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Home My WebLink About95-04845 FREDERICK HENRY t/d/b/a BEST AUTO SALES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. civil No. 95- J 84)" n~vL't_ CIVIL ACTION - LAW JURY TRIAL DEMANDED OHIO CASUALTY INSURANCE COMPANY , Defendant PRABCIPB FOR WRIT OP StlMMONS TO THE PROTHONOTARY: Kindly issue a writ of summons against the following Defendant at the address indicated belowl Ohio Casualty Insurance Company 2000 Linglestown Road Harrisburg, Pennsylvania 17112 '1; .' RESPECTFULLY SUBMITTED I ~ llen C. Welch, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFF DATED: September <f. 1995. ~ .... ~-.J~ \ ~ ~&.t.. . ~ 4t"cr.: ,. III t; . ~t -<:::h ~'7.LJ' ~I- ~.! (.1~. ... _1._'~ f:> ~ . -I: ,oJ ",;" I _ = u.. ., '" ..., _,. i'~ -';'.': ~ ~ ::;"'~ ~ .. t- O ...... ~~~~ '-.J ' ~\:j - 'C:l ~ . . . Commonwealth of Pennsylvania County of Cumberland Frederick Henry t/d/b/u Best Auto Sales Court of Conunoll Pleu '" No. _m__..2?_-:~_Q~_!L.!<!y"g___m.____ 19____ Civil Action - Luw In _____________________________________________ Ohio Cusuulty Insurunce Co. 2000 Linglestown Rd. Harrisburg PA 17112 Ohio Cusualty Insurunce CO.I To ________.______________________________._____ You are hereby notified thaI Frederick Henry t/d/b/a Best Auto Sules .------------.------------------------------.---------------------------------------------------- __~ . Summons - Civil Action - Law the PlainriH hli3 r.ommen<C<l an acuon In ___n______n___________n______n______________..______ qainst you which you are required to delend or a delauh Judgment may be entered aplnll you. (SEAL) September 11. 95 Date ______________________________ 19____ LAWRENCE E. WELKER ..---.-----...---..p~~~~{i--------.-------.- By 7~:~>A.m~f1J.L.('.i.------ . J 8 ill III ~i .... u D a .... ill '0 H .... :l :- itl ~il .... .... III .. ill ...4 a ...:I .~ ~~ H J I I ,U a.... - :>. III III .... a III :I:Ul M 0 ,ul~lE~ ... ill ...4 co ,1(0 :l .... ... u.... UI U I ...4 :l ill 0( ! i1 ! t; III Ho( U '" III M '0.... 0 ...4 III UI ..... > i Ilo - . Hill .c ..... ~~ 0 u ,."1 , SHERIFF'S RETURN - OUT OF COUNTY CASE NOI 1995-04845 P COMMONWEALTH OF PENNSYLVANIA I COUNTY OF CUMBERLAND HENRY FREDERICK ETC VS. OHIO CASUALTY INSURANCE CO R. Thomas Kline ' Sheriff. who being duly sworn according to law, says, that he made a diligent aearch and inquiry for the within named defendant, to witl OHIO CASUALTY INSURANCE CO but was unable to locate _____ Them deputized the sheriff of DAUPHIN to serve the within WRIT OF SUMMONS in his bailiwick. He therefore County, Pennsylvania. On Segtember 22nd. the attached return from 1995 , this off1ce was in receipt of Pennsylvania. DAUPHIN County, Sheriff's Costs I Docketing Out of County Suroharge DAUPHIN COUNTY So answeys I J.n1.;:;'~~~e, · 18.00 9.00 2.00 30.50 &59.50" . .'#"; Sherif! ALLEN WELCH 09/22/1995 Sworn and subsCI"ibed Iro before me this ~~~ day of ul,A~;~~ - , .- 19 9) A.D. ~~I.--'rrt~~~~~lb*~F COMMONWEAL'l'1I OF PENNA: COUNTY OF DAUPIIIN: NIIERIt'I"S RETURN NO. 95-4845 Civil Term I'A (J F. 508 AND NOW: SeptEmber 19th WITHIN Writ, of 5\11111Ons III 95 ,nt 11115 ",,1. SERVRD'I'1I11 UPON _..~--_.. ....-..-.-. ---..-.. .._~_..._.... _. . .' ..-.... P'.. ..'_ Chio Ca81181ty Insurance Q). IIV PIlRlIONALI.Y IIANDlNG TO Mary Wolfe, Claims Clerk and person in charge at time of lervice A TRUE ATTESTED COpy OF TilE ORIGINAI,lh'it of 51J11'OOns AND MAKING KNOWN TO her THE CONTIlN'rS TIIEREOI' AT their pl8ce of wlinesl, 2000 Unglestown Road, Harriswrg, Pa. 80 ANS,WERS ' .' 1t"&;'?f. tf).c.-p ._-_..._--_.....--_..~_. .~.-_._._--.. .---..... SHERIF:F OF DAUPHIN COUNTY, PENNA BY : ~ C> . ;; -----.--..