HomeMy WebLinkAbout12-2935
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Burton Neil & Associates, P.C.
By: Brit J. Suttell, Esquire ID. NO. 204140
1060 Andrew Drive, Suite 170
West Chester, PA 19380
(610) 696-2120
Attornev for Plaintiff
CITIBANK, N.A.
701 East 60th Street N
Sioux Falls, SD 57117
Plaintiff
V.
BARBARA M HOPE
15 West Circle
Camp Hill PA 170111343
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. \ a - a" 35 C V1 I
CIVIL ACTION - LAW
Complaint - Notice
You have been sued in court. If you wish to defend against the claims set forth in the following pages,
you must take action within (20) days after this complaint and notice are served, by entering a written
appearance personally or by attorney and filing in writing with the court your defenses or objections to
the claim set forth against you. You are warned that if you fail to do so, the case may, proceed without
you and a judgment may be entered against you by the court without further notice for any money
claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money
or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE
A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
LAWYER REFERENCE AND INFORMATION SERVICE
Cumberland County Bar Assoc.
32 South Bedford Street
Carlisle, PA 17013
Telephone No. 717-249-3166 or 800-990-9108
C-57399 / 304
ab?
12-K d-7'5c)lc>
BURTON NEIL & ASSOCIATES, P.C.
Neil Sarker, Esquire, Id. No. 203465
Brit J. Suttell, Esquire, Id. No. 204140
1060 Andrew Drive, Suite 170
West Chester, PA 19380
610-696-2120
Attorney for Plaintiff
CITIBANK, N.A.
701 East 60th Street N
Sioux Falls, SD 57117
Plaintiff
V.
BARBARA M HOPE
15 West Circle
Camp Hill PA 17011-1343
Defendant
IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO.
: CIVIL ACTION -LAW
Complaint
1. Plaintiff is CITIBANK, N.A. with place of business located at 701 East 60th Street
North, Sioux Falls, South Dakota.
2. Defendant is Barbara M Hope who resides 15 West Circle, Camp Hill, Cumberland
County, Pennsylvania.
3. Plaintiff is a national banking association, engaged in various types of banking
business including consumer lending through the issuance of credit cards.
4. Defendant obtained extensions of credit from Citibank, N.A., successor in interest to
Citibank (South Dakota), N.A., by means of a Sears credit card account (hereafter the Account)
with account number ending in 2894.
5. Citibank (South Dakota), N.A. merged into Citibank, N.A. in or about July 2011.
6. Accurate records of all debits and credits to the Account were maintained by plaintiff.
7. Defendant was provided with monthly statements for the Account including the billing
statement attached hereto as Exhibit A (redacted to remove confidential information). The
monthly statements accurately stated the previous balance and the debits and credits to the
Account for the prior billing period.
8. Defendant had for many months after receipt of a billing statement made payment on
the Account or retained the statement without payment.
9. Defendant retained the Exhibit A statement without making payment by the stated due
date.
10. Defendant's assent to the Account balance set forth in the Exhibit A statement is
manifested through the prior conduct of defendant either making payment on the Account or
retaining the statement without payment, after receipt of the monthly billing statements.
11. As a result of said assent, an account stated for the sum of $2,373.95 exists which
sum reflects the Exhibit A statement balance less credits, if any, which were applied subsequent
to the date of Exhibit A.
Wherefore, plaintiff demands judgment against defendant for the sum of $2,373.95, and
the costs of this action.
Burton Neil Associates, P.C.
?y ??
Be arker, Esquire
,By: Brit J. Suttell, Esquire
In making this communication, we advise Burton Neil & Associates, P.C. is a debt collector.
C-57399 1205
sears Sears MasterCard"
Customer Service:
V searscard.com
® Account Inquiries:
14NO-6694MM
Account Statement
Send Ns4ee ol Mine Enars and Custattsr Beings inquiries to:
SEARS CREDIT CARDS
PO Box 6282, Sioux Falls, SD 571176282
Account. Number 2894•.
Summa of Account Activity
Previous Balance $2,298.69
Payments 0.00
Other Credits 0.00
Purchases 0.00
Cash Advances 0.00
Fees Cha ed +$35.00
Interest Char ed +$40.26
New Balance
Past Due Amount $2,373.95
$332.41
Credit Limit 0.00
Available Credit 0.00
Cash Advance Limit 0.00
Available Cash Limit 0.00
Amount Over Credit Limit 123.95
Statement Closing Date 01/29/2012
Next Statement Closing Date 02/272012
Days in Billing Cycle 31
TRANSACTIONS
Trans Date Description Reference S Amount
FEES
01/25 LATE FEE $ 35.00
TOTAL FEES FOR THIS PERIOD $ 35.00
INTEREST cNAROED
01/29 INTEREST CHARGE ON PURCHASES $ 40.26
TOTAL INTEREST FOR THIS PERIOD $ 40.26
B ME 18
NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION Page 1 of 4 This Account Is Issued by Citibank, N.A.
-----------------------------------------------------------------------------------------------------------------------------
+ Plows detach this portion and return with your payment to insure proper credit. Retain upper portion for your records. +
t°:
Sears MasterCard" SEARSC'?' CREDIT Payable
SEAR
+P aaf D m An nt m :M:, :...._ ..:_:_.._
Four Account Num1w , Payment Due Date New Balance Past Due Amountt Mlnlmum Payment Due Amount Enclosed Ve
2tt94 FEBRUARY 25, 2012 $2,373.95 $332.41 $555.62 $
I1, SAVE STAMPS, TIME... AND TREES! Visit Account Online and register now for Online Bill Pay,
Paperless Statements and More.
2894 0237395 0055562 0012500 191 000 6
BARBARA M HOPE
15 WEST CIR
CAMP HILL, PA 17011-1343
Print address changes above in blue or black ink.
It you meld ho hd*lO*' Ydu will psy 0' f the ; Ano you wiH'-
chclrglrs using tht#. card- tudarwq aht7ylrn wt tlib _
and`up'PaYinq .
an
told st>eoh.irlerittti you pay::: stateAlAnt i6 about.,; ` estiniatt d'.Cot6it df•..:
Only the minimum payment 11 years $4,651
$89 3 years $3,194
(Savings=$1,457)
Minimum Payment Due $555.62
Payment Due Date February 25, 2012
Late Payment Warning: If we do not receive your minimum payment by the
date listed above, you may have to pay a late fee up to $35.
Minimum Payment Wanting: If you make only the minimum payment each
period, you will pay more in interest and it will take you longer to pay off your
balance. For example:
p you would ate Information about credo counseling services, cap 1-877-337-0188.
SEARS CREDIT CARDS
PO BOX 183082
COLUMBUS, OH 43218-3082
EXHIBIT ?I
Information About Your Account,
How to Avoid Paying Interest on Purchases. Your payment due date is at least
25 days after the close of each billing cycle. We will not charge you any interest on
purchases if you pay your New Balance by the payment due date each month. This
is called a grace period on purchases. If you do not pay the New Balance in full by
the payment due date, you will not get a grace period on purchases until you pay
the New Balance in full for two billing cycles in a row. We will begin charging
interest on cash advances and balance transfers (if available on your account) on
the transaction date.
If you have a balance subject to a deferred interest promotion and that promotion
does not expire before the payment due date, that balance (the "excluded
promotional balance") is excluded from the amount you must pay in full to get a
grace period. However, you must still pay any separately required payment on the
excluded promotion. In billing cycles in which payments are allocated to deferred
interest balances first, the deferred interest balance will be reduced before any
other balance on the account. However, you will continue to get a grace period on
purchases so long as you pay the New Balance less any excluded promotional
balances in full by the payment due date each billing cycle.
In addition, certain promotional offers may take away the grace period on
purchases. Other promotional offers not described above may also allow you to
have a grace period on purchases without having to pay all or a portion of the
promotional balance by the payment due date. If either is the case, the
promotional offer will describe what happens.
How We Calculate Your Balance Subject to Interest Rate. We use a daily
balance method (including current transactions) to calculate interest charges. To
find out more information about the balance computation method and how the
resulting interest charges were determined, contact us at the Account Inquiries
number on the front.
Balance Transfers. Balance transfer amounts are included in the "Purchases" line
in the Summary of Account Activity (if balance transfers are available on your
account),
Transaction Date. The Transaction Date shown on the statement is also the Sale
Date.
Credit Reporting Disputes. If you think we reported inaccurate information to a
credit bureau write us at the Customer Service address shown on the front.
Report a lost or Stolen Card Immediately. Call the Account Inquiries number
shown on the front.
What 7b Do If You Find A Mistake On Your Statement
If you think there is an error on your statement, write to us at the address for
billing inquiries and correspondence shown on the front of your statement.
In your letter, give us the following information:
• Account information: Your name and account number.
Dollar amount: The dollar amount of the suspected error.
• Description of problem: If you think there is an error on your bill,
describe what you believe is wrong and why you believe it is a mistake.
You must contact us:
• Within 60 days after the error appeared on your statement.
• At least 3 business days before an automated payment is scheduled, if you want
to stop payment on the amount you think is wrong.
You must notify us of any potential errors in writing. You may call us, but if you do
we are not required to investigate any potential errors and you may have to pay
the amount in question.
What Will Happen After We Receive Your Letter
When we receive your letter, we must do two things.
1. Within 30 days of receiving your letter, we must tell you that we received
your letter. We will also tell you if we have already corrected the error.
2. Within 90 days of receiving your letter, we must either correct the error or
explain to you why we believe the bill is correct.
While we investigate whether or not there has been an error:
We cannot try to collect the amount in question, or report you as delinquent on
that amount.
The charge in question may remain on your statement, and we may
continue to charge you interest on that amount.
• While you do not have to pay the amount in question, you are responsible
for the remainder of your balance.
• We can apply any unpaid amount against your credit limit.
After we finish our investigation, one of two things will happen:
If we made a mistake: You will not have to pay the amount in question or any
interest or other fees related to that amount.
• if we do not believe there was a mistake. You will have to pay the amount
in question, along with applicable interest and fees. We will send you a
statement of the amount you owe and the date payment is due. We may then
report you as delinquent if you do not pay the amount we think you owe.
If you receive our explanation but still believe your bill is wrong, you must write to
us within 10 days telling us that you still refuse to pay. If you do so, we cannot
report you as delinquent without also reporting that you are questioning your bill.
We must tell you the name of anyone to whom we reported you as delinquent, and
we must let those organizations know when the matter has been settled between
us.
If we do not follow all of the rules above, you do not have to pay the first $50 of
the amount you question even if your bill is correct.
Your Rights If You Are Dissatisfied With Your Credit Card Purchases
If you are dissatisfied with the goods or services that you have purchased with
your credit card, and you have tried in good faith to correct the problem with the
merchant, you may have the right not to pay the remaining amount due on the
purchase.
To use this right, all of the following must be true:
1. The purchase must have been made in your home state or within 100
miles of your current mailing address, and the purchase price must have
been more than $50. (Note: Neither of these are necessary if your
purchase was based on an advertisement we mailed to you, or if we own
the company that sold you the goods or services.)
2. You must have used your credit card for the purchase. Purchases made with
cash advances from an ATM or with a check that accesses your credit card
account do not qualify.
3. You must not yet have fully paid for the purchase.
If all of the criteria above are met and you are still dissatisfied with the purchase,
contact us in writing at the address for billing inquiries and correspondence shown
on the front of your statement.
While we investigate, the same rules apply to the disputed amount as discussed
above. After we finish our investigation, we will tell you our decision. At that point,
if we think you owe an amount and you do not pay, we may report you as
delinquent
EM SMC-TGI-SCC-SCP-HIPS 12111
T01679.1238-5300-0018-9-E-34-X--05/01/09-63--F'-B-0--4-0-0-0-SRSCHMSG---09101111 -ODZB-December 29, 2011-0-V
N---
Important Payment Instructions.
Right to Prepay Your Account. You may pay all or part of your account balance
at any time. However, you must pay, by the payment due date, at least the
minimum payment due.
Crediting Payments. If we receive your payment in proper form at our processing
facility by 5 p.m. local time there, it will be credited as of that day. A payment
received there in proper form after that time will be credited as of the next day.
Allow 5 to 7 days for payments by regular mail to reach us. There may be a delay
of up to 5 days in crediting a payment we receive that is not in proper form or is
not sent to the correct address. The correct address for regular mail is the address
on the front of the payment coupon. The correct address for courier or express
mail is the Express Payments Address shown below.
Proper Form. For a payment sent by mail or courier to be in proper form, you must:
Enclose a valid check or money order. No cash, gift cards, or foreign
currency please.
Include your name and account number on the front of your check or money
order.
If you send an eligible check with this payment coupon, you authorize us to
complete your payment by electronic debit. If we do, the checking account will
be debited in the amount on the check. We may do this as soon as the day we
receive the check. Also, the check will be destroyed
Copy Fee. We charge $3 for each copy of a billing statement that dates back 3
months or more. We add the fee to the regular purchase balance. We waive the fee
if your request for the copy relates to a billing error or disputed purchase.
Payment Options Other Than Regular Mail.
• In-Store Payments (Where Available). Any payment in proper form
accepted in-store will be credited as of that day. However, credit
availability may be subject to verification of funds. Not all stores accept
payments. Contact your local store to see if in-store payments are
accepted at that location.
Online Payments. Visit the web address on the front and sign up for
online payments. Enrollment may take a few days. If we receive your
request to make an online payment by 5 p.m. Eastern time, we will credit
your payment as of that day. If we receive your request to make an online
payment after that time, we will credit your payment as of the next day.
For security reasons, you may be unable to pay your entire New Balance
with your first online payment.
Pay by Phone Service. You may use this service any time to make a
payment by phone. You will be charged $14.95 if a representative of ours
helps expedite your payment. Call by 5 p.m. Eastern time to have your
payment credited as of that day. If you call after that time, your payment
will be credited as of the next day. We may process your payment
electronicafly after we verify your identity.
• Express Payments. You can send payment by courier or express mail to
the Express Payments Address. This address is: Payments Department,
1500 Boltonfield Street, Columbus, OH 43228. Payment must be received
in proper form at the proper address by 5 p.m. Eastern time to be credited
as of that day. All payments received in proper form at the proper address
after that time will be credited as of the next day.
Page 2 of 4
Account: **** **`* **** 2894
2012 Totals Year-4o-Date
Total Fees Charged in 2012 $35.00
Total Interest Charged in 2012 $40.26
INTEREST CHARGE CALCULATION
Typer of Dance Your Annual Percentage Rate (APR) is the annual interest rate on your account.
A'nnuatPewp ptagB Raft (APR) l3a ce SubJadt totntf;rW Rate' InteceNt Cha r
PURCHASES
REGULAR 20.40% (D)(V) $2.323.70 40.26
CASH ADVANCES
REGULAR 27.15% (D)(V) $0.00 $0.00
V = Variable Rate D = Dai
REWARDS SUMMARY
Previous Points Balance 0
Points Earned 0
Points A 'usted 0
Points Redeemed 0
Ending Points Balance 0
Page 3 of 4
Account: "" **** **** 2894
Page 4 of 4
Verification
Wkki L. Koch
I,
am employed by Citibank, N.A. (hereafter Citibank), which
is successor in interest to Citibank (South Dakota), N.A. This includes accounts previously
owned by Citibank (South Dakota), N.A. which merged into Citibank in or about July 2011. I
am authorized to make this verification on behalf of Citibank. The statements of facts set forth in
the Complaint are true and correct upon my information and belief and are made subject to the
penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities.
LA
Signature
C-57399
Barbara M Hope
Account number ending 2894
1032
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R 'LED 0k i=?.'.
y RO HON TA
Sheriff elk , P t
Jody S Smith 2012 MAY 24 AM 8' 16
Chief Deputy
Richard W Stewart CUMBERLAND COUNTY
Solicitor OFF E _R.:: PENNSYLVANIA
Citibank, NA
Case Number
vs.
