HomeMy WebLinkAbout2010-4663 Civil
WESTHAFER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v. :
: CIVIL TERM
:
RANDOLPH W. ROHRER AND : NO. 10-4363 CIVIL
BIG BEE BOATS, LTD., :
Defendants : JURY TRIAL DEMANDED
IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS
BEFORE HESS, P.J. AND EBERT, J.
ORDER OF COURT
th
AND NOW
, this 13 day of December, 2010, having considered the arguments
OVERRULES
presented by both parties, this Court Defendants’ preliminary objections
ORDEREDDECREED
and it is hereby and that the Defendants’ Motion for
Reconsideration of the Court Order Dated September 29, 2010 Overruling Defendant’s
DENIED
Objections to Subpoenas is .
By the Court,
__________________________
M. L. Ebert, Jr., J.
Timothy J. Woolford, Esq.
Attorney for Plaintiff
John J. McNally, III, Esq.
Attorney for Defendants
WESTHAFER CONSTRUCTION, INC., : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v. :
: CIVIL TERM
:
RANDOLPH W. ROHRER AND : NO. 10-4363 CIVIL
BIG BEE BOATS, LTD., :
Defendants : JURY TRIAL DEMANDED
IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS
BEFORE HESS, P.J. AND EBERT, J.
OPINION AND ORDER OF COURT
Ebert, J., December 13, 2010 –
Defendants object on the following grounds: (1) improper venue pursuant to
Pa.R.C.P. 1028(a)(1) and 1006(e); (2) failure to conform to law or rule of court pursuant
to Pa.R.C.P. 1028(a)(2); (3) inclusion of scandalous and impertinent matter pursuant to
Pa. R.C.P. 1028(a)(2); (4) insufficient specificity pursuant to Pa.R.C.P. 1028(a)(3); (5)
demurrer pursuant to Pa. R.C.P. 1028(a)(4); (6) failure to include an indispensable party
pursuant to Pa.R.C.P. 1028(a)(5); (7) pendency of a prior action pursuant to Pa.R.C.P.
1028(a)(6); and, (8) failure to exhaust statutory remedy pursuant to Pa.R.C.P. 1028(a)(7)
or full, complete and adequate remedy at law pursuant to Pa.R.C.P. 1028(a)(8). In
addition, Defendants’ Motion for Reconsideration of the Court Order Dated September
29, 2010 Overruling Defendants’ Objection to Subpoenas is before this Court. Having
considered the arguments presented by both parties and for the reasons set forth in this
opinion, this Court overrules Defendants’ preliminary objections and denies Defendants’
Motion for Reconsideration of the Court Order Dated September 29, 2010 Overruling
Defendants’ Objection to Subpoenas.
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FACTUAL ALLEGATIONS
Plaintiff Westhafer Construction, Inc. (“Westhafer”) is a corporation organized
under the laws of the Commonwealth of Pennsylvania with a principle address of 120
1
West Allen Street, Mechanicsburg, Pennsylvania, 17055. Defendant Randolph W.
Rohrer (“Rohrer”) is an adult individual who resides at 1410 Armitage Way,
2
Mechanicsburg, Cumberland County, Pennsylvania, 17050. Defendant Big Bee Boats,
Ltd. (“Big Bee Boats”) is a corporation organized under the laws of the Commonwealth
of Pennsylvania with a registered office at 1617 State Road, Duncannon, Pennsylvania,
3
17020. Cove Centre, Inc., (“Cove Centre”) is a corporation organized under the laws
of the Commonwealth of Pennsylvania with a principle address of 1617 State Road,
4
Duncannon, Pennsylvania, 17020. Rohrer is President of Big Bee Boats and Cove
5
Centre.
In 2003, Cove Centre entered into a contract with Westhafer pursuant to which
Westhafer agreed to construct a 12,000 square foot building in Duncannon, Perry County,
6
Pennsylvania, with a contract price of $721,380 (the “Project”). After Westhafer
7
commenced performance, disputes developed between Westhafer and Cove Centre.
8
Cove Centre terminated Westhafer from the Project and hired a replacement contractor.
