HomeMy WebLinkAbout99-02201
.
III. Argument:
Defendants' Counterclaim adequately ~ets forth a claim for loss of profits. As II result,
the Preliminary Objections should be dismissed.
The Counterclaim of the Defendants is as follows:
17. Dcfendant spent approximately one year attempting to secure printing work
from Bradley Academy which Defendant was finally given an opportunity to print for Bradley
Academy in December of 1997,
18. Defendant entered into an oral agreement with Plaintiff to perform aspects of
printing work on the Bradley Academy job.
19. Due to faulty workmanship on the part of Plaintiff, deadlines established by
the Bradley Academy for Defendant for performance had expired.
20. Plaintiff assured Defendant that the final product was in acceptable form and
could be delivered directly to the Bradley Academy.
21. The product that was delivered by Plaintiff to the Bradley Academy exhibited
shoddy workmanship on the part of Plain tilT.
22. As a result of said shoddy workmanship, Bradley Academy refused to give
any future work to the Defendant.
23. Defendant anticipated profits from its future contracts with Bradley Academy
in the amount of$4,OOO,00 to $5,000.00 per year. An average account would stay with the
contractor such as Defendant for seven to ten years.
Generally, damages are considered remote or speculative only ifthere is uncertainty
regarding the existence of the damages, not ifthere is uncertainty concerning the precise
calculation of the damages. Kituskie v. Corban, 552 Pa, 275, 714 A.2d 1027 (1998).
Furthennore, the Superior Court has held: 'Speculative profits are those the evidence of which is
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so meager or uncertain as to afford no reasonable basis for inference. The rule applicable to
profits is in no respect different from that applicable to all gains prevented or JOSles suffered; it is
proving income and outgo that the amount of any kind of profit is cstablished." (Emphasis
added). Menon Spnn\! Co, v, Muelles Hnos Garcia TOITes. S,A., 315 Pa. Super. 469, 462 A.2d
686,695 (1983),
Lost profits may not be awarded where the evidence leaves the trier of fact without any
guidance except speculation. WaITen v Greenfield. 407 Pa.Super. 600, 595 A.2d 1308 (1991).
Sufficient evidence must be introduced to assist the fact trier towards a reasonably certain
As can be seen from the aforementioned decisions, the issue ofloss of profits is an
estimate oCthe amount of lost profits due to the breach. Ill. As with all detenninations of
damages, the question of whether and what amount of lost profits are recoverable is for the jury,
and the reviewing Court must accord great difference to the jury's detennination. Bolus v.
United Penn Bank. 363 Pa.Super. 247. 525 A.2d 1215 (1987), appeal denied, 518 Pa. 627, 541
A.2d 1138 (1988).
evidentiary one, and not one appropriate for decision at the preliminary objection level. The
Counterclaim has specifically stated that conduct on the part of the Plaintiff caused Polhemus &
Associates to lose future contracts with Bradley Academy. The Counterclaim goes on to state
that a contractor such as he would reasonably anticipate receiving contracts from a vendor such
as Bradley Academy for a certain period of time, and would have a profit level at a certain
amount. Plaintiff may dispute the factual basis for these claims at trial. Nevertheless,
Defendants have adequately stated a claim for lost profits.
Richfield CompaR\', !l26 PII. Jill, 5114 A.2d 915(PlI. 199(1). In,lMiI'M.the Plaintiff,
representing a class of over I SO lranchises, broughl suit against Defendant. sceking lost profits.
Plaintiff claimed that Defendant required Plaintifflo sell only Defendant's gasoline. Plaintiff
further contended thaI Defendant began to e~peril11ent with the gasoline, causing some of
Plaintiff's customers to have engine trouble. The customers began to buy their gasoline
elsewhere, and Plaintiffsuffc:rc:d a dccline in sales because Plaintiff was required to buy its
gasoline from only the Defendant. Plaintill'sued Defendant on a claim for brcach of warranty,
seeking lost profits. Defcndant filed a prcliminary objection in the nature of a demurrer,
claiming that Plaintiff was not entitlcd to relief because thc rcliefsought was speculative.
The Pennsylvania Suprcme Court on appeal held that the loss of future profits was not
speculative and that the Plaintiff should be givcn a chance to provc the reasonablcness of his
claim. This holding overruled years of prccedentthat stated that recovery for loss of good will
damages or prospective profits were too speculative as a matter oflaw. The Court's holding was
based on the fact that Plaintiff was required to buy its gasoline from Defendant and could not
buy different gasoline elsewhere. The Court broke down the claim for loss of future profits into
three categories: loss of primary profits, loss of secondary profits, and loss of good will damages.
