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HomeMy WebLinkAbout00-8876 civilJAMES A. KISE, Plaintiff VS. · PENNSYLVANIA OFFICE · SERVICES GROUP and LINDA ' TILL, ' Defendants ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8876 CIVIL CIVIL ACTION - LAW IN RE' DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., HESS AND OLER, JJ... ORDER AND NOW, this ~:' day of June, 2001, at docket number 00-8876 Civil, the preliminary objection of the defendants to the effect that the complaint of the plaintiff is barred by Pa.R.C.P. 1020 is GRANTED and the complaint of the plaintiff DISMISSED. B Y THE COURT, Kev~. Hess, J. Kenneth A. Wise, Esquire For the Plaintiff Glenn R. Davis, Esquire For the Defendants :rlm JAMES A. KISE, plaintiff VS. PENNSYLVANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-5210 CIVIL CIVIL ACTION - LAW JAMES A. KISE, Plaintiff VS. PENNSYLVANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8876 CIVIL CIVIL ACTION - LAW IN RE' PLAINTIFF'S MOTION TO AMEND COMPLAINT, AND DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT OPINION AND ORDER Pending before the court is a preliminary objection to the complaint filed to 00-8876 and a motion to amend the complaint filed to 99-5210. For reasons which will become apparent, we dispose of these motions together. On August 25, 1999, the plaintiff, James Kise (Kise), filed a complaint against Pennsylvania Office Services Group (POSG) and its president, Linda Till, which he subsequently amended on October 15, 1999. This action docketed to 99-5210, featured one count, premised on the Wage Payment and Collection Law ("WPCL"), 42 P.S. 260.1 et seq., seeking damages in the amount of $47,019.55. Inhis complaint, the plaintiff recites that he was employed by the 99-5210 CIVIL 00-8876 CIVIL defendant, POSG, an office furnishings and supply company, as a salesman. He worked on a commission basis and was employed by POSG from July 1998 until June 1999. Kise alleged that POSG failed to pay him commissions due for sales he had made during his employment with the company. The plaintiff filed a second action, docketed to 00-8876 Civil, on December 29, 2000. This complaint contained two counts; one for breach of contract and the other in quantum meruit. As with the single count in the first action, both counts of the second complaint sought damages in the amount of $47, 019.55. The defendants filed preliminary objections to the plaintiff's second complaint noting that it stemmed from the same transaction and occurrence as the complaint filed earlier. Oral argument on these preliminary objections was held on March 28, 2001. On April 23,2001, perhaps in acknowledgment that his second complaint was filed in error, the plaintiff filed a motion to amend his first complaint, seeking leave of court to add a second count for quantum memit. The defendants have objected to the proposed amendment arguing that it is too late for the plaintiff to add a second count and, given the availability of a statutory cause of action, the plaintiff is barred from the equitable remedy of quantum memit. Oral argument on the plaintiff' s motion to amend was held on May 23,2001. We first address the question of whether or not the plaintiff s second action is barred by Pennsylvania Rule of Civil Procedure 1020. That Rule provides, in pertinent part: (d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. 99-5210 CIVIL 00-8876 CIVIL (4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action. It is clear that both actions which have been filed by the plaintiff stem from the same transaction or occurrence; namely, the alleged nonpayment of outstanding commissions by the defendant to the plaintiff. Clearly, therefore, the plaintiff is barred from bringing a second action where he is required, by rule, to include all of the causes of action in his first complaint. The appropriate manner by which to introduce any additional causes of action is through amending the original complaint "either by filed consent of the adverse party or by leave of court." Pa.R.C.P. 1033. By allowing the two complaints to proceed independently' ... the same pretrial discovery would have taken place in both cases and the same witnesses, including the parties, would be required to appear at two separate trials. Two juries would have to be impaneled to hear virtually the same evidence and resolve many of the same legal questions. This kind of repetition is precisely what Rule 1020(d) was intended to avoid. Hineline v. Stroudsburg Electric Supply Co., Inc., 402 Pa. Super. 