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Home My WebLink About2010-3046RL REINER, LLC, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION INDIAN SPRINGS ASSOCIATES, LLC, Defendant : NO. 10-3046 CIVIL TERM DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., January 4, 2011. In this civil case, Plaintiff has filed a complaint against Defendant arising out of an agreement of sale wherein Defendant agreed to sell to Plaintiff a certain mobile home park in Southampton Township, Cumberland County, Pennsylvania.' For disposition at this time are preliminary objections filed by Defendant to the complaint, seeking a dismissal of the action on the ground that the agreement contained a paragraph providing (a) for non-binding arbitration to be held in Adams County, Pennsylvania, with respect to disputes relating to the agreement and (b) for venue to lie in the Court of Common Pleas of Adams County with respect to a judicial resolution of such disputes. Argument on Defendant's preliminary objections was held on December 15, 2010. For the reasons stated in this opinion, the preliminary objections will be (a) granted as they relate to venue, to the extent that venue will be transferred to the Court of Common Pleas of Adams County, and (b) deferred for disposition to the Adams County Court as they relate to an agreement for alternative dispute resolution. ' Plaintiff s Complaint, filed October 15, 2010 (hereinafter Plaintiff s Complaint). 2 Defendant's Preliminary Objections Pursuant to [Pa.] R.C.P. 1028(a)(1) and [Pa.] R.C.P. 1028(a)(6), filed October 20, 2010 (hereinafter Defendant's Preliminary Objections).. STATEMENT OF FACTS In pertinent part, the allegations of Plaintiff's complaint may be summarized as follows: On March 9, 2010, Plaintiff RL Reiner, LLC, a limited liability company with a mailing address in Bethesda, Maryland, entered into a real estate agreement of sale as buyer with Defendant Indian Springs Mobile Home Park, LLC, a limited liability company having offices in Mechanicsburg, Cumberland County, Pennsylvania, as seller for the conveyance of a mobile home park in Southampton Township, Cumberland County, Pennsylvania, known as Indian Springs Mobile Home Park .3 The agreement of sale included the following paragraph: 26. Arbitration. The Seller and Buyer agree that disputes relating to this Agreement shall be submitted to nonbinding arbitration in Adams County, Pennsylvania. Each party shall select an arbitrator and the two arbitrators so selected shall select a third arbitrator between them, the controversy being heard by the panel of three arbitrators thus selected. The parties shall bear the cost of the arbitration equally between them. An appeal of the decision of the panel of arbitrators shall be filed in the Court of Common Pleas of Adams County, Pennsylvania.4 Defendant has thus far been unable or unwilling to convey the property in accordance with the agreement ,5 notwithstanding an extension of the settlement date ,6 and is in breach of the agreement.' Defendant has filed preliminary objections to Plaintiff's complaint based on the quoted language in the agreement, requesting a dismissal of the complaint pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(1) (improper venue) and 1028(a)(6) (agreement for alternative dispute resolution).$ s Plaintiff's Complaint, ¶5. 4 Real Estate Agreement of Sale, ¶26, affixed to Plaintiff's Complaint. 'See Plaintiff's Complaint, ¶¶8-33. 6 Addendum to Real Estate Agreement of Sale, affixed to Plaintiff's Complaint Plaintiff's Complaint, ¶31. s Defendant's Preliminary Objections. 2 DISCUSSION Under Pennsylvania Rule of Civil Procedure 1028(a), it is provided that preliminary objections may be filed on grounds of "improper venue"9 and an "agreement for alternative dispute resolution,"10 inter alia. It is well settled that, in general, parties to a contract may agree upon a judicial venue for disposition of disputes arising out of the contract, and that courts will acquiesce in their choice of forum. The modern and correct rule is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation.... Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff's ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement.... Central Contracting Co. v. C.E. Youngdahl & Co., Inc., 418 Pa. 122, 133-34, 209 A.2d 810, 816 (1965) (citations omitted). If a preliminary objection to venue is sustained and there is a county of proper venue within Pennsylvania, the action is not to be dismissed but instead is to be transferred to the appropriate court of that county. The costs and fees related to removal and transfer of the record are to be paid by the plaintiff. Pa. R.C.P. 1006(e); See Searles v. Estrada, 2004 PA Super 265, 856 A.2d 85. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 4th day of January, 2011, upon consideration of Defendant's Preliminary Objections Pursuant to [Pa.] R.C.P. 1028(a)(1) and [Pa.] R.C.P. 1028(a)(6), following oral argument held on December 15, 2010, and for the reasons stated in the 9 Pa. R.C.P. 1028(a)(1). 10 Pa. R.C.P. 1028(a)(6). 3 accompanying opinion, (a) Defendant's preliminary objections as they relate to venue are sustained to the extent that venue is transferred to the Court of Common Pleas of Adams County, Pennsylvania, Plaintiff to coordinate the removal and transfer of the record with the counties' prothonotaries and pay all costs and fees associated therewith, and (b) Defendant's preliminary objections as they relate to an agreement for alternative dispute resolution are deferred for disposition to the Court of Common Pleas of Adams County. Edward G. Puhl, Esq. 220 Baltimore Street Gettysburg, PA 17325 Attorney for Plaintiff Bruce J. Warshawsky, Esq. Nicholas A. Fanelli, Esq. 2320 North Second Street Harrisburg, PA 17110 Attorneys for Defendant 0 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. RL REINER, LLC, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION INDIAN SPRINGS ASSOCIATES, LLC, Defendant : NO. 10-3046 CIVIL TERM DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 4th day of January, 2011, upon consideration of Defendant's Preliminary Objections Pursuant to [Pa.] R.C.P. 1028(a)(1) and [Pa.] R.C.P. 1028(a)(6), following oral argument held on December 15, 2010, and for the reasons stated in the accompanying opinion, (a) Defendant's preliminary objections as they relate to venue are sustained to the extent that venue is transferred to the Court of Common Pleas of Adams County, Pennsylvania, Plaintiff to coordinate the removal and transfer of the record with the counties' prothonotaries and pay all costs and fees associated therewith, and (b) Defendant's preliminary objections as they relate to an agreement for alternative dispute resolution are deferred for disposition to the Court of Common Pleas of Adams County. BY THE COURT, J. Wesley Oler, Jr., J. Edward G. Puhl, Esq. 220 Baltimore Street Gettysburg, PA 17325 Attorney for Plaintiff Bruce J. Warshawsky, Esq. Nicholas A. Fanelli, Esq. 2320 North Second Street Harrisburg, PA 17110 Attorneys for Defendant