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Home My WebLink About96-4639 CivilGANNETT FLEMING, INC., Plaintiff Ve MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-4639 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT,S AMENDED PRELIMINARY OBJECTIONS DEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this ~day of February, 1998, after careful consideration of Plaintiff,s preliminary objections to Defendant's amended preliminary objections (to Plaintiff's complaint), and for the reasons stated in the accompanying opinion, Plaintiff,s preliminary objections are SUSTAINED, Defendant,s amended preliminary objections are DISMISSED, and Defendant is GRANTED 20 days from the date of this order within which to file an answer to Plaintiff,s complaint. Mark S. McKain, Esq. Bradford j. Sandler, Esq. 367 South Gulph Road King of Prussia, PA 19406 Attorneys for Plaintiff Stephen N. Huntington, Esq. Nicole M. Davenport, Esq. Suite 1100 1515 Market Street Philadelphia, PA 19102 Attorneys for Defendant BY THE COURT, GANNETT FLEMING, INC., Plaintiff Vo MUNICIPAL AUTHORITY OF THE BOROUGH OF SHENANDOAH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-4639 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT Oler, J., February 13, 1998. In this civil action for breach of contract and unjust enrichment, a company providing professional engineering services has sued a municipal authority for damages arising out of nonpayment for services allegedly performed by the plaintiff in connection with the defendant's construction of a new water treatment plant. For disposition at this time are preliminary objections filed by the plaintiff to amended preliminary objections filed by the defendant (to the plaintiff,s complaint). Plaintiff,s preliminary objections include a motion to strike Defendant,s amended preliminary objections due to untimeliness. For the reasons stated in this opinion, Plaintiff,s preliminary objections will be sustained and Defendant's amended preliminary objections to the complaint will be dismissed. PROCEDURAL HISTORY- STATEMENT OF FACTS Plaintiff Gannett Fleming, Inc., a Cumberland County business according to the complaint, commenced this action on August 19, 1996, by filing a praecipe for writ of summons. Plaintiff's complaint was filed on January 2, 1997. NO. 96-4639 CIVIL TERM Preliminary objections were filed to Plaintiff's complaint by Defendant Municipal Authority of the Borough of Shenandoah on March 17, 1997, two and a half months after the filing of the complaint. An amended set of preliminary objections, differing only in decreased specificity from the first set, was filed by Defendant on April 22, 1997, more than three and a half months after the filing of the complaint.~ Plaintiff filed preliminary objections to both sets of Defendant's preliminary objections. Defendant's amended preliminary objections to Plaintiff's complaint are based upon improper venue~ and pendency of a prior action-3 Neither set of Defendant's preliminary objections was endorsed with a notice to plead.4 Defendant's amended preliminary objection based upon improper venue is predicated upon the propositions (a) that a municipal authority is an "unincorporated association,'. (b) that as an unincorporated association Defendant can be sued "only in a county ~ Defendant,s counsel, in Defendant's brief in opposition to Plaintiff's preliminary objections, computes the delay in filing at "less than two months,., based upon service of the complaint, and the court will accept this representation for purposes of this opinion. See Memorandum in Response to Gannett Fleming, Inc.'s Preliminary Objections to Shenandoah's Amended Preliminary Objections and in Support of the Borough of Shenandoah,s Amended Preliminary Objections, at 3. See Pa. R.C.P. 1028(a)(1). See Pa. R.C.P. 1028(a)(6). See Pa. R.C.P. 1028(c), Committee Note. NO. 96-4639 CIVIL TERM where [it] regularly conducts business or any association activity, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of action arose," under Pennsylvania Rule of Civil Procedure 2156(a), and (c) that factually none of these circumstances applies in the present case. Defendant,s amended preliminary objection based upon the pendency of a prior action is predicated upon allegations (a) that a certain action is pending in Schuylkill County wherein "The Quandrel Group" is the plaintiff and Defendant is the defendant, (b) that the Schuylkill County action "relates to the precise Project and circumstances as identified in the [present action]," and (c) that in the Schuylkill County action Defendant, on July 11, 1995, filed a writ to join the instant Plaintiff. Plaintiff's preliminary objections to Defendant's amended preliminary objections attack the amended preliminary objections on grounds of untimeliness. In addition, Plaintiff contends that Defendant's amended preliminary objections are unsustainable on the merits. DISCU_____SSION Under Pennsylvania Rule of Civil Procedure 1026(a), subject to an exception not here relevant, "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading .... ..s A preliminary objection is a pleading See also C.C.R.P. 208-1. 