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HomeMy WebLinkAbout96-00859 004 ,-. .,1 .. ,',:n ",I,p?, ,.\. '), "'"..\ :, <::) ;'"\~n l I .:.t (") ~ "',.. -.:1(," tt1I.,'" ~"( ~'.::' '.i:. ~...o .;'\ ,,, 'n ~O -- -' ~.. ~, .' ,"....) \~ :~ ,.., ~- , i , 11 ~ ~"'" ~ I' . , ~. '~ " ~I ' " ;) ..., ::t- Ij. ~ \.Ll :z * ~ Cl .. 1'\ '" ~~$~~~ ? '< I;;!:l ~ ~ ~~ij~~~ ~ :t :z .J '" :: " O! ,,- ~ UJeA.:)~~ ~~~~~~8 \.Ll ~ ~ ~ X ~ . ft . * , . 1 "" ~>!.......- ' '~ -- ----------~~ -~., - -.". . - ,. -.. ..,-- -.,.----------, ..., ALLYSON J. FERGUSON, t/a T. FERGUSON ENTERPRISES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 9(., - 8 ~C; {1,,,;,( ::r~,",- BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 withollt you and a judgment may be entered against you by the Court without further notice for any money claimed in the document or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. As provided by Pennsylvania Rules of civil Procedure No. 101B.1, the following officer is designated to be named in the Notice to Defend in o~der to find out where legal help can be obtaL~ed. Court Administrator Fourth Floor Cumberland County Courthouse High and Hanover Streets Carlisle, PA 17013 (717) 240-6200 v. NO, ?" - '851 (t,....e .::r~v.-.... ALLYSON J. FERGUSON, t/a T. FERGUSON ENTERPRISES, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants , CIVIL ACTION - LAW JURY TRIAL DEMANDED . , COMPLAINT AND NOW comes Plaintiff, Allyson J. Ferguson, t/a T. Ferguson Enterprises, by its attorneys, Wix, Wenger & Weidner, and files this Complaint stating the following: 1. Plaintiff is Allyson J. Ferguson, t/a T. Ferguson Enterprises, of 511 Grant Drive, camp Hill, Pennsylvania 17011. 2. T. Ferguson Enterprises is a sole proprietorship having its principal office and place of business at 511 Grant Drive, Camp Hill, Pennsylvania 17011. T. Ferguson Enterprises is a construction materials brokerage company which relies heavily on telephone contact with current and prospective customers. 3, Defendant, Bell Atlantic Corporation, is a Delaware corporation authorized to do business in Pennsylvania, with a registered address of c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. - 1 - 4. Defendant, Bell Atlantic pennsylvania, Inc., is a Pennsylvania Corporation with a registered address of c/o CT corporation, 1635 Market street, Philadelphia, Pennsylvania 19103. 5. Defendant, Bell Atlantic of PA, is believed and therefore averred to be a fictitious name owned by Bell Atlantic corporation and/or Bell Atlantic Pennsylvania, Inc., and has a registered address of c/o CT corporation, 1635 Market street, Philadelphia, Pennsylvania 19103. 6. Defendant, Bell Telephone of PA, is ~elieved and therefore averred to be a fictitious name owned by Bell Atlantic corporation and/or Bell Atlantic Pennsylvania, Inc" and has a registered address of c/o CT corporation, 1635 Market street, Philadelphia, pennsylvania 19103. (Each of the entities and fictitious names herein defined as defendants are collectively referred to herein as "Defendant.") 7, Jurisdiction and venue are proper in this Court because Plaintiff's cause of action and the transactions and occurrences giving rise to Plaintiff's cause of action arose in Cumberland County. 8, The amount in controversy in this action exceeds Twenty-Five Thousand Dollars ($25,000), exclusive of interest and costs, as required by the Cumberland County rules regarding compulsory arbitration. - 2 - FACTUAL BACKGROUND 9. Prior to April 1995, Plaintiff had two phone lines into its address, one of which was a personal residence line and one of which was a business line. 10. Although, both phone lines were billed together to Thomas W. & Allyson J. Ferguson, Defendant was aware that one of the lines was solely for business purposes. 11. In April 1995, Plaintiff notified Defendant that Plaintiff would be moving to a new location on or about May 15, 1995. 12. At this time, Defendant informed Plaintiff what Plaintiff's new phone numbers would be (herein, the "New Numbers") . 13. Defendant was to disconnect Plaintiff's old phone numbers as of May 15, 1995. 14. At or about the same time, Defendant offered to Plaintiff a service (herein, the "Call Forwarding Service") whereby upon dialing Plaintiff's old phone numbers, callers would be told that Plaintiff's old phone numbers had been changed, and callers would be provided Plaintiff's New Numbers. 15. On or about May 7, 1995, Plaintiff informed Defendant that it wanted the Call Forwarding Service. Defendant agreed to install and provide the Call Forwarding service on Plaintiff's old telephone lines. 16. The Call Forwarding Service was to be effective on May 15, 1995, and last for thirty (30) days, through June 15, 1995, . !' " " rl I :~. i l! i,. \ ~ - 3 - 'j 17, In the morning of May 12, 1995, three days earlier than agreed, Defendant disconnected Plaintiff's old phone numbers. 18. For the entire period of May 12, 1995 through May 14, 1995, plaintiff was without telephone service. 19, On or about May 12, 1995, plaintiff became aware that the Call Forwarding Service had already been installed, but that it was not working properly and was directing callers to incorrect phone numbers. 20. On or about May 15, 1995, Defendant's technician arrived at Plaintiff's new location to hook up Plaintiff's new telephone service. At this time, Plaintiff informed the technician that the Call Forwarding Service contained incorrect telephone referral information. 21. Upon the technician's suggestion plaintiff contacted Defendant's representative who assured Plaintiff that the Call Forwarding service would be corrected to provide callers the New Numbers. 22. On several occasions, Defendant's representations assured Plaintiff that the Call Forwarding Service was connected and working properly. 23. Approximately three weeks later, Plaintiff realized that the Call Forwarding Service still was not working properly. Rather than informing callers of the New Numbers, the messages placed on the lines by Defendant informed the callers that Plaintiff's old phone numbers had been - 4 - disconnected. The messages offered no additional information, 24. This erroneous message was played each time a caller called Plaintiff's old phone numbers until Plaintiff contacted Defendant on or about June 2, 1995, at which time Defendant corrected the problem with the Call Forwarding Service. 25. During Plaintiff's call to Defendant on or about June 2, 1995, Defendant's representative informed Plaintiff that Defendant had failed to properly install the Call Forwarding service on May 15, 1995. 26. During the entire three week periOd, May 15, 1995 through June 2, 1995, the Call Forwarding Service was not working properly. 27. During this time period, several of Plaintiff's customers who received the message that Plaintiff's old phone numbers had been disconnected, assumed Plaintiff had ceased doing business. 28. As a result of the erroneous message on plaintiff's old phone lines, several of Plaintiff's customers granted contracts to Plaintiff's competitors. 29. As a result of Defendant's conduct, Plaintiff has been injured in that, inter alia: (a) Plaintiff lost several contracts which it would have been awarded if the Call Forwarding Service had been working properly; (b) Plaintiff lost commissions due to the lost contracts; - 5 - i l , , ! ~ r i WHEREFORF., Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as this Court deems just and appropriate. COUNT III Neqliqent Mi.reDre..ntation 38. Paragraphs 1 through 37 are incorporated herein by reference as if fully set forth. 39. Defendant's representatives' assurances to Plaintiff that the Call Forwarding service was working properly were false. 40. Defendant knew or should have know that these representations were false. 41. Each of these assurances were made negligently, carelessly and/or recklessly. 42. Each of the assurances were made intending that Plaintiff would rely on them. 43. Plaintiff reasonably and justifiably relied on Defendant's representations and assurances as set forth herein. 