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HARVEY v. PINCUS

October 15, 1982

ROBERT F. HARVEY
v.
ELLIOTT N. PINCUS, et al.



The opinion of the court was delivered by: LUONGO

This pro se civil action was filed on February 13, 1978 by plaintiff, Robert F. Harvey, against four private attorneys (three of whom he had retained), their law firms, and the Sheriff of Montgomery County. Summary judgment has previously been entered in favor of the Sheriff of Montgomery County and all defendants on plaintiff's civil rights claims. After summary judgment was entered on the civil rights claims, Harvey withdrew his remaining state-law claims against all defendants except Elliott Pincus and the law firm of Miller & Pincus (hereinafter referred to collectively as Pincus). Pincus now moves for summary judgment on the state-law claims. Fed.R.Civ.P. 56.

 While I agree with Pincus that this court should not exercise pendent jurisdiction over plaintiff's state-law causes of action, see Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir. 1976), I am satisfied that plaintiff has established by a preponderance of the evidence that diversity jurisdiction existed at the time this action was commenced. See Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972).

 The sole jurisdictional fact in dispute is whether plaintiff was a New Jersey citizen on February 13, 1978, as he alleges in his complaint, or whether he was a citizen of Pennsylvania on that date. *fn1" Of course, for diversity purposes, citizenship means domicile; mere residence in a state is insufficient. Thus, "the fact of residency must be coupled with a finding of intent to remain indefinitely." Id. at 1300. Harvey has met his burden as to each of these elements. In both his deposition and affidavit, he asserts that he moved from Pennsylvania to Cherry Hill, New Jersey on December 25, 1977, when he took up residence in the home of Lois Danoff. (Document 81, Harvey Affidavit, para. 2.1). Ms. Danoff's affidavit corroborates Harvey's assertions. Id., Danoff Affidavit para. 11). In addition, to establish his intent to remain a New Jersey resident indefinitely, plaintiff has submitted several exhibits which indicate that, shortly after he established a New Jersey residence, he took steps to become a registered voter, obtained library privileges in Cherry Hill, and studied to become a notary public in New Jersey. While this evidence is not overwhelming, it is nonetheless weightier than the rebuttal evidence offered by Pincus, which consisted of (1) two envelopes, with Pennsylvania return addresses, used by Harvey for the service of pleadings in this action, and (2) a petition in bankruptcy filed by Harvey in this court on January 31, 1978 and which lists his "address" as a post office box in Pennsylvania. (Document 67, Exhibits H-I). As for the envelopes with the Pennsylvania return addresses, I can only say that that evidence is ambiguous at best. It appears from all the pleadings served by Harvey early on in this action that he believed that a local mailing address was required for the maintenance of an action in this district. Moreover, those same envelopes bear Cherry Hill, New Jersey postmarks. The listing of a Pennsylvania address on the petition in bankruptcy is of even less significance. Fed.R.Bkcy. P. 116(a) provides:

 
a petition by . . . a natural person may be filed in the district where the bankrupt has had his principal place of business, residence, or domicile for the preceding 6 months or for a longer portion thereof in any other district.

 Thus, if Harvey did become a New Jersey resident in December 1977, venue in the bankruptcy proceeding filed the next month would still have been properly laid in the Eastern District of Pennsylvania. Accordingly, given all of the proof on the issue of Harvey's citizenship, I find that he was a citizen of New Jersey on the date this civil action was commenced. This court, therefore, has diversity jurisdiction over the state-law claims set forth in the complaint.

 Early on the morning of September 4, 1975, deputies from the Sheriff's office arrested Harvey pursuant to the court order, handcuffed him and transported him to the Montgomery County Prison. Later that day, a hearing was held before a judge of the Court of Common Pleas to determine whether the issuance of the writ was proper. Harvey, who was represented by counsel at the hearing, testified that he had withdrawn several ounces of gold and 55,000 Swiss francs from Ursula Harvey's Swiss bank account by misrepresenting to bank officials that Ursula Harvey was seriously ill. Harvey also admitted that he had sold the gold and transferred all of the moneys to the account of two corporations, one of which was located in Liechtenstein. Harvey had sole authority to draw on the account of the Liechtenstein corporation. (Id., Exhibit D). On the basis of this evidence, the common pleas court judge found that there was a "substantial risk" that plaintiff would "leave the jurisdiction for parts unknown" and that the funds which were the subject of the accounting action would be lost. (Id., Exhibit C). Accordingly, the court concluded that the writ of ne exeat had properly issued, and ordered that Harvey be held in custody until he posted bond in the amount of $100,000. As an alternative to bond, the court stated that it would order Harvey's release if counsel could negotiate an arrangement to secure the funds pending the outcome of the litigation. (Id., Exhibits C & D).

 After the hearing, Harvey was taken to the Montgomery County Prison and held there overnight. The next day, Pincus and Harvey's counsel met with Harvey at the prison to discuss arrangements for securing the funds. Ultimately, it was agreed that the attorney representing Harvey in Liechtenstein would be directed to "block" the assets of the Liechtenstein corporation. (Id., Pincus Affidavit; Document 72, Exhibit P-055). By order dated September 5, 1975, the court directed that plaintiff be released pursuant to this agreement. (Document 67, Exhibit E).

 On November 13, 1975, Pincus was advised by telegram that the Liechtenstein attorney had been relieved of control over the blocked funds. (Id., Exhibit F). Believing this to be a breach of the September 5, 1975 agreement and court order, Pincus immediately filed a petition for contempt with the Court of Common Pleas. In his prayer for relief, Pincus asked that the court declare Harvey in contempt and order that he be arrested and held subject to the court's order of September 4, 1975, which had confirmed the writ of ne exeat. (Document 72, Exhibit P-001). On the basis of Pincus' ex parte petition, the court issued a warrant for Harvey's arrest on November 14, 1975. (Id.).

 Because Harvey's whereabouts were unknown at the time, the warrant for his arrest was not issued immediately. Instead, Pincus instructed the Sheriff of Montgomery County to hold the warrant until Harvey could be found within the county. (Document 67, Pincus Affidavit). On February 14, 1976, deputies of the Montgomery County Sheriff's office executed the arrest warrant by seizing plaintiff at his residence and incarcerating him in the Montgomery County Prison. For reasons not clear from the record, Harvey was released later that day. (Document 107, Exhibit 2.2.2). On April 23, 1976, a judge of the court of common pleas granted plaintiff's uncontested "petition for striking of bench warrant and removal of petition for contempt." (Document 72, Exhibit P-001).

 The equity action between plaintiff and Ursula Harvey was finally settled by written agreement of the parties on April 14, 1976. (Document 67, Exhibit J). A notice of settlement was later filed with the Court of Common Pleas on May 31, 1977. (Document 107, Exhibit 2.1.1).

 On February 13, 1978, Harvey brought this action against Pincus and others based upon the aforementioned state-court litigation. As stated at the outset, while the complaint alleges causes of actions based upon state law and the federal civil rights laws, only the state-law claims against Pincus remain. The second amended complaint is 53 pages and several hundred paragraphs in length, and contains 22 "Counts." Not all of the counts, however, relate to Pincus. Of those counts of the complaint *fn2" which do refer to Pincus, only eight could conceivably serve as a basis for imposing liability on him under Pennsylvania state law.

 Count III alleges that Pincus "maliciously and in bad faith, wrongfully initiated proceedings in Equity against plaintiff without probable cause" in the Court of Common Pleas for Montgomery County on ...


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