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HomeMy WebLinkAbout94-03596 '. ) j 1 " ,I.' ", , ' i';. " i I i I I I \ \\ d~ ," 'F; , ." .. ,. , ,I I I I I I i I . , , , '. ( ~ po " .. I, J ". ., ,:1 , .,;. H "1'. II' ,. II " 'il. ~. 0- l.(') r<) ',,,~ " i(t " , , '1 . I. ,,}) ~ :1 ,',' 'd ,.,I. ",'\< ii,'J ,\.1, . VERIFICATION I, Ron Turo, Elqulre, represent the Plalntll1i herein. pre..,. the within Answer to PreUmlnary Objectlona and have done 10 lifter conaullatlon with ~ cUentll I undentand that ralae ltatementll herein made III'e IUbject to the penalt\H of' 18 Pa. C.S.A. Section" relatlna to URlworn falliflcation to authorltletl. 9j~)/ !it Ron TUro, Eaqulre Date " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW vs. I No. . , I . , I . . . . . , . . 94-3596 civil Term JOSEPH HANLON and ADELE HANLON, Plaintiffs ESTATE OF JAMES HANLON, and JIM HANLON TRACTOR COMPANY, Defendant NOTIel! TO PLIlAD You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a Judgment may be entered against you. Respectfully submitted, CURRAN LAW OFFICES DATED I if ;;.}9Y , { By: JndJ ;/. d 'R.L Michael A. O'Pake, Esquire 101 N. Centre Street Fifth Floor Pottsville, PA 17901 Phone: (717) 622-6880 Atty. I.D. No.: 53244 5, An action may not be brought against the "estate of" an individual and the complaint is legally insufficient as again.t the e.tate of James Hanlon. WHEREFORE, the Defendants respectfully requests that the Complaint against the Estate of James Hanlon be dismissed with prejudice. B. The plaintiff. fail to identifY tbe tYDe of budne.. entity of the Defendant. Ji. Hanlon Traator CO.Dany, 6. Plaintiffs allege that Defendant, Jim Hanlon Tractor company, is a business, previously owned and operated by James Hanlon, however, Plaintiffs fail to identify the type of business entity of the Defendant. 7. Different rules regarding jurisdiction, venue and service of process apply to different entities. 8. Defendants can not adequately defend this action without the proper identification of the type of business entity of the named Defendant and the Complaint is t.herefore legally insuff icient. WHEREFORE, the Defendants respectfully request that the Complaint against the Jim Hanlon Tractor Company be dismissed with prejudice. 2 II. PRELIMINARY OBJECTION IN THE NATURE OF IMPROPER VENQE PURSUANT TO RULE 1028Ca1Cll. Pa.R.C.P. a. Tb. cause of action in tbe instant .atter aros. in ScbuYlkill County and tb. alleaed transaotion or occurrence out of wbicb tb. oaus. of aotion aros. took Dlao. in 8cbuYlkill county. 9. The plaintiffs allege that venue is proper in Cumberland County due to the fact that one of the Defendants wrote a check to James Hanlon while in Cumberland county. 10. The Plaintiffs also allege that the check was cashed and deposited in the account of Jim Hanlon Tractor Company. 11. The check was cashed and deposited in an account in Schuylkill County, Pennsylvania. 12. The place of making of a contract is the place where the last act necessary for completion of the contract was done. 13. The last act necessary for the completion of the alleged contract in this matter was the signing and deposit of the check, which occurred in Schuylkill county, Pennsylvania. WHEREFORE, the Defendants respectfully requests that the Complaint against them be dismissed with prejudice. Respectfully submitted, CURRAN LAW OFFICES DATED: ~J ~;?}9Y fl' ~/i/ I By: : :/ . () w-L Michael A. O'Pake, Esquire 101 N. Centre Street Fifth Floor Pottsville, PA 17901 Phone: (717) 622-6880 Atty. 1.0. No.: 53244 3 " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW JOSEPH HANLON and ADELE HANLON, Plaintiffs No. 94-3596 civil Term VS. ESTATE OF JAMES HANLON, and JIM HANLON TRACTOR COMPANY, Defendant MaMORANDUM OF LAW IN 8UPPORT OF Dr~IHDAHT8' PRILIKIHARY OBJICTIOHS TO THI COMPLAINT I. aelevant Baakaroun4. During the relevant time referred to in plaintiff's Complaint, James Hanlon operated a sole proprietorship under the assumed or fictitious name of Jim Hanlon Tractor