~i~y. s,~2;,;.j( --- _On Sworn and Ilubscrlhnd to befa", ma '.i~ '~. ~:: " " ~~NOTA" liIlEIUI'I"K COK'\' '!- .;o'~ fl-'A l~""Tne Co~rt or C.::mmO:1 Fle::s of C:.Jl'.::"-:::lt'i:md C.::u:-;';y, Panr:syl'lcr:io 'f . Frederick Henry t/d/b/a Best ^uto Sales 'lS. Ohio Casualty Insura~ce Co. 95-4845 c~yil Term :~-- ~o. ----, ~ow. Seot:ember 13.1995 '9 r. S........"....T":'- 0- ,..........."."......, . '"" CO'.....,...... :1.\ .. . _ ___ ~ ::' ......,...l.::)__~'U W.,... _, _.--. 1;;D h=by cl..;:u= c!:: Stu:::E oi Dauphin C"u::ry :0 c:::::-.u: ~ \V:::. :!::s c..-puc::.cu b::bc _....1_ ~ == ~ ::d ::..sk ol :he ?!:L!::i. ~~~~t:?~ SlIe..~ at S=!:erW:Q C~IIlI17. :':1. Affida.vit Or Sem= :iow, !9 o'dea ~L l=-.~ .. . .- :::e ~t!:iD 'Jpoll ~~ by =cii:q :0 a. cpr oi ::= ori;-:-.,I md ::wi: ic:awn :0 :!:: ..:::nc::s :.':::::i. So amw=, Shci.:i 01 Cawsrr. h. SWCl:1 :md S"oIl:sc-:i:d bCore: ==:!::s_6yaf ccsn SEAVICZ ~aI.EAG;:: A.:7IDA -.;!. s ,Q .-- ""'-__. 5 ,_"--& .. , . . , FREDERICK HENRY tJdlbla BEST AUTO SALES, Plaintitl' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. NO. 95-4845 Civil Term OHIO CASUALTY INSURANCE COMPANY, Defendant CIVIL ACTION - LAW IWLE. TO: Frederick Henry tJdlbla Best Auto Sales, Plaintitl' rlo Allen C. Welch, Esquire 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorneys for Plaintiff You are Ruled to file a Complaint within twenty (20) days after service hereof, or sutl'er judgment of non pros. DATED: }'1t .~ )1 .Iffr' ~'LL PRO ONOTARX ~/?J , . FREDERICK HENRY tldlbla BEST AUTO SALES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. NO. 95-4845 Civil Term OHIO CASUALTY INSURANCE COMPANY, Defendant CIVIL ACTION - LAW PRAECIPE FOR RULE TO FR.R CO~ TO THE PROTHONOTARY: PLEASE enter a Rule upon Plaintiff, Frederick Henry tldlbla Best Auto Sales, to file a Complaint within twenty (20) days after service of the Rule, or suffer judgment of non pros. METrE, EVANS a WOODSIDE ~\\ \~- BY: \ ' ~~_\l~\,~~~ DAVID A. FITZSIMONS, ESQUIRE Supreme Court 1.0. *41722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant DATED: 09/28/95 4&IIGol , . ~',-f'.,i:.~.",_-,'i. ,---' . . 'f ~ Ii ~/.L.- I, DAVID A. FITZSIMONS, hereby certify that on the 0 day of SEPI'EMBER, 1995, I served a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U.S. mail, First-class postage prepaid, as follows: Allen C. Welch, Esquire COSTOPOULOS, FOSTER" FIELDS 831 Market Street P.O. Box 222 Lemoyne, PA 17043 ME'ITE, EVANS" WOODSIDE ~~~~. DAVID A. FITZSIMONS, ESQUIRE Supreme Court I.D. 141722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 . .., BY: Attorneys for Defendant . - , ' \R - :s:: 0- r!. (V') ;..)- "'... ~:r. HI..... '. f.~:~';,':"~ , ~ ... .., Vl " '''<, "'-,.." ~.. -'.t.,!li~l.'"..~",,'jJji',f;\t;W"~:' . ..... 0") .>. ~_ h " -! ,: "-I '. N , , ~ ,-- - - . t; ~'. !.." = ~ I inl III . , . . . . " FREDERICK HENRY t/d/b/a BEST AUTO SALES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 95-4845 Civil Term Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED OHIO CASUALTY INSURANCE COMPANY, NOTICR YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you muat take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by Plaintiff. You may lose money or property or other rights importa~t to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR, 4th Floor CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 PHONE: (717) 240-6200 FREDERICK HENRY t/d/b/a BEST AUTO SALES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 95-4845 Civil Term OHIO CASUALTY INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Frederick Henry, t/d/b/a Best Auto Sales, by and through his attorney, Allen C. Welch, Esquire, and respectfully alleges as follows: 1. Plaintiff is an adult individual trading and doing business as Best Auto Sales, with his primary place of business located at 1702 Harrisburg Pike, Carlisle, cumberland County, Pennsylvania 17013. 