Loading...
HomeMy WebLinkAbout94-05932 " 'Ii' i', , , "f' I:' 'I I, i, ,'i -I I' , ' I I', , , !' " I , ,; '1 I ,II " I 'I ,I , I, j" , 1 " " ,', I " ,I .' " , I' .j , I', " , , 1 , " , " I ". ., , , '" J ,-, I ,I I :'j" " " J' " ;" "..' ,i" , , " " , " " ,I' " "..\ I' , , , " , ,I' " " " " , ,I " '1 j , (, ,'.' :\ "'1 J , ',' ' " , 1 ,:1 I I, , " ., J , " , " , , I. " " ~ {. ( .~ 11.. ~ f'. ~, ~ '.. ]., .. ,.., ~ ...,- ~ , ~ "'" &1 51 ll) :;- .... " 0 ., " Q \() 0"- ("<') -,. ~ l[J lJ}' IJ) r" - ~ - - , ~ c!:: " .' ~ ..::I ~, ,','.,' ~ ~ . " , '. I' " , ~ i I I I . ! .. ,~ .. ~ ft~ (; J ~I IJit · i :Q I ~I II ; . i ~ , .~r ri I I : ~ I I i I ~ IjJ I . 'H ... I u "') ~ ;: I I I I .. I IUOINI L..COON IIIerItI ALLEGHENY COUNTY SHERIFF'S DEPARTMENT . ROOM 111 . COURTHOUSE iJ PITTSBURGH. PA 15219 a /7""NIn Phon,: 355.4700 Clf/- ,S?~ f'1JO .~ fd2. C ~A ~:s----t/~ ~, DEFT. t!/(fJt~ tv I~DrzK / . . SUMMONS/PRAECIPE I COMPLAINT ONLY AOO. DEFT, U NOTICE AND COMPLAINT ADD, DEFT, . [} REVIVAUSCI FA ~_ODRRNEISSHSEE~.~..IuJf -A 4rm ' ~ / ~ 11 INTERROGATORIES ~ ~ ijJX7;171~ () .)!rvXJ ~.~J~O"~T~~URI:,~~~.._~E:.Y MUNICIPALITY WARD/CITY WARD :J OWl --- :~~E: - 19__ -~TT'Y:. _....--tt#nk,,;q /l ~ JOHN M. IIeNAMAJIIA CIlI., Depll~ PLAINTIFF INDICATE tyPE (If SERVICE: 0 PERSONAL 0 PERSON IN CHARGE 0 DEPUTiZe lJ CERT. MAIL 0 POSTED [J OTHER [J LEVY [1 SEIZED' STORE 18_ I, SHERIFF OF ALLEGHENY COUNTY, PA QO hereby deputl.. thl Sheri" or County 10 IXecUIe thle Writ and mike r.turn thereof according to law. 1IO'fI' Ot&Y >>"'ICA.... ON WR.' C# IX.CUlIOMl N... WAIV." OP WATCHMAN. Any deputy ah.rHf levying upon or attaching any proptrly und., wlU'lin writ mly .. 11IM without. wetc"'",,", In CUlIO~ 0' w~omw.r II round In, ~'''llon, .rter nQ~rylng plrtOn 0' Iwy or .ttachmlnt, with out Ulblllty on the Plrt o~ lueh deputy ..." for any loll, clfHlI'UCtlo" or removll 0' '"'II luel'l r::>>roperty bl'or. ahlrl"', nl, thereo', HcIw. Seize, I.vy. 'elver'i" .nd "II sll the personsl property 0' 'he delendanl on the preml.e. locatad al:___..._.___ MAKE MODEL MOTOR NUMBER SERIAL NUMBER LICENSE NUMBER =-- l h.reby CPtlN end ftl'fUftN that on the SHERIFF'S OFFI(:E USE ONLY '7 - dlV o,_._=:-J.JO IJ . . ,g~ ''2-- o'clock, A,M@ddr... Abevil/Addr... allow, CQunty or AlItOnlny, PllnnlylV.nll , .... ,INed In 11'1. m.nn.r Dlecrlbld bllOw~ o g,r.ndant(l) IMf'On.11y liNed. a A4utt r.mil~ m.mlM, with whom u1d Dlr.ndlnr(.) r..ldlll), Him, . Allltlonthlp a Adult in ohq. or oef.ndtnt'. r.ldlne. who ",'ulld to Qlve nIIm. or r.t.fJONlnlp, o UI"'8,rJCI'rlI or pl., ')r lodging In whie" D,r,ndIMlll) r"ldl(l)._____>__ a Aglnt or "IrIOn in 01'11111 or O,'.ndlnt(l) onc:. or UlUII pllC' or bu.ln.... Cl Ot"" o "",.,.., 'OItlCl DolINllnl no' lbuNl bl""": ~1Cl o C.rMed Mill U A.,I a "qul.r MIIII Wny~ U UnkrMMn [) No An...,r [J VlIClnt [] Em.lope Flelurnld___. CIOlher____._., [1 Neltn., Flee"I",! or onvoloptt r.turned; writ e.pirld You .re hereby notlll,d lhal on 19_, levy was made In the case 01._._. 2E?4fr-",_~:- - _~_____ ,__ "-:,~'_~~_."~~ ,~:.."~ . NOV. 2 319M NIJ\4;lIiul Selll Halll,O'lIIIto.n,~"'-'tlIIc Pi... . AiIaQi"ln'/ Cour'll' !.f/Ui .....1" 1'l1l8 V lIow . Sherin .. .. ,-_.. !PInk Copy. Attornoy C," . , , O~r i" "r I ,J "I " , . . i I, I , I I. I . ... I 0' ~9, I <U 12 ~ I' I I J~ I r I .. rfJ ~ , ~ I .S I ~ ~... ~ \ J' I .' ~ I, ~! '. g ~l ~ H I ~ ~ ,. ~., I ,,) 8 I ..-i ,IJ.-l ..>..0 I 0' I 8 - -S 01'-" , '<1 ., I .nl l.(J ~ I~ I - >< .,~ ,PI I ~I ~ . ~ , u' ';::j ~,.1J N I . ,;.: I <1;1 I I h~ , ~I 0)) ,., ,:!j:::l I I "' , ~f , ,~, \r , u 0 , ~~"~' I UI I ~ , 1"'1 ... . I I 'fi,l:~ I ." . l..O' ....-4 I- "'! H I '~t ~aM:t:... . ! 8' .~ . I ul I, 1"'1, . I I, 0"1 ~ ~ 'n I I ~~I I ~I I I' I ~i I :1; H I L L I I . " ": " J . ,\ , , !.' !;' ,-;,'l;,,';:,!;,'r~li{;:": ; ,..1,.__ 'igll~'~h;_l,;, '-;!"!<j-:\"\'~T:::~_~ ~"''''- .... ,'~l 'II: . ~ ,'. . "'l"'ol\' ..:' .. '1{1I I. .; \ll~, ',Ii -' " fl~W,,'.';J~,~ !"