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HomeMy WebLinkAbout01-7086 CIVILTHOMAS A. SPECK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. SEBASTIAN G. Z. TRISCARI, Defendant NO. 2001-7086 CIVIL TERM V. KENNETH STEPHAN, Additional Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before HOFFER, P. J., HESS, J. and OLER, J. HOFFER, P.J.: Before the Court are the preliminary objections of the defendant, Sebastian Triscari, to the Complaint of the plaintiff, Thomas Speck. Plaintiff Speck brings this action in law and equity seeking a dissolution, and an accounting with regard to the parmership formed between himself and defendant Triscari, known as Triscari Video Services ("Tri-Video Services"). In addition, the plaintiff seeks the appointment of a receiver to oversee the assets of Tri-Video Services. He also seeks relief under the following remedies: breach of fiduciary duty, tortious interference with prospective business relations, commercial disparagement, fraud, misrepresentation, and negligence. FACTUAL PLEADINGS On January 2, 2000, plaintiff Speck and defendant Triscari entered into a parmership agreement for the purposes of establishing Tri-Video Services. The plaintiff and defendant were equal parmers at the time the original parmership agreement was signed, each with a 50% share in the venture. The business was located in Camp Hill, and was intended to provide videotaping services for weddings, recitals, school activities, sporting events, and other special events. Triscari's other business, Triscari Productions, was apparently supposed to refer requests for videotaping of these types of events to this new venture. Pursuant to the parmership agreement, plaintiff Speck was to pay for materials and provide labor for the renovation of the office location. In addition, he was to set up all equipment at the location, including computer systems and office furniture. Speck is claiming that these contributions amount to approximately $5,000. Defendant Triscari was to set up the parmership's web site, provide technical services, and maintain the video equipment. The value of setting up the web site was estimated at approximately $3,000 with an $80 service fee, and the video equipment maintenance was valued at approximately $5,000. On February 29, 2000, the plaintiff and defendant entered into a revised parmership agreement. The agreement sets out equal shares for both parmers, but names plaintiff Speck as managing parmer. Both parmers were to receive 10% commissions for referrals of work to the parmership. (The language of the agreement indicates that Triscari will receive a 10% commission for productions over $2,500 generated by him. The clause relating to Speck's commission does not include the $2,500 figure.) In addition, defendant Triscari was to contribute video and office equipment to the parmership. He estimated the value of this equipment at $85,600, but plaintiff believes the worth to be closer to $10,000. 2 In October 2000, the parmership added Ken Stephan, D.O., as a 5% parmer for the sum of $10,000. On December 14, 2001, Dr. Stephan's entire 5% interest was transferred to Speck, giving him a 52.5% interest in the parmership, and Triscari a 47.5% interest. Plaintiff's Complaint contends that the parmership began to suffer from lack of work by December 2000. As a result, the parmership could not pay the rent for the office space, leased to the parmership by defendant Triscari at a rate of $500.00 per month plus utilities. Plaintiff Speck, with Triscari's approval, then moved the office (including equipment) to an office in his residence. On December 18, 2001, plaintiff Speck filed the Complaint against defendant Triscari, alleging the causes of action listed above. Defendant Triscari has filed two Preliminary Objections. Defendant's Preliminary Objections are as follows: 1. Plaintiff has Failed to Plead in Conformity with Law or Rule of Court (Pa. R.C.P. 1028(a)(2)) Defendant claims that plaintiff's Complaint violates Pa. R.C.P. 1019 and Pa. R.C.P. 1022. Pa. R.C.P. 1019(a) states, "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Specifically the defendant claims that almost every paragraph of plaintiff's Complaint contains multiple averments, as well as immaterial and irrelevant averments, thereby violating Rule 1019(a). He cites eleven paragraphs from the Complaint, and 3 concludes that the complex averments of evidence and speculation in them and almost every other paragraph (89 total) make the Complaint "difficult, if not impossible, to respond to." In Pennsylvania, a complaint is not rendered defective under subdivision (a) of Rule 1019 merely because plaintiff avers facts not necessary to establish a prima facie case, since such averments, where the adverse party is not prejudiced thereby, will be treated as harmless surplusage. Armstrong Cork Co. v. Kimmel, 2 Pa. D & C.2d 175, 54 Lanc. L.R. 233 (1955). In addition, the Complaint need not cite evidence, but only state those facts necessary for defendant to prepare a defense. Com., Dept. of Transp. (PennDOT) v. Bethlehem Steel Corp., 380 A.2d 1308, Pa. Cmwlth. 1, (Cmwlth. 1977). But, "allegations will withstand challenge under 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, and (2) they are 'sufficiently specific so as to enable defendant to prepare his defense."' Com., Dept. of Transp. (PennDOT) v. Bethlehem Steel Corp., 380 A.2d 1308, 1313, Pa. Cmwlth. 1, 12 (Cmwlth. 