Barbara M. Hope 2012-2935
SHERIFF'S RETURN OF SERVICE
05/15/2012 07:55 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on May 15,
2012 at 1955 hours, he served a true copy of the within Complaint and Notice, upon the within named
defendant, to wit: Barbara M. Hope, by making known unto herself personally, at 15 W. Circle, Camp Hill,
Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the
said true and correct copy of the same.
DENT IS FRY, DES
SHERIFF COST: $43.00
May 18, 2012
SO ANSWERS,
RON R ANDERSON, SHERIFF
(c) CountySuite Sheriff, Teleosoft, Inc.
Y _1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA, CIVIL DIVISION
CITIBANK, NA CIVIL ACTION - LAW
Plaintiff, No. 12-2935 CIVIL TERM
VS.
BARBARA M HOPE,
Defendant.
Type of Pleading:
PRAECIPE OF APPEARANCE
FILED ON BEHALF OF:
DEFENDANT
COUNSEL FOR DEFENDANT:
Jason Rettig, Esquire
Supreme Court No.: 200948
Of Counsel to Wites & Kapetan, PA
301 Grant Street, Suite 4300
Pittsburgh, PA 15219
Phone: (888) 499-3649
Fax: (888) 263-1655
rettiglaw@yahoo.com
h. 3
...
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA, CIVIL DIVISION
CITIBANK, NA
Plaintiff,
vs.
BARBARA M HOPE,
Defendant.
To Clerk of Court:
CIVIL ACTION - LAW
No. 12-2935 CIVIL TERM
Kindly enter my appearance on behalf of the Defendant, Barbara Hope.
Respectfully mitted,
Jt4W Rettig, Esquire
Supreme Court No.: 200948
Of Counsel to Wites & Kapetan, PA
301 Grant Street, Suite 4300
Pittsburgh, PA 15219
Phone: (888) 499-3649
Fax: (888) 263-1655
rettiglaw@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within Preliminary Objections and
Brief in Support has been served upon the following by regular mail, postage prepaid:
Date: $ (_1 /a,
Burton Neil & Associates, PC
Brit J. Suttell, Esq.
1060 Andrew Drive, Suite 170
West Chester, PA 19380
J ettig, Esquire
Supreme Court No.: 200948
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA, CIVIL DIVISION
CITIBANK, NA CIVIL ACTION - LAW
Plaintiff, No. 12-2935 CIVIL TERM
vs.
BARBARA M HOPE, n ,
Defendant.
NOTICE TO PLEAD O1 ` #,
To: PLAINTIFF -?-
N.A.
CITIBANK .
, C T7
Brit J. Suttell, Esq. =
Burton Neil & Associates, PC
1060 Andrew Drive, Suite 170
West Chester, PA 19380
You are hereby notified to file a written response to the enclosed Preliminary Objections
to the Amended Complaint within twenty (20) days from service hereof or a Judgment may be
entered against you.
BY:
?ttig, Esquire
reme Court No.: 200948
Of Counsel to Wites & Kapetan, PA
301 Grant Street, Suite 4300
Pittsburgh, PA 15219
Phone: (888) 499-3649
Fax: (888) 263-1655
rettiglaw@yahoo.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA, CIVIL DIVISION
CITIBANK, NA
Plaintiff,
VS.
BARBARA M HOPE,
Defendant.
CIVIL ACTION - LAW
No. 12-2935 CIVIL TERM
Type of Pleading:
PRELIMINARY OBJECTIONS
FILED ON BEHALF OF:
DEFENDANT
COUNSEL FOR DEFENDANT:
Jason Rettig, Esquire
Supreme Court No.: 200948
Of Counsel to Wites & Kapetan, PA
301 Grant Street, Suite 4300
Pittsburgh, PA 15219
Phone: (888) 499-3649
Fax: (888) 263-1655
rettiglaw@yahoo.com
PRELIMINARY OBJECTIONS TO COMPLAINT IN CIVIL ACTION
AND NOW comes Defendant, BARBARA HOPE, by and through undersigned counsel,
and files these Preliminary Objections to the Complaint in a Civil Action as follows:
FAILURE TO ATTACH WRITING(S)
1. Plaintiff has filed the present Complaint seeking recovery for an alleged credit card
account.
2. The only Exhibit to the Complaint is a single account statement, which does not show
any charges, payments, or any other itemization of the damages claimed due.
3. Plaintiff does not attach the alleged credit card agreement.
4. By failing to attach a copy of the credit card agreement (including the Rates and Terms
Schedule) in effect when the account was opened, Plaintiff has failed to comply with Pa.R.C.P.
§1019(i).
5. Plaintiff further violates Rule 1019(i) by attaching only a single statement as an exhibit,
which is not a contract, or even evidence of a course of conduct.
6. According, the complaint is the proper subject of preliminary objections pursuant to
Pa.R.C.P. §1028(a)(2) for failure to conform to Rule of Court 1019(i).
FAILURE TO PLEAD WITH SPECIFICITY
7. The complaint does not specifically plead out or attach an exhibit specifically identifying
charges, interest, penalties and the like.
8. The foregoing is a violation of the requirement of Pa.R.C.P. §1019(a) and the Complaint,
therefore, is the proper subject of preliminary objections, pursuant to Pa.R.C.P. §1028(a)(2) for
failure to conform to Rule of Law or Court.
WHEREFORE, defendant prays that the Complaint be stricken, and the Plaintiff be
required to plead over in accord with the Rules of Court.
Respectfully submitted,
J Rettig, Esquire
Supreme Court No.: 200948
Of Counsel to Wites & Kapetan, PA
301 Grant Street, Suite 4300
Pittsburgh, PA 15219
Phone: (888) 499-3649
Fax: (888) 263-1655
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA, CIVIL DIVISION
CITIBANK, NA
CIVIL ACTION - LAW
Plaintiff, No. 12-2935 CIVIL TERM
VS.
BARBARA M HOPE,
Defendant.
BRIEF
1. Matter before the Court
These preliminary objections are brought by Defendant BARBARA HOPE to a
Complaint filed by a debt collector seeking judgment based on an alleged credit card debt. As
set forth in the preliminary objections and discussed below, Plaintiff's Complaint is defective in
numerous ways, including these: Plaintiff fails to attach a copy of the credit card Agreement. The
only exhibit to the Complaint is a single credit card statement, which shows no purchases or
other transactions it fails to set forth the dates or amounts of purchases or charges that are part of
the claim or the dates or amounts of payments on the account. The Complaint should therefore
be dismissed on the grounds of insufficient specificity and failure to conform to law or rule of
court.
II. Issues Involved
1. a. Should Defendant's Preliminary Objections to a Complaint seeking
judgment on an alleged credit card debt be sustained where: The Complaint fails to attach
writings upon which the claim is based, including but not limited to the complete credit card
agreement in effect at the operative time, if any; and
b. The Complaint fiirther fails to state that such writings are not accessible to the
pleader, together with the reason, and to set forth the substance of the writings?
Suggested answer: Yes
2. Should Defendant's Preliminary Objections to a Complaint seeking judgment on
an alleged credit card debt be sustained on the basis that it lacks the requisite degree of
specificity and fails to comply with Pa.R.C.P. 1019(a), where the Complaint and the
documentation attached thereto fail to set forth the date of the alleged credit card agreement; the
dates or amounts of the purchase of receipt of goods, services or cash advances, or of any other
component of the total alleged to be due; or the dates or amounts of payments of the account?
Suggested answer: Yes
3. Should Defendant's Preliminary Objections to a Complaint seeking judgment on
an alleged credit card debt be sustained on the basis of failure to comply with Pa.R.C.P. 1019(h)
where the Complaint fails to state whether the agreement(s) upon which the claim is based on an
agreement that is oral or written?
Suggested answer: Yes
III. Statement of Facts
1. Since Defendant's Preliminary Objections go to the sufficiency of Plaintiff's Complaint,
the material "facts" for the purpose of this Motion are the contents of the Complaint, including
the documents attached thereto.
2. Plaintiff has filed the present Complaint seeking recovery for an alleged credit
card account.
3. The only Exhibit to the Complaint is a single account statement, which does not
show any charges, payments, or any other itemization of the damages claimed due.
4. Plaintiff does not attach the alleged credit card agreement.
5. By failing to attach a copy of the credit card agreement in effect when the account
was opened, Plaintiff has failed to comply with Pa.R.C.P. § 1019(i).
6. Plaintiff further violates Rule 1019(i) by attaching only a single statement as an
exhibit, which is not a contract, or even evidence of a course of conduct.
7. According, the complaint is the proper subject of preliminary objections pursuant
to Pa.R.C.P. § 1028(a)(2) for failure to conform to Rule of Court 1019(i).
8. The complaint does not specifically plead out or attach an exhibit specifically
identifying charges, interest, penalties and the like.
9. The foregoing is a violation of the requirement of Pa.R.C.P. §1019(a) and the
Complaint, therefore, is the proper subject of preliminary objections, pursuant to Pa.R.C.P.
§ 1028(a)(2) for failure to conform to Rule of Law or Court.
IV. Argument
Failure to attach a Writing
A preliminary objection may be filed by any party to any pleading on the basis that the
pleading fails to conform to law or rule court. Pa.R.C.P. Rule 1028(a)(2).
Pa.R.C.P. Rule 1019 sets forth the require contents of pleadings. Specifically, Rule
1019(i) provides:
When any claim or defense is based upon a writing, the pleader shall attached a copy
of the writing, of the material part thereof, but if the writing or copy is not accessible
to the pleader, it is sufficient so to state, together with reason, and to set forth the
substance in writing.
In a cause of action based upon breach of a credit card agreement, the failure of a plaintiff
to attach to the complaint the writing or writings that establish the plaintiff's claimed right to
relief is fatal to the cause of action. Atlantic Credit and Finance, Inc., v. Giuliana, 829 A.2d
340, 345 (Pa. Super, 2003.) (Emphasis Supplied).
In this case, the writings that establish Plaintiff's right to relief would be the credit card
contract with the Defendant. Plaintiff fails to attach the Credit Card Agreement and does not
allege why the Agreement is unavailable and provide the material terms of same. The fact that
the operative document is not attached, as per Giuliana. Supra, is fatal to Plaintiff's case.
Failure to Attach "Substitute for the Agreement"
Case law in this Commonwealth has sometimes allowed various documents to serve as a
substitute to satisfy the requirement of 1019(1), for example, signed applications for credit,
copies of relevant term sheets, and, most commonly, copies of statements clearly setting forth
charges, interest, penalties, etc., and showing uninterrupted use of the account without objection.
The point of all of this is to demonstrate Defendant's voluntary and knowing course of conduct
as a substitute for the actual agreement. The Plaintiff also did not attach a copy of the credit card
application or term sheets to the Complaint.
The statements
Statements are the most commonly accepted substitute for the 1019(i)'s requirements to
attach to the agreement. The idea is that these show a course of conduct between the parties,
based on full disclosure of terms, rates charges, interest, penalties and the like.
The requirement is normally that the Plaintiff/Pleader submits an uninterrupted chain of
statements, stating with a zero balance and ending with a statement showing an unpaid balance
that matches the amount sought in the complaint.
There is a copy of one single statement attached to the Complaint. Defendant respectfully
submits that the single statement is not enough to satisfy 1019(i)'s requirement that the writing
be attached. Indeed, this Court has previously held that a Complaint attaching on a credit card
statement is not sufficient to satisfy Rule 1019 and that Plaintiff must provide documents
evidencing the parties' agreement to the terms and conditions of the account.
Failure to Plead with Saecificity
Rules 1019(a) require that material facts upon which a cause of action is premised be
pled. As it would be truly unwieldy to require Plaintiff's lawyers to physically type every charge,
assessment of interest and penalty associated with the account, along with the items bought,
dates and amounts, etc., the requirement of pleading damages with specificity is usually satisfied
by Plaintiff's attaching the statements that support the amounts sought.
Similar to the use of statements discussed above in regard to show how statements are
sometimes used to solve 1019(1) problems, the normal requirement is a beginning statement with
a beginning balance of zero and an uninterrupted chain of statements and a final statement
supporting the amount sought in the Complaint. Only the purported final statement has been
provided in this case, and it does not show any charges or provide any of the facts required.
Accordingly, the Complaint should be dismissed pursuant to Pa. R. C. P. 1028(a)(2) for failure to
conform to Rule 1019(a).
Conclusion
Based on the foregoing, this Complaint is the proper subject of these preliminary
objections. Accordingly, Defendant requests that the Court dismiss this action and require
Plaintiff to amend, accordingly.
Respectfully submitted,
ogleffi-g-,-Esquire
upreme Court No.: 200948
Of Counsel to Wites & Kapetan, PA
301 Grant Street, Suite 4300
Pittsburgh, PA 15219
Phone: (888) 499-3649
Fax: (888) 263-1655
rettiglaw@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within Preliminary Objections and
Brief in Support has been served upon the following by regular mail, postage prepaid:
Burton Neil & Associates, PC
Brit J. Suttell, Esq.
1060 Andrew Drive, Suite 170
West Chester, PA 19380
Date: Z
J o ettig, Esquire
66preme Court No.: 200948
BURTON NEIL & ASSOCIATES, P.C.
Neil Sarker, Esquire ID. No. 203465
1060 Andrew Drive, Suite 170
West Chester, PA 19380
610-696-2120
Attorney for Plaintiff
CITIBANK, N.A.
Plaintiff
J CGU
IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
BARBARA M. HOPE
Defendant
NO. 12-2935
CIVIL ACTION - LAW
ANSWER TO PRELIMINARY OBJECTIONS
Writings
1. Admitted.
2. Denied. Plaintiff's complaint and its exhibits speak for themselves.
3. Admitted in part, denied in part. It is admitted only that plaintiff did not attach a card
agreement to its complaint. The balance of the allegation is denied. It is denied that plaintiff was
required to attach an agreement when its cause of action is not based on an explicit agreement,
but rather an account stated.
4. Denied. When pleading an account stated it is not necessary to plead or set forth the
terms of the original agreement which formed the basis of the account stated. Plaintiff's
complaint provides the factual elements of an account stated cause of action (the existence of an
account, plaintiff s rendering of the account unto defendant, and the defendant's conduct with
respect to those statements giving rise to the account stated). These are the required elements that
must be pled to sustain an account stated. Pleading the origins of the account and the individual
items making up the account are not required.
5. Denied for the reasons stated. Defendant's objection ignores the verified averments of
fact that are set forth in plaintiff's complaint. Pennsylvania and Pa. R. C. P. 1019 require the
pleading of material facts in a concise and summary form. Plaintiff's complaint factually avers a
course of conduct between the parties. As for documentation, in conjunction with the facts pled
by plaintiff s complaint, the statement attached averred to be rendered unto the defendant
reflecting the balance claimed due is the only document that need be attached at the pleading
stated to establish a prima facie account stated between the parties. Procedurally, if defendant
engaged in conduct contrary to that alleged in plaintiff's complaint, the same should be set forth
in an answer to the complaint, and if further documentation is needed, defendant should engage
in discovery.
6. Denied as stated. Plaintiff incorporates by reference above paragraphs 3, 4 and 5 of its
answer to defendant's preliminary objections.
Specificity
7. Denied. The complaint most certainly sets forth the amount claimed due on the
account, a minimum monthly payment due, and the interest accruing to defendant's account at
the time of the statement. To the extent defendant is alleging plaintiff s complaint is deficient for
failing to set forth all of the charges ever made to the account, it is denied the same is required. It
is not necessary to plead the individual items making up an account stated in a complaint.
Procedurally, if defendant engaged in conduct contrary to that alleged in plaintiff s complaint, the
same should be set forth in an answer to the complaint, and if further documentation is needed,
defendant should engage in discovery.
8. Denied as stated. Plaintiff incorporates by reference above paragraph 7of its answer to
defendant's preliminary objections.
WHEREFORE, plaintiff prays your Honorable Court will dismiss the preliminary
objections.
Burton Neil & AssocialA, P.C.
Neil Sarker, Esquire
In making this communication, we advise this firm is a debt collector.
BURTON NEIL & ASSOCIATES, P.C.
