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Home My WebLink About92-1110 Civil J. MICHAEL BRILL & : IN THE COURT OF COMMON PLEAS OF ASSOCIATES, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION - LAW : CHARLES M. DUNKELBERGER, : individually, and PINE HILL : ASSOCIATES, INC., : Defendants : NO. 1110 CIVIL 1992 IN RE: DEFENDANTS, PETITION TO TRANSFER AND CONSOLIDATE BEFORE HOFFER and OLER, jj. ORDER OF COURT AND NOW, this ~ ~ day of April, 1994, after careful consideration of Defendants, petition to consolidate and transfer, the petition is DENIED. BY THE COURT, , ,: I David J. Lanza, Esq. ~ 'W~sley-Ole--~ Jr.~. 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Attorney for Plaintiff P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Defendants :rc NO. 1110 CIVIL 1992 J. MICHAEL BRILL & : IN THE COURT OF COMMON PLEAS OF ASSOCIATES, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION - LAW : CHARLES M. DUNKELBERGER, : individually, and PINE HILL : ASSOCIATES, INC., : Defendant : NO. 1110 CIVIL 1992 IN RE: DEFENDANTS, PETITION TO TRANSFEi: .AND CONSOLIDATE BEFORE HOFFER and OLER, JJ. QPINION AND ORDER OF COURT Oler, J. The present case arises out of a breach of contract action in which Defendants allegedly failed to pay fees for engineering services rendered by Plaintiff. For disposition at this time is Defendants, motion to transfer this case to Perry County and consolidate it with an action presently before that Court. For the reasons stated in this Opinion, Defendants, motion will be denied. Plaintiff initiated this action by filing a complaint on March 24, 1992. This was succeeded by an amended complaint on April 1, 1992, which made the following averments: Plaintiff is a Pennsylvania corporation with a business address of Suite 112, 5000 Ritter Road, Mechanicsburg, Cumberland County, Pennsylvania.~ Defendant-Dunkelberger is an adult individual having a place of business at P.O. Box 32-F, R.D. #2, Plaintiff,s Amended Complaint, paragraph 1. NO. 1110 CIVIL 1992 Loysville, Tyrone Township, Perry County, Pennsylvania.2 Defendant-Pine gill is a Pennsylvania association with a principal address at P.O. Box 32-F, R.D. #2, Loysville, Tyrone Township, Perry County, Pennsylvania.3 Plaintiff and Defendants entered into a contract at Plaintiff,s office in July of 1990 in which Plaintiff agreed to provide engineering services, construction plans, and subdivision plans to Defendants.4 Defendants agreed to pay $45.00 per hour for these services.5 The total amount that Plaintiff invoiced Defendants was $13,788.77 for services rendered.6 Plaintiff contends that this amount was owed as a result of fulfillment of all of its obligations under the contract pursuant to Defendants, verbal authorization.? According to Plaintiff, Defendants have paid $4,000.00 of the amount owing and are refusing to pay the balance of $9,788.77.e Therefore, Plaintiff is asking for the balance due, plus interest at the rate of 6% per annum from December 28, 1990, until April 17, 1990, amounting to $766.36, for Plaintiff,s Amended Complaint, paragraph 2. Plaintiff,s Amended Complaint, paragraph 3. Plaintiff,s Amended Complaint, paragraphs 4-5. 5 Plaintiff,s Amended Complaint, paragraph 6. Plaintiff,s Amended Complaint, paragraph 8. Plaintiff,s Amended Complaint, paragraph 7. Plaintiff,s Amended Complaint, paragraph 10. 2 NO. 1110 CIVIL 1992 a total of $10,555.13.9 Defendants filed an answer to Plaintiff,s amended complaint and a counterclaim on May 5, 1992. In their answer to Plaintiff,s complaint, Defendants deny that Plaintiff fulfilled all of its obligations under the contract pursuant to Defendants, verbal auth°rizati°n-~° Additionally, Defendants deny that there is any money due and owing to Plaintiff.n In their counterclaim, Defendants aver that Plaintiff was retained for the purpose of submission of a subdivision plan in Tyrone Township, Perry County, Pennsylvania.~2 According to Defendants, Plaintiff certified that all the information contained in the subdivision plan, which Plaintiff prepared, was true, even though at all relevant times it was advised by the Perry County Soil Conservation District and the Department of Environmental Resources that the plan it was preparing would not be acceptable.~ Defendants also claim that Plaintiff failed to advise Defendants of the information received from the aforementioned agencies, and 9 Plaintiff,s Amended Complaint, paragraph 12. ~0 Defendants, Answer to Amended Complaint with Counterclaim, paragraph 7. ~ Defendants, Answer to Amended Complaint with Counterclaim, paragraphs 10, 12. ~2 Defendants, Answer toAmended Complaint with Counterclaim, paragraph 14. ~3 Defendants, Answer to Amended Complaint with Counterclaim, paragraphs 15-16. NO. 1110 CIVIL 1992 otherwise failed to inform Defendants as to the existence of wetlands on the location of the subdivision plan.