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HomeMy WebLinkAbout99-7589 civilDENIS J. PETCOVIC and MARJORIE L. PETCOVIC, Plaintiffs VS. LARRY A. MEYERS and URSULA M. MEYERS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-7589 CIVIL CIVIL ACTION- LAW IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO THE COMPLAINT BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this day of April, 2001, the preliminary objection of the defendants citing a violation of Pa. R.C.P. 1019(h) is SUSTAINED and the plaintiffs are herewith given thirty (30) days within which to file an amended complaint. The preliminary objection of the defendants on a count of an alleged violation of Pa.R.C.P. 1033 is DENIED. BY THE COURT, Denis J. Petcovic Marjorie L. Petcovic Pro Se Plaintiffs A~. He~s, J. Norman Yoffe, Esquire For the Defendants :rlm DENI'S J. PETCOVIC and MARJORIE L. PETCOVIC, Plaintiffs VS. LARRY A. MEYERS and URSULA M. MEYERS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-7589 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO THE COMPI.AINT BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER In this case, the plaintiffs, Denis J. and Marjori L. Petcovic, had entered into a three-year lease with the defendants, Larry A. and Ursula M. Meyers, for property located at 288 Fairview Street, Carlisle, PA. The plaintiffs had given the defendants a security deposit of $975.00. The plaintiffs vacated the property in July of 1999. The defendants retumed $544.71 of that deposit. Thereafter, the Petcovics filed a district justice action against the Meyerses alleging that the latter had failed to timely return their, security deposit. Judgment was entered in favor of the plaintiffs and the defendants thereafter appealed. Following the filing of a complaint in the Court of Common Pleas, the plaintiffs sent the defendants a ten-day notice of default pursuant to Pa.R.C.P. 237.1. On March 2, 2000, the defendants filed a preliminary objection to the ten-day notice on the basis that the complaint failed to contain a notice to defend. On April 5, 2000, the plaintiffs filed an amended complaint. On April 25, 2000, the defendants filed preliminary objections to the first amended complaint claiming a violation of Pa.R.C.P. 1910(h) and Pa.R.C.P. 1033. Rather than seeking the disposition of these preliminary objections, the plaintiffs, on July 27, 2000, filed a motion to 99-7589 CIVIL have "final judgment" entered in their favor. This has necessitated two separate arguments in this case with resultant delay. On December 27, 2000, we dismissed the plaintiffs' motion for "entry of final judgment." The preliminary objections of the defendants to the first amended complaint were thereafter listed for argument and are now ready for disposition. The first objection of the defendants is brought pursuant to Pa.R.C.P. 1910(h) which requires that a pleader state whether the claim is based upon a writing. If the claim is based upon a writing, the pleader must attach a copy of the writing to the complaint. The defendants are correct that the plaintiffs failed to state in the first amended complaint whether the claim was based upon a writing nor did the plaintiffs attach any writing to the complaint. We decline, however, to dismiss their complaint on that basis. Where it is apparent that a pleading can be cured by amendment, the lower court should give the pleader an opportunity to file an amended complaint. See Del Turco v. Peoples' Home Say. Ass'n., 329 Pa. Super. 258, 478 A.2d 456 (1984). In any amended complaint, it will be incumbent upon the plaintiffs to state whether their claim is based upon a writing and, if it is based on a writing, to attach it. The defendants' second preliminary objection charges that the plaintiffs violated Pa.R.C.P. 1033 in filing their first amended complaint. That Rule provides that the amendment of a complaint may be accomplished only by agreement of parties or by leave of court. In this case, neither occurred. We will, nonetheless, allow amendment. It is long been the rule that amendments should liberally be allowed in an effort to secure the determination of cases based upon their merits rather than upon mere technicality. Horowitz v. Universal Underwriters' Ins., 397 Pa. Super. 473,580 A.2d 395 (1990). 99-7589 CIVIL The defendants acknowledge the provisions of Pa.R.C.P. 1028(c)(1) which allow the amendment of a complaint as of course when preliminary objections are filed. The first amended complaint in this case was filed in response to preliminary objections. The defendants argue that Rule 1028 is "not available...since their Amended Complaint was filed more than twenty days subsequent to the Meyers' Preliminary Objection to the original Complaint." We do not agree. It is clear that the first amended complaint was filed in response to preliminary objections and, therefore, comes under the ambit of Rule 1028(c)(1). The question then becomes whether or not the plaintiffs are prevented from claiming the benefit of this Rule where they violate its twenty-day provision,l In this case, we will disregard the tardiness of the filing. Instead, we invoke Pa.R.C.P. 126. That Rule reads: The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Here, there is no prejudice to the defendants in permitting the amendment nor can it be said that any substantial rights of the parties would be thereby affected. AND NOW, this ORDER day of April, 2001, the preliminary objection of the .,, ~ Here the preliminary objections were filed on March 2nd and the amended complaint filed on April 5th, more than thirty days after the filing of the preliminary objections. 99-7589 CIVIL defendants citing a violation of Pa.R.C.P. 1019(h) is SUSTAINED and the plaintiffs are herewith given thirty (30) days within which to file an amended complaint. The preliminary objection of the defendants on a count of an alleged violation of Pa.R.C.P. 1033 is DENIED. BY THE COURT, Denis J. Petcovic Marjorie L. Petcovic Pro Se Plaintiffs Norman Yoffe, Esquire For the Defendants 'rlm