ~ , C./ .,-; II . .... Kokonos & Economides Attorneys at Law By: Lambros Z. Economides Attorney Id No. 77536 One Veterans Square, Suite 201 Media, PA 19063 610-566-4325 Attorney for Defendant, Penn National Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TRAVELERS PROPERTY COMPANY OF AMERICA DONECKERS, INC. CASUALTY a/s/o Plaintiff (s) , CASE NO. 05-4527 v. Civil Term HEARTH AND HOME TECHNOLOGIES INC., d/b/a/ FIRESIDE HEARTH AND HOMES, Et al. Defendants HEARTH AND HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH AND HOMES, Et al. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY 2 North Second Street Harrisburg, PA 17105 Third Party Defendant ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Lambros Z. Economides, Esquire of the Law Firm of Kokonos & Economides, on behalf of defendant, PENN NATIONAL INSURANCE, in this matter. 11 .. ,~- .. Date: Respectfully Submitted, Kokonos & Economides IZ /-t/t .; ._~-" v-.~ By. T\ ( .... . J--- Lambros Z. Economides, Esquire Attorney ID NO. 77536 One Veterans Square, Suite 201 Media, PA 19063 (610) 566.-4325 o c: "",-. '^"'C,\s..; n\, -"'/ < 7~! 0) r-" '~:~~ ~ .-<. ,..-> = = "-" o f""\ " v:::I -0 :l1O Cf! N N o .., --' ::t:.." r1'\p -oi:!\ 'nO ,~)(-) ,;;:.1-,.., (25 ;;;-;rf"i '-"\ s.. .~ . '. .~ Kokonos & Economides Attorneys at Law By: Lambros Z. Economides Attorney Id No. 77536 One Veterans Square, Suite 201 Media, PA 19063 610-566-4325 Attorney for 'rhird party Defendant, Penn National Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA a/s/o DONECKERS, INC. Plaintiff(s) CASE NO. 05-4527 v. Civil Term HEARTH AND HOME TECHNOLOGIES INC. d/b/a/ FIRESIDE HEARTH AND HOMES, Et al. Defendants HEARTH AND HOME TECHNOLOGIES INC. d/b/a FIRESIDE HEARTH AND HOMES, Et al. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY Third Party Defendant. NOTICE TO PLEAD To: HEARTH AND HOME TECHNOLOGIES INC. d/b/a FIRESIDE HEARTH AND HOMES You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or judgment may be entered against you. .', By: Kokonos & Economides JQ-~~ Lambros Z. Economides, Esquire Counsel for Third Party Defendant ,', '. Kokonos & Economides Attorneys at Law By: Lambros Z. Economides Attorney Id No. 77536 One Veterans Square, Suite 201 Media, PA 19063 610-566-4325 Attorney for Third Party Defendant, Penn National Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA a/s/o DONECKERS, INC. Plaintiff(s) v. HEARTH AND HOME TECHNOLOGIES INC. d/b/a/ FIRESIDE HEARTH AND HOMES, Et al. Defendants HEARTH AND HOME TECHNOLOGIES INC. d/b/a FIRESIDE HEARTH AND HOMES, Et al. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY Third Party Defendant. CASE NO. 05-4527 civil Term ANSWER OF THIRD PARTY DEFENDANT PENN NATIONAL INSURANCE COMPANY WITH NEW MATTER AND NOW, Third Party Defendant, Penn National Insurance ("penn National"), by and through its undersigned counsel, Kokonos and Economides filed this Answer and New Matter to the complaint filed by Third Party Plaintiff, Hearth & Home Technologies, Inc. ("Hearth & Home") and states as follows: 1. Admitted without adoption or admission by Penn National of any allegations raised in the complaint filed by Plaintiff, Travelers Property Casualty Company of America. , . 2. Admitted. 3. Admitted without adoption or admission by Penn National of any allegations raised in the complaint filed by Plaintiff, Travelers Property Casualty Company of America. 4. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. 5. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. 6. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. 7. Denied. Pursuant to the Haldeman contract, Haldeman and Penn National were not required to indemnify, defend and hold Hearth & Home harmless from any and all claim, liability or damages. 8. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient 2 to form a belief as to the truth of these averments and accordingly, said averments are denied. Strict: proof is demanded at time of trial. 9. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and accordingly, said averments are denied. Strict proof is demanded at time of trial. 10. Admitted. 11. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations are specifically denied. Strict proof to the contrary is demanded at time of trial. 12. Admitted, except Penn National's obligations to defend and pay a claim are limited by the terms of the policy. 13. Admitted, except Penn National's obligations to defend and pay a claim are limited by the terms of the policy. 14. Denied, the Penn National policy does not provide defense and indemnification for the negligence of someone other than the named insured. Penn National is not required to defend and indemnify Hearth & Home for its own negligence. 15. It is admitted that on or about October 1, 2004 a fire occurred at said property. It is further admitted that 3 Plaintiff has made allegations against Defendants in this matter, however, such allegations are not admitted or adopted by Penn National. 16. Admitted. 17. Denied. Hearth & Home was not added as an additional insured and is not entitled to coverage under the Policy for the alleged fire that occurred on October 1, 2004 at said property. 18. Admitted. 