Loading...
HomeMy WebLinkAbout2004-2453 Civil THOMAS KINNEY, SR., and IN THE COURT OF COMMON PLEAS OF P AOLA KINNEY d/b/a KINNEY: CUMBERLAND COUNTY, PENNSYL VANIA ASSOCIATES, INTEGRITY BANK, and WILLIAM WRA Y, JR., KAY GRAY WRA Y, and NANAE. WRAYDESTEFANO d/b/a DWM PROPERTIES, Plaintiffs CIVIL ACTION - LAW v. LLOYD'S OF LONDON, BELL & CLEMENTS LIMITED, W.N. TUSCANO AGENCY, INC., and: COMMUNITY BANKS INSURANCE SERVICES, LLC, Defendants NO. 04-2453 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT and MOTION OF DEFENDANT COMMUNITY BANKS FOR SUMMARY JUDGMENT BEFORE OLER and EBERT, JJ. OPINION and ORDER OF COURT OLER, 1., August 4,2006. This case arises out of an insurance policy obtained for a commercial property located at 320-328 Market Street, Lemoyne, Cumberland County, Pennsylvania, by Thomas and Paola Kinney (Plaintiffs) through their insurance broker, Community Banks, from Lloyd's of London, an insurance market. An arson fire occurred at the property on January 20, 2004; upon contacting their broker, Plaintiffs learned that the subject policy had purportedly been cancelled. Thereafter, Plaintiffs filed this action asserting, inter alia, breach of contract and statutory bad faith claims against Defendant Lloyd's of London and a negligence claim against Defendant Community Banks. For disposition at this time are (1) Plaintiffs' Motion for Leave To File a Third Amended Complaint and (2) a Motion for Summary Judgment of Defendant Community Banks To Dismiss All Claims. Oral argument was held on these motions on July 12, 2006. For the reasons stated in this opinion, Plaintiffs' Motion for Leave To File a Third Amended Complaint will be granted, while the Motion for Summary Judgment of Defendant Community Banks To Dismiss All Claims will be denied. STATEMENT OF FACTS The allegations contained in Plaintiffs' Second Amended Complaint may be summarized as follows: 1 Plaintiffs Thomas Kinney, Sr., and Paola Kinney, d/b/a Kinney Associates, are a married couple currently residing in Mechanicsburg, Cumberland County, Pennsylvania, and owning a commercial property located at 320-328 Market Street, Lemoyne, Cumberland County, Pennsylvania (the Property)? Plaintiff Integrity Bank is a financial institution holding a mortgage on the Property and having its principal place of business at 3345 Market Street, Camp Hill, Cumberland County, Pennsylvania. 3 Plaintiffs William Ray, Kay Gray Wray, and Nana E. Wray Destefano, d/b/a DWM Properties, are individuals residing in the Commonwealth of Pennsylvania, and collectively holding a purchase money mortgage on the Property.4 Defendant Lloyd's of London (Lloyd's) is an "insurance market" and "citizen" of the United Kingdom, and is the entity which issued the insurance policy which is the subject of this case.5 Defendant Bell & Clements Limited (Bell & Clements) is a "citizen" of the United Kingdom which serves as an agent for Lloyd's; in this capacity, 1 In summarizing the allegations of Plaintiffs' Second Amended Complaint, the court is in no way endorsing their accuracy. 2 Second Amended Complaint, filed December 9, 2005, ~ 1 (hereinafter Second Amended Complaint at ~. 3 Second Amended Complaint at ~~ 1-2. 4 Second Amended Complaint at ~ 3. 5 Second Amended Complaint at ~~ 4, 14. 2 Bell & Clements negotiates the terms of lllsurance policies sold by Lloyd's in Pennsylvania. 6 Defendant W.N. Tuscano Agency (Tuscano) is a Pennsylvania corporation with an office at 950 Highland Avenue, Greensburg, Westmoreland County, Pennsylvania, and also operates as Lloyd's agent; Tuscano provided Community Banks with access to the insurance policy procured for Plaintiffs in the present case.7 Defendant Community Banks Insurance LLC (Community Banks) is a Pennsylvania corporation located at 150 Market Square, Millersburg, Dauphin County, Pennsylvania, and served as an insurance broker to obtain and service the subject policy for Plaintiffs under the name of Hutter Agency, a licensed retail broker which Community Banks acquired and operated. 