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BAKER ET AL. v. RANGOS ET AL. BAKER ET AL. (06/21/74)

decided: June 21, 1974.

BAKER ET AL., APPELLANTS,
v.
RANGOS ET AL. BAKER ET AL., APPELLANTS, V. U. S. UTILITY SERVICE CORPORATION ET AL.



Appeals from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1973, No. 2733, in case of George P. Baker, Richard C. Bond, Jervis Langdon, Jr., and Willard Wirtz, Trustees of the Property of Penn Central Transportation Company, Debtor, v. U. S. Utility Service Corporation, Unity Trucking Co., Inc., Mountaineer Highway Abrasives Company, Inc., Unity Fuel and Construction Co., Inc., and Ran-Per, Inc.

COUNSEL

Michael W. Burns, with him Wilbur McCoy Otto, and Dickie, McCamey & Chilcote, for appellants.

George Shorall, with him Thomas Levendos, and Thomas A. Livingston, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J.

Author: Spaeth

[ 229 Pa. Super. Page 338]

This is an appeal from an order sustaining defendants' preliminary objections in the nature of a demurrer.

Appellants (plaintiffs below) are duly appointed trustees of the assets of the Penn Central Transportation Company (hereinafter "the railroad"), which is at present undergoing reorganization in the United States District Court for the Eastern District of Pennsylvania. Among the assets under appellants' control is the Hanlin Slag Dump, located along the railroad right-of-way in Washington County. In 1972, appellants initiated actions in the Court of Common Pleas of Allegheny County in an effort to recover damages for the unauthorized removal from the Hanlin Dump of 835, 617 cubic yards of slag valued at $1.65 per cubic yard, or a total of $1,378,768.05.

The defendants named in these actions are five corporations and two individuals: Ran-Per, Inc.; Unity Fuel and Construction Company, Inc.; Unity Trucking Company, Inc.; U. S. Utility Service Corporation, Inc.; Mountaineer Highway Abrasives Company, Inc.; and John Rangos and James Peretto. Each of the defendants save Ran-Per is an appellee here.

It appears from the pleadings that by written agreement of August 15, 1962, the railroad granted a license to Rangos authorizing him to remove slag from areas within the Hanlin Dump as indicated on a map that accompanied the agreement. In exchange for this license Rangos agreed to pay the railroad fifty-five cents per cubic yard for slag removed. On March 18, 1964, Rango's rights under the license were, with the consent of the railroad, assigned to Ran-Per, Peretto approving on behalf of Ran-Per. On February 24, 1965, Ran-Per was authorized to remove slag from additional areas as indicated on a new map. The railroad does

[ 229 Pa. Super. Page 339]

    not appear to have had such a formalized relationship with any of the other defendants.

The relationship of the defendants to each other is not clear. It may be noted, however, that "Ran-Per" appears to derive from "Rangos" and "Peretto". Also, appellants have alleged that Ran-Per and Unity Trucking have the same business address, that Peretto's residence is the place where Unity Fuel does business, and that U. S. Utility is the successor to the rights and liabilities of Unity Trucking and Mountaineer.

At the outset of this litigation, in July of 1972, appellants filed a single complaint against all defendants, charging each with breach of contract, conversion, and conspiracy to commit conversion. The defendants filed preliminary objections in the nature of a demurrer. As to Ran-Per, the court below dismissed all counts, except that based on the license, with leave to appellants to file an amended complaint. As to the other defendants, the court dismissed all counts without leave to amend but without prejudice to appellants' right to file a new action against each defendant.*fn1

In response to this order, appellants filed three complaints: an amended complaint against Ran-Per, charging it with breach of contract, conversion, and conspiracy to commit conversion; a new complaint against the other four corporate defendants, charging them with conversion; this was amended to add a count charging conspiracy to commit conversion; and a new complaint against Rangos and Peretto, charging them with conspiracy to commit conversion. Preliminary

[ 229 Pa. Super. Page 340]

    objections in the nature of a demurrer were filed to each complaint. On Ran-Per's preliminary objections, the court below ordered that an answer be filed to the counts of breach of contract and conversion but dismissed the conspiracy count; appellants have not appealed this order. On the other defendants' preliminary objections, the court dismissed both of the new complaints, without leave to amend; appellants have appealed these orders.

The questions presented by this appeal are: Does the amended complaint against the four corporate defendants state either a cause of action in conversion or in conspiracy to commit conversions? Does the complaint against Rangos and Peretto state a cause of action in conspiracy to commit conversion? We agree with the court below that the complaint against the four corporate defendants does not state a cause of action in conversion, and see no need to add to the court's discussion of that conclusion. As to the conspiracy charges, however, we think each complaint does state a cause of action.

The Conspiracy Charges

The conspiracy charge against the four corporate defendants and that against the two individual defendants are nearly identical. Paragraph 36 of the complaint against the corporate defendants, and paragraph 18 of the complaint against the individual defendants, each alleges: In or about March, 1966, the exact time and date presently unknown to Plaintiff [the railroad], Defendants . . . wickedly, unlawfully and maliciously did agree, confederate, combine and form themselves in a conspiracy to effect the unlawful and malicious design to take and remove without notice, permission or payment therefor, slag material from all unauthorized areas within the Site. "All

[ 229 Pa. Super. Page 341]

    unauthorized areas" refers to areas in the Hanlin Dump not covered by the license agreement between the railroad and Ran-Per. A copy of each of the two maps that accompanied the agreement, showing the Hanlin Dump and those areas where slag could be removed, was attached to the complaints.

The complaint against the corporate defendants continues:

"36. Pursuant to this agreement, combination and confederation, and in the pursuance of their unlawful purpose, Ran-Per, Inc. proceeded to take and remove, unknown to the Plaintiff at that time, certain quantities of slag materials from all unauthorized areas within the Site, and continued to so illegally take and remove said slag materials during the months of April through November during each of the years 1966 through 1971.

"37. Pursuant to the agreement, combination and confederation among the parties aforementioned, Defendants, Unity Trucking Company and Mountaineer Highway Abrasives Company, through their respective directors, officers, agents, servants and/or employees, counseled Ran-Per, Inc. in their common purpose and design, and throughout the entire period of said agreement, combination and confederation, Defendants, Unity Trucking Company and Mountaineer Highway Abrasives Company actively and physically participated in the unlawful removal of slag materials from all unauthorized areas of the Site during the months of April through November and during each of the years 1966 through 1970."

Paragraph 38 makes the same charge against Unity Fuel but with reference to "the months of April through November and during each of the years 1966 through 1971."

Paragraphs 39 and 40 charge that U. S. Utility joined the conspiracy "[i]n or about March, 1971;" as

[ 229 Pa. Super. Page 342]

    successor to Mountaineer and Unity Trucking and its own right it both "knowingly and actively counseled, encouraged and instructed Ran-Per, Inc. and other then existing members" in the common design, as well as participated in removing slag from unauthorized areas "at various times from April 1, 1971 through November 30, 1971."

Paragraph 41 describes some of the acts allegedly engaged in by the corporate defendants through their authorized agents:

"41. Pursuant to the agreement, combination, and confederation as aforementioned, each of the named defendants performed acts which effected the unlawful and wicked scheme and design, said acts consisting of but not limited to:

"(a) Physical removals of slag materials from all unauthorized areas of the Site . . . through the use of equipment owned and/or operated by ...


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