19. Denied in part; admitted in part. It is denied that the Traveler's complaint states a claim that entitles Hearth & Home to coverage under the policy. It is admitted that Penn National notified Hearth & Home that it would neither defend nor indemnify Hearth & Home. COUNT ONE (Breach of Contract) 20. Third party Defendant incorporates by reference paragraphs 1 through 19 of this Pleading as if the same was set forth fully at length herein. 21. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations are specifically denied. Strict proof to the contrary is demanded at time of trial. 4 22. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations are specifically denied. Strict proof to the contrary is demanded at time of trial. 23. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. WHEREFORE, Third Party Defendant, Penn National respectfully requests that this Honorable Court enter judgment in its favor together with all attorney's fees, costs and for such other and further relief as the Court deems appropriate. COUNT TWO (Breach of Covenant of Good Faith and Fair Dealing) 24. Third Party Defendant incorporates by reference paragraphs I through 23 of this pleading as if the same were set forth fully at length herein. 25. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations 5 are specifically denied. Strict proof to the contrary is demanded at time of trial. 26. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. 27. Denied that any award or judgment will be within the coverage and terms of the Policy and the Haldeman contract. After reasonable investigation, answering Third party Defendant is without knowledge or information sufficient to form a belief as to the truth of the additional averments in this paragraph and, accordingly, said averments are denied. Strict proof is demanded at time of trial. WHEREFORE, Third Party Defendant, Penn National respectfully requests that this Honorable Court enter judgment in its favor together with all attorney's fees, costs and for such other or further relief as the Court deems appropriate. COUNT TWO (Declaratory Judqrnent) 28. Third Party Defendant incorporates by reference paragraphs 1 through 27 of this pleading as if the same were set fully at length herein. 6 WHEREFORE, Third Party Defendant, Penn National Insurance respectfully requests that this Honorable Court enter judgment in its favor together with all attorney's fees, costs and for such other and further relief as the Court deems proper. NEW MATTER The Answering Third Party Defendant, by and through its attorneys avers the following New Matter: 35. Third party Defendant affirmatively alleges that there has been total failure of consideration for the purported coverage that Third Party Plaintiff claims its entitled to under the Haldeman Policy. 36. Third party Defendant affirmatively alleges that the contract on which Third Party Plaintiff brings this cause of action is illegal, and therefore, unenforceable. 37. Third Party Defendant affirmatively alleges that Third Party Plaintiff's claim is barred by the doctrine of Laches, because its excessively delayed in bringing this action and it failed to notify Third Party Defendant of its claim in which this action is based in a timely manner. 38. Third party Defendant affirmatively alleges that Third Party Plaintiff's cause of action is not maintainable, because the claim which Third Party Defendant is sought to be held liable for is based on an agreement covered by the statute of frauds. Third Party plaintiff was not a named additional insured under the Policy or the agreement between Howard 8 Haldeman and Third Party Plaintiff. The alleged Policy and agreement for coverage and indemnification was not in writing, nor was it evidenced by a written memorandum, as required in order to be enforceable under the provisions of the Statute of Frauds. 39. Third Party Defendant affirmatively alleges that Third Party Plaintiff's right to maintain this action is barred by the statute of limitations. 40. Third Party Defendant affirmatively alleges that the alleged occurrence or accident referred to in the complaint resulted from an unavoidable accident. 41. As a separate and affirmative defense to Third Party Plaintiff's complaint, Third Party Defendant alleges that Third Party Plaintiff's failure to enforce provisions under the Haldeman agreement constituted a waiver. Consequently, Third Party Plaintiff has waived its rights to enforce against Haldeman or Third Party Defendant any rights it may have had under the Haldeman Agreement or the Policy. 42. Third party plaintiff is estopped from asserting any rights or claims it may have under the Haldeman Agreement or the Policy because it failed to notify Third Party Defendant or Haldeman of its rights under the Haldeman Agreement and/or the Policy issued by Penn National Insurance. 43. Third Party Plaintiff's cause of action and the subject matter and the parties to this action are the same as the 9 pending action in the United States District Court, Middle District of Pennsylvania, and therefore, this cause of action is barred by the doctrine of Res Judicata and Collateral Estoppel. 44. Third party Defendant alleges that the Howard Haldeman agreement does not require Howard Haldeman or Third Party Defendant to indemnify and hold harmless Third Party Plaintiff for its own negligence. 