The URL can be used to link to this page

Home My WebLink About12-2147MJ ENTERPRISES OF PENNSYLVANIA, LLC, Plaintiff V. THOMAS PANELS, INC., PAUL MARTIN and ANDY MARTIN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 12-2147 CIVIL TERM IN RE: MOTION FOR ISSUANCE OF EX-PARTE WRIT OF SEIZURE ORDER OF COURT AND NOW, this 9`h day of April, 2012, upon consideration of Plaintiffs Motion for Issuance of an Ex-Parte Writ of Seizure, and a hearing being required in this matter pursuant to Pennsylvania Rule of Criminal Procedure 1075. 1, the hearing on this motion is scheduled for Friday, April 13, 2012, at 11:00 a.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. PLAINTIFF IS hereby ordered to provide notice of the hearing to the Defendant(s) V and any other person found in possession of the property of the place, date and time of hearing as provided in Pennsylvania Rule of Civil Procedure 1353. Service of the notice shall be made not less than twenty-four hours before the hearing. The motion, with a copy of the complaint attached thereto, and notice of the hearing shall be made by the Plaintiff in the manner provided by Pennsylvania Rule of Civil Procedure 402(a) for the service of original process, or, if that is not possible, then by any other means reasogably calculated to give notice. The return of service shall be governed by PennsyjV&nii=Ru1 ,..__ PICO of Civil Procedure 405. err, '' BY THE COURT,' Christyle . Peck, J. ?VIJ Enterprises of Pennsylvania, LLC 31 N. Corporation Street Newville, PA 17241 Plaintiff, pro Se Thomas Panels, Inc. Paul Martin Andy Martin 696 McClure Road Youngstown, OH 44512 Defendant(s) pro Se :arc r: `Y . n, ' I f, e;R 13 A';11 "' 1, V* A IN THE COURT OF COMMON PLEAS CUMBERLAND, COUNTY, PENNSYLVANIA MJ ENTERPRISES OF ) CASE NO. 12-2147 CIVIL PENNSYLVANIA, LLC ) Plaintiff ) VS. ) } THOMAS PANELS, INC., et al. ) MOTION TO DISMISS COMPLAINT AND MOTION FOR EX PARTE WRIT OF Defendants ) SEIZURE FOR LACK OF JURISDICTION No come the Defendants, through counsel, and move this honorable Court for an Order dismissing' he Complaint for Replevin (hereinafter "Replevin"), and also dismissing the Motion for Issuance of Ex-parte Writ of Seizure (hereinafter "Motion for Writ"), for lack of jurisdiction over the subject matter of the Complaint and Motion and over the persons who are Defendants. The reason for this Motion is readily apparent from the face of the aforesaid pleadings: 1. a prayer of the Motion for Writ states clearly that the subject property is located in Youngstown, Ohio, which is outside the Commonwealth of Pennsylvania and of this Court's jurisdiction relative to the reach of an extraordinary writ of replevin; 2. The Civil Cover Sheet and the Certificate of Service to the Complaint show that the Defendants reside in Youngstown, Ohio, outside the jurisdiction of this Court 'required for the issuance of a writ of replevin; and 3. urther, by Plaintiff's own admission in the third unnumbered paragraph of the third page of the Complaint, Defendant Thomas Panels, Inc., was granted an extension for payment through April 10, 2012, of which Defendant had wired 5300.00 to Plaintiff and had the balance ready to be over-nighted to Plaintiff (attached as Exhibit "A") when Defendants received notice these proceedings were commenced. WHEREFORE, DEFENDANTS RESPECTFULLY REQUEST THE COURT TO DISMISS THE COMPLAINT, AND ALSO TO DISMISS THE MOTION FOR WRIT, FOR LACK OF SUBJECT MATTER OR PERSONAL JURISDICTION, AND ALSO TO QUASH LEGAL P40CESS RELATIVE TO THE SERVICE OF SAME. Robert F. McNamara (PA Bar #72593) McNAMARA, DEMCZYK CO., L.P.A. 12370 Cleveland Avenue, N.W. P.O. Box 867 Uniontown, OH 44685 (330) 699-6703 fax (330) 6994803 B P. Sha r (PA Bar # 309180 ) BARIC SCHERER L L C 19 W. South St. Carlisle, PA 17013 (717) 249-6873 Attorneys for Defendants PROOF OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was sent by regular U.S. mail, postage prepaid, to: Maura A. Jenkins MJ ENTERPRISES OF PENNSYLVANIA, LLC 31 N. Corporation Street Newville, PA 17241 this Ld of April, 2012. Robert F. McNamara (PA Bar #72593) F THOMAS PANELS Inc. 696 McCLURG ROAD YOUNGSTOWN OH. 44512 PHONE 330-758-2384 FAX 330-758-2381 April 9, 201 M.J. Enterpri es 44 