Cove Centre brought suit against Westhafer seeking recovery of the difference in cost
between what Westhafer had agreed to charge and what Cove Centre incurred to
1. Westhafer Compl., Jul. 2, 2010, p. 1 ¶ 1.
2. Westhafer Compl., Jul. 2, 2010, p. 1 ¶ 2.
3. Westhafer Compl., Jul. 2, 2010, p. 2 ¶ 3.
4. Westhafer Compl., Jul. 2, 2010, p. 2 ¶ 5.
5. Westhafer Compl., Jul. 2, 2010, p. 2 ¶ 6.
6. Westhafer Compl., Jul. 2, 2010, p. 2 ¶ 8.
7. Westhafer Compl., Jul. 2, 2010, p. 2 ¶ 9.
8. Westhafer Compl., Jul. 2, 2010, p. 2 ¶ 10.
2
9
complete the Project using other contractors. Westhafer asserted a counterclaim against
10
Cove Centre seeking payment for work performed.
In October 2009, the lawsuit, Cove Centre, Inc. v Westhafer Construction, Inc.,
Perry County Court of Common Pleas, No. 2005-247, was tried to a jury in Perry
11
County. On October 14, 2009, following the trial, the jury awarded a verdict in favor of
12
Westhafer and against Cove Centre in the amount of $91,513.78. The jury rejected all
of Cove Centre’s claims and damages and determined that Cove Centre breached the
contract and was therefore liable to Westhafer. Westhafer has filed an appeal to the
Superior Court arguing that the verdict should be molded and increased to include
1314
attorneys’ fees. Cove Centre has also filed an appeal from the jury verdict.
Westhafer alleges that Rohrer has siphoned assets from Cove Centre in an effort
15
to prevent Westhafer from recovering on the verdict. Westhafer alleges that
approximately six days following the jury’s verdict, Cove Centre completed the refinance
of the only asset which Cove Centre possessed – the 12,000 square foot building that
16
Cove Centre had hired Westhafer to construct in 2003 (the “Property”). Westhafer
alleges that on October 20, 2010, two mortgages in the amount of $1,000,000 each were
st17
filed against the Property by Members 1 Federal Credit Union. Westhafer alleges that
the refinance was done in anticipation of a judgment being obtained against Cove
9. Westhafer Compl., Jul. 2, 2010, p. 2 ¶ 10.
10. Westhafer Compl., Jul. 2, 2010, p. 3 ¶ 11.
11. Westhafer Compl., Jul. 2, 2010, p. 3 ¶ 12.
12. Westhafer Compl., Jul. 2, 2010, p. 3 ¶ 13.
13. Westhafer Compl., Jul. 2, 2010, p. 4 ¶ 19.
14. Def. Preliminary Objections to Pl. Compl., Jul. 26, 2010, p. 3 ¶ 15.
15. Westhafer Compl., Jul. 2, 2010, p. 4 ¶ 25.
16. Westhafer Compl., Jul. 2, 2010, p. 3 ¶ 15.
17. Westhafer Compl., Jul. 2, 2010, p. 3 ¶ 16.
3
18
Centre. Westhafer alleges that the refinance by Cove Centre was done with the specific
intent to prevent Westhafer from collecting upon the verdict and judgment since the
19
mortgages exceeded the value of the building.
Westhafer alleges that during the October 2009 trial between Westhafer and Cove
Centre, Rohrer made deliberate attempts to perpetrate a fraud on Westhafer and the
20
Court. Westhafer alleges that Rohrer improperly communicated with a juror named Ed
Murtoff (“Murtoff”), who was personally acquainted with Rohrer, and attempted to
21
influence the jury’s verdict through Murtoff. Westhafer alleges that prior to
commencement of the trial, but after the jury was selected, Rohrer improperly contacted
22
two jurors. Westhafer alleges that Rohrer requested a juror write a letter to the
presiding judge concerning a fictitious encounter with a Westhafer employee to get the
juror removed from the jury so that the alternative juror, Murtoff, would be seated on the
23
jury and would be able to influence its verdict. Westhafer alleges that Rohrer also
contacted a second juror and arranged for the juror not to appear on the first day of trial
but to instead write a letter to the presiding judge asking to be excused on the basis of an
24
alleged skin condition. Westhafer alleges that during trial, Rohrer made false
allegations against one juror in an unsuccessful attempt to get the juror removed from the
jury so that after the removal of this juror, Westhafer would not have enough jurors to
25
obtain a verdict in its favor.