44. As a direct and proximate result of Defendant's misrepresentations, Plaintiff has suffered damages as set forth herein. 45, Defendant is liable to Plaintiff for its damages resulting from Defendant's negligent misrepresentations. - 7 - WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as this Court deems just and appropriate. QQUNT 1111 Innocent MisreDresentation 46. Paragraphs 1 through 45 are incorporated herein by reference as if fully set forth. 47. Defendant's representatives' assurances to Plaintiff that the Call Forwarding Service was working properly were false. 48. These content of these assurances regarded facts which were material to Plaintiff's operations and conduct. 49. Each of the assurances were made intending that Plaintiff would rely on them. 50. Plaintiff reasonably and justifiably relied on Defendant's representations and assurances as set forth herein. 51. As a direct and proximate result of Defendant's misrepresentations, Plaintiff has suffered damages as set forth herein. 52. Defendant is liable to Plaintiff for its damages resulting from Defendant's innocent misrepresentations, WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter jUdgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess - 8 - of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as this Court deems just and appropriate, COUNT IV. Tortious Interferenoe 53. Paragraphs 1 through 52 are incorporated herein by reference as if fully set forth. 54. At all times relevant to this case, Plaintiff had a prospective business relationship with bona fide third parties, i.e. its regular customers and the general population of general contractors, manufacturers, suppliers, etc. 55. At all times relevant hereto, Plaintiff had a reasQnable expectation of economic gain by continuing to broker construction materials and supplies. 56, Defendant's conduct in failing to properly place the Call Forwarding Service on Plaintiff's old phone number lines adversely affected Plaintiff's relationship with its then- current and prospective customers. 57, Defendant knew or should have known that its actions and inactions would have an adverse impact on Plaintiff's business, 58, As a direct and proximate result of Defendant's conduct, Plaintiff has suffered damages as set forth herein. - 9 - 59. Defendant is liable to Plaintiff for its damages resulting from Defendant's tortious interference with Plaintiff's business. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as this Court deems just and appropriate. f ~ COUNT VI Nea1iaence 60. Paragraphs 1 through 59 are incorporated herein by reference as if fully set forth. 61. Defendant had a duty to provide the Call Forwarding Service to Plaintiff. ~ f ~ I 62. Defendant's failure to provide the Call Forwarding service 1 f ! ! ! to Plaintiff constituted a breach of that duty. 63. Defendant's failure to provide the Call Forwarding Service was negligent, careless and/or reckless. 64. As a direct and proximate result of Defendant's breach of , ~ f its duty, Plaintiff has suffered damages as set forth herein. 65. Defendant is liable to Plaintiff for its damages resulting from Defendant's negligence, carelessness and/or recklessness. - 10 - - WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as this Court deems just and appropriate. COUNT VII promissorv BstoDDel 66. Paragraph 1 through 65 are incorporated herein by reference as if fully set forth. 67. Defendant's offer to provide the Call Forwarding Service upon acceptance by Plaintiff constituted a promise to provide the Call Forwarding Service, 68. Defendant had a reasonable expectation that Plaintiff would act upon Defendant's promise to provide the Call Forwarding Service. 69. Defendant's promise to provide the Call Forwarding Service did in fact induce Plaintiff to act, in that Plaintiff did not otherwise advertise its New Numbers. 70. As a direct and proximate result of Defendant's failure to fulfill its promise to provide the Call Forwarding Service, Plaintiff has suffered damages as set forth herein. 71. Defendant is liable to Plaintiff for its damages resulting from Defendant's failure to fulfill its promise to provide the Call Forwarding Service. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against - 11 - Respectful Submitted, , r ! I I I f' , , ! ! f i I t I i ! I I I Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as this Court deems just and appropriate, W1X, WENG WEIDNER I / , I /, / By: I S ev n R. Williams 1.0.#62051 508 North Second street Post Office Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Date: February 14, 1996 C:\SP~\Document'F.rgu.on.Com ! - 12 - VERII'ICATION I, Thomas W, Ferguson, President of T. Ferguson Enterprises, have read the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my personal knowledge, information and belief. I verify that all of the statements made in the foregoing document are true and correct and that false statements made therein may subject me to the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities. T. FERGUSON ENTERPRISES ~ By; _ . ._-=-/ ....-1t'homas gua Pres - DATE; January 15, 1996 ,- r'." !" , - - >< -< ~ ~ Eo< z.... Z Oz ILl Z:J l1l<ll ....< c" Z I- 8 00 ....r.l 0<>"- 0 Cl ... :;:u "<Il <-.lOr.l :E "' S ~ :;: .... 0:>< Z 0 0:: ~ ~ ~ 00 Zo:: OUlUO 0:c.J r.l 0 ~ .:S ~ Uz Oa...... a..Z....."" 0] a..U "'3r.l Q If ~ :;j~ < <IlO:.... 0: Ze-. a.. ... c"..... <0 ~ "'..., :Jr.l Or.lZc.J c 0> -.l-.lZ ~ 5 .. " ~- 00: t:l ....... ua..<-.l <II 0:: .... < ~ S u "' ~1~5 r.l I>:Z'" -.lr.l '1J c.Jc.J >1:;: "' u 8<Il c.Jc.JC UU8... c c.J '" - Z N a..Ul ..... ILl 2 .. :l ~ ~ 0:::;:< c" '... , .........< QJ uzo <II! IE .. ::J:JH Zl1l > 0<8 -.l .... ....'" 0 l) S 0 ... -I; OUZ -0"" ZZoJ-.l QJ Uo "'....oJ Z <II! ~ '::::0 0 I- . ~ U < ">Ula.. <<oJc.J Q c.J lflo<< '" ~ "'> ::> ..Jo-JrzJcQ < COU..... ~ z 2 :0 wo..., Zt:l 0<8llJ I>: 1<1>: ., ~ .. "" >< 00:: << 0 - a.. lD ... 0 "' 8UlUl Ulc.J '. Z < "'-.l X '" ;;( <z ><'" -.l ~, - < a.. ....>< ~ <II! Zc.JZ - -.l.....u - > I>: ~ Z...,c.J -.l . "-lc.JZ<c" 0....::> .....a..a.. <... <IlllJ.... a.. 0 zu"> '~ ! ,. ALLYSON J. FERGUSON t/a T. FERGUSON ENTERPRISES, plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . , NO. 96-859 CIVIL TERM v. BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants . . , . CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE or PRoor or SERVICE TO THE PROTHONOTARY: Please accept for filing as proof, f service in the above-captioned action they ttached Affidavits of Return of service. By: 4_~E~L:____ R. W 1 ams, Esqu re ~ttor ey ID No. 62051 508 North Second street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 submitted, Respectfu WIX, Attorneys for Plaintiff Dated: April 3, 1996 ALLYSON J. FERGUSON, t/a T, FERGUSON ENTERPRISES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 96-859 CIVIL TERM BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ArrIDAVIT or RETURN or SERVICE e'b~A(D S ,0e~lcen... (name of server), being duly sworn according to law, deposes and says: 1. He/she is a competent adult, age ':) '=> years, who is not a party to the above action; 2. On v\Alt.~ => '11 , 199~, at I~ o'clock a.m./p.m., service of the Complaint in the above action was made by the undersigned by handing it to SA~'\:)~~ e. SOL.O~o.J (name of person served), who is an employee of CT corporation, registered agent for Defendant, Bell Atlantic corporation; and 3. Service of the Complaint occurred at 1635 Market Street, philadelphia, PA, which is the registered address of Defendant Bell Atlantic Corporation. 