Neil Sarker, Esquire ID. No. 203465
1060 Andrew Drive, Suite 170
West Chester, PA 19380
610-696-2120
Attorney for Plaintiff
CITIBANK, N.A.
Plaintiff
V.
BARBARA M. HOPE
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 12-2935
CIVIL ACTION - LAW
BRIEF IN OPPOSITION OF DEFENDANT'S PRELIMINARY OBJECTIONS
A. History and Facts of the Case
Plaintiff Citibank N.A. instituted this action to recover a balance due on a credit card
account. After defendant was served with the complaint, preliminary objections were filed.
The preliminary objections raised challenges to the complaint for the alleged failure of
plaintiff to attach writings to its complaint. Defendant also seemingly objected that plaintiff's
complaint was insufficiently specific.
Plaintiffs complaint set forth verified material facts setting forth a course of conduct
between plaintiff and defendant, including how defendant's actions with regards to the credit
card gave rise to an account stated. Plaintiff attached the final step of that course of conduct, a
monthly billing statement, averred to have been rendered unto the defendant reflecting the
amount claimed due on the account stated.
Pursuant to the note to Pa R.C.P 1028(c)(2), the record for consideration of the
preliminary objections would consist of the facts in the allegations of the complaint as basically
defendant averred no facts in the preliminary objections.
Therefore, the facts of record for the purpose of disposition of the preliminary objections
are that plaintiff issued defendant a credit card account with number ending in 2894, that plaintiff
furnished defendant with consumer credit and kept accurate and running record for the account.
Plaintiff mailed defendant monthly statements for the account including complaint exhibit A.
After receiving the monthly statement, defendant either made a payment to plaintiff or retained
the statement without making a payment. With reference to Exhibit A to the complaint, there is a
notation "Account Inquries" with a telephone number, and an internet address. This fact would
reflect that if defendant had questions regarding the account, a resource was readily available to
respond to her questions.
Based on the facts of record, the preliminary objections should be overruled.
B. Issue
1. Whether plaintiff sufficiently plead a prima facie cause of action for an account stated?
2. Whether the facts set forth in the complaint are sufficient to enable defendant to plead?
C. Argument
Initially, it should be noted that plaintiff as the party instituting the instant civil action is
entitled to proceed under whatever cause of action it chooses. Indeed, while the complaint sets
forth the theory of plaintiff's cause of action as account stated, the law is clear that even this is
not necessary. As stated in Steiner v. Markel, 600 Pa. 515, 526 (Pa. 2009)
The dissent, relying primarily on Cardenas and Kuisis v. Baldwin-
Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (Pa. 1974), argues
that Pennsylvania's fact pleading requirements obligate a court to
search within a complaint to divine any possible claims stated therein.
Not only is Cardenas not binding on this Court, but the language in
both Cardenas and Kuisis is more limited than the dissent concludes.
In Cardenas, the Superior Court held that "it is not necessary that the
plaintiff identify the specific legal theory underlying the complaint."
783 A.2d at 325 (emphasis added). In Kuisis, this Court opined as
follows: The notion that a complaint weds a plaintiff to a
particular theory of liability is foreign to Pennsylvania pleading.
Ours is a system of fact pleading, not `theory' pleading; a
plaintiff is free to proceed on any theory of liability which the
facts alleged in his complaint will support.319 A.2d at 918 (Pa.
1974) (emphasis added). Pursuant to the holdings in Cardenas and
Kuisis, a plaintiff need not plead a specific theory of liability in a
complaint.
1. Plaintiffs complaint sets forth verified material facts and attaches the required
document to establish a prima facie account stated between the parties.
Plaintiff s complaint sets forth the material facts to support the elements of an account
stated cause of action, and attaches the appropriate writing, a billing statement averred to have
been rendered unto the defendant, reflecting the amount claimed due on the account.
Account stated is a viable theory for the recovery of a debt and plaintiff s complaint
adequately set forth a cause of action for an account stated between it and defendant. The Second
Restatement of Contracts defines and states the legal effect of an "account stated" at Section 282
as follows:
(1) An account stated is a manifestation of assent by a debtor and
creditor to a stated sum as an accurate computation of an amount
due the creditor. A party's retention without objection for an
unreasonably long time of a statement of account rendered by
the other party is a manifestation of assent. (Emphasis added)
(2) The account stated does not itself discharge any duty but is an
admission by each party of the facts asserted and a promise by the
debtor to pay according to its terms.'
Under Pennsylvania law, "...the essence of a common law action for an account stated is
an agreement, either express or implied, based upon prior transactions, between two parties as to
'Comment c to Section 282 states "Effect of account stated. An account stated does not itself result in
discharge, but operates as an admission of its contents for evidentiary purposes. It also operates as a promise to pay."
the correctness of an amount due.." Connolly Epstein Chicco Foxman Engelmyer & Ewing v.
Fanslow, 1995 WL 686045 at *5 (E.D.Pa.1995) (applying Pennsylvania law).
In Obermayer, Rebmann, Maxwell & Hippel v. Banta, 28 Pa. D. & CAth 225, 30
Phila.Co.Rptr. 573, (Pa.Com.Pl., 1996); affirmed in part & vacated in pert, Per Curiam, 455 Pa.
Super. 685, 687 A. 2d 866 (1996), the court confirmed that "the acceptance of accounts stated
need not be express, but may be implied." "Retention without objection by one party for an
unreasonably long time of a statement of account rendered by the other is a manifestation of
assent to the amount shown as an accurate computation of the amount due. Donahue v. City of
Philadelphia, 157 Pa. Super. 124, 41 A.2d 879 (1945). The existence of an account stated is
prima facie evidence of the correctness of the account shown in the absence of fraud, mistake or
error. Individual items of an account stated are presumed to be correct in the absence of timely
objections. Cauffiel v. Glenn, 345 Pa. 181 (1942); Tribulas v. Continental Equitable Title &
Trust Co., 331 Pa. 283 (1938).
Plaintiff's complaint makes use of the above reasoning and pled all necessary material
facts to set forth a prima facie case of an account stated between the parties. By attaching a copy
of a billing statement sent to the defendant reflecting the amount claimed due, plaintiff satisfied
the requirements to attach a writing to its complaint. In overruling preliminary objections to an
account stated complaint, and distinguishing the same from a breach of contract action, the
Lawrence County Common Pleas Court further elaborated on the elements required to set forth a
prima facie account stated. That Court stated:
The idea behind an action upon account stated is that a preceding
contract has been discharged and merged into a stated account which
is based upon the earlier contract. McKinney v. Earl L. Cump Inc., 2
Adams Leg. J. 132 (1961). The necessary averments in a complaint
based upon an account stated is that there had been a running account,
that a balance remains due upon that account, that the account has
been rendered unto the defendant, that the defendant has assented to
the account and a copy of said account is attached to the complaint.
Ryon v. Andershonis, 42 D.&C. 2d 86 (1967). See also, Fischer v.
Hyland Davey Co., 56 Luzerne Leg. Reg. 255 (1966). This much has
been provided by plaintiffs complaint.
The Court stated the other elements2 of the account stated complaint:
The complaint need not set forth the nature of the original
transaction. Fischer, supra; Erie Insurance Exchange v. Foltz, 34
Beaver L.J. 61 (1974). Neither is the subject matter of the original
debt nor a promise to pay necessary. McKinney, supra. The
alleged facts upon which the averred acceptance of the account
is based are also not obligatory in the complaint. Snyder v. Blain,
49 Luzerne Leg. Reg. 1 (1959). The acceptance need not be express,
but maybe implied. Fischer, supra; Donahue v. Philadelphia,157 Pa.
Super. 124, 41 A.2d 579 (1944)...The party relying upon the
account stated need not individually set forth the items of which
the account consist. Fischer, supra; Erie Insurance Exchange, supra.
That is to say that plaintiff is not required to itemize the account.
Weiner v. Gable, 26 Lehigh L.J. 387,69 York Leg. Rec. 119 (1955);
Knedler v. Clouse, 53 Dauphin Rep. 228 (1943). Details of the book
account upon which the claim is founded are not indispensable to the
complaint. Datto v. Corrizan, 47 Lacka. Jur. 241 (1946). (Emphasis
added)
It should be noted that Courts across the Commonwealth have found the above reasoning
persuasive in the past. For example, Honorable Judge Wagner and President Judge Solomon of
Fayette County, as recently as February of 2009 and November of 2010 confirmed the above
reasoning in Citibank (South Dakota) N.A. v. Chad E. Beatty Sr., Fayette County Court of
These elements are likewise recognized in authoritative commentary, as well as decisions in the
Pennsylvania appellate and federal courts. See: Section 282 , Restatement (Second) of Contracts;Mahony v.
Boenning, 335 Pa. 210, 6 A.2d 703 (1939); David v. Veitscher Magnesitwerke AG , 348 Pa. 335, 35 A. 2d 346, 349
(1944) quoted with approval South Side Trust v. Washington T.P. Co., 252 Pa. 237, 97 A. 450, 451 (1916); Levin v.
Garfinkle et al., 429 F. Supp. 781, 820 ( E. D. Pa., 1980); Obermayer, Rebmann, Maxwell & Hamel v. Banta,28 Pa.
D. & CAth 225, 30 Phila.Co.Rptr. 573, (Pa.Com.Pl., 1996); affirmed in part & vacated in pert, Per Curiam, 455 Pa.
Super. 685, 687 A. 2d 866 (1996); Thompson Rose, Inc. v. McGovern Florist & Decorators, Ltd., 34 Ches.Co.Rep.
1,4 (1986).
Common Pleas indexed at 3161 of 2008 GD, and Citibank (South Dakota) N.A. v. Ryan Federer,
Fayette County Court of Common Pleas indexed at 753 of 2010 G.D. In those cases, the court
overruled objections similar to that at bar approving a complaint essentially identical to that in
the case at bar. A copy of Judge Solomon's Opinion and Order in Federer as well as a copy of
Judge Wagner's Order citing Rush's Service Center, Inc. are attached hereto as Exhibit 1. Judges
Wagner's and Solomon's decisions find support throughout the Commonwealth. The Court in
Citibank (South Dakota), N.A. v. King, 2 Pa. D. & C. 5th 60 (Pa. Com. Pl. 2007), 2007 Pa. Dist.
& Cnty. Dec. LEXIS 377 approved of a complaint materially identical to that at the case at bar.
Similar to this case, the defendant in King objected to a complaint identical to that in the case at
bar. This Court reasoned that the complaint set forth all of the elements required to support its
account stated cause of action, and appropriately attached the billing statement reflecting the
amount due. Accordingly, the Court overruled defendant's objections. In the opinion, this Court
noted:
"Additionally courts in Pennsylvania have found that such agreement can be implied
when "The retention without objection by one parry for an unreasonably long time of a
statement of account rendered by the other is a manifestation of assent to the amount
shown as an accurate computation of the amount due." Donahue v. City of Philadelphia,
157 Pa.Super. 124, 128, 41 A.2d 879 (1945). Therefore it is clear that the Defendant has
assented to the account based on Paragraph 7 of the Plaintiffs Complaint where it stated
that the "Defendant had for many months made payments on account of the billing
statement or retained the statement without payment." Based on the foregoing, [*4] and
accepting all of the material averments made in Plaintiffs Complaint as true, this Court
finds that the Plaintiff has provided facts within the Complaint sufficient to sustain a
cause of action based on an account stated claim"Id.
Clearly, therefore, the complaint in the case at bar is sufficient set forth a cause of action
in account stated? Citibank (South Dakota), N.A. v. King, 2 Pa. D. & C. 5' 60 (Pa. Com. Pl.
3See Mahone v. Boennin, 335 Pa. 210, 6 A.2d 703 (1939); David v. Veitscher Magnesitwerke AG, 348
Pa. 335, 35 A. 2d 346, 349 (1944) quoting with approval South Side Trust v. Washington T.P. Co., 252 Pa. 237, 97
A. 450, 451 (1916); Levin v. Garfinkle et al., 429 F. Supp. 781, 820 (E. D. Pa., 1980); Obermaver, Rebmann,
Maxwell & Hippel v. Banta, 28 Pa. D. & CAth 225, 30 Phila.Co.Rptr. 573, (Pa.Com.Pl., 1996); affirmed in part &
2007), 2007 Pa. Dist. & Cnty. Dec. LEXIS 377. See also Citibank (South Dakota), N.A. v.
Ambrose, 13 Pa. D. & C.5th 402; 2010 Pa. Dist. & Cnty. Dec. LEXIS 255. Procedurally, if
defendant engaged in conduct contrary to that alleged in plaintiff s complaint, the same should be
set forth in an answer to the complaint, and if further documentation is needed, defendant should
engage in discovery.
2. An Action for Account Stated is Set Forth in the Complaint and Sufficiently
Informs Defendant of the Basis of the Claim for Which Relief is Sought.
Defendant contends that the complaint lacks the specificity to enable her to plead
intelligently and that more is required of plaintiff s complaint to satisfy Pa. R. C. P. 1029(f) and
1028(a)(3). As noted already, the complaint is legally sufficient as it contains the required
averments of material fact and attaches the documents required to support an account stated. As
stated above in pleading an account stated, the party relying upon the account stated need not
individually set forth the items of which the account consist. Fischer, supra; Erie Insurance
Exchange, supra. That is to say that plaintiff is not required to itemize the account. Weiner v.
Gable, supra.
Plaintiff s complaint sufficiently apprises defendant of the facts of its cause of action. Pa
R.C.P. 1019(a) provides that "[t]he material facts on which a cause of action or defense is based
shall be stated in a concise and summary form."
vacated in pert, Per Curiam, 455 Pa. Super. 685, 687 A. 2d 866 (1996); Thompson Rose, Inc. v. McGovern Florist &
Decorators, Ltd., 34 Ches.Co.Rep. 1,4 (1986); Rush's Service Center, Inc. v. Genareo, 1991 Pa. Dist. & Cnty. Dec.
LEXIS 270, 2-4 (Lawrence Cty. CCP; 1991); Citibank (South Dakota), N.A. v. King, 2 Pa. D. & C. 5`h 60 (Pa. Corn.
Pl. 2007), 2007 Pa. Dist. & Cnty. Dec. LEXIS 377. See also attached Exhibit 2 Citibank (South Dakota), N.A. v.
Kapusta, No. 2007-SU-3005-Y, Citibank (South Dakota), N.A. v. Lamont No. 2008 GN 4444 (Blair County 2009 )
and Citibank (South Dakota), N.A. v. Weaver No. 2008- 01614 (Lebanon County 2009)
The standard to determine whether the pleading is sufficient specific is:
A preliminary objection on the ground of insufficient specificity of a
pleading requires that the pleading be tested as to whether it fully
summarizes material facts, namely, ultimate facts essential to support
the claim, or whether the plaintiff s complaint informs the defendant,
with accuracy and completeness, of the specific basis on which
recovery is sought, so the defendant may know without question upon
what grounds to make the defense. 5 Std Pa. Practice 2d Section
25:68
Certainly, defendant would know the basis on which recovery is sought. In
Commonwealth Financial Systems v. Reeping, No. 299 Civil 2009 (Somerset County 2009)4, the
court discussed the realities of credit card cases. In overruling preliminary objections to the
complaint, the court held "a 1028(a)(3) objection `is not available to compel an opposing party to
plead evidence and will be [overruled] where the details of items of special damages, pleaded
generally, are readily obtainable through discovery." (Opinion p. 14). "In cases involving credit
card collection, the debtor has `enough facts to enable him to frame a proper answer and prepare
a defense..."' Importantly, the court observed that the Pa R.C.P. 1029(c) is available to answer
the averments of the complaint. "Accordingly, under Rule 1019, a complaint does not need to
`include the amounts of the charges that are part of the claim, the dates of the charges, credits for
payments, if any, dates and amounts of interest charges, and dates and amounts of other charges'
4Copy of the opinion is attached as Exhibit 3. Although the case is based upon a breach of contract, the
opinion discusses the realities of pleading and proof in credit card cases and clearly holds that pleading proof is not
proper.