! \~,'~ ,\t1\ 'I' !",:' rf '" ','" I,' :," , , ' Commonwealth of Pennsylvania County of Cumberland Pcnoco. tnc. Court ot (;onunO<I Pl.... ..... No, ___9_4.:~J.~?, ~},'!i-L:~E}!!lt_.---- - - --- L~___ Me\Xlnough CalJert,,)n [nSllI',lrle!! CL'OUP Centre City 'l'ower. sulte (,20 In ___ _~i-YJL^~'.t:J'1I}_L<!.~.-------------------- 6:,1) Smithfidd Str!!nt pittHbut"gh. I'A t5222-J'J1:J J and Cl",dg W1Hotzk i. Celitce City Tower. ~)ll.l t" 620 6';0 ~~\1ith(ie1d Street l'il:LSburgh. PA l'i222-J'JAl T,; ..}::!S'l~lI1Wilh (.\11&.~t,'n_L[1l;l.~-'';r\~.l);l.Nlfl.C~'<liq ~IL:;Jotzkl YO\.! ar~ hl,'reby notifi,~d that pcno:o, toe. .~ _..~.. ~ --- -~ -.. ~ -.. .~.. -~.... -- .---.. ~ ~.- _...-~.. - --_..~ -- ......---.." -.... - -- ..--- ...-....~..-.... -..-..--.... ..... - - --...- -.. ----.. Ih. P\~inliff hm s commenced an .ctioa in _~.~,<n_l\.C_~!9J:l_JJi)~L...---------------------------'--- "S'LinS! you which yuu .re "'luirtd to d.f,."d or ~ dd~ull judgmenl m.y be enlend apinl' you. (StAL) L..Jwrence E. Welker .._n' -- - --_.. -..-.;~;h~;~;;,:,-.. - -'.. - -" ..----- [m,. OL:ttQll:le~' q. 1994 _...~-------------_...---_..-.--- lIy .._~1ob..~~.i:'0~~"1~'-- Deputy I~.-.. ~\ r.' OCT I . "( . ','" ,) I , ' " , , " ' " ~ ! I ! . I III I I ~ ! ! JI ~ g >J I ~ , , $ I I .S I . J:l::: , ~I . I I ~t' .p U1 .-< , 8 1 I J jJ>J~ I ,~ I ~ , If . I .. I' I Sr, .-< ~ .-< .>! I ("oj . "" . I ,'"I N , 8 .", '" g t.J I >JI ~'r. 0''''' i< '" '5, '>l 0 I 01 I ~'"i . j .B ~. I ~I H I <C I 'fa ,~ I , 0-1 ~1.9. '" , I .-it I @ '~ .' ~ '~"" 0 ''"I ~ -'f~ ~. I .~l I I I .8 '~ ul ro;r"'" I . . '""J' I..Qr'~ r j! t I' M ,... I I I I I I I I '."..... - ," " ,'." '_ ' :'-Il,-."d'Mi'_,-- . i _ ..\.,,\ ',I',:.,-'itJ.ili/, tih,l.:'/ ::w't!:'b'o-~'II':'~~":~:':I.I;1 '~ I,.,.M\ , ., ~ __ _.L"',.. .' ...........ll.HHj.~.........;. '; 1:_""':/"II-,i!t~.::I"<:_";""'_i""',""" :-,"1_-,:1.'. ' .; '\ -".'il~I!!,_".--.,Ad. ' " "I' \~j :/"""1': ,,'~~lL .' ',(i'i'I*,ll.I~"i::' ........... ~~t '" . -r. t1 . ' lJ.al.i.,,, ~.'" , '" ~.' ~ ,.. ...,~ . .' iE , II]', '::.' ~ " " ., ":r - - ~ " '. '. "'"'" . , 4 . " Q E U1. ~~ Z 0,. ... Z 0:: ~ c ~ ~ C.... U1..J &II 2... ~ ~ ~~c ~z 16~~I~~ ~~w %1 ... 0 Z ~ . ~~~ ~i 9~ ~ ~~ 6 ~ ~ i . '0 . 6. Dc6ndInt Acordia il enpaed in the buline.. of aeOina inlurance, includill8 ubeatOl abatement inaurll'\(e, 7. Penoc:o believes, and therefore aver.. that Defendant Craia WilOtaki il president of Acordia lnaurance and wu formerly prelident of McDonouah Caperton Insurll'\(e, 8. Penoco believe.. and therefore aver.. that Defendant Craia Wisotlki i. the sole principal, directina all the busine.. affairs of the Defendant insurll'\(e group.. that Defendant.' existence and actions are inseparable from each other and that Defendant insurance IJI'OUpl are the alter eao of Defendant Wisotzki. 9. At all times material hereto, Defendants' actions were synonymoul and the averment. . herein are equally applicable to both Defendants, 10, On or about June, 1988, Penoco contacted Craia Wisotzki for ubeltO' abatement insurance coveraae, A meeting took place at Plaintiff's offices concerning such coveraae, II, At that time, Defendant Wisotzki infonned Penoco that Plaintiff' would not be able to pi "CIdiIIac insurance" beea'." Plaintiff' had not been in existence for a lona enouah period of time and Plaintift' had insufficient net worth, 12, Defendant Wisotzki directed Penoco to seek coveraae from another source, Penoco did so 13, Penoco informed Defendant Wisotzki of the coveraae. it acquired throuah Commercial Cuualty, 14, Defendant WiSOlzki informed Penoco that the cove,..e it had obtained throuah Commercial Casualty wa~ "no aood" and only a "pitte o(paper", 2 . . 15. On or about 1990, when Penoco had increued its net worth, it qain contacted Defendant WilOtzki to obtain "Sood in.urance", 16, On or about February, 1990, Defendant WilOtzki visited the Penoco offif;:es apin concemina asbe.to. abatement insurance coverase, 17, Defendant WilOuki advised Penoco to purchase environmental risk insurance coveraae (ERIC) because it was considered the "top of the line" and "Cadillac" insurance for the asbe.tos industry. 