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HomeMy WebLinkAbout98-4334 civilHURD P. ANSTADT go CAPITAL TREE & NURSERY, INC. AND JERRY SHAEFFER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · : 'NO. 98-4334 CIVIL TERM .. : IN RE- DEFENDANTS' PRELIMINARY OBJECTIONS - TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., HESS, GUIDO, JJ. ORDER OF COURT AND NOW, this day of FEBRUARY, 2001, defendants' preliminary objections are SUSTAINED. Plaintiff is given twenty (20) days to file an amended complaint. By the Edward E. Guido, J. Hurd P. Anstadt 2315 Page Street Camp Hill, Pa. 17011 Raymond A. Swan, Esquire 401 Penn Street, Suite 100 Reading, Pa. 19601 :sld HURD P. ANSTADT Vo CAPITAL TREE & NURSERY, INC. AND JERRY SHAEFFER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · ' NO. 98-4334 CIVIL TERM · CIVIL ACTION- LAW · IN RE' DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., HESS, GUIDO, JJ. OPINION AND ORDER OF COURT The instant case was commenced in this Court on July 28, 1998, when defendant filed an appeal from a judgment entered by a district justice. Plaintiff, proceeding pro se, filed his first complaint on September 8, 1998. Not until March of 1999 did defendants file their first set of preliminary objections. Plaintiff has since filed txvo amended complaints which have each been met with preliminary objections. For the reasons hereinafter set forth, we are forced to, yet again, sustain the preliminary objections. DISCUSSION In each set of preliminary objections, the defendant has asked that the complaint be stricken for failing to comply with the Pa. Rules of Civil Procedure. The most current set of preliminary objections also attacks plaintiff' s standing to bring the current action. It is clear that plaintiff' s complaint fails to comply with the Pennsylvania Rules of Civil Procedure in several significant, albeit technical, respects. It is equally clear that the underlying claim is not complicated. To the contrary, it is quite simple and straightforward. Plaintiff claims that defendants cut trees from his property without 98-4334 CIVIL TERM authority to do so.~ After two amendments, the complaint is now in a form that can easily be answered by defendants, if they wished to do so. However, rather than defend the action on the merits, defendants have chosen to exploit the pro se plaintiff's ignorance of the technical intricacies involved in the legal process. Perhaps they hope that he will eventually tire, and a hearing on the merits need never be had. However, after almost three years at the complaint and preliminary objection stage, we are quite convinced the plaintiff has no intention of abandoning his claim. In : order to avoid another three years, or more, dealing with preliminary objections, we feel it necessary to discuss the technical defects in detail so that plaintiff may take steps to cure them. Defendant has attacked the complaint because of its failure to comply with Pa. Rules of Civil Procedure 1018, (caption), 1021 (claim for relief/amount in controversy), 1022 (paragraphing) and 1023 (signing). Having reviewed the complaint, we are satisfied that it sufficiently complies with those rules.2 Defendant also attacks the complaint for failing to comply with Pa. Rules of Civil Procedure 1018.1 (notice to defend), 1019 (specificity), and 1024 (verification). We will address each of those violations separately. ~ It appears that the property was actually owned by the plaintiff' s father, Jay R. Anstadt, who now lives in Vermont. Plaintiff is bringing this suit on his behalf pursuant to a power of attorney which has been filed of record. Therefore, the appropriate caption should be "Hurd P. Anstadt, attorney in fact for Jay R. Anstadt, plaintiff v. Capitol Tree Nursery,' Inc. and Jerry Sheaffer." 2 If the property is, in fact, owned by plaintiff's father, the caption should be amended as indicated in the previous foomote. 98-4334 CIVIL TERM Notice to Defend. Pa. R.C.P. 1018.1 (a) makes it mandatory that every complaint contain a notice to defend in the form prescribed by Rule 1018.1 (b). What possible need the defendants have for a notice to defend escapes us. Their attorney commenced this action by filing an appeal from a district justice award in favor of plaintiff. He issued a role upon plaintiff to file a complaint. To insist that the complaint be stricken for failure to attach a notice to defend places a great deal of reliance on form to the detriment of substance. In any event, the roles do require that a notice to defend be attached to the complaint. Otherwise, no answer need be filed. (Pa. R.C.P. 1026(a)). Therefore, we suggest that plaintiff comply with Rule 1018.1 by attaching a notice to defend to his next amended complaint. Specificity. Plaintiff has made great strides in conforming his complaint to the dictates of Pa. R.C.P. 1019. In fact, the current complaint comes very close to surviving the preliminary objection based upon lack of specificity. Separate paragraphs setting forth the name of the property owner, the existence of the power of attorney and the approximate dates upon which the alleged tree cutting took place will be sufficient to cure any remaining objections.3 Verification. Pa. R.C.P. 1024 requires that every pleading containing an averment of fact must be verified. The complaint obviously contains averments of fact and is not verified. A 3 The "standing to sue" objection will also be resolved by those additions. 98-4334 CIVIL TERM verification should be attached to the next amended complaint. ORDER OF COURT AND NOW, this 6TM day of FEBRUARY, 2001, defendants' preliminary objections are SUSTAINED. Plaintiff is given twenty (20) days to file an amended complaint. By the Court, /s/Edward E. Guido Edward E. Guido, J. Hurd P. Anstadt 2315 Page Street Camp Hill, Pa. 17011 Raymond A. Swan, Esquire 401 Penn Street, Suite 100 Reading, Pa. 19601 :sld