2. Defendant, Ohio Casualty Insurance Company, is a corporation duly operating under the laws of the Commonwealth of Pennsylvania and engaged in the insurance business, with its primary local office located at 2000 Linglestown Road, Suite 300, Harrisburg, Dauphin County, Pennsylvania 17110. 3. On or about April 12, 1994, Plaintiff purchased a 1994 GMC Jimmy vehicle (VIN #lGKDT13W4R2511523) from Jones Motor Cars Ltd., 6250 Carlisle Pike, Mechanicsburg, cumberland County, Pennsylvania. 4. At the time of sale, Jones Motor Cars Ltd. represented to Plaintiff that said vehicle had a clear and free title and was not 1 stolen. 5. Plaintiff then sold the aforesaid vehicle to Charles V. Kritschgau and Pamela Kritschgau of Carlisle on or about May 6, 1994 for the sum of Eighteen Thousand Seven Hundred Thirty-two Dollars ($18,732.00). 6. On or about October 13, 1994, the Pennsylvania State Police, who were investigating a Canadian stolen car ring, seized the aforesaid vehicle as a stolen vehicle and, to the best of Plaintiff's knowledge, have maintained possession of it. 7. In April of 1992, Plaintiff purchased a 1994 Chevrolet Lumina van from Jones Motor Cars Ltd. 8. At the time of sale, Jones Motor Cars Ltd. represented to Plaintiff that said vehicle had a clear and free title and was not stolen. 9. On or about April 22, 1994, Plaintiff sold the aforesaid van to Buckley Leasing & Auto Sales, Inc. of Carlisle for the aum of Thirteen Thousand Four Hundred Dollars ($13,400.00). 10. In October 1994, the Pennsylvania State Police seized the aforesaid van as a stolen vehicle and, to the best of Plaintiff's knowledge, have maintained possession of it. 11. The Pennsylvania State Police have exonerated Plaintiff of any wrongdoing and have informed Plaintiff that he is an innocent victim of the stolen car ring. 12. At all relevant times herein, Plaintiff had in effect a 2 Manufacturer/Dealer/Full Agent/Messenger Service/Salvor Bond with Defendant, which bond is a statutory bond required by the Commonwealth of Pennsylvania. A copy of said Bond is attached as Exhibit "A". 13. The aforesaid bond states in relevant part as follows: the condition of this obligation is that if the Principal, during the term of this bond or any renewal, in the conduct of the business of dealer, full agent, messenger service, and/or salvor shall comply with the prov,isions of the law and regulations governing the conduct of such business and shall not cause any monetary loss to any person or to the Commonwealth in connection with the business, including, but not limited to, fees and sales tax, then this obligation shall be null and void, otherwise it shall remain in full force, virtue and effect. 14. According to the bond's provisions, if Plaintiff violates the law and regulations pertaining to his business and/or causes monetary loss to any person in connection with his business, the bond coverage may be invoked to cover any loss suffered by Plaintiff. 15. Although Plaintiff did not violate any law or regulation by virtue of the sale of the aforementioned vehicles, he did cause the purchasers of said vehicles monetary loss as a result of the respective sales and, therefore, the bond issued by Defendant is in full force and effect and may be invoked to provide coverage to Plaintiff. 16. Defendant denied Plaintiff coverage under the bond on November 21, 1994 and informed Plaintiff that coverage would be 3 provided under the bond "only if you intentionally and with knowledge violated a law which caused the loss to one of your purchasers." 