18. On Defendant Wisotzki's recommendation, Penoco purchased a policy from ERIC eft'ective May IS, 1990, until March 24, 1994, 19. Penoco purchased the insurance policy for the express purpose of providing coverage for losses incurred as a result of the removal of asbestos by chemical means, 20, On October IS, 1992, Cumberland Valley School District instituted a civil action asainst several defendants, including Penoco. The suit was filed in the Court of Common Pleas. Cumberland County, PA, Case No. 2189-1992, The suit involved work performed by Penoco which it commenced in June of 1990, 21, An amended Complaint was filed in this action November 30, 1992, 22, By letter dated November 2S, 1992, ERIC notified Penoco that it was denyin,l coverap and lepI representation for Penoco in its impending lawsuit against the Cumberland Valley School District. 23, ERIC ceased payins defense costs on Penoco's beha1fon December 9, 1992. ) . . . 24, Consequent1y, Penoc:o wu forced to retain legal representation on its own to defend the above-referenced suit filed by Cumberland Valley School District, Count I E1:Iwl 25, Plaintiff incorporates by reference the allegations contained in paragraphs I through 24 as thoush set forth at length, 26, In response to Plaintitl's inquiry as to acquiring adequate asbestos abatement insurance, Defendant Wisotzki represented to Penoco that ERIC insurance would sufficiently meet Penoco's insurance needs. 27, Plaintilfbelieves and therefore avers that such representations were materially false as follows: A, The statements of Defendant Wisotzki materially misrepresented the coverage to be supplied by ERIC. Defendant Wisotzki materially overstated the coverage in calling it the "Cadillac" and "top of the line" insurance, 8. Likewise, Defendant Wisotzki mllterially understated the policy's limitations, 28. Plaintiff reasonably and justifiably relied upon the advice of Defendant Wisotzki as to the nature and extent of the benefits which were due to Penoco under the policy, Defendant Wisotzki, as 18ent, was aware ofPenoco's reasonable reliance upon its advice and Penoco's lack of independent representation. 29, Defendant Wisotzki made the representations to Penoco with actual knowledae 01 thei, falsity at the time they were made. or in reckless diuegard 01 their truth offalsity, 4 4. SUblequently, plllntlffl claim for detenle and coverage In a 1992 lewlult filed agalnlt It by the Cumberland County School Diltrict In thll Court wa. ultimately denied by ERIC. 5. Plaintiff, Penoco, Inc., filed a declaratory judgment action in thl. Court at No. 94-5933 on or about September 12, 1995 ...king defenee co.tI and coverage under the policy ISlued by ERIC. The party defendant. in that action are "Environmental Rllk Inluranee Company, RI.k Retention Group, McDonough Caperton Insurance Group, now known as Acordla Insuranee." 6. Plaintiff, Penoco, Ine" ha. simultaneously filed this action at No, 94.5932 on or about September 12, 1995, This action is filed against McDonough Caperton Inlurance Group aJk1a Aeordia Insurance and also naming Craig W1sotzkl, former President of McDonough Caperton Insurance Group, as a named party defendant alleging a single count of fraud, 7. Plaintiff's second lawsuit alleging fraud against McDonough Caperton Insurance Group and Mr. W1sotzki is retaliatory, vengeful and flied for the sole purpoee of haras.ment, and particularly, against Mr. W1sotzki, As such, this action is vexatious and may be subject to the penalties of Pennsylvania statutB 42 Pa. C,S,A. S 2503. I. g'MU~R~R: PA, R. CIV. P. "ULII; 10al(8)(4) 8. Paragraphs 1 through 7 shall be incorporated by referenee as if set forth in full. 9. At all relevant times subject to plaintiffs Complaint. defendant, Crl.ig lMIotzki, was acting within the couree and scope of his employment as President of McDonough Caperton InsuranC41 Group aJk1a Aeordia Insurance, .._,' 2 10. At no time did defendant, Creig Wlaoakl, eet Indlvlduelly or on hla own behelf. 