8 Plaintiffs applied with Community Banks for a policy of insurance (the Policy) to cover the Property in the amount of $922,000 for fire and casualty losses and $50,000 for business interruption losses.9 Coverage was bound on the Policy through Lloyd's, effective August 13, 2003, through August 13, 2004.10 Prior to binding the coverage, Tuscano caused an inspection of the property to be made and issued a "Loss Control Recommendations and Material Representation Form" to Plaintiffs, without making coverage contingent upon compliance with these recommendations. 1 1 Certain Plaintiffs signed this form on November 4, 2003, and requested additional time to make changes in conformity with the recommendations; however, more or less contemporaneously with 6 Second Amended Complaint at ~ 6. 7 Id. at ~ 7, 13. 8Id. at ~~ 8-13. 9 Id. at ~ 11. 10 Id. at ~ 13. 11 Id. at ~~ 17-18. 3 the submission of their request for additional time, Tuscano purported to cancel the P I. 12 o ley. On January 20, 2004, an arson fire occurred at the Property.13 Shortly after the fire, Plaintiffs contacted their agent at Community Banks and discovered that the Policy had been allegedly cancelled. 14 Plaintiffs obtained an estimate of over $1.2 million in damages caused by the fire, exceeding the Policy's coverage of $972,000.15 Defendant Lloyd's has refused to pay any part of Plaintiffs' claims. Plaintiffs filed a Complaint on May 28, 2004, asserting a negligence claim against Community Banks and breach of contract and statutory bad faith claims against Lloyd's, Bell & Clements, and Tuscano.16 On August 30, 2004, Lloyd's filed a Motion for Leave To File an Amended New Matter, in order to assert a cross-claim against Community Banks, claiming that Community Banks was alone liable to Plaintiffs or Lloyd's, or was jointly and severally liable to Plaintiffs, or was liable to Lloyd's for contribution or inde1llllity; in this amended new matter, Lloyd's for the first time raised the issue of a potential coinsurance penalty.17 (Coinsurance clauses require an insured individual to maintain insurance on his or her property in an amount equal to or greater than a certain specified percentage of the property's value; upon failure to do so, the insured is considered a coinsurer and must bear a proportionate percentage of the IOSS.18) 12Id. at ~ 19-20. 13 Id. at ~ 21. 14Id. at ~ 22. 15Id. at ~ 28. 16 Plaintiffs' Complaint, filed May 28, 2004, ~~ 47-134. 17 Motion of Defendant Lloyd's of London for Leave To File Amended New Matter and Cross Claim against Community Banks, filed August 30, 2004. 18 See Hoenigman v. Continental Ins. Co., 85 Pa. Super. 24 (1924). 4 On October 20, 2005, Plaintiffs filed Plaintiffs' Motion for Leave To File a Second Amended Complaint.19 This motion was granted on December 1, 2005, and the Second Amended Complaint was filed on December 9, 2005?O Plaintiffs' Second Amended Complaint contained the following negligence allegations against Community Banks: 93. [Community Banks] breached its duties to Kinney, Integrity, and DWM by the following: a. Failing to timely notify Kinney, Integrity, and DWM of the cancellation of the Policy; b. Failing to timely forward to Kinney, Integrity, and DWM notifications from Lloyd's, Bell & Clements, and Tuscano regarding the cancellation of the property; c. Failing to timely forward to Kinney, Integrity, and DWM notifications from Lloyd's, Bell & Clements, and Tuscano regarding repairs that needed to be made to the Property; d. Failing to timely forward to Kinney, Integrity, and DWM relevant correspondence from Lloyd's, Bell and Clements, and Tuscano; e. Failing to timely notify Lloyd's, Bell & Clements, and Tuscano of Kinney's request for additional time to implement loss control recommendations; f. Failing to give Integrity and DWM an opportunity to implement loss control recommendations; g. Failing to inform Kinney, Integrity, and DWM of alternative insurance coverage arrangements; and h. Failing to act in accordance with applicable Pennsylvania law governing the conduct of insurance brokers. 21 19 Plaintiffs' Motion for Leave To File a Second Amended Complaint, filed October 20,2005. 20 Second Amended Complaint. 21 Plaintiffs' Second Amended Complaint, at ~ 93 (emphasis added). 5 On January 19, 2006, Plaintiffs filed a Motion for Partial Summary Judgment seeking a court determination of Lloyd's liability under the insurance contract.22 Subsequently, Tuscano and Bell & Clements also filed motions for summary judgment, asserting that they were not liable as they were not parties to the insurance contract. 