515 USC Section 1666 of the TILA states that a consumer has 60 days to dispute any alleged error in the
required billing statements. The related Code of Federal Regulations (CFR) section, commonly known as Regulation
Z relating to credit cards states in 15 CFR Sec. 226.13 Because the record facts in this case reflect defendant was
mailed monthly billing statements, defendant should know whether or not he disputed any item in any billing
statement he received. "(b) Billing error notice. A billing error notice is a written notice from a consumer that is
...received by a creditor ... no later than 60 days after the creditor transmitted the first periodic statement that
reflects the alleged billing error." Regulation Z further requires a consumer to "identify the consumer's name and
account number; and ... indicates the consumer's belief and the reasons for the belief that a billing error exists, and
the type, date, and amount of the error."
because the alleged debtor can `answer intelligently and determine what items he can admit and
what he must contest' regardless. (Citations omitted). (Opinion at p. 14)6
The nature of the transactions in this case is that plaintiff extended consumer credit to
defendant through the use of a credit card. Common sense dictates that only the plaintiff and
defendant would have knowledge of the facts surrounding this relationship." Unquestionably,
apart from appellee, appellants are the only parties who would have sufficient knowledge on
which to base a specific Denial." New York Guardian Mortg. Corp. V. Dietzel, 362 Pa. Super.
426, 429 (Pa. Super. Ct. 1987) One need only inquire who other than defendant would know
whether he applied for and received the credit card, made use of the credit card, received billing
statements, reviewed the billing statements, made payments, etc.
D. Conclusion
In light of the foregoing authorities, defendant's objections in this case should be
overruled. First, plaintiff's cause of action is one for an account stated, no breach of contract.
Accordingly, it was not necessary for plaintiff to aver nor attach any agreement to its complaint.
Plaintiff pled the required elements and attached the appropriate document to establish a prima
facie account stated between the parties. Defendant is free to respond to the complaint within the
dictates of Pa R.C.P. 1029(b) with facts known to her. To the extent she does not possess facts to
plead and upon reasonable investigation is still unable to do so, Pa R.C. P. 1029(c) provides her
6In pleading a complaint based upon an account stated, plaintiff must allege that there has been a running
account, that a balance remains due, that the account has been rendered upon the defendant and that the defendant
has assented to the account. The complaint need not specify the time and place of the original contract or specify the
materials or supplies sold thereunder. Rush's Service Center, Inc. v. Genareo, 10 D&C 4 cn 445 (Pa. Com. Pl. 1991).
with a safe harbor for denial. It is axiomatic that the simple act of filing a complaint, without
more, does not equate to a plaintiff winning the case.
The preliminary objections should be overruled.
Respectfully Submitted,
BURTON NEIL & ASSOCIATES, P.C.
By:
Neil Sarke Esquire
Attorney for Plaintiff
In making this communication, we advise our firm is a debt collector.
IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
PENNSYLVANTLk,
CIVIL DIVISION
N
f?
G7
CITIBANK
(SOUTH DAKOTA), N.A.-
Plaintiff,
v
w
vs.
RYAN FEDERER,
Defendant. No. 753 of 2010; G.D.
OPMON AND ORDER
SOLOMON, P.J.
November 24, 2010
Before the Court are preliminary objections filed by Defendant, Ryan
Federer, to the Complaint of Plaintiff, Citibank (South Dakota), N.A.
Defendant objects to the lack of an assignment or debt buying arrangement,
.._......objects..to.the...allegation...of..an..account,.stated,..and..objects..to_ the..iack._of....... _ ... - .. .
specificity pursuant to Pa.R.C.P. 1019(f).
DISCUSSION
In the context of preliminary objections, the court must accept as true
all well pled facts and the reasonable inferences deducible. therefrom, but not
I _ EXHIBIT _,?
conclusions of law. Hess x Fox Rothschild, LLP, 925 A.2d 798- (Pa.Super.
2047). Gekas v. Shapp, 364 A.2d 691 (Pa. 1976). With this tenet to guide
us, we must look to the complaint to detemaine whether it sets forth a cause
of action which, if proved, would entitle the plaintiff to the relief sought. Id.
If such is the case, the demurrer may not be sustained. Id. On the other
hand, if the complaint fails to set forth a cause of action, a preliminary
objection in the nature of a demurrer is properly sustained. Id.
The first preliminary objection of Defendant is for Plaintiff's failure to
attach an assignment to the Complaint. Unless a claim is alleged to be based
on a written contract, there is no necessity to attach a writing. In Plaintiff's
Complaint, there is neither an allegation that the debt owed was assigned to
Plaintiff, nor an allegation that Plaintiff purchased the debt. Since the Court
is bound to accept all well plead facts as true, we are constrained to accept
the fact that no assignment of the debt was made. Thus, the preliminary
......._objection- based. on .Plaintiffs failure. to attach the assignment must be
;.-- overruled.
Defendant's second preliminary objection is for legal insufficiency of
the Complaint on the theory of account stated. This action is based on the
legal recovery theory of account stated, and is not a breach of contract
action. An "account stated" is an account in writing, examined and accepted
-2-
by. both parties: Leinbach v. Wolle, 61 A. 248 (Pa. 1905). Acceptance need
not be express, but may be implied from circumstances. Id. The necessary
averments in a complaint based upon an account stated is that there had been
a running account, that a balance remains due upon that account, that the
account has been rendered unto the defendant, that the defendant has
assented to the account and a copy of said account is attached to the
complaint. Rush's Service Center Inc. v. Genareo, 10 Pa. D. & C. 4th 445,
1991 WL 338317 (Pa.Com.Pl. 1991).
Stated somewhat differently, an account stated is broadly defined as
an agreement, based on. the prior transactions between the parties to an open .
account, that the items of the account are true and that the balance struck is
due and owing from one party to another. Am. 7ur. 2d, Accounts and
Accounting § 26. To produce an account stated, the account must be
rendered, and the other party must accept, agree to, or acquiesce in the
- - -correctness- of the account. . David_ v....Y..eitscher..1llagnesitw.erke..Actien.
Gesellschaft, 35 A.2d 346 (Pa. 1944); Ryon v. Andershonis, 42 Pa. D. &
C.2d 86, 1967 WL 8749 (Pa.Com.Pl. 1967).
-In the courts of Pennsylvania, there is disagreement as to whether the
doctrine of "account stated" can apply to actions based on unpaid credit
cards. See, Target National Bank v. Kilbride, 10 Pa. D. & C.5th 489
-3-
(Pa.Com.P1.2010) (holding credit card company had failed to establish a
prima facie case of account stated); American Express Centurion v. Decker,
9 Pa. D. & C.5th 299 (Pa.Com.P1.2009) (noting disagreement in
Pennsylvania courts as to whether the account stated cause of action may be
used to collect a credit card debt). A customer's ongoing receipt of credit .
card statements without objecting to them can give rise to an inference that
the customer has accepted the balance shown as due. When a debtor has had
an opportunity to scrutinize the account, his or her silence is prima facie
evidence of acquiescence in an account stated. Pierce v. Pierce, 48 A. 689
(Pa. 1901).
There is no binding authority on point as to whether an account stated
cause of action is legally permissible in an action to recover unpaid credit
card debt. Finding that case law does not exempt credit card cases from an
account stated cause of action, we must overrule the preliminary objections.
..See;.American.Express.Centurion.v. Decker,-supra.
Defendant's third objection argues a lack of specificity pursuant to
Pa.RC.P. -1019(f for Plaintiff failing to. plead specifically the date sand
amounts of charges, fees, fines, interest, and the like- After review of the
Complaint,. Plaintiff pled sufficient facts to pursue an account stated cause cf
action, and this preliminary objection must be overruled.
-4-
WHEREFORE, we will enter the following Order.
P.J.
ATTEST:
?RLiE AND ATTESTED Copy
PR6T4(; NOTA Y
-5-
IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
PENNSYLVANIA,
CIVIL DIVISION
CITIBANK
(SOUTH DAKOTA), N.A., : T
Plaintif? r
rQ,
vs. ; w
t
RYAN FEDERER,
Defendant. No. 753 of 2014, G.D.
ORDER
AND NOW, this 24th day of November, 2010, it is hereby
ORDERED and DECREED that the preliminary objections of Defendant,
Ryan Federer, are overruled.
BY THE COURT,
GERALD R.
PRESIDENT
ATTES
MUE AND AiTEg p CGPY
m4or,40 mwm"Y
-.b .
CITIBANK (SOUTH DAKOTA), N.A. IN THE COURT OF COMMON PLEAS
Plaintiff
FAYETT,COUNTY, PENNSYLVANIA
V.
NO. 3161 of 2008 GD
CHAD E. BEATTY SR.
Defendant : CIVIL ACTION - LAW
Order
AND NOW, this day of 2001, it is hereby
ORDERED that defendant's prelimQinary\ objections are C
??M S?v????. `?A1?I IhL. ?.
SAX ' ?ti??l
O
r'1 , 1
Y ' 1
TRUE AND SD COPY
0
PROTHO NOTARY
ieir entirety. }t AyS
11 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CMBANK (SOUTH DAKOTA) N.A.,
Plaintiff
v.
CASSIE O. KAPUSTA
Defendant
No. 2007-SU-3005-Y01
CIVIL ACTION - LAW
T?
w
Appearances: Derek C. Blasker, Esquire for the Plaintiff
Thomas M. Shult26 Esquire for the Defendant
MEMORANDUM OPINION AND ORDER
t `f
Before the Court for disposition are the Preliminary Objections of Cassie Kapusta
co
("Defendant"). Defendant raises two preliminary objections to CITIBANK (South Dakota)
N.A. ("Plaintiff') Complaint. First, Defendant avers that Plaintiffs Complaint fails to
conform to law or Rule of Court when it states that Defendant agreed to make certain
payments, but fails to state whether such agreement was oral or written, and if written, did
not have a copy of the writing attached as required by Pa.R.C.P. 10) 9(i). Second, Defendant
demurrers to Plaintiffs failure to plead the elements necessary to support a breach of contract
claim.
The parties have filed Briefs and the Objections are ripe for decision. As addressed
below, the Defendant's objections are not well founded and will be refused.
PROCEDURAL HISTORY
Plaintiff initiated this matter with a Complaint filed August 14, 2007. Defendant
filed Preliminary Objections an September 26, 2007. Defendant filed Brief in Support of
Preliminary Objections on October 5, 2007. Plaintiff filed Answer and Brief in Support of
Answer to Defendant's Preliminary Objections on October 15, 2007. A Praecipe to List
?XWIBIT
Case for One Judge Disposition were filed on February 21, 2008. This case was assigned to
11 the undersigned for one judge disposition on March 4, 2008.
DISCUSSION
1. Defendant avers that Plaintiff's Complaint fails to conform to law or Rule of
Court when it states that Defendant agreed to make certain payments, but
fails to state whether such agreement was oral or written, and if written, did
not have a copy of the writing attached as required by Pa.R.C.P. 1019(i).
First, Defendant argues that Plaintiff's Complaint in 14 fails to state whether the
contract alleged to have been entered into was oral or written pursuant to Pa. KC.P. 1019(h).
Next, Defendant argues that if the alleged agreement was in writing, then Plaintiff failed to
attach a copy of the writing to its Complaint pursuant to Pa. R.C.P. 1019(i) (Defendant's
Preliminary Objections To Complaint ¶J 1-5)
Plaintiff argues that it filed its Complaint based on an account stated theory. Plaintiff "
argues that 18 of the Complaint shows that this Complaint is not based on the breach of
alleged terms and conditions, but is based on an account stated cause of action. Plaintiff
argues that 14 of its Complaint established the foundation that consumer credit fumished to
Defendant with the same account number as the one reflected in the billing statement
attached to the Complaint_ Therefore, since Plaintiff's Complaint is based on an account
stated theory, the Complaint does not have to plead if there is an oral or written agreement,
and Plaintiff is not required to attach any written agreement to the Complaint since the claim
is not based on a writing. (Plafnti fs Brief in Support of Plaintes Answer to Defendant's
Preliminary Objections to the Complaint)
We agree with Plaintiff. The claim set forth in 14 of the Complaint states "Plaintiff
furnished consumer credit to the defendant by means of a(n) AT&T Universal credit card
with account number.. . " (Complaint, 14) After a plain reading of 18 of the Complaint,
we find Plaintiff's Complaint is not based on the breach of alleged'terms and conditions, but
is based on an account stated cause of action, which is evident by the statement
"(defendant's actions are set forth above constituted an account stated between parties for
the sum of $13,478.12 which sum reflects the Exhibit A statement.. .". (Complaint, 18)
Under Pennsylvania law, "... the essence of a common law action for an account
stated is an agreement, either express or implied, based upon prior transactions, between two
parties as to the correctness of an amount due.." (Plaint's Brief in Support o, plaint ffs
Answer to Defendant's Preliminary Objections io the Complaint, quoting Connolly Epstein
Chicco Forman Engelmver & Ewing v Familow. 1995 WL 686045 at 5 (E.D. Pa. 1995)
(appl)ing Pennsylvania law)
We find that Plaintiffs Complaint sets forth a valid account stated cause of action.
We find that since 14 of the Complaint does not infer a claim based on an agreement, the
Rules do not require Plainti fT to plead if there is an oral or written agreement. Also, Plaintiff
is not required to attach any written agreement to the Complaint, since Plaintiff's claim is not
based on a writing. Therefore, the objection is not granted because the reason for the rule
does not exist in the instant situation-
Accordingly, we DENY Defendant's Preliminary Objection.
2. Defendant demurrers to Plaintiffs failure to plead the elements necessary to
support a breach of contract claim.
Plaintiff avers in its demurrer the failure of Defendant to attach a copy of the
agreement and the failure to specify whether the agreement was oral or written results in
Defendant being unable to assert a proper defense to the allegations contained in the
Complaint. Also, Plaintiff' has failed in its Complaint to plead the elements necessary to
support a breach of contract claim. Therefore, P)aindff s Complaint is legally insufficient to
support a claim upon which the requested relief can be granted. (Defendant's preliminary
Objections To Complaint 116-9)
Plaintiff did not respond to Defendant's Demurrer in its Answer.' We speculate the
reason may be because Defendant's demurrer is based on Plaintiff not attaching the written
agreement for the credit card account, and Plaintiff had already addressed this in its Answer
and Brief.
The retention without objection by one party for an unreasonably long time of a
statement of account rendered by the other is a manifestation of assent to the amount shown
as an accurate computation of the amount due. Donahue v. City of Philadelnhia, 157 Pa.
Super. 124 (1945)
The existence of an account stated is prima facie evidence of the correctness of the
account shown in the absence of fraud, mistake or error. Individual items of an account
stated are presumed to be correct in the absence of timely objections. au v. Q1= 345
Pa. 181 (1942)
In order to sustain a demurrer, it is essential that the face of the complaint indicate
that its claims may not be sustained and that the law will not permit a recovery. Gekas v.
5hane, 469 Pa. 1, 364 A.2d 691 (1976).
"The question presented by the demurrer is whether, on the facts averred, the law
says with certainty that no recovery is possible." MacElree v. Philadelphia Newspapers, 544
Pa. 117, 124 (Pa. 1996) We must "accept all material facts set forth in the complaint as well
as all inferences reasonably deducible therefrom as admitted and true" when considering a
' Defendant's Answer addresses Preliminary Objections 111-5 and does not address Preliminary Objections 4R
6-9.
preliminary obj ection in the nature of a demurrer. Wiernik v. PHH LJ.S. Morte. Corte 736
A.2d 616, 619 (Pa. Super. Ct. 1999)
Admitting as truc all well-pleaded material facts, and every infercnce deducible from
those facts, we find the Complaint sets forth facts sufficient to state a claim based on an
accounted stated theory. Therefore, Plaintiff should be afforded the opportunity to pursue a
its claim.
Accordingly, we DENY Defendant's Preliminary Objection.
