HomeMy WebLinkAbout95-0153 Civil GARY S. SMITH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
HYTECH INDUSTRIES, INC., :
Defendant : NO. 95-0153 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE SHEELY, P.J., HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this Z~t~ day of June, 1995, upon careful
consideration of Defendant's Preliminary Objections in the form of
a motion challenging venue, a motion to strike, and a motion for a
more specific complaint, and for the reasons stated in the
accompanying Opinion, the court directs the parties to proceed by
deposition to provide a record that will enable the court to
properly determine the preliminary issue of venue.
UPON the filing of such deposition(s), counsel are requested
to notify the Court that a record has been made for purposes of
further action upon Defendant's preliminary objections.
BY THE COURT,
J~esley Ol~r, f~.: J:' -- '
Dennis
J.
Shatto,
Esq.
31 North Second Street
P.O. Box 11847
Harrisburg, PA 17108-1847
Attorney for Plaintiff
Thomas J. Finucane, Esq.
14 North Main Street
Room 500
Chambersburg, PA 17201
Attorney for Defendant
GARY S. SMITH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
HYTECH INDUSTRIES, INC., :
Defendant : NO. 95-0153 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE SHEELY, P.J., HESS and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
This case is before the court on Defendant's preliminary
objections filed in response to Plaintiff's amended complaint
alleging breach of contract for Defendant's failure to make certain
required payments. Defendant's preliminary objections are in the
form of a motion challenging venue, a motion to strike, and a
motion for a more specific complaint. Whether this court will
address the motion to strike and motion for a more specific
complaint is contingent upon the court's determination of the venue
issue. For the reasons set forth in this Opinion, the court will
direct the parties to proceed by deposition to make a record upon
which the court can determine whether venue exists in Cumberland
County.
STATEMENT OF FACTS
The pertinent allegations of Plaintiff's amended complaint are
as follows: Plaintiff "owns, operates, and trades as Down East
Fabrication," located at 232 South Eighth Street, Lemoyne,
Cumberland County, Pennsylvania.~ Defendant is a corporation with
Plaintiff's Amended Complaint, paragraph 1.
NO. 95-0153 CIVIL TERM
its business office located at 610 North Fifth Avenue,
Chambersburg, Franklin County, Pennsylvania.2 Between May 6, 1994,
and June 16, 1994, Plaintiff and Defendant entered into five
separate written agreements regarding the Plaintiff's provision of
labor and materials to be used in the installation of countertops
and sink bowls for a project at Lancaster General Hospital.3
After completing a portion of the project, Plaintiff sent
invoices to Defendant.4 Defendant was to pay Plaintiff according
to terms on Plaintiff's invoices.5 Both parties anticipated that
Defendant was to make payments to Plaintiff at Plaintiff's place of
business.6 Plaintiff has received two payments at his place of
business in Cumberland County.7
Despite repeated demands, the Defendant has neglected or
refused to pay the balance due in the amount of $25,890.10.8
Plaintiff seeks relief in the form of "all rights and remedies,
including penalties, interest, and reasonable attorney's fees and
expenses" as set forth in the Contractor and Subcontractor Payment
Plaintiff's Amended Complaint, paragraph 2.
Plaintiff's Amended Complaint, paragraph 3.
Plaintiff's Amended Complaint, paragraph 6.
Plaintiff's Amended Complaint, paragraph 8.
Plaintiff's Amended Complaint, paragraph 9.
Plaintiff's Amended Complaint, paragraph 10.
Plaintiff's Amended Complaint, paragraph 10.
