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HomeMy WebLinkAbout93-2784 Civil (2)SKG TOOLS, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : BENJAMIN L. BIRD, JR., : Defendant : NO. 2784 CIVIL 1993 IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO VENUE BEFORE HOFFER, BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this2~$day of May, 1994, upon careful consideration of Defendant's Preliminary Objection raising the issue of venue, and based upon the evidence, briefs and arguments presented on the matter, Defendant's Preliminary Objection is DENIED. BY THE COURT, J!JWesley, OleE~r., J. John McN. Cramer, Esq. 213 Market Street P.O. Box 11844 Harrisburg, PA 17108 Attorney for Plaintiff Francis M. Socha, Esq. 2201 North Second Street Harrisburg, PA 17110 Attorney for Defendant :re SKG TOOLS, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW BENJAMIN L. BIRD, JR., : Defendant : NO. 2784 CIVIL 1993 IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO VENUE BEFORE HOFFER, BAYLEY and OLER, JJ. OPINION AND ORDER OF COURT Oler, J. This case is presently before the Court for disposition of a preliminary objection challenging venue filed by Benjamin L. Bird, Jr. (Defendant), in response to a complaint filed by SKG Tools, Inc. (Plaintiff). In addition to this preliminary objection, Defendant had filed three other preliminary objections with respect to Plaintiff's Complaint, which were denied by this Court on February 24, 1994.~ However, based upon the limited record before the Court at that time, we were unable to properly dispose of Defendant's challenge as to venue, and, consequently, directed the parties to submit further evidence on this issue.2 Such evidence has now been submitted in the form of a deposition of Defendant.3 Following a review of the record as supplemented, we believe Defendant's preliminary objection must be denied. Statement of facts. The facts of this case, as averred in ~ See SKG Tools, Inc. v. Benjamin L. Bird, Jr., 2784 Civil 1993, Opinion and Order of Court (February 24, 1994). 2 Id. 3 Deposition of Benjamin L. Bird, Jr., March 24, 1994 (hereinafter N.T. __.). No. 2784 CIVIL 1993 Plaintiff's Complaint, were summarized in our prior Opinion as follows: Plaintiff is a South Carolina corporation which sells tools manufactured by Schurmann GMbH & Co., KG. Defendant is an individual who resides at 2465 The Haulover, John ' s Island, South Carolina, and is the "president, secretary, treasurer, and majority owner of [CIP], a Pennsylvania corporation . .., which at all relevant times had its principal place of business at 17 Brenneman Circle, Unit E, Mechanicsburg, Cumberland County, Pennsylvania." CIP was engaged in the business of providing warehouse and distribution services from its Mechanicsburg location, and it was in the course of this business that goods owned by Plaintiff were delivered to CIP and came under the control of Defendant. On August 20, 1992, Plaintiff requested that its goods, which were in the possession of CIP and under the control of Defendant, be delivered to it pursuant to its directions. However, Defendant "wrongfully and intentionally prevented the delivery" of these goods as directed by Plaintiff. In Count I of its Complaint, Plaintiff avers that such conduct on the part of Defendant constituted the tort of conversion. As such, Plaintiff is demanding judgment in the amount of $121,648, the value of the goods, plus interest, delay damages, punitive damages, and costs. In Count II of its Complaint, Plaintiff avers that Defendant came into possession of checks from Plaintiff's customers which were made payable to Plaintiff. Plaintiff further avers that, beginning "at least as early as May, 1992, [Defendant] fraudulently converted [these] checks . . by endorsing them and depositing them i~to an account in the name of Construction/Industrial Products Corporation No. 2784 CIVIL 1993 at Farmers Trust Bank in Pennsylvania.''4 Additionally, in his deposition, Defendant stated that CIP is a Pennsylvania corporation which operated a warehouse in Mechanicsburg, Cumberland County, Pennsylvania, and that it had received tools owned by Plaintiff at this warehouse,s Furthermore, during cross-examination, Defendant identified a voluntary petition in bankruptcy filed by CIP listing 17 Brenneman Circle, Mechanicsburg, Pennsylvania, as its address.~ Also, Defendant identified a check which was made payable to Plaintiff at Brenneman Circle in Mechanicsburg and which was deposited into an account at Farmer's Trust Bank in the name of CIP.? Defendant further admitted that he "purported[ly] transferred tools from SKG to CIP," and that these tools "were in the warehouse at Mechanicsburg and they stayed in the warehouse at Mechanicsburg.''8 Statement of law. Initially, it should be noted that venue is governed by Pennsylvania Rule of Civil Procedure 1006. This Rule provides that, with certain exceptions not here relevant, "an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or Opinion and Order of Court, February 24, 1994, at 2-3. N.T. 5, 17. N.T. 22-23; Deposition Exhibit 1. N.T. 25-26; Deposition Exhibit 2. N.T. 28. 3 No. 2784 CIVIL 1993 where a transaction or occurrence took place out of which the cause of action arose.''9 With respect to the cause of action in Plaintiff's Complaint, the tort of conversion consists of the "deprivation of another's right of property in, or use or possession of, a chattel, without the owner's consent and without lawful justification." Shonberger v. Oswell, 365 Pa. Super. 481, 484, 530 A.2d 112, 114 (1987). Furthermore, "[m]oney may be the subject of conversion." Id. at 485, 530 A.2d at 114. Application of law to facts. Based upon the statements contained in Defendant's deposition, viewed in conjunction with the allegations of Plaintiff's Complaint, we are of the opinion that venue of this action properly lies in Cumberland County pursuant to the quoted portion of Rule 1006. It appears that Plaintiff's tools were lodged at CIP's warehouse in Cumberland County, and that they remained there following their purported transfer to CIP.~° It also appears that at least one check made payable to Plaintiff was deposited in CIP's account at Farmer's Trust Bank in Cumberland County. If Defendant did, in fact, convert Plaintiff's property, there is a sufficient basis for concluding that Cumberland is a county in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. 9 Pa. R.C.P. 1006. ~0 N.T. 28. 4 No. 2784 CIVIL 1993 ORDER OF COURT AND NOW, this2~day of May, 1994, upon careful consideration of Defendant's Preliminary Objection raising the issue of venue, and based upon the evidence, briefs and arguments presented on the matter, Defendant's Preliminary Objection is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. John McN. Cramer, Esq. 213 Market Street P.O. Box 11844 Harrisburg, PA 17108 Attorney for Plaintiff Francis M. Socha, Esq. 2201 North Second Street Harrisburg, PA 17110 Attorney for Defendant :rc