2~cul. s. thoj~ Name: Process Server Sworn to and subscribed to before rot' a Notar Pub~ic, this 4" '. _u,ay of f.r - l~, ~., L " l.' . ,l., N 'ary pl. My Cornission Expires: C:\SAW\DOCU~fNT\~e~GUS01.AFF 1996. Nolilrial SIJill Jan W. PJml(!f, Notary Public , ,omery County ~1y COmrnl!iSlon E~plres'Aug 27, 199B ALLYSON J. FERGUSON, t/a T, FERGUSON ENTERPRISES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 96-859 CIVIL TERM BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ArrIDAVIT or RETURN or SERVICE l,e "",/,,) c',. \)<...,1- (name of server), being duly sworn according to law, deposes and says: 1. He/she is a competent adult, age ~(, years, who is not a party to the above action; 2. On ",'I,~\u H , 199~, at 1" J] "",'-1 <;- o'clock a.m./p.m., service of the Complaint in the above action was made by the undersigned by handing it to r..:. Aj ~i. C~ 'fIV 1 AI..J....h) j-..J (name of person served), who is an employee of Bell Atlantic Pennsylvania, Inc., agent for Defendant, Bp.ll Atlantic of PA; and 3. service of the Complaint occurred at One Benjamin Franklin Parkway, Philadelphia, PA, which is the registered address of Defendant Bell Atlantic of PA, J2\~~~ s ~JL..J Name: Process Server Sworn to and subscribed to befor~',a Notary Public, this ' ,,' day of r. .let , 1996. ./?-:, ~ .:: " // ;:.r-:// . 0'" .' ..y-.~ 0'" 0'" / Noty Pubh ' ___ My Commission Expires: C:\SRW\OOCUMENT\'ERGUSOJ.'" -.---"..-.--.--'- .........,...tti... ..-.,.' , , '... ' "',iI., _ . " ....., "I.. .' , ..'O'..l;!.:..'..' '...- ' . -:~,' . ,r,_ .._..."..~" :: .........."1 'A WU.wt.O' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW ALL YSON J. FERGUSON, tla T. FERGUSON ENTERPRISES, Plaintiff NO, 96-859 vs. BELL ATLANTIC CORPORATION. BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA and BELL TELEPHONE OF PA, JURY TRIAL DEMANDED Defendants PRELIMINARY OBJECTIONS OF BELL ATLANTIC-PA. INC. TO PLAINTIFF'S COMPLAINT NOW COMES Defendant. Bell Atlantic-PA, Inc. (referred to as Bell Atlantic of PA in Plaintiff's Complaint). by its attorney, James E. Himes, Esquire, and makes the following Preliminary Objsctions to Plaintiff's Complaint: MOTION TO STRIKE FOR FAILURE TO CONFORM TO RULE OF COURT 1. In the caption of the Complaint. the Plaintiff is listsd as ALL YSON J. FERGUSON tla T. FERGUSON ENTERPRISES, Plaintiff". 2. Paragraph 2 of the Complaint indicates that "T. Ferguson Enterprises is a sole proprietorship..." but does not indicate ths nams of the proprietor. 3. Although it appears from the caption that Allyson J. Ferguson may be the proprietor of the business in question, the Complaint is verified by Thomas J, .JAMF~S E. HIMES HlINn'j<JO.;Jf~. ...... Ferguson, who is identified as .President of T. Ferguson Enterprises" in the ...."IO.......llY....r.l...''^' ,,,OSS.l.U-l'" Verification. CERTIFICATE OF SERVICE I, James E. Himes, Esquirs, hBreby certify that I have served a true and corrsct copy of the foregoing Prelininary Objections of Bell Atlantic-PA, Inc. to Plaintiff's Complaint upon the following as addrsssed below, by depositing the same in the United States Mail, first class, postage prepaid, at Huntingdon, Pennsylvania, on this '" ...u ... day of July, 1996. Steven R. Williams, Esquire WIX, WENGER & WEIDNER 508 North 2nd Street P.O, Box 845 Harrisburg, PA, 17108-0849.......... / 'ld,~:.- By: 'Yh'~T mes E. Himes, Esquire 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 1.0. # 06706 Attorney for Defendant, Bell Atlantic-PA, Illc. JAMES E. HIMES ...'fO"N..,....r.l.....w .........Tlt..~<;><.Hl. ,.. 1".""'0.J041 "-#' ,i n '." ,.... ~-~~ l." I ~ t ~: , ~(_-iJ \-:.: ,. Cf l;' ' '1'1 , , ',- -,..;' I ;'11 ,L, (f l.' ....-'J -' , r~\' ~.. i~~ ~~r ;:,1 t-~ r !c~) JJ-r- r.- j>1I , .. J , , ":':) -~! ...... , .'~ ." " - I : , I I ~ ..- jam.. t. Him" 222 Penn St. P.O. 101' No. 3A7 HIlI\t1nodon, ,'" 166'2--03.0 " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW _----M.,M..,.H ALLYSON J. FERGUSON, tla T. FERGUSON ENTERPRISES, Plaintiff NO: 96-859 'IS. BELL ATLANTIC CORPORATION BELL ATLANTIC-PENNSYLVANIA, INC. BELL ATLANTIC OF PA, AND BELL TELEPHONE OF PA, JURY TRIAL DEMANDED Defendants EN1'RY OF APPEARANCE TO: LAWRENCE E. WELKER, PROTHONOTARY Please entBr ths appearance of James E. Himes, Esquire, as attorney for the Defendants: BELL ATLANTIC CORPORATION (parent corporation of Bell Atlantic-Pennsylvania, Inc,) BELL ATLANTIC-PENNSYLVANIA, INC, BELL ATLANTIC OF PA (improperlY named in the caption as a corporation or fictitious name owned by Bell Atlantic- Pennsylvania, Inc.l BELL 1'ELEPHONE OF PA (improperly named, however, The Bell TelBphone Company of Pa is a fictitious name filed by Bell Atlantic-pennsylvania, Inc,). All pleadings and other papers relating to the above-captioned lawsuit may be served upon Attorney Himes at the address indicatsd below. JAMES E HIMES It is the intention of this Entry of Appearance by James E. Himes to be attorney of record for all of the named Defendants in order to clarify and facilitate "pO' whom.' p.p." di",,,d" tho ~,.../" ": '0 b. ""od. . 0"" ~', ,,~(, /~ E. ) 1_,., James E. Himes, E~qui~ " Attorney for Defendants 222 Penn Street. Huntingdon, PA 16652 (814) 643-1740 I.D.No.06705 Ar.!o.tNIit.....'.I...>r< ..,-,,,,t,N'.;;W',,"" ...", ,Q.J'J.l.QJ.A1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW ALL YSON J. FERGUSON. t/a T. FERGUSON ENTERPRISES, Plaintiff NO: 96.859 vs, BELL ATLANTIC CORPORATION BELL ATLANTIC PENNSYLVANIA, INC. BELL ATLANTIC OF PA, AND BELL TELEPHONE OF PA, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, James E. Himes, Esquirs, hereby csrtify that I ssrved a true and correct copy of my Entry of Appearance on bBhalf of all Defendants upon Steven R. Williams, Attorney for the Plaintiff, at his office address of WIX, WENGER & WEIDNER, 508 North Second Street, P.O. Box 845, Harrisburg, Pennsylvania 17108-0845, by depositing same in the UnitBd States Mail, first class, postage prspaid, at Hunting- don, Pennsylvania on the ::J"" day of , 1996. .----- ",/ '" ,/ ~" /', c ~' tft-'t/ Z , // James-E. Himes, Esquire . 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorney for Defendants ,;L " :1 " ',':J (',:-1 '" . . :-:w " ) I I.n, 'I t. 7 '<",f J (~') (~ W.: .' " , ",.1 ; . , d 1 w , , <11 I -, , .t":;~ . II - ' , .". , . ' . . , ' . i ~ I t t i r Jame. E. Him.. 222 Penn St. P.O. Box N~. 3Q Huntingdon, PA 1"U.o3Q . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALLYSON J, FERGUSON, tla T, FERGUSON ENTERPRISES, Plaintiff NO: 96-859 vs. Defendant JURY TRIAL DEMANDED r i J i BELL ATLANTIC-PA, INC. ENTRY OF APPEARANCE i , Please enter the appsarance of James E. Himes, Esquire, as attorney for the TO: LAWRENCE E. WELKER, PROTHONOTARY Defendant, SELL ATLANTIC-PA, INC. All pleadings and other papers relating to the above-captioned lawsuit may be served upon Attorney Himes at the address indicated Date: VIlIll1I~.\... \'\. \'\'t (, i t below. ~[/~ James E. Hime;, Esquire Altornsy for Defsndant Sell Atlantic-PA, Inc. 222 Penn Street Huntingdon, PA 16652 (814) 643.1740 1.0, No. 06706 .JAMES E HIME'3 Arro"',:I< .t L....,. ..~<". flt..-;, cJ~'''', ,-.. '''''''''-<)14-' . ) :J . I I J :, -, .. " ~ '.) 0 '.') -~1 -.j " ; - , ,-~} , .. ::..., ji... ',4'1 t C. ::.,; ,. ," i' I: r, ,I " , , , , -, n' -- ,-- - . ~ ~ ~ f;j ~ . 9 ::! ~;:: ~ ~~~~~ ~~ ~6"~ '5 ~ u oj "1:.\:: ~S~~~ ~o: ~ :t:l" ~ W ~ :t 0 l>l "lI.o LJo~ 11..-8 :z~o!;;u ~ LlJ~:Z2~ ~ ~ ., ::1 . 5l il 2:S ~ ~ :t II II y !fI ALLYSON J, FERGUSON, t/a T. FERGUSON ENTERPRISES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 96-859 CIVIL TERM BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is 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 document or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. As provided by Pennsylvania Rules of civil Procedure No. 1018.1, the following officer is designated to be named in the Notice to Defend in order to find out where legal help can be obtained. Court Administrator Fourth Floor Cumberland County Courthouse High and Hanover Streets Carlisle, PA 17013 (717) 240-6200 ALLYSON J. FERGUSON, t/a T. FERGUSON ENTERPRISES, Plaintitt IN THE COURT PF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 96-859 CIVIL TERM BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED AMENDED COMPLAINT i_ ~ ! r I ! ! i I i ! ! , [ i AND NOW comes Plaintiff, Allyson J. Ferguson, t/a T. Ferguson Enterprises, by its attorneys, Wix, Weng6r & Weidner, and files this Amended Complaint stating the following: 1. Plaintiff is Allyaon J. Ferguson, t/a T. Ferguson Enterprises, of 511 Grant Drive, Camp Hill, Pennsylvania 17011. 