company. James Hanlon incorporated a company by the name of Jim Hanlon Tractor, Inc. on February 14, 1990. This was a separate and distinct entity from Jim Hanlon Tractor Company. An out of existence certificate was filed with the Defendant of Revenue for Jim Hanlon Tractor Inc. on February 24, 1991. The Plaintiffs have brought ar action against the Estate of James Hanlon and Jim Hanlon Tractor Company. It is imperative to note that James Hanlon died in April of 1993 and no estate was raised on his behalf. The Plaintiffs are fully aware of the death of James Hanlon, yet they filed this action against the estate of James Hanlon. With regard to the Jim Hanlon Tractor Company the Plaintiffs alleged that this transaction occurred on or about May 31, 1989. The Plaintiffs allege, in paragraph 4 of their complaint, only that the Defendant, Jim Hanlon Tractor Company is a business. The Plaintiffs do not identify the business as a corporation, sole proprietorship or partnership. Without this information, the Defendants cannot adequately defend this action. II. 8tate.ent of oue.tion. pre.ented. 1. 18 AN ACTION CONKBNCBO AGAIN8T A DBAO PBRSON A NULLITY? SUGGBSTBO ANSWBRI YBS, 2. IS IT BSSBNTIAL THAT A COMPLAINT STATB WITH SPBCIWICITY THB TYPB OW BUSINBSS ENTITY OW THB OEWENDANT? SUGGBSTBD ANSW.RI YBS, 3. OOES PROPBR VENUB IN THB INSTANT MATTER LIE IN SCHUYLKILL COUNTY? SUGGESTED ANSWIRI YES, III. Araument. A. AN ACTION COMHINCEO A OEAD PERSON IS A NULLITY, The Plaintiffs filed the instant action against the Estate of James Hanlon and the Jim Hanlon Tractor company. The action was filed on July 5, 1994. James Hanlon died in April of 1993 and an estate was never raised on his behalf. The Plaintiffs are well aware of the fact that James Hanlon is deceased. Case law is clear that an action commenced against a dead person is a nullity. Custren v. curtis, 392 Pa. super. 394, 572 A.2d. 1290 (1990). Additionally, it has been established that an action may not be brought against the "estate of" an individual. pareras of Tannersville. Inc. v. Case, 46 D & C 2d. 240 (Monroe Co. 1969). 2 The action as commenced as against the e.tate of James H~nlon must, therefore, be dismis&ed by Your Honorable Court due to the fact that the proper procedural rule. were not followed in naming the Estate of James Hanlon as a Cefendant. It is incumbent upon the Plaintiff to have letters of Administration issued and suit filed. See Loveiov v. aeoraefl, 224 Pa. super. 206, 303 A.2d. 501 (1973) . B. IT I. I..INTIAL roa THI PLAINTIrr TO IDINTIFY WITH .p.CIrICITY THB TYPI or BU8INI8. INTITY or THI DlrINDAHT. Paragraph 4 of the Plaintiff's Complaint simply alleges that the Defendant Jim Hanlon TrlSctor Company is a business. The Complaint does not specify the type of entity of the business. It does not identify whether the business is a corporation, a sole proprietorship or a partnership. Without this information, the Defendant cannot properly defend this action. Specifically, different rules of court apply for corporations, sole proprietorships and partnerships. specifically, Rules of , '. ~ I Court regarding jurisdiction, venue and service of process are different for corporations than they are for sole proprietorships. Cue to the fact that venue is an issue in the instant matter, the type of business entity named as a Defendant must be set forth in the Complaint so that the Defendants can properly defend this suit. Additionally, service of process may be at issue depending upon the type of business entity being named as a Defendant. The Pennsylvania Rules of Court specify that an action shall be prosecuted by or against a corporation or similar entity in its ! 1 , 3 t, , '. corporate name, Pa. R.C. P. 2177. It a plaintiff brings suit against a Defendant, the Plaintiff must so identify the corporation as such in the lawsuit. Failure to do so is fatal to the Complaint and the Complaint must be dismissed as being legally insufficient. C. .RO.IR VIHUI IH THI IIISTAJIT MATTIR LIIIS III SCHUYLKILL COUIITY. A contract is deemed to have been made when and where the last act necessary for its formation is done. Varas v. Crown Life Insurance comoanv, 204 Pa. super. 