2
NO. 95-0153 CIVIL TERM
Act, Act of February 17, 1994, P.L. 73, ~1, 73 Pa C.S. ~501 (1995
Supp.).9
In response to Plaintiff's amended complaint, Defendant filed
preliminary objections raising the aforesaid issues, including
venue. Defendant challenges the existence of venue in Cumberland
County, based upon the following allegations:
1. Defendant does not have an office in
Cumberland County nor does it regularly
conduct business in Cumberland County.~°
2. The cause of action did not arise in
Cumberland County.~
3. Cumberland County was not where the
transaction took place out of which the cause
of action arose. All contracts referred to in
the complaint were entered into in Franklin
County, Pennsylvania. The Plaintiff in all
cases sent proposals to defendant which
defendant accepted by mailing a purchase order
or delivering the purchase order to a sales
representative of Plaintiff in Franklin
County, Pennsylvania.~2
Plaintiff filed an answer to Defendant's preliminary
objections. In the answer, Plaintiff states the following:
1. After reasonable investigation,
Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of
the averments, and on that basis, they are
denied and proof is demanded .... [T]he
Plaintiff's Amended Complaint, paragraph 11.
Defendant's Preliminary Objections, paragraph 1.
Defendant's Preliminary Objections, paragraph 2.
Defendant's Preliminary Objections, paragraph 3.
3
NO. 95-0153 CIVIL TERM
averments of paragraphs 4, 5, 9, and 10 of the
Amended Complaint are incorporated herein by
reference.~3
Paragraph 4 of Plaintiff's Amended Complaint alleged that Defendant
sent purchase orders to Plaintiff's office in Cumberland County,
and Paragraph 5 asserted that Plaintiff manufactured products in
Cumberland County. Paragraphs 9 and 10 alleged that both parties
anticipated that payments would be made at Plaintiff's Cumberland
County office, and that two payments were in fact made there.
In the answer, Plaintiff also stated the following:
3 .... It is denied that Cumberland
County was not where the transaction took
place .... [T]he transaction out of which the
cause of action arose took place in Cumberland
County, PA. It is denied that all contracts
· .. were entered into in Franklin County ....
[A]ll contracts were entered into in
Cumberland County, PA .... It is denied that
Defendant accepted all of the proposals by
mailing a purchase order or delivering the
purchase order to a sales representative of
Plaintiff in Franklin County, PA ....
Defendant's employees or agents delivered
Corian products used in the work to Plaintiff
at Plaintiff's place of business in Cumberland
County.TM
STATEMENT OF LAW
With respect to the venue issue, Pennsylvania Rule of Civil
Procedure 2179(a) provides that, as a general rule, an
~3 Plaintiff's Answer to Defendant's Preliminary Objections,
paragraph 1.
~4 Plaintiff's Answer to Defendant's Preliminary Objections,
paragraph 3.
4
NO. 95-0153 CIVIL TERM
action against a corporation ... may be brought in and
only in
(1) the county where its registered
office or principal place of business is
located;
(2) a county where it regularly conducts
business;
(3) the county where the cause of action
arose; or
(4) a county where a transaction or occurrence
took place out of which the cause of action arose.
Additionally, Pennsylvania Rule of Civil Procedure 1028(a)(1)
permits the filing of a preliminary objection challenging venue of
an action. Rule 1028(c)(2), however, provides that, "[i]f an issue
of fact is raised, the court shall consider evidence by depositions
or otherwise." Moreover, the Rules Committee Note following Rule
1028(c)(2) states the general rule that preliminary objections
challenging venue "cannot be determined by facts of record."
The Superior Court of Pennsylvania has observed in the context
of determining venue that "[t]he court may not reach a
determination based upon its view of the controverted facts, but
must resolve the dispute by receiving evidence thereon through
interrogatories, depositions or an evidentiary hearing." $chmitt
v. Seaspray-Sharkline, Inc., 366 Pa. Super. 528, 532, 531 A.2d 801,
803 (1987). Schmitt further states that "[w]here an essential
factual issue arises from the pleadings as to the scope of a
defendant's activities within the Commonwealth ... the court must
NO. 95-0153 CIVIL TERM
permit the taking of the deposition before ruling on the
preliminary objections." Id.
Additionally, in Szekely v. Abilene Flour Mills Co., 211 Pa.