The Court defined primary prolits as the difference between the profits the buyer would have
earned without a breach of warranty and the profits the buyer did earn with the breach. The
Court defined the loss of secondary profits as those profits that are lost as a result of a decline in
sales of other products because the customcr docs not buy the primary product. The Court thcn
defined the loss of good will damagcs as those damages that are from a loss of future sales after
the breach of warranty has been curcd, and not lost profits on sales of the defective goods
themselves. In AM/PM, the loss of goodwill damages were those prolits lost once the Plaintiff
3
was uble to sell dillercnt gasoline that was not defective, The (\,urt ill tiM/I'M ruled that the
PluintiO's claim was lor the loss of primary pmlits. alld furt/ll'r stated that this type ofloss could
be recovered because the Pluintiffs lost sales were directly nllrihutnble to the dclective gasoline,
The Court examined the claim for loss of good will damages alld ruled that "claims for
prospective profits should not be barred ah il/ilio. Rather, plaintiffs should bc givcn all
opportunity to set forth and attcmpt to prove their damages." The Court defined good will as the
reputation that the business has built over time and is reflected by the return of the customers.
The Court then stated that Plainti IT can attempt to provc good will damagcs as 10llg as he is able
to introduce sufficient evidencc I) to establish that such profits were causally related to a breach
of warranty and 2) to provide the tricr of fact with a reasonable basis from which to calculate
damages. The Court concluded that the Plaintiff was not entitlcd to good will damages because
he had made no claim for them, but had only made a claim for damagcs during the breach.
The Defendants' counterclaim in the case at bar is seeking recovery of good will
damages. The Defendants are not cntitled to a claim of good will damages because these
damages, as defined by the Court in AM/PM, are the reputation the business has built with the
customer and can only be measured by the return of the customer. Defendant has entered a
business arrangement with Bradley Academy only once. One business arrangement is not
enough to establish a reputation with a company enabling the market to measure good will by
cxamining how often the customcr rcturns. According to the reasoning from AM/PM, Defendant
should be able to try to prove good will damages, but only ifhe is able to introduce sufficient
evidence I) to establish that such prolits were causally related to a breach of warranty and 2) to
provide the tricr of fact with a rcasonable basis Irom which to calculate damages. Defendant
cannot provide the trier of fact with a reasonable basis Irom which to calculate damages.
4
Instead, Delellllunl uttempts to cstahlish thaI /Ir'ldlc~ Acadcmy did not enlcr inlolalcr
agrcemcnts because ofl'laintin's "shoddy" work. Dcfcndanldocs not slatc .my 1:lcts in his
counterclaim that would allow thc trier of filCllo rea~nn:lbly cstahlish Ihat Plaintifl's work was
"shoddy" or that Bradlcy Acadl.'I11Y rcfuscd tn enlcr later busincss agrccmcnts with Dcfcndant
because of Plaint in's work. Dcfcndant's claim is nlr too speculativc because it arbitrarily
dismisses numcrous factors for not rcceiving latcr work from Bradley Acadcmy and zeroes in on
only one potential factor, the Plaintiff: The Dcfcndant attcmpts to place fault solely on the
Plaintiff for lost good willlhilt could have becn causcd by a variety of other factors.
Further, thc holding in AM/PM is not dcterminative in this case bccause here, Defendant
did not have an agrecment with PlaintiO' forcing Defcndant to use Plaintill' as his supplier. In
AM/PM, the Plaintiff had no choice but to use the Defendant as its supplier. and the Court noted
that this was one reason why thc Plaintiff could rceovcr.
Lastly, using the reasoning in AM/PM, Dcfendant's counterclaim is spcculative because
there was no written or oral agrcement with Bradlcy Academy for future work. Defendant's
counterclaim states that an average account would stay with Bradley Academy for seven to ten
years, but Defendant fails to show any agreement with Bradley Academy that would allow one to
reasonably deducc that Polhemus Associates would have an account with Bradley Academy for
any length of time. In AM/PM, the Court rccognized that the Plaintiff was eligible for loss of
good will damagcs becausc it had entered into an on-going agreement and could not obtain
gasoline clsewhere. Defendant assumcs, with no factual support, that Polhemus Associates
would have an on-going business relationship with Bradley Academy. This assumption is far too
speculative for a trier of fact to reasonably calculatc damages against the Plainti ff.
5
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LAW OFFICES
r% /G.. OU; R &. GYP' JUl 3 0 199~ ~ .