23 By an order, accompanied by an opinion, this court (Bayley, 1.) held that Lloyd's attempted cancellation of the Policy was not legally effective, and that the Policy had remained in effect at the time of the fire?4 Lloyd's continues, however, to contest the amount of damages; therefore, both the issue of damages on the Policy claim and Plaintiffs' claim for statutory bad faith against Lloyd's remain for tria1.25 This court (Bayley, 1.) likewise granted Tuscano and Bell & Clements motions for summary judgment, holding that these parties were not insurers and thus could not be sued for statutory bad faith, and, further, that they were not parties to the insurance contract and thus could not be sued for breach of contract. 26 Tuscano and Bell & Clements are therefore no longer parties to this action. On April 28, 2006, Community Banks filed a Motion for Summary Judgment of Defendant Community Banks To Dismiss All Claims, arguing that Plaintiffs' negligence claim against it can not succeed because either (1) it had no duty to Plaintiffs or (2) in view of this court's ruling that the Policy was improperly cancelled the alleged negligence of Community Banks can not be considered a proximate cause of Plaintiffs' harm.27 Community Banks also seeks to have Lloyd's cross-claim dismissed, arguing that Lloyd's can not support its claims of sole liability, contribution, or inde1llllity?8 22 Plaintiffs' Motion for Partial Summary Judgment, filed January 19,2006. 23 Motion for Summary Judgment of Defendant Bell & Clements Limited against Plaintiffs, filed February 24, 2006; Defendant W.N. Tuscano Agency, Inc.'s Motion for Summary Judgment against Plaintiffs, filed February 7, 2006. 24 Opinion and Order of Court, April 7, 2006, pgs. 11, 13. 25 Id. at 11. 26Id. at 12. 27 Motion for Summary Judgment of Defendant Community Banks To Dismiss All Claims, filed April 28, 2006, ~~ 12-15 (hereinafter Motion for Summary Judgment of Community Banks at~. 6 On June 20, 2006, Plaintiffs filed Plaintiffs' Motion for Leave To File a Third Amended Complaint, seeking to amend their prior complaint as a result of information obtained in discovery and this court's opinion of April 7, 2006, and also seeking to more specifically allege that Community Banks was negligent in not informing Plaintiffs of the valuation of the Property and the potential application of a coinsurance penalty?9 In particular, Plaintiffs seek to amend their negligence allegations against Community Banks as follows: 101. [Community Banks] breached its duties to the Kinneys, Integrity, and DWM by the following: a. Failing to timely notify Kinney, Integrity, and DWM of the cancellation of the Policy; b. Failing to timely forward to Kinney, Integrity, and DWM notifications from Lloyd's, Bell & Clements, and Tuscano regarding the cancellation of the property; c. Failing to timely forward to Kinney, Integrity, and DWM notifications from Lloyd's, Bell & Clements, and Tuscano regarding repairs that needed to be made to the Property; d. Failing to timely forward to Kinney, Integrity, and DWM relevant correspondence from Lloyd's, Bell and Clements, and Tuscano; e. Failing to timely notify Lloyd's, Bell & Clements, and Tuscano of Kinney's request for additional time to implement loss control recommendations; f. Failing to give Integrity and DWM an opportunity to implement loss control recommendations; g. Failing to inform Kinney, Integrity, and DWM of alternative insurance coverage arrangements; 28 Motion for Summary Judgment of Community Banks at ~ 8. 29 Plaintiffs' Motion for Leave To File a Third Amended Complaint, filed June 20, 2006, at ~ 8 (hereinafter Plaintiffs' Motion at~. 