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HomeMy WebLinkAbout02-2516COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ONEBEACON INSURANCE COMPANY : f/k/a AMERICAN CENTRAL : INSURANCE COMPANY : Plaintiff VS. PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC and KATHLEEN BRATIC Defendants CIVIL ACTION COMPLAINT The above Plaintiff brings this action against the above Defendants to recover the sm of $11,740.02, with interest thereon as hereinafter stated, upon the following cause of action: 1. CENTRAL INSURANCE COMPANY, is located at 436 Walnut Street, Philadelphia PA 19106-3703. 2. The Defendant, PLAZA MANAGEMENT, INC., is located at 1521 High Meadows Lane, Mechanicsburg, PA 17055-6769. 3. The Defendant, GOLDEN WAY, INC., is located at 1521 High Meadows Lane, Mechanicsburg, PA 17055-6769. 4. The Defendant, FOUNTAIN, INC., is located at 1521 High Meadows Lane, Mechanicsburg, PA 17055-6769. 5. The Defendant, PA MANOR, INC., is located at 1521 High Meadows Lane, The Plaintiff, ONEBEACON INSURANCE COMPANY f/k/a AMERICAN Mechanicsburg, PA 17055-6769. 6. The Defendant, DUSAN BRATIC, is located at 1521 High Meadows Lane, Mechanicsburg, PA 17055-6769. 7. The Defendant, KATHLEEN BRATIC, is located at 1521 High Meadows Lane, Mechanicsburg, PA 17055-6769. COUNT I Breach of Contract 8. At the special instance and request of Defendants, Plaintiff issued its Workers Compensation and Employers Liability Insurance policy of insurance, naming Defendants as the insured, as fully described in the attached Declaration Sheets and Endorsements, a tree and correct copy of which is attached hereto, made a part hereof and collectively marked Exhibit "A". 9. The above policy b, ecame operative and in full force and continued as such unt'fl later canceled, the respective dates of issuance and cancellation are more fully described in attached Exhibit "A". 10. Pursuant to the terms and conditions of the policy, Defendants were required to pay earned premiums in the amount of $9,970.00, all of which were calculated in accordance with the policy of insurance. A true and correct copy of a Statement of Defendants' Account, taken from Plaintiff's books, is attached hereto, made part hereof and marked Exhibit "B". 11. Plaintiff has performed and complied with all terms and conditions required under said policy of insurance. 12. Plaintiff is entitled to receive interest on the above amount determined by applying the statutory interest rate of 6.00% per annum to the past due balance. As of May 16, 2002 the total amount of interest due to plaintiff is $1,770.02. 13. Plaintiff is entitled to have the 6.00% interest charge continue to accrue as set forth above, from May 16, 2002 on down to the date of judgment in this matter. 14. Plaintiff has made demand against Defendants for the aforesaid sum, but Defendant failed or refused to pay the same or any part thereof. WHEREFORE, Plaintiff demands judgment against Defendants for $11,740.02 together with the continually accruing interest charge at the statutory rate of 6.00% per annum from May 16, 2002, and cost of suit. COUNT II Alternative to Count I - Unjust Enrichment 15. Plaintiff incorporates the allegations of every paragraph enumerated above of this Complaint as if said paragraphs were fully set forth here at length. 16. The goods, wares, merchandise, and/or services, described in the exhibits attached hereto were purchased by Defendants, and Defendants received and accepted the benefit of such goods, wares, merchandise, and/or services provided by Plaintiff. 17. At all fanes material hereto, Defendants were aware that Plaintiff was providing the aforesaid goods, wares, merchandise, and/or services to Defendants, and that Plaintiff expected to be paid for such. 18. At all times material hereto, Defendants, with the aforesaid knowledge, permitted Plaintiff to provide and/or deliver said goods, wares, merchandise, and/or services, and to incur damages. 19. At all times material hereto, Defendants were unjustly enriched by retaining the benefit of receiving said goods, wares, merchandise, and/or services without paying Plaintiff fair and reasonable compensation. 20. ' By reason of the aforesaid unjust enrichment of Defendants at Plaintiff's expense, an implied contract exists between Plaintiff and Defendants, and Defendants are obligated to pay Plaintiff the quantum .meruit value of the value of the goods, wares, memhandise, and/or services described in the exhibits attached hereto, in the amount of $9,970.00. WHEREFORE, Plaintiff demands judgment against Defendants for $9,970.00 together with the continually accruing interest charge at the statutory rate of 6.00% per annum from May 16, 2002, costs of suit and all other relief to which Plaintiff may be justly entitled. AMATO AND MARGLE, P.C. By: ~ Ronald Amato Attorney I.D. No. 32323 Attorneys for Plaintiff 107 North Commerce Way Bethlehem, PA 18017 (610) 866-0400 pENNSYLVANIA I~IILADS.LPI~I~ VERIFICATION ~'/V ~ ~"~- , hereby states that he/she is the /~9~f~:~/~-~ ~----~7~;~ of ~,~/~-~-'~/'/~ ~//'~-~ ~--~'~-~ Plaintiff in this action, and verifies that the statements made in the attached Complaint are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 PA C.S. §4904 relating to unsworn falsification to authorities. ALLEN E. LEAS Premium Col(ections PBSC 4IN FILE No.840 05/10 '02.13:10~ CGU ID:PEERLESS INS We O0 Da O1A TH~$ 15 A PARTICIPATING POLICY SEE PARTZCIPATZNG PROVISION E~DORSEflENT /NSTAL-HATZC-H Camp Hi ] 1 FNX :717 '~30 3?54 PaGE WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY INFORMATION PAGE ~OLICY NUMBER PRODUCER ¢oo~ f ISSUED 8Y NCC~ COMPANY NO,I INSURED iS CORPORATION { REX NUMBER 6Dq94C 1 PREVIOUS POLICY NUMBER NEH THE iNSURED AND MAILING ADDRESS FEDERAL T,D, 2S-15,8~288 PLAZA M~qAGEM~N"T~ THC. SEE E~O~IH~ ~ O aRATXC~ ~gl flXgH NE~ LN Other workplaces not sh~n able: "~. The policy peri~ is from o~/ot/~9 to o~/o~/oo at 12~01 A.M, at the insured's mailing address, Workem Compensation Insurance: PeK One ~ the poli~ appli~ to the Workem ~mpensation Law ~ the stat~ listed here: e~. L3,B. Employers Liabili~ Insuranca= Pa~ Two of the policy appli~ to work in each state listed in item 3.A. The limi~ d our PRODUCER U.S.CASUALTy CORP/~ANA BRANDT ZHS.A~ 1~ LEFEVER aOAO NEHVZLLE, Pa l?aql liability uodor Part Two are: Bodily Injury by Accident $ lee.oeo each accident Bodily Injury by Disease $ lee,oeo each employee Bodily Injury by Disease $ see,oeo policy limit 3:C, Other States insuranca~ Part Three of the policy applies to the states, if any, tisted here: ALL EXCEPT STATES P£R SA 4. The premium for this policy will be determined by our Manuals of Rules, Classifications, Rates and Rating Plans. All information required below Es subject to verification and change by audit. SEE ATTACHED SCHE]]ULE$ Pmmlum O~O~Jnt (if ApplL-eble) PBt~ISYLVANZ~ les TOTAL [STIMAT ED PR-EMIU M S 8~2~7,00 I,_ S? $ERVTCE OFFICE COPY t ATTA~HEDTOPOLICY JACKET ~ ~G.L:>~00 ~ ~ FILE No.840 05/10 '02 13:10 ID:PEERLESS INS Camp Hill F~X:71? 