2. T. Ferguson Enterprises is a sole proprietorship having its principal office and place of business at 511 Grant Drive, Camp Hill, Pennsylvania 17011. T. Ferguson Enterprises is a construction materials brokerage company which relies heavily on telephone contact with current and prospective customers. 3. Defendant, Bell Atlantic Corporation, is a Delaware corporation authorized to do business in Pennsylvania, with a registered address of c/o CT Corporation, 1635 Market street, Philadelphia, Pennsylvania 19103. ! ! i I t - 1 - 4. Defendant, Bell Atlantic Pennsylvania, Inc" is a Pennsylvania corporation with a registered address of c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103, 5. Defendant, Bell Atlantic of PA, is believed and therefore averred to be a fictitious name owned by Bell Atlantic Corporation and/or Bell Atlantic Pennsylvania, Inc., and has a registered address of c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. 6. Defendant, Bell Telephone of PA, is believed and therefore averred to be a fictitious name owned by Bell Atlantic Corporation and/or Bell Atlantic Pennsylvania, Inc., and has a registered address of c/o CT Corporation, 1635 Market street, Philadelphia, Pennsylvania 19103. (Each of the entities and fictitious names herein defined as defendants are collectively referred to herein as "Defendant.") 7, Jurisdiction and yenue are proper in this Court because Plaintiff's cause of action and the transactions and occurrences giving rise to Plaintiff's cause of action arose in Cumberland County. 8. The amQunt in controversy in this action exceeds Twenty-Five Thousand Dollars ($25,000), exclusive of interest and costs, as required by the Cumberland county rules regarding compulsory arbitration, - 2 - I I 9. 'ACTUAL BACKGROUND Prior to April 1995, Plaintiff had two phone lines into its ; l' , " ~ f ; address, one of which was a personal residence line and one of which was a business line. 10. Although, both phone lines were billed together to Thomas W. & Allyson J. Ferguson, Defendant was aware that one of the lines was solely for business purposes. 11. In April 1995, Plaintiff notified Defendant that Plaintiff would be moving to a new location on or about May 15, 1995. 12. At this time, Defendant informed Plaintiff what Plaintiff's new phone numbers would be (herein, the "New Numbers"). 13. Defendant was to disconnect Plaintiff's old phone numbers as I of May 15, 1995. 14. At or about the same time, Defendant offered to Plah,tiff a service (herein, the "Call Forwarding Service") whereby upon dialing Plaintiff's old phone numbers, callers would be told that Plaintiff's old phone numbers had been changed, and callers would be provided Plaintiff's New Numbers. 15. On or about May 7, 1995, Plaintiff informed Defendant that it wanted the Call Forwarding Service. Defendant agreed to install and provide the Call Forwarding service on Plaintiff's old telephone lines. 16. The Call Forwarding Service was to De effective on May 15, 1995, and last for thirty (30) days, through June 15, 1995. [ ! I I i I I I - 3 - -.... 17. In the morning of May 12, 1995, three days earlier than agreed, Defendant disconnected Plaintiff'S old phone numbers. 18. For the entire period of May 12, 1995 through May 14, 1995, Plaintiff was without telephone service, 19. On or about May 12, 1995, Plaintiff became aware that the Call Forwarding Service had already been installed, Dut that it was not working properly and was directing callers to incorrect phone numbers. 20. On or about May 15, 1995, Defendant's technician arrived at Plaintiff's new location to hook up Plaintiff's new telephone service. At this time, Plaintiff informed the technician that the Call Forwarding service contained incorrect telephone referral information. 21. upon the technician'S suggestion Plaintiff contacted Defendant's representative who assured Plaintiff that the Call Forwarding service would be corrected to provide callers the New Numbers. 22. On several occasions, Defendant's representatives assured Plaintiff that the Call Forwarding Service was connected and working properly. 23. Approximately three weeks later, Plaintiff realized that the Call Forwarding service still was not working properly. Rather than informing callers of the New Numbers, the messages placed on the lines by Defendant informed the callers that Plaintiff's old phone numberR had been - 4 - disconnected. The messages offered no additional information. 24. This erroneous message was played each time a caller called Plaintiff's old phone numbers until Plaintiff contacted Defendant on or about June 2, 1995, at which time Defendant corrected the problem with the Call Forwarding Service. 25. During Plaintiff's call to Defendant on or about June 2, 1995, Defendant's representative informed Plaintiff that Defendant had failed to properly install the Call Forwarding Service on May 15, 1995. 26. During the entire three week period, May 15, 1995 through June 2, 1995, the Call Forwarding service was not working properly. 27. During this time period, several of Plaintiff's customers who received toe message that Plaintiff's old phone numbers had been disconnected, assumed Plaintiff had ceased doing business. 28. As a result of the erroneous message on Plaintiff's old phone lines, several of Plaintiff's customers granted contracts to Plaintiff's competitors. 29, As a result of Defendant's conduct, Plaintiff has been injured in that, inter alia: (a) Plaintiff lost several contracts worth at least $21,216 to Plaintiff, which it would have been awarded if the Call Forwarding Service had been working properly; - 5 - ..._..__ ..0<_, (b) Plaintiff believes and therefore avers that it has lost prospective contracts worth at least $15,586 ~o Plaintiff; (c) Plaintiff's reputation has been adversely affected as a result of potential customers presuming that Plaintiff had gone out of business; and (d) Plaintiff's time incurred while attempting to resolve the problems with the Call Forwarding, estimated to be at least $6,000. 30. In addition, at least one of Plaintiff's customers has made a demand to Plaintiff for payment of $3,000, a cost incurred by the customer resulting from the customer's inability to contact Plaintiff regarding a the~-pending contract. 31. Plaintiff's total damages exceed $25,000, the arbitration limit of this Court. COUNT II Breach of Contraot 32. Paragraphs 1 through 31 are incorporated herein by reference as if fully set forth. 33, Defendant's offer to provide, and Plaintiff's acceptance of, the Call Forwarding Service constituted a valid, binding and enforceable contract. 34. Defendant's conduct as set forth herein constitutes a breach of the contract, 35, Plaintiff fulfilled all of its obligations under the contract. - 6 - 36. As a direct and proximate result of the Defendant's breach of the contract, Plaintiff has suffered damages set forth herein. 37. Defendant is liable to Plaintiff for its damages resulting from Defendant's breach of contract. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) DOllars, plus interest and costs, and grant such other relief as this Court deems just and appropriate, COUNT III Neqliqent MisreDresentation 38. Paragraphs 1 through 37 are incorporated herein by reference as if fully set forth. 39. Defendant's representatives' assurances to Plaintiff that the Call Forwarding service was working properly were false. 40. Defendant knew or should have know that these representations were false. 41. Each of these assurances were made negligently, carelessly and/or recklessly. 42. Each of the assurances were made intending that Plaintiff would rely on them. 43. Plaintiff reasonably and justifiably relied on Defendant's representations and assurances as set forth herein. - 7 - 44. As a direct and proximate result of Defendant'~ misrepre.entations, plaintiff has suffered damages as set forth herein. 