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Hu:;t be typewritten 4nd sutmi.tted in dupl..icate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
PIMSe list the within matter Car the next Arg\nent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption oust be stated in full)
C & J ENTERPRISES.
vs.
(PlaintUf)
WALTER POLHEMUS and
BONNIE POLHEMUS t/a/d/b/a
POLHEMUS & ASSOCIATES
(Defendant)
l'b.
J..l.CJI
99-~ Civil
19
1. State matter to be argued (Le.. plaintUf's IlDtion for new trial. defendant's
dEmlrrer to c~laint. etc.):
Plaintiff's Preliminary Objections to Counterclaim of Defendant
2. Identify counsel who will argue case:
(a) for plaintiff:
Address:
Marcus A. McKnight, III
60 West Pomfret Street
Carlisle. PA 17013
(b) for defendant:
Address:
Michael W. Flannelly
18 South George Street
Suite 201
York, FA 17401
3. I will notify all parties in writing within boo days that this case has
been listed for argurent.
4 . Argt.rnent Court Date:
August II, 1999
Dated: June 29. 1999
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PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This prool 01 service MUST BE FiLED WiTHiN TEN (10) DAYS AFTER tiling 1/10 notice 01 Bppeal. ChBCk BpplicBblB bOXBS)
--------_.~--- -- -.. -- ..-..--------------
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
Cumberland
;ss
AFFIDAVIT: I hereby swear or affirm thilt I served
[]
1999-2201
a copy of the Notice of Appeal, Common Picas No. , upon the District Justice designated therein on
(date of slJrvice)-Apr ill 4 . 19.--9.9..... C] by persorlJI servkc Rl IIV (Cl!rlificd) (rc!listcred) mail, sender's
receipt attached hereto, and upon the appellcn, (ll.1mf..J_~J-Ent.er.p.rises , on
A or i 1 14 , 19--9..9- D by personal service KJ by (certified) (rcUisl'ncd) mail, sender's receipt attached hereto.
o and further that I served the Rule to File a Complaint
whom the Rule was addressed on
mail, sender's receipt attClched hereto.
accompanying the above Notice of Appeal upon the appellee(s) to
.19_, [1 hy personal service 0 by (certified) (registered)
~Mdr/cJ/k
L
Signaturt' of affiant
SWORN (AFFIRMED) ANO SUBSCRIBED BEFORE ME
THIS 1t..\~V\ OAY OF . .19$.
,
My commission expire) on
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C:(....MONWEAL TH OF PEN~SVLVANIA
COURT OF COMMON rLEA$
NOTICE OF APPEAL
JUDICIAL DISTRICT
Cumberland County
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OISTRICT JUSTICE JUOGMENT
__ COM~ON PLE~~~~~~99- ~/Civil Tem
N01ICE OF APPEAL
NOIICO IS CjIYI..'n that the ..ppell,m! Ihls 1111'11 In tlw ,lhfl....l~ Cowt of Common Plll,IS.1Il ,1111"'.11 hOIll lIlt! JlldCJmmlf '1!ll(If~ltl(1 hy the District Junico
on the dall~ ..ml Ifl thl! CilStl mmlll()Jwl! Ill~low
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Polhemus & Associates
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"~ C:OD_
8083 Pleasant Valley Road, Stewartstown, PA
17363
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3-18-99
C & J F.nterJris~s
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Polhemus & Associates
c:......... "'D.
CV19 -0000022-99
L T 19
/#Ah/C~J
.....---.-
This hlocJ.: will be signed ONLY whcn Ihis notation is required under Pa.
R,C,P,J,P, No, 1008B,
This Notict' of Appeal, when rc(;eivL'c: hy Ihe District JustlCl!, will opL'ralc as
a SUPERSEDEAS to the jull!Jrncnt for pO<"Sl!SSlOl1 in 11m caSt!.
Slf/ll.Jtufe of P,othollor,JfY Df OI!Puty
pel/am was Claimant (see Pa. R.C.P.J.P.
No. 1001(6) in action before District Justice, he
MUST FILE A COMPLAINT within twenty 1201
days after filing his NO TICE of APPEAL,
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONL Y when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in action before District Justice.
IF NOT USED, detach from copy of notice of appeal to be served upon appellee).