7~0 3754 PRGE 3 CGU WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY ENDORSEMENT 06/02/99 ENDORSEMENT EFFECTIVE DATE JISSUeD BY AHERZC~ CENTRAL Z~URAHCE COHP~ POLICY PERIOD= FROM E6/03./99 AT THEINSURED'5 MAILING ADDRESS THE INSURED AND MAILING ADDRESS FEDERAL Z,D, R$-XS&qE88 PL~ ~gENE~ Z~. SEE EI~ORSENEHT R2 D BRAT[C~ ]J~g! H~gE MEADO~ LN HEC~Z~BU~, PA ZTOS5 PRODUCER U.S,CASUALTY CORP~A~UA~T Z~.A$ lSq LEFEVEE ~ NE#VZLLE~ PA 17~1 'rNSTAL-NATZC-H ADD'ZTZONAL L~AT[ONS OF THE ~Jt~UR~D 128 S, ~EI TRAZL SELZN~VE~ PE~. ~1 N. ~VER STREET CARLZSLE~ PE~, ~e6 PLEASA~ VALLEY SLVD, ALT~ PE~. ALL OTHER TERMS AND ~NDITION$ REMAIN UNCHANGED. ~uE ~^TE ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED . SERVZCE OFF]:CE COPY F[LE No,840 05/10 '02 13:10 CGU ID:PEERLESS INS Camp Hill FAX:?1? 730 3?54 PAGE 4 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY ENDORSEMENT POLICY PERIOD~ FROM THE INSURED AND MAILING ADDRESS FEDERAL Z,D, ~5-1..~8~288 PLAZA HANA~ENENT~ iNC. SEE E~EHE~ ~2 D ~RATZC, 1521 H~gH ~EA~ LN MEC~Z~R~ PA 1705~ PRODUCER U.$.CABUALTY CORP/OANABRANDT Ir~.AG 15q LEF£VER ROAD NEgV:LLE, PA 1724! EN~ORSENEHT NUff~ER 2 NAMED ZNSURED TO READ~ DU~ ~ KATHLEEN BRATZC, PLAZA L ALL OTHER TERMs AND CONDITIONS REMAIN UNCHANGED. COUNT[R$!GNED BY: ALL OTHER TERMSAND ¢ONDTIONS REMAIN UNCHANGED SERVZCE OFF[CE COPY FILE No.840 05/10 '02 13:10 CGU ID:PEERLESS INS Camp Hi 11 Flq×:717 7~0 3754 PAGE 5 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY SCHEDULE OF OPERATIONS INSTAL-HATXC-H NAME OF INSURED & STATE LOCATION PRODUCER FEDERAL X.D, 2S-~288 U.S.CASUALTY ¢ORP/DANA BRANDT INS,AG PLAZA ~ANAOEHF_~IT, SEE ENDOleSE~ENT #2 PENNSYLYANXA CLERICAL OFFICE EHPL HOTEL- ALL OTHER EHPL~ OFFXCE, EMPLOYEES THE HOTEL'S FOOD OPERATIONS SHALL BE ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. ~C. LOCATION OF OPERATIONS · #0028:1.6789 ~ERARATELY l~, ~EL RESTAUR~ ~ TO EXPERIENCE ~2FZCA' Z~ ~ ~D~F ZC&~ON (GLA~ APPLZCATZ~ OF SCHE~LE OD~F~CAT: ~ ' APPLXC~LE ~.~ X IAL PR~ SERVICE OFFICE COPY ,q FILE No.840 05/10 '02 13:11 CGL ID:PEERLESS INS Camp Hill FIqX:?i? 730 3754 PaGE 6 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY COMMISSION ADVICE ZNSTAL-~IATZC-M COMMISSION ADVICE EFFECTIVE DATE CENTRAL ENDURANCE COMPANY POLICY PERIOD= FROM e6/al/99 TO g6/a'~/Oo NAME OF INSURED AND MAILING ADDRESS F[DERAL Y.D. pLAZA PIANAgEMENT~ ENO, SEE F-N~ORSE~ENT D BRAT~C~ ZS~2 HZgH HE~ LN HECHANZ~U~, PA PRODUCER C1D~.IZSSZON ADV/CE a~# COHNZ.~ZI~I RATE 6,?X TOTAL COtlflZSSZON DUE STATE *** EXPLANATION OF COMMISSION *** TOTAL AVERAGE COMMISSION COMMISSION PREMIUM RATE COMMISSION AMOUNT TgTAL $8~6ac.ao 6,7x THE COfl~tZS~ZON ~CALE [$ APPLZED TO STANDARD PREHIUH [BEFORE AD,~J~THENT FOR PREHZILI~ DZ~[~RR~T, ZF ANY) APPLZCABLE ZN THE VARZOUS STATES. THE AVERAGE ~ZSSZON RATE ZS APPLZCABLE TO THZ$ TRaN~TZON M~ TO ALL FUTURE TR~ZOf~.~ UNTZL THE NE# AVERAGE RATE OF COflHZSSION ZS DEVELOPED AT THE TENE OF FZNAL AUDET. REFER ALL ~UESTZONS RESRRDZNG TN~S CO~tzSSZON ADVZCE TO YOUR UNDER~RZTER. SERVTCE OFFICE COPY FILE No.8~0 OB/tO '02 13:11 CGLI iD:PEERLESS INS Camp Hill FRX:71? ?S0 S754 PRCE ? WORKERS COMPENSATION AND EMPLOYERS LIABILfTYJ.,.,/~ INSURANCE POLICY ./~'~'- ENDORSEMENT ENDOF~[MENT NUMBER PRODUC£RCODB POLICY PERIOD~ FROM j ENDORSEMENT EFFECTiVE gATE r ATTACHED TO POklCY NUMBER j ~$U~D e¥ NCC, COMPANY NO.I R~ERZCAm CENTRAL INSURANCE COMPANY ~z7a~ 06/01/99 TO 06/e~/eo at12:0[ A.M. AT TMEINSUR~D'S MAILING ADDRESS THE INSURED AND MAILING ADDRESS FEDERAL Z.O. 2S-15~2D8 pLAZA MANA~Em[NT~ INC. SEE ENDOI~EmENT ~z D DRATZC~ 1521 flZgH HEADO~ LN flEC~Z~URG~ PA 17055 PRODUCER U.S.CA~UALTY IL'OEP/DANA DRANDT ENS.AD 27 SO. SECOND STREET NEHPORT~ PA 1707q ZNSTAL-HATZC-N TIt25 CHANGE ~OESNOT RR~LT INA PREmZUflAOJU$1TIENT ZT I$ AGREED THAT THE POLICY ~s AHENDED AS FOLLOI~S: ENDORSEMENT I~ER ZS ADDED: ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. ISSUE DATE ~] SERVICE OFFICE COPY FILE No.840 05/10 '02 13:1L ID:PEERLESS INS Camp Hill F~X:717 730 3754 PaGE 8 DANA BRANDT INS AGY 154 Lefever Road Newville PA 17241 Phone: 717-776.3195 PLAZMGM JK 05/27/99 WC.S 06/01/99 06/01/00 CGU INSURANCE P O BOX 8861, 100 CORPORATE DR CAMP HILL PA 17001.3851 Agency code: CUSTOMER; PLAZA MANAGEMENT, INC, C/O DUSAN BRATIC DEAR MARTINA: PLEASE BIND-AND ISSUE THE WORKERS COMPENSATION PER YOUR QUOTATION, BUT WITH T~{E FOLLOWING C}{ANGES: 1. A~ND LIMITS TO 100/500/100. 3. FEDERA~ ID NUMBER IS 25-1584288 4. NAF~D INSURED IS TO READ: DUSAN & KATHLBEN BRATIC, PLAZA MANAGEMENT, .INC., GOLDEN WAY, INC., FOUNTAIN, INC.) ~ (DU.SAN & KATHLE~N ARE 100% OWNEKS OF ALL PKOPERTIES. PLAZA MANAGEMENT OVERSEES ALL OPEP~ATIONS, GOLDEN WAY, INC. IS THE GOLDEN ARROW MOTEL. FOUNTAIN, INC. IS THE ECONOLODGE/~ ~6 m,~,~.'~ THE PREMIU~ QUOTED IS $8,899. THANK YOU. FILE No.840 05/10 '02 &3:12 ID:PEERLESS INS Camp Hi FAX:717 730 375~ PAGE 10 g g FILE No.840 05/I0 '02 i3:12 ID:PEERLESS INS Camp Hill FAX:?17 790 3754 PnGE Camp Hill F~X:717 730 3?54 PAGE FILE No.840 05/10 '02 13:13 ' ID:PEERLESS [NS Camp Hi]i FA×:71? 73~ 3754 PAGE o: o; 13 OneBeacon. (Formerly CGU Insurance) Plaza Management~ Inc. D Bra,~tic IS21 High Meadow Ln Mechaniosbu~h PA 17055 Account No.: 6D494C oneBaacon Insurance Premium Collection P.O. Box 1760 Philo., Pa. 19105-'1760 1-800-20B.,4016 Date: 1012612001 Date Effective 8/t6/99 6/1/99 8/26199 9/17/99 10112/99 11/2/99 t11t1199 12/13/99 '12/15199 1/11/00 1/17/00 1/17/00 2/11100 2/18100 2/18100 3/14/00 4/11100 4/17/00 5111100 1127-/01 6/1/99 1/22/01 611/99 St,~temont of Account Policy # Description HIS034G f~w Business $8,608.00 Premium Discount ($371.00) Service Fee Payment ($2,059.25) Service Fee Payment ($1,395.00) Service Fee Service Fee Payment ($1,072.00) Service Fee Payment ($435.00) Payment ($800.00) Service Fee Payment ($695.00) Payment ($580.00) Payment ($1,205.75) Generated Refund $5,00 Payment ($1,200,75) Generated Refund $1,200.75 Audit $t 1,187.00 Premium Disr. ount ($1,2,17.00} Balance Due Company $9,970.00 Service Charges $5.00 ($6.00) $5.00 (S5.00) $5.00 $5.00 ($1o.oo) $5.00 ($5.oo) $5.00 ($5.00) $0.00 Balance $81608.00 $8,237.00 $8,242.oo $6,177.75 $5,182,75 $4,782 $4.787.75 $4,792.75 $3,7t0.75 $3,715,75 $3,275.75 $2,475.75 $2,480.75 $t,780.75 $1,200.75 ($5.00) $0.00 ($1,200.75) $o.oo $11,187,00 $9,970.00 $9j970.00 EXHIBIT SHERIFF'S RETURN CASE NO: 2002-02516 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ONEBEACON INSURANCE CO ET AL VS PLAZA MANAGEMENT INC ET AL - REGULAR GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PLAZA MANAGEMENT INC the DEFENDANT , at 1050:00 HOURS, on the 4th day of June , 2002 at 1521 HIGH MEADOW MECHANICSBURG, PA 17055-6769 KATHLEEN BRATIC by handing to PERSON IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.90 Affidavit .00 Surcharge 10.00 .00 34.90 Sworn and Subscribed to before me this day of A.D. Prothonotary So Answers: R. Thomas Kline 06/05/2002 AMATO AND MARGLE Deputy S~/riff SHERIFF'S RETURN CASE NO: 2002-02516 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ONEBEACON INSUP~ANCE CO ET AL VS PLAZA MANAGEMENT INC ET AL - REGULAR GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon GOLDEN WAY INC the DEFENDANT , at 1050:00 HOURS, on the 4th day of June at 1521 HIGH MEADOWS LANE , 2002 MECHANICSBURG, PA 17055-6769 by handing to KATHLEEN BR3kTIC PERSON IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /0~ day of ~ ~2~ 2_~ A.D. · t~rothonotary ~ So Answers: R. Thomas Kline 06/05/2002 AMATO AND MARGLE By: Deputy ~eriff SHERIFF'S