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Home My WebLink About94-1773 Civil FRY COMMUNICATIONS, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : ONE POINT FIVE PUBLISHING : CO., INC., Defendant : : NO. 94-1773 CIVIL TERM IN RE: DEFENDANT,S PRELIMINARY OBJECTION TO VENUE BEFORE SHEELY p.j. BAYLEY and OLER jj. QRDER OF COURT AND NOW, this t2~ day of December, 1994, upon careful consideration of Defendant,s preliminary objection regarding venue, as well as the briefs presented on the matter, the parties are DIRECTED to proceed by depositions to provide a record upon which the matter may be determined. UPON the filing of such depositions, counsel are requested to notify the Court that a record has been made for purposes of disposition of Defendant,s preliminary objection. BY THE COURT, Robert A. Swift, Esq. Suite 2400 1101 Market Street Philadelphia, PA 19107 Attorney for Plaintiff Eugene F. Hickey, II, Esq. 400 Spruce Street Mellon Bank Building Suite 500 Scranton, PA 18503 Attorney for Defendant FRY COMMUNICATIONS, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : ONE POINT FIVE PUBLISHING : CO., INC., : Defendant : NO. 94-1773 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO VENUE BEFORE SHEELY, P.J., 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 One Point Five Publishing Co., Inc. (Defendant) in response to a complaint filed by Fry Communications, Inc. (Plaintiff). For the reasons set forth in this Opinion, the parties will be directed to proceed by deposition to make a record upon which the issue can be determined. STATEMENT OF FACTS The facts, as set forth in Plaintiff's complaint, may be summarized as follows: Plaintiff is a Pennsylvania corporation having a place of business at 800 West Church Road, Mechanicsburg, Cumberland County, Pennsylvania.~ Plaintiff is in the business of commercial printing.2 Defendant is a Pennsylvania corporation with a place of business at 611 Monroe Street, Scranton, Lackawanna County, Pennsylvania.3 Defendant is in the business of publishing Plaintiff's Complaint, paragraph 1. Plaintiff's Complaint, paragraph 1. Plaintiff's Complaint, paragraph 2. NO. 94-1773 CIVIL TERM a certain magazine.4 On or about November 17, 1993, Plaintiff and Defendant "entered into an agreement ... whereby [Plaintiff] agreed to furnish printing services to [Defendant] for agreed upon consideration."5 [Plaintiff] fully performed its printing services, but [Defendant] failed to make full Payment of the agreed upon consideration.6 "Despite request for payment [Defendant] has failed and refused to pay [Plaintiff] the balance due for the printing services rendered by [Plaintiff].''7 In Count I of its complaint, Plaintiff avers that such conduct on the part of Defendant constituted a breach of contract.8 In this regard, Plaintiff demands damages in the amount of $6,042.04.9 In Count II of its complaint, Plaintiff avers that Defendant's "indebtedness constitutes an account stated for which [Defendant] is liable to [Plaintiff]."~° In this regard, judgment in the same amount is demanded.~ Plaintiff's Complaint, paragraph 2. Plaintiff's Complaint, paragraph 3. Plaintiff's Complaint, paragraph 4. Plaintiff's Complaint, paragraph 6. Plaintiff's Complaint, paragrapk 7. Plaintiff's Complaint, paragraph 7. Plaintiff's Complaint, paragraph 12. Plaintiff's Complaint, demand clause. 2 NO. 94-1773 CIVIL TERM In response to Plaintiff's complaint, Defendant filed a preliminary objection. In it, Defendant states the following: All negotiations concerning the contract took place in and around Lackawanna County, Pennsylvania.~2 All transactions and/or series of transactions necessary for the creation and performance of a contract occurred or did occur in and around Lackawanna County, Pennsylvania.~3 Plaintiff has commenced this action in the Court of Common Pleas of Cumberland County and said venue is improper.TM In response to Defendant's preliminary objection, Plaintiff filed an Answer and New Matter to Defendant's Preliminary Objections. In the Answer portion, Plaintiff states the following: The negotiations took place in both Cumberland County and Lackawanna County .... ~s [T]he contract was accepted by Fry in Cumberland County and Fry's performance took place in Cumberland County.~6 In the New Matter portion, Plaintiff states the following: Pursuant to Rule 2179 of the Pennsylvania Rules of Civil Procedure, where a corporation is a defendant venue is proper in the county where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose.~7 The printing services furnished by Fry occurred entirely in Cumberland County where Fry has Defendant's Preliminary Objections, paragraph 3. Defendant's Preliminary ObjectiOns, paragraph 4. Defendant's Preliminary Objections, paragraph 5. Plaintiff's Answer and New Matter to Defendant's Preliminary Objections, paragraph 3. ~6 Plaintiff's Answer and New Matter to Defendant's Preliminary Objections, paragraph 3. ~7 Plaintiff's Answer and New Matter to Defendant's Preliminary Objections, paragraph 6. 3 NO. 94-1773 CIVIL TERM its printing plant.~8 Payment to Fry for its services was to have been made by defendant in Cumberland County.~9 During the course of the agreement Fry stored materials for defendant in Cumberland County.2° Defendant's officer came to Fry's place of business in Cumberland County in connection with the performance of the agreement and to pick up defendant's materials that were stored at Fry's place of business.2~ STATEMENT OF LAW On the issue of whether venue properly lies in a court, Pennsylvania Rule of Civil Procedure 2179(a) provides that an 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) ~8 Plaintiff's Answer and New Matter to Defendant's Preliminary Objections, paragraph 7. ~9· Plaintiff's Answer and New Matter to Defendant's Preliminary Objections, paragraph 8 .... 20 Plaintiff's Answer and New Matter to Defendant's Preliminary Objections, paragraph 9. ~ Plaintiff's Answer and New Matter to Defendant's Preliminary Objections, paragraph 10. 4 NO. 94-1773 CIVIL TERM provides for the filing of a preliminary objection challenging the venue of an action. However, Rule 1028(c)(2) provides that, "[i]f an issue of fact is raised, the court shall consider evidence by deposition or otherwise." Additionally, the Rules Committee Note following this rule states that "[p]reliminary objections raising an issue under (a)(1) ... cannot be determined from facts of record." In this regard, the Superior Court of Pennsylvania has observed that, "[f]requently, objections contained in the preliminary objection are apparent on [the] face of the record and will be readily determinable by the court without going outside the pleadings .... On the other hand, certain issues embraced in the preliminary objections will frequently be resolved only by the presentation of facts outside the record .... " Telstar Corp. v. Berman, 281 Pa. Super. 443, 448, 422 A.2d 551, 554 (1980). When faced with controverted facts, "[a] court may not reach a determination based upon its view of the controverted facts, but must resolve the dispute by receiving evidence thereon." 3 Goodrich Amram 2d §1028(c):4, at 50 (1991).22 Additionally, "[t]he failure of the parties to an action to provide the evidence 22~ See also Schmitt v. Seaspray~Sharkline, Inc., 366 Pa. Super. '528, 532, 531 A.2d 801, 803 (1987) (holding that, when a court is faced with controverted facts when addressing a preliminary objection challenging personal jurisdiction, it "must resolve the dispute by receiving evidence thereon through interrogatories, depositions, or an evidentiary hearing") (emphasis added). 5 NO. 94-1773 CIVIL TERM necessary for a proper determination of a factual issue raised by a preliminary objection does not excuse a court from further inquiry,"23 and a court would be in error if it were to rule on such a preliminary objection without receiving additional evidence. Telstar Corp. v. Berman, 281 Pa. Super. 443, 448, 422 A.2d 551, 554 (1980). APPLICATION OF LAW TO FACTS With reference to Defendant's assertion that venue does not properly lie in this court, we believe that the current state of the record does not permit an informed determination on the issue. Since there are controverted facts as to whether a transaction or occurrence out of which the cause of action arose occurred in Cumberland County, we find it necessary to require a more complete factual record prior to disposition of Defendant's preliminary objection. For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this J~ ~ day of December, 1994, upon careful consideration of Defendant's preliminary objection regarding venue, as weld as the briefs presented on the matter, the parties are DIRECTED to proceed by depositions to p~ovide a record upon which the matter may be determined. ~3 3 Goodrich Amram 2d ~1028(c):4, at 51 (1991). 6 NO. 94-1773 CIVIL TERM UPON the filing of such depositions, counsel are requested to notify the Court that a record has been made for purposes of disposition of Defendant's preliminary objection. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Robert A. Swift, Esq. Suite 2400 1101 Market Street Philadelphia, PA 19107 Attorney for Plaintiff Eugene F. Hickey, II, Esq. 400 Spruce Street Mellon Bank Building Suite 500 Scranton, PA 18503 Attorney for Defendant :re