45. Defendant is liable to Plaintifr for its damages resulting from Defendant's negligent misrepresentations. WHEREFORE, Plaintiff respectfully requests that this Honorable Ccurt enter judgment in favor of Plaintiff and against Defendants, jointly and sevarally, and award an amount in excess of Twenty-five Thousand ($25,0000) Collars, plus interest and costs, and grant such other relief as this Court deems just and appropriate. COUNT III: IDDooent MisreDre.entatioD 46. Paragraphs 1 through 45 are incorporated herein by reference as if fully set forth. 47. Defendant's representatives' assurances to Plaintiff that the Call Forwarding Service was working properly were false. 48. These content of these assurances regarded facts which were material to Plaintiff's operations and conduct. 49. Each of the assurances were made intending that Plaintiff would rely on them. 50. Plaintiff reasonably and justifiably relied on Defendant's representations and assurances as set forth herein, 51. As a direct and proximate result of Defendant's misrepresentations, Plaintiff has suffered damages as set forth herein. - 8 - , , ; ! i I 52. Defendant is liable to Plaintiff for its damages resulting from Defendant's innocent misrepresentations. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus .interest and costs, and grant such other relief as this Court deems just and appropriate. COURT IVI Tortious Interferenoe 53. Paragraphs 1 through 52 are incorporated herein by reference as if fully set forth. 54, At all times relevant to this case, Plaintiff had a prospective business relationship with bona fide third parties, i.e. its regular customers and the general population of general contractors, manufacturers, suppliers, etc. 55. At all times relevant hereto, Plaintiff had a reasonable expectation of economic gain by continuing to broker construction materials and supplies. 56. Defendant's conduct in failing to properly place the Call Forwarding Service on Plaintiff's old phone number lines adversely affected Plaintiff's relationship with its then- current and prospective customers. - 9 - 57. Del~endant knew or should have known that its actions and inllctions would have an adverse i1npact on Plaintiff's business, 58. As a direct and proximate result of Defendant's conduct, Plaintiff has suffered damages as set forth herein. 59. Defendant is liable to Plaintiff for its damages resulting from Defendant's tortious interference with Plaintiff's I I t . I f f i ! l , I , .l i business. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as this Court deems just and appropriate. COUNT VI Nealiaenoe 60. Paragraphs 1 through 59 are incorporated herein by reference as if fully set forth, 61. Defendant had a duty to provide the Call Forwarding Service to Plaintiff. 62. Defendant's failure to provide the Call Forwarding Service to Plaintiff constituted a breach of that duty. 63. Defendant's failure to provide the Call Forwarding Service was negligent, careless and/or reckless, - 10 - 70. As a direct and proximate result of Defendant's failure to fulfill its promise to provide the Call Forwarding service, Plaintiff has suffered damages as set forth herein. 71. Defendant is liable to Plaintiff for its damages resulting from Defendant's failure to fulfill its promise to provide the Call Forwarding Service. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff and against Defendants, jointly and severally, and award an amount in excess of Twenty-five Thousand ($25,0000) Dollars, plus interest and costs, and grant such other relief as Court deems just and appropriate, ubmitted, WIX, Datel,)11 ft0 L:E;1(~ R. Williams I.D.#62051 508 N rth Second Street Post Office Box 845 HarriSburg, PA 17108-0845 (717) 234-4182 C:\SRW\Docuoonl\F.rvuemd.Coo - 12 - ALLYSON J, FERGUSON, t/a T. FERGUSON ENTERPRISES, Plaintiff v. BELL ATLANTIC CORPORATION, BELL ATLANTIC PENNSYLVANIA, INC" BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants , , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 96-859 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIPICATE OP SERVICE I hereby certify that the foregoing Amended Complaint was sent by first class, postage prepaid mail/hand delivered this day to the following: James E. Himes, Esqurie 222 Penn Street PO Box 347 Huntingdon, PA 16652-0347 Attorney for Bell Atlantic pennsylvania, Inc. Bell Atlantic corporation c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 DATE: 1/nlc;b Bell Atlantic of PA One Benjamin Franklin Parkway Philadelphia, PA 19130 Bell Telephone of PA One Benjamin Franklin Parkway Philadelphia, PA 19130 " l --..... Williams, 1,0.#62051 rth Second Street P,O. ox 845 Harrisburg, PA 17108-0845 (717) 234-4182 - 14 - SECOND DEMURRER 4. Plaintiff's Amended Complaint alleges, in Paragraph 29(c) thereof, that Plaintiff's reputation has been adverselv affected. 5. Pennsylvania law does not recognizs a cause of action for loss of good reputation under the circumstances of this case, WHEREFORE, Defendants pray that Paragraph 29(c) be stricken from Plaintiff's Amendlld Complaint for failure to state a cause of action, Date: ~:2, \CI:\b itted, ,v.~cjL / . ,/ JAMES E. HIMES, ESQUIRE AttornBY for Defendants 222 Penn Strest Huntingdon, PA 16652 (814) 643.1740 1.0. # 06706 JAMES E_ HIMES A.rTO..NCy..T.L......W "UNnNUOON. ...... lGllti.,Q301? -2- IN THE COURT OF COMMON PLEAS OF C~MBERLANO COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALL YSON J. FERGUSON, tla T. FERGUSON ENTERPRISES, Plaintiff : NO: 96-859 vs. BELL ATLANTIC CORPORATION BELL ATLANTIC-PENNSYLVANIA, INC. BELL ATLANTIC OF PA, AND BELL TELEPHONE OF PA, JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, James E. Himes, Esquire, hereby csrtify that I served a true and corrBct copy of the foregoing Preliminary Objections to Plaintiff's Amended Complaint upon Stsven R. Williams, Attorney for the Plaintiff, at his office address of WIX, WENGER & WEIDNER, 508 North Second Strset, P,O. Box 845, Harrisburg, Pennsylvania 17108- 0845, by depositing sams in the United Statss Mail, first class, postage prepaid, at Huntingdon, Pennsylvania on the d"" day of ~T' ,1996, / [, amss E. Himes, Esq / " 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 Attorney for Defendants .JAMES E. HIMES ATTO"N.y.AT.t,.....W HUNTlNaCQN, .... '..11"-0,)'" ALLYSON J. FERGUSON, t/a T. FERGUSON ENTERPRISES v, BELL ATLANTIC CORPORATION BELL ATLANTIC-PENNSYLVANIA, INC. BELL ATLANTIC OF PA" AND BELL TELEPHONE OF PA, I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I I I NO. 96-0859 CIVIL TERM I I I CIVIL ACTION - LAW I I_ REI DEPE_DANTS' PRELIMINARY OBJECTIONS TO PLAINTIP"S AMENDED COMPLAINT BEPORE SHEELY, P.J., HOPPER, J. HESS, J. , "~ ORDER OF COUR..I NOW, this]~ day of DECEMBER, 1996, after review of AND Defendant's Preliminary Objections to Plaintiff's Amended Complaint and consideration of the parties' arguments in support thereof, Defendant's first demurrer is SUSTAINED as to Counte II, III, and V, and DENIED as to COUNT IV, Defendant's second demurrer to Paragraph 29(c) regarding loss of good reputation is SUSTAINED as to Counts II, III, and VI the demurrer is DENIED as to Count IV, Steven R. Williams, Esquire James E. Himes, Esquire :sld By the Court, LJ (l t~c' '-\ \ ~ . ~'l "- Harold E. Sheely, P.J. t.~ rrn-';'~t.,(t 1..:J../.1.3 J% ..,6.1? H ~ r- ...:J ~~- (f": -:...~ ).. '~7 ~~, ~ ..,: ,. ";~ <") ~ ~. ".1"}- ::J' ' ('.J ~:;;;: U;, L> :.:~ ,\ .