178, 187, 586 A.2d 455,459 (1991). Here, the same facts stand to be determinative of each cause of action whether it involves the application of the Wage Payment and Collection Law or the law of quantum memit. Thus, the plaintiff should not have brought a second and separate action and, accordingly, the complaint docketed to 00-8876 will be dismissed. The question then remains whether the plaintiff should be permitted to amend his first complaint to include a second count in quantum meruit. Pa.R.C.P. 1030 provides that, absent the 99-5210 CIVIL 00-8876 CIVIL filed consent of the adverse party, a party may amend a complaint only by leave of court. It is well established in Pennsylvania, however, that such amendments are liberally allowed. "As our Supreme Court once observed, 'hypertechnicality and formalism in pleading [are] contrary to the modem practice of allowing free amendment in order to promote resolution of cases on their merits.'" Biglan v. Biglan, 330 Pa. Super. 512, 521,479 A.2d 1021, 1026 (1984) citing West Penn Parkway Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 187, 346 A.2d 269, 278 (1975). Two questions are posed by any proposed amendment; first, whether the amendment would unfairly prejudice the rights of the opposing party and, second, whether the proposed amendment violates the law. Soxman v. Goodge, 372 Pa. Super. 343,539 A.2d 826 (1988). Here, the defendant has asserted that permitting the amendment violates the law of Agency and specifically the provisions of Section 455, Restatement (2nd) of Agency Law which, according to the defendant, provide that an agent who is terminated prior to the actual sale of personal property cannot recover an agreed upon commission. We note, however, the provisions of comment (d) to section 445 which states: Irrespective of the completeness of the terms given the broker, if he is to be paid when he finds a customer able, "ready and willing", [sic] he is entitled to his commission if he finds such a customer who enters into an oral agreement with the principal which he is willing to perform at the time fixed for the performance of the transaction, even though the agreement is not binding upon the principal .... Restatement (2nd) of Agency Law, Section 445 cmt. d (1958). According to the plaintiff, his quantum memit claim relates to wages based on commissions which were not received during his employment but result from his efforts expended prior to his termination. We see nothing in 99-5210 CIVIL 00-8876 CIVIL this contention which is inconsistent or in conflict with his claim premised on the Wage Payment and Collection Law. The defendant places emphasis on the holding of the Superior Court in Faden v. Vitry, 425 Pa. Super. 555,625 A.2d 1236 (1993). According to the defendant, it is "implicit in the [Faden court' s] holding that there is no need to plead an alternative theory of recovery sounding in quantum memit if there is an agreement as to form of compensation, e.g. cash, stock, or partnership." Defendant's Brief in Opposition to Plaintiff's Motion to Amend His Amended Complaint at 4, ~ 2. We read Faden., instead, as being supportive of the position advanced by the plaintiff in this case. In Faden, the plaintiff established that there existed an oral agreement between the parties that she would be paid $2,000.00 per month as general manager of a caf6. The trial court also found that, because there was no agreement as to any other form of compensation, the parties had intended the payment of cash wages. Because there was a contractual obligation to pay wages, the court found that the Wage Payment and Collection Law was applicable. Particularly germane to the matter sub judice is the following language of the Superior Court' Appellants cite the trial Court's conclusion that Faden was also entitled to payment under the doctrine of quantum memit as an indication that it rejected the contract claim under the WPCL. This contention is belied, however, by the explicit conclusion of law that Faden was entitled to wages under the WPCL for services. We accept the trial court's explanation in its opinion that the award on the basis of quantum meruit was intended as an alternate theory of recovery. (emphasis added) 99-5210 CIVIL 00-8876 CIVIL Id___:., at 1238. Contrary to the defendant's reading of the case, Faden does not force an election between quantum memit and recovery under the WPCL. In fact, it expressly acknowledges that both claims may be brought together. That is all the plaintiff is attempting to do in this case. In summary, the plaintiff, here, seeks to show that under the WPCL he is entitled to the payment of outstanding commissions. This requires him to show the existence of an agreement between himself and the defendants for compensation. If he is unable to make a successful showing of an express agreement, he wishes to argue in the alternative that equity permits him to recover. We know of no reason why such an alternative pleading should be disallowed. AND NOW, this ORDER day of June, 2001, at docket number 00-8876 Civil, the preliminary objection of the defendants to the effect that the complaint of the plaintiff is barred by Pa.R.C.P. 1020 is GRANTED and the complaint of the plaintiff DISMISSED. BY THE COURT, ess, J. 99-5210 CIVIL 00-8876 CIVIL Kenneth A. Wise, Esquire For the Plaintiff Glenn R. Davis, Esquire For the Defendants :rlm