PRAECIPE: To Prothonotary
C & J Enterprises
Ndmo of dppellee(sl
Enter rule upon
,appellee(sl, to file a complaint in this appeal
(Common Pleas No. 1999-~"f)1 ~ivi 1 TpYm
within twenty (20) days after service of rule or SUff~lSfjUdgment of non pros.
d/
RULE: To C & J Enterprises
Name of appellee(sl
, appellee(s)
attorney or agent
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty 1201 days after the date of
service of this rule upon you by personal service or by certified or registered mail.
Date:
April 13.
. 19,22,
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(2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU.
(3) The date of service of this rule if service was by mail is the date of mailing.
AOPC 312.90
COURT FILE TO BE FILED WITH PROTHONOTARY
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COMMONWEAL TH OF PEN' L VANIA
COUNTY OF: CUMBER~u
NOTICE
T..,,,,", 17171 761'8230
17055
, JUDGMENTrrRANSCRIPT
CIVIL CASE
PLAINTtrF ~jAM[ .ndAOCIlESS
rc , J ENTERPRISES
5252 E. TRINDLE RD.
C/O JOHN THOMPSON
~CHANICSBORG, PA 17055
VS.
DEFENDANT' NAI.lE.I'II1AOORE!,S
rpOLHEMUS , ASSOCIATES
8083 PLEASANT VALLEY RD.
STEWARTSTOWN, PA 17363
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09.3'04
OJN."" .<011
THOMAS A. PLACEY
""'" 104 S. SPORTING HILL RD.
MECHANICSBORG, PA
..J
-,
ATTORNEY DEP PRIVATE :
MICHAEL W. PLANNELLY, ESQ.
18 S. GEORGE ST.
SUITE 201
YORK, PA 17401
Docket No,: CV- 0000022 - 99
Dale Filed: 1/12/99
-~
THIS IS TO NOTIFY YOU THAT:
Judgment:
[iJ Judgment was entered for: (Name)
[iJ Judgment was entered against: (Name)
FOR PI.II. TN'I'TFF
~ ~ ~ ~RRP~TqR~
'Pnr,R'l'!MT1R '" It.RRnC'!Tlt.T'RR
in the amount of $
7 A41 ?? on:
(Date of Judgment)
~/1 A/qq
D Defendants are jointly and severally liable.
D Damages wiil be assessed on:
(Date & Time)
D This case dismissed without prejudice,
Amount of Judgment $ 7.748.72
Judgment Costs $ 92.50
Interest on Judgment $ .00
Attorney Fees $ .00
Total $ 7,841.22
Post Judgment Credits $
Post Judgment Costs $
D Amount of Judgment Subject to
AttachmenVAct 5 of 1996 $
D Levy is stayed for_days or D generally stayed,
------------
------------
D Objection to levy has been filed and hearing will be heid:
Certified Judgment Total $
Date:
Place:
Time:
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL WITH THE PRO!I-!O_NOTM!YIC,Ef.ll<_Q'=-T!:!~_COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLUDE A COPY'OF THIS NOTICE OF JUDGMENTITRIINSCRIPT FORM WITH YOUR NOTICE OF APPEAL.
< I "
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Date
, District Justice
I certify that this is a true and correct copy of the record of the proceedings containing the judgment.
, . !
',,' I Date , District Justice
My commission expires first Monday of January,
Aope 3'5.99
2004
SEAL
. .
C & J ENTERPRJSES,
PLAINTIFF
: IN TilE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 99.2201 CIVJL TERM
WALTER POLIIEMUS and
BONNIE POLHEMUS tJa/d/b/a
POLHEMUS & ASSOCIATES,
DEFENDANTS
CIVIL ACTION. LAW
COMPLAINT
AND NOW, this.1!. day of May, 1999, comes the plaintiff, C & J ENTERPRISES by
their attorneys, Irwin, McKnight & Hughes, and makes the following Complaint against the
defendants, WALTER POLHEMUS and BONNIE POLHEMUS tJaJdIb/a POLHEMUS &
ASSOCIATES, as follows:
I.
The plaintiff is C & J Enterprises, a Pennsylvania Partnership, engaged in the printing
business with its principal office located at 5252 East Trindle Road, Mechanicsburg,
Pennsylvania 17055.
2.
The defendants are Walter Polhemus and Bonnie Polhemus, adult individuals tJaJdlb/a
Polhemus Associates with their principal place of business located at 8083 Pleasant Valley Road,
Stewartstown, Pennsylvania 17363.
3.
From 1996 through 1998, thc dcfendants placed printing orders with the plaintiff which
thc plaintiffpcrformcd and delivered to the defendants.
4.