Brandt La e Newville, PA 17339 ATTN.: Ma Jenkins RE: Brake ana Shear Dear Maura, In accordance with our agreement made on or about March 30, 2012 regarding the April payment on the brake and she attached is our check #3551 in the amount of $1,533.33. The check is less the wire transfer I sent you last week in the amount of $300.00 (as I committed on April 4, 2012). As I was preparing to send this check and letter for next delivery I received notice that you have initiated legal action againstlus Vin this matter. After consulting with our legal counsel, we are supplying both this letter as well as the heck to our attorney who will bring it with him to the hearing on Friday. I was and still lam hopeful that we can settle this matter amongst ourselves without the legal system being involve . This however is in your hands at this time. Please advise if you wish to drop the litigation and ntinue as per our agreement. Yours Paul Martin EXHIBIT "A" 41 .7 3551 THOMAS PANELS, INC. 696 Fri Clurg Rd. Youngsto: . Ohio -14512 PAY D;?TE T"r ?3 rr,, ??,,(( /n? TO ORDER t ^ ?,IrIE _V_'S?J n Y)Fe-0- OLLARS ??i.7'fly L FOR ?`?? } lLtt n`DD35510 i:DL, 1 20930r'i: 2161138Eu' MJ ENTERPRISES OF PENNSYLVANIA, LLC, Plaintiffs V. THOMAS PANELS, INC., PAUL MARTIN and ANDY MARTIN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 12-2147 CIVIL TERM IN RE: MOTION TO DISMISS COMPLAINT AND MOTION FOR EX PARTE WRIT OF SEIZURE FOR LACK OF JURISDICTION ORDER OF COURT AND NOW, this 13th day of April, 2012, after hearing argument on the motion for issuance of an ex parte writ of seizure and upon further consideration of Defendant's motion to dismiss the complaint for lack of subject matter jurisdiction, this Court does find it lacks subject matter jurisdiction over the property at issue, which is located in Ohio, and hereby dismisses the motion for ex parte writ of seizure. This decision is based in part on Whitmer v. Whitmer, 365 A.2d 1316 (Pa. Super. 1976) and General Electric Capital Corporation v. East Coast Yacht Sales Inc., 757 F.Supp.19 (E.D.Pa. 1991). As to the defense motion to dismiss the complaint in replevin, the matter is hereby taken under advisement. The Defendant is ordered to file a memorandum of law in support of its motion to dismiss the complaint in replevin by Friday, April 20, 2012. The Plaintiff is then given 7 days to respond to the Defendant's memorandum of law. c? ?, r• C` C3 E By the Court, MW fn z ?r Nil ?0 ` 'rtr W C7 , k, C i L P J C r st ee . . ec I ' 3> ? > D ?r-: '^? co ;M `04„ f Maura A. Jenkins, Esquire MJ Enterprises of PA, LLC 31 N. Corporation Street Newville, PA 17241 Plaintiff pro Se V Robert F. McNamara, Esquire McNamara, Demczyk Co., L.P.A. 12370 Cleveland Avenue, N.W. P.O. Box 867 Uniontown, OH 44685 and J Bret P. Shaffer, Esquire Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 For the Defendants pcb Q)p',ES iota, 1ec( ?? //?: MJ ENTERPRISES OF IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW THOMAS PANELS, INC., PAUL MARTIN and ANDY MARTIN, Defendants NO. 12-2147 CIVIL TERM IN RE: MOTION TO DISMISS THE COMPLAINT IN REPLEVIN ORDER OF COURT AND NOW, this 9 h day of May, 2012, upon consideration of the motion to dismiss the complaint in replevin and the Defendant's memorandum of law in support thereof, and the Plaintiff having failed to file a memorandum of law in response thereto, and after having heard argument on the matter from both Plaintiff and Defendant on April 13, 2012, the motion to dismiss the complaint is hereby granted. THIS COURT finds that the complaint in replevin is an in rem action and that the property subject to the action is located in Ohio. As such, the Court lacks subject matter jurisdiction over the property. Any complaint in replevin filed in this matter must be brought in the state where the property is located. BY THE COURT, Christylee Ceck, J. c r?rr W m z? xe. /Maura A. Jenkins MJ Enterprises of Pennsylvania, LLC 31 N. Corporation Street Newville, PA 17241 Plaintiff, pro Se V'Robert F. McNamara, Esq. McNamara, Demczyk Co., L.P.A. 12370 Cleveland Avenue, N.W. P.O. Box 867 Uniontown, OH 44685 and z Bret P. Shaffer, Esq. Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Attorneys for Defendants :rc -5/9111;z AW U