176, 203 A.2d. 505 (1964). A contract is deemed to have been formed after there has been an acceptance of an offer and consideration therefore. In the instant matter, the Plaintiff alleges that venue is proper in Cumberland County due to the fact that a check was made payable to James Hanlon and the check was written in Cumberland county from an account in Cumberland County. The alleged contract, however, was not finalized until the check was endorsed and deposited in a bank in Schuylkill County. The last act, therefore, necessary to form a contract was performed in Schuylkill County. Proper venue lies .. in Schuylkill county. 4 ..".. , .:n :,.. ,.. " ,- ,. ,:--: PI \ ' , '-, ' " ;,.:. ;. ('1) " I , I n , . .. ~ ... ~ ! @ led 1 'B ..... 'B ! ~ I ~ lU~& lU . ~ M ~ .~ ! e" ; f ~ ~ I ~Ir III ... .... ~! 1 ~ ~~ I s~ n'l ;f~ O~ . i~ u, ~ ~i ! 7 ~ ~ ~ :. Ii ~ ~~ ~I .. g =: - . ." .. . . .. . ...'..........."... .... / .......... ',~....................... ......' .".., ...-........_.. . . SHERIFF'S RETlJRN COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND. Joseph Hanlon and Adele Hanlon In the Court of Common Pleas of Cumberland County, Pennsylvnaia No. 94-3596 civil Term Complaint in Civil Action Law and Notice VS Estate of James Hanlon and Jim Hanlon Tractor company R. THOMAS KLINE. Sheriff, who being duly sworn according to law, says, that he made diligent search and inquiry for the within named defendant. to wit, Company but was unable to locate Estate of James Hanlon and Jim Hanlon Tractor them in his bailiwick. He therefore deputized the sheriff of Schuylkill County, Pennsylvania, to serve the within Complaint in Civil Action Law and Notice On August 5, 1994 , this office was in receipt of the attached return from Schuylkill County, Pennsylvania. Sheriff's Costs: Docketing Out of County Surcharge Schuy lkill Co So answers, $ Sworn and subscribed to 18.00 5.00 4.00 27.50 54.50 pd by before me -. ,~. / . '/ /c;.....<. /' .<. R. THOMAS KLINE, Sheriff atty 8-5-94 this q!!:- day of OJ G.<<-j'c..r 19 1'( ,A. D . '-h" {.' 111..1,:,.. 0, J~'7 Prothonotary , I ! j , ' ,I ~";i) JU6 /'If/ .A/&i(,(~ . ~~-:. ~ 9./ .)',t/~~ ~/(.e.t~ ~I "int!/i~vt~~fI'- " , , .. , .., .2ul) . . ~v6 , '~ Iffy . . 9./ JI(/;t~.," /1-dt.7Z"C -;ha~"lt.} V/l1eaNeU-4.U- ,i. , , ,. f: r /1 'i~' 1 f , 1 " , I I ';' ~ ,. .~ ,. ""t',',.', ,.' ~~\~H"~"H~~~~N ,.8.1 1 j)'b 514 OEUBlf." "OAO , J 5? 9 .. ~MP Hill P""7~ t '\'7f ..3/,- /.9__V-f 'fifI14 _ ~O."./ _ --IS;0~.N 'l,~' ..rr 'J ~ ^-l1 ~._.__~ .~ .. /(I-..,L_'~.IMWM: , $tt;~".'." INIUIIID MO~~.Y ~~IIKIT AccoisNf ,. ondlustC ;', d. .r " . . i r~ "..-..,," ......".. ... U":l~ . /J . .;j. h ......_--~--- ------k:~L--.t2'.. I:OH~008~t.I: qt."'2St.3?On' qq O~t.q .I'OOO~SOOOOO." 149 ." I EXHIBIT "Au "a" J.laIHX3 " , I '. \ , . ;:':'::";J'! . , I'l' , ~ '-'1.1 ~ ) ! .11 h. . 'MIt.-itf . ~ . j,r j & ~'E . , CD . .... , , , 6 8 II 0 9~ , ""-1 '" q . ~ ~ ~r~'.~~",*,!:i;l ......... , y I , ~ ... ..'" ~ , . . . ~~Qfl: , I ' ,. ... t~ ~ '7 4~ en :.-, ~ - ,rr' a - ,- ~ 0 ::r ~ ,-I 0 ,#.;., . C \.I). l.r\ :s- "" -",I@ ~ @ -. -f~1 " 0 ~ \n ..., Ii - C) - =1. .. -s.. ~ ~ . The Plaintiffs allege, in Paragraph 4 of their complaint, only that the Defendant, Jim Hanlon Tractor Company is a business. The Plaintiffs do not identify the business as a corporation, sole proprietorship or partnership. without this information, the Defendants cannot adequately defend this action. II. statement of ouestions pre.ented. 