18. Westhafer Compl., Jul. 2, 2010, p. 3 ¶ 17.
19. Westhafer Compl., Jul. 2, 2010, p. 3 ¶ 18.
20. Westhafer Compl., Jul. 2, 2010, p. 6 ¶ 47.
21. Westhafer Compl., Jul. 2, 2010, p. 6 ¶ 42-43.
22. Westhafer Compl., Jul. 2, 2010, p. 6 ¶ 43.
23. Westhafer Compl., Jul. 2, 2010, p. 6 ¶ 43.
24. Westhafer Compl., Jul. 2, 2010, p. 6 ¶ 44.
25. Westhafer Compl., Jul. 2, 2010, p. 6 ¶ 46.
4
Additionally, Westhafer alleges the following:
(1)that Rohrer has used Cove Centre as a shield to perpetrate a fraud
and that Rohrer and Big Bee Boats are the alter egos of Cove
26
Centre,
(2)that Cove Centre is a sham and a façade for the operations of
27
Rohrer,
(3)that Cove Centre, Big Bee Boats and Rohrer substantially
28
intermingle their property and their affairs,
(4)that Cove Centre, Big Bee Boats and Rohrer integrated their
resources and acted as a single business enterprise in connection
29
with the Cove Centre Project,
(5)that when Cove Centre became indebted to Westhafer, Cove
Centre, Big Bee Boats and Rohrer were acting as a single business
30
enterprise,
(6)that the registered office for Cove Centre is the same registered
office for other corporate concerns that Rohrer controls including
31
Big Bee Boats & RV and Big Bee Boats, Ltd,
(7)that Cove Centre and Big Bee Boats share common office space,
32
addresses and telephone numbers,
(8)that Rohrer and Big Bee used assets of Cove as if they were their
33
own,
34
(9) that Cove Centre disregarded corporate formalities,
(10) that Rohrer paid bills relating to the construction of the Cove
Centre Project from his own personal accounts and from accounts
35
of other entities he controls, including Big Bee Boats,
26. Westhafer Compl., Jul. 2, 2010, p. 4 ¶ 28-29.
27. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 38.
28. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 34.
29. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 35, 39.
30. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 37.
31. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 31.
32. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 33.
33. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 36.
34. Westhafer Compl., Jul. 2, 2010, p. 4 ¶ 27.
35. Westhafer Compl., Jul. 2, 2010, p. 4 ¶ 26.
5
(11) that Rohrer used Cove Centre as an instrumentality to conduct his
36
own personal business, and
(12) that Cove Centre spent the funds obtained from the refinance
of Cove Centre on matters personal to Rohrer including
37
personal entertainment.
PROCEDURAL HISTORY
On July 2, 2010, Plaintiff filed its Complaint against Defendants in Cumberland
County in an action to pierce the corporate veil and requested an award for damages in
the amount of $91,513.78 plus interest. On July 20, 2010, Defendants filed Objections to
the Subpoenas pursuant to Pa.R.C.P. 4009.21. On July 26, 2010, Defendants filed
Preliminary Objections to Plaintiff’s Complaint. On August 12, 2010, Plaintiff filed a
Response to Defendants’ Preliminary Objections. On September 23, 2010, Plaintiff filed
a Motion to Overrule Defendants’ Objections to the Subpoenas. A September 29, 2010,
order of court overruled Defendants’ objections to the subpoenas and permitted Plaintiff
to serve the subpoenas as proposed. On October 4, 2010, Defendants filed a Motion for
Reconsideration of the September 29, 2010, court order. On October 7, 2010, the Motion
for Reconsideration was granted and the September 29, 2010, court order was vacated
and a hearing on the Motion to Overrule was scheduled for October 13, 2010. On
October 13, 2010, Plaintiff filed a Response to Defendants’ Motion for Reconsideration
of the September 29, 2010, court order.
