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HomeMy WebLinkAbout00-4726 civilMEMBERS 1ST FEDERAL CREDIT UNION, Plaintiff VS. DENNIS 'E. SPICHER and RITA S. SPICHER, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · 00-4726 CIVIL CIVIL ACTION- LAW IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONE BEFORE BAYLEY AND HESS, J.J ORDER AND NOW, this 2. ~ day of April, 2001, the preliminary objections of the plaintiff to paragraphs 15 through 37 of the defendants' answer with new matter are SUSTAINED. In lieu of striking said paragraphs, it is ordered and directed that the claim of the defense be SEVERED with leave to proceed as a separate action. BY THE COURT, Karl M. Ledebohm, Esquire For the Plaintiff Dennis E. Spicher, Pro Se Rita S. Spicher Defendants KJA. Hess, J. :rim MEMBERS 1sT FEDERAL CREDIT UNION, Plaintiff VS. DENNIS E. SPICHER and RITA S. SPICHER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-4726 CIVIL CIVIL ACTION- LAW IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS BEFORE BAYLEY AND HESS, J.J OPINION AND ORDER On or about August 25, 1997, Dennis Spicher and his wife, the defendants, borrowed from and agreed to repay to Members 1 st, the plaintiff, the sum of $183,750. As security for the loan, the defendants executed and delivered to Members 1 st a mortgage on the tract of land with improvements located at 1112 East Lisbum Road, Mechanicsburg, Pennsylvania. The note accompanied the mortgage called for payments to the plaintiff in the amount of $1,300.58, beginning on October 1, 1997, and ending in September 2027. The complaint in this case alleges that the defendants have failed to make the required payments. In accordance with the Homeowners' Emergency Mortgage Assistance Act, 35 P.S. 1680.401 c et seq., the plaintiff forwarded Notices of Intent to Foreclose and Defendants' Rights under said Act to defendants on March 28, 2000. The plaintiff also forwarded to the defendants the notice required under 41 P.S. 403, otherwise known as the Act 6 Notice on March 28, 2000. Pending before the court are the preliminary objections of the plaintiff to paragraphs 15 through 37 of the defendants' answer and new matter. The allegations in these paragraphs relate to an alleged breach of an oral employment contract with the plaintiff and defendants allege, 00-4726 CIVIL among other things, detrimental reliance upon the oral employment contract. The preliminary objections seek to have these claims stricken. We agree with the plaintiff that the claims in the defendants' new matter are not properly brought as a response to a mortgage foreclosure action. Counterclaims in mortgage foreclosure, such as the instant matter, are governed by Rule 1148 of the Pennsylvania Rules of Civil Procedure. Chrysler 1st Business Credit Corp. v. Goumiak, 411 Pa. Super. 259, 264, 601 A.2d 338, 341 (1992). The only permissible counterclaims are those arising from the same transaction from which the plaintiff's cause of action arose. Cunningham v. McWilliams, 714 A.2d 1040, 1054 (Pa. Super. 1998), a_ppealed denied, 557 Pa. 653,734 A.2d 861 (1999), citing Pa.R.C.P. 1148. Furthermore, Rule 1148 must be interpreted narrowly. Goumiak, 411 Pa. Super. at 264-65, 601 A.2d at 341. As the courts of Pennsylvania have applied this Rule, the only counterclaims permitted are those that are part of or incident to the creation of the mortgage relationship itself. Id_~. The defendant in Cunningham, su~, purchased a parcel of land and executed and delivered to the seller a mortgage secured by real estate. The seller foreclosed and the defendant filed an answer with new matter alleging fraud in the inducement to enter into the contract for sale of the property with seller. ~Cunningham, 714 A.2d at 1055-56. The Superior Court in Cunningham_, in upholding the plaintiff' s motion for summary judgment, stated' In the present case, appellants' counterclaim arises from alleged fraudulent misrepresentations which they contend induced them to enter into a contract for purchase of real property. This is precisely the type of counterclaim that is not cognizable under Rule 1148. Id.__:. (citations omitted). 00-4726 CIVIL The matter sub judice is similar to Cunningham_. The defendants' allegations set forth in paragraphs 15 through 37 of the defendants' answer with new matter are not part of, or incident to, the creation of the mortgage which is the subject of the instant foreclosure action. Rather, · they relate to an alleged oral employment contract between the defendants and the plaintiff. Like Cunningham, these counterclaims asserted by the defendant are "precisely the type of counterclaims that are not cognizable under Rule 1148. In sustaining the plaintiff's preliminary objections, a question arises concerning the suitable disposition of the claims stated in the defendants' new matter. Rule 213 of the Pennsylvania Rules of Civil Procedure provides the trial court with the discretion to sever counterclaims. Overly v. Kass, 382 Pa. Super. 108, 115, 554 A.2d 970, 974 (1989). Rule 213 states in pertinent part: (b) The court, in furtherance of convenience or to avoid prejudice, may, on its own motion, or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues. 42 Pa. Cons. Stat. Ann. Pa.R.C.P. Rule 213(b). In Kas____~s, the trial court concluded that the allegations set forth by the defendants in their counterclaim were not part of, or incident to, the creation of the mortgage itself, and granted summary judgment for the plaintiffs. Furthermore, the trial court ordered that the defendants' counterclaim be severed and that it proceed as an action in assumpsit. Kass, 382 Pa. Super. at 116, 554 A.2d at 974. The Superior Court affirmed the summary judgment decision and stated that it was not an abuse of discretion for the trial court to sever the counterclaim. Id. 00-4726 CIVIL ORDER AND NOW, this day of April, 2001, the preliminary objections of the plaintiff to paragraphs 15 through 37 of the defendants' answer with new matter are SUSTAINED. In lieu of striking said paragraphs, it is ordered and directed that the claim of the defense be SEVERED with leave to proceed as a separate action. B Y THE COURT, Karl M. Ledebohm, Esquire For the Plaintiff Dennis E. Spicher, Pro Se Rita S. Spicher Defendants :rlm Ke~.~. Hess, J.