7 h. Failing to discuss with the Kinneys, Integrity, and DWM the valuation of the Property in the Policy; 1. Failing to inform the Kinneys, Integrity, and DWM of the impact of any coinsurance provision in the Policy; and J. Failing to act in accordance with applicable Pennsylvania law governing the conduct of insurance brokers.30 Plaintiffs argue that the proposed amendments should be freely granted as the proposed complaint would not add a new cause of action, but would merely clarify the negligence claims already asserted.31 Alternatively, Plaintiffs maintain that, assuming the statute of limitations applies to the proposed amendment, Plaintiffs are not barred from asserting such negligence claims by virtue of the so-called "discovery rule. ,,32 All remaining parties have submitted briefs on the Motion of Defendant Community Banks for Summary Judgment To Dismiss All Claims and Plaintiffs' Motion for Leave To File a Third Amended Complaint. These matters were argued before the above court en bane on July 12,2006. DISCUSSION Plaintiffs' Motion for Leave To File a Third Amended Complaint Statement of Law Amendment of complaints-in general. Pennsylvania Rule of Civil Procedure 1033 provides as follows: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. 30 Plaintiffs' Proposed Third Amended Complaint, filed June 2,2006, at ~ 101 (emphasis added). 31 Plaintiffs' Motion at ~ 7. 32 Plaintiffs' Motion at ~ 19. 8 This rule has "repeatedly been interpreted as reqUIrIng the liberal evaluation of amendment requests, in an effort to secure a determination of cases based upon the merits rather than based upon a mere technicality." Horowitz v. Universal Underwriters Ins. Co., 397 Pa. Super. 473, 479, 580 A.2d 395, 398 (1990). Trial courts have broad discretion III evaluating amendment petitions. Capobianchi v. BIC Corp., 446 Pa. Super. 130, 134, 666 A.2d 344, 346 (1995). However, amendments should not be granted if "unfair surprise or prejudice to the other party would result or the proposed amendment is against a positive rule of law." Viener v. Jacobs, 2003 P A Super. 324, ,-r 35, 834 A.2d 546, 560 (2003). "An amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant." Connor v. Allegheny General Hospital, 501 Pa. 306, 310, 461 A.2d 600, 602 (1983). Such an amendment would improperly prejudice the adverse party. Id In this context, to be deemed improper, prejudice must "be more than a mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of the amending party and correspondingly weaken the position of the adverse party." Capobianchi, 446 Pa. Super. at 134, 666 A.2d at 346. Clarification of complaints. "If [a] proposed amendment does not change the cause of action but merely amplifies or specifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run." Connor, 501 Pa. at 310, 461 A.2d at 602. Moreover, an amendment which adds new damages will be permitted after the statute of limitations has run so long as the newly introduced damages arise from the same circumstances and negligence as previously alleged. Sanchez v. City of Philadelphia, 302 Pa. Super. 184, 188, 448 A.2d 588, 590 (1982). Although the Pennsylvania Supreme Court has not established a general definition of what constitutes a cause of action for this purpose, "[ a] cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought." Reynolds v. Thomas Jefferson University Hosp., 450 Pa. Super. 327, 338, 676 A.2d 1205, 1210 (1996). A new negligence cause of action arises "if the amendment proposes a different 9 theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed." Id Duties of insurance brokers. Licensed insurance brokers are considered the agents of the insured, and owe a duty to their principals to exercise the same degree of skill and care that a reasonably prudent businessman in the brokerage field would exercise under like circumstances. AI's Cafe, Inc. v. Sanders Ins. Agency, 2003 P A Super. 110, ,-r 12, 820 A.2d 745, 750 (2003). This standard requires brokers to inform their principals of any consequences of actions related to insurance. Londo v. McLaughlin, 587 A.2d 744, 748 (Pa. Super. 1991). A principal acquires a cause of action against an insurance broker if the broker neglects to procure insurance, or does not follow instructions, or if the policy is void or materially defective through the agent's fault. The broker, in cases of default, is liable to the same extent as the insurers would have been liable had the insurance been properly effected. AI's Cafe, Inc., 2003 P A Super. at,-r 12, 820 A.2d at 750. Application of Law to Facts In the present case, the court is of the view that Plaintiffs' motion for leave to amend should be granted as the proposed amendments merely particularize language contained in Plaintiffs' Second Amended Complaint. In that complaint, although the majority of Plaintiffs' allegations