Super. 442, 237 A.2d 242 (1967), the Superior Court remanded to the
lower Court a case in which the lower court had denied the
defendant's motion to dismiss for lack of personal jurisdiction.
In issuing its denial, the lower court had relied solely on a
record devoid of testimony or written interrogatory responses. The
Superior Court directed the lower court to issue an order "allowing
the parties a reasonable period of time in which to present
evidence ... which will allow for the proper resolution of issues
of fact." Id. at 446, 237 A.2d at 244.
As noted above, venue in an action against a corporation
exists, inter alia, in a county where the "cause of action arose,"
or where "a transaction or occurrence took place out of which the
cause of action arose." Pa. R.C.P. 2179(a). In this regard, in
breach of contract actions premised upon a party's failure to make
a required payment, courts have predicated venue within the county
where payment was due both upon a theory that the cause of action
NO. 95-0153 CIVIL TERM
arose there~s and upon a theory that a transaction or occurrence out
of which the cause of action arose took place there.~6
APPLICATION OF LAW TO THE FACTS
The current record lacks sufficient information necessary to
guide the court in its determination of venue. Defendant has yet
to deny or admit Plaintiff's allegation that both parties
anticipated that payments would be made at Plaintiff's Cumberland
County office. The Defendant also has yet to deny or admit that he
has already made two payments to Plaintiff in Cumberland County.
In addition, a dispute exists as to where the parties entered
into the contract. Plaintiff asserts that Defendant sent the
purchase orders to Plaintiff's Cumberland County office.~7
Defendant, however, maintains that he mailed the orders to
~ See, e.g., Lucas Enterprises v. Paul C. Harman Co., 273 Pa.
Super. 422, 425, 417 A.2d 720, 721 (1980). In Lucas, the Superior
Court stated as follows:
In jurisdictions with a venue provision
similar to Pennsylvania's, the rule is
universal in the absence of agreement to the
contrary, that payment is due at the
plaintiff's residence or place of business,
and venue is proper there in a breach of
contract action alleging failure to make
payment.
Id.
~ See, e.g., PFA Members' Service Corp. v. Ansell, 42
Cumberland L.J. 601 (1993); New Cumberland Ins. Agency, Inc. v.
Bressler Metal Works, Inc., No. 3893 Civil 1993 (Cumberland Co.)
(May 20, 1993).
~7 Plaintiff's Amended Complaint, paragraph 4.
7
NO. 95-0153 CIVIL TERM
Plaintiff's agent in Franklin County.~8 Finally, Defendant has yet
to deny.or admit Plaintiff's assertions that Plaintiff manufactured
the project's materials in Cumberland County and that Defendant
delivered materials to Plaintiff's Cumberland County office.
Under these circumstances, it is not possible at this point to
determine whether Plaintiff's cause of action arose in Cumberland
County or whether a transaction or occurrence out of which the
cause of action arose took place in Cumberland County. The
following Order will therefore be entered:
ORDER OF COURT
AND NOW, this Z~ ~ day of June, 1995, upon careful
consideration of Defendant's Preliminary Objections in the form of
a motion challenging venue, a motion to strike, and a motion for a
more specific complaint, and for the reasons stated in the
accompanying Opinion, the court directs the parties to proceed by
deposition to provide a record that will enable the court to
properly determine the preliminary issue of venue.
UPON the filing of such deposition(s), counsel are requested
to notify the Court that a record has been made for purposes of
further action upon Defendant's preliminary objections.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Defendant's Preliminary Objections, paragraph 3.
8
NO. 95-0153 CIVIL TERM
Dennis J. Shatto, Esq.
31 North Second Street
P.O. Box 11847
Harrisburg, PA 17108-1847
Attorney for Plaintiff
Thomas J. Finucane, Esq.
14 North Main Street
Room 500
Chambersburg, PA 17201
Attorney for Defendant
: rc
9