- t!I)) ,.. CO! ,~~ .' V) :5 C' e') U V. I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I I 1 NO, 96-0859 CIVIL TERM I I 1 CIVIL ACTION - LAW 1 ALLYSON J, FERGUSON, t/a T. FERGUSON ENTERPRISES BELL ATLANTIC CORPORATION BELL ATLANTIC-PENNSYLVANIA, INC. BELL ATLANTIC OF PA., AND BELL TELEPHONE OF PA. IN REI DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDBD COMPLAINT BEFORE SHBELY. P.J.. HorrBR, J. HBSS. J. OPINION AND ORDBR or COURT The underlying cause of action in the present matter concerns Defendant's alleged mishandling of a "Call Forwarding Service" I established for Plaintiff when it moved its businesD location. Defendant have demurred to several of Plaintiff's counts, claiming they seek to recover in tort for an alleged breach of contract claim in contradiction to Pennsylvania case law. Defendant has also demurred to Plaintiff's cause of action for loss of good reputation, We heard argument on October 2, 1996, FACTS The relevant facts may be summarized from Plaintiff's Amended Complaint, filed July 18, 1996, and averring as followSl Plaintiff, Allyson J. Ferguson, t/a T. Ferguson Enterprises, is a brokerage company which purportedly relies heavily on telephone I At Argument Court, Defendant pointed out that the .ervice is actually a call referral service. Because the comFlaint u.e. the phrase "Call Forwarding Service", the Court will do the same. NO, 96-0859 CIVIL TERM contact with current and prospective customers,l Tho entities and fictitious names of Defendants are collectively referred to h~rdin as Defendant.' Plaintiff claims that Defendant was aware that Plaintiff had two phone lines into its address, one personal and one business.' Plaintiff further alleges that in April of 1995, it notified Defendant of its move to a new location to occur on or about May IS, 1995, and of the new phone numbers.s Defendant was to disconnect Plaintiff's old numbers at this time.' Additionally, the complaint alleges that at about the same time of Plaintiff's notification, Defendant offered to Plaintiff a .Call Forwarding Service" whereby callers dialing Plaintiff's old phone numbers would be told that Plaintiff's old numbers had been changed and the new numbers would be provided.' Plaintiff contends that on or about May 7, 1995, it informed Defendant that the company wanted the Call Forwarding Service, with service to be effective on May lS, 1995, and continue for thirty (30) days, 1 Plaintiff's Amended Complaint (hereinafter Complaint), ! 11 ! 2, , Id" ! 6, , Id" ! 9, ! 10, s Id" ! 11, ! l2, , Id., ! 13, 1 Complaint, ! l4, " 2 NO. 96-0859 CIVIL TERM through June 15, 1995,' The first alleged problem occurred when Defendant disconnected Plaintiff's old phone numbers on May 12, 1995, three days earlier than agreed, leaving the business without telephone service.' Additionally, on or about May 12, 1995, Plaintiff became aware that the Call Forwarding Service, already inQtalled, was directing callers to incorrect phone numbers,lO Plaintiff contacted Defendant's representative who assured that the problem would be corrected.1I Plaintiff maintains that it was assured several times that the service was connected and working properly, I' Approximately three weeks later, Plaintiff realized that the service was still not working properly in that the messages placed on the lines informed callers that Plaintiff's old phone numbers had been disconnected. II When Plaintiff contacted Defendant on or about June 2, 1995, a representative informed Plaintiff that Defendant had failed to properly install the Call Forwarding Service on Hay 15, 1995; the problem was then . Id" ! 16. , Id., ! 17, ! l8, 10 Id" ! 19. II Id., ! 21- II Complaint, ! 22, u Id" ! 23, 3 NO. 96-0859 CIVIL TERM corrected, It Regarding damages, Plaintiff avers that as a result of Defendant's conduct, 1) Plaintiff lost several contracts to competitors because customers believed Plaintiff had ceased doing business; 2) Plaintiff lost prospective contracty; 3) Plaintiff's reputation has been adversely affected; 4) Plaintiff incurred lost time while attempting to resolve the problems with the service; and (5) at least one customer has made a demand for payment of $3,000 as a result of the customer's inability to contact Plaintiff regarding a then-pending contract.1> Consequently, Plaintiff seeks recovery for breach of contract (Count I), negligent misrepresentation (Count II), innocent misrepresentation (Count III), tortious interference (Count IV), negligence (Count V), and promissory estoppel (Count VI), Defendant has demurred to Counts II, III, IV, and V, claiming that Pennsylvania law does not recognize a cause of action in negligence when damages are limited to economic loss,1O Plaintiff has also demurred to Paragraph 29(c), alleging that Pennsylvania law does not recognize a cause of action for loss of good reputation under the facts of this case," It Id., ! 24, ! 25. I> Id., ! 27, ! 28, ! 29, ! 30. 10 Preliminary Objections of Defendants, ! 3, 11 Id., ! 4, 4 NO, 96-0859 CIVIL TERM DISCUSSION The standard for ruling upon '~reliminary objections in the nature of a demurrer is well-established I All material facts set forth in the complaint as well as inferences reasonably deducible therefrom are admitted as true. . . Super. 461, 465, 665 A.2d l2l5, l2l7 (1995). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible, Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Mahoney v, Furches, 503 Pa. 60, 66, 468 A.2d 458, 46l-62 (1983) (citations omitted). We now turn to the state of our law with respect to the issue of whether Counts II, III, IV, and V sound properly in contract or tort, In Phico Insurance Company v. Presbyterian Medical Services, 444 Pa. Super. 221, 663 A.2d 753 (l995), the court noted the past confusion in this area of law stemming from two distinct lines of case law." The first line, the Raab approach, permitted a cause of action in tort growing out of a breach of contract claim if there was an improper performance of a contractual obligation (misfeasance) rather than the mere failure to perform (nonfeasance). Raab v. Keystone Insurance Company, 271 Pa. Super. 185, l87-188, 412 A.2d 638, 639 (l979), Finding Raab lacking in precedential authority, the Phico court 1. See Grode v. Mutual Fire, Marine, and Inland Insurance Co" l54 Pa. Cornrow, 366, 623 A,2d 933 (1993). 5 NO. 96-0859 CIVIL TERM abandoned that approach in favor of the view espoused in Bash v. Bell Telephone Company, 411 Pa. Super. 347, 601 A.2d 825 (l992). The Bash approach and the one to be applied in the instant case, is characterized as followSI . . . to be construed as a tort action, the wrong asoribed to the defendant must be the gist of the action with the oontract being collateral. In addition, . , . a contract action may not be converted into a tort aotion simply by alleging that the conduot in question was done wantonly, Finally, ' . , the important difference between contraot and tort aotion is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for the breaoh of duties imposed by mutual consensus, Phico, 444 Pa, Super. at 229, 663 A.2d at 757 (summarizing Bash), Applying the above principles to the Defendant's preliminary objections, we find that Counts II, III, and V do not fall into the realm of tort action. Counts II and III of Plaintiff's olaim are centered on the allegation that Defendant's representatives falsely gave assurances that the Call Forwarding Service was working properly," If true, this breach is not of a duty imposed as a matter of social policy but rather of one imposed by mutual consensus; thus, the contract is paramount to the action. The negligence oause of action denoted in Count V similarly expresses a breach of duty imposed by mutual consensus. By contending that "Defendant had a duty to provide the Call Forwarding Service to plaintiff" and that "Defendant's failure to provide the Call Forwarding Service constituted a breach of that " See Complaint, ! 39, ! 47, 6 NO. 96-0859 CIVIL TERM duty.'., Plaintiff is describing the breach of a purely contractual relationship, We are unable to dismiss Count IV, tortious interference, on the same grounds, however, The tort of interference with contract has been defined as "intentionally and improperly interfer[ing] with the performance of a contract between another and a third party by causing the third person not to perform the contract[,]" Maier v. Maretti, 448 Pa. Super. 