3 NO. 96-4639 CIVIL TERM for purposes of this rule. Explanatory Note--1979. Pa. R.C.P. 1027(a); Pa. R.C.P. 1026, "This twenty day filing, period has been interpreted liberally and is permissive rather than mandatory. The decision of whether an extension of time shall be granted is within the discretion of the trial court." Weaver v. Martin, 440 Pa. Super. 185, 191, 655 A.2d 180, 183 (1995) (citations omitted). "[I]f justice requires," a late preliminary objection may be permitted where no prejudice would result to the opposing party. Id. at 191-92, 655 A.2d at 183 (emphasis added). In the present case, however, it cannot be said that justice requires special dispensation for Defendant's amended preliminary objections, because neither objection presents a compelling argument for relief. With respect to Defendant's challenge to venue under Pennsylvania Rule of Civil Procedure 2156(a), relating to unincorporated associations, several difficulties are apparent. First, it is not self-evident that a municipal authority is an "unincorporated association..6 Second, no evidence has been placed in the record which would support a finding that Defendant does not regularly conduct business or any association activity in this county. Third, no evidence has been placed in the record which would support a finding that the cause of action did not arise in 6~ Cf. Firemen's Pension Fund v. Minnaugh, 80 D. & C. 297 (Dauphin Co. 1951). NO. 96-4639 CIVIL TERM this county, or that a transaction or occurrence out of which the cause of action arose did not take place in this county. Fourth, to the contrary, a failure ko make a payment due at a plaintiff's place of business in the forum county has been held to constitute an occurrence out of which a plaintiff's cause of action for breach of contract arises, for purposes of venue. See, e.g., PFA Members, Service Corp. v. Ansell, 42 Cumberland L.J. 601 (1993); Rothermel v. Trimmer, 33 Cumberland L.J. 511 (1983). With respect to Defendant's preliminary objection based upon the pendency of a prior action, the factual and legal foundations for the objection are similarly unsatisfactory. In terms of a factual analysis of the action in Schuylkill County, the court is constrained by the rule that it "'may not ordinarily take judicial notice in one case of the records of another case, whether in another court or its own .... ,- The 220 Partnership v. Philadelphia Elec. Co., 437 Pa. Super. 650, 656, 650 A.2d 1094, 1097 (1994), quoting Naffah v. City Deposit Bank, 339 Pa. 157, 160, 13 A.2d 63, 64 (1940). Nor can the court make an effective finding based upon the allegations of Defendant recited above. In terms of the law applicable to the doctrine of lis pendens, it has been said that, "[i]n order to plead successfully the defense of lis pendens, i.e., the pendency of a prior action, it must be shown that the. prior case is the same, the parties are the same, and the relief requested is the same." Penox Technologies, 5 NO. 96-4639 CIVIL TERM Inc. v. Foster Medical Corporation, 376 Pa. Super. 450, 453, 546 A.2d 114, 115 (1988). The court cannot conclude, on the basis of the record which Defendant has presented, that each of these legal criteria has been met. For the foregoing reasons, the following order of court will be entered: QRDER OF COURT AND NOW, this 13th day of February, 1998, after careful consideration of Plaintiff's preliminary objections to Defendant's amended preliminary objections (to Plaintiff's complaint), and for the reasons stated in the accompanying opinion, Plaintiff's preliminary objections are SUSTAINED, Defendant,s amended preliminary objections are DISMISSED, and Defendant is GRANTED 20 days from the date of this order within which to file an answer to Plaintiff's complaint. BY THE COURT, Mark S. McKain, Esq. Bradford j. Sandler, Esq. 367 South Gulph Road King of Prussia, PA 19406 Attorneys for Plaintiff s/ J. Wesley Oler, Jr. Wesley Oler, Jr., J. NO. 96-4639 CIVIL TERM Stephen N. Huntington, Esq. Nicole M. Davenport, Esq. Suite 1100 1515 Market Street Philadelphia, PA 19102 Attorneys for Defendant : rc 7