11. Plelntlff hea felled to allege thet Mr. Wlaoakl ever eetect Indlvlduelly or on hla own behelf during the relevent time period. 12. At all re'-vent tlmea, defendent, Craig Wiaotzkl, wea an agent of McDonough Caperton Inaurence Group alkJa Acordia Insurance. WHEREFORE. plaintiff'a Compleint against defendant, Craig Wlaotzkl, should be diemlaaed for failure to atate a cause of aetlon upon which relief may be granted. II. lHIUFFIC.ENT epeCIFICITY: PA. R. C'V. P. RULE 1028(IIW 13. Paragraphs 1 through 12 shall be incorporated by reference as If set forth in full. 14. Pennsylvania is a fact pleading jurisdiction, and all facts must be set forth with specificity In the Complaint. City of PtliladelDhia v. Kane, 63 Pa.Commw, Ct. 643, 438 A.2d 1051 (1962). 15, Plaintiff has failed to plead the necessary facts to support a claim of fraud against the defendants, 16. Plaintiff has failed to plead with specifiCity that a misrepresentation was made by defendants. 17, Plaintiff pleads only conclusory allegations about defendants' general characterizations regarding insurance policies but not any specific misrepresentation, 18, Plaintiff has failed to plead intent by the defendanta that resulted in an inducement to act. "....1 3 19. Plaintiff ha. failed to pleld jUltlfiable reUance on a ml.repreHntatlon. 20. Plaintiff ha. failed to plead It IUltalned damagel al a proximate re.ult of the reUance. 21. Plaintiff ha. failed to plead factI with necellary Ipeclflclty to IUpport a claim for fraud. WHEREFORE, plaintiff's Complaint should be dismissed again.t defendantl for failure to plead necellary facts to sustain a claim for fraud. III. fEHP~NCY OF A PRIOR ACTION; PA. R. CIV. fJ, RULE 1021(a)(I. 22. Paragraphs 1 through 21 shall be incorporated by reference as if set forth In full. 23. Plaintiff, Penoco, Inc., has filed a declaratory judgment action in this Court at No. 94.5933 Including McDonough Caperton Insurance Group, now known as Acordia Insurance. 24. Plaintiff's declaratory judgment action at No. 94-5933 was filed aimultaneously with thla action at No. 94-5932 on or about September 12, 1995. 25. Both lawauita ari18 out of the same transaction or occurrence and both auitl arlae out of the same set of facts, WHEREFORE, plaintiff's Complaint should be dismissed due to the pendency of a prior action. IV. NON~QINDeR OF A NECeSSARY PARTY: PA. ". CIV. P. RULE j02'CalCJ} 28. Paragrapha 1 through 25 ahall be incorporated by reference aa if let forth in fuD. "'''' .. " I I,: , " ~ . iE ... '" ('I') 'J; .'.).).. '-" ,. ~ .' , ;.. ',.' ..' C1'1 .... .... = . . PRAECIPE FOR LISTING CASE FOR ARGUMENT (...t be typewritten and eubnitted in "''Plicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: P1_e liBt the within IIIIItter for the nut ~t 00Urt. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire Cllption _t be etated in full) PENOCO, INC., VB. I Plaintiff) 8 -n 0 '-'I ." ii:'" ':'_~ CB@ ,.., =,.1 ,., ::;~ :2' , N c:;~; \0 ,) r.CJ ) ::"'''' :::! i'j - . .'';(') - i:i~ ~40 '... 'rJ "'- r >> .....~:; 0 --t !oJ ", ~. ... C:) ~ McDONOUGH CAPERTON INSURANCE GROUP a/k/a ACaRDIA INSURANCE and CRAIG WISOTZKI, I Defendllnt ) No. 5932 Civil 1994 1. State II1IItter to be argued ILe.. plaintiff's IlDtion for ~ trial. defendant's denaJner to COIIllaint. etc.): Defendants' Preliminary Objections 2. Identify oounsel wtv.l will argue case: (a) for Plaintiff: Addreea : James L. Goldsmith. Eequire Caldwell & Kearna 3631 N. Front Street Harrisburg, PA 17110-1533 Mike Adams, Esquire Meyer, Darragh, Buckler, Bebenek & Eck 2000 Frick Building Pittsburgh. PA 15219 J. I v.Ul notify all parties in writing within t"'" days tJlat thUI caae '- beetl liBted for argunent. (b) for defendant: A.lh_e: Y... 4. ~t Court DIIte: January 31. 