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TEMTEX PRODUCTS v. JOHN W. KRAMER (06/08/84)

filed: June 8, 1984.

TEMTEX PRODUCTS, INC.,
v.
JOHN W. KRAMER, SR., APPELLANT, DEANNE L. OBERDICK, APPELLANT, REMARKABLE ENTERPRISES OF YORK, INC., STAN MAIL, INC., WALLACE ASSOCIATES, INC., BRENDA L. WINTERMEYER, EDWARD ROBERTS, LINDA M. WIKE, AND AWARENESS MISSION OF SCIENTOLOGY



No. 117 Harrisburg, 1983, No. 119 Harrisburg, 1983, No. 143 Harrisburg, 1983, APPEALS OF: JOHN W. KRAMER, SR. at No. 117, DEANNE L. OBERDICK at No. 119, TEMTEX PRODUCTS, INC. at No. 143, Appeals from Orders of the Court of Common Pleas of York County, Civil No. 82-2-3103.

COUNSEL

Gerald E. Ruth, York, for appellant (at No. 117) and for appellee (at Nos. 119 and 143).

David R. Dearden, Philadelphia, for appellant (at No. 143) for appellee (at Nos. 117 and 119).

John D. MacVeigh, Philadelphia, for appellant (at No. 119) and appellee (at Nos. 117 and 143).

Cercone, President Judge, and Rowley and Wieand, JJ.

Author: Rowley

[ 330 Pa. Super. Page 187]

These are three consolidated appeals from two orders of the trial court issued on March 23, 1983. One of the appeals is interlocutory and will therefore be quashed. In the second appeal, we affirm the order of the trial court. In the third appeal, we reverse the orders of the trial court and remand for further proceedings.

On August 16, 1982, Temtex Products, Inc. (Temtex), a Texas corporation with offices in Nashville, Tennessee, filed, in York County, Pennsylvania, a complaint in equity alleging that the defendants had participated in a fraudulent transfer of assets formerly owned by John W. Kramer, Sr. (Kramer), in violation of the Pennsylvania Uniform Fraudulent Conveyances Act (UFCA), Act of May 21, 1921, P.L. 1045, No. 379, §§ 1 et seq., 39 P.S. §§ 351 et seq. On August 30, 1982, Temtex filed a motion for a preliminary injunction requesting the court to (1) enjoin the defendants from conveying or encumbering the assets specified in the complaint, (2) order certain assets to be reconveyed to Kramer, and (3) direct that payments due from some of the defendants be paid into court pending the final outcome of the case. In compliance with Pa.R.C.P. No. 1531(b)(1), Temtex offered to post a bond in an amount sufficient to compensate any person damaged by reason of the improper granting of the injunction. A hearing on the motion was scheduled for "as soon as counsel can be heard." Although it is unclear when this "hearing" was held, it appears that no testimony was offered but the parties presented legal

[ 330 Pa. Super. Page 188]

    arguments based upon the complaint, the motion, and an affidavit attached to the motion.

On September 7, 1982, two of the defendants, Wallace Associates, Inc. (Wallace), described in the complaint as "a partnership," and Stan Mail, Inc. (Stan Mail), a Pennsylvania corporation, filed preliminary objections to the complaint in the nature of a demurrer claiming that Temtex had failed to state a cause of action against them and that they were not proper parties to the action. On September 10, 1982, Deanne L. Oberdick (Oberdick), a Pennsylvania resident, filed preliminary objections (1) in the nature of a demurrer asserting that Temtex had failed to state a cause of action against her; (2) a motion to strike the complaint for improperly pleading legal conclusions, not pleading facts, and failing to attach writings on which the complaint was based; and (3) a motion for a more specific pleading. On October 19, 1982, Kramer, Brenda L. Wintermeyer (Wintermeyer) and the Awareness Mission of Scientology (Mission), a California non-profit corporation, filed preliminary objections contesting the propriety of the trial court's exercise of in personam jurisdiction as to them. Temtex filed answers to the preliminary objections, denying the material averments in each. The parties also supplied the trial court with numerous legal memorandums.