The defendants paid for a portion of the work which thcy ordered from the plaintiff but
failed to pay the balance due and owing in the amount of Seven Thousand Eighty Four and
72/100 ($g,748.72) Dollars.
5.
The defendants havc breached thcir verbal contract to pay for the work performed by the
plaintiff at the time the work was delivered to the defendants.
6.
The defendants have also been unjustly enriched by receiving the work performed by the
plaintiff without payment for that work. The plaintiff is entitled to receive the sum of Seven
Thousand Seven Hundred Forty Eight and 72/100 ($7,748.72) Dollars.
7.
In addition, the plaintiff is entitled to intcrcst at the legal rate on the balance due from the
defendant from November 23, 1998, to the date that payment is received by the plaintiff plus
costs of Ninety Two and 50/100 ($92.50) Dollars.
2
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C & J ENTERPRISES,
Plaintiff,
No. 99-2201 CJVJL TERM
v.
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WALTER POLHEMUS and BONNJE
POLHEMUS tJaJdfb/a POLIIEMUS
& ASSOCJA TES,
CJVJL ACTION-LAW
Defendants.
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si ustcd desea dcfendcrsc de las
quejas expuestas cn las pagina5 siguientcs, debc tomar accion dentro dc veintc (20) dias a partir
de la fccha en que recibio la dcmanda y el aviso. Ustcd debe presentar compareccncia escrita en
persona 0 por abogado y presentar cn la Corte por escrito sus dcfcnsas 0 sus objeciones a las
demandas en su contra.
Se Ie avisa que si no se defiende, el caso puedc proceder sin usted y la Corte puede
decidir en su contra sin mas aviso 0 notificacion por cualquicr dinero reclamado cn la demanda 0
por cualquier otra queja 0 compensacion reclamados por el Demandantc. USTED PUEDE
PERDER DINERO, 0 PROPIEDADES U OSTROS DERECHOS IMPORTANTES PARA
USTED.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDlATAMENTE. SI SUTED NO
TIENE 0 NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OFICINIA EN LA
DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
1-800-990-9108
S. Dcnied, On thc cOlltrary, as morc fully sct forth ill the Ncw Mallcr and Countcrclaim,
eertain work pcrformed by thc Plailltiffwas dcfective which causcd Dcfcndant to suffer losses in
excess ofthc amount claimcd by thc l'laintiff.
6. Dcnicd, On the contrary, Dcfcndalll has not beell unjustly cnrichcd. On the contrary.
Defcndant has suffered substantiallosscs as a result of defectivc work which is more fully
described in the New Maller and Countcrclaim.
7. Dcnied. On the contrary, as a rcsull of Plaintiff's brcach of contract due to faulty
workmanship, Plaintiff is not cntitled to any recovery of interest or damagcs.
WHEREFORE, Polhemus & Associates dcmandsjudgment against Plaintiff, togcther
with costs of suit.
NEW MATIER
8. Defendant incorporates its answers to Paragraphs 1 through 7 as if as set forth at
length herein.
9. Defendant spent approximately onc year attcmpting to secure printing work from
Bradley Academy which Defendant was finally given an opportunity to print for Bradley
Academy in December of 1997.
10. Defendant entered into an oral agreement with Plaintiff to perform aspect~ of printing
work on the Bradley Academy job.
11. Due to faulty workmanship on the part of Plaintiff, deadlines established by the
Bradley Academy for Defendant for performance had expired.
12. Plaintiff assured Defendant that the final product was in acceptable form and could
be delivered directly to the Bradley Academy.
F
I), Thc J'l'lIduct that was delivcred by "Iaintiffto thc Bradlcy Acadcmy cxhihited shoddy
workmanship on the part of Plailltiff,
14, As a rcsult of said shoddy workmanship, Bradlcy Acadcmy rcfused to give any
future work to the Defendant.
I S. Defendant anticipatcd profits from its future contracts with Bradley Academy in the
amount of S4,OOO.00 10 SS,OOO.OO pcr year. An averagc account would stay with the contractor
such as Defendant for seven to ten years.
WHEREFORE, Polhemus &. Associatcs demands judgment against Plaintifftogcther
with costs of suit. In thc alternative, Polhcmus & Associates rcqucsts that a set-off be entered in
the amount of lost profits suffered by Polhcmus & Associatcs as a result ofPlaintifrs shoddy
workmanship.
COUNTERCLAIM
16. Dcfendant incorporates its answers to thc Complaint and thc avermcnts ofthc New
Matter as if as set forth at length hcrein.
