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HomeMy WebLinkAbout98-7046 civilSAIDIS, SHUFF AND MASLAND : IN THE COURT OF COMMON PLEAS OF and MARY E. WANYO, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. : NO. 98-7046 CIVIL TERM ANTHONY J. URBAN, ESQUIRE and JOSEPH SEMASEK, ESQUIP,E: CIVIL ACTION - DECLARATORY Defendants :JUDGMENT IN RE: DEFENDANT'S PRELIMARY OBJECTIONS Before HOFFER, P.J. and OLER, J. ORDER OF COURT AND NOW, ~ ~{ , 2000, after careful consideration of the parties' briefs and independent research, Defendant's Preliminary Objection to venue is granted. It is hereby ordered and directed that, (1) This proceeding is to be transferred to the Court of Common. Pleas of Schuylkill County, pursuant to Pa. P,. Civ. P. 1503 and 1006(d)(1). (2) All costs for transfer and removal of the record are to be paid by the Plaintiff, pursuant to Pa. R. Civ. P. 1006(e). By the Court, Mark W. AIIshouse, Esquire Saidis, Shuff & Masland 26 W. High Street Carlisle, PA 17013 Anthony Urban, Esquire 474 North Centre Street, 3rd Floor, P.O. Box 890 Pottsville, PA 17901-089 SAIDIS, SHUFF AND MASLAND : IN THE COURT OF COMMON PLEAS OF and MARY E. WANYO, : CUMBERLAND COUNTY, PENNSYLVANI.~ Plaintiffs v. : NO. 98-7046 CIVIL TERM ANTHONY J. URBAN, ESQUIRE and JOSEPH SEMASEK, ESQUIRE: CIVIL ACTION - DECLARATORY Defendants :JUDGMENT IN RE: DEFENDANT'S PRELIMARY OBJECTIONS Before HOFFER~ P.J. and OLER~ J. OPINION HOFFER, P.J.: In this opinion we address Defendant's Preliminary Objections to Plaintiffs' Complaint. The facts are as follows: Defendant, Anthony J. Urban, Esquire (hereinafter "Urban"), is an attorney with an office located in Pottsville, Schuylkill County, Pennsylvania. Defendant, Joseph Semasek, Esquire (hereinafter "Semasek"), is an attorney with an office located in McAdoo, Schuylkill County, Pennsylvania. Plaintiff Saidis, Shuff and Masland (hereinafter "Saidis") is a law firm located in Carlisle, Cumberland County, Pennsylvania. Plaintiff Mary E. Wanyo (hereinafter "Wanyo") resides in Raleigh, North Carolina. Wanyo was injured on August 22, 1992, when a car driven by Benjamin Earl Wilson (hereinafter "Wilson") collided with a utility pole in Adams County, Pennsylvania. Wanyo was a passenger in the car. Wanyo retained Semasek to represent her in a personal injury suit. Semasek referred Wanyo to Urban. Wanyo retained the law offices of both Semasek and Urban by signing a contingency fee agreement with them in Schuylkill County. The defendants filed suit in Adams County against Wilson on Wanyo's behalf, and the defendants obtained a $75,000 settlement offer on August 15, 1996. The Defendants attempted to communicate the offer to Wanyo, who was unresponsive. In January of 1997, Wanyo retained Saidis, and terminated her client-attorney relationship with defendants. On December 12, 1997, Saidis settled Wanyo's action against Wilson for $90,000. On January 27, 1998, Saidis sent Wanyo a check for $59,086.96, or 65.65 percent of the $90,000 settlement agreement. Saidis has not received its full fee for settling Wanyo's case. Defendants Semasek and Urban contend that one-third of the $75,000 settlement offer negotiated by them is due to them from the plaintiff's escrow account. Saidis offered to pay Defendants on a quantum meruit basis for time expended and costs, but Defendants refused to submit a statement of such. Wanyo instructed Saidis not to make any payments to the defendants. Part of the disputed monies is being held in plaintiff Saidis's escrow account in Cumberland County. The plaintiffs filed for declaratory relief from this court to determine how the settlement proceeds should be divided. Discussion For Declaratory Judgment, "...the practice and procedure shall follow, as nearly as may be, the rules governing the Action in Equity." Pa. R. Civ. P. 1601(a). For an action in equity, "[e]xcept as otherwise provided by an Act of Assembly, Rule of the Supreme Court or by Subdivision (b), (c) or (d), an action may be brought only in a county in which (1) the defendant or a principal 2 defendant may be served, or (2) the property or a part of the property which is the subject matter of the actio,q !s located." Pa. R. Civ. P. 1503(a). The plaintiffs contend that the subject matter of the dispute is an escrow account. Plaintiffs claim the escrow account is located in Cumberland County because a bank branch is located here. The plaintiffs cite the equity rule for venue, claiming that the location of the escrow legitimates venue in Cumberland County? We agree that the subject matter of the dispute is the escrow account. However, an escrow account is an intangible legal concept- not a fixed and immovable property. Plaintiff's argument notably lacks supporting case citations. The reason the plaintiffs have not cited any cases is that the equity cases determining venue do not favor them. Cases discussing where venue should lie according to Pa. R. Civ. P. 1503, based on the location of the subject matter, typically involve fixed and immovable property. Graham v. Graham, 452 Pa. 404, 305 A.2d 48 (1973) (finding that venue for a property settlement appropriately lies in the county in which the realty is located); Rosenwald v. Rosenwald, 42 DeI.Co. 284, 4 D.&C.2d 163 (1955) (finding that venue lies in the county where the land is located or where the defendant is properly served under this rule). If venue could properly reside at the "location" of a bank account, plaintiffs could transfer funds ~ in the defendant's Preliminary Objections, defendants incorrectly base their argument for lack of venue on the rules of a civil action in law. Since the relief sought here is declaratory relief, venue will be determined by the rules of procedure for equity. Pa. R. Civ. P. 1601(a). 3 to a bank branch where they prefer venue. In that instance, venue could appropriately be found wherever a bank branch was located. Plaintiff's reliance on Rule 1503 completely overlooks the first portion of Rule 1503. Other appropriate locations for venue to reside are those counties wherein a defendant or principal defendant may be served. Pa. R. Civ. P. 1503 (a)(1). The defendants do not complain of improper service. The defendants here were appropriately served in Schuylkill County. Therefore, this court transfers venue to Schuylkill County, where Defendants properly were served, because the subject matter of this case does not have a fixed location. 4