RETURN CASE NO: 2002-02516 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ONEBEACON INSURANCE CO ET AL VS PLAZA MANAGEMENT INC ET AL - REGULAR GEP~ALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FOUNTAIN INC the DEFENDANT at 1521 HIGH MEADOWS LANE , at 1050:00 HOURS, on the 4th day of June , 2002 MECHANICSBURG, PA 17055-6769 KATHLEEN BP~ATIC a true and attested copy of COMPLAINT & NOTICE by handing to PERSON IN CHARGE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this lb~ day of A.D. ~bl~othonotary · ~ / So Answers: R. Thomas Kline 06/05/2002 AMATO AND MARGLE Deputy S~iff SHERIFF'S RETURN - CASE NO: 2002-02516 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ONEBEACON INSURANCE CO ET AL VS PLAZA MkNAGEMENT INC ET AL GERALD WORTHINGTON , Cumberland County,Pennsylvania, says, the within COMPLAINT & NOTICE PA MANOR INC REGULAR Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the DEFENDANT , at 1050:00 HOURS, at 1521 HIGH MEADOWS LAIqE MECHANICSBURG, PA 17055-6769 KATHLEEN BRATIC on the 4th day of June , 2002 by handing to PERSON IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /D~ day of ~d_ c20o 2_~ A.D. ~othonotary ~ i So Answers: R. Thomas Kline 06/05/2002 AMATO AND MARGLE -- ' Deput~ Sheriff SHERIFF'S RETURN - CA~E NO: 2002-02516 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ONEBEACON INSURANCE CO ET AL VS PLAZA MANAGEMENT INC ET AL REGULAR GEP~ALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRATIC DUSAN the DEFEND/~NT , at 1050:00 HOURS, on the 4th day of June at 1521 HIGH MEADOWS LANE , 2002 MECFIANICSBURG, PA 17055-6769 by handing to KATHLEEN BP~ATIC PERSON IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /~ ~ day of ~_ ~ A.D. / Prothonotary t So Answers: R. Thomas Kline 06/05/2002 AMATO AND MARGLE By: Deputy Sh~iff SHERIFF'S RETURN - REGULAR CASE NO: 2002-02516 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CD74BERLAND ONEBEACON INSURANCE CO ET AL VS PLAZA MANAGEMENT INC ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within COMPLAINT & NOTICE was served upon BRATIC KATHLEEN the DEFENDANT , at 1050:00 HOURS, on the 4th day of June at 1521 HIGH MEADOWS LANE , 2002 MECHANICSBURG, PA 17055-6769 by handing to KATHLEEN BRATIC a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before So Answers: R. Thomas Kline 06/05/2002 AMATO AND MARGLE Deputy sh~iff IN THE COURT OF COMMON PLEAS OF ~EIa!AND COUNTY, PENNSYLVANIA ONEBEACON INSURANCE COMPANY: f/k/s AMERICAN CENTERL : INSURANCE COMPANY, : Plaintiff : : V. : : PLAZA MANAGEMENT, INC., : GOI.DEN WAY, INC., FOUNTAIN, : INC. DUSAN BRATIC sad : KAT~LEEN BRATIC, : CIVIL ACTION - LAW [l~ndant : NO. 02-2~16 Civil Term NOTICE TO P~ TO: Ronald Amato, Esquire, Attorney for ONEBEACON INSURANCE COMPANY, Plaintiff You are hereby notified to file a written response to the enclosed PR~.I.IMINARY OBIECTIONS within twenty (20) days from service hereof or a judgment may be entered asainst yOU. Date: July 3, 2002 StephenVP ortko, Esquire #34538 101 South U.S. Route 15 Dillsbur~, Penn~lvania 17019 (717) 432-9706 Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBE]~I.AND COUNTY, PENNSYLVANIA ONEBEACON INSURANCE COMPANY: f/k/a AMERICAN CENTERL : INSURANCE COMPANY, : Plaintiff : : V. : : NO. 02-2S16 Civil Term PIZZA MANAGEMENT, INC., : GOLDEN WAY, INC., FOUNTAIN, : INC., DUSAN BRATIC and : KATHLEEN BRATIC~ : CIVH~ ACTION - LAW DM~ndant : DEFENDANTS' pI~LIMINARY OBJ-~CTIONS TO PLAINTIFF'S COMPLAINT AND NOW, come Defendants, by their attorney, who files the within Pr'~ Objections to Plaintiff's Complaint, as follows: L PRELIMINARY OBJECTION RALqlNG FAH,URE TO CONFORM TO PA.ILC.P. 1020. 1. Plaintiff's co~l)laint alleges a cause of action against several defendants for earned insurance premiums allegedly due plaintiff. 2. Plaintiff's complaint does not set forth separate counts against the defendants joined in this matter in violation of Rule 1020(a). 3. Plaintiff's complaint includes a demand for relief against all of the defendants in violation of the requirements of Rule 1020(a). WHEREFORE, defendants respectfully request that plaintiff's complaint be sh-iken for failure to comply with nde of court. IL PRELIMINARY OBJECTION TO INCLUSION OF IMPERTINENT MATTER. 4. Plainti~'s complaint contains several documents attached thereto as Exhibit "A". 5. Paragraph 9 refers to F_,x~it "A" as being the "Declaration Sheets and Endorsements" issued to defendants. 6. Plaintiff's complaint and, more specifically, Exhibit "A", contain unnecessary attachments that are wholly irrelevant to the material issues in the case and that, whether proven or not, can have no influence in leadln~ to the result ofjudicial inquiry, for example: a. Two (2) ofthe documents attached as Exhibit "A" contain handwtitten notes changing the typewritten content of the documents without properly identifying who or when such handw~itlen cha~es were made; b. Other documents attached as Exhibit "A" refer to a rating modification form and policy loss record reports predating the issuance of the Declaration Sheet attached to the complaint. 9. In addition, plaintiff pleads evidenfiary matters rather than material facts coi~h-ary to the rules of court. 10. The majority of doctunents attached as Exl~'oit "A" to plaintiff's complaint are irrelevant, immaterial and inappropriate to the cause of action asserted in plaintiff's complaint against defendants, are in violation of the pleading requirements ofPa. R.C.P. 1019 and, accordingly, are impertinent to these proceed/no. WHEREFORE, defendants respectfully request that plal~ff's complaint be strlken. m. PRELIMINARY OBJECTION RAISING INSUFFICIENCY OF COMPLAINT 11. Pa.R.C.P. 1019 provides that a pleading shall state specifi~y whether any clnim is based upon a writh~ and, if so, the pleader should attach a copy of the writing to the complnlnt. 12. Pa.R.C.P. 1019 provides that aveia~ents oftime, place and items of special damage shall be 13. Plaintiff alleges in para, apb 10 of its complaint that: "[P]ursuant to the terms and conditions of the policy, Defendants were required to pay earned premiums in the amount of :$9,970.00, all of which were calculated in accordance with the policy of insurance". 14. Plaintiff fails to attach a copy of the "insurance policy" or applicable portions of the policy showing the terms and conditions wherein ~dants became obligated to pay earned premiums in the amount allesed by Pla~ti~ 15. Plaintiff fails to attach a copy of the "insurance policy" or applicable portions of the policy showing the manner in which calculations were to be made to determine "earned premiums~. 16. In paragraph 8 of the complaint, Plaintiff alleges that the order was made at "Defendants" special instance and request. 17. Plaintiff~ Complaint fails to identif), each of the Defendants or in what capacity Defendants Du~n Bratic and Kathleen Bratic allegedly ordered the Workers Compensation and Employers Liability Insurance Policy. 18. No written documents whatsoever are attached to the Complaint in this action which demonsh-ate that Defendants Dusan Bratic and Kathleen Bratic ordered the product in their individual capacity rather than as an officer of the corporation. 