1996 Dated: Dec.mb.r 27. 1995 - ..I:Y!.'t~~7i: licensed insurance brokerage firm in Pennsylvania. Defendant, Environmental Risk Insurance Company, Risk Retention Group ("ERIC"), is a duly licensed insurance carrier. On or about June, 1988, Penoco contacted Defendant Wisotzki, the President of McDonough Caperton, and requested asbestos abatement insurance coverage. A meeting took place at Penoco's offices concerning this coverage. At that time, Defendant Wisotzki represented to Penoco that PenocO would not be able to obtain "Cadillac insurance" because Penoco had not been in business long enough and did not have sufficient net worth. Defendant Wisotzki directed Penoco to seek lesser insurance which Penoco did through Commercial Ca~ualty. Defendant Wisotzki informed Penoco that the coverage obtained through Commercial Casualty wa, "no good" and only a "piece of paper" , !n 1990, Pelloco had increased its net worth and contacted Defendant Wisotzki to obtain "good insurance" In February of 1990, Defendant Wisotzki again visited Penoco's office concerning asbestos abatement coverage. At this time. Defendant Wisotzki was aware that Penoco was using chemicals in its abatement process. Defendant Wisotzki advised Penoco to purchase ERIC because it was considered the "top of the line" and "Cadillac" insurance for the asbestos industry Pencco relied on Wisotzki's representations and purchased a policy from ERIC, effective May 15,1990, through March 24.1994 Penoco purchased the ERIC policy for the express pUflloses of providing coverage for losses incurred as a result of the removal of asbestos by chemical means, On OClober 15. 1992. Cumberland Valley School District instituted a civil action against several defendants, including Penoco An Amended Complaint was flied by Cumberland Valley 2 McDonough Caperton would then be able to seek from Defendant Wisotzki the damages it paid to Penoco, Defendant's agency argument does not have the support of precedent and should be disregarded, Next, Defendant argues that Penoco's fraud count should be dismissed for insufficient specificity, Avennents of fraud shall be averred with particularity. Pa. RC.P, IOI9(b), The elements offraud are: (1) a misrepresentation; (2) a fraudulent utterance of it; (3) the maker's intent that the recipient be induced thereby to act; (4) the recipient'sjustifiable reliance on the misrepresentation; and (5) damage to the recipient proximately caused by misrepresentation. Sevin v Kelshaw, 417 Pa, Super, 1,611 A,2d 1232 (1992). A review of these elements leads to the conclusion that Penoco's fraud count has been properly pled. Defendant Wisotzki misrepresented the coverage. benefits and limitations of the ERIC policy, Specific statements are averred in the Complaint. Wisotzki misrepresented that ERIC was the "top of the line" and "Cadillac" insurance for the asbestos industry. At all relevant times, Defendant Wisotzki knew that Penoco purchased the insurance policy for the express purpose of providing coverage for los.,es incurred as the result of removing asbestos with the use of chemicals At a11 relevant times, Defendant Wisotzki knew that the ERIC policy would nor. provide the type of coverage required by Penoco. Defendant Wisotzki' s misrepresentations induced Penoco to purchase the ER1C policy. Penoeo was not independently represented at the time, and Defendant Wisotzki knew that Therefore. Penoco was justified in relying on the misrepresentations, In 1992, Cumberland Valley School District named Penoco as a Defendant. On December 9, 1992. ERIC ceased paying d('fense costs based on the alleged applicability of policy exclusions '5 pertaining 10 Ihe use of chemicals, Penoco has been damaged because il has been required to tender its own defense and faces the contingency of a verdicI that may 1101 be covered. AJlthe above discussion is conlained in Ihe Complaint. The Complaint complelely alerts the Defendants 