1. IS AN ACTION COMMENCED AGAINST A DEAD PERSON A NULLITY? SUGGESTED ANSWER a YES. 2. IS IT ESSENTIAL THAT A COMPLAINT STATE WITH SPECIFICITY THE TYPE OF BUSINESS ENTITY OF THE DBFENDANT? SUGGESTED ANSWERa YES. 3. DOES PROPER VENUB IN THE INSTANT HATTER LIE IN SCHUYLKILL COUNTY? SUGGESTED ANSWERa YES. III. Araument, A. AN ACTION COMMENCED A DEAD PERSON IS A NULLITY. The Plaintiffs filed the instant action against the Estate of James Hanlon and the Jim Hanlon Tractor Company. The action was filed on July 5, 1994. James Hanlon died in April of 1993 and an estate was never raised on his behalf. The Plaintiffs are well aware of the fact that James Hanlon is deceased. Case law is clear that an action commenced against a dead person is a nullity. Custren v. Curtis, 392 Pa. Super. 394, 572 A.2d. 1290 (1990). Additionally, it has been established that an action may not be brought against the "estate of" an individual. Paraas of Tannersville. Inc. v. case, 46 D & C 2d. 240 (Monroe Co. 1969). 2 . , The action as commenced as against the estate of James Hanlon must, therefore, be dismissed by Your Honorable Court due to the fact that the proper procedural rules were not followed in naming the Estate of James Hanlon as a Defendant. It is incumbent upon the Plaintiff to have letters of Administration issued and suit filed. See Loveiov v. Georqef(, 224 Pa. Super. 206, 303 A.2d. 501 (1973) . B. IT IS ESSEIlTIAL I'OR THE PLAIIlTII'I' TO IDEIlTII'Y WITH SPECII'ICITY THE TYPE or BUSINESS ENTITY or THE DEPENDANT. Paragraph 4 of the Plaintiff's Complaint simply alleges that the Defendant Jim Hanlon Tractor company is a business. The Complaint does not specify the type of entity of the business. It does not identify whether the business is a corporation, a sole proprietorship or a partnership. without this information, the Defendant cannot properly defend this action. Specifically, different rules of court apply for corporations, sole proprietorships and partnerships. specifically, Rules of Court regarding jurisdiction, venue and service of process are different for corporations than they are for sole proprietorships. Due to the fact that venue is an issue in the instant matter, the type of business entity named as a Defendant must be set forth in the Complaint so that the Defendants can properly defend this suit. Additionally, service of process may be at issue depending upon the type of business entity being named as a Defendant. The Pennsylvania Rules of Court specify that an action shall be prosecuted by or against a corporation or similar entity in its 3 corporate name. Pa. R. C. P. 2177. If a Plaintiff br ings suit against a Defendant, the Plaintiff must so identify the corporation as such in the lawsuit. Failure to do so is fatal to the Complaint and the complaint must be dismissed as being legally insufficient. C, PROPIlR VIlNU!I IN TH!I INSTANT MATTIlR LIIlS IN SCHUYLKILL COUNTY. A contract is deemed to have been made when and where the last act necessary for its formation is done. ~ras v. Crown Life Insurance Comcanv, 204 Pa. Super. 176, 203 A.2d. 505 (1964). A contract is deemed to have been formed after there has been an acceptance of an offer and consideration therefore. In the instant matter, the Plaintiff alleges that venue is proper in Cumberland county due to the fact that a check was made payable to James Hanlon and the check was written in Cumberland County from an account in Cumberland County. The alleged contract, however, was not finalized until the check was endorsed and deposited in a bank in Schuylkill county. The last act, therefore, necessary to form a contract was performed in Schuylkill County. Proper venue lies in Schuylkill County. 4 . In AprU. 1993. James H8IlIon died. with an outstanding debt of'7,600.oo due and owing to PlalntllTs. PlalntllTs instituted this IICtion on July 6. 1994, sgaln.et the Jim HlIIlIon Tractor Company and the Estate of James Hanlon after numerous requests for repayment were Ignored. II. Statement of Questions Presented. 