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HomeMy WebLinkAbout2006-4691 Civil DAVID NEUMAN, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA V. : : AFC WASHCO-CARLISLE : No.: 06-4691 CROSSING, LP, WASHCO-CARLISLE : Civil Action - Law CROSSING, LLC, AFC CARLISE, LLC, : AFC CARLISLE LIMITED PARTNER, LP.: Defendant : JURY TRIAL DEMANDED IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, J., OLER, J., AND EBERT, J. ORDER OF COURT AND NOW , this 25th day of February, 2008, upon consideration of the Preliminary Objections by AFC Wascho-Carlisle Crossing, LP, et. al. and Plaintiff’s Response thereto, IT IS HEREBY ORDERED AND DIRECTED 1. Defendants’ preliminary objection as to Plaintiff’s failure to state the nature of the SUSTAINED agreement and attach any relied upon written agreement is . Plaintiff is given 20 days to amend the Complaint and Defendants are given a period of 20 days from the date they are served with an Amended Complaint to plead thereto. 2. Defendants’ preliminary objection as to Plaintiff’s failure to provide a pleading in SUSTAINED conformity to law or rule of court is . Plaintiff is given 20 days to amend the Complaint and Defendants are given a period of 20 days from the date they are served with an Amended Complaint to plead thereto. 3. Defendants’ preliminary objection as to Plaintiff’s failure to plead with specificity OVERRULED. is 4. Defendants’ preliminary objections in the nature of demurrer to Counts V – XVI OVERRULED are . 5. Defendants’ preliminary objections to Counts III, IV, VII, XI, XII, XV, XVI OVERRULED regarding Plaintiff’s adequate remedy at law are . IT IS HEREBY FURTHER ORDERED AND DIRECTED that Defendants follow Pa. R.Civ. P. 1026 in their future filings. By the Court, M. L. Ebert, Jr., J. James S. Tupitza, Esquire Tupitza & Bryman, PC 212 West Gay Street West Chester, PA 19380 Attorney for Plaintiff Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Defendants DAVID NEUMAN, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA V. : : AFC WASHCO-CARLISLE : No.: 06-4691 CROSSING, LP, WASHCO-CARLISLE : Civil Action – Law CROSSING, LLC, AFC CARLISE, LLC, : AFC CARLISLE LIMITED PARTNER, LP.: Defendant : JURY TRIAL DEMANDED IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, J., OLER, J., AND EBERT, J. ORDER and OPINION OF COURT EBERT, J., February 25, 2008 – Defendants request that this Court sustain their Preliminary Objections to Plaintiff’s Amended Complaint and dismiss the complaint with prejudice. After considering the pleadings, we overrule Defendants’ objections in part and sustain them in part. We further find that Plaintiff is permitted to amend his Complaint. FACTS and BRIEF PROCEDURAL HISTORY Defendants’ preliminary objections in this case arise out of an action commenced by Plaintiff over breach of contract and alleged ownership interest of Plaintiff in a shopping center, 1 Carlisle Crossing. Plaintiff contends that in order to retain Plaintiff for the Carlisle Crossing and future projects, as well as utilizing his commercial real estate development services, 1 Plaintiff’s Brief in Opposition of Preliminary Objections 1 (Hereinafter, “ Pl.’s Br. at __”); see also Defendants brief in Support of Preliminary Objections 3 (Hereinafter, “Defs.’ Br. at __”). Defendants had provided Plaintiff with a 25% ownership interest in the entity that owned the 2 shopping center. The procedural history pertinent to this action starts with Plaintiff’s Complaint, filed on 3 August 15, 2006. Nearly one month later, on September 21, 2006, Defendants filed their Preliminary Objections to the Complaint but later agreed to allow Plaintiff leave to amend his 4 Complaint. On March 23, 2007, Plaintiff wrote to Defendants advising them that the Amended 5 Complaint had been filed. The Amended Complaint was time stamped on March 26, 2007, and 6 upon Plaintiff’s receipt of same, forwarded to Defendants on April 