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HomeMy WebLinkAbout93-0952 CivilBRUCE R. PETERS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : PRIMETIME LOCATING, INC.,: Defendant : NO. 952 CIVIL 1993 IN RE: DEFENDANT'S MOTION TO DISMISS BEFORE SHEELY, P.J., and OLER, J. ORDER OF COURT AND NOW, this ~ ~day of September, 1995, upon consideration of Defendant's Motion To Dismiss, and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT,  W$~}ey Oler r., R. Mark Thomas, Esq. 54 E. Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff William E. Gottfried, Esq. Suite 468 18167 U.S. 19 North Clearwater, FL 34624 Attorney for Defendant :re BRUCE R. PETERS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : PRIMETIME LOCATING, INC.,: Defendant : NO. 952 CIVIL 1993 IN RE: DEFENDANT'S MOTION TO DISMISS BEFORE SHEELY, P.J., and OLER, J. OPINION and ORDER OF COURT Oler, J. For disposition in this civil case is Defendant's motion to dismiss Plaintiff's complaint.~ The complaint against Defendant contains counts entitled breach of contract, rescission, bad faith and unfair trade practices. Defendant's motion to dismiss is based upon an alleged agreement of the parties to arbitrate disputes in Florida. For the reasons stated in this Opinion, the motion to dismiss will be denied. STATEMENT OF FACTS The record in the present case consists of a complaint and a "motion to dismiss"; the motion to dismiss was not endorsed with a notice to plead. The allegations of Plaintiff's complaint may be summarized as follows:2 Plaintiff is an individual residing in Camp Hill, Cumberland County, Pennsylvania. Defendant is a foreign corporation having ~ Defendant's Motion To Dismiss will be regarded as a preliminary objection. See Pa. R.C.P. 121. 2 In reciting the allegations of Plaintiff's complaint, the court is not expressing any opinion as to their factual accuracy. NO. 952 CIVIL 1993 its principal place of business in Palm Harbor, Florida. In September of 1992 Plaintiff was referred to Defendant by a company which sold him some popcorn products and associated display racks. The purpose of the referral was to enable Plaintiff to engage the services of Defendant for the acquisition of local vending sites for these products. On September 25, 1992, Plaintiff entered into a written agreement with Defendant, whereby Defendant was to obtain 66 locations for the vending of popcorn in Cumberland County, and Plaintiff was to pay Defendant $8,100.00. A down payment of $4,290.00 was made by Plaintiff. Under the contract, Defendant's fee was described as "non- refundable." Any liability of Defendant was limited to "the location fee herein." In addition, one of the paragraphs provided as follows: It is mutually agreed that Prime Time Locating, Inc. shall obtain the best account possible under currently existing local conditions. The parties agree that any and all disputes between them, and any claim by either party that cannot be amicably settled, shall be determined solely and exclusively by arbitration in accordance with the rules of the American Arbitration Association at its office in Clearwater, Florida. Judgement upon an award of the majority of the arbitrators shall be binding, and shall be entered in a court of competent jurisdiction. Following the execution of the contract, Plaintiff notified Defendant of his impending receipt of popcorn products, which were 2 NO. 952 CIVIL 1993 perishable, and Defendant advised that its agents would arrive in Cumberland County during the week of November 9, 1992, to locate sites. The agents did not, however, appear as promised, and Plaintiff's effDrts to contact Defendant for an explanation produced no results. On December 8, 1992, two persons identifying themselves as locators for Defendant did arrive in Cumberland County and commenced a search for vending sites for Plaintiff's products. Defendant, however, had already depleted the area in terms of available sites by performing the same service for other vendors. As a result, the agents were unable to find more than ten possible locations. The agents informed Plaintiff that they had exhausted their resources, advised him that he could accept or reject the sites they had found, and departed the area. Plaintiff chose not to accept the reduced number of sites. Plaintiff thereafter attempted to contact Defendant, but his efforts produced no response. When he requested, in January of the following year, that his down payment be refunded, he was told that Defendant remained ready, willing and able to find the 66 locations for him. At this point, the useful life of some of his goods had nearly expired and that of the balance of the goods had expired. Plaintiff donated the still-usable products to charity. The value of products which could not be sold as a result of 3 NO. 952 CIVIL 1993 Defendant's conduct was $1,058.92. Plaintiff also incurred the $4,290.00 down payment expense, as aforesaid. The motion to dismiss submitted on behalf of Defendant was not signed.3 It was filed by Defendant's Florida counsel,4 who also submitted a brief in support of the motion and filed a praecipe to list the case for argument. Defendant's motion challenges the jurisdiction of the court with respect to Plaintiff's claims, on the basis of the arbitration clause in the parties' agreement. The motion characterizes Plaintiff's lawsuit as being "maliciously and frivolously maintained." In addition to dismissal of the complaint, it seeks "costs" and "fees." Pursuant to the praecipe for argument filed on behalf of Defendant, oral argument on Defendant's motion was held on April 19, 1995. No one appeared on .behalf of Defendant, the moving party. DISCUSSION Several factors in the present case militate against the granting of Defendant's motion to dismiss on the basis of the existing record. First, it is a basic rule that "[p]reliminary 3 The motion was accompanied by a certificate of service upon Plaintiff's counsel signed by Defendant's president. 