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Home My WebLink About97-5476 civilKEVIN HUMBERT t/a HUMBERT'S LANDSCAPING AND EXCAVATING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LINDEN R. GATES, JR., et al. : NO. 97-5476 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS TO SECOND AN__RNDED CO~_P?.AINT BEFORE BAYLEY, J., GUIDO, J. AND NOW, this ORDER of MARCH, 1998, after argument, Defendants' preliminary objection in the nature of a demurrer is DENIED. Defendants are directed to file an answer within twenty (20) days. It is further ordered that Plaintiff's request for sanctions is APPROVED. Plaintiff's counsel is directed to file a Petition for Approval of Counsel Fees and Costs, directed to the attention of the undersigned, within ten (10) days of receipt of this order. Said petition shall include a detailed breakdown of time expended. Defendants' counsel may file objections to the reasonableness of said fees and costs within ten (10) days after receipt of Plaintiff's petition. The Court will then determine the appropriate amount to award. Douglas R. Bare, Esquire For the Plaintiff Mark E. Halbruner, Esquire For the Defendants By the Edward E. Guido, Judge 0 KEVIN HUMBERT t/a HUMBERT'S LANDSCAPING AND EXCAVATING : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : LINDEN R. GATES, JR., et al. : NO. 97-5476 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS TO SECOND AMENDED COMPT.AINT BEFORE BAYLEY, J., GUIDO, J. OPINION AND ORDER OF COURT On October 6, 1997, Plaintiff filed a complaint alleging that Defendants owed him money for excavation services he had performed on their behalf. The complaint was very specific as to the facts forming the basis of the claim.~ Nonetheless, on October 28, 1997, Defendants filed preliminary objections alleging, inter alia, insufficient specificity. On November 14, 1997, Plaintiff filed an amended complaint in an attempt to address the objections raised by Defendants. In addition to the breach of contract claim, Plaintiff pleaded an alternative cause of action based upon quantum meruit. The prayer for relief on the quantum meruit claim included a request for attorney fees and collection costs. On December 10, 1997, Defendants filed preliminary objections in the nature of a demurrer to the quantum meruit claim as well as to the request for attorney fees and · collection costs contained in the prayer for relief. On December ,, ~The Complaint alleged that services were performed pursuant to a written contract that was attached thereto. It further alleged that substantial additional services were performed, and costs incurred, upon an "extension and modification of the agreement." It further alleged that the extension and modification was agreed to by Defendants Linden R. Gates, Jr., and Lois J. Gates on behalf of all the partners. NO. 97-5476 CIVIL TERM 29, 1997, Plaintiff filed yet another amended complaint.~ On January 22, 1998, the Defendants filed another preliminary objection in the nature of a demurrer to the quantum meruit claim. On February 5, 1998, Plaintiff listed the matter for argument which was held before this Court on March 4, 1998. This matter is finally ready for disposition. DISCUSSION Defendants' only argument is that quantum meruit relief is not available where the parties' relationship is founded on an express agreement. They have cited numerous cases which stand for this proposition. However, not one of those cases involve an objection to the pleadings. The reason is clear. Pennsylvania Rule of Civil Procedure 1020(c) unequivocally provides that causes of action may be pleaded in the alternative. It has long been the law of this Commonwealth that "... plaintiffs should not be forced to elect a particular theory in pursuing a claim" at the pleadings stage. Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977). There is not one scintilla of doubt that Defendants' preliminary objection should be denied. Because it is so crystal clear that Defendants' preliminary objection should be denied, we are forced to face another issue, i.e. whether Plaintiff's request for attorney fees should be ~The second amended complaint was identical to the first amended complaint except that the claim for attorney fees and collection costs was deleted. In addition, Plaintiffs added a paragraph specifically alleging that Defendants were unjustly enriched. NO. 97-5476 CIVIL TERM granted. For the reasons hereinafter set forth, we believe that Plaintiff is entitled to be reimbursed for the attorney fees incurred in defending the frivolous preliminary objection to his second amended complaint. Pa. Rule of Civil Procedure 1023 was amended effective December 1, 1997. It now reads as follows: SIGNING (a) Every pleading, motion, legal paper or other paper directed to the court and every discovery request or response of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name.