CONCLUSION
In sum, having reviewed the record in the context of Defendant's Preliminary
Objections, Defendant's objections are not well founded and will be refused. The
appropriate Order follows.
A copy of the order and memorandum is to be served on counsel for transmittal to
their respective clients as is required by law.
BY THE COURT:
Date: March 7, 2008
J VW.
THOMPSON, , Ju c
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
CITIBANK (SOUTH DAKOTA) NA-,
Plaintiff No.2007-SU-3005-Y01
V.
CIVIL ACTION - LAW
CASSIE O. KAPUSTA
Defendant
Appearances: Derek C. Blasker, Esquire for the Plaintiff
Thomas M. Shultz, Esquire for the Defendant
ORDER
And now to wit this 7a' day of March, 2008, the Preliminary Objections of Defendant
are REFUSED AND DISMISSED for the reasons set forth in the attached opinion.
Defendant is ordered to answer the Complaint within twenty five (25) days of service of this
order.
The Prothonotary is directed to serve copies of this order upon counsel for the parties,
as required by law.
SO ORDERED
BY THE COURT.
J W. THOMPSO , JR, e
04/o8/2008 14.13 FU 8143171822
IN THE COURT OF COMMON PLEAS OF BLAJR COUNTY, PENNSYLVANIA
CITIBANK (SOUTH DAKOTA), N.A.,
PLAINTIFF
vs.
NICOLA A. LAMONT AKA
NICOLA A. KALTENBRUNNM
DEFENDANT
HON. TJMOTHY M. SULLIVAN
NEIL SARKER, EQUURE
SHAWN B. COHEN, ESQUIRE
2007 GN 6062
PRESIDTNG JUDGE
1a001
COUNSEL FOR PLAINTIFF
COUNSEL FOR DEFENDANT
OPIMON Alb ORDER
We now have before us disposition of Defendant's Preliminary Objections to
Plaintiffs Complaint.
PROCEDIIRAUlFACTUAL, HISTORY
This action was initiated with a Complaint filed by the Plaintiff Citibank (South
Dakota), N.A. ("Plaintiff') against Defendant Nicola A. Lamont, AKA Nicola A.
Kaltenbrunner ("Defendam") on November 1, 2007. Defendant filed PTcliminary
Objections along with a supporting brief on December 17, 2007. Plaintiff filed an
Amswer to Defendant's Preliminary Objections on January 3, 2008.
- Plaintiffs Complaint is based on an alleged account stated between the Defendant
and Plaintiff Citibank- In its Complaint, Plaintiff alleges that it furnisbed consumer credit
to the Defendant by means of a credit card (credit card account) with a specific account
number. Complaint, 94. Plaintiff alleges that it kept accurate running records of all debits
and credits m to this acco=t as well as mailed to Defendant monthly statements for the
account, said statements including the balance, the debits and credits as to the account for
the prior billing period. Complaint, 15,6. Further, Plaintiff alleges that for many months
Defendant made payments on the account or retained the statement 'without payment:
Complains, 17. Plaintiff alleges that an account stated was constituted through the actions
set forth and demands judgment on. the account stated in the amount of $8,246.45, and
costs of the action. Complaint, 19.
04/08/2008 14:13 FAX 8143171822
Q002
Defendant filed Preliminary objections to the complaint in the form of a Motion
to Strike along with a Brief in Support of the Preliminary Objections. Defendant alleges
that the Complaint "does not contain any itemization or any other means by which one
could calculate why this amount is owed, and what portion of the amount claimed
represents charges on the account as opposed to late fees, interest or attorney fees which
may have been added to the account." Defendant's Preliminary Objections, 11; Brief in
Support of Preliminary Objections. Further, Defendant alleges that Plaintiff fails to state
how the agreement was made between the parties, when the payments were due and how
they were paid, and that Plaintiff failed to artach a copy of the agreement if written as
required by Pennsylvania law. Defendant's Preliminary Objections, Y2,3; Brief in
Support of Preliminary Objections. Defendant alleges that since the account is to be
disputed, "... it is essential for the pleadings to contain 3t least enough information to
allow Defendant to in good faith adroit or deny what may or may not be owed," and
Defendant requests that Plaintiffs Complaint be dismissed with prejudice and that
judgment be entered in her favor and against the Plaintiff. Defendant's PreliminaryObjections; Brief in Support of Preliminary Objections.
Plaintiff Bled an Answer to Defendant's Preliminary Objections. Plaintiff alleges
that the Complaint is based on the cause of action of an account stated, and while
admitting to there being a balance due on the account, denies that the Complaint rnust
contain an itcmization Of the amount owed, the portion of amounts claims as opposed to
late fees, interest or attorney fees, or when payments are due on the account. Plaintifl`s
Answer to Defaidant's Preliminary Objections, 11,2. Plaintiff alleges that it admits that
it failed to attach. a copy of the alleged written agreement between the parties, but states
that "... plaintiff's complaint is not based on a written agreement but on an account
stated. By way of further response_ a copy of the account stated was attached to the
complaint." Plaintiffs Answer to Defendant's Preliminary Objections, 13
We now proceed to disposition.
DISCUSSION
Preliminary objections which result in the dismissal of a cause of action should be
sustain A "Only in cases that am (so] `clear and free from doubt' that the plaintiff will be
unable to prove legally sufficient facts to establish any right to relief. All doubts in this
determination should be resolved by ovemtling the preliminary objections." Montoya v,
'?IcGonegal, 757 A.2d 947, 950 (Pa. Super. 2000).
The Defendant filed a Motion to Strike and requested that Plaintiffs Complaint
tits dismissed with prejudice and that judgment be entered in her favor and against the
Plaintiff. Defendant's Motion to Strike. Defendant, in the Motion to Strike and
.(2)
accompanying Brief alleges that (1) Plaintiff fails to identify what amounts are owed,
Plaintiff fails m identify when payments are due or the terms which Defendant had to
make ptiyrnems. and (3) Plaintiff fails to attach the written agreement between the parties
2
04/oa/2008 14:13 FAX 8143171822
Q003
and fails to indicate how the agreement was agreed to by parties. Defendant's
Preliminary Objections, 11 -3; Brief in Support of Preliminary Objceti.ons.
Under the Pennsylvania Rules of Civil Procedure 1019, pleadings must contain
material facts on which a cause of action is based and sW) be stated in a concise and
summary form. Pa. R. C. P. 1019(a).
In general, the pleading "should be, suf iciently clear and explicit so that the
defendant to prepare his defense may be informed of plaintiffs demand. The very
purpose of pleadings is to frame concisely definite and distinct issues for trial of the
cause." GlicfF x Peoples-Pittsburgh Trust Ca., Bast End Branch, 7 A.2d 364 (Pa. Super
1939).
The pleading must contain averments of fact that will eventually have to be
proven in order to recover and be sufficiently specific to enable the preparation of a
defense. Baker v_ Rangos, 324 A.2d 49$ (Pa. Super. 1974).
An account stated is an accoLmt in writing, examined and accepted by both
parties, which acceptance may be either express or implied. Leinbach V. Wolle, 61 A. 248
(1905); See also Robbins v. Weinstein, 17 A.2d 629 (Pa. Super. 1941 } "Tlte idea behind
an action upon account stated is that a preceding contract has been discharged and
merged into a stated account which is based upon the earlier contract" Rush's Service
Center Inc, v Genareo, 10 Pa. D. & C. 4'a 445 (Pa, Com. Pl. 1991) (citations omitted};
See alsd 16 Swum. Pa. Jur. 2d Commercial Law §8:10.'
To aver a cause of action based on an account stated, the Coatplaint must set forth
...that there had been a running account, that a balancx remains due upon that account,
that the account has been rendered unto the dcfendarn, that the defendant has assented to
the account and a copy of said account is attached to the complaint Rush's Service
Center Inc. v. Gcnareo, 10 Pa. D. & C. 4t° 445 (Pa. Cam. P1.1991) (citations omitted).
The most essential element of this cause of action is "the parties' agreement to the
accuracy and correctness of the account." Citibank (South Dakota) N.A. v. King: 2 Pa A,
& C. 5 60 (Pa. Corn. PI. 2007) (citations otnitted).1 Acceptance of the stated sum may
The Cotta takes note that it references decisions from Common Pkas cases and that the court is not
bound by these cases, The Court gives deference in this case to the cited Common Pleas cases based on
their discussions and holdings as to accotmts stated and limited cases setting forth precedent as to accounts
stared
' This case is factually and procedurally similar to the infest cm. Plaintjfl in Citibank v. King brought
forth an account stated cause of action on a consumer credit account Plaintiff's Complaint averred that
rnomttly detailed statements were mailed to Defendant, that a copy of the current statement was attached to
the Complaiw showing the balance due, and averred that the "defendant had for many months made
payments on accotmt of the billing st tement or mttined the statement without paynunt~" Ci &nk (,5ouih
Dakota) N.A. Y. 1Ci e 2 Pa. D. & C. S 60 (Pa. Com. Pl. 2007). The Court of Car MOD Pleas of Centre
County overruled the preliminaryobjections of Defeadattt, findin; that "[b]ased on Cho forgoing and
accepting all of the maretial averments made in plaindfrs eompia; as trite, this court finds that the
04/08/2008 14:13 PAZ 8143171622
Q004
i _.
be manifested expressly or may be implied from the circumstances. Donahue V. City of
Philadelphia, 41 A.2d 879 (Pa. Super 1945). Pennsylvania courts have found that an
implied agreement nmy be found "... when the retention without objection by one party
for an unreasonably long time of a statement of account rendered by the other is a
rnauifestation of assent to the amount shown as an accurate computation of the amount
due." Id; See also Citibank (South Dakota) AU v. King, 2 Pa. D. & C. 5"' 60 (Pa. Cam.
Pl. 2007); See also C-E Glass Y. Ryan, 70 Pa. D. & C. 2d 251 (Pa. Cote. Pl. 1975).
'The Defendant's 6M prelirnirlsry objections are that the Complaint does not
itemize the amount owed nor show portions of amounts claimed. Prefi ninary Objections,
11. "The party relying upon the account stated need not individually set for the items of
which the account consist ... That is to say that plaintiff is not required to itemize the
account." Rush's Service Center Irc. v. Genareo, 10 Pa. D. & C. 4 445 (Pa. Cmn. PI.
1991) (citations omitted). This Court agrees with Plaintiff that that an itemization of
charges of the account is not necessary, as the requited account stated would merge the
original contract into the account stated, and is attached and averred to set forth in Exhibit
A of the Complaint, said account stated including the balance.
Defendant's second preliminary objections are that nothing in the Complaint
sugg"- when payment is due or the teams of the payments. Defendant's P li
Objections, I;. As previously. stated,^an account stated cause of action re
rel
there had been a•mm?ing account, 't}tat a balace n remains due upon that accoy t, that the
account has been rendered unto the defendant, that the defendant has assented to the
account and a copy of said account is attached to the complaint," Bush's Service Center
Inc, v. Geirareo, 10 Pa. D. & C. 4d' 445 (pa, Cam. Pl. 1991). This Court agrees with
Plaintiff that the claim is based on an account stated, and accepting plaintiffs material
averments as ttvo, that parties agreed to account stated as attached
account stated setting forth the amount due and terms of to the Complaint, mid
stated payment as shown by account
Defendant's third prelirninary objections are that the written
aim ant is not
attached to the Complaint nor is there an indication as to how PlaintiffT clagreem
was agreed to by parties.." Defendant's Prelim' agreement
?y Objections, 12; Brief in Support of
Preliminary Objections. As stated previously, an account stated discharges the earlier
contract and merges it into an accoturt stated. Rash s Service Center 1,,, v Gemreo, 10
Pa D. & C. 4s`445 (Pa. Com- Pl. 1991) (citations omitted). The Plaintiff does attach a
copy of the account stated, which this Court believes meets the requirements stated in
averting a cause of action for an account stated and conforms to the Pennsylvania Rules
of Civil Procedure 1019(i).3
plaintiff has provided facts within the coiapiaint suffivierr to sustain a cause of xtion based on an account
stated claim." " Citibank (South Dakma) N?( Y. Kind 2 Pa. D. to fl Sa' 60
S As Seen in Rush Y. Uemreo, ft Common Pleas Court of (pa. Goal. w pl.
2 o no
Lawmace
ofth Counfyheld that "we do nit find it
tteClS?' for Plaintlfl't complaint to specif the time and plea of the 0risirtal oonttwo (which is the astute
of the original obligations) or specify (i.e. iteyni=) tilt materials or utpplks sold thereundm-
4
04/o8/2008 11:15 FAX 8145171622
IZ005i_
We disagree with Defendant that Plaintiff failed to set forth enough information to
allow Defendant to in good faith admit or deny the pleadings. Plaintiff has averred that
an account existed between the parties and that Plaintiff kept a n.mning account of these
debits and credit.5. Complaint, 14,5, Plaintiff further averred that it nailed monthly,
accurate statements to Defendant, and that Defendant for many months made payments
on the account or retained the statement without payment, Complaint, 16,7. Plaintiff
averred that the actions set forth in the Complaint, constituted an account stated for the
sum of 38,246.45, and attached a copy of the account stated. Complaint. 18. Based on
the foregoing, and accepting all the material averments made in Plaintiff's complaint as
true, this Court finds Plaintiff provided sufficient facts to state a cause of action an
for
account stated and to provide Defendant with sufficient information s file a responsive
pleading.
In entering this Dom, however, we are not precluding the Defendant from
Pursuing through discovery the underlying contractual agreement, Nor are We lTecluding
the Defendant from challenging wbether the Plaint ff' is entitled to scclc recovery for the
damage amount it is seeking,
In light of the foregoing, we now, enter the following:
0
R
D
E
R
04/08/2008 14:14 FAX 8145171622
I
IN THE COURT OF COMMON PLEAS OF BLAIR COU TY, PENNSYLVANU
CH IBANK (SOUTH DAKOTA), NA,
PLAINTIFF 2007 ON 6062
VS. _
NICOOLA A LAMONT AKA
NICOLA A. KALI-ENBRUNNER,
DEFENDANT
HON. TIMOTHY M. SULLIVAN
NEIL SARKER, EQUIRE
SHAWN B. COF EN, ESQUIRE
PRESIDING JUDGE
COUNSEL FOR PLAINTIFF
COUNSEL FOR DEFENDANT
OR DE
AND NOW, this F-44t, day of April, 2008, consistent with the foregoing
Opinion. it is hereby ORDERED, D)<RECTEi) and DECREED that;
L The Defendant's Preliminary Objcctiolu are hereby overruled.
2. The Defendant shall have twenty (20) days from the date of this Order to file
an Answer to Plaintiffs Complaint.
[a 006
BY THE COURT:
J
i
f111, tt? I
LEBANON COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
-lug+
PO
0
o
Zq -n
Z? ? r
?T N a
n
.r^
CITIBANK
(SOUTH DAKOTA), N.A. .
Plaintiff
vs. NO. 2008-01614
ELVIN L. WEAVER .
Defendant
ORDER OF COURT
AND NOW, this 51" day of December, 2008, in accordance with
the foregoing Opinion,..the Defendant's Preliminary Objections, are
respectfully overruled:
BY THE COURT:
/6 ?4 ' - - - J.
BRADFORD H: CHARLES
BHC/slh
PURSUANT M RULE 230
You are hereby no0fied
that this order has been
entered in this case.
IN THE* COURT OF COMMON PLEAS OF
LEBANON COUNTY, PENNSYLVANIA
CIVIL ACT10N -- LAW
CITIBANK
(SOUTH DAKOTA), N.A.
Plaintiff
VS. NO. 2008-01614
ELVIN L. WEAVER
Defendant .
APPEARANCES:
Edward J. O'Brien, Esq. For Plaintiff
BURTON NEIL & ASSOCIATES
Matthew L. Kurzweg, Esq. For Defendant
OPINION BY CHARLES. J., December 5, 2008
Before us is the question of whether Plaintiff Citibank (South
Dakota), N.A. (hereinafter "CITIBANK') is owed a balance of
$26,352.36 by Defendant Elvin L. Weaver (hereinafter "WEAVER").