4 The letterhead of Defendant's Florida counsel indicates his membership in the bars of Florida, New York and the District of Columbia. 4 NO. 952 CIVIL 1993 objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt." Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). Second, contrary to Defendant's position, an arbitration clause in a contract does not, according to Pennsylvania law, deprive a court of common pleas of "jurisdiction." Foster v. Philadelphia Manufacturers, 140 Pa. Commw. 186, 592 A.2d 131 (1991). Nor is a forum selection clause, properly speaking, a jurisdictional matter. Central Contracting Co. v. C.E Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965). Third, where enforcement of a forum selection clause in a contract would be unreasonable at the time of litigation a court is not required to give effect to the clause to the prejudice of an unwilling litigant. See Churchill Corp. v. Third Century, Inc., 396 Pa. Super. 314, 578 A.2d 532 (1990). "An agreement is unreasonable [in this regard] where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff's ability to pursue its cause of action." Id. at 321-22, 578 A.2d at 536. "Where it is more expensive to defend a cause of action than to pay a default judgment solely because of the location in which the matter is being adjudicated, litigation in the foreign forum is no longer a matter of mere inconvenience or additional expense; 5 NO. 952 CIVIL 1993 rather it rises to the level of serious impairment of the parties' ability to defend against the action." Id. at 322, 578 A.2d at 536. The record as it exists in the present case tends to support Plaintiff's position that as a practical matter enforcement of the forum selection clause at issue would render any pursuit of remedies on Plaintiff's part economically unfeasible. Fourth, under Pennsylvania Rule of Civil Procedure 1028(b)(6) (preliminary objection based on agreement for alternative dispute resolution, inter alia), it is contemplated that a party may support a motion of the present type by the development of a factual record beyond the pleading challenged. See Committee Note, Pa. R.C.P. 1028(b). Defendant did not choose to do so in this case. Fifth, "one must be careful not to extend [an] arbitration clause by implication beyond the clear, express, and unequivocal intent of the parties as manifested by the writing itself." Emlenton Area .Municipal Authority v. Miles, 378 Pa. Super. 303, 308, 548 A.2d 623, 626 (1988). In addition, certain statutory rights are not casually relegated to arbitration by the judiciary. In the present case, it is not clear that rights and obligations under Pennsylvania's Unfair Trade Practices and Consumer Protection Law5 were within the contemplation of the parties with respect to 5 Act of December 17, 1968, P.L. 1224, as reenacted, 73 P.S. S§201-1 et seq. 6 NO. 952 CIVIL 1993 the arbitration clause at issue. Nor has the court discovered any authority for the proposition that such statutory rights and obligations, including the possibility of an award of treble damages "in [the court's] discretion" to an aggrieved consumer, were intended by the legislature to be consignable to common law arbitration. Finally, various procedural issues involving Defendant's motion are of concern. Under Pennsylvania Bar Admission Rule 301, a procedure for the admission of a member of the bar of another state pro hac vice has been prescribed. The record in the present case does not indicate that such a procedure was followed by Defendant's counsel.6 "Proceedings in court initiated by a person unauthorized to practice law are a nullity." 1 Standard Pennsylvania Practice 2d §4:2, at 317 (1981). Under Cumberland County Rule of Procedure 210-10, "[p]rior approval of the court must be obtained to present cases [scheduled for argument] only on briefs. Any request is to be made through the Court Administrator no later than five (5) days prior to argument .... " In this case, Plaintiff's counsel appeared in argument court and presented Plaintiff's position in opposition to 6 Pennsylvania also does not recognize the right of a corporate officer to represent a corporation in court. Walacavage v. Exceli 2000, Inc., 331 Pa. Super. 137, 480 A.2d 281 (1984). "[A] person who accepts the advantages of incorporation for his or her business must also bear the burdens, including the need to hire counsel to sue or defend in court." Id. at 142, 480 A.2d at 284. 7 NO. 952 CIVIL 1993 Defendant's motion, but no one appeared on behalf of Defendant to support it. Under Pennsylvania Rule of Civil Procedure 1023(a), "[e]very pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name. A party not represented by an attorney shall sign his own pleading."7 The signature to a pleading constitutes a certification that the person signing it has read it, that to the best of his knowledge, information and belief there is good ground to support it, and that it is not interposed for delay.8 As noted above, no such signature appeared on Defendant's pleading. Based upon the foregoing principles of law and procedural circumstances, the court has not been placed in a position to conclude that Defendant's right to dismissal of Plaintiff's action has been shown to be clear and free from doubt. For this reason, the following Order will be entered: ORDER OF COURT AND NOW, this 29th day of September, 1995, upon consideration of Defendant's Motion To Dismiss, and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 7 See also Pa. R.C.P. 1025 (endorsement requirement). 8 Pa. R.C.P. 1023(b). A preliminary objection is a pleading. Pa. R.C.P. 1017(a). 8 NO. 952 CIVIL 1993 R. Mark Thomas, Esq. 54 E. Main Street Mechanicsburg, PA 17055 Attorney for Plaintiff William E. Gottfried, Esq. Suite 468 18167 U.S. 19 North Clearwater, FL 34624 Attorney for Defendant :rc 9