1. IS AN ACTION AGAINST AN ESTATE PROPER UNDER THE FACTS OF THIS CASE? SUGGESTED ANSWER: YES. 2. DID PLAINTIFFS COMPLY WITH THE RULES OF CML PROCEDURE IN NAMING THE BUSINESS ENTITY OF THE DEFENDANT? SUGGESTED ANSWER: YES. 3. DOES PROPER VENUE IN THIS CASE LIE IN CUMBERLAND COUNTY? SUGGESTED ANSWER: YES. III. Argument. A AN ACTION AGAINST AN ESTATE IS PROPER UNDER THE FACTS OF THIS CASE. The PlaintllTs med the instant action against the Estate of James Hanlon and the Jim HlIIlIon Tractor Company. The action W8ll med on July 6, 1994. James HlIIlIon died in AprU of 1993 and however, no estate W8ll opened. Defendants are correct when stating that the case law is clear that an action commenced against 8 dead person is a nullity. Custren v. Curtis, 392 P8. Super. 394, 672 A2d. 1290 (1990). However, the cited C8lle deals with a Complaint naming only 8 decea.sed individual 8118 Defendant. This ca.se deals wlt.h two Defendants: Jim Hanlon Tractor Company and the Estate of James Hanlon. Neither of these entitles can be defined by ca.se law a.s s 'desd person.' Additiona1ly. Defendants state that an action may not be brought apinst the "estste or an Individual. Parll8l of T8IUlersville. Inc. v. Case. 46 D & C 2d 240 (Monroe Co. 1969). Closer examination of this case reveals that the court held that where 8 suit is brought against an individual defendant and an estate, the action against the estate becomes void, BSTATB OF JAMBS HANLON, and JIM HANLON TRACTOR COMPANY, Defendants I IN THB COURT OF COMMON PLBAS OP I CUMBBRLAND COUNTY, PBNNSYLVANIA I I I CIVIL ACTION - LAW I I NO. 94-3596 CIVIL TERM I I JOSBPH HANLON and ADBLB SANLON, plaintifh V I. ~I DBrB.DIST8' P~LIMI.ARY OBJBCTIOH8 aBrORl 8BIILY. P,J. AND B188. J. or COURT ORDIR '1 t If day of NOVEMBER, 1994, defendants' AND NOW, this demurrer &s to the claim against the Estate of James Hanlon is GRANTED. Defendants' demurrer as to the claim against Jim Hanlon Tractor Company and their preliminary objection as to improper venue are DENIED, By the Court, ",-- .J, Ron Turo, Esquire For the Plaintiff Michael A, O'Paee, Bsquire For the Defendants Isld 11" " I,'. I' ~ '.\ I l\ JOSBPH HANLON and ADBLB HANLON, Plaintiffs V BSTATB OF JAMES HANLON, and JIM HANLON TRACTOR COMPANY/ Defendants I IN THB COURT OF COMMON PLBAS OF I CUMBBRLAND COUNTY, PBNNSYLVANIA I I I CIVIL ACTION - LAW I I NO. 94-3596 CIVIL TBRM I I IN RBI DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE SHEELY. P.J. AND HESS. J. OPINION AND ORDER OF COURT In the present action, defendants raise three preliminary objections pursuant to Pennsylvania Rule of Civil Procedure 1028 (a)/ two in the nature of a demurrer and one raising improper venue. Initially, we note the well settled standard of review for preliminary objections in the nature of a demurrer I ...All material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for purposes of review. Eckell v, Wilson, 409 Pa.Super. 132, 135, 597 A,2d 696/ 698 (1991). However/ we cAnnot accept as true conclusions of l6w, ~. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. ~. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. xg. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory, ~, at 135-36/ 597 A.2d at 698. Pittsburah National Bank v. Perr, 431 Pa, Super. 580, 584, 637 A,2d 334/ 336 (1994) NO, 94-3596 CIVIL TERM FACTS With thie standard in mind, the relevant facts appear as follows. A complaint wae filed on July 5, 1994, naming Joeeph and Adele Hanlon ae plaintiffe in an action eeeking to recover $7,500,00 in unpaid principal upon a loan made in 1989. The initial loan was made by check in the sum of $15,000,00 payable to Jamee Hanlon, now deceased, for the purpose of providing operating capital for the Jim Hanlon Tractor Company, This check wae deposited i.n the account of the Jim Hanlon Tractor Company, (Complaint, paragraph 7; Exhibit "B"). The complaint listed as defendants both the Estate of James Hanlon and the Jim Hanlon Tractor Company. with respect to the Estate of James Hanlon, the complaint states the followingl "Defendant Estate of Jame" Hanlon is the successor to JllIIIes Hanlon who died in Schuylkill County in April, 1993." (Complaint, paragraph 3). With respect to the tractor company, the complaint states as follows I "Defendant Jim Hanlon Tractor Company is a business, previously