17. Despite repeated and timely demands of Defendant to honor the conditions of said bond and provide coverage to Plaintiff, said Defendant has refused andlor failed to do so. WHEREFORE, Plaintiff, Frederick Henry, t/d/b/a Best Auto Sales, hereby demando judgment in his favor and against Defendant, Ohio Casualty Insurance Company, in the sum of Thirty Two Thousand One Hundred and Thirty-two Dollars ($32,132.00) together with interest and costs. RESPECTFULLY SUBMITTED I @CCIk, Allen C. Welch, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Phone I (717) 761-2121 ATTORNEY FOR PLAINTIFF DATED I October 17, 1995, 4 VRRIPICATIOII I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa, C.S. section 4904, relating to unsworn falsification to authorities. Dated I October 17, 1995. 5 DEC-08:.'~ THU 18:01 BUCKL&Y'THMI~'v , . . Lt1M. t<~tt I I I I "'....bO.." , ...... U'=' BUill) IIUMUI!It - "~ .- , ...'" ,~...., '1" 'Of' ,I, ,J.. " ,,'I. .,' '-', . MANUPAOTUnlnlUEiALEn/fUl.l. 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CUllIuar lOI\l! \I..,p"ol r^ 'I RlII'" 1''' (Ill , 1l0Ulollzetl I CUlI!Otl1UCllllnCorpOlalllU unllel UI91aws 011110 Sloll! of !~!.!1'.1'I"lIl D Q do bUllllltel1l UII COllllllolIwel\IU, 01 p,nllsylvullhl. wllh 11I0111 ullh)e IIOrtllllluualotJ II - I'''' _.......1. ill., "";;. 18 Burely,lIle helll \)OUIUJ UI1~1 UIO 0011111101lVlIl[\11I1 oll'IJIlllDVlvflllln (ClIllI""11"WIlIlIIII), IUllIlll OilY perGUII wllo Ihl1l1"ll.r Inlb .ny 1I01l8QoII011 willI Ihlll'lllIc11lalll1l1l11l'1Il1UIIlt\I'B ultlt:lol \)lIpt\I;lly Il~ PulllollzelllJr 1110 COIIIIIIOII- VI.IU1," obllgesB III Ihe lull AIIllluot 6UIII 011; J;?1.(~i:~._-- 10 \)0 \lulel III UIO OUlIIlIIUIWllIllll1 ur liB IlSGIUIIS. o whloh p.~m.nt WI do herlbv b lid ourlelvlslolOUv Ql\t1 sliver lilly, uur hails, oxollulurs, l\I,hllllllolruloIS. luOOlllurt and ua!gnl, 811ll1ed Ind Isaled 011 .1 'I tv 2, 1 qq 1 -. ,t, I 0' nl U'. Whll... dIe Prlnclplllls 8(llllylnlllur lleslUllnlluIl 88 aile or 1110111 011118 fullowl"u DIIU 18 ,ul.lulletllu . II, bOnd III provldld III 1118 OOlrelpolldlllll.dIlP8101l8'~\.InW8/Ill\1ut8UUII': . Y,.e No .. C ,0 . I'ull Aglnl 'C., 0 ..... "M"ai~nUer 6.r~ll~ mo' 'D~aJej/MnnUli~lunjr o 0 a_Nor' , I 61 Po, Oolle Choplsr -1:1 70 I'll. O.G. 7!i02 7li PII. 0.8. 1~311 70 P\l. C.S. 7302 , I . . NOW, 'HIGFIliFor.IE, Iha l:ll1l1l1U01I 0111115 olJIIOOUOll15 1110(111111) Prlfllllpnl.lIl11ll1U Iltu IDnll ur 11110 bOIll! .r l1.IlV relleVlol,llIlha Olmdu111 01 \110 IJuol11000 ul c.Io0ler, lull L1Unlll, III09011l1UllrIlAI vloa. IIlltl/ur slIlvur shull oOlllply /1111 UIO Illovlalflna ollila luw alltl rllyulllUullll gOV'Oll1hll' \110 cumlur:l of BUllh h'.Iol119M ami ohllll IIut OllUSU OIly r\Ollelary loSB 10 lIlIY poroon 01 10 IlIe COII'lllonwuuilh II t:OIUlel)\I~II' wllh the l)lIsl11U~A. IIlClullll1\J; lJUll1ollllllllelllu, ..1 And IBI/lII8X.lhen IIIIB obllgsUull slIlllI bG null and void; oUISIWl1l9 II 0111111 I Olll 1I111 '" lull lorce, villUS, and . dl"'. . II A " . . ~...-..... ---- ......----.-...------......--.... AU. .~ t J~ . ,.., ,r... . , . ..., -' .' ~ '0'_._"'-'" ""2'::- . . 'r,'t.r"\I.....~_\..:..~;;rj::A..-.'\J..iI.~1~.,......... . . FREDERICK HENRY IIdJb1a BEST AUTO SALES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. NO. 95.4845 Civil Term OHIO CASUALTY INSURANCE COMPANY, Defendant CIVIL ACTION. LAW PRELIMINARY OBJECTIONS OF DEFENDANT OHIO CASUAJ,.TJ INSURANCE COMPANY AND NOW, comes the Defendant, Ohio Casualty Insurance Company, by and through its attorneys, Mette, Evans & Woodside, and makes the following Preliminary Objections to Plaintiffs Complaint: 1. This action was commenced by Writ of Summons filed in Cumberland County on September 11, 1995. 