DISCUSSION
This Court will address Defendants’ preliminary objections in turn and also the
Defendants’ Motion for Reconsideration of the Court Order Dated September 29, 2010
Overruling Defendants’ Objection to Subpoenas.
36. Westhafer Compl., Jul. 2, 2010, p. 5 ¶ 32.
37. Westhafer Compl., Jul. 2, 2010, p. 4 ¶ 21.
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I. Improper Venue Pursuant to Pa.R.C.P. 1028(a)(1) and 1006(e)
This Court overrules Defendants’ preliminary objection to venue. Pursuant to
Pa.R.C.P. 1028(a)(1), Defendants raised improper venue by preliminary objection as
provided by Pa.R.C.P. 1006(e). However, venue is proper in this case pursuant to
Pa.R.C.P. No. 1006 (c)(1), which provides that “an action to enforce a joint or joint and
several liability against two or more Defendants … may be brought against all
Defendants in any county in which the venue may be laid against any one of the
Defendants.” Plaintiff is attempting to hold Defendant Rohrer and Defendant Big Bee
Boats joint or joint and severally liable. Venue has been properly laid against Defendant
Rohrer pursuant to Pa.R.C.P. No. 1006(a)(1), which states that “an action against an
individual may be brought in and only in a county in which … the individual may be
served.” Therefore, pursuant to Pa.R.C.P. No. 1006 (c)(1), in this action alleging joint or
joint and several liability of Defendant Rohrer and Defendant Big Bee Boats venue is
proper for both Defendants because venue is proper as to Defendant Rohrer.
II. Preliminary Objections Pursuant to Pa. R.C.P. 1028(a)(2), Pa.R.C.P.
1028(a)(3), and Pa.R.C.P. 1028(a)(4)
The following preliminary objections can be decided on the face of the record.
“In ruling on preliminary objections, we must accept as true all well-pleaded material
allegations as well as all inferences reasonably deducible therefrom. Preliminary
objections will be sustained where, assuming the truth of the facts as pled, it is clear that
the law does not permit recovery.” Pa State Educ. Ass’n v. Cmwlth, 4 A.3d 1156,
1159 (Pa.Cmwlth. 2010)(internal citations omitted).
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a. Failure to Conform to Law or Rule of Court Pursuant to Pa. R.C.P.
1028(a)(2)
Defendants allege that, pursuant to Pa.R.C.P. 1019(i), Plaintiff is required to
attach a copy of the construction contract between Cove Centre and Plaintiff. However,
this is not necessary because the present action is not an action for breach of contract but
rather a claim to pierce the corporate veil. There is no need to prove the elements of
breach of contract against Defendants. “Where the Court pierces the corporate veil, the
owner is liable because the corporation is not a bona fide independent entity; therefore,
its acts are truly his.” Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 89-90 (Pa. 1983).
Therefore, if the corporate veil is pierced, Defendants will be held liable for Cove
Centre’s breach of contract with Plaintiff, as the actions of Cove Centre will be deemed
to be Defendants’ actions as well.
Nor is Plaintiff required to attach a copy of the jury award, verdict or judgment
index from Perry County. Pursuant to Pa.R.C.P. 1019(e), it is sufficient to plead the
judgment, which Plaintiff has done in paragraphs twelve through fourteen of its
complaint.
b. Inclusion of Scandalous and Impertinent Matter Pursuant to Pa.R.C.P.
1028(a)(2)
This Court overrules Defendants’ preliminary objection. “Rule 1028(a)(2)
provides that preliminary objections may be filed for failure of a pleading to conform to
law or rule of court or ‘inclusion of scandalous or impertinent matter.’ To be scandalous
and impertinent, the allegations must be immaterial and inappropriate to the proof of the
cause of action.” Common Cause/PA v. Com., 710 A.2d 108, 114 - 115 (Pa. Cmwlth.