10 Defendant Wisolzki's conduct for which they must defend, Therefore, Defendant's Preliminary Objection based on insufficient specificity should be denied. Next, Defendants argue thaI the Complaint should be dismissed due 10 the pendency of the declaratory judgment action. However. this Preliminary Objection is not properly before this Court because Defendant failed to endorse the Preliminary Objections with a notice to plead. Rule 28(c)(2) states that "[t]he court shall determine promptly all preliminary objections. If an issue off act is raised, the court shall consider evidence by depositions or otherwise." J.d. As pointed out in the explanatory note to Rule 1017, preliminary objections raising an issue under Subdivision (a)(I), (~) or (6) must be endorsed with a notice to plead or no response will be required under Rule 1029(d). Id See il.u2 Chester Upland School District v YesavBlle, _ Pa. Commw. _' 653 A,2d 1319. 1325 (1994) Defendants' PreliminaryObje(.tions pursuant to Rule 1028 (a)(6) failed to include the required notice to plead. Therelore, the Preliminary Objections are not properly before this Court, Finally, Defendant argues that Ihe Complaint should be dismissed lor non-joinder of a necessary party pursuant to Pa. Rep. 1021(a)(5) Based on the diS(;ussion JlIJIlJ, and due to Defendant's failure to include a Notice to Plead, Defendant's Preliminary Objections pertaining to 1028(a)(5) are not properly before this Court. 6 PENOCO, INC., PLAINTIFF V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSVLVANIA MCDONOUGH CAPERTON INSURANCE GROUP AlKlA ACORDIA INSURANCE AND CRAIG W1S0T2Kl, DEFENDANTS 94-5932 CiVIL TERM IlIUORE SHE~LY. p.J. AND BAYLIY..JI. QBOER OF COURT AND NOW, this 1st day of February, 1996, the preliminary objections of defendants McDonough Caperton Insurance Group elk/a Acordla Insurance and Craig W1lOtZki to plaintiffs complaint, ARE DISMISSED. // By the Coul( " / I Jam.. L. Goldsmith, Esqulra For Plaintiff Edgar B. Bayley, . I c~""' (~LL\. ;J.J, "". ...& ,t> . Mike Adams, Esquire For McDonough Caperton Insurance Group and Craig WilOtZki Cl -,0 C) :IM r.;, "n .. '"'0 ~.~ j -V\ .-:) ;ro [!J -": ...JJ "::'1 . 'j !"J'" I ':~ 'l.'_' ~~ '.J,' t-:~~. ; h' ) -p '=I] ,:.,:;"-.... 10 t',,:: t ~ ) r:-? ,-"~tn ....'..(- " :'J ~;,,',~ . --, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PENOCO, INC., ) CIVIL DIVISION ) Plaintiff, ) No. 94.5932 ) .VI. ) ) McDONOUGH CAPERTON ) INSURANCE GROUP, and ) CRAIG W1S0TZKI, ) ) Defendants. ) AtU$WER ANt) ttEW MA"1ft TO COMPLAINt COME NOW the defendants, McDONOUGH CAPERTON INSURANCE GROUP and CRAIG WISOTZKI, by and through their attorneys, Meyer, Darragh, Buckler, Bebenek & Eck and Donald W. Bebenek, Esquire and Mike Adams, Esquire and file the within Answer and New Matter to Complaint and aver a. follows: 1. Paragraph 1 is admitted. 2. Paragraph 2 is admitted. 3. Paragraph 3 is admitted, ... Paragraph.. of the plaintiff's Complaint is denied as stated. It is admitted that the defendant WI,oaki is an employee of Acordia, Inc. and, hence, any allegationl to the contrary are denied. 5. Paragraph 5 is admitted. "tI1O& 1< e. Paragraph e of the plaintlfft Complaint II denied alltated. It I. lpeclflcelly denied that the defendants "sell Insurance." On the contrary, It is averred that the defendants are inlurance brokers who arrange connectlonl between inluredl and inlurance companlel. Hence, said allegations are denied. 7. Paragraph 7 of the plaintiffs Complaint is denied as stated. It Is admitted that the defendant Wlsotzki was the President of McDonough Caperton Inlurance Group. subsequently, he was a producer and account repre.ontative for McDonough Caperton, now known as Acordia, Inc., and any allegations to the contrary are denied. 