The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
Following litigation in multiple fora, presently before this Court
are several motions filed by the parties in this matter. Defendants Kean
Company, Kean Pitcairn, Kris Pitcairn and Pitcairn Enterprises, Inc.
d/b/a Pitcairn Motorcars (collectively, the "Defendants")*fn1 have filed
a Motion to Dismiss, to which a Memorandum in Opposition has been filed
by Plaintiffs Universal Computer Consulting, Inc. and Universal Computer
Maintenance, Inc. (collectively, the "Plaintiffs" or "UCC"). Plaintiffs
then filed a Motion for Preliminary Injunction and a Motion for Hearing
Date and Expedited Discovery, to which Defendants have filed responses.
Finally, Plaintiffs filed a
Motion to Confirm Service, to which no response was filed.
These motions arise from a dispute concerning an asset sale by one of
the Defendants, Pitcairn Enterprises, Inc. ("PE"), wherein certain
creditors were paid in full, certain creditors were partially paid and
certain other creditors were not paid at all. In this matter, some of the
Defendants were partially paid while one Defendant and Plaintiffs were
among those creditors not paid by proceeds of the asset sale.
In their Complaint, Plaintiffs allege that the purpose of PE's asset
sale was to evade and frustrate Plaintiffs' attempt to collect on a final
judgment which was entered against Pitcairn Motorcars in the United
States District Court for the Southern District of Texas in April, 2002
(the "federal judgment"), in confirmation of an arbitration award by a
panel of the American Arbitration Association in Houston, Texas in
August, 2001 (the "Texas arbitration"). The federal judgment was
transferred to the Court of Common Pleas for Bucks County for enforcement
against Defendants. Plaintiffs, in the instant suit, contend that
Defendants' conduct surrounding PE's sale of assets give rise to
liability for claims of equitable fraud, unjust enrichment, tortious
interference, and under the Pennsylvania Uniform Fraudulent Transfers Act
("UFTA"), 12 Pa. Cons. Stat. §§ 5101-5110.
The parties' various motions are addressed below.
Universal Computer Consulting, Inc. and Universal Computer Maintenance,
Inc., are Texas corporations headquartered in Houston, that, among other
things, design and install inventory and spare parts control systems,
including hardware and software, for car dealers.
PE is a Pennsylvania corporation which, until August 5, 2002, owned and
operated a business known as "Pitcairn Motorcars" located at 1862 Lincoln
Highway in Langhorne, Pennsylvania. PE was a franchisee of Volvo of
America and Volkswagen of America. Kean Pitcairn, a Pennsylvania
resident, is the president and sole shareholder of PE. Kris Pitcairn,
also a resident of Pennsylvania, is Kean Pitcairn's wife. Mrs. Pitcairn
is averred to have owned 80% of PE prior to 2002.
In 1989, UCC and PE entered into a series of contracts wherein UCC
would render computer services to PE. The contracts provide for, among
other things, arbitration of disputes before the American Arbitration
Association ("AAA") and recovery of attorneys fees and costs for the
prevailing party in connection with the collection of the award.
In 2000, UCC commenced an AAA arbitration in Houston, Texas, alleging
certain breaches of the computer service contract by PE. Following motion
practice before the AAA panel and this Court to dismiss the arbitration,
which motions were denied, the arbitration was held in July 2001.*fn2 In
August 2001, the arbitration panel issued its opinion setting forth an
award in Plaintiffs' favor and providing for 10% annual interest and
attorneys' fees and costs in connection with collecting the award.
In December 2001, Plaintiffs filed a petition to confirm the
AAA award and, on April 16, 2002, the United States District Court
for the Southern District of Texas reduced that award to judgment,
confirming the award, interest and recovery of attorneys' fees and costs.
On August 31, 2002, Plaintiffs transferred the federal judgment from
the Texas district court to the Court of Common Pleas for Bucks County,
docketed at No. 020570, pursuant to the Uniform Enforcement of Foreign
Judgments Act, 42 Pa. Cons. Stat. § 4306. That same day, Plaintiffs
began execution proceedings by filing for a writ of execution.
On November 27, 2002, Plaintiffs filed a Petition for Supplemental
Relief in Aid of Execution. A hearing was held on December 13, 2002, and
Plaintiffs' request for relief was subsequently denied on December 23,
On January 21, 2003, Plaintiffs filed a motion alleging insufficiency
of interrogatory responses by Kean Pitcairn, a conclusion with which,
according to Defendants, Judge Robert J. Mellon appeared to disagree at
the conclusion of the motion hearing on February 7, 2003.
On March 4, 2003, Plaintiffs filed a Motion to Correct Judgment, a
Petition for Hearing on All Pending Motions and a Motion to Modify the
December 23, 2003 Order, all of which were denied on March 19, 2003.
On April 7, 2003, Plaintiffs filed a Motion for Contempt against Kean
Pitcairn, and following a hearing on that motion,
Judge Mellon denied relief on July 7, 2003.*fn3
Plaintiffs allege that, in or around April 2002, a bid package for the
assets of PE was circulated and, on May 25, 2002, PE and non-party
R&S Imports, Ltd. ("Buyer"), a Pennsylvania corporation, entered into
an Asset Purchase Agreement to buy substantially all of the assets of PE.
Plaintiffs aver that the sale of assets closed on or about August 5,
2002, and that, after closing, PE's assets were approximately $711,000.00
in cash, a company car and its accounts receivable. Plaintiffs further
aver that the total purchase price for the assets of PE was $8.322
Plaintiffs allege that since the closing, Kean Pitcairn has caused an
amount of $700,000.00 to be transferred to his personal trust and to his
wife, Kris Pitcairn. Plaintiffs allege that neither is a secured creditor
of PE and that both were relieved of contingent liability on ...