1998)(affirmed 757 A.2d 367 (Pa. 2000))(referencing Dep’t of Envtl. Resources v. Peggs
8
Run Coal Co., 423 A.2d 765 (Pa.Cmwlth. 1980)). An attempt by Defendant Rohrer to
tamper with the jury during the Perry County trial would be evidence of the extent to
which Defendant Rohrer’s personal and financial affairs were entangled with those of
Cove Centre’s. This Court finds that the inclusion of these averments by Plaintiff is
directly relevant and material to the underlying cause of action, whether Cove Centre’s
corporate veil should be pierced.
c. Insufficient Specificity Pursuant to Pa.R.C.P. 1028(a)(3)
This Court overrules Defendants’ preliminary objection to insufficient specificity
of the complaint. Pursuant to Pa.R.C.P. No. 1019 (a), “[t]he material facts on which a
cause of action or defense is based shall be stated in a concise and summary form.”
Furthermore, pursuant to Pa.R.C.P. No. 1019 (b), “[a]verments of fraud … shall be
averred with particularity.”
The purpose of the pleadings is to place the defendants on notice of the
claims upon which they will have to defend. A complaint must give the
defendants fair notice of the plaintiff's claims and a summary of the
material facts that support those claims. It is not enough to focus upon
one portion of the complaint. Rather, in determining whether a particular
paragraph in a complaint has been stated with the necessary specificity,
such paragraph must be read in context with all other allegations in that
complaint. Only then can the Court determine whether the defendant has
been put upon adequate notice of the claim against which he must defend.
Rachlin v. Edmison, 813 A.2d 862, 870 (Pa. Super. 2002)(internal citations omitted).
The averments pertaining to the alleged fraud perpetrated by Defendant Rohrer on
Plaintiff and the Court during the Perry County trial and the alleged fraud perpetrated by
Defendant Rohrer in using Cove Centre as a shield are stated in a summary form and
have been averred with sufficient particularity. Reading the particular paragraphs
objected to by Defendants in the context of all the allegations in the complaint, this Court
9
finds that Plaintiff has stated its allegations with the necessary specificity to place
Defendants on adequate notice of the claims upon which they will have to defend.
d. Demurrer Pursuant to Pa.R.C.P. 1028(a)(4)
This Court overrules Defendants’ preliminary objection in the nature of a
demurrer.
A preliminary objection in the nature of a demurrer admits every well-
pleaded fact in the complaint and all inferences reasonably deducible
therefrom. It tests the legal sufficiency of the challenged pleadings and
will be sustained only in cases where the pleader has clearly failed to state
a claim for which relief can be granted. When ruling on a demurrer, a
Court must confine its analysis to the complaint.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010)(citing Clark v. Beard,
918 A.2d 155 (Pa. Cmwlth. 2007)). Admitting every well pleaded fact in the complaint
and all inferences reasonably deducible therefrom, Plaintiff has made allegations of fraud
for which relief can be granted by piercing the corporate veil of Cove Centre and holding
the Defendants liable.
There is a strong presumption in Pennsylvania against piercing the
corporate veil, and the general rule is that a corporation shall be regarded
as an independent entity even if its stock is owned entirely by one person.
The corporate form will be disregarded only when the entity is used to
defeat public convenience, justify wrong, protect fraud, or defend crime.
Mosaica Educ., Inc. v. PA Prevailing Wage Appeals Bd., 925 A.2d 176, 184 (Pa.
Cmwlth. 2007)(internal citations omitted). “[T]he factors to be considered in
disregarding the corporate form are as follows: undercapitalization, failure to adhere to
corporate formalities, substantial intermingling of corporate and personal affairs, and use
of the corporate form to perpetrate a fraud.” Fletcher-Harlee Corp. v. Szymanski, 936
A.2d 87, 95 (Pa. Super. 2007). The allegations in Plaintiff’s complaint address each of
these factors.
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First, Plaintiff alleges in its complaint that Defendant Rohrer paid bills relating to
the construction of the Cove Centre Project from his own personal accounts and from
accounts of other entities he controls including Defendant Big Bee Boats. Plaintiff also
alleges in its complaint that Cove Centre disregarded corporate formalities and that Cove
Centre and Defendants substantially intermingle their property and their affairs. Plaintiff
alleges in its complaint that Defendant Rohrer used Cove Centre as an instrumentality to
conduct his own personal business.