45. The Third Party Defendant avers that the Haldman Agreement does not require Howard Haldeman or Third Party Defendant to indemnify and hold Hearth & Home harmless from its own negligence. The agreement was made with the knowledge of the universal custom in the fireplace and chimney installation business of not indemnifying the contractor or supplier for its own negligence. Third Party plaintiff and Howard Haldeman were engaged in the fireplace and chimney installation business for a great number of years. The above custom was known to, and understood by, the Third Party Plaintiff and Howard Haldeman and the custom in the trade was so certain, uniform and obvious as to be well known and universally followed in the fireplace and chimney installation trade. 46. Third Party Plaintiff's complaint fails to state a cause of action upon which relief can be granted against Third Party Defendant. 47. Third Party Plaintiff lacks the proper standing to bring a cause of action against Third Party Defendant, due to the lack 10 of assignment of the Haldeman contract and because they were not a party to the Policy. 48. Third Party Defendant breached no duty to Third Party Plaintiff in denying the defense and indemnification of the underlying claim. 49. Third Party Defendant had no duty to indemnify and defend Third Party Plaintiff in the underlying claim. Third Party Plaintiff, Howard Haldeman and Third Party Defendant lacked the mutual assent to require Third Party Defendant to provide defense and indemnification for Third Party Plaintiff's own negligence and to add Third Party Plaintiff as an additional insured under the Policy. 50. Third Party Plaintiff's claims are barred on the basis that Third Party Plaintiff does not qualify as an "insured" or "additional insured" under the subject Penn National Insurance Policy. 51. Third Party Plaintiff's claims are barred on the basis that the Haldeman agreement does not qualify as an "insured contract" under the Policy. 52. Answering Third Party Defendant is not bound by the terms of the agreement attached to Third Party Plaintiff's complaint. 53. Answering Third Party Defendant is not obligated to indemnify and defend Third Party Plaintiff for its own negligence. 11 54. Third Party Plaintiff's claims are barred for lack of mutuality of obligation under the agreement attached to Third Party Plaintiff's complaint and the Policy. 55. Third Party Plaintiff's complaint fails to allege that all conditions precedent under the agreement attached to Third Party Plaintiff's complaint and the Policy are met. 56. Third party Plaintiff failed to meet the conditions precedent under the agreement attached to the Third Party Plaintiff's complaint and the Policy. 57. Third party plaintiff's claims are barred on the basis that the agreement attached to Third Party Plaintiff's complaint is silent, and therefore, insufficiently specific, uncertain and elusive with respect to the nature and extent of any duties and obligations of Third Party Plaintiff and Third Party Defendant. 58. Third party Plaintiff's claims are barred on the basis of mutual mistake of the parties with respect to the following material fact, the nature, purpose and extent of any requirements to indemnify and defend against any and all losses. 59. Third party Plaintiffs are estopped from bringing their claims due to their own breach. 60. The alleged acts or omissions of Third Party Defendant were not the proximate cause of Third Party Plaintiff's alleged damages. Third Party Plaintiff's alleged losses have been caused, if at all, as a direct and proximate result of the 12 conduct and activity of persons over whom answering Third Party Defendant had no control. 61. Third Party Plaintiff's damages, and or, claims, if any, were caused or contributed to by the acts and or omissions of Third Party Plaintiffs, its representatives, employees, agents or affiliates. 62. The agreement attached to Third party Plaintiff's complaint is not complete, or in the alternative, Third Party Plaintiff has breached such contract or failed to perform under such contract, therefore, all claims are barred in whole or in part. 63. Third party Plaintiff's claim is barred in whole or in part by the doctrine of spoliation of evidence. 64. Third party Plaintiff has failed to join all persons and parties necessary and indispensable for this action, and accordingly, this action must be dismissed. Respectfully Submitted, Date: / -1.0 -O,?" By: ~ 0 (ct~ LamBros Z. Economides Esquire Attorney Id No. 77536 KOKONOS & ECONOMIDES One Veterans Square, Suite 201 Media, PA 19063 Phone:(610) 566-4325 Fax: (610) 789-0812 Attorney for Third Party Defendant Penn National Insurance Company 13 VERIFICATION I, Heather Arnold, an employee and/or agent of Third party Defendant in the above captioned matter am familiar with the facts of this case and verify that the statements made in foregoing Answer and New Matter to Third Party Plaintiffs' complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S4904, relating to unsworn falsification to authorities. "e., 1//0' flkl/Ut Ykvli~ Heather Arnold Team Leader Penn National Insurance Company Kokonos & Economides Attorneys at Law By: Lambros Z. Economides Attorney Id No. 77536 One Veterans Square, Suite 201 Media, PA 19063 610-566-4325 Attorney for Third Party Defendant, Penn National Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA a/s/o DONECKERS, INC. P1aintiff(s), CASE NO. 05-4527 v. Civil Term HEARTH AND HOME TECHNOLOGIES INC., d/b/a/FIRESIDE HEARTH AND HOMES, Et al. Defendants HEARTH AND HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH AND HOMES, Et al. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY Third Party Defendant Certification of Service I, Lambros Z. Economides, Esquire hereby certify that on Friday, January 20, 2006 I caused a true and correct copy of the attached Notice to Plead, Answer, New Matter to be served upon the following attorney by First Class Mail, postage pre-paid: Lynanne Westcott, Esquire Westcott Law Firm 239 Camac Street Philadelphia, PA 19107 Patrick J. Moran, Esquire Law Office of Francis R. Gartner and Associates Union Meeting, III, Suite 215 960-B Harvest Drive Blue Bell, PA 19422 Date: / . 2.-0 - '0 Go Lynanne Westcott, Esquire Westcott Law Firm 239 Camac Street Philadelphia, PA 19107 By: ~b Lambros z. Eco~omides Esquire KOKONOS AND ECONOMIDES Attorney for Third Party Defendant Penn National Insurance Company ? ,,i) '-'" }:) ~ J;: ~ ,,,"- "x..J 'c;-\ 'S c. 'h \' " " .' ~ -, -..,-- <;J' ~ ("5 ~-., , Kokonos & Economides Attorneys at Law By: Lambros Z. Economides Attorney Id No. 77536 One Veterans Square, Suite 201 Media, PA 19063 610-566-4325 Attorney for Third Party Defendant, Penn National Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA a/s/o DONECKERS, INC. Plaintiff(s) I CASE NO. 05-4527 v. civil Term HEARTH AND HOME TECHNOLOGIES INC. d/b/a/ FIRESIDE HEARTH AND HOMES, Et al. Defendants HEARTH AND HOME TECHNOLOGIES INC. d/b/a FIRESIDE HEARTH AND HOMES, Et al. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY Third Party Defendant. NOTICE TO PLEAD To: HEARTH AND HOME TECHNOLOGIES INC. d/b/a FIRESIDE HEARTH AND HOMES You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or judgment may be entered against you. By: Kokonos & Economides Lambros Z. Economides, Esquire Counsel for Third Party Defendant I I' I 1 I I Kokonos & Economides Attorneys at Law By: Lambros Z. Economides Attorney Id No. 77536 One Veterans Square, Suite 201 Media, PA 19063 610-566-4325 Attorney for Third Party Defendant, Penn National Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TR~VELERS PROPERTY CASUALTY COMPANY OF' .l\lVIERICA a/s/o DONECKERS, INC. Plaintiff (S) CASE NO. 05-4527 v. civil Term HEARTH AND HOME TECHNOLOGIES INC. d/b/a/ FIRESIDE HEARTH AND HOMES, Et al. Defendants HEARTH AND HOME TECHNOLOGIES INC. d/b/a FIRESIDE HEARTH AND HOMES, Et al. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY Third Party Defendant. ANSWER OF THIRD PARTY DEFENDANT PENN NATIONAL INSURANCE COMPANY WITH NEW MATTER AND NOW, Third Party Defendant, Penn National Insurance (npenn Nationaln), by and through its undersigned counsel, Kokonos and Economides filed this Answer and New Matter to the complaint filed by Third Party Plaintiff, Hearth & Home Technologies, Inc. (nHearth & Homen) and states as follows: 1. Admitted without adoption or admission by Penn National of any allegations raised in the complaint filed by Plaintiff, Travelers Property Casualty Company of America. 2. Admitted. 3. Admitted without adoption or admission by Penn National of any allegations raised in the complaint filed by Plaintiff, Travelers Property Casualty Company of America, 4. Denied. After reasonable investigation, answering Third pa.rt_y Defendant. is i,\Ti thOi_1t kno-dledge 0:::- iY"lf8rmEttior.. ~"+-C~.....~ ___,-'- ;::::; L-l..1..J... ..L........LCt~l.. to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. 5. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. 6. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. 7. Denied. Pursuant to the Haldeman contract, Haldeman and Penn National were not required to indemnify, de=end and hold Hearth & Home harmless from any and all claim, liability or damages. 8. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient 2 to form a belief as to the truth of these averments and accordingly, said averments are denied. Stric~ proof is demanded at time of trial. 9. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form 8" belief as to the truth af t_hese averment.3 2tnd accordingly, said averments are denied. Strict proof is demanded at time of trial. 10. Admitted. 11. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations are specifically denied. Strict proof to the contrary is demanded at time of trial. 12. Admitted, except Penn National's obligations to defend and pay a claim are limited by the terms of the policy. 13. Admitted, except Penn National's obligations to defend and pay a claim are limited by the terms of the policy. 14. Denied, the Penn National policy does not provide defense and indemnification for the negligence of someone other than the narned insured. Penn National is not required to defend and indemnify Hearth & Home for its own negligence. 15. It is admitted that on or about October 1, 2004 a fire occurred at said property. It is further admitted that ? ~ Plaintiff has made allegations against Defendants in this matter, however, such allegations are not admitted or adopted by Penn National. 16. Admitted. 17. Denied. Hearth & Home was not added as an additional insured and is not entitled to coverage under the Policy for the alleged fire that occurred on October 1, 2004 at said property. 18. Admitted. 