2. In response to Defendant's Rule to File Complaint, Plaintiff filed the Complaint on or about October 17, 1995, which alleges a claim under a motor vehicle dealer's bond. 3. Plaintiffs Complaint attaches as Exhibit "A" a document identified as the bond in quoslilln. .... . , 4. Plaintiffs Complaint alleges thot as the victim of a stolen car operation, Plaintiff Best Auto Soles has a valid ond legally sustainable claim against its own dealer's suroty bond issued by Defendant. DEMURRER 6. Plaintiff does not and cannot allege that because of wrongdoing or malfeasance of Best Auto that third parties were injured. 6. In the event that Best Auto had engaged in wrongdoing or malfeasance resulting in the injury to third persons, the appropriate individuals to make claim under the bond would be the injured third parties not Best Auto, the party secured under the Bond. 7. For a claim to be sustained against the bond in question, a third party must suffer monetary loss BIlll bonded porty (Plointifl) must fail to comply with provisions of law. 8. As a matter of law, after viewing Plointiffs Complaint in the light most favorable to Plaintiff, Plaintiff cannot recover under the bond becouse the basic elements for recovery under such bond has not occurred and is not pleaded In Plointiffs Complaint. ~ . . WHEREFORE, Defendant, Ohio Casualty Insurance Company, prays that this Court will dismiss the Complaint of Best Auto for failure to state a claim upon which relief can be granted with prejudice. Respectfully submitted, METTE, EVANS. WOODSIDE B~\\.-~~~ DAVID A. FITZSIMONS, ESQUIRE Supreme Court 1.0. '41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff DATED: 11/06195 _..,....__.~_.-.-. . ... . , . . . , !l~RTIFICATE OF SERVICE I, hereby certify that I served a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U.S. mail, First-class postage prepaid, as follows: Allen C. Welch, Esquire COSTOPOULOS, FOSTER" FIELDS 831 Market Street P.O. Box 222 Lemoyne, PA 17043 METrE, EVANS" WOODSIDE B~ ~c...,,~~ DAVID A. FITZSIMONS, ESQUIRE Supreme Court 1.0. 141722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232.5000 Attorneys for Defendant DATED: 11/06195 48676-1 :.;i"""''''~'mo.;rc~ U"t en - ~j ,. .r,(: ., ~~ 1.11:- ':I~ U',.I':';r. ... "':) t>-t l&. ~ (~.__ ~.;'.. ,j~;! I t''''..,1 ..:lu.:~ r. 4Jr,_... ..r: ::u..i!i:ld '1,. ;":: i.o. t =' ;:;r., :lC D- CO .:T ,.,., :- C> -- - ... . . PRAECIPE Jo'OR L1S1'ING CASE Jo'OR ARGUMJoJN1' (MURt be typowrltlAln and eubmiUed in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTYI Ploaae lilt the within matter for the next Argument Court. ..------------------.-----------.-.---.-.-.-.--....-.-----...............--....--....-...---...---.......------.---- CAPI'ION OF CABE (entire aptlon mUlt be .t.aled in full) Frederick Henry tJdlbla Best Auto Salel, {PlainUm ve. Ohio Casualty Insurance Company, (Defendant! No. 95-4845 Civil 19_ 1. Slaw matwr to be al'll\led (i.e., plalnUffe motion for new trlat, defendant'e demurrer IAl complaint, ete,h t:t~tr.;(~Ii~i;;;.;;~bJkns~...~.. 7'<</lA.,,~-.~. /I. "0)' 2. ldenUfY counlCl who will argue case: (a) for PlainUff: Allen C. Welch, Esquire Address: COSTOPOULOS, FOSTER. FIELDS 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 (b) for Defendant: David A. Fitzslmens, Esquire Address: METrE, EVANS. WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 3. I will notify all parties in writing within two days that this case has been Iiewd for argument, 4. Argument Court DalAl: December 6, 1995 '",- \. \ \ .~" \~ \~\'-~(""\'~'"' Attorney for Dofondant Datod: NOV - 6. 48712.\ -:n.'\ ~ . if:: <D ~ ,'") ~ ~".r... "'"","',.........""'''''''''..,,,'''''... '" "ir: ~:r:"1 Uic.:a.Z ~~(,)..t 1:::~. (;)::. 0' .r.~. . ( ~.^ 1--"1;.;. _J~ ~.~ I.. a: ';If. .J h.Jl~lv.J -:t.~n.. I.