Hydrair Inc. v. National Environmental Balancing Bureau

52 Pa. D. & C.4th 57, 2001 Pa. Dist. & Cnty. Dec. LEXIS 442
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 23, 2001
Docketno. 2846
StatusPublished

This text of 52 Pa. D. & C.4th 57 (Hydrair Inc. v. National Environmental Balancing Bureau) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hydrair Inc. v. National Environmental Balancing Bureau, 52 Pa. D. & C.4th 57, 2001 Pa. Dist. & Cnty. Dec. LEXIS 442 (Pa. Super. Ct. 2001).

Opinion

HERRON, J.,

Defendants National Environmental Balancing Bureau, Pennsylvania Environmental Balancing Association, Eastern Air Balance Inc., Bobby Roaten, Ted Salkin, Patricia Casey, Michael Dolim, Carlin Management and William Reardon filed six sets of preliminary objections to the second amended complaint of plaintiffs Hydrair Inc. and Albert Hawkins. The court sustains the objections in part.

BACKGROUND

NEBB is a trade association that certifies environmental balancing firms. NEBB’s offices are in Gaithersburg, Maryland. Dolim is a former vice-president of NEBB. He has not worked for NEBB since November 30, 1999.

PEBA is the Pennsylvania chapter of NEBB. Carlin Management is the company that PEBA hired to manage its office. Reardon is an owner of Carlin Manage[59]*59ment and secretary or treasurer of PEBA. Casey is a Carlin Management employee who serves as PEBA’s office manager. Salkin is chairman of the PEBA technical committee. Roaten is the former president of PEBA.

Environmental balancing firms test and balance heating and air conditioning systems. EAB and Hydrair are Pennsylvania environmental balancing firms and are competitors. Roaten is the president and owner of EAB, and Hawkins is an employee of Hydrair.

Until this year, plaintiffs held a NEBB certification to perform balancing work. The plaintiffs allege that the defendants conspired to revoke the plaintiffs’ certification by misrepresenting the quality of the plaintiffs’ balancing work to each other and to plaintiffs’ customers. Plaintiffs allege that, without the certification, they cannot perform balancing work.

On February 25,2000, plaintiffs Hydrair and Hawkins filed the original complaint against defendants NEBB, PEBA, EAB and Roaten. On July 27, 2000, the court sustained in part these defendants’ preliminary objections to the complaint and granted the plaintiffs leave to file an amended complaint within 20 days. The plaintiffs filed an amended complaint on August 21, 2000— five days late. Defendants filed preliminary objections, including an objection to strike the amended complaint as untimely. Instead of answering the preliminary objections, the plaintiffs filed a second amended complaint. The second amended complaint added Salkin, Casey, Dolim, Carlin Management and Reardon as defendants. The defendants again filed preliminary objections, including a motion to strike the second amended complaint based on the untimeliness of the first amended complaint. The court sustained the objection to untime[60]*60liness and struck the second amended complaint. On motion for reconsideration the court vacated that order.

At issue now are the preliminary objections to the second amended complaint. The second amended complain—which is not a model of clarity—has five counts. Count I asks for an injunction against only NEBB that orders NEBB to restore the certification. Count II claims tortious interference with contractual relations against all defendants. The plaintiffs base this claim on two sets of actions: Roaten and EAB’s interference with Hydrair’s existing balancing contracts with two school districts and all defendants’ participation in decertifying the plaintiffs, such that plaintiffs could not get future balancing contracts. Count III claims fraud against all defendants. Count IV claims defamation against all defendants except NEBB based on derogatory statements about the quality of the plaintiffs’ work. Count V claims conspiracy to defame against all defendants except NEBB.

DISCUSSION

I. The Court Overrules the Objections to Plaintiffs’ Untimely Amendment of the Complaint

NEBB objects to the second amended complaint as untimely. The court overrules the objection. In their motion for reconsideration, the plaintiffs set forth just cause for the five-day delay, and the court sees no preju-

dice accruing to the defendants from the delay. Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, 314-15, 681 A.2d 167, 170 (1996).

II. The Court Sustains Dolim’s Objection to Improper Form of Service

Dolim objects on the ground of improper service of the second amended complaint and lack of personal ju[61]*61risdiction. The court sustains the objections and quashes service on Dolim.

Under Pennsylvania’s Long-Arm Statute, a plaintiff may serve a defendant outside of Pennsylvania by any form of mail addressed to the defendant and requiring a signed receipt. 42 Pa.C.S. §5323(a)(3).1 The defendant or his authorized agent must sign the return receipt. Pa.R.C.P. 403 and 404(2). The certificate of service that the plaintiffs filed with the prothonotary shows that the plaintiffs sent a copy of the second amended complaint to NEBB in Gaithersburg, Maryland. Attached to the certificate of service are the transmittal letter addressed to Dolim at NEBB and the return receipt addressed only to NEBB, received on October 16, 2000 and bearing the signature of what appears to be “Toni Day.” Dolim did not sign the receipt. Without Dolim’s signature, service was not proper. Pa.R.C.P. 403.

In their brief, plaintiffs argue that service was proper because they served NEBB and NEBB is Dolim’s agent. The court disagrees for two reasons. First, the certificate of service that plaintiffs filed is not sufficient for this court to find that NEBB or Day was Dolim’s authorized agent to accept service of process. Pa.R.C.P. 405(b) (“A return of service shall set forth ... the identity of the person served and any other facts necessary for the court to determine whether proper service has been [62]*62made.”); Neff v. Tribune Printing Co., 421 Pa. 122, 125, 218 A.2d 756, 757 (1966) (stating that there is no presumption of validity of service of process, and holding service was invalid where, among other things, the return of service did not set forth the agency of the person served). Second, the plaintiffs have admitted that Dolim has not appointed an agent for service of process. In paragraph 26 of his preliminary objections, Dolim alleges that he “has not authorized any person at NEBB’s offices or anyone else to accept, receive or sign for service of process on his personal behalf.” In violation of Pa.R.C.P. 1029(a) and Phila.Civ.R. *1028 (C)(1), plaintiffs did not specifically admit or deny this factual averment or assert lack of knowledge under Pa.R.C.P. 1029(c). Instead, plaintiffs answered paragraph 26 as follows: “Denied. This allegation avers matters outside the four corners of the complaint and is thus not cognizable by way of preliminary objection.” Answer to Dolim’s preliminary objections ¶26. The plaintiffs are incorrect in arguing that they need not specifically answer this objection raising outside evidence. The rules specifically provide for the admission of outside evidence to resolve an objection raising issues of fact about improper service. Pa.R.C.P. 1028(c)(2) and note. Had plaintiffs specifically denied paragraph 26 or alleged lack of knowledge, the court might have ordered discovery to resolve the objection. But because plaintiffs did not specifically admit or deny paragraph 26 or assert a lack of knowledge, the court must deem plaintiffs to have admitted that Dolim has not authorized anyone at NEBB to accept service for him. Pa.R.C.P. 1029(b); Cercone v. Cercone, 254 Pa. Super. 381, 386, 386 A.2d 1, 4 (1978). Therefore, Day was not Dolim’s agent to accept service.

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Bluebook (online)
52 Pa. D. & C.4th 57, 2001 Pa. Dist. & Cnty. Dec. LEXIS 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hydrair-inc-v-national-environmental-balancing-bureau-pactcomplphilad-2001.