4, 2007. Defendants filed 7 their Preliminary Objections to the Amended Complaint on May 1, 2007. In the interim, on January 16, 2007, Plaintiff had served interrogatories upon Defendants, who in turn advised Plaintiff, on January 16, 2007, that “all discovery is stayed pending the adjudication of the 8 preliminary objections.” DISCUSSION I. General Law A. Timely Filing of Preliminary Objections At the outset, it is imperative to note Defendants’ lax approach to filing of their objections. On two occasions, once after the filing of Plaintiff’s original Complaint and again after the filing of Plaintiff’s Amended Complaint, Defendants have filed their Preliminary Objections more than 20 days after the filings. Pennsylvania follows Pa. R.Civ. P. 1026, which supplies a 20-day rule governing filing of pleadings subsequent to the Complaint and service of 2 Defs.’ Br. at 3. 3 Pl.’s Br. at 3, See also, Defs.’ Br. at 1. 4 Pl.’s Br. at 4, See also, Defs.’ Br. at 1. 5 Pl.’s Br. at 4. 6 Pl.’s Br. at 4, See also, Defs.’ Br. at 2. 7 Defs.’ Br. at 2. 8 Pl.’s Br. at 4. 2 same. As such, this Court would be supported by precedent in overruling Defendants’ Preliminary Objections in totem. See Geis, Parent and Natural Guardian of Michael Geis v. Brown, Administratrix of the Estate of James Borland, Deceased, 1982 WL 290376, 8 Phila. Co. Rptr. 631, 633-34 (Pa. Com. Pl., 1982). However, the rule is permissive rather than mandatory, and it is left to sound discretion of trial court to permit late filing of a pleading where the opposing party would not be prejudiced and justice so requires. Gale v. Mercy Catholic Medical Center Eastwick, Inc., Fitzgerald Mercy Div. 698 A.2d 647 (Pa.Super. 1997). Since it is our view that the late filing did not prejudice the opposing party, we will proceed with the examination of Defendants Preliminary Objections. B. Review of the Pleadings and Leave to Amend When considering the appropriateness of a ruling on preliminary objections, the court must accept as true all well-pled material facts set forth in the complaint along with all reasonably deducible inferences from those facts. Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999), citing Turner v. Medical Center, Beaver, PA, Inc., 454 Pa.Super. 645, 686 A.2d 830 (1996). Such an inquiry assesses the legal sufficiency of the complaint. Preliminary objections will be sustained only if a court can confidently say that, upon the facts averred, the law will not permit recovery. Id. citing Smith v. McDougall, 365 Pa.Super. 157, 529 A.2d 20 (1987). Failure of the trial court to consider the sufficiency of the complaint before sustaining preliminary objections and dismissing the case without leave to amend is an abuse of discretion. Id. Though there is no duty on the court to allow amendment if the objections are sustained, Philadelphia Factors, Inc. v. Working Data Group, Inc., 849 A.2d 1261, 1264 (Pa. Super., 2004), if such amendments will cure the defects in the complaint, the court has a positive duty to allow the plaintiff to amend his pleading. Jones v. City of Philadelphia, 893 A.2d 837, 846 3 (Pa. Cmwlth., 2006). Moreover, courts will deny preliminary objections and allow amendment where a complaint is not inherently unsound but only incomplete. Maddux v. Com., Dept. of Agriculture, Bureau of Animal Industry, 386 A.2d 620, 622, 35 Pa. Cmwlth. 