~4 As a result of Plaintiff,s failure to disclose this information, Defendants contend that a significant portion of their land was declared to be wetlands and is incapable of subdivision.~5 Therefore, Defendants have filed a counterclaim for their "loss of property and value thereof,., requesting judgment in excess of $20,000.00~6 Plaintiff filed an answer to Defendants, counterclaim on May 18, 1992. Plaintiff denies that it had been advised by the Perry County Conservation District and the Department of Environmental Resources that its plan was unacceptable and denies that it withheld this information from Defendants.~7 Additionally, Plaintiff claims that it informed Defendants as to the possibility of wetlands on the location in question, and, to the extent that Defendants, land consists of wetlands, no conduct on the part of Plaintiff caused such a status.~B On July 14, 1993, the parties to this action stipulated that ~4 Defendants, Answer to Amended Complaint with Counterclaim, paragraph 17. ~5 Defendants, Answer to Amended Complaint with Counterclaim, paragraph 18. ~6 Defendants, Answer to Amended Complaint with Counterclaim, paragraph 19. ~7 Plaintiff,s Answer to Counterclaim, paragraphs 16-17. ~B Plaintiff,s Answer to Counterclaim, paragraphs 17-18. 4 NO. 1110 CIVIL 1992 the discovery conducted in the case docketed at 92-313 in the Court of Common Pleas of Perry County - Pine Hill Associates v. Act One Engineering, Inc., Dennis F. Brown, and J. Michael Brill & Associates, Consulting Engineers, Inc. -- could be used as though conducted in the present case. Specifically, the stipulation related to the March 24, 1993, "request for admission of J. Michael Brill & Associates, Inc." On October 21, 1993, Defendants petitioned this Court for a change of venue to Perry County and the consolidation of this action with that of Pine Hill Associates v. Act One Engineering, Inc., Dennis F. Brown, and j. Michael Brill & Associates, Consulting Engineers, Inc., which is pending before the Perry County Court. In their petition, Defendants allege that, prior to the filing of the complaint in the present action, Defendants, on March 9, 1992, filed the action in the Court of Common Pleas of Perry County naming Plaintiff, Act One Consultants, Inc., and Dennis F. Brown, as defendants.~9 According to Defendants, the Perry County action involves alleged impropriety in the engineering services and construction plans as prepared by Plaintiff "as well as other persons involved in the sub-division plans in the Perry County action... 20 Defendants aver that both cases involve identical issues and ~9 Defendants, Petition, paragraph 4. 20 Defendants, Petition, paragraph 5. 5 NO. 1110 CIVIL 1992 that adjudication of the Cumberland County case could result in a duplication of trials.2~ Therefore, as a matter of economic and legal efficiency, Defendants have petitioned this Court to have the case transferred to Perry County and consolidated with the case pending before that Court.22 In response to Defendants, petition, the Court issued a Rule upon Plaintiff on October 21, 1993, and Plaintiff filed an answer in opposition to the petition on November 12, 1993, denying much of Defendants, factual position. Coordination of actions pending in different counties is controlled by Pennsylvania Rule of Civil Procedure 213.1. It provides, in pertinent part, as follows: In actions pending in different counties which involve a common question of law or fact ~__~ich arise from the same transact' uuurrence, an,, _~_~ .... ion or A~L-- __. ~ FQ~Uy, with notice ~ =~ ~er P~rtles, may file a motion .... -~ -T~ .... · ,zu-~ ~ complaint was first filed to order coordination of the actions. Any party may file an answer to the motion and the court may hold a hearing. (Emphasis added.). Pennsylvania Rule of Civil Procedure 213.1(a). The procedure for obtaining an order for transfer and consolidation is deliberately left general and flexible, the only two requirements being that all other parties must be given notice and that the request must be made to the court in which a complaint was first filed. Pennsylvania Rule of Civil Procedure 213.1, Explanatory Comment - ~ Defendants, Petition, paragraph 7. ~ Defendants, Petition, paragraph 9. 6 NO. 1110 CIVIL 1992 1990. The Commonwealth Court has confirmed that "[b]y the plain language of Rule 213.1, the decision whether to transfer and coordinate is restricted to the court where the first complaint was filed.,. Lincoln General Insurance Company v. Donahue, 151 Pa. Commw. 297, 305 n.6, 616 A.2d 1076, 1080 n.6 (1992). "The question of the propriety of a Rule 213.1 transfer is to be presented only to the court where the initial complaint was filed.,. Id. The purpose of Rule 213.1 is to provide the means by which to regulate actions brought in different counties which involve common questions of law or fact or which arise from the same transaction or occurrence. 