276, 288, 671 A.2d 70l, 707 (l995) (citations omitted), To set forth a claim in Pennsylvania, the following four elements must be pleaded I (1) the existence of a contractual relation between the complainant and a third party; (2) purposeful action on the part of defendant, specifically intended to harm the existing relation; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct, Thompson Coal Company v, Pike Coal Company, 488 Pa, 198, 208, 412 A.2d 466, 47l (1979), Plaintiff's complaint alleges that Defendant'a conduct regarding the Call Forwarding Service "adversely affected Plaintiff's relationship with its then-current and prospective customers" and that "Defendant knew or should have known that its actions and inactions would have an adverse impact on Plaintiff's business," In admitting as true Plaintiff's averments, we can ,. Id" ! 61, ! 62. 7 ~.' NO. 96-0859 CIVIL TERM not at this point sustain the demurrer for Count IV. Under the circumstances of the present case, though, the viability of this cause of action is doubtful at best. The last issue to address is Defendant's demurrer to Plaintiff's claim for loss of good reputation set forth in paragraph 29(c). In view of our previous discussion, we must sustain Defendant's demurrer for loss of good reputation as to Counts II, III, and V because loss of good reputation is not applicable to contractual claims. See Eastern Dental Corporation v. Isaac Masel Co., Inc., 502 F.Supp. 1354 (1980) (stating that Pennsylvania law does not permit the recovery of damages for loss of goodwill or reputation in any action based on either breach of contract or a defective product) (citations omitted). On the other hand, if Plaintiff's claim for tortious interference survives, it may seek damages for harm to reputation under Count IV.21 ..~t ORDER OF COURT AND NOW, this L; day of DECEMBER, 1996, after review of Defendant's Preliminary Objections to Plaintiff's Amended Complaint and consideration of the parties' arguments in support thereof, Defendant's first demurrer is SUSTAINED as to Counts II, 21 The Restatement defines "actual damages" as (1)(c) actual harm to reputation, if reasonably expected to result from the interference. . . Restatement (Second) of Torts S 774A. 8 NO. 96-0859 CIVIL TERM III, and V, and DENIED as to COUNT IV. Defendant'8 second demurrer to Paragraph 29(c) regarding loss of good reputation i8 SUSTAINED a8 to Count8 II, III, and VI the demurrer i. DENIED a8 to Count IV. By the Court, /8/ Harold E. Sheelv Harold E. Sheely, P.J. Steven R. Williams, E8quire Jame8 E. Himes, Esquire Isld 9 .-! " ;'. m,PtMSt.,,_.. ,>'.~:-;~'Y1~~X~'~>I~i,.t '., ....'. ',0. .~No..-' ,,'~ '."'" ", .n ,-'- ,. -,'" U._,i':';;;.J_~ ..., >,'c" f.__l;'!i,~"" ';., I,. .".,' ';:, ..- '"~ ~4 'f6~2.,oUt:. ;;':;.', J~ \':.: ~ ''''::~'; ;~. ".,;j,~. ALLYSON J. FERGUSON, tla T. FERGUSON ENTERPRISES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 96-859 CIVIL ACTION - AT LAW BELL ATLANTIC CORPORATION, BELL ATLANTIC-PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, Defendants JURY TRIAL DEMANDED I ; , I t NOTICE TO PLEAD TO: ALLYSON J. FERGUSON, tja T. FERGUSON ENTERPRISES, PLAINTIFF cjo STEVE R. WILLIAMS, ESQUIRE, her attorney You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from ~ervice hereof or a judgment may be entered aga By: JAM 2 Penn Street untingdon, PA 16652 (814) 643-1740 ATTORNEY FOR DEFENDANTS ALLYSON J. FERGUSON, t/a T. FERGUSON ENTERPRISES, Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . . . . v. : NO. 96-859 : BELL ATLANTIC CORPORATION, : CIVIL ACTION - AT LAW BELL ATLANTIC-PENNSYLVANIA, INC., BELL ATLANTIC OF PA AND BELL TELEPHONE OF PA, : JURY TRIAL DEMANDED Defendants NOW COME the Defendants, by their attorney James E. Himes, Esquire, and make the following Answer with New Matter to Plaintiff's Complaint: 1. Admitted. 2. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 3. Admitted. 4. Admitted in part. Defendant Bell Atlantic-Pennsylvania, Inc. is a Pennsylvania corporation with registered offices at 1717 Arch Street, 19 S, Philadelphia, Pennsylvania 19102. 5. Denied. Bell Atlantic of PA is not a fictitious name owned by the Defendants. -1 I t , I I , , i I 1 I , 6. Denied as stated. Bell Telephone Company of PA is a fictitious name filed by Bell Atlantic-Pennsylvania, Inc. 7. The allegation of this paragraph constitutes a conclusion of law to which no response is required. 8. Denied. Plaintiff's alleged loss does not exceed the sum of $25,000.00. 9. Denied. Both lines referred to were residence lines. 10. Denied. Both phone lines were in the name of Allyson J. Ferguson and Defendants were never aware that one of the lines was used for business purposes. 11. Denied. On April 26, 199'5, Th?mas W. Ferguson called and requested that the present service be moved and th'lt a new residence line be added to a new location at 511 Grant Drive, Camp Hill, Pennsylvania. 12. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 13. Denied. The old phone service was to be disconnected as of May 12, 1995. 14. Denied. Defendants did not offer Plaintiff Call Forwarding Service. Furthermore, Call Forwarding does not tell a calling party the customer's new telephone number. 15. Denied. Defendants have no record of a communication on May 7, 1995. Pl.aintiff never requested Call Forwarding Service. - 2 - 16. Denied. Service. 17. It is admitted that Plaintiff's old phone numbers were disconnected on May 12, 1995. It is denied that said disconnection was 3 days earlier than agreed upon. 18. Admitted. 19. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 20. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 21. Denied. Thomas W. Ferguson called Defendant Bell Atlantic-Pennsylvania, Inc. on May 15, 1995 and requested that call referral be instituted for 796-9523 and 976-9453. Said Defendant agreed to set up call referral for these two numbers. 22. Denied. Defendants never assured Plaintiff that Call Forwarding service had been instituted. 23. Defendants are without knowledge or information sufficient to form a belief as to what Plaintiff realized. It is denied that Call Forwarding service was ever implemented. At that point in time, callers dialing 796-9523 were told that said line had been disconnected. Callers dialing 976-9453 were referred to one of Plaintiff'S new numbers, 975-8729. Plaintiff never requested Call Forwarding - 3 - 34. Denied. The disconnect message was played only when callers dialed 796-9533. Callers dialing 976-94~~stil1 received a message referring them to 975-8729, one of Plaintiff's new numbers. On June 5, 1995, Defendant Bell Atlantic-Pennaylvania, Inc. provided Plaintiff with call rsferral for 796-9523, referring said callers to 975-8729. Said Defendant also provided Plaintiff with call referral for 976-9453, referring said callers to 975- 8730, another of Plaintiff's new numbers. 25. Denied. Plaintiff never requested, and Defendants never promised to provide Plaintiff with Call Forwarding Service. However, on June 5, 1995, Defendant Bell Atlantic-Pennsylvania, Inc. did advise Thomas W. Ferguson that a disconnect message had been placed on 796-9523. 26. Denied. Plaintiff never requested Call Forwarding Service. It is admitted that there was no call referral service operating for 796-9523 during the period May 12, 1995 and June 5, 1995. 27. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 28. After reasonable investigation, Defendants are without knowledge or information suff icient to form a belief as to the truth of this averment. - 4 - 29. After reasonable investigation, Defendants are without knowledge or information sufticient to form a belief as to the truth of this averment. 30. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 31. Denied. Plaintiff's damages, if any, do not exceed $25,000.00. comrr I 32. The responses to Paragraphs 1 through 31 are incorporated herein by reference. 