Finally, the allegations in the complaint would support a claim of fraud
perpetrated by Defendant Rohrer through the corporations that he controls. Fraud is
defined as “anything calculated to deceive, whether by single act or combination, or by
suppression of truth, or suggestion of what is false, whether it be by direct falsehood or
by innuendo, by speech or silence, words of mouth, or look or gesture.” Walter v.
Magee-Womens Hosp. of UPMC Health Sys., 876 A.2d 400, 406 (Pa. Super. 2005).
Admitting every well-pleaded fact in Plaintiff’s complaint and all inferences reasonably
deducible therefrom would show that Defendant Rohrer used Cove Centre as a shield to
perpetrate a fraud by siphoning assets from Cove Centre in an effort to prevent Plaintiff
from recovering on the verdict and judgment rendered in the Perry County trial. This
Court finds that Plaintiff has stated a claim for which relief can be granted by piercing the
corporate veil.
III. Failure to Include an Indispensible Party Pursuant to Pa.R.C.P. 1028(a)(5)
“A party is indispensable when his or her rights are so connected with the claims
of the litigants that no relief can be granted without impairing or infringing upon those
rights. The failure to join an indispensable party deprives the Court of subject matter
11
jurisdiction.” Szoko v. Township of Wilkins, 974 A.2d 1216, 1219, Fn 6 (Pa. Cmwlth.
2009)(referencing Church of the Lord Jesus Christ of the Apostolic Faith, Inc. v. Shelton,
740 A.2d 751 (Pa. Cmwlth. 1999)). Defendants contend that Cove Centre should be a
party to this matter because it has an undeniable interest in not having its corporate veil
pierced. This Court disagrees.
The facts of Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87 (Pa. Super. 2007),
are similar to those presented in this case. Szymanski was the sole shareholder of several
corporations including Delmarva Concrete, Inc. (“Delmarva”). Id. at 90. A dispute
arose between Appellant and Delmarva during a construction project. Id. After
arbitration Appellant was awarded a sum of money which Appellant converted into a
judgment against Delmarva. Id. Delmarva then filed for bankruptcy. Id. However,
Szymanski remained in business through another corporation of which he was the sole
shareholder. Id. Appellant filed a complaint against Szymanski and his other
corporations. Id. In that action the Superior Court held that piercing Delmarva’s
corporate veil to hold Szymanski personally liable for judgment against Delmarva was
justified. Id. at 102. Delmarva was not named as a party to the action.
In the above-mentioned case, the corporation whose veil was being pierced was
not named as a party to the action, yet the Court still had jurisdiction to, and in fact did,
pierce the corporate veil. Likewise in this case, Cove Centre has no interest in this action
because no judgment is being sought against Cove Centre and any judgment entered will
have no effect on Cove Centre’s rights or obligations. Therefore, Cove Centre is not an
indispensable party to this action and this Court does have jurisdiction to pierce its
corporate veil and hold Defendants liable for the Perry County judgment against Cove
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Centre. “Piercing the corporate veil is a means of assessing liability for the acts of a
corporation against an equity holder in the corporation.” Village at Camelback Property
Owners Assn. Inc. v. Carr, 538 A.2d 528, 532 (Pa. Super.1988). As in all actions to
pierce the corporate veil, it is the rights and obligations of those individuals or entities
behind the veil which are at stake, not the corporate entity whose veil is being pierced.
IV. Pendency of a Prior Action Pursuant to Pa.R.C.P. 1028(a)(6)
“[D]esigned to protect a Defendant from having to defend several suits on the
same cause of action at the same time,” the doctrine of lis pendens,
requires more than a mere allegation of a pending suit; it requires proof
the prior case is the same, the parties are substantially the same, and the
relief requested is the same. The three-pronged identity test must be
strictly applied when a party seeks to dismiss a claim under lis pendens.
As to the averment of lis pendens ... it is purely a question of law
determinable from an inspection of the records in the two causes.