19. No written documents whatsoever are attached to the Complaint in this action which demonstrate that Defendants Dusan Bratic and Kathleen Bratic, individually, agreed to pay the premiums of insurance for Defendants. 20. Plaintiff's Complaint fails to allege grounds supporting a claim against either Defendant Dusan Bratic or Defendant Kathleen Bratic, in their individual capacity. 21. Plainti~ fails to allege its cause of action in a precise and summary form and there is a patent inconsistency between plaintiffs exhibits and the averments of its pleading regarding a single claim against all of the named defendants. 22. As a result of plaintiffs vagueness in stating the grounds of its pleading, defendants ability to respond will be unduly impaired. WHI~REFORE, Defendants respectfully request that Plainti'"'"'"'""~s' Complaint be iti"&en for failure to comply with law. IV. PRELIMINARY OILIECTION RAINING INSUFFICIENCY OF ~LI,~GATIONS AGAINST INI)IVIDUAL i)EFENI)ANTS I)USAN AND KATHI,EEN BRATIC 23. Objecting Defendants incorporate by reference the avea-iiients of Paragraphs 11 through 22 above, as if set forth herein at length. 24. Plahiiiffs Exhibits 'A~ and nB' demonstrate that the contract and action upon which the instant Complaint is based was and is between Plaintiff and a corporation, Plaza Management, Inc. 25. Plaintiffs Complaint groups all of the parties as Defendants under each count. 26, Defendants Desan Bratic and Kathleen Bratic pre 'hminarily object to the Complaint on the grounds that it improperly states a claim against them, individually. 27. Pennsylvania law is clear that an individual defendant is not personally liable for the debts ora corporation. ~/~c0'~ E~ ~ v. ~ort, 597 A.2d 175 (Pa. Super. 1991); [Fid~s v. M'dz~eoBsdlders. Inc., 503 Pa. 614, 470 A.2d 86 (1983). WHEREFORE, Defendants respectfully request that Plaintiffs' Complaint be s~iken for failure to comply with law. V, PRELIMINARY OBJECTION IN THE NATRUE O1~ A DEMURRER (COUNT H - UNJUST ENRICHMENT) 28. Count H of Plaintiffs Complaint is a claim for unjust enrichment. 29. Plaintiffs Complaint alleges that the relationship between the pm~ies is founded on a written agreement or express contract. 30. The do~h~ine of unjust enrichment is inapplicable when a relationship exists between the parties founded on a w~iiten agreement or express contract. Roman Mosaic & T'de Ca. Ina ~. Vo//ra~, 266 Pa. Super. 215, 313 A_2d 305 (1973). 31. Even though Plaintiff pleads this count in the alternative, Plaintiff fails to specifically allege that the benefit allegedly received was unjust, and the reasons supporting the claim. EFC~Q Ismmrters v. Ha/sobrmm. 500 F.Supp. (E.D.Pa. 1980); Vi~orlbdlders. Ina v~ Devon 1~ Trantor. Inc. 470 F.Supp. 911 (M.D.Pa. 1978). 32. Where Plaintiff fails to state the manner in which the Defendants have obtained the unjust benefit, but merely states its own loss in the value of the goods, wares, merchandise, and/or services [see ¶19 of Plainfi~s Complaint], the complaint does not properly plead that defendants have been benefited. Belmont Industries. In~ v. Beckte/Cory., 425 F.Supp. 524 (E.D.Pa. 1976). W~REFORE, it is respectfully requested that this Honorable Court ~hlke Count II of Plaintiffs Complaint for failure to state a cause of action upon which relief may be granted. 101 South U.S. Route 15 Dillsburg, PA 17019 (717)432-9706 Attorney for Defendants VERIFICATION Dusan Bratic a Defendant , hereby acknowledge that I am and that I have read foregoing Preliminary Objections~ and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Dated: July 3, 2002 VERIFICATION I, Kathleen Bratic , hereby acknowledge that I am a Defendant and flaat I have read foreqoinq Prelimina~ Objection~ and the facts stated there~ are true and correct to the best of my knowledge, infoi~inafion and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. -C.S. Section 4904, relating to unswom falsification to authorities. Dated: July 3, 2002 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoin~ Pre 'hminary Objections was provided by U.S. Mail, postage prepaid, ~si class, to the following: Ronald Amato, Esquire AMATO AND MARGLE, P.C. 107 North Commerce Way Bethlehem, Pennsylvania 1 $017-8930 Date: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL INSURANCE COMPANY Plaintiff VS. PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC and KATHLEEN BRATIC Defendants No. 02-2516 Civil Term CIVIL ACTION PLAINTIFF'S ANSWER TO DEFENDANT'S PREI,IMINARY OBJECTIONS The above Plaintiff files the within Answer to Defendant's Preliminary Objections: I. Preliminary Objection Raising Failure to Conform to PA.R.C.P. 1020. 1. Admitted. 2. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this ave,ment. PA.R.C.P. 1020 indicates that causes of action shall be separately plead. It does not require seperate counts for each Defendant and Plaintiff can plead the same cause of action against multiple Defendants in one count. 3. Denied. This avem~ent constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary Objections be dismissed. II. Preliminary Objection to Inclusion of Impertinent Matter. Admitted. Admitted. Denied. Said documents are to inform Defendant of the matter and assist Defendant in filing a responsive Pleading. 7. There is no ave.x~ent number 7. 8. There is no ave,,ent number 8. 9. Denied. Plaintiff has attached pertinent documentation to substantiate its claim. 10. Denied. This avei-sixent constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary Objections be dismissed. IH. Preliminary Objection Raising Insufficiency of Complaint. 11. Admitted. 12. Admitted. 13. Admitted. 14. Denied. Plaintiff has attached sufficient documentation such that Defendant can investigate the matter and prepare a Defense. Defendant is aware of why they are being sued and the basis for that suit. Defendants were provided complete copies of the policy of insurance at the time it was issued. The calculation of premium is a matter of evidence and not a matter of 15. pleading. 16. 17. Admitted. It is unnecessary to attach or plead an offer in a breach of contract action. It is only necessary to plead the contract and not the negotiations that lead to formation of a contract. 18. The documents attached to the complaint are sufficient to identify liability as to the individuals. 19. Denied. Endorsement of 6/1/99 attached to the complaint clearly identify the named insured to read "Dusan & Kathleen Bratic, Plaza Management, Inc., Golden Way, Inc., Fountain, Inc., Pa Manor, Inc. 20. Denied. This avei~;xent constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 21. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 22. Denied. This ave,ment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary Objections be dismissed. HI. Preliminary Objection Raising Insufficiency of Allegations against Individual Defendants Dusan and Kathleen Bratic. 23. The allegations contained in this paragraph of Defendant's Preliminary Objections require no response under the Pennsylvania Rules of Civil Procedure except as set forth above and those responses are incorporated herein by reference. 24. Denied. Endorsement of 6/1/99 attached to the complaint clearly identify the named insured to read "Dusan & Kathleen Bratic, Plaza Management, Inc., Golden Way, Inc., Fountain, Inc., Pa Manor, Inc. 25. Admitted. 