19. Denied in part; admitted in part. It is denied that the Traveler's complaint states a claim that entitles Hearth & Home to coverage under the policy. It is admitted that Penn National notified Hearth & Home that it would neither defend nor indemnify Hearth & Home. COUNT ONE (Breach of Contract) 20. Third party Defendant incorporates by reference paragraphs 1 through 19 of this Pleading as if the same was set forth fully at length herein. 21. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations are specifically denied. Strict proof to the contrary is demanded at time of trial. 4 22. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations are specifically denied. Strict proof to the contrary is dema.nded at time of trial" 23. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordingly, said averments are denied. Strict proof is demanded at time of trial. WHEREFORE, Third Party Defendant, Penn National respectfully requests that this Honorable Court enter judgment in its favor together with all attorney's fees, costs and for such other and further relief as the Court deems appropriate. COUNT TWO (Breach of Covenant of Good Faith and Fair Dealinq) 24. Third Party Defendant incorporates by reference paragraphs 1 through 23 of this pleading as if the same were set forth fully at length herein. 25. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law. If any of the allegations are deemed to be factual in nature, the allegations 5 are specifically denied. Strict proof to the contrary is demanded at time of trial. 26. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and, accordiDgly, said averments are denied, Strict proof is demanded at time of trial. 27. Denied that any award or judgment will be Ivithin the coverage and terms of the Policy and the Haldeman contract. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of the additional averments in this paragraph and, accordingly, said averments are denied. Strict proof is demanded at time of trial. WHEREFORE, Third Party Defendant, Penn National respectfully requests that this Honorable Court enter judgment in its favor together with all attorney's fees, costs and for such other or further relief as the Court deems appropriate. COUNT TWO (Declaratory Judgment) 28. Third Party Defendant incorporates by reference paragraphs 1 through 27 of this pleading as if the same were set fully at length herein. 6 29. Denied. The allegations contained in this paragraph are directed to a party other than answering Third Party Defendant, therefore, no answer is required. 30. Denied that Hearth & Home was added as an additional insured and is entitled to coverage under the Policy and that the compla_int. filed by Tra.velers v,7ould trigger slJch coverage. Admitted that Penn National has refused to defend and indemnify Hearth & Home. 31. Denied. The allegations in this paragraph are directed to a party other than answering Defendant. Therefore, no answer is required. 32. Denied. After reasonable investigation, answering Third Party Defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and accordingly, said averments are denied. Strict proof is demanded at time of trial. 33. Denied. Answering Third Party Defendant is advised that the averments contained in this paragraph constitute conclusions of law and are deemed denied as a matter of law" If any of the allegations are deemed to be factual in nature, the allegations are specifically denied. Strict proof to the contrary is demanded at time of trial. 34. Denied. The allegations contained in this paragraph are directed to a party other than answering Defendant. Therefore, no answer is required. 7 WHEREFORE, Third Party Defendant, Penn National Insurance respectfully requests that this Honorable Couri: enter judgment in its favor together with all attorney's fees, costs and for such other and further relief as the Court deems proper. NEW MATTER The P..r:s\verir..g Third Party Defend3.!lt j by c_nd through its attorneys avers the following New Matter: 35. Third Party Defendant affirmatively alleges that there has been total failure of consideration for the purported coverage that Third Party Plaintiff claims its entitled to under the Haldeman Policy. 36. Third party Defendant affirmatively alleges that the contract on which Third Party Plaintiff brings this cause of action is illegal, and therefore, unenforceable. 37. Third Party Defendant affirmatively alleges that Third Party Plaintiff's claim is barred by the doctrine of Laches, because its excessively delayed in bringing this action and it failed to notify Third Party Defendant of its claim in which this action is based in a timely manner. 38. Third Party Defendant affirmatively alleges that Third Party Plaintiff's cause of action is not maintainable, because the claim which Third Party Defendant is sought to be held liable for is based on an agreement covered by the statute of frauds. Third Party plaintiff was not a named additional insured under the Policy or the agreement between Howard 8 Haldeman and Third Party Plaintiff. The alleged Policy and agreement for coverage and indemnification was not in writing, nor was it evidenced by a written memorandum, as required in order to be enforceable under the provisions of the Statute of Frauds. 39. ~hird P~rty ~efend~nt ~ffirmatively alleges that Third Party Plaintiff's right to maintain this action is barred by the statute of limitations. 