1977). Defendant claims that there are no facts pleaded to sustain the important issues that need to be pleaded to meet a prima facie statement of the plaintiff's theories of liability. Upon a closer reading, while the Complaint is lengthy and cumbersome, it does assert the facts that the plaintiff will eventually have to prove in order to recover. Pa. R.C.P. 1022 states, "Every pleading shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation." A Pennsylvania Court of Common Pleas has stated, though, that this rule is 4 not violated by paragraphs which, while lengthy and complex, contain basically but one material allegation, with certain supportive informative subsidiary allegations. Bethlehem Steel Corp. v. Litton Industries, Inc., 71 Pa. D. & C.2d 635 (1974). Each numbered paragraph in the Complaint at hand contains one material allegation, supplemented by informative subsidiary allegations. It is possible for the defendant to respond to these allegations. 2. Plaintiff's Complaint Fails to Specifically Allege Facts Sufficient to Support the Numerous Theories of Liability Or Damages Which Are Pleaded. The defendant contends that the Complaint is deficient in that it does not plead the specific factual basis to underlie the theories of liability or of damages. Specifically, defendant seeks dismissal of the Complaint due to lack of specificity and insufficiency of the pleading in setting forth material facts upon which his causes of action are premised. A. Lack of Specificity 1. Fraud Pa. R.C.P. 1019 (b) requires averment of fraud be made with particularity. Pennsylvania courts have expounded on this requirement with regards to particularity. In determining whether complaint avers fraud with sufficient specificity, the court must look to the complaint as a whole and ascertain whether it adequately explains the nature of the claim to defendant so that he may prepare a defense, and whether it is sufficiently specific to convince the court that averments therein are not merely subterfuge; however, plaintiff is not required to plead evidence in the complaint and, therefore, need not allege all of factual details underlying the claim of fraud. Maleski by Taylor v. DP Real _ty Trust, 5 653 A.2d 54 (Cmwlth. 1994) (emphasis added). In addition, Subdivision (b) of this rule, requiring that averments of fraud be averred with particularity, merely prohibits allegation of fraud in pleadings as mere legal conclusions without alleging facts to support it and does not require that the complaint be drawn with skill and contain all of its allegations in logical and proper sequence. Borelli v. Barthel. 211 A.2d 11, 205 Pa. Super. 442 (1965). In the Complaint at hand, paragraph 79, when incorporated with the Complaint as a whole (in particular paragraphs 14, 15, 31, and Exhibits A, B, F, G), sufficiently alleges fraud by providing enough details by which the defendant can form a defense. 2. Commercial Disparagement Defendant also claims that the allegation for commercial disparagement in the Complaint should be pleaded with more particularity. The elements for an action for commercial disparagement are: (1) The disparaging statement of fact is untrue or that the disparaging statement of opinion is incorrect; (2) That no privilege attaches to the statement; (3) That the plaintiff suffered a direct pecuniary loss as the result of the disparagement. U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, C.A.3 (1990). Defendant specifically cites paragraphs 32 and 71 when referring to the need for greater specificity in regards to this claim. Paragraph 32 states, "[N]ot only did Mr. Triscari fail to refer business to the Parmership, but . he actually discouraged individuals from using the Parmership." Complaint ¶ 32. Paragraph 71 states, "Defendant knowingly published false statements regarding the Parmership, intending to cause pecuniary loss, or reasonably should have recognized that such publication would cause pecuniary loss." Complaint ¶ 71. These paragraphs, especially paragraph 71, do assert a proper claim for commercial disparagement. While paragraph 32 does not state specifically how the defendant discouraged individuals from using the Parmership, and paragraph 71 does not specify the false statement made by the defendant, both contentions do provide the defendant with enough information by which he can provide a defense. Again, with regard to specificity, "allegations will withstand challenge under 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, and (2) they are 'sufficiently specific so as to enable defendant to prepare his defense."' PennDOT v. Bethlehem Steel, 380 A.2d at 1313. The plaintiff has asserted such facts he will have to prove in order to recover, and the defendant should be able to form a defense with the information presented. The discovery phase more than likely will bring these facts to light, but in the meantime they are sufficiently pleaded in the Complaint. 3. Damages a. Lack of Itemization Defendant claims that the Complaint is insufficient because it does not itemize the monies due to the plaintiff. Pursuant to Rule 1019(1), special damages must be pleaded. While it is necessary to itemize damages when pleading special damages, which arise as a consequence of circumstances of a particular wrong, it is not necessary when seeking general damages, which the law presumes follow from the type of wrong complained of. Black's Law Dictionary 394, 396 (7th edition 1999). The plaintiff in the 7 case at hand does not need to itemize the alleged monies due because the loss the plaintiff is claiming naturally resulted from the actions of the defendant of which the plaintiff is complaining. Had the loss not necessarily resulted from the act complained of, those damages would constitute special damages, thus the plaintiff would be required to plead with particularity. Several Pennsylvania courts have found that general damages need not be pleaded with particularity. ~ Here, in Count V, Breach of Partnership Agreement, the plaintiff pleads that "[a]s a direct and proximate result of the Defendant's breaches of the Parmership Agreement and the Revised Parmership Agreement, the Plaintiff has suffered damage in excess of the jurisdictional limits for arbitration." Complaint ¶ 62. In addition, in the plaintiff's count for negligence, he asserts that he suffered loss in eight particular respects. Complaint ¶ 89. These assertions, as well as those in all counts, are sufficient to establish damages by which the defendant can form a defense. b. Punitive Damages The defendant also claims that the plaintiff has not set forth a factual basis to support an assessment of punitive damages. Specifically, he contends that even if all ~ See Weaver v. Habecker, 44 Lanc. L.R. 164 (Pa. Com. PI. 1934)(holding that where general damages may be proven without being specially pleaded, averment of facts showing wrong done is sufficient to entitle plaintiff to establish them); Dalton v. South Bethlehem Brewinq Co., 29 Northam. 215 (Pa. Com. PI. 1944)(finding that general damages which are the ordinary and usual consequences of the wrong done may be proved without being specially pleaded, and that the averment of the facts showing the wrong done together with a general averment of the resulting damage is sufficient to authorize the recovery of such damages as would naturally follow from the act complained of). 8 the alleged facts were admitted to, those acts would not rise to the level of conduct so reckless, wanton, outrageous or severe to award punitive damages. Generally it is not necessary to itemize or specify punitive damages. Haas v. Blue Cross. 12 Pa. D. & C.3d 582, 585 (Pa. Com. P1. 1979)(citing 2A Anderson Pa. Civ. Practice §1019.72). It is nonetheless necessary that there be sufficient factual averments to support such damages and such averments as will inform the defense of what to expect at trial. Id. (citing Joseph v. Naylor, 257 Pa. 561, 101 Atl. 846 (1917); Mazzarella v. Lehigh Foundations, Inc., 49 Pa. D. & C.2d 198 (1969); 3 Standard Pa. Pract. §187, 459 (1952 ed.)). Pennsylvania has adopted the view of section 908 of the Restatement, 2d, Torts, that punitive damages may be awarded for "conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Id. (citing Pierce v. Capital Cities Communications, Inc., 576 F. 2d 495 (3d Cir. 1978), cert. denied, 99 S. Ct. 181 (1978); Chambers v. Montgomery_, 411 Pa. 339, 192 A. 2d 355 (1963); Focht v. Rabada, 217 Pa. Superior Ct. 35, 268 A. 2d 157 (1970)). In the case at bar, the plaintiff is seeking punitive damages in Counts IV-X. These counts do sufficiently plead punitive damages. For example, in Count VI, Tortious Interference with Prospective Business Relations, plaintiff asserts that by failing to provide referrals defendant Triscari acted with reckless indifference to the rights of the plaintiff. Complaint ¶¶ 66-68. Setting forth this factual allegation is sufficient to establish punitive damages. It is important to note, though, that whether such damages can be proven is an altogether different matter, to be determined at trial. But, in regards to pleading, punitive damages have been properly asserted. B. Demurrer Defendant is seeking a demurrer on the grounds that the plaintiff has not properly pleaded the material facts upon which to base his causes of action. Specifically, the plaintiff has pleaded three torts: negligence, commercial disparagement, and misrepresentation. 1. Negligence The defendant sets out the elements for negligence, and proceeds to simply argue that the plaintiff has not set forth sufficient facts to sustain such a claim2. In fact, plaintiff establishes early on in the Complaint the duty the defendant owed to the plaintiff through their parmership.3 Other parts of the Complaint, including specifically Count X claiming negligence, then contend that the defendant breached that duty. Therefore, the elements of negligence have been properly pleaded by the plaintiff. 2. Commercial Disparagement The court's response to the defendant's objection with regard to a claim of commercial disparagement is sufficiently covered above in section 2.A.2. 3. Misrepresentation 2 Brief in Support of the Preliminary Objections of Defendant, Sebastian G.Z. Triscari, ¶ 2.A). 3 Complaint ¶ 6. 4 Brief in Support of the Preliminary Objections of Defendant, Sebastian G.Z. Triscari, ¶ 2.C). 10 The defendant sets out the elements for misrepresentation4, and argues that the plaintiff has not established the second element, a fraudulent utterance. In order to show a fraudulent utterance the plaintiff must plead that the false representation was made knowingly, or in conscious ignorance of the truth, or recklessly without caring whether it be true or false. Ft. Washington Resources v. Tannen, 858 F.Supp. 455 (E.D. Pa. 1994). The plaintiff does contend in Count IX specifically that the fraudulent utterances were made knowingly by the defendant. The specificity stated in this Count is sufficient to sustain an assertion of fraudulent utterance. THOMAS A. SPECK, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant NO. 2001-7086 CIVIL TERM KENNETH STEPHAN Additional Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before HOFFER, P. J., HESS, J. and OLER, J. ORDER OF COURT AND NOW, this day of ,2002, pursuant to the opinion filed this date, the preliminary objections of the defendant are denied. By the Court, George E. Hoffer, P.J. Mark K. Emery, Esquire 410 North Second Street Harrisburg, Pa 17101 For the Plaintiff Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 For Defendant Triscari Dr. Kenneth R. Stephan 110 Calton Drive Calton, South Carolina 29341 12 13