26. Denied. This aveiment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this avermem. 27. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary Objections be dismissed. 28. 29. 30. action. 31. enrichment. Admitted. Admitted. Denied. Plaintiff can plead unjust enrichment as well as a breach of contract Denied. Plaintiff has properly plead a cause of action based on unjust 32. Denied. Plaintiff has properly plead a cause of action based on unjust enrichment. WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary Objections be dismissed. '~nald Amato Attorney I.D. No. 32323 Attorneys for Plaintiff 107 North Commerce Way Bethlehem, PA 18017 (610) 866-0400 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be ~itten and submitted in duplicate) TO THE P~OTHONOTARY OF CUMBERLAND COUNTY: Plp~-~e ] i~t the within matter for the next Ar~3t~ent Court. CAPTION OF CASE (entire caption must be stated in ONEBEACON INSURANCE COMPANY, f/k/a AMERICAN CENTRAL INSURANCE COMPANY ( pl aintiff ) V~. PLAZA MANAGEMENT, INC. GOLDEN WAY, INC. FOUNTAIN, INC., PA MANOR, INC. DUSAN BRATIC AND KATHLEEN BRATIC ( Deferment ) No. 02-2516 Civil 19 State matter to be argued (i.e., plaintiff's m~tion for new tr4a], defemdant's dezm~--rer to c~,~]aint, etc.): DEFENDANT'S PRELIMINARY OB3ECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify counsel who wJ]l argue case: 0 (a) for plaintiff: ~ess: Michael J. Kennedy, Esquire 107 North Coimmerce Way Bethlehem PA ]80]7 (b), for defe~mnt: m~dress: Stephen Portko, Esquire 101 Office Center, Suite A 101S US Route 15 Dillsburg PA 17019 I w~ll notify all paz-ties in writingwithin tm~days that tb~ case hm~ been li~ted for ar~t. 4. Arc3tm~.nt Court Date: January 8, 2003 D~ted: November 13, 2002 Attorney for Plaintiff Ronald Amato, Esquire ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL: INSURANCE COMPANY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo PLAZA MANAGEMENT, INC., GOLDEN: WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC AND KATHLEEN BRATIC, DEFENDANTS 02-2516 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this _~ day of January, 2003, the motion of defendants for summary judgment, IS DENIED.~ Ronald Amato, Esquire 107 North Commerce Way Bethlehem, PA 18017 For Plaintiff Stephen K. Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 For Defendants Edgar B. Bayie~ :sal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ONEBEACON INSURANCE COMPANY: f/ida AMERICAN CENTERL INSURANCE COMPANY, Plaintiff PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN, INC., DUSAN BRATIC and KATHLEEN BRATIC, Defendant NO. 02-2516 Civil Term CIVIL ACTION - LAW NOTICE TO PLEAD TO: Ronaid Amato, Esquire, Attorney for ONEBEACON INSURANCE COMPANY, Plaintiff You are hereby notified to file a written response to the ~aclosed DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM within twenty (20) days from service hereof or a judgment may be entered against you. Date: February 6, 2003 Stephen Portko, Esquire #34538 101 South U.S. Route 15 Dillsburg, Permsylvania 17019 (717) 432-971)6 Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ONEBEACON INSURANCE COMPANY: f/k/a AMERICAN CENTERL INSURANCE COMPANY, Plaintiff Va PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN, INC., DUSAN BRATIC and KATHLEEN BRATIC, Defendants NO. 02-2511~6 Civil Term CIVIL ACTION - LAW DEFENDANTS' ANSWER WITH NEW MATTER & COUNTERCLAIMS AND NOW, come Defendants, by their counsel, and file the following Answer, New Matter and Counterclaim to Plaintiffs Complaint: 1. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 1 of the Complaint and therefore deny the allegations thereof. 2. Admitted. 3. Admitted. 4. Admitted 5. Admitted. 6. Admitted. 7. Admitted. Count I -- Breach of Contra¢l 8. Denied as stated. Admitted that some form of Workers Compensation and Employers Liability Insurance policy of insurance was issued. Denied that Exhibit "A" is the entire contract. The document speaks for itself. By way of further answer, Plaintiff fails to attach the documents used by the agent and/or insurer in the formation of the agreement. 9. Denied. The allegations of Paragraph 9 of the Complaint are legal conclusions to which no response is required. To the extent an answer may be appropriate, these allegations are denied. Defendants aver, to the contrary, that Plaintiff fails to attach the documents that include all terms and conditions of the policy. 10. Denied. On the contrary, Plaintiff has not attached an ~atire copy of the applicable contract or insurance policy. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 10 of the complaint and therefore deny the allegations thereof. By way of further answer, it is specifically denied that Defendants were required to pay earned premiums of $9,970.00. To the contrary, Plaintiff has and continues to overcharge defendants for the premium rate quoated due under the policy. 11. Denied. It is specifically denied that pIaintiff fully and adequately performed the services requested by defendants or that it complied with the terms and conditions required under said policy of insurance. To the contrary, it is averred that the services provided by plaintiff were performed, if at all, improperly and without verifying information. Further, plaintiff failed to apply the correct experience rating and/or classifications, as required under the contract entered intto between plaintiff and defendants, which failure caused defendants to overpay premiums for which plaintiff owes defendants compensation. 12. Denied. The allegations of Paragraph 12 of the complaint are legal conclusions to which no response is necessary. To the extent an answer may be appropriate, the allegations are denied. Defendants aver, to the contrary, that no interest is due as more fully set forth in Defendants' New Matter. 13. Denied. The allegations of Paragraph 13 of the complaint are legal conclusions to which no response is necessary. To the extent an answer may be appropriate, the allegations are denied. Defendants aver, to the contrary, that no interest is due as more fully set forth in Defendants' New Matter. 14. Admitted in part and denied in part. Admitted that demand has been made. Denied that payment of the stated amount is due. WHEREFORE, Defendants demand judgment in their favor and against Plaintiff. Count II -- Alternative to Count I - Unjust Enrichment 15. Defendants incorporate by reference their answers to paragraphs 1-14 of the complaint as though fully set forth at length herein. 16. Denied. It is specifically denied that defendants obtained the goods, wares, merchandise, and/or services set forth in plaintiffs Complaint or exhibits. To the contrary, it is averred that plaintiff.failed to provide services required under the contract entered into between plaintiff and defendants, which failure caused defendants to overpay premiums for which plaintiff owes defendants. 17. Denied. It is specifically denied that defendants obtained the goods, wares, merchandise, and/or services set forth in plaintiffs Complaint or exhibits. To the contrary, it is averred that plaintiff failed to provide services required under the contract entered into between plaintiff and defendants, which failure caused defendants to overpay premiums for which plaintiff owes defendants. 