concerned the cancellation of the Policy, Plaintiffs also alleged that Community Banks was negligent in "[flailing to act in accordance with applicable Pennsylvania laws governing the conduct of insurance brokers."33 This language is broad enough to encompass the more specific derelictions asserted in the proposed amended pleading-i.e., the failure to inform of the coinsurance provision and the failure to discuss the valuation of the Property-through which Community Banks allegedly failed to act in accordance with a broker's duty under Pennsylvania law. Community Banks urges this court to find that Plaintiffs' entire negligence claim hinged upon Community Banks' alleged failure to provide Plaintiffs with notice as to the 33 Plaintiffs' Second Amended Complaint at ~ 93. 10 Policy's attempted cancellation. 34 This court can not adopt this view; textually, there is no reason to hold that the allegations regarding cancellation modified or controlled any of the other assertions; the structure of Plaintiffs' Second Amended Complaint established discrete and independent allegations of negligence. 35 Although the allegation that Community Banks failed "to act in accordance with applicable Pennsylvania law governing the conduct of insurance brokers" is extremely broad, appellate authority suggests that Community Banks could have filed a preliminary objection in the form of a motion to strike this portion of the complaint or for a more specific pleading. 36 As Community Banks did not employ either option, it is subject to the rule that "[g]eneral allegations of a pleading, which are not objected to because of their generality, may have the effect of extending the available scope of a party's proof." Reynolds, 450 Pa. Super. at 336, 67 A.2d at 1209-10. Moreover, although Plaintiffs seek to include consequential damages in their Third Amended Complaint, the addition of these damages is permissible as it arises from the same negligence as that previously alleged: to wit, Community Banks' breach of its duty to act as a reasonably prudent professional insurance broker. 37 As Plaintiffs' proposed amendment merely amplifies and does not change the original cause of action, the amendment can not result in any unfair prejudice to 34 Opposition of Community Banks Insurance Services, LLC to Plaintiffs' Motion for Leave to File a Third Amended Complaint, filed July 29, 2006, ~ 90. 35 See Connor, 501 Pa. at 310, 461 A.2d at 602; Cf Reynolds, 450 Pa. Super. at 343, 676 A.2d at 1213 (holding that a "catch-all" phrase "failure to act properly under the circumstances" was not a separate negligence allegation but a clause in a sentence alleging that an intubation had been improperly performed, and, thus, could not be amplified by allegations that a different doctor acted negligently in performing a related operation). Had the Plaintiffs structured their complaint in a form such as "Community Banks breached its duties to Kinney, Integrity, and DWM in reference to the cancellation of the policy through:" and then listed separate subsections, it is likely that the coinsurance and valuation issues would indeed be considered a new cause of action. Clearly, however, this is not how the original amended complaint was structured. 36 See Connor, 501 Pa. at 311 n.3, 461 A.2d at 603 n.3. 11 Community Banks.38 Because this court has concluded that the proposed amendment does not add a new cause of action, it is unnecessary to address the statute of limitations issue raised by Community Banks. For the foregoing reasons, Plaintiffs' Motion for Leave To File a Third Amended Complaint will be granted. Defendant Community Banks' Motion for Summary Judgment Statement of Law Summary judgment. In order to succeed on a motion for summary judgment, the moving party must meet an exacting standard. Pursuant to the Pennsylvania Rules of Civil Procedure: After the relevant pleadings are closed, but within such time as not to umeasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R. C. P. 1035.2. In a summary judgment motion, as a general rule, the moving party has the burden of proving to the trial court that there exist no genuine issues as to the material facts of a given case. Laventhal & Horwath v. Dependable Associates, Inc., 396 Pa. Super. 