WEAVER responds with Preliminary Objections to the form of
CITIBANK's Complaint, specifically referencing CITIBANK's failure
to attach the original credit card agreement. Because the Complaint
was filed under an account stated theory, the Complaint may rest on
the current account stated and does not have to provide proof of the
original contract. Had CITIBANK filed its Complaint under a breach
2
of contract theory, we would have granted the Preliminary
Objections. Upon review of the Complaint submitted by CITIBANK
and the briefs submitted by CITIBANK and WEAVER, WEAVER's
Preliminary Objections are denied in accordance with the attached
opinion.
1. FACTS
On July 30, 2008, Plaintiff CITIBANK filed a Complaint against
Defendant WEAVER, alleging that WEAVER failed to pay his credit
card debt. In the Complaint, CITIBANK alleges that it "furnished
consumer credit to the defendant by means of a credit card...`
(Complaint at ¶ 4). CITIBANK further alleges that it mailed WEAVER
monthly statements for his account, including a billing statement.
(Complaint at 1 6). The Complaint alleges that WEAVER made
"many months- of payments for the account including the billing
statement...,' (Complaint at ¶ 7), and now owes a balance of
$26,352.36, (Complaint at 118).
On August 25, 2008. WEAVER filed Preliminary Objections.
The Preliminary Objections are in the nature of a demurrer or
alternatively of a motion to strike for failure to conform to the
following rules of civil procedure: Pa.R.C.P. § 1019(a) for failing to
plead with specificity and Pa.R.C.P. § 1019(i) for failing to attach a
copy of the contract to the Complaint. Both parties have filed briefs
3
in support of their respective positions. In its brief, CITIBANK
argued that it sued WEAVER under an account stated cause of
action and, thus, is not required to attach a copy of its credit card
I -
agreement with WEAVER.
II. APPLICABLE LAW
A. Motion -to Strike
The Defendant has filed Preliminary Objections in the nature
of a Motion to Strike for Lack of Conformity to Law under Pa.R.C.P.
1028(a)(2). Generally speaking, this is an objection "to formal
errors in the pleading.' Commonwealth ex rel. Sheppard v. Cent.
Penn Nat'l Bank, 375 A.2d 874, 877 (Pa.Commw. 1977); see also
Standard Pennsylvania Practice, Section 80:55. Thus, a preliminary
objection in the nature of a lack of conformity to the law or rule of
law focuses on a lack of formality in a pleading and not its factual
averments. See Id.
B. Demurrer
The standard for ruling upon a demurer is well established. We
must accept as true all well-pleaded facts and reasonable
inferences which may be deduced from those facts. Insurance
Adjustment Bureau v. Insurance Commissioner, 485 A.2d 858
(Pa.Cmwlth. 1984). However, we need not accept as true
conclusions of law, unwarranted inferences from facts,
4
argumentative allegations or expressions of opinion. Giordano v.
Ridge, 737 A.2d 350 (Pa.Cmwlth. 1999). A demurer can be
sustained only where the complaint is "clearly insufficient" to
establish a pleader's right of relief. Lumax Industries', Inc. Y.
Aultman, 669 A.2d 893 (Pa. 1995). Stated differently, a demurer
should be sustained only in cases where the Plaintiff has clearly
failed to state a claim on which relief can be granted. Pittsburgh
National Bank v.-Perr, 637 A.2d 334 (Pa. Super. 1994). Any doubt
that exists should be resolved in favor of overruling the demurrer.
Hunter v. Port Authorlty of Allegheny County, 419 A.2d 631, 637
(Pa. Super. 1980).
M. DISCUSSION
A. Sufficiency of Pleading - Attachment of Written
Aareement
The Defendant has filed Preliminary Objections in part to
complain about the Plaintiff's failure to attach a written agreement to
its Complaint. Under Pa.R.C.P. 1019(h), when a claim or defense is
based upon an agreement, the pleader must state whether the
agreement was oral or written. Under Pa.R.C.P. 1019(1) when a
claim or defense is based on a writing, the pleader shall attach a
copy of the writing. Thus, any writing relied upon by the Plaintiff in
the pleadings should have been attached to the Complaint for
review. Triage, Inc. v. Dept of Transp., 537 A.2d 903, 906
5
(Pa.Cmwith. 1988). Our Commonwealth Court has refused to
' consider a written agreement when the writing was neither attached
to the Complaint, nor stated the reason for the absence of the
writing, nor explained the substance of the complaint. Judges of
the Court of Common Pleas of the Twenty-Seventh Judicial Dist,
v. County of Washington, 548 A.2d 1306, 1309 (Pa.Cmwlth. 1988)
(citing Triage, Inc. v. Dep't of Transp., 537 A.2d 903 (Pa.Cmwith.
1988)).
CITIBANK neither attached a copy of the credit card
agreement to the pleadings nor provided a reason for its absence.
Further, CITIBANK failed to specifically plead that the agreement
was oral or written. This deficiency is not fatal to CITIBANK's
Complaint because CITIBANK's Complaint is grounded upon an
account stated theory. If CITIBANK's Complaint were based upon
breach of contract, we would sustain the Preliminary Objection of
WEAVER based upon its failure to attach the credit card agreement.
However, CITIBANK's Complaint is based upon an account stated
theory, not breach of contract. Therefore, the credit card agreement
does not form the basis for its Complaint and need not be attached.
The rationale of an account stated is that the 'preceding
contract has been discharged and merged into a stated account
which is based upon the earlier contract." Rush's Service Center,
Inc. v. Genareo, 10 Pa. D. & C. 4th 445, 447 (Pa.Com.Pl.
6
1991)(citing McKinney v. Earl L. Cump Inc., 2 Adams Leg. J. 132
(1961)). In other words, an account stated cause of action is based
upon the stated account, not the original contract. Under Pa.R.C.P.
§ 1019(1) "When a claim or defense is based upon a'writing, the
pleader shall attach a copy of the writing..." (emphasis added).
Thus, the original contract is not necessary to the Complaint and all
that must be attached is a copy of the account. Id. (citations
omitted); see also Citibank (South Dakota) N.A. Y. King, 2 Pa. D.
8 C. 5th 60, 62 (Pa.Com.Pl. 2007)(hoiding as a necessary element
that `...a copy of the current statement was attached to the
complaint showing a balance remains due.").
In this case, CITIBANK plead its Complaint under an account
stated theory. Thus, Its Complaint is not based upon the original
credit card agreement and all that must be attached is a copy of the
account. A copy of the current statement showing the statement
balance is attached to the Plaintiffs Complaint under Exhibit A.
(Complaint at q 8 and Exh. A). Accordingly, we overrule the
Defendant's preliminary objection under Pa.R.C.P. § 1019(i).
S. Demurrer
Pennsylvania is a fact-pleading state. As such, a Plaintiff must
plead "material facts on which a cause of action...is based".
Pa.R.C.P. 1019(A). Fact-pleading requires that a Plaintiff set forth
.sufficient factual -allegations to support the cause of action set forth
7
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in the Complaint. See, e.g. Miketic Y. Baron. 675 A.2d 324 (Pa.
Super. 1996).
Fair notice is the key to determining the sufficiency of a
complaint. A plaintiff must allege all facts necessary for the
defending party to perceive and defend against a claim.
Commonwealth, ex rel. Pappert v. Tap Pharmaceutical Products,
inc., 868 A.2d 624 (Pa.Cinwlth. 2005) (citations omitted). If
sufficient evidence is not established, the Trial Court should grant a
Motion for More Specific Complaint. Id.
The necessary allegations to form a cause of action for an
account stated Include (1) the existence of a running account on
which a balance remains due; (2) the account has been made
available to the defendant; and (3) the Defendant has agreed to the
account. Rush Service Center Inc., 10 Pa. D. & C_4th at 447. The
Defendant's assent to the accuracy of an account statement may be
implied when he retains the account statement for an unreasonably
long time without objection. Citibank (South Dakota) N.A., 2 Pa. D.
& C. 5th at 63 (citing Donahue v. City of Philadelphia, 41 A.2d
879, 881 (Pa.Super. 1945)).
CITIBANK pled that It "furnished consumer credit to the
defendant." (Complaint at 1 4). Further, the Complaint alleged that
"Plaintiff mailed to defendant monthly statements for the
account-The monthly statements accurately stated the previous
8
balance, the debits, and credits to the account for the prior billing
period.` (Complaint at 16). The Plaintiff attached to its Complaint a
copy of the current statement detailing the remaining balance due.
(Exh. A to Complaint). Finally, it is alleged that "defendant had for
many months made payments on account of the billing statement or
retained the statement without payment.' (Complaint at ¶ 7). As
such, we hold that the Plaintiff has- alleged all of the material
elements-of its cause of action with sufficient specificity to sustain a
cause of action based upon an account stated. See Citibank (South
Dakota) N.A., 2 Pa. D. & C. 5th at 63 (holding that 'it is clear that
the defendant has assented to the account based on paragraph 7 of
the plaintiff's complaint where it stated that the 'defendant had for
many months made payments on account of the billing statement or
retained the statement without payment'.') Thus, we overrule the
Defendant's Preliminary Objections on the grounds of a demurrer
and failure to plead with sufficient specificity-
9
-Tari.13.2.610-11:29AM"PWTHavor ?a9---p ?--
COMMONWEALTH FINANACIAL
SYSTEMS. INC. sssipm of UNTUND
PORTFOLIO A. LLC, assignee of CHASE
BANK USA, N.A: .
. p'laintif,
,
v.
1B414IFU L- REEPIIATG,
Dd=dent
IN TKE COURT OF COMMON
PLEAS OF SOMERSET COUNTY.
PENNSYLVANLA
N0.288 CIVIL 2009 '
.s
?c : -?
'^ . , t
Fo• Plaittde. Anthony R Burgess, Esq.
For Ddf ndmm- Gregory T. Anim, Esq.
Argtm=t December 15, 2009
MEMORANDUM
The MKU:r rhos is currently before the Court is Defendant Jennifer L Reeping's
("Defendant's preliminary objections to PWntiffCommortwealth Financial Systems, Inc.,
assipn of Unifund Portfolio A. I.I.C. mmip m of Chase Bank USA, NA .'a ("Plaintiff) First
Ame vleQ Complaint In aceordam= with the following, Defendant's preHrrdnary objections
are overruled.
Foos
Ik endaot applied fora First USA Bank.("Fitsn credit card. (Amended Comps.
ram=mft Fast granted her application and opcaed a "revolving open-cud
credit eard.aocaurX in her a== (1d) Subsequ=dy, "Defendant accepted the taus and
conditions of the revolving opeo-end credo account contained in (al written agmerntent by using
the credit card to crake purchases 20&F to obub cash advancers as indicated by the Account
. .. ?Xr?IB1Y
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Statements provided by PlaintifL" (Id 16.) "On August 18, 2005 and thereafter, in breach of
obligations under the [a]greement, Q Deferxiant failed to make payments as they became due as
indicsted.by the Mched.staaemerts ... ," {Id 7.)
The amt provides "for acceleration of the entire balance due and owing upon
Defendant's breach of [it] under the section referred to as `Default/ColIsetion Costa.'" (Id Q
8.) Speeeif ally,. Plaintiff alleges that the "emire balance duc" u a principle amount of
59,653.92 plus "tht intnvst (that) had accrued at the rate of 6.00% per annum on [it) ..[since]
March 21, 2006." (Id " 8-10.)
'On March 15, 2006, Chase Bank USA, N.A. ("Chasc' }, which had merged with First,
assigned "aIl [of -its] rights, title and interests.. , in and to those certain receivables. judgments
or evideacts.of debt described in Exhibit 1" to Uaifuad Portfolio A. UC ("Unifiuid'). (Id 9
2; Compl ,4 A). Howwvcr, "Exhibit 1" was not attached to the Amended Complaint or its
B thit A: lb" .is some.dsscrepattcy in regards to the subsequent assignmeaL The Amended
Complaint alleges that Ur:ifuad "assigned an acoaunt portfolio that, inter alia, included the
account of site abovo.eaptionu d defiatdant to (Plain].'.' (Id 12.) The exhibit to which the
avamant refeream-however, provides that an January 2, 2008, "ihJW COZ Partners
[sold]. assigajed],iand ?acsfer(red] tq Eftg The Belt, Lic] all of its good and marketable title,
free and clear of_all.Iion. claims and eacumbram= in and to the Accounts listed in the
Account Schedule attached as Appendix A(.]" (Compl- Ex. B (emphasis added).) Again,
however, the documcut was not auAchgd
On .Mar& 10, 2009, Plaintiff filed a Complaint to which Defendant filed pmliminary
obiwdo,r ore March 27, 2009. DrOune. 1, 2009, the Court struck the Complaint with leave to
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amend upon-consent of the parties,. On Augnst 31, 2009, Plaintiff timely filed the Amended
Complaint. On September 4, 2009, Defendant filed the preliminary objections to the Amended
Complaint. Specifically, Defendant objects under the grounds set forth in subdivisions
1028(4)(3) and 1028(a)(4) of Pcmisylvania's Rues of Civil Prooodum
Diwusafan
I. lMgfa)01- Insufficient Aeocificity in a Pleading I
In Pennsylvania, apreliminary objection may be filed on the ground of insufficient
specificiry. fm a Pleading. 1?a.RCiv.P.1028{4)(3) -7-he Partineat question under Rule
1028(x)(3) is 'whether the complaint is saf$cianiy, clear to enable the defendant to prepare his
defense,' or'whetber the plaintiff's corttplaim infamns the defendant wi?h acc:uacy and
c:o=picteness ofthc specific basis on which recovery is soughs so chat he may know wWtout
question ppon w* grounds to make his defense.'" Rambo v_ Gree?u, 906 A.2d 123 Z 1235
{Pa,Super 200ti} fisseetially, the objection requites a court to consider wbcther the plaintiff
has complied with-R*e..10I9, " Cat MIS of PIeadings, Geocral and Specific Averments."
In this case, Defcndaata;liegcs that PlaintU s Amended Complakt {"Complaint"} is
iasn$cietu ".it failed to•altac$ the "entire credit card [c]ontract or (a]greemeat" and the
°eompkte."Ite s.assignments hem First 0. Chase and Unihmd indicating that Defendant's
account:Was included in.* lot sale(sj," which the Court addresses is Part I(A). (Def.'s Hr.
Prelim gb?'ru,7; Pselint.-Obj'ns. Q 5.) Additionally, Defendant objects because Plaintiff did
tat `'state the dale of the camtaaicemeat of the alleged agrectne a or "specifically account for
the purported sums owing and for die amounts in dispute,- which ttte Court addresses in
Part (hvl=. Obj'tm .¶¶ 9, 10.)
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?. ?i,e Requirestanu of Rule 1419 SUh9&bions (4}, N, and M
Rule 1019(x) prescribes that "[t]be material facts on which a cause of action or defense
is based shall be•stated in a concise, and summary foam:' Paxav.P. 101 9(a? Recently, our
Suprem!p Cotut smed, "We have construed ibis rule to mean that the complaint trust not only
apprise the defendant of the claim being asserted, but it must also summarize the essential facts
to support the claim" ,Steiner v. Markel, 968 A-2d 1253, 1260 0a2009) (citing Landau v. W.