18. Denied. Defendant is unable to properly admit or deny the allegations contained in Paragraph 18 as they are incomprehensible. By way of further answer, after reasonable investigation, answering defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph and therefore these allegations are specifically denied. 19. Denied. The allegations of Paragraph 19 are legal conclusions to which no response is required. To the extent an answer may be appropriate, these allegations are denied. 20. Denied. The allegations of Paragraph 19 are legal conclusions to which no response is required. To the extent an answer may be appropriate, these allegations are denied. WHEREFORE, Defendants demand judgment in their favor and against Plaintiff. NEW MATTER 21. Defendants hereby incorporate paragraph 1-20 above as if the same were fully set forth herein at length. 22. Plaintiffs Complaint fails to state a claim upon which relief may be granted. 23. Plaintiffs failure to provide the goods, wares, merchandise, and/or services required under the terms of the contract was a material breach of the contract which bars plaintiffs claims. 24. Plaimiffs failure to provide the goods, wares, merchandise, and/or services required under the terms of the contract constitutes non-performance of the contract which bars plaintiffs claims. 25. Plaintiffs failure to provide the goods, wares, merchandise, and/or services as required under the terms of the contract entered into between plaintiff and defendants bars plaintiffs action by the defense of failure of consideration. 26. Plaintiffs failure to provide the goods, wares, merchandise, and/or services as required under the contract entered into between plaintiff and defendant was a surrender of plaintiffs fights under the contract and plaintiffs claim is barred by the defense of waiver. 27. Plaintiffs failure to provide the goods, wares, merchandise, and/or services as required under the terms of the contract entered into between plaintiff and defendants bars plaimiffs actions by the defense of unclean hands. 28. Plaintiffs failure to provide the goods, wares, merchandise, and/or services required under the terms of the commct entered into between plaintiff and defendants bars plaintiffs action by the defense of estoppel. WHEREFORE, defendants respectfully requests that this Court enter judgment in its favor and against plaintiff for all consequential and incidental damages, including reasonable attorneys fees and costs and such other and furtlher relief as this Court deems just and proper. COUNTERCLAIMS Count I -- Breach of Contract 29. Defendants hereby incorporate paragraph 1-28 above as if the same were fully set forth herein at length. 30. In the course of negotiations between Plaintiff and Defendants and the proposal of insurance made by Plaintiff, Plaintiff represented that it would verify all information and data submitted for purposes of determining the insurance premium and Plaintiff represented that the correct experience rating and classifications codes were used when it quoted rates to the defendant. 31. Further, Plaintiff represented through its agents, brokers and representatives that discounts promised in proposals and rates for various classifications would be as quoted; however, without notice or authorization, changes were made and applied on audit statements and Plaintiff failed to disclose cost savings rating plans or other factors that would have afforded defendants with lowest possible premium rates. 32. The standard form contract and all similar form contracts used by Plaintiff contain an implied covenant that Plaintiff will deal with their customers fairly and in good faith in performing the obligations required under the contract, all of which the Plaintiff failed to do for the reasons set forth in this new matter and counterclaim. 33. Contrary to its assurances and representations made to Defendants, Plaintiff failed to verify information or provide accurate data when obtaining coverages, resulting in the overcharge of the premium allegedly assessed against defendants. 34. Plaintiffbreached that implied covenant of good faith and fair dealing when it quoted one rate for a classification and then changed the rate at audit, instead of verifying information and applying correct classifications or rating modifications; Plaintiff furthered its own undisclosed self-interest by failing to verify information used in the audit, resulting in an inflated premium charged to defendants. 35. As a consequence of plaintiffs breach of implied and express contractual terms, defendants have sustained damages. WHEREFORE, defendants respectfully requests that this Court enter judgment in its favor and against plaintiff for all consequential and incidental damages, including reasonable attorneys fees and costs and such other and further relief as this Court deems just and proper. Count II, In the Alternative, Unjust Enrichment 36. Defendants hereby incorporate paragraph 1-35 above as if the same were fully set forth herein at length. 37. Plaintiff has been unjustly enriched at the expense of defendants by collecting money to which they are not entitled. 38. Defendant is entitled to recover all money paid for overcharges of insurance premiums, plus interest thereon from the time of payment. WHEREFORE, defendants respectfully requests that this Court enter judgment in its favor and against plaintiff for all consequential and incidental damages, including reasonable attorneys fees and costs and such other and further relief as this Court deems just and proper. Count III, In the Alternative, Promissory Estoppel 39. Defendants hereby incorporate paragraph 1-38 above as if the same were fully set forth herein at length. 40. Plaintiff promised to provide services at promised prices which they did not provide to defendants by later changing them without disclosing that tactic when they knew that on the basis of prior experiences with other customers that they would. 41. Plaintiff deceptively presented ambiguous contracts that did not conform to their oral promises and misled defendants as to the performance of those promises. Plaintiff breached their oral promises and failed to perform by not verifying information or providing accurate data, resulting in overcharges to defendants. WHEREFORE, defendants respectfully requests that fl~s Court enter judgment in its favor and against plaintiff for all consequential and incidental damages, including reasonable attorneys fees and costs and such other and further relief as this Court deems just and proper. Count IV -- Breach of Fiduciary Duty/Unconscionability 42. Defendants hereby incorporate paragraph 1-41 above as if the same were fully set forth herein at length. 43. Plaintiff had and has a special relationship with the respective defendants with whom they contracted. 44. Plaintiff had superior knowledge and induced defendants to repose trust and confidence in Plaintiff. 45. Plaintiff therefore owed the fiduciary duties of candor, full disclosure as to billing and audit practices and loyalty to defendants. 