owned and operated by JllIIIes Hanlon, in Schuylkill County, Pennsylvania." (Complaint, paragraph 4). With respect to the issue of venue, the complaint alleges the following I Paragraph 8. Pursuant to the agreement made by the partiee in Cumberland County, Pennsylvania, in approximately 1990 or 1991, James Hanlon forwarded an interest check in the llIIIount of 2 NO, 94-3596 CIVIL TBRM $1,000,00 to the plaintiffs' residence in Cumberland County, Pennsylvania, .. Paragraph 9. In approximately 1991, James Hanlon sent two separate payments in the amount of $5,000.00 and $2,500.00 to the plaintiffs, as principal payment on the loan made in 1989. The.e two payments were received at the plaintiffs' residence in Cumberland County, Pennsylvania, To this date, an estate has not been raised in the name of James Hanlon, Defendants filed their preliminary objection. on August 22, 1994, and plaintiffs filed an answer to those objections on September 2, 1994. Argument was heard before this Court on October 5, 1994. DISCUSSION Defendants' initial preliminary objection is in the nature of a demurrer and asks this court to dismiss the Estate of Jame. Hanlon from the present action. Defendants allege that the action against the Estate is a nullity because an estate has never been raised in the name of James Hanlon. Plaintiff does not contest the principle that an action commenced against a dead person is a nullity. ~ Custren v. Curtis, 392 Pa.Super. 394, 572 A.2d 1290 (1990). Plaintiff contends, however, that the defendant named in this case is the "Estate" of a dead person, not the individual decedent, However, the law is well established that "a civil action [cannot] be brought against an "Estate" where no personal representative has 3 NO, 94-3596 CIVIL TBRM been appointed." Remick's Pennsylvania Orphans' Court Practice, Vol, 1, 51.01 (Revised 1975), Judge Hess dealt with a similar situation in the case of Blicker v. Herrold, 40 Cumbo 113 (1989), The lawsuit in Blicker arose out of an automobile accident in which Dennis Herrold was killed. Also killed in the accident was Violet Elicker, and her daughter was seriously injured. Plaintiffs then filed suit against, among others, "Dennis Herrold or the Estate of Dennis Herrold." The plaintiffs conceded that no personal representative had been appointed in the matter nor was an Estate otherwise raised. Judge Hess' opinion sustained preliminary objections brought on behalf of "Dennis Herrold, deceaeed, or the Estate of Dennis Herrold", stating I In this case/ the action against Mr, Herrold, a deceased person, is a nullity. Of like effect, is the attempt to sue Mr. Herrold's "Estate" as none has been raised nor has a personal representative been appointed. Elicker at 115, Applying the law to the facts of this case, it is clear that plaintiffs cannot maintain an action against the Estate of James Hanlon where none has been raised nor a personal representative appointed. Thus, the action against the Estate of James Hanlon is a nullity. The defendants' second preliminary objection is also in the nature of a demurrer seeking to have defendant Jim Hanlon Tractor 4 NO. 94-3596 CIVIL TERM Company di.mi..ed from the action, Defendant. contend that plaintiff.' failure to identify the type of bu.ine.. entity of defendant Jim Hanlon Tractor Company fatally flaws plaintiff.' complaint. The complaint refers to the Jim Hanlon Tractor Company a. "a busine.s, previously owned and operated by Jame. Hanlon, in Schuylkill County, Pennsylvania," (Complaint, paragraph 4). Plaintiffe took this name directly as it appeared on the back of the check from plaintiffs that was deposited in the Jim Hanlon Tractor Company account, Rule 2177 provides that where an action is pro.ecuted against "a corporation or similar entity," it shall be done so in its corporate name, Pa.R,C.P. 2177. Rule 2176 further defines "corporate name" as "any name, real of fictitious, under which a corporation or similar entity was organized, or conducts