8. Paragraph 8 of the plaintiffs Complaint is denied as stated. It is spec:lflcelly denied that defendant Wlsotzki is the sole principal or directed the business affairs of the defendant McDonough Caperton. On the contrary, It is averred that defendant Wlsotzki was and currently is an account representative and producer for Acordla, Inc., which is a separate and distinct corporation. and any allegations to the contrary are denied. 9. Paragraph 9 of the plaintiff's Complaint is denied as stated. Paragraph 9 contains a conclusion of law and the same is denied. 10. Paragraph 10 of the plaintiff's Complaint is denied as stated. It i. admitted that in June of 1988, there were discussions between Craig IMsotzki and representativel of Penoco. Inc. for various insurance coverage., including a.besto. abatement coverage. It is admitted that meetings took place in the piaintiff's office between Craig VVlsotzki, other representative. of Acordia, Inc, and various represent.tive. of the plaintiff. '1l1t7U11 2 11. Paragraph 11 of the plaintiffs Complaint is denied as silted. On the contrary, it Is averrR that the representatives of Acordia, Inc. and the repre..nlltivee of Penoco were eware and agreed that Penoco could not get the type of insurance it may have wanted because It had not been In existence for a lufficlent period of time and did not have Iufflclent history or capital support. 12. Paragraph 12 of the plaintif'" Complaint Is denied as Itated. The defendant Wlsolzki was advised that Penoco had other sourcel for Inlurance coverage and It is understood that Penoco did ..ek out and ule the.. lourcel. At that time, the defendanll did not secure any Insurance for the plaintiff. 13. Paragraph 13 of the plaintiff's Complaint is denied as stated. The defendant Wllolzki does not have any recollection of being advised that the Insurance wal obtained through Commercial Casualty, 14. Paragraph 14 of the plaintiff's Complaint is denied as stated. It I. spaciflcally denied that the defendant Wllolzki would have advised the plaintiff that the coverage wal no good or only a piece of paper, On the contrary, the defendant Wlsolzki would have adviled the plaintiff as to the status of the said company and the status of the said coverage, but he would not have made the comments as set forth In the Complaint and the laid paragraph Is denied. 15, Paragraph 15 of the plaintiff's Complaint is denied as stated. It i. admitted that in 1990, the defendant Wlsolzki was contacted with regard to obtaining other inlurance coverage and dilcuslion. ensued concerning the typa of insurance and the '1..101, t 3 Inlurance company that may be aVlnable to place the coverage. Any allegatlonl to the contrary are denied. 18. Paragraph 18 il admitted. 17. Paragraph 17 ofthe plalntiffl Complaint il denied al stated. It II admitted that the defendant Wllolzki dilCUlsect Inlurance coverage with the repre.entatlvel of Penoco and advlled them of the type of coverage available. It il further averred that the plaintiff made the decision al to the polley to be purchased and any allegatlonl to the contrary are denied. 18. Paragraph 18 of the plaintiff's Complaint is denied as Itated. On the contrary, It il averred that Penoco agreed to purchase the policy of insurance from Environmental Risk Insurance Company ("ERIC"). It Is averred that the original policy was from May 15, 1990 to May 15, 1991, 19. Paragraph 19 of the plaintiff's Complaint Is denied as Itated. Penoco purchased a policy of insurance from ERIC and the said policy contained the scope and breadth of the coverage and any allegations contrary to the contentl of policy are denied, 20. Paragraph 20 is admitted. 21. Paragraph 21 is admitted, 22. Paragraph 22 is admitted, 23. Paragraph 23 of the plaintiff's Complaint is denied as stated. The defendantl do not have any information with regard to the laid allegations. '181t108t, 4 2... Paragraph 24 of the plaintiff's Complaint Is denied as stated. The defendants do not have any information with regard to the said allegations. 25. The defendants hereby Incorporate their responses to Paragraphs 1 through 2.. of the plalntlff'll Complaint as though the same were more fully set forth at length herein. 