1 Goodrich Amram 2d S213.1:1 (1991). "The basis for the rule is the avoidance of multiple trials and proceedings in such actions and the resultant economy to both the parties and the judicial system... Id. at 237. The purposes which Defendants purport to achieve by securing a transfer of the present action to Perry County and consolidating it with the action pending there are avoidance of a multiplicity of trials and promotion of both economic and judicial efficiency Thus, a transfer and consolidation pursuant to Pennsylvania Rule o~ Civil Procedure 213.1 is the proper means to accomplish this task. However, because the complaint in the Perry County action was filed first, this Court has no authority to grant Defendants, petition. In their Brief in Support of Petition to Transfer and 7 NO. 1110 CIVIL 1992 Consolidate, Defendants contend that this Court has the power to transfer the case to Perry County and consolidate it with the action pending there pursuant to Pennsylvania Rule of Civil Procedure 1006(d).23 Rule 1006(d)(1) provides that "If]or the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought... The choice of forum by the Plaintiff is entitled to weighty consideration and should not be disturbed lightly. Walker v. The Ohio River Company, 416 Pa. 149, 152, 205 A.2d 43, 45 (1964). However, "a plaintiff,s choice of forum is not unassailable and the availability of a forum non conveniens challenge is a necessary counterbalance to insure fairness and practicality.., Okkerse v. Howe, 521 Pa. 509, 518, 556 A.2d 827, 832 (1989). Because, however, of the weight accorded to the plaintiff,s original choice courts have held that he or she should not be casually deprived of the advantages presumed to come from that choice. Id. In order for a defendant to overcome a plaintiff,s choice of forum, the defendant must clearly adduce facts that "either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff,s convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the 23 Defendants, Brief in Support of Petition to Transfer and Consolidate, at 6. 8 NO. 1110 CIVIL 1992 court,s own private and public interest factors, [but] unless the balance is strongly in favor of the defendant, the plaintiff,s choice of forum should rarely be disturbed.,. Id. The discretion as to whether to grant a Rule 1006(d) transfer is vested in the trial judge. Hoisery Corporation of America, Inc. v. Rich, 327 Pa. Super. 472, 474, 476 A.2d 50, 51 (1984). In determining whether to effect such a transfer, the trial judge must consider the following factors: the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive .... Factors of public interest also have Iai place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. Rini v. New York Central Railroad Company, 429 Pa. 235, 239-40, 240 A.2d 372, 374 (1968), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 843, 91 L. Ed. 1055, 1062 (1947). Moreover, before a court can order a transfer, it must find that "the transfer is more convenient for both parties to the action or for the witnesses... Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969). NO. 1110 CIVIL 1992 "IT]he party seeking a change of venue bears a heavy burden in justifying the request, and it has been consistently held that this burden includes the demonstration on the record of the claimed hardships... Okkerse v. Howe, 521 Pa. 509, 518, 556 A.2d 827, 832 (1989). Accordingly, in the past the Superior Court has held that "a proper procedure under Rule 1006(d) necessarily implicates the requirements for petition and answer set forth in Pa.R.Civ. P. 206 through 209, including the taking of evidence by deposition or otherwise on disputed issues of fact." Hoisery Corporation of America, Inc. v. Rich, 327 Pa. Super. 472, 475, 476 A.2d 50, 51 (1984). In the present case, we find that Defendants have not met their burden sufficiently to grant their request for transfer. Initially, we note that while Rule 1006(d) permits a court to transfer a case, nothing in the Rule authorizes the Court to consolidate the case with another in the forum to which it is transferred. Moreover, although the parties have stipulated that discovery conducted in the Perry County case may be used as though conducted in the present case, none of it relates to the convenience of the parties or the witnesses, and the record is otherwise not sufficiently supportive of a transfer on this ground to warrant nullification of Plaintiff,s choice of forum. For the reasons stated in this Opinion, the following order will be entered: 10 NO. 1110 CIVIL 1992 ~RDER OF COURT AND NOW, this ~ day of April, 1994, after careful consideration of Defendants, petition to consolidate and transfer, the petition is DENIED. BY THE COURT, s J. Wesle Oler Jr. J. Wesley Oler, Jr., J. David J. Lanza, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Attorney for Plaintiff P. Richard Wagner, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Defendants 12