~ Every such document of a party not represented by an attorney shall be signed by the party. (b) The signature to a document described in subdivision (a) constitutes a certification that the person signing it has road it, that to tho host of [his] the signer's knowlodgo or information and belief ~here is good ground ~o suppor~ i~, and that it is submittod in good faith. There is good ground to support the document if ~he signer has a reasonable belief tha~ existing law supports the document or that there is a good faith argument for the extension, modification or reversal o~ existing law. (emphasis added) (c) The court may impose an appropriate sanction for a bad faith ~violation of subdivision (b) . In the instant case, we are satisfied that defense counsel. did not boliovo that thoro was good ground to SupPort his preliminary objection. As noted above, none of the cases cited by defense counsel dealt with striking a quantum meruit claim and/or a contract claim at the pleadings stage. The simple reason is the existence of Rule 1020 which allows 3Defendants' attorney signed the preliminary objections to Plaintiff's Second ganended Complaint. NO. 97-5476 CIVIL TERM alternative and inconsistent claims to be raised at the pleading stage.~ Not only did defense counsel ignore Rule 1020, he totally disregarded Pennsylvania case law which makes it clear that express contract and quantum meruit may be pleaded in the same cause of action. In addition to the cases cited in his brief, see Geesey v. Albee Pa. Homes, Inc., 211 Pa. Super. 215, 235 A.2d 176 (1967), and Lampl v. Latkanich, 210 Pa. Super. 83, 231 A.2d 890 (1967). In view of the above, we cannot conceive that Defense Counsel had any belief, let alone a reasonable belief, that existing law supported his preliminary objection. Nor can we conceive of any good faith argument for the extension, modification, or reversal of existing law.s We recognize, and agree with, the instructions set forth in the comment to Rule 1023 to the effect that "(t)he grant or denial of relief ... does not, of itself, ordinarily warrant the imposition of sanctions against the party opposing or seeking relief." However, there are no grounds upon which Defense 4What makes defense counsel's conduct even more egregious is that several of the cases cited in his brief for the proposition that quantum meruit and express- contract are mutually exclusive remedies actually went to trial (or to summary judgment) with both inconsistent causes of action having been raised at the pleading stage. See Hershey Foods Corp. v. Ralph Chapek, Inc._, 828 F.2d 989 (3d Cir. 1987) (claim was for both breach of contract and quantum meruit which proceeded to summary judgment stage); Aloe Coal Company v. Department of Transportation, 164 Pa. Commonw. 453, 643 A.2d 757 (1994) (a case similar to the case sub judice which proceeded to trial). SApparently neither could Defense Counsel. He chose simply to ignore existing law rather than make any argument to extend, modify or reverse it. NO. 97-5476 CIVIL TERM Counsel could have possibly prevailed on the preliminary objection before us, and since he chose to completely ignore the existing law which is clearly on point, we must conclude that the preliminary objection was not submitted in good faith. This is clearly an abuse of the litigation process.6 The comments to the rule further provide that the award of attorney fees may be an appropriate sanction. We agree. We feel that it is indeed appropriate for Defense Counsel to reimburse Plaintiff for all legal fees and costs incurred in opposing his "Preliminary Objection to Second Amended Complaint." Plaintiff's counsel may submit a petition to this Court for approval of said fees and costs, along with a detailed breakdown of time expended. If defendants' counsel files objections to the reasonableness of said fees and costs, the Court will then determine the appropriate amount to award. Otherwise, the fees and costs as submitted will be approved. ORDER of MARCH, 1998, after argument, Defendants' preliminary objection in the nature of a demurrer is DENIED. Defendants are directed to file an answer within twenty (20) days. It is further ordered that Plaintiff's request for sanctions is APPROVED. Plaintiff's counsel is directed to file a Petition for Approval of Counsel Fees and Costs, directed to the 6The Comment to Rule 1023 goes on to provide that the inclusion in the rule of provision for "an appropriate sanction" is designed to prevent the abuse of litigation. NO. 97-5476 CIVIL TERM attention of the undersigned, within ten (10) days of receipt of this order. Said petition shall include a detailed breakdown of time expended. Defendants' counsel may file objections to the reasonableness of said fees and costs within ten (10) days after receipt of Plaintiff's petition. The Court will then determine the appropriate amount to award. By the Court, Douglas R. Bare, Esquire For the Plaintiff Mark E. Halbruner, Esquire For the Defendants :sld /s/ Edward E. Guido Edward E. Guido, Judge