business, whether or not such name has been filed 01' registared." Pa.R.C.P. 2176, Based on these rules and the pleadings in this case, we believe plaintiffs have provided proper identification of the business entity in this action such that defendants were put on notice and can adequately prepare a defense. The extreme remedy of a demurrer is ~ot appropriate at this time with respect to defendant Jim Hanlon Tractor Company. Defendants' final preliminary objection raises the question of venue in Cumberland County. Rule 2179 provides that an action against a corporation or similar .mtity may be brought inl 5 .. IN THE COURT or COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOSEPH HANLON and ADELE HANLON, plaintiffs NO. 94-3596 civil Term vs. ESTATE OF JAMES HANLON, and JIM HANLON TRACTOR COMPANY, Defendants AIIS.II. TO COMPLAINT The Defendant, Jim Hanlon Tractor Company, by and through its attorney, Michael A. O'Pake, Esquire, answers the Complaint of the Plaintiffs as follows: 1. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and strict proof thereof is hereby demanded at trial. 2. Denied. After reasonable investigation, the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and strict proof thereof is hereby demanded at trial. 3. Denied. The named Defendant, Estate of James Hanlon was dismissed as a party to this action by Order of Court dated November 4, 1994 and, as such, an answer is not required under the Pennsylvania Rules of Civil Procedure. 4. Admitted in part. Denied in part. It is admitted that Defendant, Jim Hanlon Tractor Company was operated by James Hanlon in Schuylkill County, Pennsylvania. It is denied that Jim Hanlon Tractor Company was a business previously owned by James Hanlon. -.."- . .< . .. By way of further answer, Jim Hanlon Tractor company was a sols proprietorship and wee not duly orqanized as a corporation or existinq as a corporation under the laws of the Commonwealth of Pennsylvania. 5. Denied. After reasonable investiqation, the Defendant is without knowledqe or information sufficient to form a belief as to the truth of the averments contained in this paraqraph and strict proof thereof is hereby demanded at trial. 6. Denied. The averments of this paraqraph constitute conclusions of law to which no responsive pleadinq is required pursuant to the Pennsylvania Rules of civil Procedure. 7. Denied. After reasonable investiqation, the Defendant is without knowledqe or information sufficient to form a belief as to the truth of the averments contained in this paraqraph and strict proof thereof is hereby demanded at trial. 8. Denied. The averments of this paraqraph constitute conclusions of law to which no responsive pleadinq is required pursuant to the Pennsylvania Rules of Civil Procedure. 9. Denied. The averments of this paraqraph constitute conclusions of law to which no responsive pleadinq is required pursuant to the Pennsylvania Rules of civil Procedure. 10. Denied. The averments of this paraqraph constitute conclusions of law to which no responsive pleadinq is required pursuant to the Pennsylvania Rules of civil Procedure. 2 . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOSEPH HANLON and ADELE HANLON, Plaintirra NO, 94-3596 civil Term va. ESTATE OF JAMES HANLON, and JIM HANLON TRACTOR COMPANY, Defendants C!RTI.ICATI O. 81RVICI I HEREBY CERTIFY that I am this day serving a copy or the foregoing Answer to Complaint, upon the persons and in the manner indicated below: SERVICE BY FIRST CLASS MAIL, ADDRESSED AS FOLLOWS: Ron Turo, Esquire 32 S. Bedford Street Carlisle, PA 17013 Respectfully submitted, CURRAN LAW OFFICES . ! I .)' 'I' ) By: ) he I,~. ;.. { . ~.,.i/- Michael A. O'Pake, Esquire 101 N. Centre Street Fifth Floor pottsville, PA 17901 Phone: (717) 622-6880 Atty. I.D. No.: 53244 DATED: p f I "J?'j , , 4 -::r '"J" p' " .:r') 'f) ,., :.-.1 IA ... ~~! 1 . ial~ ; = ~a :. ~ I!lft~j ~ . .. ..,0 " '" C" :J 1~~ I~~ ~I ~~ 5! ~~ i . ~ . Q ell i ~ g .. ~E~ ~ ~ I III E ~ ~ ~ ~ . CI "" ! .. =: . . , ..