33. It is denied that Defendants offered to provide Plaintiff with Call Forwarding Service. Furthermore, the allegation contained in this paragraph constitutes a conclusion of law to which no responRe is r6quired. 34. The allegation contained in this paragraph constitutes a conclusion of law to which no response is required. 35. Denied for the reasons set forth in Paragraph 33 herein. 36. The allegation contained in this paragraph constitutes a conclusion of law to which no response is required. 37. The allegation contained in this paragraph constitutes a conclusion of law to which no response is required. WHEREFORE, Defendants pray that Plaintiff's Complaint against them be dismissed. - 5 - COUNT II 38-45. This Count was dismissed by Order of Court dated December 23, 1996, and therefore no response is required. COUNT III 46.-52. This Count was dismissed by Order of Court dated December 23, 1996, and therefore no response is required. COUNT IV 53. The responses to Paragraphs 1 through 52 are incorporated herein by reference. 54. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of this averment. 55. After reasonable investigation, Defendants are without knowledge or information oufficient to form a belief as to the truth of this averment. 56. Denied. Defendants never agreed to place Call Forwarding Service on Plaintiff's phone lines. 57. Denied. Defendants had no reason to believe that Plaintiff was operating a business using residential lines. 58. The allegation contained in this paragraph constitutes a conclusion of law to which no response is required. 59. The allegation contained in this paragraph constitutes a conclusion of law to which no response is required. - 6 - ....A ' WHEREFORE, Defendants pray that Plaintiff's Complaint against them be dismissed. COtnIT V 60.-65. This Count was dismissed by Order of Court dated December 23, 1996, and therefore no response is required. COtnIT VI 66. The responses to Paragraphs 1 through 65 are incorporated herein by reference. 67. Denied. Defendants never offered to provide Plaintiff with Call Forwarding Service. 68. Denied for the reason set forth in Paragraph 67. 69. Denied for the reason set forth in Paragraph 67. 70. Denied for the reason set forth in Paragraph 67. 71. The allegation contained in this paragraph constitutes a conclusion of law to which no response is required. WHEREFORE, Defendants pray that Plaintiff's Complaint against them be dismissed. 72. Defendant-Counterclaimant Bell Atlantic-Pa., Inc. is a Pennsylvania corporation with registered offices at 1717 Arch Street, 19 S, Philadelphia, Pennsylvania. - 7 - 73. Plaintiff, Allyson J. Ferguson, t/a T. Ferguson Enterprises, is an adult individual residing at 511 Grant Drive, cam~ Hill, Cumberland County, Pennsylvania. 74. Prior to February 1995, Plaintiff requested, and Defendant-Counterclaimant agreed to provide Plaintiff, a residential phone line at her residence at 129 Stanford Court, Mechanicsburg, Cumberland County, Pennsylvania. 75. On February 9, 1995, Plaintiff'S husband, Thomas W. Ferguson, acting as her agent, contacted Defendant-Counterclaimant and requested an additional residential phone line for Plaintiff at 129 Stanford Court, Mechanicsburg, Cumberland County, Pennsylvania. 76. Prior to June 5, 1995, neither Plaintiff nor her husband Thomas w. Ferguson, ever advised Defendant-Counterclaimant that the lines in question were being used for business purposes. 77. Plaintiff was being charged the rate of $12.28 per month per line based on her request for residential service. 78. Had Plaintiff requested a business line, she would have been charged $29.07 per month for her line use, and charged an additional $35.00 per line for line connection. 79. Plaintiff is therefore indebted to Defendant- Counterclaimant in an amount equal to the difference between the business rate and the residential rate, i.e. $16.79 per month per line for as many months as Plaintiff has been improperly using her residential lines f~r business purposes, plus $70.00 for additional line connection fees. - 8 - . If 0 OTTO 80. Plaintiff has failed to state a cause of action against ) Defendants. 81. Plaintiff has failed to mitigate her damages. 82. Plaintiff'. cause of action is barred, in whole or in part, by the applicable statute of limitations. 83. Plaintiff's damages, if any, are limited by the provisions of Section 15 A. of the General RegUlations filed before the Pennsylvania Public Utility Commission, Pa. P.U.C. No.1, Section 1. 84. Plaintiff, individually through her agents, or represented to Defendant Bell Atlantic-Pa., Inc. that she was using her telephone lines for residential, non-business purposes. 85. Plaintiff's damages, if any, should be reduced in accordance with the Comparative Date: ;:JA1I~"'/l'l <I I IC\ q 1 . '. es . H mes, 222 Penn Street Huntingdon, PA 16652 (814) 643-1740 ATTORNEY FOR DEFENDANTS - 9 - I;, I VERI FICA TION I, Joseph P. Grier, Claims Reprssentative for Bell Atlantic-Pennsylvania, Inc" hereby verify that the statsments contained in the foregoing Answer, with New Matter and Counterclaim, are true and correct to the best of my knowledge, information and belief. I understand that any statsments contained therein are subject to the provisions of 18 Pa.C.S. ~4904 rslating to false statements made to authoritiss. " Dated: I II1.,tl/"'~J 7 ,n., 7. jq'l 7 , ,JAMIES IE. HIMES "'TTOII"'.V-.T'~W "U"TIN.OO"'. "". 1....-0...7 - I -' I CERTIFICATE OF SERVICE I, J.... I. Hime., Esquire, hereby certify that I served a true and corr.ct cOPI of the foregoing Defendants' Answer with New Matter to Plaintiff's Complaint upon the following as addressed below by depositing the same in the United states Mail, first cla.., poetage ~ day of prepaid, at Huntingdon, .--:'" ....JJl"W/Ht '1 ' 1997. Pennsylvania on this steven R. Williams, Esquire WIX, WENGER , WEIDNER 508 North 2nd street P. O. Box 845 Harr iSburg, PA ~ / / By: ~/~{ HIMES, ESQ 2 Penn street Huntingdon, PA 16652 (e14) 643-1740 ATTORNEY FOR DEFENDANTS , L f , .. I . ) " !i n ",:> Cl ( -' .'ll , "U f~. .~ ~. ;~ P' ;.:t: ' l~: ...... ;\23 if, , t..,) " , .c ',0 rO', oD "'j ...' . . 'T '1;..;,- ~r) :,;;:( ;,,;' ' ('n ;;: l~' ~~;! - . .J ...~ ,-.> :..; I- I; . . f . !.i " . l. " ,J....M.. E. HIMES ATTO..N..",.AT.'-AW ""'N1'INOooN, "A .....,01147 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION. LAW ALL YSON J. FERGUSON, tla T. FERGUSON ENTERPRISES. Plaintiff NO: 96-859 vs. BELL ATLANTIC CORPORATION, BELL ATLANTlC.PENNSYLVANIA. JURY TRIAL DEMANDED INC., BELL ATLANTIC OF PA, and BELL TELEPHONE OF PA, Defendants PRAECIPE FOR DISCONTINUANCE TO: LAWRr:NCE E. WELKER, PROTHONOTARY Kindly mark the above-captioned matter discontinued, compromised, terminated and settled as to all Plaintiffs' claim !l tev R. Williams, Esquire Attorney for Plaintiffs Date: .41/17 t:-;, 0,0 n c -.j ., :?',~ ",. -J --0,': " :i.TI 0:1 ~~ :;u ""'~ ., ,m t;l: ~. ,0 :C'l r;~ t. ::" ,33 ~:";., -- -n :l:'"!;: !.:? ~ I.' ~ -,1 :n ". .~1 - (X) ~ C:,l - ~}fr:!~.~\~ -.. '--',....,','---..-..-,--.-- . " .10 . .. E. Hi... ='22 'enn St. O. iox No.3..c1, Hvntitlgdo,.~ PA 16U~9 . .,.:":;".'i.f~~~~~1~:tW~ !i .. ..,.:..., ,,~:-;2t,~~:~~~~~\,~\ '~"""Jf'j.. ._~. . :.O:;';~?~l;;; I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION, LAW ALL YSON J. FERGUSON, tla T. FERGUSON ENTERPRISES, Plaintiff NO: 96-859 vs. BELL ATLANTIC CORPORATION, BELL ATLANTIC-PENNSYLVANIA, INC., BELL ATLANTIC OF PA, and BELL TELEPHONE OF PA, Defendants JURY TRIAL DEMANDED PRAECIPE FOR DISCONTINUANCE TO: LAWRENCE E. WELKER, PROTHONOTARY Kindly mark the above-captioned matter discontinued, compromised. terminated and settled as to all Defendants' c . s againt all Plaintiffs. ./ ames E. Himes, Esquire Attorney for Defendants Date: Aplfd II dt?' 1 .JAM.. E. HIM.. ...TTOftN.."Al"......W l'lu"'TtNOOON. "... '....,0.47 1 i. /': II l;, II' } r- ..0 ,., r -.I .;'1 ~ ..J ." 1 "\t ~l r:r -.(" Ie::' 11.1 ri- t , ;:;J "'" )6 P '"T) . "1 :':! <I:';; (', -!",,: '" ~" ' Jrfl ,j.~ , ::! :~I ':f\ =;:1 ..r <Xl ......... 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