~ ''''1",) 0::' ~ = FREDERICK HENRY tJdlbla BEST AUTO SALES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. NO. 95-4845 Civil Term OHIO CASUALTY INSURANCE COMPANY, Defendant CML ACTION. LAW BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF DEFENDANT OIQO CASUALTY INSURANCE COMPANY I. ~T4TEMJJNT OF TIlE CASE This action was commenced by Writ of Summons filed in Cumberland County on September 11, 1995. Plaintiff filed his Complaint on or about October 17. 1995, which alleges a claim under a motor vehicle dealer's bond. Defendant timely filed Preliminary Objections to Plaintiffs Complaint on November 6, 1995. The objections are in the form of a demurrer and state intm: .IlliI that Plaintiff cannot recover under the bond because the basic elements for recovery under the bond have not occurred and are not pleaded in the Complaint. This Brief is submitted in support of those objections. . II. ~'J'^TEMENT OF THE FACTS Plaintiff, Frederick Henry tJdlbla Best Auto Sales (hereinafter "Best Auto Sales") is a used-car dealer located at Harrisburg Pike, Carlisle, Pennsylvania. During the time period relevant to the Complaint, Best Auto Sales was the principal of a bond with the Ohio Casualty Insurance Company, Defendant in this action 88 surety. The bond, which is attached to Plaintiffs Complaint as Exhibit "A," is a dealer/manufacturer bond required under 75 Pa.C.S. 01335 "Registration Plates for Manufacturers and Dealere." It identifies as principal Frederick Henry d/b/a Best Auto Sales located at 1702 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. The Ohio Casualty Insurance Company, P.O. Box 6991, Harrisburg, Dauphin County, Pennsylvania 17112 is identified as surety. Under the terms of the bond document, principal and surety: ... are held bound unto the Commonwealth of Pennsylvania (Commonwealth), and to any person who shall enter into any transaction with the principal in the principal's official capacity as authorized by the Commonwealth, as obligees in the full and just sum of $20,000 to be paid to the Commonwealth or its assigns, to which payment we do hereby bind ourselves jointly and severally, our heirs, executDrs, administrators, successors and assigns. .2. As alleged by the Complaint in Paragraphs 3 through 10, Plaintiff purchased two vehicles, a 1994 GMC Jimmy and a 1994 Chevrolet Lumina Van and resold those vehicles. The vehicles were later found to be stelen and were confiscated from the purchasers by the Pennsylvania State Police which was investigating a Canadian stolen car ring. Plaintiff notes at Paragraph 11 of the Complaint that he has been exonerated from any wrongdoing and the State Police have advised him he is the innocent victim of the stolen car ring. Plaintiff alleges in his Complaint that these circumstances warrant his claim against the aforesaid bond, in which he is principal, in the amount of $32,132.00. Plaintiffs Complaint does not allege that any reimbursement has been made to the purchasers whose vehicles were seized by the State Pollce. Further, those individuals are not parties to this suit. The Ohio Casualty Insurance Company has denied the claim on the bond for two reasons. First, as the principal on the bond, Plaintiff does not have standing to make a claim under the clear langusge of the bond itself. Second, while monetary loss was presumably suffered by someone, the Complaint does not allege whom. If the individuals who purchased the cars from Plaintiff suffered loss, only ~ have standing to bring suit on the bond. - 3 - III. 9UESTIONS PRESENTED A. WHETHER TIlE DEMURRER OF DEFENDANT SHOULD BE GRANTED WHEN PLAINTIFF SEEKS RECOVERY UNDER A BOND TO WHICH HE 18 mElII'luu;!) AS PRINCIPAL AND WHEN NO VIOLATION OF PROVl81ON8 OF LAW AND REGULATlON8 GOVERNING THE CONDUCT OF IDS BU8lNEBS AND NO MONETARY LOBS TO ANY PERSON OR THE COMMONWEALm ARE ALLEGED? Proposed answer In the affirmative. IV. SVMlURY OF .