40. Third Party Defendant affirmatively alleges that the alleged occurrence or accident referred to in the complaint resulted from an unavoidable accident. 41. As a separate and affirmative defense to Third Party Plaintiff's complaint, Third Party Defendant alleges that Third Party Plaintiff's failure to enforce provisions under the Haldeman agreement constituted a waiver. consequently, Third Party Plaintiff has waived its rights to enforce against Haldeman or Third Party Defendant any rights it may have had under the Haldeman Agreement or the policy. 42. Third Party Plaintiff is estopped from asserting any rights or claims it may have under the Haldeman Agreement or the Policy because it failed to notify Third Party Defendant or Haldeman of its rights under the Haldeman Agreement and/or the policy issued by Penn National Insurance. 43. Third Party Plaintiff's cause of action and the subject matter and the parties to this action are the same as the 9 pending action in the United States District Court, Middle District of Pennsylvania, and therefore, this cause of action is barred by the doctrine of Res Judicata and Collateral Estoppel. 44. Third Party Defendant alleges that the Howard Haldeman agreement does not require Howard Haldeman or Third Party nef2ndant to indemnify ~nd hold harmless Third Party Plaintiff for its own negligence. 45. The Third Party Defendant avers that the Haldman Agreement does not require Howard Haldeman or Third Party Defendant to indemnify and hold Hearth & Horne harmless from its own negligence. The agreement was made with the knowledge of the universal custom in the fireplace and chimney installation business of not indemnifying the contractor or supplier for its own negligence. Third Party Plaintiff and Howard Haldeman were engaged in the fireplace and chimney installation business for a great number of years. The above custom was known to, and understood by, the Third Party Plaintiff and Howard Haldeman and the custom in the trade was so certain, uniform and obvious as to be well known and universally followed in the fireplace and chimney installation trade. 46. Third Party Plaintiff's complaint fails to state a cause of action upon which relief can be granted against Third Party Defendant. 47. Third Party Plaintiff lacks the proper standing to bring a cause of action against Third Party Defendant, due to the lack 10 of assignment of the Haldeman contract and because they were not a party to the Policy. 48. Third Party Defendant breached no duty to Third Party Plaintiff in denying the defense and indemnification of the underlying claim. 49. Third Party Defendant had no duty to indemnify and defend Third Party Plaintiff in the underlying claim. Third Party Plaintiff, Howard Haldeman and Third Party Defendant lacked the mutual assent to require Third Party Defendant to provide defense and indemnification for Third Party Plaintiff's own negligence and to add Third Party Plaintiff as an additional insured under the Policy. 50. Third Party plaintiff's claims are barred on the basis that Third Party Plaintiff does not qualify as an -insured" or -additional insured" under the subject Penn National Insurance Policy. 51. Third Party Plaintiff's claims are barred on the basis that the Haldeman agreement does not qualify as an -insured contract" under the policy. 52. Answering Third Party Defendant is not bound by the terms of the agreement attached to Third Party Plaintiff's complaint. 53. Answering Third Party Defendant is not obli9ated to indemnify and defend Third Party Plaintiff for its own negligence. 11 -~ 54. Third Party Plaintiff's claims are barred for lack of mutuality of obligation under the agreement att:ached to Third Party Plaintiff's complaint and the policy. 55. Third Party plaintiff's complaint fails to allege that all conditions precedent under the agreement attached to Third Party Pl~i~tiff's compl~int end the policy are met. 56. Third Party Plaintiff failed to meet the conditions precedent under the agreement attached to the Third Party Plaintiff's complaint and the policy. 57. Third Party plaintiff's claims are barred on the basis that the agreement attached to Third Party Plaintiff's complaint is silent, and therefore, insufficiently specific, uncertain and elusive with respect to the nature and extent of any duties and obligations of Third Party Plaintiff and Third Party Defendant. 58. Third Party Plaintiff's claims are barred on the basis of mutual mistake of the parties with respect to the following material fact, the nature, purpose and extent of any requirements to indemnify and defend against any and all losses. 59. Third Party Plaintiffs are estopped from bringing their claims due to their own breach. 60. The alleged acts or omissions of Third Party Defendant were not the proximate cause of Third Party Plaintiff's alleged damages. Third Party Plaintiff's alleged losses have been caused, if at all, as a direct and proximate result of the 12 conduct and activity of persons over whom answering Third Party Defendant had no control. 