46. Plaintiff breached that duty and acted unconscionably by failing to disclose material facts and by misrepresenting material facts. 47. In addition, under the standard form contract, Plaintiff was entrusted in providing insurance coverage based upon accurate classification codes and experience ratings which Plaintiff failed to provide. WHEREFORE, defendants respectfully requests that tiffs Court enter judgmem in its favor and against plaintiff for all consequential and incidental damages, including reasonable attorneys fees and costs and such other and further relief as this Court deems just and proper. Count V -- Constructive Fraud 48. Defendants hereby incorporate paragraph 1-47 above as if the same were fully set forth herein at length. 49. A fiduciary relationship existed between Plaintiff' and Defendants because Plaintiff acted as an agent in verifying information and providing quotes which the defendants relied on in selecting a carrier for defendants as described in Plaintiffs exhibits. 50. By failing to obtain or provide accurate information and data or disclose the existence of the factors used to rate the insurance and subsequent audits, Plaintiff's actions therefore constitute constructive fraud. 51. As a result of Plaintiff's fraud, defendants suffered damages in an amount to be determined by this Court. 52. Plaintiff acted maliciously and willfully, that is, intending to overcharge defendants for the insurance premium, or consciously disregarding the substantial risk that its conduct would cause significant overcharge of said premium 53. Defendants are therefore entitled to recover its actual a~ad punitive damages. WHEREFORE, defendants respectfully requests that t]his Court enter judgment in its favor and against plaintiff for all consequential and incidental damages, including reasonable attorneys fees and costs and punitive damages as this Court deems just and proper. Respectfully submitted, St~'~n K. P°rtko, Esquire #34538 101 South US. Route 15 Dillsburg, PA 17019 (717)432-9706 Attorney for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the fbregoing Defendants' Answer with New Matter & Counterclaim was provided by U.S. Mail, postage prepaid, first class, to the following: Ronald Amato, Esquire AMATO AND MARGLE, P.C. 107 North Commerce Way Bethlehem, Pennsylvania 18017-893 0 Date: 2 ooZ~ Stephen K. Portko VERIFICATION !, ~sa_q Bratic , hereby ,acknowledge that I am the Pres. of Plaza Manaq~nent i ' Answer, New Matter & Ca-OnU~T.a~]ti%~facts stated that I have read the foregoing therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Dated: Feb 6 2003 By: ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL' INSURANCE COMPANY, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo PLAZA MANAGEMENT, INC., GOLDEN: WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC AND KATHLEEN BRATIC, DEFENDANTS IN RE: 02-2516 CIVIL TERM PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT BEFORE BAYLI=Y, J. AND GUIDO, J. ORDER OF COURT AND NOW, this day of February, 2003, the preliminary objections of defendants to plaintiffs' complaint, ARE DISMISSED. ---'~onald Amato, Esquire 107 North Commerce Way Bethlehem, PA 18017 For Plaintiff ~S~ephen K. Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 For Defendants By the ( :sal ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL' INSURANCE COMPANY, PLAINTIFF PLAZA MANAGEMENT, INC., GOLDEN' WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC AND KATHLEEN BRATIC, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERI_AND COUNTY, PENNSYLVANIA 02-2516 crVIL TERM ORDER OF COURT AND NOW, this ~,~ day of February, 2003, the order entered on January 17, 2003, denying the motion of defendants for summary judgment, IS VACATED.~ ,,~onald Amato, Esquire 107 North Commerce Way Bethlehem, PA 18017 For Plaintiff ,,,,~tephen K. Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 For Defendants By thE~ Edgar B. Bayle~ :sal ~ An order has been entered this date dismissing defi.-ndants' preliminary objections to plaintiffs' complaint. Defendants did not file a motion for summary judgment. The order entered on January 17, 2003, i~ncorrectly referred to a motion for summary judgment when in fact it was the intent to dismiss defendants' preliminary objections to plaintiffs' complaint. COURT ~F COMMON PLEAS OF CUMBERLAND COUNTY,' PENNSYLVANIA CIVIL ACTION - LAW ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL Plaintiff VS. PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC and KATHLEEN BRATIC Defendant(s) : No. 02-2516 Civil CIVIL ACTION PLAINTIFF'S REPLY TO NEW MATTER, ANSWER AND NEW MATTER TO COUNTERCLAIM REPLY TO NEW MATTER 21. The allegations contained in this paragraph of Defendant's New Matter require no response under the Pennsylvania Rules of Civil Procedure except as set forth above and those responses are incorporated herein by reference. 22. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 23. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 24. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 25. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 26. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a r. espon~e may be required, Plaintiff specifically denies this averment. 27. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 28. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in favor of Plaintiff and against Defendant in accordance with the prayer of the Complaint. PLAINTIFF'S ANSWER TO DEFENDANT'S COUNTERCLAIM COUNT I BREACH OF CONTRACT 29. The allegations contained in this paragraph of Defendant's Counterclaim require no response under the Pennsylvania Rules of Civil Procedure except as set forth above and those responses are incorporated herein by reference. 30. Denied. Defendant made no objection when the policy was issued as to the experience rating and classifications. Plaintiff acted in accordance with the State Insurance Practices and Guidelines. 31. Denied. Plaintiff acted in accordance with the State Insurance Practices and Guidelines and the policy of insurance issued. 32. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 33. Denied. Plaintiff acted in accordance with the State Insurance Practices and Guidelines and the policy of insurance issued. 34. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 35. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in favor of Plaintiff and against Defendant in accordance with the prayer of the Complaint. COUNT II UNJUST ENRICHMENT 36. The allegations contained in this paragraph of Defendant's Counterclaim require no response under the Pennsylvania Rules of Civil Procedure except as set forth above and those responses are incorporated herein by reference. 37. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 38. Denied. There was no overcharge of premium and therefore no premium return due to defendant. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in favor of Plaintiff and against Defendant in accordance with the prayer of the Complaint. COUNT III, PROMISSORY ESTOPPEL 39. The allegations contained in this paragraph of Defendant's Counterclaim require no response under the Pennsylvania Rules of Civil Procedure except as set forth above and those responses are incorporated herein by reference. 