\BGUQlf[ As the principal on the bond, Plaintiff does not have standing to bring a claim for losses against the bond which holds him as the principal, and the surety bound unto the Commonwealth and to any (third) person who enters into transactions with the principal and subsequently suffers injury. In addition to lack of standing to bring the claim, Plaintlfl's assertion at Paragraph 11 of his Complaint that he too is the Innocent victim of the car theft ring and further, the lack of any allegation that monetary loss occurred to any party to this suit, fails to satisfy the requirements for a claim under the terms of the bond. .4. v.~ A demurrer can be sustained when the Complaint is clearly insufficient to establish the pleader's right to relief. Allllihenv Countv v. CommonweaWulf Pennsvlvanla. 507 Pa. 360, 490 A.2d 402 (1985). For the purpose of testing the legal sufficiency of the challenged pleading, a preliminary objection In the nature of a demurrer admits as true all well pleaded material, relevant faclll, and every reaaonable Inference deducible from those faclll. Alleihenv Countv at 507 Pa. 372, 490 A.2d at 408. However, a demurrer accepts aa true only well pleaded, material, relevant facts. "Inferences unwarranted by the admitted facts, argumentative allegations and expressions of opinion are not admitted." Standard Pa. Practice 2d 25.61 citing, FiriQll v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). A. Plaintiff, a. principal, lack. .tandln, to brin, 8 claim ..aln.t hi. own Surety Bond. The bond identifies Plaintiff as principal and Defendant as surety jointly and severally liable to the Commonwealth and to any person who shall enter into any transaction with the principal In the principal's official capacity as authorized by the Commonwealth. As such, It Is a surety bond as de lined under .6. Pennsylvania law. Deeter v. Dull Corn.. Inc., 420 Pa. Super. 576, 617 A.2d 336, appeal denied 535 Pa. 619, 629 A,2d 1380 (1992). In determining the scope of this surety bond, this Court should review both the language of the bond itself and the statute with which it was executed to conform. Salvino Steel and Iron Works. Inc. v. Fleteher & Sons, Inc., 398 Pa. Super. 86, 580 A.2d 853, appeal granted 527 Po. 625, 592 A.2d 45, appeal dismissed as improvidently granted 529 Pa. 62, 601 A.2d at 806 (1990). The bond is identified as a dealers/manufacturers bond required under 75 Pa.C.S. 11335. Titled "Registration Plates for Manufacturers and Dealers", the statute at 11335(a) requires a $20,000.00 bond as one condition for issuance of dealer plates. The statute, and the applicable regulations at 67 Pa. Code Chapter 53 are otherwise silent as to the scope of the bond. The language of the bond itself, however, is clear and unequivocal in its terms; Frederick Henry tJdlbla Best Auto Sales, as principal, and Ohio Casualty Insurance Company, as surety, are jointly and severally liable to the Commonwealth of Pennsylvania and to any person who shall enter into any transaction with the principal in the principal's official capacity as authorized by the Commonwealth. .6. The two conditions for operation of the obligations under the bond are 'II In review and interpretation of this language, the Court cannot alter or chanp the undertaking of a surety. Commonwealt.h v. Cotwl, 140 Pa. Super. 