Pa Nat?Bonk, 282 A 2d335 (Pa.1971))_ Spetiftcally, the Lm dvu Comm stated that "(I)be
purpose of the rule is to require the pleader to disclose the 'material facts' sufficient to enable
the advirrse party to prepare his case." 282 A.2d at 339 (citing Sirtith v. Allegheny County, 155
A.2d 615 (Pa 1959) At least since 1959, "[Ili [hat] not jbeenj necessary nor dmirab a that
particularities of evidwtial £aaz be pleaded, so long as the essential facts to suppori a claim
are.". 155.A2d 616: Accotcii*y;. Permsylvania iaw.elearly establishes tat there is a
difference betweea."mperls] of evidence" and "essential facts to be pleaded in the complaint"
Id at 617:
Iot>aha?ess, shortly after Smith was decided, our Supr=e Court admitted that "the line
betweea:pleading facts. and cvidenoc is mat always bdghit.]" Bata Y. Crnrral Penn N40 Bank
of Philrx, :724 A2d 174,179 (Pa.1966). 'Ibis is-especially true in cases of credit card collection
like the one that is wrrently before the Corot. Compare Atlantic Credit and Fbmnce, Inc, v
Ghtl",429;A2d 340 (Pa.Super.2003), with Capital One Bank v. Cleverwine, 7 Pa. D. dt
CSth 153.(C.P. Centre 2009) a?td WorJdwtdeAsset Purchasing LLC v. Stern. 153 P.1.2. 111
(C.P..A.llegbenY 2004
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tn.C,hdkMa, be Superior Court considered a 1028(a)(3) preliminary objection in a
credit card collection case. 829 A.2d at 344. Specifically, the Criuliana Court considered
whether the ddendant's argument. which was set forth in the form of a preliminary objection
filed after a dafault judgment was entered. establisbed a "meritorious defense."' Id.
The plabif ffhad "alleged that it was 'the pusrbasa of the atxouat from [the assignor)',
but failed w 22ac.31 eitha.any contact or agreement between [atsipnorl and I the plaintiff], or
any contract or agreement between (assignor) aad itself; other than a single sheet which appears
to be a monthly statement from [assignor] addressed too [the plaintiM ...." Id at 341. The
defendant alleged that she had a meritorious defense for two reasons. Id. at 343. "The first
objection [was) that the complaint, which contahwd numerous factual averments, had not been
verified as required by PaR C.P. No.1024, but rather had been verified by an urmamtd
individual identified as "paralegal- for (the plaintiff] who had no personal knowledge of the
facts and.was not an offiioer of the corporate plaicliff.- Id. "The second preliminary objection _
was that . [the plaintiff) had failed to adach to the complaint any writing evidencing any
contraet.betweea_[the.assignor] and [the defendant] as required by Pa.RC.P. 1019, despite the
ava a rmrq [of! e.plaintiffj that it had purchased the contractual rights of (the assignor)... " Id
at-344.0,4i co nsideraaon of these of jcctioas, the. Giulfarra Court held that the defendant had
estsbl'usbed a metiterious def=w,ared.rananded for the trial courtto open the defauh judgraeM
auydsuatam the prelirnirunry objectinas Id at 345.
r Onto flr. do"judgment may 6 opened when thrt a elemeaus me esublidW: the moving patty mast (1)
promptly Site a petition to open sbe defsalt)udgment. (2) show a meritorious defense, and (3) provide a m oonable
axam or ampltoatiou for its faZue to file a tesponsive pkading." Id at 342 (citation omitted).
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ft sister court in Allegbeny County decided the 2004 case of Waridwide Asset
p: rr?.LLC v Srem. It considered GiuUa na in determining Aetber to sustain a
preliminary objection alleging that the plaintiffs, complaint, which was filed in a credit card
collection case, fWed to comply with the pleading requirements of Rule 1019. 173 P,LI. 111.
Specifically, the court in Stern sct out the following language from Giul inure verbatim:
[T)he plaintiff s="fo re to attach the writings which assertedly establish [the
plaintiffs] right-to a judgment ... based on an aneged debt it allegedly purchased .
. is fSW to the claims set forth in the [plaintiff sj complaint. Thus, the preliminary
objections of [the-defatdant] based on Mure to produce a cardholder agreement
andstaterrm account, as well as evidence of the assignment, establishes a
ausiaorious-defense."
Id at I 1 I .(quoting Milano, 929 A2d at 345). Ultimately, the Stern court held that an
assignee-creditot-plaintiff must attach the doc=ents establishing a chain of title to the
complaint because "[R]ue 101 9(i) requires a party to attach all documents which forest the
foundation of the plaintiffs cause of action" Id at 113. The Stern court stated that the
pIIIII i!. [was] not a party to [the 'alleged credit card relationship between [thcJ defendant and
[the credit card its w]'] unless [the] plaiali$ [could] establish drat [it) ... acquired [the) right,
title, tad" interest in and to the alleged accvtrat[ J" M
,.The ('.Dort will not extend'to Somerset County the Stern rule of law for two reasons.
First. Glii km does not require it Second. Rule 2002,'Trosaartions of Actions by Real
Patties its 1a crest," is the rule that controls whether the assipment contracts need to be
attache"
d to the cor?tplaint, not Rule 1019.
Rule 2002 provides, in pertinetzt part, dhat "all actions shag be prosecuted by and in the
-me pftbe.reai.party ia.intezest° Pa..R.Civ.P. 2002_ The Superior Conn considered Rule
2002's application in Brown v_ Esposito, 42 A2d 93 (Pa.Super.1945).
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In Brown, the Superior Cowt.aoted that the rule "permsf(s] ao assignee to sue in his
own name withotu joining the assignor as a nominal parry" if and only if it''rraee[s] in [the]
pleading the derivation of [the] cause of action from [its] asm gnor," 42 A..2d at 93.
SpCr-toady; the Arown Court stated, `The derivation of the tick to the cause of action must be
alleged aT=natively as a fact,.so that the defrnd@at may require proof of the assignment if he
so desires" Id at 94. "This protection mist be afforded the defendantj,j" the Brown Court
held; " (o]therwise, the.defendant tnighi find hitztseif subj ected to the same liability to the
originsl owner of the cause of action, in the event that there was no actual assignment" Id
In Brown, the plaintiff had aveazd that it was the real party in interest because the
contract«hajd]. beta lawfully and duly assigned to the plaintiff." Id at 93.94. However, it had
not done so.in a pleading. Id The Court noted that the plaintiff was "hot required to set out
th(e] assignment :verbatim or attach a,copy of t e assigwwnr ar an exhibit to the(J plead ngr.°
lid (emphaw-added. However, it-did need to make "an affirmative alledon of fact'tn a
pleading;; stiscepYe of proof[, erg.,] state(] the fact and date of the assignment and the patties
thereto.." Id at 94. Accordingly, the court held that the avetmew "[was] inmf'Ficietrt upon
which. to base:the piaintif!'s ciaim against defendant" because it bad "failed to allegs the
assignment i.n any-pleading.". Id at 94.
T be. Superior Court ease of Gu "rang compor with the Supmne Court can of Brown.
As tbe,Alleghe>zy Cotmty court ip Stern noted, the Gialiana Coup stated that "t}te prel
iminary
objections of (tie plate fi] based on AWme to produce a colder ageernent and su uumot
account, os well as evidence ofihe aralg new, establishes a maitorious defense. " Stern, 153
P-Lj-.at j I I (quotmg 829 A2d at 345 (emphasis added)). Coacerning the real party in irdert st,
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te Ghdimta Court did not hold that the compUitrt was hwfficient solely because the
essig=cgc conttacts had not been attached. The plaintiffs failure to provide any "evidence of
the asdpr=fl also considered the fact than the complaint had not bm properly verified. Id.
at 344-45:. The Giultana Court stated, "(I've requirement of a veri icadon is not waivable
because wthout It a pleading is mere narrador; and a+a unrs to nothing." 829 A.2d at 344
(emphasis. added Accordiney, the Gfidiana plaintiff's complaint was insufficient in regards
to due real party is interest because: (1) its averment effectively "atnount(ed] to nothing" as did
the Brown plausdWs; and (2) it did not attach a document that would compensate for said
failure.fo plead. Id. Ibsdeed,-Ruk 1024, "Verification," provides, in pertinent part that "[e]very
pleading containing an averment of fact not appearing of record in the action .. , shall be
verified." PaRRCiv.P. 1024 (emphasis added).
.:i Further, even ifRule 2002 were not controlting, Rik 1019 does not require the
aBeeroaats !d2ksbing that.sbe plaintiff is the real party in interest to be attached to the
cornplaitn Rule1019 Subdivision X its note, and subdivision (i) provide:
(h) When any claim or defense is based upon an agreement, the pleading
shall state specifically if the agent is oral or written.
1lfate_ if the agreement is in writing, it must be attached to the pleading. See
-subd} hsk9n r z) of this rule.
Q) When any claim or. defense is based upon a writing, the pleader shall
attach a copy of the wridn& or the material part thereat but if the writing or
copy-is not accessible to the pleader; it is sufficient to state, together with the
reason, and to set forth the substance in writing.
Pa R.Civ.P.1019(h)-(i). Accordingly, Rule 1019 requires the teal parry in irRtrest (whether it
be the iz iW credit card issuer or a subsequent assignee) to state specifically whether the
agreement "m which flee claim is based is oral or written. The tale is not coacerned with the
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agreeretrt(i) 49which the "rlrt dertvatiotr of the title to the jclaimJ" is based. Brown, 42 l
A.2d at 94; see also. Foster V. Ptaa Marwick Main dr Co., 587 A2d 382.387 (P&Crnwlth, i 99 t )
(noting tbe.distindion between "documents [that] may constitute important evidence in the
litigation"-'and ".documents which created the legal obligations [that the defendant] is said is
the complaint to. have btewhed" (emphasis in original)). To the emat that the agr=n=t that
subdivision (h) considers is written, it must be ansched to the pleading, pursuant to subdivision
(7. Pa4LCiv.P.1019(h) (note). Subdivision (i) simply provides that the real parry in intcrsst
is to attach a copy oftbe agreement ifit is accessible to it. Ghdiana comports with this point:
the Superior Court remanded for the trial court tD sustain "the second preliminary objection" 1
regattfing-tbe pW Idfrs "fail[ure] to attach to the complaint any writing evidencing any
contract between tike assignor] and [the defenda w] as required by P&A.C.P. 1019[.]" 829
A.2d at 343.
Irr.Bogga v Levrn,-146 A. 533 (Pa.1929? t1& Supreme Court stated, "Judgment cannot
be entered is favor of a stramm to the-contrac; and, before jQJ plairrtig'is endded to recover.
.
. the.brmden Ir orr.him to Chow he has an interest therein." Id. at 34 (emphasis added).
CaWnlyt assigneo,crcditor-Plairrtiff has the option ofPmving that it is the real party in
interest by. attaching to the complaint the documents that establish its title to the cause of
action. However, our s tate.dow not utilize a proof=pleading scheme; it is well established that
'?arasyl utia utt?izes a fags-#eadrn9 scheme," Gates v. Gates, 9,671 A.2d 1024, 1030.31
(PaSuper.Z003) (=ppbasis added} Cases in which a plaintiff seeks to rYCOver credit card debt
are no different in >crms of pleading. If the legislature wants =M from the essigrtoacreditor
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than otbtr plaintiffs, it is free to presenbe additional rules A perusal ofthe table of
PenasAvania's Rules of Civil Procedure, however, displays that it has not yet done so.
In the irtstant eam the Court holds that "the complaint is sufficiently dear to enable []
(D)efaidattt to prepare [ber) defrnsm" Rambo, 906 A2d at 1235. Plaintiff satisfied Rule
1019(h) by pleading that its claim is based on the written credit card agreement. (See Compi.
5.) Plaintiff-satisfied Rule 1019(1) by attaching an alleged "true and correct copy- of the
agreement. (Id; See Compl. Ex C.) Under Rule 2002. Plaintiff does not need to "attach to the
Complaint [the] complete written assignments ... indicating that Defendant's account was
included-!n the lot sales)" (Prelim obj'n& 15.) All that it needs to do is'`trace() in the
pleading the derivation of (the] cause of action from [its) assigno4j' which it did 1 Brown, 42
A2d at; 93; (S,ce.Compl. 12-) Accordingly. the Court disagrees with Defendant's assertion that
the Corttpla nt is,Ws: Mc.I at in regards to the attachment of the agreement and the assignments.
A . The Requirements of Rule 1019 Subdivision (f}
:The Stem court also hold the the complaint could not simply assert that a specific
amount•of t?Rney, was: awed 153 P..L.J. et 1.12. According to the court:
• Under Rule 1019; a complaint must include the amounts of the charges that
are part' ethe claim, the dates of the charges, credits for paymattts if ter, dates
and amotmts of interest charges, and dates and arnotmts of other charges. The
complaint should contain mOScient docttmwtadon and aUcgnd=s to permit a
defendant to calculate the total amount of damages that are allegedly due by
reading the documents attached to the complaint and the allegations within the
2 'Me Cows "On that then is a dtsat pancy between the SinalpW= and the dwumeto that ptactciR' attached to
the Corr pieior' •(CMP=V C m* pL 12 with C.ampt. Fu. S.) Speciro lly. the Court notes tho most mma
wsip== is beswom "Unifund CCR Puftn' tad" Xng 7hc B4 1"e "-not Pb>:rttifi (Comp, Ek a
(emphasis added:) !lire Coon also Well that PMMJhrnWI tLetla of CivO ProoedUM do not roquim Defendant to
admit tlmt the alleged =siEoment is s face See Pa.R Ow P. 1029.
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•JAN.13.2010---1i:34RM-- fWTHDWT 0.449-0?P.11
R (citations ad fbotaote omitted}. Our sister court in Centre County nxettlly provided
guidance as to how Rule 1019 allegedly so provides in Capital One Bark V. Cleverwine. 7 Pa
D. & CSth et 155-56. Specifically, the Clevenstine court lvld that "(a) defendant is entitled to
know the dates on which individual transactions were made, the amounts therefore and Late
items puarhased to.be able to answer inWligeatly and deterraine what items be can admit and
what he must contest" under Rule 1019 subdivision (f} Id at 156 (citations omitted).
.In regar3s to the dates that most be pled. Rule 1019(1) provides, in pertinent part, that
"[a)vetYOents of time. ; . shall be specifically stated-" Pa_R.Civ.P. 1019(f). In General State
Authority Y. Lawrie and Greer, 356 A.Zd 951(Pa.Cmwlth.1974 the Commonwealth Court
considered a preliminary objection tes ft the sufficiency of a compkaittt in regards to "the
sped Ty of times averted- under Rule 1019(4 Id at 855-56. 11 set out, "In every instance
the 4egatioa_af time when the cause of action accord must be sufficiently specific to enable
the dcfcndaot to plead the atasr of-Hmitations if applicable." Id at 855 (quoting Baker v
Rangrrs, 324 A 24.498.509-10 (P.Super.1974D. In the Bolter case.
M hr Court was concerned with the pleading of the last acts taken pwsuant
is a conspiracy enabling the defendant to know if the statute of limitations
s banvd. thezadom Since the statute of limitations does not begin to run in a
conspiracy case until the Last act of conspiracy, the Court reasoned that
'l suffieiem fiats relating to.that time had been pleaded and the stricnuts of
Pa.Et.C.P. No . 10I9(f) had been tact
Id. Tht.hmrie and Green Court went on to hold that the plaintiff needed to included the dates
that `Svoitld.give [the]-[dkfeedatrts some idea of whether a lbuitafion of action defense were
indeed available." Id; accord SNIP v. Commonwealth, 910 A2d 775, 787 (Pa.Cmwlth.20D6).
The typical credit card agiremcat reguntis a debtor to make mkihnwn monthly
paymetim. Dub m the unique nam m of such agt+ecmads a debtor is typically able to remedy a
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default in_ Iam=y, fo7 exeaaple, by pay'sng the atinin= balance due for February phis the Inc
fee for January. In such c&=, January's default (along with the creditor's breach of contract
claim)..is.cffectively readcred moot when the debtor remedies it by paying the miniarum
balance.due for.Februsry. If the debtor does not remedy January's default in February, she
.usually will be able to remedy the deUWm of both in March. Accordingly, a debtor who
= consecutively fails to pay continually breaches the cmdit card agreement that requites monthly
psyments. Nonetheless, each statement provides her with a new opporttmity to , emedy her.
breaches:. That being said, the cause of action accrues when the creditor no longer provides the
debtor with-this opportunity, a g., when the creditor closes out the account and employs a Hurd
parry to.tecovcr the amount due.
be Court holds that a complaint sceeldng damages for the breach of a credit card
agreemead ss isfies Rule 1619 in regards to subdivision (f)'s requirement that time be
speciftcally.ttverted soJotig as the "[djefendaat(j [has] some idea ofwhethu a limitation of
actiQwOe, "[is) in4wd available. Id. Thu complaint must contain a specific date or dates
from v*h it is p>ade clear whether the plaintiff has complied witb the four-year statute of
limitations Pa,R.Civ-P,1019(1); 42 PLC.S.A. § 5525(a)(4 Contrary to Defendant's
objertioti, it does. not need to "state the date of the commencement of the alleged agremenr_"
(Pr* i L;Obj ns..j I .) .
