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HomeMy WebLinkAbout01-3507 CIVILALBERT H. "BUCK" SHULLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DANIEL L. DANNER, Defendant NO. 01-3507 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HOFFER, P.J., and OLER, J.* OPINION and ORDER OF COURT OLER, J., May 28, 2002. This case arises out of allegedly defamatory statements by Defendant Daniel L. Danner, a candidate in a primary election campaign for township supervisor in Penn Township, Cumberland County, Pennsylvania. The statements, which were said to have been made first orally at a January 11, 2001, public meeting and later in flyers produced by Defendant in May 2001, allegedly accused Plaintiff Albert H. "Buck" Shuller, the incumbent official, of various violations of Pennsylvania law while in office.~ On June 7, 2001, Plaintiff filed a complaint, seeking compensatory and punitive damages against Defendant on the basis of three counts: libel, slander, and defamation of character] In the complaint, Plaintiff alleged facts relating only to the printed statements * Hess, J., did not participate in the consideration or disposition of this case. ~ See Pl.'s Am. Compl., filed Dec. 6, 2001; Pl.'s Compl., filed June 7, 2001. The flyer allegedly stated that Plaintiff "improperly placed himself and [his] wife on the Township Health Insurance Plan," "violated state law by voting himself compensation during his term," "violated the Pennsylvania Sunshine and Open Records Law" in hiring processes, "violated state law and township second class code when he privately negotiated and signed a contract with an Advertising company," "secretly authorized the leasing of the township property," and "attempted to bribe another supervisor with jobs for voting yes." See id. at 20 (attached copy of flyer). 2 Pl.'s Compl., filed June 7, 2001. The original complaint also included allegations against several other named defendants, who were subsequently dropped from the case by settlement of the parties. made in the flyers and did not include averments relating to the oral statements said to have been made by Defendant at the public meeting. Defendant filed preliminary objections to the original complaint based, inter a/ia, on the legal insufficiency of the complaint.3 No amended complaint was filed by Plaintiff in response to the preliminary objections. On November 20, 2001, the court, in an opinion by the undersigned judge in response to the preliminary objections, entered the following order: AND NOW, this 20th day of November, 2001, after careful consideration of the Preliminary Objections of Defendant Daniel L. Danner to Plaintiff's Complaint, and of the briefs and arguments on the issues presented therein, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Count I (libel) of Plaintiff's complaint is dismissed, subject to a right of Plaintiff to file an amended complaint within 20 days of the date of this order, repleading the count, if possible, in accordance with the accompanying opinion; and 2. Counts II (slander) and III (defamation of character) of Plaintiff' s complaint are dismissed with prejudice.4 On December 6, 2001, Plaintiff filed an amended complaint that, in accordance with the court order, repleaded the count for libel in an amended form.5 However, the amended complaint also included a second count for slander, in support of which Plaintiff alleged facts relating to the oral statements said to have been made by Defendant at the public meeting.6 On January 3, 2002, Defendant filed a preliminary objection to the amended complaint, in which Defendant contended, inter a/ia, that "Plaintiff's Amended 3 See Prelim. Objections of Def. Daniel L. Danner to Pl.'s Compl., filed July 10, 2001. 4 Order of Ct., Nov. 20, 2001. In contrast to the original complaint, Plaintiff's amended complaint identified the claim for libel as Count II and the claim for slander as Count I. See P1.'s Am. Compl., filed Dec. 6, 2001. s P1.'s Am. Compl., filed Dec. 6, 2001. Defendant does not raise any preliminary objection with respect to the count for libel in the amended complaint. 6 See P1.'s Am. Compl., filed Dec. 6, 2001 (Count I). 