361, 14 A.2d 362 (1940). Under the facts established, for purposes of these objections, by Plaintif1's Complaint, Plaintiffs claim against the bond in which he is identified aa principal cannot stand. Plaintiff does not and he cannot allege that he falls within the clus of obligees anticipated by the bond, namely, the Commonwealth of Pennsylvania and any person who haa entered into a transaction with the principal in the principal's authorized official capacity. Accordingly, Plaintiffs action muat be diamiased. B. In the event that Plaintiff could eltabUlh iltaDdln" hll action falll beeaule the condltlonl of the bond obU,atlon are Dot met, stated in its last paragraph: NOW, THEREFORE, the condition of this obligation is that If the Principal, during the tenn of this bond or any renewal, In the conduct of the buslneas of dealer, full agent, messenger service, and/or salvor shall comply with the provisions of the law and regulations governing the conduct of such business and shall not cause any monetary loss to any person or to the Commonwealth in connection with the business, Including, but not limited .7. , to, gas and sales tax, then this obligation sholl be null and voidj otherwise it shall remoin in full force, virtue, and effect. Plaintiff alleges at Paragraph 11 of his Complaint that the State Police concluded through their investigation that he is himself an innocent victim of a Canadian car theft ring. He has therefore complied with the proviso of the law governing his conduct. Further, while Plaintiff asserts at Paragraph 16 of the Complaint that he caused monetary loss to the purchasers of the vehicles as a result of the respective sales, those purchasers are not parties to this action. Plaintiff does not assert that he has suffered monetary loss (and as principal under the bond he could not bring a claim regardless) and he does not assert agency to bring an action on behalf of the purchasers (who are not partleB to thiB Bult) for return of any losses. Accordingly, even if Plaintiff were able to establish his standing to bring an action against his own bond, which he cannot, he would be unable to sustain a cause of action under the bond. VI. CONCLUSION For the reasons set forth above, Defendant, the Ohio Casualty Insurance Company, prays that this Honorable Court will dismiss the Complaint, with .8. . prejudice, of Frederick Henry tldlbla Be8t Auto Sale8, and award such other relief to Defendant and against Plaintiff as the Court 8hall deem jU8t and rea80nable under the circum8tances. METTE, EVANS. WOODSIDE \ BY: ". \~':',:..: ~.. \j;('..).\\......,c.., DAVID A. FITZSIMONS, ESQUIRE Supreme Court 1.0. *41722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110.0950 (717) 232.5000 AttorneY8 for Defendant DATED: 11/24/95 ',- ~TIFICATE OF SERVWE I, hereby certify that I served a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U.S. mail, First-class postage prepaid, 88 follows: Allen C. Welch, Esquire COSTOPOULOS, FOSTER A FIELDS 831 Market Street P.O. Box 222 Lemoyne, PA 17043 MEtTE, EVANS A WOODSIDE , I'r '( -. BY: \ !.-...;.' '. :...\~c J.I"~""'; DAVID A. FITZSIMONS, ESQUIRE Supreme Court I.D. *41722 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110.0950 (717) 232.5000 Attorneys for Defendant DATED: 11/24/95 60012.1 FREDERICK HENRY t/d/b/a BEST AUTO SALES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 95-4845 Civil Term OHIO CASUALTY INSURANCE COMPANY, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRABCIPB TO DIBCONTINUB TO THE PROTHONOTARY: On behalf of the Plaintiff, Frederick Henry t/d/b/a Best Auto Sales, kindly mark the above-captioned matter settled, discontinued and ended. ro-ZfMITTE., Allen C. Welch, Esquire COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Phone I (717) 761-2121 ATTORNEY FOR PLAINTIFF DATED: February 26, 1996. fr; In l; """ .'- IR .. " . "J (.j~ f" i-1: ,.):~ -rr: J:j <,. ( r- j'iYl I, u. 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