On March 23, 1983, the trial court issued two orders, each accompanied by an opinion. In the first decision, addressed to the preliminary objections, the court concluded that (1) it could exercise personal jurisdiction over Kramer and dismissed his preliminary objections; (2) it could not properly exercise jurisdiction over Wintermeyer, the Mission, and Linda M. Wike;*fn1 the court sustained their preliminary

[ 330 Pa. Super. Page 189]

    objections and dismissed the complaint as to them; (3) a cause of action had been adequately stated under the UFCA as to Oberdick and dismissed her preliminary objections; and (4) no cause of action had been stated against Wallace and Stan Mail. In the second opinion and order, addressed to the request of Temtex for a preliminary injunction, the court determined that, as to the defendants remaining in the action, Temtex had not shown that it was entitled to a preliminary or special injunction and denied Temtex's motion. Oberdick, Kramer and Temtex appealed. We shall address each appeal in turn.

I -- No. 117

Deanne L. Oberdick has appealed from the order denying her preliminary objections in the nature of a demurrer, a motion to strike and for a more specific pleading. Unless an order falls within a specific exception created by statute, see 42 Pa.C.S.A. §§ 702, 5105(c), or by general rule, see Pa.R.A.P. 311, 312 and 1301 et seq., this court may entertain an appeal only if the order appealed from is final. 42 Pa.C.S.A. § 742. Appellant does not invoke any exception to the general rule but rather asserts that the order of March 23, as it relates to her, is a final order within § 742 and is therefore immediately appealable. Brief for Appellant Oberdick at 1.

We disagree. An order is final when the practical effect of the order is to put the appellant out of court, Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), or otherwise terminate the litigation by precluding a party from presenting the merits of a claim or defense to the trial court. Gordon v. Gordon, 293 Pa. Super. 491, 439 A.2d 683 (1981). Appellant has not argued that any of the three determinations of the trial court have in any way impaired her ability to defend on the merits. Moreover, orders denying preliminary objections are ordinarily interlocutory and not appealable for such orders do

[ 330 Pa. Super. Page 190]

    no more than require the case to proceed to trial on the merits. Urbano v. Meneses, 288 Pa. Super. 103, 431 A.2d 308 (1981). We therefore conclude that Oberdick's appeal is interlocutory and must be quashed.

II -- No. 143

Temtex Products, Inc., has appealed from those parts of the orders of March 23, 1983, in which the trial court (1) dismissed the complaint as to Wintermeyer, Wike and the Mission for lack of in personam jurisdiction as to them, and (2) denied Temtex's request for a preliminary injunction. Temtex properly asserts that the first determination is a final and appealable order for it puts Temtex out of court as to the named defendants. Temtex also properly invokes our jurisdiction as to the latter determination for orders denying preliminary injunctions are immediately appealable. Pa.R.A.P. 311(a)(4). We shall discuss each of these determinations separately.

A.

When, as here, a defendant properly raises an objection on the ground of a lack of in personam jurisdiction, the plaintiff has the burden of proving that the exercise of jurisdiction is permissible. Crompton v. Park Ward Motors, 299 Pa. Super. 40, 42, 445 A.2d 137, 138 (1982). In this case, the record includes the pleadings, the motion for a preliminary injunction, exhibits attached to these documents and an affidavit of Larry Smith, Assistant Secretary of Temtex Products, Inc. In reviewing the determination of the trial court, we review these materials and accept as true all of the facts as set forth therein. Id. So construed, these materials reveal the following "facts".

Temtex and Kramer, a former York County resident, entered into an unexplained transaction in May, 1978, in which Temtex extended to Kramer a substantial amount of credit. This extension of credit was based, in part, on a statement of net worth that listed some or all of Kramer's assets. In April, 1980, Temtex instituted suit against

[ 330 Pa. Super. Page 191]

Kramer in Tennessee. That suit resulted in judgment being entered in favor of Temtex in Tennessee in March, 1981, in the amount of $210,408.55 plus interest at the rate of eight percent per year. On November 23, 1981, the Tennessee judgment was ...


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