Io.the instant case, Flaintiffhas satisfud this ml& Plaintiffpled that "[o]n August I s.
2005 and tluaeafErr," Wendant breached ber contractual duty to pay. (Compl.17.) Furthm,-
Plaintiffprovided evidasx that substantiates the allegation by attaching an account statemcnt
regsg dung auaur;t traction during the period of Jane 28, 2005 through July 29, 2005.
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(Compl:.Ex.-A2.) The 9atetnent displays that, during this period, Defendant's account was
debited 5124.84 forAeaus that she purchased and credited $200.00 for a payment that she made.
(Id.) it also required that she male her next minimum monthly payment in the amount of
$162.00 by August l7, 2005. (!d.)
In regards to the daatages that mast be peed, Rule 1019(0 also states that "f a]vetrnents
of , .. items of special damage shall be specsfically stated." Pa.RCiv.P. 10190. Our Supm=
Court has distinguished these so-called "special damages" fmm -general damages":
Damages we either general, those which are the usual and ordinary
coasequences of the wrong done, or specK those which are not the usual and
ordinary consequences of the wrong done, but which depend upon special
circ urnstaaces. General damages may be proved without being specially
pleaded, the averment of the farts showing the among done being suff deal to
;e ide plaintiff-to establish them, Special changes, on the other hand, may not
be ptavcd unless the specisl.facts giving rise to them are averted.
Persorg Tfadurg Cv y. Dohm 167 A: 310.312 (Po.1933) (citations omitted). Arguably, a
creditorxbat,stte$.forbreach of a edit card agmm=t socks to recover general and special
damages.. SpeciWY, the argument would be that "the usual and ordinary consequence" of a
debtoes iaihrre to npay.ths money that he or sbc had been lent puts the creditor out that
money; whicb,.if-invastad in a savings account, for example, would accrue interest.
Accordingly,-a rsediLor ca[r]d recaver that aasoumt in general damages. However, in credit card
collectiow cases,-ttte creditor seeks to recover ttrw it seeks to recover the principle amount
plus thc:iateiost *K has accrued pursuant to.the, in most-if not all-,cases, exorbitant tams of
the credit card sgrecmeat. Accordingly, Rule 1019(f) requires the creditor to plead the "special
facts," ie., tbc• teams of the agreement regarding the interest tares, if it seeks to recover this
a?dditiortat renitent
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Nonetheless, Pertnsylranies.standard that "[a] complaint ris] sufficiently specific if it
[simply}.pr ovides the adverse party with enough facts to enable him to liamc a proper answer
and prepare a.defense" applies when pleading damages, as well. Commonwealth ex reL M Ik
M.?Ig. Bd v Smrnrybrook Dairies Inc-, 370 A-2065,768 (Pa.Ctnwlth-197?). Accordingly, a
1028(&}(3} objectiou "is not avml-Jule as a tool to compel an opposing parry to plead evidence,
and wili be (ovcrrWtd) where the details of imams of special damages, pleaded generally, are
readity obtainable by discovery."' Id (citations omitted).
In cases involving credit card collection, the debtor bas "enough facts to curable him to
frame.a proper answer and prepare a debmse" even if subsequent changes to the initial
amt are not pleaded in or attached to the complaint. Id. Indeed, Rule 1029, "Denials-
Effect of Failure to Dewy," permits a defendant to admit, deny, or state "that after townable
investigation [be;or *].is without i=wledge or information sufficient to form a belief as to
the truth ofan arretanent Pa.R.C iv-P.11129(a)-(c). Accordingly, under Rule 1019, a
complaint does not reed to 'include the amounts of the charges that are part of the claim, the
dates of the charges, croft for payments if nay, dates and amounts of interest charges, and
dates and.amwnb of other-charge" because the alleged debtor can "answer intelligently and
determine what items he can admit and what be must earnest" regardless. Stem 153 P LJ. at
112 (Tpbas s added); ClevensAw, 7 Pa. D. dl; C.5th at 156.
Ia the.iasrant case. Plaintiff alleges that the "entim belanx due" is a principle amount of
s9,6539l.pius "tlie interest [that] has eocruodatthe tart of 6.009/e per annum on [it) ... (since)
March,21, 2006." (Id ff g-10.) Wbaras this alleged "principle amount" is actually the
"Previous- balance" of the. most re= accotutt =w=ent that Plaintiff has attached, it appears
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that "the: details of items of special damages[] [are] pleaded generally " Sunnybrook Dairies,
370 A.2d at 768. Clearly, the previous balance consists of the amount test tfie creditor
advanced_on.behalf of Defendant, as well as ft intrarest and other fees that had accrued
pursuant to the credit card agreement. Nonetheless. these amounts very well may be "readily
obtainable by discovery," and the Court does not sustain Defendant's objection bwa= she
certainly bas'"enough facts-to answer the Complaint- Id
To be clesr,-tire Comt is not holding that a creditor can recover damages (general or
special) without proving them. This Court certainly would not enter an order granting a motion
for judgment on.the pleadmga or summary judgtrtent in favor of one without proof. However.
proof is not required to overrule Defendant's preliminary objection asserting that Plaintiff must
now "speeifiraily.accouat for the purported sums outstanding and for the amounts in dispute."
(Pry ?bjtts..? 10.) _
It. :1021(4(4)- Legal Insufficiency of a Plea iag ein
In consideration of a Rule 1028{4x4) objection, it is noted that the Court is to abide by
the foAoWiag steaQard: -
When reviewing the dismissal of a complaint based upon preliminary
objections in the •oarure of a demo crer, we ,rest as true all well-pleaded material,
:.fadaull.avemncnm and all infmoces hir)y.dednrcible therefrom. Whet= the
preliaou>arr.objectionn will t=int in the Eunissal of the action, the objections
may be sustained only in rases that are clew and free from doubt. To be clear
'and free from doubt that dismissal is appropriate. it must appear with certainty
•tbx the law would not permit recovery by the plaintiff upon. the facts averred.
"A:hy doubt should -be resolved by a refusal to sustain the objections.
Swisher v;`Pid. 866 A.2d 1228,1230 (Pa.SupeL2005) (quoting Reeves Y. Mrddlerown AU1alerfc
.iss'rr, 866 A 2d 1115; ] 122 (Pa Super200%
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EMERIO.
13- 2010-1 V.q&RM----RQTHON0T 4491 .1610
To establish s cause of action for breach of contract in Pmtsylvania, the Plaintiff Mat
plead: ` .l) the existam of a contract, including its essential terms, (2) a breach of a duty
imposed by tha coatrac-t saki (3) resultant damages" CoreRales Bmuk N.A. v Cut7lo, 723 A 2d
1053,1058 (P&Super_1999) (citing Gen State Autk v. Coleman Cable & Wire Co., 265 A.2d
1347, 49:(Pa t2mwltb,1976)? "While not every term of a contract must be stated is complete
detail, ttiicry•eleareat must be specifically pleaded-" 1d (citing Snardr Y. Smith, 422 A.2d 1379,
82 (Pa.Saper:1980):
In regards m the fast element. "[i)t is settled law that the offeror is master of his offer,
and his provision as to timee place aad manner or anode of acceptance must be complied
w+ith(.r, Van Schoiack Y. US. Liabilby Iris. Co., 122 A2d 509, 514 (Pa.1957). Although the
passage cf time has provided the offeror with. new ways to master his offer. this tradidonal
prin ple-of contract law still applies. ,
For example; is Fel&nan Y. Croogk Inc.5S 13 F.Supp.2d 229 (ED Pa.2007), an
adverti=caa an ;iuternet website sued the.website operatot for allegedly overbilling hitn. Id at
231.32: Al issue :was the. enforceability of a fonrm selection clause in a contract into whicb the
pard s: enured ova the internat. Id at 231. Specifically, "[tjhe type of contract at issue ...
[was) oomiaoaly,rcfetrpd to as a 'clickwrap' agreement1 j" which "appears on an intemet
wi bpagr and royuirp,that a user consent to any:terms or conditions by clicking an a dialog box
on the screec? in Order to proceed with the kdeazt trartsection" Id at 236 (citations omitted),
The Feldman cowl stated.
To determine whether a clickwrap agreement is enforceable, courts presented
Mrh the LMN apply awdtdonol Principles of contract law acrd focus on wheow
the lo}jereel had rexopjable nWce o fwd manifested assent to the clickwrop
cgrument. Absent a-showing of freed, failure to read an enforceable cliekwrap
To'
;: .
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agtoemmt; as with any binding contract, will not excuse compliance with i6
tests.
Id (ernphans added).. Thm it comideted the plaindra argument that "he did not have notice
or knowledge of the foals se]ection clause. and therefore that there was no `meeting of the
n3iltds7 requirvd bT contract folMation." Id at 236-39-
T?C Fetzhnarr court rejected this argument, stating:
IT)he .[c ickwrap] [a)greanent gave reasonable notice of its terms. In order
A o activate ain-D account, the we had to visit a webpage which displayed the
[a)greement in A scrollaWc text box[,) ... [which] was irnmediamly visible to
the turn, as was a prominent admonition in boldface to read the terms and
conditions carefully, and with instruction to indicate assent if the user agreed w
the terms.
Id at 237_- 4 concluded:
A.reasoaab1y:pr%b1M9 intemet USer would have known of the existence of
tertas in the o [a)gceement. [The] [p]laiatiffbad to have had reasonable notice
of the terms, By clicking on "Yes, I agree to the above terms and conditions"
:?button, [the) (p)laintiff indicated assent to the tmnts. Therefom the
rexitsitaaeats of as a Mm contract for remombie notice of terms and mutual
asseata c.setisfted. Plaintifra fns urv to read the [a)grxrrnetnt, if that was The
case; does not excuse him from being bound by his express agreement-
id at 238.
In regards to credit card agreements- typically, an offeree receives a endit card issuer's
offer ice:the milL whicb C MiSt9 of the MM of the agrtemeat, Lt., the terms of the offer, and,
perbaM the cie&,cwd itzlf (the offence may have invited the credit card issuer to make this
offer pY. Pling.-6M a credit card application or the o&= may have rttadc the offer of its own
volition; Once the offer" is in possessions of the credit card, he or sbe has the option of
accepting the offer. Many tithes, using the cmdit card to crake a purchase constitutes
acceptance.So long as the credit card user. "bad reasonable notice of and mariifeacd assert" to
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JEL'V. 13.2010--11 3799--' 'PROTFP40TRR "s-P. is
the coedit card aeeeaxat, be or she is bound by its terms because the credit card issuer's
`provision as to Mme, place and matmer or mode of acceptance must be compliod with(.]".
.
Fek man;.513,F.Supp.2d 229,236; Van Schoiack, 122 A_2d at 514..
:In :the instw case, Defendant alleges that "Plaintiff does riot actacb any written
(cjomtract or`[ajO?emcn% signed or umsigaed by O-Defendant, verifying the existence of the
alleged credit account or an ageemeot to the putposted tarsus and conditions." (PL's Br.
Prelim. Obj'ns. 3_) Without mote," Defendant proceeds, -it is impossible to disecm from
PiaiwWs Complaint whether Defendant ever agreed to a credit account with the alleged
original- creditor or wbat the terms wart agreed to." (ld )
The Complaint belies this argumetet. It is alleged that Defendant appl ied for tlrc credit
card "and -.was gamed-[the] revolving open-end credit card account- .. subject to the stated
taa+.s and.oonditions contained in a written account agreemc nt." (Compl. 5.) It is alleged that
"a true.and correct copy" this agreement is attached to the Complaint- (1d) The first paragraph
of the agreement; in pat"=i part, provides:
-: This is the Agreement that- establisl= the teams of your Cardmember Account
{'.`Account") with first Q (including aetawrts opened with us through other
banks that pamcipate-in our Mastm -ardNsa program and whose name maybe
on tt a face of your Catd). Please read ii careMy and keep it for your records.
Yon do rrot need •to sign rhis-Agnunrxt,• but please be sure to sign the back of
your Card.if you have not already done so. All extensions of ardit is
-cosmoc60A with y+ottr Account are being trade by First 0. Any use of'your Card
or Accost confsrms year accWance of the terms and condltlons of this
:. dgteMeng.
(Id Ex.'t.(gnplzsis added).) . Fuitl er, "Pls zdffavers that the Defendant accepted the terms
and=oiAitiOM of-the revolving open-end credit accoum contained in the aforementioned
wattm pp=.by u$44 the credit card to make purchases andlof to obtain cash
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HmT
advances(:]" sad_ P7siatiff weal a step frather.by providing evideme to subsuntiate this
allegation by, attachinB:eigbt of ber account statements. (Id J 7.) The Court holds that
Plain -bas sufficiently pled "she existence of a contract," and by attaching a copy of the entire
written acoount agreement that Defend= allegedly received, Plaintiff has `include[ed) its
essential teausj.]" - CoreStates Bank 723 A.2d at 1058 (citing Geri. State Auth., 355 A.2d at
1349).. Ibt? Plaintiff has sapsfied the first elawnt of its bleach of contract claim
jba final-two elements are also satisfied. Plaintiff pled "a bleach of a duty imposed by
the contract" in that h is alleged `Defendant failed to make payments as they became due,"
which was ` izi breach of obligations under the [s]gccmenL" Id.; (CompL y 7.) Finally,
Plaintiff pled the "resultant daaragee of the principle balance due plus the interest that it hag
azcrued: ; 723 A.2d at .1058 (citing 365 A2d at 1349); (CompL 118, 9-)
Plaintiff bas.specifica[1y pleaded each of the three elements that it will need to prove in
order tarxover against Defendant for a breach of contract claim. Defendant's Rule 1028(a)(4)
preliminary, p action is. therefore cyanided..
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-JAN. 13.2910'11.3E11-"WROT}lOMOT A.449----P. 20
COMMONWEALTH FINANACIAL ) IN THE COURT OF COMMON
SYSTEMS, INC. assinpac of UNIFUND ) PLEAS OF SOMERSET COUNTY,
0f%0gVOLIO A "I'l ass; of CHASE ) PENNSYLVANIA
BANK USA, N.A.
Plaintiff ) NO. 289 CML 2009
V. )
JENNIFER L_ REEPING, )
Dcfend=t._ )
ORDER
AND now, this day of January, 2010, in arcntdantx with the foregoing
Memorandum, Defendant's. preliminary objections are OVERRULED, and Defendant is
directed to. file an Answer to the Amended Complaint within twemy (20) days.
BY THE COURT:
<17
David C. Klemerrdk, !.
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Burton Neil & Associates, P.C.
By: Neil Sarker, Esquire ID. NO. 203465
1060 Andrew Drive, Suite 170
West Chester, PA 19380
610-696-2120
Attorney for Plaintiff
CITIBANK, N.A. IN THE COURT OF COMMON PLEAS
Plaintiff
V. : CUMBERLAND COUNTY, PENNSYLVANIA
NO. 12-2935-CIVIL
BARBARA M HOPE
Defendant : CIVIL ACTION - LAW
Certificate of Service
I, Neil Sarker, Esquire do hereby certify that I served a true and correct copy of the within
Answer to Preliminary Objections on defendant's counsel, Jason M. Rettig, Esquire at his
address of record via first class mail, postage prepaid on the date set forth below.
Date:
Burton Neil & Associate P.C.
By:
Neil Sarker, Esquire
Attorney for Plaintiff
The law firm of Burton Neil & Associates is a debt collector.
C-57399