The URL can be used to link to this page

Home My WebLink About98-6556 civilEUGENE ROSELLI, Plaintiff VS. GLACE BUSER and C.G. BUSER & SON, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-6556 CIVIL CIVIL ACTION- LAW JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS AND OLER, J.J. ORDER AND NOW, this /5'" day of April, 1999, it is ordered and directed that' 1. The request of the defendant for a more specific pleading with respect to the identity of contaminants is DENIED. 2. The objection of the defendant for failure of the pleading to conform to a role of court requiring inclusion of a writing upon which the action is based is SUSTAINED. The plaintiff is granted leave to amend his complaint. 3. The preliminary objection of the defendant asserting a violation of Pa.R.C.P. 1021 (c) is SUSTAINED. The plaintiff is granted leave to amend his complaint to state whether or not his claim exceeds the jurisdictional amount requiring arbitration by local role. 4. The preliminary objection of the defendant asserting a violation of Pa.R.C.P. 1021 (b) is DENIED. BY THE COURT, · Hess, J. Samuel L. Andes, Esquire For the Plaintiff Steven E. Grubb, Esquire For the Defendants :rlm EUGENE ROSELLI, Plaintiff VS. GLACE BUSER and C.G. BUSER & SON, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-6556 CIVIL CIVIL ACTION- LAW JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS AND OLER, J.J. OPINION AND ORDER According to the complaint filed in this case, the plaintiff, Eugene Roselli, is the owner of a property located at 306 Chestnut Street in Harrisburg, PA. The defendant, Glace Buser, the operator of C.G. Buser and Son, Inc., a jewelry repair store, leased the second floor of the plaintiff' s property from June of 1982 to June of 1997. After the defendant vacated the premises and terminated the lease, the plaintiff discovered that the property was extensively contaminated with heavy metals. Subsequently, the plaintiff initiated this action on November 18, 1998 to recover cleanup costs. The defendant has filed preliminary objections to the plaintiff' s complaint alleging four deficiencies. First, the defendant alleges that the plaintiff's complaint does not conform to Pa.R.C.P. 1019(a), which requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Generally, "[a]llegations will withstand challenge under Section 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, ... and (2) they are 'sufficiently specific so as to enable defendant to prepare his defense.'" Smith v. Wagner, 403 Pa. Super. 316, 319, 588 A.2d 98-6556 CIVIL 1308, 1310 (1991) (citing Goodrich-Amram, Procedural Rules Service Section 1019(a)-2 and Commonwealth Environmental Pollution Strike Force v. Jeanette, 9 Pa. Commonwealth Ct. 306, 308,305 A.2d 774, 776 (1973)). Additionally, "the motion for specificity cannot be used to make a party plead purely evidentiary matters; and the requirements of precision and detail are more easily met where the matters involved are equally or more in the knowledge of the objecting party." Local No. 163 v. Watkins, 417 Pa. 120, 122-23,207 A.2d 776, 778 (1965). In this case, the defendant seeks a direction to the plaintiff to amend his complaint to list, by name, the heavy metals and contaminants of which the plaintiff complains. We fail to see the defendant's analogy with Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Instead, we are satisfied that a listing of the various contaminants is in the nature of evidence and can properly be gained through discovery.~ Secondly, the defendant alleges that the plaintiff' s complaint fails to conform to Pa.R.C.P. 1019(h), which provides that "[a] pleadi~lg shall state specifically whether any claim or defense set forth therein is based upon a writing. If so, the pleader shall attach a copy of the writing ..." The plaintiff claims that it is reasonable to assume that the defendants have a copy of the lease, and that they have been provided a copy of the lease prior to the filing of the complaint. ~In his brief, counsel for the plaintiff indicates that this information has already been provided. This representation is uncontroverted by the defendant. While factual statements in briefs are not part of the record of the case, we find it difficult to ignore counsel's statement that he has already provided information where the defendant claims to be prejudiced by the lack of it. In the meantime, and in any event, we do not believe that the defendant' s ability to defend this case has been prejudiced. 98-6556 CIVIL The Superior Court has stated that "[t]he fact that appellee furnished appellant with a copy of the written lease in the interim between the filing of the petition to strike and/or open and the hearing on the merits of the petition did not cure appellee's failure to attach a copy to the complaint as required by Pa.R.C.P. 1019(h)." Delgrosso v. Gruerio, 255 Pa. Super. 560, 389 A.2d 119 n.5 (1978). The lease, which created the legal obligations between the parties, must be attached to the complaint to conform to Pa.R.C.P. 1019(h). See Foster v. Peat Marwick Main & Co., 138 Pa. Cmwlth. 147, 156, 587 A.2d 382, 387 (1991). Third, the defendant objects to the plaintiff' s complaint because it fails to state whether or not this action exceeds the jurisdictional amount requiring arbitration by local rule. Pa.R.C.P. 1021 (c) provides: In counties having roles governing compulsory arbitration the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration referral by local role. , Pa.R.C.P. 1021 (c) Cumberland County Rule of Procedure 1301-1 provides' All civil cases which are at issue in which the total amount in controversy is Twenty-five Thousand Dollars ($25,000) or less, exclusive of interest and costs, except those cases involving the title to real estate, shall be submitted for hearing and award to three members of the Bar of Cumberland County to be designated a Board of Arbitrators. C.C.R.P. 1301-1. The plaintiff argues that he cannot determine at this time whether he will incur any more actual damages, and thus cannot state whether the amount of the damages do or do not exceed 98-6556 CIVIL $25,000. However, Rule 1021 (c) is clear that the plaintiff "shall state whether the amount claimed" must be submitted to a Board of Arbitrators. The plaintiff' s complaint does not do this, and thus is not in conformity with Pa.R.C.P. 1021 (c).2 Fourth, the defendant alleges that the plaintiff' s complaint does not conform to Pa.R.C.P. 1021 (b), which provides that "[a]ny pleading demanding relief for unliquidated damages shall not claim any specific sum." Paragraph 12 of the plaintiff's complaint does, indeed, request $11,785.00 in damages. Judgment, however, is requested in that amount plus lost rent after October 31, 1998, interest from and after July 1, 1997, and the costs of suit. To the extent that this is a claim for liquidated damages, the plaintiff has properly stated a dollar amount. No specific sum has been stated with respect to a claim for unliquidated damages in this case. Thus, we are satisfied that Pa.R.C.P. 1020(b) has not been violated. ORDER AND NOW, this t day of April, 1999, it is ordered and directed that' 1. The request of the defendant for a more specific pleading with respect to the identity of contaminants is DENIED. 2In a case where there is a real possibility that damages will exceed $25,000, it can, for that reason, be represented that the amount in controversy exceeds the amount requiring arbitration referral. 98-6556 CIVIL 2. The objection of the defendant for failure of the pleading to conform to a role of court requiring inclusion of a writing upon which the action is based is SUSTAINED. The plaintiff is granted leave to amend his complaint. 3. The preliminary objection of the defendant asserting a violation of Pa.R.C.P. 1021 (c) is SUSTAINED. The plaintiff is granted leave to amend his complaint to state whether or not his claim exceeds the jurisdictional amount requiring arbitration by local role. 4. The preliminary objection of the defendant asserting a violation of Pa.R.C.P. 1021 (b) is DENIED. B Y THE COURT, Samuel L. Andes, Esquire For the Plaintiff Steven E. Grubb, Esquire For the Defendants :rlm