HomeMy WebLinkAbout92-3315 CivilPFA MEMBERS' SERVICE IN THE COURT OF COMMON PLEAS OF
CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. CIVIL ACTION - LAW
LARRY E. ANSELL,
Defendant NO. 3315 CIVIL 1992
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER, BAYLEY, and OLER. JJ.
ORDER OF COURT
AND NOW, this kq{ 4day of January, 1993, upon consideration of
Defendant's preliminary objection based upon an alleged lack of
venue, and of the briefs submitted thereon, the preliminary
objection is DENIED. Defendant is granted twenty days within which
to file an answer.
BY THE COURT,
David J. Lanza, Esq.
JOHNSON, DUFFIE, STEWART &
WEIDNER
Attorney for Plaintiff
William J. Ober, Esq.
16 East Otterman Street
Greensburg, PA 15601
Attorney for Defendant
:rc
` J.
PFA MEMBERS' SERVICE IN THE COURT OF COMMON PLEAS OF
CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff -
V. CIVIL ACTION - LAW
LARRY E. ANSELL, NO. 3315 CIVIL 1992
Defendant -
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER, BAYLEY, and OLER, JJ.
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case is a preliminary objection to a
complaint against a defendant insured by Plaintiff based upon an
alleged lack of venue. The action, commenced by PFA Members'
Service Corporation (Plaintiff) against Larry E. Ansell
(Defendant) , arises out of Defendant's alleged failure to pay an
audit premium' as required by the insurance policy. The underlying
facts as set forth in Plaintiff's complaint may be summarized as
follows:2
On April 29, 1985, Plaintiff entered into a workers'
compensation insurance agreement (Agreement) under which Plaintiff
agreed to provide farm workers' compensation coverage to the
' "By 'audit premium' it is meant that the premium stated in
the declarations is only an estimate. The actual premium is based
on factors such as the insured's payroll, gross sales or receipts,
number of operations, and the like, which are some indication of
the extent of the insured risks." 14 Appleman, Insurance Law and
Practice §7848.25, at 122 (1985).
2 The recitation of the facts, as set forth in Plaintiff's
complaint, is not intended by the Court to indicate an opinion as
to the accuracy of the allegations.
No. 3315 Civil 1992
Defendant.3 Payments were required to be made at Plaintiff's Camp
Hill, Cumberland County, office.' Under the terms of the
Agreement, Plaintiff was to perform payroll audits upon which
premiums would be based.' Subsequent to audits on February 4, June
17, and August 11 of 1992, Plaintiff billed Defendant for insurance
and audit services in the amount of $1,802.00.6
Plaintiff avers that Defendant is in breach of the Agreement
because he failed to tender payment for insurance and audit
services; consequently, it commenced the present action in the
Court of Common Pleas of Cumberland County.
7 Defendant
subsequently filed preliminary objections to Plaintiff's complaint
based upon an alleged lack of venue in Cumberland County.
Defendant's position is premised on the following arguments: (1)
that Defendant neither resides nor conducts business in Cumberland
County; (2) that the transaction from which Plaintiff's cause of
action allegedly arose took place in Westmoreland County; (3) that
the Agreement was entered into in Westmoreland County; and (4)
3 Plaintiff's complaint, paragraph 3; Exhibit A.
° Plaintiff's complaint, paragraph 7.
' Plaintiff's complaint, paragraphs 3, 5.
6 Plaintiff's complaint, paragraph 6; Exhibit C.
' Plaintiff's complaint, paragraph 10. Plaintiff seeks a
judgment against Defendant in the amount of $1,802.00 plus $27.28
in interest, which will continue to accrue at a rate of 1.5% per
month, and costs. Plaintiff's complaint, paragraph 9, Ad Damnum
Clause.
2
No. 3315 Civil 1992
that the Agreement does not authorize any other county to be the
situs of the transaction.8 The matter was argued before this Court
on December 9, 1992.
Under Pennsylvania Rule of Civil Procedure 1006(a), venue in
an action against an individual is said to be proper, with certain
exceptions not here relevent, "in and only in a county in which he
may be served or in which the cause of action arose or where a
transaction or occurrence took place out of which the cause of
action arose or in any other county authorized by law." In a
contract action for omission of a payment to be made at a
plaintiff's place of business situate in the forum county, it has
been held that defendant's nonpayment represents an occurrence
within the forum county out of which the cause of action arose.
Rothermel v. Trimmer, Cumberland L.J. 511, 512 (1983) (Shughart,
J.). Based upon this rule, venue in the present case is proper in
Cumberland County.
ORDER OF COURT
AND NOW, this 14th day of January, 1993, upon consideration of
Defendant's preliminary objection based upon an alleged lack of
venue, and of the briefs submitted thereon, the preliminary
8 Defendant's Preliminary Objections.
3
No. 3315 Civil 1992
objection is DENIED. Defendant is granted twenty days within which
to file an answer.
David J. Lanza, Esq.
JOHNSON, DUFFIE, STEWART &
WEIDNER
Attorney for Plaintiff
William J. Ober, Esq.
16 East Otterman Street
Greensburg, PA 15601
Attorney for Defendant
:rc
BY THE COURT,
s/J Wesley Oler, Jr.
J.
4