Hillgartner v. Port Authority of Allegheny County, 936 A.2d 131, 137 -138 (Pa. Cmwlth.
2007)(internal citations omitted). This Court, upon inspection of the two cases, finds that
the doctrine of lis pendens is not applicable to the present action because when the three-
pronged identity test is applied to compare the two cases, the first two prongs of the test
cannot be established. Lis pendens first requires the cases be the same. The Perry
County action was a breach of contract claim. In the present action, Plaintiff is
proceeding against Defendants on a theory of piercing the corporate veil. Lis pendens
further requires the two actions involve substantially the same parties. The parties
involved in the Perry County action and the present action are not the same. Cove Centre
was the party upon which Plaintiff brought its cross claim in the Perry County action.
Rohrer and Big Bee Boats are the parties that have been sued in the present action.
13
Therefore, the doctrine of lis pendens is not applicable and Defendants’ preliminary
objection is overruled.
V. Failure to Exhaust Statutory Remedy Pursuant to Pa.R.C.P. 1028(a)(7)/Full,
Complete and Adequate Remedy at Law Pursuant to Pa.R.C.P. 1028(a)(8)
“[T]he parties should not be able to confer jurisdiction in equity where the
legislature has provided an exclusive, constitutionally adequate method for administrative
disposition of a dispute.” Morris v. Hanover Tp. Bd. of Sup'rs, 4 Pa. D. & C.3d 245, 249,
(Pa. Com. Pl. 1977)(referring to 5 Goodrich-Amram 2d §1509(a):1.1 and §1509(b): 1.).
This is an action separate from the action against Cove Centre, and, therefore, Plaintiff’s
collection efforts in that action are irrelevant to these proceedings. Defendants in this
case are separate entities upon whom a judgment can be rendered against and collected
upon if the elements of piercing the corporate veil are met.
VI. Defendants’ Motion for Reconsideration of the Court Order Dated September
29, 2010 Overruling Defendants’ Objection to Subpoenas
On July 20, 2010, Defendants filed Objections to the Plaintiff’s subpoenas on the
grounds that the subpoenas were overly broad, not limited in scope to the subject matter
of the Plaintiff’s Complaint, and requested the discovery of personal financial
information of non-parties. On September 23, 2010, Plaintiff filed a Motion to Overrule
Defendants’ Objections to the Subpoenas. A September 29, 2010, order of court
overruled Defendants’ objections to the subpoenas and permitted Plaintiff to serve the
subpoenas as proposed. Defendants contend that a hearing should have been scheduled
on the matter or a briefing schedule set forth to provide Defendants opportunity to
respond. However, Defendants’ position on the discoverability of the documents and
information requested in the subpoenas was fully set forth in Defendants’ Objections.
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After consideration, this Court found Defendants’ position unpersuasive and issued the
September 29, 2010, order overruling Defendant’s objections. Pa.R.C.P. 208.3(a)
provides for each party to be fairly heard on a contested issue before the issue is decided
by the Court, which has been fulfilled in this case because Defendants were given an
opportunity for argument through the presentation of their position in their Objections.
Therefore, this court denies Defendants’ Motion for Reconsideration of the Court Order
Dated September 29, 2010 Overruling Defendants’ Objection to Subpoenas.
CONCLUSION
Having considered the arguments of both parties and for the reasons set forth in
this opinion, this Court overrules Defendants’ preliminary objections and denies
Defendants’ Motion for Reconsideration of the Court Order Dated September 29, 2010
Overruling Defendants’ Objection to Subpoenas.
Accordingly the following order is entered:
ORDER OF COURT
th
AND NOW
, this 13 day of December, 2010, having considered the arguments
OVERRULES
presented by both parties, this Court Defendants’ preliminary objections
ORDEREDDECREED
and it is hereby and that the Defendants’ Motion for
Reconsideration of the Court Order Dated September 29, 2010 Overruling Defendant’s
DENIED
Objections to Subpoenas is .
By the Court,
__________________________
M. L. Ebert, Jr., J.
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Timothy J. Woolford, Esq.
Attorney for Plaintiff
John J. McNally, III, Esq.
Attorney for Defendants
16