2 Complaint alleges a cause of action for slander in spite of Judge Oler's Order dismissing Plaintiff' s first Complaint with prejudice with respect to slander." No answer was filed by Plaintiff in response to the preliminary objection.7 Briefs were submitted by both parties on the issues presented therein and oral argument was held on May 22, 2002. For the reasons stated in this opinion, Defendant's preliminary objection will be granted and the count for slander in the amended complaint will be dismissed. DISCUSSION In cases in which granting a preliminary objection would result in the dismissal of a cause of action, the court should do so "only in cases which are clear and free from doubt." Baker v. Cambridge Chase, Inc., 725 A.2d 757, 764 (Pa. Super. Ct. 1999). In the present case, Plaintiff's inclusion of a count for slander in the amended complaint was not authorized by the order of court dated November 20, 2001. Under that order, the count for libel was dismissed "subject to a right of Plaintiff to file an amended complaint" for the limited purpose of repleading the count for libel; however, the counts for slander and defamation of the original complaint were dismissed "with prejudice.''8 Nor was the present inclusion of the count for slander, as accomplished by Plaintiff, in compliance with Pennsylvania Rule of Civil Procedure 1033, which deals with amendments to pleadings.9 Although generally amendments to the complaint should be "liberally allow[ed]," Sejpal v. Corson, Mitchell, Tomhave & McKinley, M.D. 'S, Inc., 445 Pa. Super. 427, 432, 665 A.2d 1198, 1200 (1995), this principle has no application in cases in which the amending party has obtained neither permission of the court nor 7 Plaintiff was not required to file a responsive pleading because the preliminary objection did not include a notice to plead. Pa. R.C.P. 1026(a). 8 Order of Ct., Nov. 20, 2001. 9 Pennsylvania Rule of Civil Procedure 1028, which also permits amendments to the complaint in certain circumstances, provides that a "party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections." Pa. R.C.P. 1028(c)(1). However, because no amended complaint was filed by Plaintiff in response to the preliminary objections to the original complaint, Rule 1028(c)(1) is not applicable here. 3 consent of the other party to do so. See Pa. R.C.P. 1033 (stating that amended pleadings may normally be filed only by "consent of the adverse party or by leave of court"). In the present case, Plaintiff, without first seeking the permission of the court or consent of the opposing party, attempted to amend the original complaint in a manner not authorized under the court order; thus, the amendment was improper under Rule 1033. Because the count for slander in Plaintiff's amended complaint conformed neither to the Pennsylvania Rules of Civil Procedure nor to the order of court dated November 20, 2001, the preliminary objection will be granted,l° ORDER OF COURT AND NOW, this 28th day of May, 2002, after careful consideration of the "Preliminary Objection of Defendant to Plaintiff's Amended Complaint," and of the briefs and arguments on the issues presented therein, and for the reasons stated in the accompanying opinion, the objection is granted and Count I (slander) of Plaintiff's amended complaint is dismissed. BY THE COURT, /s/J. Wesley Oler, Jr., J. J. Wesley Oler, Jr., J. Ron Turo, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff l0 Because of the resolution of the preliminary objection on this ground, the court will not address Defendant's argument that the cause of action for slander, based on Defendant's oral statements at the public meeting, has been waived because Plaintiff did not include the claim in the original complaint. See Pa. R.C.P. 1020(d)(1), (4) (stating that, if two causes of action arise out of the same "transaction or occurrence," both must be included in the complaint to avoid waiver). 4 Douglas G. Miller, Esq. West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 Attorney for Defendant 5 6 ALBERT H. "BUCK" SHULLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW DANIEL L. DANNER, Defendant NO. 01-3507 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S AMENDED COMPLAINT BEFORE HOFFER, P.J., and OLER, J.* ORDER OF COURT AND NOW, this 28th day of May, 2002, after careful consideration of the "Preliminary Objection of Defendant to Plaintiff's Amended Complaint," and of the briefs and arguments on the issues presented therein, and for the reasons stated in the accompanying opinion, the objection is granted and Count I (slander) of Plaintiff's amended complaint is dismissed. BY THE COURT, J. Wesley Oler, Jr., J. Ron Turo, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Douglas G. Miller, Esq. West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 Attorney for Defendant * Hess, J., did not participate in the consideration or disposition of this case.