553, 558, 579 A.2d 388, 390 (1990). Summary judgment is appropriate only when a case is free and clear from doubt. Kafando v. Erie Ceramic Arts Co., 2000 P A Super. 377, ,-r 4, 764 A.2d 59, 61 (2000). 37 See Sanchez, 302 Pa. Super. at 188, 448 A.2d at 590. This opinion and order are without prejudice to further argument in regard to the issue of the viability of a plea of consequential damages against an insurance broker. At this point, any extended judicial analysis of this issue is premature. 38 See Id. 12 In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. Laventhal & Horwath, 396 Pa. Super. at 558, 579 A.2d at 390. Application of Law to Facts Generally, a summary judgment motion should be granted only when a case is free from doubt. 39 Given the complexity of this case coupled with this court's conclusion that Plaintiffs should be permitted to amend their complaint to particularize the negligence allegation previously averred against Community Banks, a motion for summary judgment to dismiss all claims is, at this stage, premature.40 Accordingly, the Motion for Summary Judgment of Defendant Community Banks To Dismiss All Claims will be dismissed. ORDER OF COURT AND NOW, this 4th day of August, 2006, after a careful examination of the record and the briefs submitted by counsel, following oral argument held on July 12, 2006, and for the reasons stated in the accompanying opinion, it is hereby ordered and directed as follows: 1) Plaintiffs' Petition for Leave To File a Third Amended Complaint is granted; and 2) The Motion for Summary Judgment of Defendant Community Banks To Dismiss All Claims is denied. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 39 Kafando, 2000 PA Super. at ~ 4, 764 A.2d at 61. 40 See Connor, 501 Pa. at 311,461 A.2d at 603 (denying a summary judgment motion due to the Court's decision to allow Plaintiffs to amend their complaint to amplify certain negligence allegations). 13 Michael R. Kelley, Esquire Charles T. Young, Jr., Esquire 100 Pine Street Harrisburg, P A 17108 Attorneys for Plaintiffs Charles E. Haddick, Jr., Esquire Jason P. McNicholl, Esquire 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 Attorneys for Community Banks John M. Clark, Esquire William Dirk Pastorick, Esquire 457 Haddonfield Road, Suite 710 Cherry Hill, NJ 08002 Attorneys for Lloyd's of London John J. Rohn, Esquire Patricia M. Hamill, Esquire 1515 Market Street 16th Floor Philadelphia, P A 19102 Attorneys for Bell & Clements Limited Timothy 1. McMahon, Esquire 4200 Crums Mill Road Suite B Harrisburg, P A 17112 Attorney for Tuscano Agency 14 15 THOMAS KINNEY, SR., and IN THE COURT OF COMMON PLEAS OF P AOLA KINNEY d/b/a KINNEY: CUMBERLAND COUNTY, PENNSYL VANIA ASSOCIATES, INTEGRITY BANK, and WILLIAM WRA Y, JR., KAY GRAY WRA Y, and NANAE. WRAYDESTEFANO d/b/a DWM PROPERTIES, Plaintiffs CIVIL ACTION - LAW v. LLOYD'S OF LONDON, BELL & CLEMENTS LIMITED, W.N. TUSCANO AGENCY, INC., and: COMMUNITY BANKS INSURANCE SERVICES, LLC, Defendants : NO. 04-2453 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT and MOTION OF DEFENDANT COMMUNITY BANKS FOR SUMMARY JUDGMENT BEFORE OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 4th day of August, 2006, after a careful examination of the record and the briefs submitted by counsel, following oral argument held on July 12, 2006, and for the reasons stated in the accompanying opinion, it is hereby ordered and directed as follows: 1) Plaintiffs' Petition for Leave To File a Third Amended Complaint is granted; and 2) The Motion for Summary Judgment of Defendant Community Banks To Dismiss All Claims is denied. 17 Michael R. Kelley, Esquire Charles T. Young, Jr., Esquire 100 Pine Street Harrisburg, P A 17108 Attorneys for Plaintiffs Charles E. Haddick, Jr., Esquire Jason P. McNicholl, Esquire 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 Attorneys for Community Banks John M. Clark, Esquire William Dirk Pastorick, Esquire 457 Haddonfield Road, Suite 710 Cherry Hill, NJ 08002 Attorneys for Lloyd's of London John J. Rohn, Esquire Patricia M. Hamill, Esquire 1515 Market Street 16th Floor Philadelphia, P A 19102 Attorneys for Bell & Clements Limited Timothy 1. McMahon, Esquire 4200 Crums Mill Road Suite B Harrisburg, P A 17112 Attorney for Tuscano Agency BY THE COURT, 1. Wesley Oler, Jr., 1.