17. Defendant spent approximately one year attempting to secure printing work from
Bradley Academy which Dcfendant was finally given an opportunity to print for Bradley
Academy in December of 1997.
18. Defendant entered into an oral agreement with Plaintiffto perform aspects of printing
work on the Bradley Academy job.
19. Due to faulty workmanship on the part of Plaintiff, deadlines established by the
Bradley Acadcmy for Defendant for performance had expired.
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C & J ENTERPKISES,
PLAINTJFF
v,
: IN TilE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-1201 CIVIL TERM
WALTER POLHEMUS and
BONNIE POLHEMUS tlaldlb/a
POLHEMUS & ASSOCIATES,
DEFENDANTS
CIVIL ACTION - LAW
PRELIMINARY OBJECTIONS OF PLAJNTIFF
TO DEFENDANTS' COUNTERCLAIM
.A
AND NOW, this ;l:J" day of June, 1999, comes Plaintiff, C & J ENTERPRISES, by
and through their attorncys, Irwin, McKnight & Hughes, alld make the following Preliminary
Objections to Defendants' Counterclaim, and in support thereof aver the following:
I. PrelImlnarv Obiection In the Nature of a Demurrer Pursuant to Pa.R.C.P. 1028(8)(41.
1. The Defendants, in their Counterclaim, filed in this action, seek damages for
anticipated loss of profits with an entity not a party to the instant litigation.
2. The Defendants make no other claim for damages other than this speculative
anticipated loss of future profits.
3. The Complaint fails to allege or aver any facts, which indicate that the loss of
such profits is causally related to the allegedly defective work of the Plaintiff or that the damages
claimed were reasonably f9rcseeable at the time of the agreement between the parties.
4. Any damages claimed for lost profits based on future business relationships not
yet entered into are necessarily speculative and therefore not recoverable.
5. The Counterclaim fails to set forth any legally cognizable basis upon which the
relief sought could be granted.
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C & J ENTERPRISES,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LA W
v.
WALTER POLHEMUS
and BONNIE POLHEMUS:
tln/d/b/a POLHEMUS &
ASSOCIATES,
Defendants
NO. 99-2201 CIVIL TERM
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS
TO DEFENDANTS' COUNTERCLAIM
BEFORE HOFFER. P.L and OLER. J.
OPINION and ORDER OF COURT
OIer, J., December 7, 1999.
In this civil case, a printing company has sued two individuals for unjust
enrichment and breach of contract, arising out of an arrangement whereby
defendants allegedly engaged plaintiff to print certain materials and then failed to
pay for the product. Defendants have filed a counterclaim for lost profits allegedly
resulting from detects in the printing job performed by plaintiff.
For disposition at this time are preliminary objections filed by plaintiff to
defendants' counterclaim. The preliminary objections consist of a demurrer and a
motion to strike, each premised upon an alleged absence of any basis for recovery
for loss of anticipated profits upon the facts alleged.
The matter was argued on August 11, 1999. For the reasons stated in this
opinion, the preliminary objections will be denied.
DISCUSSION
Statement of law. In ruling upon a preliminary objection in the nature of a
demurrer, the court "must accept as true all well-pled allegations and material
facts averred in the complaint as wcll as inferences reasonably deducible
therefrom and any doubt should be resolved in favor of overruling the demurrer."
Tiedeman v. City of Philadelphia, 732 A.2d 696, 698 (Pa. Commonwealth Ct.
(999). "The question presented by a demurrer is whether, on the facts alleged, the
law says with certainty that no recovery is possible." Feigley v. Department of
Corrections, 73 I A.2d 220, :l22 n.5 (Pa. Commonwealth Ct. 1999).
"Preliminary objections, the end result of which would be dismissal of a
cause of action, should be sustained only in cases that are clear and free from
doubt." Bower v. Bower, 531 Pa. 54,57,611 A.2d 181, 182 (1992). In addition, a
motion to strike is not a substitute for a motion for a more specific complaint.
Borough of New Cumber/andv. Gates, 47 Cumberland LJ. 21 (1997).
Finally, in a breach of contract action, "our courts have held that damages
may be assessed for loss of profit where such loss was reasonably foreseeable to
the parties at the time that the contract was entered and where those damages are
capable of proof of reasonable certainty." General Dynafab, Inc. v. Chelsea
Industries. Inc., 301 Pa. Super. 261,265,447 A.2d 958, 960 (1982).
Application of law to facts. Given the general principle that lost profits
may be recovered in a breach of contract action where they were foreseeable by
the parties at the time the contract was formed, and the implication in the present
4