40. Plaintiff provided services pursuant to a written contract which outlines the obligations of each party. Plaintiff fully complied with its duties under the contract. 41. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in favor of Plaintiff and against Defendant in accordance with the prayer of the Complaint. COUNT IV, BREACH OF FIDUCIARY DUTY/UNCONSCIONABILITY 42. The allegations contained in this paragraph of Defendant's Counterclaim require no response under the Pennsylvania Rules of Civil Procedure except as set forth above and those responses are incorporated herein by reference. 43. Denied. Said relationship is based on two commercial entities entering into written contracts. 44. Denied. Both parties are commercial entities with equal bargaining power. 45. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 46. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 47. Denied. Plaintiff acted in accordance with the State Insurance Practices and Guidelines and the policy of insurance issued. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in favor of Plaintiff and against Defendant in accordance with the prayer of the Complaint. COUNT V, CONSTRUCTIVE FRAUD 48. The allegations contained in this paragraph of Defendant's Counterclaim require no response under the Pennsylvania Rules of Civil Procedure except as set forth above and those responses are incorporated herein by reference. 49. Denied. There is no fiduciary relationship between the parties. 50. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 51. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 52. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. 53. Denied. This averment constitutes a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. Without waiving the foregoing and to the extent a response may be required, Plaintiff specifically denies this averment. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in favor of Plaintiff and against Defendant in accordance with the prayer of the Complaint. PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM 54. Defendant's claims are barred or should be reduced by the failure of consideration. 55. Defendant's claims are barred or should be reduced by Impossibility of performance. 56. Defendant's claims are barred or should be reduced by the doctrine of laches. 57. Defendant's claims are barred or should be reduced by the Statute of Frauds. 58. Defendant's claims are barred or should be reduced by the Statute of Limitations. 59. Defendant fails to state a claim upon which relief can be granted. 60. Defendant's claims are barred or should be reduced or are limited by the terms of the contract. 61. Defendant's claims are barred or should be reduced by the doctrine of estoppel. 62. Defendant's claims are barred or should be reduced by Defendant's failure to mitigate damages. WHEREFORE, Plaintiff requests Your Honorable Court enter judgment in favor of Plaintiff and against Defendant in accordance with the prayer of the Complaint. AMATO A/~MARGLE, P.C. Ronald Amato Attorney I.D. No. 32323 Attorneys for Plaintiff 107 North Commerce Way Bethlehem, PA 18017 (610) 866-0400 ~' ~2~ ~. ~#~Z~. ~', hereby states that he/she is the ~'~ of CGU Insurance, Plaintiff, in this action and verifies that the statements made in the attached Reply to New Matter and Answer and New Matter to Counterclaim are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 PA C.S. Section 4904 relating to unswom falsification to authorities. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL Plaintiff VS. PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC and KATHLEEN BRATIC Defendant(s) No. 02-2516 Civil CIVIL ACTION CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of Plaintiff's Reply to New Matter, Answer and New Matter to Counterclaim was served via first class mail, postage prepaid on March 13, 2003: Stephen Portko, Esquire Bratic & Portko 101 S US ROUTE 15 DILLSBURG PA 17019 AMATO AN/~ARGLE, P.C. By: Ronald Amato Attorney I.D. No. 32323 Attorneys for Plaintiff 107 North Commerce Way Bethlehem, PA 18017 (61 O) 866-0400 ONEBEACON INSURANCE COMPANY: F/k/a AMERICAN CENTRAL INSURANCE COMPANY Plaintiff PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN INC.,: PA MANOR INC., DUSAN BRATIC : And KATHLEEN BRATIC : COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2516 CIVIL TERM CIVIL ACTION I HEREBY CERTIFY that a true and correct copy of the Defendants Answers to Plaintiffs Interrogatories and Request for Production of Documents in the above referenced matter were furnished by first class mail, postage prepaid, this 1st day of July 2003, to: Ronald Amato, Esq. Amato & Margle, P.C. Suite 100, Commerce Square 107 North Commerce Way Bethlehem, PA 18017-8930 Date: I01 South U.S. Route 15 Dillsburg PA 17019 (717) 432-9706 ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL INSURANCE COMPANY Plaintiff VS. PLAZA MANAGEMENT, INC. GOLDEN WAY~ INC.~ FOUNTAIN, INC.~ PA MANOR, INC., DUSAN BRATIC and KATHLEEN BRATIC Defendants RULE 1312-i, IN THE COURT OF COMMON PLEAS OF C%%~BERLAND COUNTY, PENNSYLVANIA NO. 02-2516 CIVIL 19 Petition for Appointment of Arbitrators shall be substantially in the following form: PET~fT%ON FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Ronald Amato, Esquire , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue- 2. The claim of the plaintiff in the action is $ 11,740.02 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are other- wise disqualified to sit as arbitrators: Stephen Portko. Esquire WtLEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respe~ubmit ~ed, Rona l~f~ma t o, Esquire ORDER OF COURT AND NOW, .~f~__~ / , 19~ in consideration of =he foregoing petition, ~~ ~ ~ ~ Esq., ~. ~ ~_Z ~z ab~ve-cap~ioned action (or actions) as prayed for. By ONEBEACON INSURANCE COMPANY f/k/a AMERICAN CENTRAL INSURANCE COMPANY V. PLAZA MANAGEMENT, INC.,: GOLDEN WAY, INC., FOUNTAIN, INC., PA MANOR,: INC. DUSAN BRATIC and KATHLEEN BRATIC · IN THE COURT OF" COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · O2-2516 CIVIL TERM IN RE: ARBITRATION ORDER OF COURT AND NOW, June 14, 2004, the Court having been informed that the above-captioned case has settled prior to hearing, the panel of arbitrators previously appointed is vacated, and Henry Coyne, Esquire, Chairman of the Arbitration Panel, shall be paid the sum of $50.00. By the Court, Court Administrator Henry Coyne, Esquire Coyne & Coyne 3901 Market Street ~ Camp Hill, PA 17011-4227 CQURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ONEBEACON INSURANCE cOMPANY f/k/a AMERICAN CENTRAL INSURANCE cOMPANY Plaintiff VS. PLAZA MANAGEMENT, INC., GOLDEN WAY, INC., FOUNTAIN, INC., PA MANOR, INC., DUSAN BRATIC and KATHLEEN BRATIC Defendant(s) No. 02-2516 Civil : CIVIL ACTION JOINT PRAECIPE TO DISCONTINUE WITH pREJUDICE TO THE PROTHONOTARY, CUMBERLAND COUNTY': Please discontinue the above-captioned case with prejudice as to both Plaintiff' s original claim and Defendant's action against plaintiff. Amato and Margle, P.C. By:~ Attorney ID #32323 Attorneys for Plaintiff P.O. Box 1111 Allentown, PA 18105 (610) 866-0400 Bratic & Portko By: -- ' Stephen Portko, Esquire Attorney for Defendant 101 S US ROUTE 15 DILLSBURG PA 17019 71"/-432-9706