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Home My WebLink About2014-5044 BRADLEY SCHUTJER, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : No. 2014-5044 CIVIL CHADWICK BOGAR and SCHUTJER : BOGAR, LLC, : Defendants. : IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT BEFORE HESS, P.J., EBERT, J., PLACEY, J. ORDER OF COURT th AND NOW this 9 day of February, 2015, upon consideration of Defendants’ Preliminary Objections, oral argument held on December 19, 2014, and the briefs filed by the parties; IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Preliminary SUSTAINED Objection as to Venue is . Venue will be transferred to Dauphin County. DISMISSED All other Preliminary Objections raised by Defendants are as moot. By the Court, ______________________ M. L. Ebert, Jr., J. Michael A. Scherer, Esq. Attorney for Plaintiff Chadwick O. Bogar, Esq. Jonathan M. Crist, Esq. Attorney for Defendant Schutjer Bogar, LLC BRADLEY SCHUTJER, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : No. 2014-5044 CIVIL CHADWICK BOGAR and SCHUTJER : BOGAR, LLC, : Defendants. : IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT BEFORE HESS, P.J., EBERT, J., PLACEY, J. OPINION AND ORDER OF COURT Ebert, J., February 9, 2015 – 1 Defendants’ have filed several preliminary objections to Plaintiff’s complaint, including (1) an agreement for alternative dispute resolution, (2) improper venue, and (3) insufficient specificity. Preliminarily, we note that a determination of improper venue will relinquish this Court’s jurisdiction over this action. Therefore, we will first consider whether venue is proper. Statement of Facts Plaintiff, Bradley A. Schutjer, Esquire (hereinafter “Schutjer”) and Defendant, Chadwick O. Bogar, Esquire (hereinafter “Bogar”) were equal owners and manager- members of Schutjer Bogar LLC, (hereinafter “SBLLC”). SBLLC is engaged in the practice of law and is based in Dauphin County, Pennsylvania. Schutjer and Bogar executed the Second Amended and Restated Operating Agreement (hereinafter “Operating Agreement”) for the operation of SBLLC in June 2011. SBLLC filed for Chapter 11 Bankruptcy on March 20, 2013, which continued until October 17, 2013. 1 Both Defendants, Chadwick Bogar and Schutjer Bogar, LLC, have filed Preliminary Objections that are substantially similar. Schutjer Bogar, LLC raised an additional objection for legal insufficiency arguing they were not a named party to the Agreement. 1 On May 24, 2013, Schutjer and Bogar executed an agreement to govern Defendants’ purchase of Plaintiff’s ownership interest in SBLLC (hereinafter “Buyout Agreement”). The Buyout Agreement states it is modifying or amending the Operating Agreement as specifically set forth in the Buyout Agreement. In all other respects the Operating Agreement was to remain in full force and effect. Schutjer filed this action for breach of contract alleging that he was not receiving payment under the Buyout Agreement. Defendants’ filed the instant Preliminary Objections. Discussion I. Venue Defendants’ have filed a Preliminary Objection to Plaintiff’s complaint alleging that venue in Cumberland County is improper and venue should be transferred to Dauphin County. Defendants argue that because the Buyout Agreement was only meant to amend the Operating Agreement that the two agreements must be read together. Since the Operating Agreement includes a forum selection clause, selecting Dauphin County, Defendants argue venue is proper in Dauphin County. Plaintiff argues that because this action involves a dispute arising under the Buyout Agreement and not the Operating Agreement, the Operating Agreement’s forum selection clause does not apply. Plaintiff argues that Cumberland County is a proper venue because he is a resident, the Buyout Agreement was signed, and he receives the payments required by the Buyout Agreement in Cumberland County. The Operating Agreement states in relevant part, that the parties agree that proper jurisdiction and venue for resolution of any and all disputes hereunder shall only be in 2 the Court of Common Pleas for Dauphin County, Pennsylvania. See Section 12.07 of Operating Agreement. While the Buyout Agreement does not contain a similar forum selection clause, it does state that, by signing below, Members confirm that they are voluntarily, willingly and knowingly agreeing to modify and/or amend the Operating Agreement as specifically set forth below. Other than those specific changes set forth below, the Operating Agreement shall remain in full force and effect. See Buyout Agreement, May 24, 2013 (emphasis added). The Buyout Agreement expressly states that in the event of a breach, the non-breaching party shall have the right to sue for damages. See Buyout Agreement, ¶ 10. However, no mention of venue is made in the Buyout Agreement. As indicated above, the parties expressly stated that the Buyout Agreement was a modification and/or amendment of the Operating Agreement. Based on the plain language of the agreement, the Buyout Agreement was not intended to be a separate agreement. All language of the Operating Agreement not altered by the Buyout Agreement was to remain unchanged and in full force. The Buyout Agreement contains no forum selection clause. It follows, therefore, that the forum selection clause of the Operating Agreement remains in full force and effect and any claim arising under the Buyout Agreement also arises from the unaltered portions of the Operating Agreement. The Pennsylvania Supreme Court has stated that “…a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation”. Central Contracting Co. v. C.E. Youngdahl & Co., 209 A.2d 810, 816 (Pa. 1965); see also Morgan Trailer Mfg. Co. 3 v. Hydraroll, Ltd., 759 A.2d 926 (Pa. Super. 2000)(utilizing the test laid out in Central Contracting to determine the validity of a forum selection clause). “Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair the plaintiff’s ability to pursue his cause of action.” Id. Mere inconvenience or expense is not unreasonable. Id. Here, both the Operating Agreement and the Buyout Agreement were freely entered into by the parties. Both parties are sophisticated individuals with knowledge of the law. The parties were free to make the Buyout Agreement a separate, stand-alone agreement; however, they chose to make the Buyout Agreement amend and/or modify the Operating Agreement instead. Dauphin County is also a reasonable venue. It is immediately adjacent to Cumberland County and not inconvenient for either party. Furthermore, Dauphin County is the principal place of business for SBLLC. Schutjer will not be impaired in pursuing this claim if it is transferred to Dauphin County. Since the forum selection clause of the Operating Agreement controls the above- captioned matter, Defendants’ preliminary objection to venue is sustained. This matter will be transferred to Dauphin County pursuant to Pa.R.C.P. 1006(e). The following order will be entered: ORDER OF COURT th AND NOW this 9 day of February, 2015, upon consideration of Defendants’ Preliminary Objections, oral argument held on December 19, 2014, and the briefs filed by the parties; 4 IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Preliminary SUSTAINED Objection as to Venue is . Venue will be transferred to Dauphin County. DISMISSED All other Preliminary Objections raised by Defendants are as moot. By the Court, ______________________ M. L. Ebert, Jr., J. Michael A. Scherer, Esq. Attorney for Plaintiff Chadwick O. Bogar, Esq. Jonathan M. Crist, Esq. Attorney for Defendant Schutjer Bogar, LLC 5