26. Paragraph 26 of the plaintiff's Complaint Is denied as stated. The defendant WlsolZkl discussed Insurance coverage with the plaintiff. ERIC issued. policy of Inaurance describing the coverage and exclusions and the plaintiff reviewed the said polley. Hence, any allegations to the contrary are denied, 27. Paragraph 28 of the plaintiff's Complaint is denied as stated. It Is specifically denied that any discussions or representations made by the defendant WlsolZkl were false or materially false. Further, it Is specifically denied that the defendant WlsolZkl made any representations with regard to the Insurance coverage other than what i. set forth in the said policy. It is denied that the defendant WlsolZki used the terms "Cadillac" or "top of the line" Insurance, The defendant WlsolZki indicated that ERIC was a viable insurance company and the policy issued by ERIC speaks for itself. Further, it is specifically denied that the defendant WisolZki made statements concerning the policy limitations, On the contrary, it is averred that the policy speaks for itself and any allegations to the contrary are denied, 28, Paragraph 28 of the plaintiff's Complaint is denied as stlilted, The plaintiff had previously used other insurance agents and was aware of insurance pollelel and insurance coverage, The plaintiff lpeciflcally reviewed the policy in question in order to 1'1...,08 , 5 determine the extent of the coverage Illued by the inluranee company. The defendant Wllotzkl made no repre..ntationl with regard to the scope of the coverage and any allegatlonl to the contrary are denied. 29. Paragrlph 29 of the plaintiffs Complaint II denied aa .tated. It il specifically denied that the defendant Wlaotzki made any repre.entationa with regard to the terma of the policy. It II specifically denied that the defendant Wlsotzki made any fal... representations or made any representatlone In reckle.. disregard of their truth or falsity and any allegations to the contrary are denied, 30. Paragraph 30 of the plalntiffa Complaint Is denied as atlted. It ia specifically denied that the defendant. are liable to the plaintiff In any manner whatloever. 31. Paragraph 31 of the plaintiffs Complaint is denied a. atated, It il specifically denied that the defendants are liable to the plaintiff In any manner whatsoever. WHEREFORE, the defendants deny that they are indebted to the plaintiff In any manner whatsoever. NEW MAnER 32, The plaintiff had previously negotiated insuranee coverage through other agents and had reviewed Insurance policies and coverages and, hence, was familiar with the same. 33, The defendants put the plaintiff in contact with ERIC, who iSlued a policy and submitted the same to the plaintiff, "Hl'Oa, I 6 ,0 gBllFlCATE OF SERVICE I hereby certify that a true and correct COpy of the within Anawer and New MatII8r . .....-_ w.. ....... upon thO follOW"'" "'""'" of....... by U.S. FI... C_..... poltage pr..ald. thll ~ day of February. 1996: Jamel L. Goldlmlth. Elqulre Caldwell & Kearnl 3831 N. Front street Harrllburg, PA 1711()..1533 fl"J(.),t-~ MIKE ADAMS. ESQUIRE "..... , '.. f. f.f) .',.- i ." ~i .,-!' ~~~' - .- ; , .' e'" 4~.. ., .' i J.;,' , ~r'i '.1 @' - "~I, 1'., I u.. , :J... . ., ,C'I "'-..' '-' . Q ell i5 z . ~ e 0 '" IX ; . '" ~ ~ . e w " ~ 0 oJ VI ~ :lIC . I- " ~ ~ 0 e . .., u VI 0 ~ " >- w ..I < III ~ r . . ..I 0 Z ~ w~ II w ..; i~ 0 0 II O~ l- . i ?- M ..I" e 6~ .. ... i . ~~"'.\I' ..,.'1'..... ,It,~~I,.'I, "t ,'.,. 'I U11111"UII rll1~j"tll\Il '11"'1' I",,; "'. >- \ll '>- q; [:: ;::: ~I :~.; .t" P:lC' j,' I f~" ,~. I ~~. ..... ., , bjL, N , .., . _..IL C. 0 U:' II '.1 .1, U" Jl'L . U. tJ ~? :""-; ., () Q III E z . ~ . 2 '" a: . ~ '" i ~ c il ~ . ... ~ 0 III ~ . .. ... . ~ ~ 0 <C z 0.6 u 1/1 0 Z " >- II Z .J c W ... ~ . % .J 0 Z ~ ... ~ IX II Ii J . 0 0 - II 0 . .. z :;) 0 .. ;;; . 6 . <C . '" I . '" . . 0 . . .