HomeMy WebLinkAbout2009-6569 Civil
RAM INDUSTRIAL SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
UNITED TRANSPORTATION :
CORPORATION, :
DEFENDANT : 09-6569 CIVIL TERM
BEFORE GUIDO, J. AND MASLAND, J.
MEMORANDUM OPINION AND ORDER OF COURT
Masland, J., February 26, 2010:--
Defendant's preliminary objections take the form of a motion to dismiss
due to pendency of a prior action pursuant to Pa. R.C.P. No. 1028(a)(6).
Defendant asserts its suit against plaintiff, filed in Delaware County, takes
precedence over the instant matter as both cases involve the same parties, the
same subject matter, and seek the same relief. For the following reasons, we
disagree.
To succeed, defendant must establish the identity of the Delaware County
suit and the instant matter. Norristown Auto. Co., Inc. v. Hand, 562 A.2d 902,
903 (Pa. Super. 1989); Pa. R.C.P. No. 1028(a)(6). Whether the suits are
identical for the purposes of dismissal due to pendency of a prior action “is purely
a question of law determinable from an inspection of the pleadings.” Davis
Cookie Co., Inc. v. Wasley, 566 A.2d 870, 874 (Pa. Super. 1989). Here, though
the parties are identical and both suits arise from the same contract, the parties’
suits present different causes of action and seek different relief.
Both suits aim to recover money damages for breach of contract,
however, the Delaware County suit also seeks equitable relief in quantum meruit,
09-6569 CIVIL TERM
while in the instant matter, plaintiff demands return of wrongfully withheld
property, pleading replevin and conversion—causes of action sounding in tort.
Suits pleading incongruent causes of action are not identical. See Davis Cookie
Co., 566 A.2d at 875 (finding claims sounding in contract and equity,
respectively, dissimilar for purposes of dismissal for pendency of prior action).
Further, Pa. R.C.P. No. 213.1(b) regarding coordination of actions in
complaint
different counties establishes the priority of “[t]he court in which the
was first filed ….” (Emphasis added.) Here, defendant filed its complaint in the
Delaware County suit February 2, 2010, three months after plaintiff filed its
complaint on October 2, 2009. As such, the instant matter takes precedence
over the Delaware County suit. Accordingly, we enter the following order.
ORDER OF COURT
AND NOW, this day of February, 2010, defendant’s preliminary
AREOVERRULED
objections, . Defendant is directed to answer plaintiff’s complaint
within twenty (20) days from the date of this order
.
By the Court,
Albert H. Masland, J.
Dean F. Piermattei, Esquire
For Plaintiff
Hugh J. Bracken, Esquire
For Defendant
:sal
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RAM INDUSTRIAL SERVICES, INC., : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
UNITED TRANSPORTATION :
CORPORATION, :
DEFENDANT : 09-6569 CIVIL TERM
BEFORE GUIDO, J. AND MASLAND, J.
ORDER OF COURT
AND NOW, this day of February, 2010, defendant’s preliminary
AREOVERRULED
objections, . Defendant is directed to answer plaintiff’s complaint
within twenty (20) days from the date of this order
.
By the Court,
Albert H. Masland, J.
Dean F. Piermattei, Esquire
For Plaintiff
Hugh J. Bracken, Esquire
For Defendant
:sal