61. Third Party Plaintiff's damages, and or, claims, if any, were caused or contributed to by the acts and or omissions of Third Party Plaintiffs, its representatives, employees, agents or .::ffiliat.es. 62. The agreement attached to Third Party Plaintiff's complaint is not complete, or in the alternative, Third Party Plaintiff has breached such contract or failed to perform under such contract, therefore, all claims are barred in whole or in part. 63. Third Party Plaintiff's claim is barred in whole or in part by the doctrine of spoliation of evidence. 64. Third Party plaintiff has failed to join all persons and parties necessary and indispensable for this action, and accordingly, this action must be dismissed. Respectfully Submitted, Date: 1- 1.0 -o'r By: (cR~ Lambros z. Economides Esquire Attorney Id No. 77536 KOKONOS & ECONOMIDES One Veterans Square, Suite 201 Media, PA 19063 Phone:(610) 566-4325 Fax: (610) 789-0812 Attorney for Third Party Defendant Penn National Insurance Company 13 VERIFICATION I, Heather Arnold, an employee and/or agent of Third Party Defendant in the above captioned m~tter am familiar \\'Tith the facts of this case and verify that the statements made in foregoing Answer and New Hatter to Third Party Plaintiffs' complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the pena.lties of 18 Pa.C.S. ~4904, relating to unsworn falsification to authorities. Date: / I 'I !; i C' Ji' { I . j ~ v ~ '"' I !l~:/'l.' ~. i . L-'V , ,-;, , (,/u>L It. ~I it i,-... Heather Arnold Team Leader Penn National Insurance Company Kokonos & Economides Attorneys at Law By: Lambros Z. Economides Attorney Id No. 77536 One Veterans Square, Suite 201 Media, PA 19063 610-566-4325 Attorney for Third Party Defendant, Penn National Insurance IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA a/s/o DONECKERS, INC. Plaintiff(s), CASE NO. 05-4:;27 v. Civil Term HEARTH AND HOME TECHNOLOGIES INC., d/b/a/FIRESIDE HEARTH AND HOMES, Et a1. Defendants HEARTH AND HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH AND HOMES, Et a1. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY Third Party Defendant Certification of Service I, Lambros Z. Economides, Esquire hereby certify that on Friday, January 20, 2006 I caused a true and correct copy of the attached Notice to Plead, Answer, New Matter to be served upon the following attorney by First Class Mail, postage pre-paid: Lynanne Westcott, Esquire Westcott Law Firm 239 Camac Street Philadelphia, PA 19107 Patrick J. Moran, Esquire Law Office of Francis R. Gartner and Associates Union Meeting, I~I, Suite 213 960-B Harvest Drive Blue Bell, FA 19422 Date: 1-2.-0 - '0'- Lyna0ne Westcott, Esquire Westcott Law Firm 239 Camac Street Philadelphia, PA 19107 By: ~n Lambros Z. Economides Esquire KOKONOS }\ND ECONO[V[IDES Attorney for Third Party Defendant Penrl National Insurance Company ? (--~ (- r--e') , C) 0"11 ,,~. -T"', " TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, ais/o DONECKERS, INC. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CASE NO.: 05-4527 HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES, et aI. Defendants Civil Term HEARTH & HOME TECHNOLOGIES INC., d/b/a FIRESIDE HEARTH & HOMES, et aI. Third Party Plaintiff v. PENN NATIONAL INSURANCE COMPANY Third Party Defendant ANSWER TO THIRD PARTY DEFENDANT'S NEW MATTER Defendant and Third Party Plaintiff, Hearth & Home Technologies Inc., d/b/a Fireside Hearth & Home ("Hearth & Home"), by and through its undersigned attorneys, responds to the New Matter asserted by Third Party Defendant Penn National Insurance Company ("Penn National") by stating as follows in response to the corresponding numbered paragraphs of the New Matter and incorporating into each paragraph below its answer, new matter and counterclaim filed in this case: 35. Paragraph 35 is denied as a conclusion ofIaw. Any facts that are alleged in this summary paragraph are denied. 36. Paragraph 36 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. . 37. Paragraph 37 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. 38. Paragraph 38 is denied as a conclusion oflaw. Hearth & Home specifically denies the allegation that it was not a named additional insured under the Policy or the agreement between Howard Haldeman and Hearth & Home's assignor or predecessor in interest. Hearth & Home further denies that the Policy and agreement for indemnification was not in writing or was not evidenced by a written memorandum, as the contract between Howard Haldeman and Hearth & Home's assignor or predecessor in interest specifically called for such coverage and indemnification. 39. Paragraph 39 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. 40. Paragraph 40 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 41. Paragraph 41 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 42. Paragraph 42 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied and any alleged failure to notifY is specifically denied. 43. Paragraph 43 is denied as a conclusion of law. No judgment or decision has been rendered in the action pending in the United States District Court for the Middle District of Pennsylvania, and therefore this cause of action is neither barred by the doctrine of res judicata or collateral estoppel. 44. Paragraph 44 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 2 > 45. Paragraph 45 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. Hearth & Home specifically denies that there was any such custom or trade practice as alleged. 46. Paragraph 46 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 47. Paragraph 47 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. Hearth & Home specifically denies the allegations that the Haldeman contract was not assigned and that Hearth & Home was not a party to the Policy. 48. Paragraph 48 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 49. Paragraph 49 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. The terms and provisions of the Haldeman Contract required such defense and indemnification and the addition of Hearth & Home as an additional insured under the Policy. 50. Paragraph 50 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. 51. Paragraph 51 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 52. Paragraph 52 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 53. Paragraph 53 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. 3 . 54. Paragraph 54 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 55. Paragraph 55 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. 56. Paragraph 56 is denied as a conclusion oflaw. Any facts that are alleged in this summary paragraph are denied. 57. Paragraph 57 is denied as a conclusion oflaw. The agreement attached to the Third Party Complaint is a document not to be interpreted, the document speaks for itself. Any facts that are alleged in this summary paragraph are denied. 58. Paragraph 58 is denied as a conclusion of law. Hearth & Home further denies any alleged mutual mistake of the parties. The requirements with respect to indemnification and defense are set forth in the Haldeman Contract and the Policy to which the Third Party Plaintiff was required to be added as an additional insured. 59. Paragraph 59 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 60. Paragraph 60 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. Penn National has wrongfully and deliberately refused to defend and indemnifY Hearth & Home in breach of the terms and provisions of the Policy to which Hearth & Home was an additional insured and a covered indemnitee in an insured contract, thereby resulting in damages to the Third Party Plaintiff. 61. Paragraph 61 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 4 62. Paragraph 62 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 63. Paragraph 63 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. 64. Paragraph 64 is denied as a conclusion of law. Any facts that are alleged in this summary paragraph are denied. WHEREFORE, Third Party Plaintiff Hearth & Home Technologies Inc. requests the New Matter asserted by Third Party Defendant Penn National Insurance Company be dismissed and costs and attorney's fees be awarded to it. Respectfully submitted, I, /,. / 0r/ , ,.'7.u.."I", ~1f/~;/t!<<' # L)'mUlne B. Wescott PAID #52928 THE WESCOTT LAW FIRM, PC 239 South Camac Street Philadelphia, PA 19107-5609 Phone: (215) 545-0324 Fax: (215) 545-0326 Counsel for Hearth & Home Technologies Inc. 5 VERIFICATION Florence E. Pedersen, being first duly sworn upon oath, deposes and says that she is the Assistant Secretary of Hearth & Home Technologies Inc., one of the defendants named in the above-entitled case; that she signs the foregoing on behalf of said defendant and is duly authorized to do so; that the matters stated in the foregoing are not within the personal knowledge of the deponent; and that the facts stated in the foregoing have been assembled by authorized employees and counsel of said defendant and deponent is informed by those authorized employees that the facts stated in the foregoing are true and correct to the best of their knowledge, information and belief. This verification is submitted pursuant to 18 Pa. C.S. 4904. HEARTH & HOME TECHNOLOGIES INC. BY: Florence E. Pedersen, Assistant Secretary Dated: CERTIFICATE OF SERVICE On February 8, 2006, ] served the foregoing document, Answer to Third Party Defendant's New Matter by first class United States mail, postage prepaid on counsel for the parties in this action addressed as follows: Lambros Z. Economides, Esquire Kokonos & Economides One Veterans Square, Suite 201 Media, P A 19063 Patrick J. Moran, Esquire Law Offices of Francis R. Gartner & Associates Union Meeting, III, Suite 215 960-B Harvest Drive Blue Bell, PA 19422 John Flounlacker, Esquire PO Box 999 305 N. Front Street Harrisburg, PA 17108 --......(. L V / '.- /,'. /'f .' (,,-5:J,U{ Hit, t~ljc~z/di/; . Lynanne B. Wescott 6 r-<) , _.~ C) ':.) "f\ .;;.~...... -,., :::1 f':1 \"'.'1 :D C"] r--- I (it r:,-J u> , UJ r') J'" .;) CJ -" LAW OFFICES FRANCIS R. GARTNER & ASSOCIATES BY: PATRICKJ. MORAN, ESQUIRE ATTORNEY 10. NO. 61580 UNION MEETING, III, SUITE 215 960-B HARVEST DRIVE BLUE BELL, PA 19422 (215) 619-4322 Attorney for Plaintiffs TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, a/s/o DONECKERS: COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 05-4527 v. HEARTH & HOME TECHNOLOGIES, INC. and: d/b/a FIRESIDE HEARTH & HOMES and HOWARD HALDEMAN, d/b/a HALDEMAN CHIMNEY SWEEP ORDER TO SETTLE, DISCONTINUE & END TO THE PROTHONOTARY: only. Kindly mark the above matter settled, discontinued and ended upon payment of your costs BY: FRANCIS R. GARTNER & ASSOCIATES OL~ IYi/I~~;, /%4-.. Patriek J. Moran, Esquire Attorney for Plaintiffs Date: September 27,2006 (") c- ~E: r--..;) = = <~ a C.-) --I I ..c- ~ :;:1 fT1 :n __r- um :uC: ~~ l~i ;~;rn 2,?j :.< ~"7) :2: <2 (.Jl \.0