386, 389 (Pa. Cmwlth., 1978). II. Applicable Law and Analysis A. Pa. R.Civ. P. 1019(h) and 1019(i). Defendants request dismissal of Plaintiff’s Complaint due to Plaintiff’s failure to comply with Pa. R.Civ. P. 1019. Pa. R.Civ. P. 1019 provides: (h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. (i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. Pa. R.Civ. P. 1019(h-i). Plaintiff does not deny that he failed to comply with requirements of Rule 1019(h) but contends that through discovery and deposition he will prove that he was indeed a partner in the Carlisle Crossings project. While discovery and depositions may in fact prove these facts, it cannot be discounted that Plaintiff has simply failed to indicate from what contract his action arises. If the agreement was oral, Plaintiff should have asserted such; if the agreement was written, Plaintiff should have access to this document as he signed the contract and should have attached the same to his amended complaint. As to his failure to comply with section 1019(i) Plaintiff has attempted to remedy this oversight by attaching to his Motion in Opposition a Memo of Understanding detailing the terms of the oral agreement between the parties in regards to Carlisle Crossing . This Memo confirmed the parties’ existing relationship for Carlisle Crossing as well as the prospect of future dealings. 4 While Pennsylvania courts have previously dismissed actions for failure to attach a document upon which the party is relying, Cooke v. Equitable Life Assur. Soc. Of U.S., 723 A.2d 723, 727 (Pa. Super. 1999), the omitted documents may be supplied by amendment. Goldman v Schlanger 49 D & C2d 225, 230-31 (1970); see also above discussion regarding Pennsylvania’s approach to leave to amend. We are not prepared to dismiss Plaintiff’s entire Complaint based on an oversight by the Plaintiff in not attaching the relevant portions of the written contract nor for his failure to refer to an oral agreement between the parties. Though we acknowledge that Plaintiff’s Memo is insufficient to remedy Plaintiff’s error in not attaching the required documents, we will permit amendment of the Complaint. Accordingly, Defendants objection is sustained and Plaintiff shall have leave to file an amended complaint or, in the alternative, an amendment to the complaint properly attaching the correct documents. B. Pa. R.Civ. P. 1028(a)(2) and 1020(a). Defendants also ask this Court to dismiss the Complaint in its entirety due to Plaintiff’s failure to conform to the requirements of Pa. R.Civ. P. 1028(a)(2), which provides that preliminary objections may be filed by any party to any pleading for failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. Defendants specifically allege that Plaintiff did not breakdown the causes of action seeking dissolution and accounting (found in count XVI of the Amended Complaint) into different counts as required by Pa. R.Civ. P. 1020(a): “[e]ach cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.” As has just been shown, the Pennsylvania Rules of Civil Procedure allow a plaintiff to plead more than one cause of action within one complaint. Pa. R.Civ. P. 1020(a); see also Com. v. Parisi, 873 A.2d 3, 9 (Pa. Cmwlth. 2005). Plaintiff must, however, plead all separate causes 5 of action in separate paragraphs within the complaint. Id. Each of these separate claims must include averments of facts pertaining to particular claims and relief sought. Id. See also Com. v. Parisi, 873 A.2d 3, 9 (Pa. Cmwlth. 2005). Courts have sustained preliminary objections on grounds of commingled counts where plaintiffs failed to state a cause of action, special damage, and demand for relief in separate counts properly headed. Bartleson v. Glen Alden Coal Co., 61 Pa. D. & C. 578, 579-80, 39 Luz. L. Reg. R. 379 (Luzerne County Ct. Ct. Pl. 1948). These courts, however, afforded plaintiffs leave to amend their complaints in order to correct these oversights. See, Coronado Condominium Ass’n, Inc. v. Iron Stone Coronado, L.P. 2005 WL 3036541 (Pa. Com. Pl. 2005) (plaintiff plead misrepresentation and fraud in the same count; Defendant’s objection sustained with 20 days to amend); see also Acme Markets, Inc. v. Dunkirk Ice Cream Co., 2000 WL 33711046 (Pa. Com. Pl., 2000) (Plaintiff put civil conspiracy and fraudulent misrepresentation claims in the same count; defendant’s objection sustained with 20 days to amend). In his response to Defendants’ objection, Plaintiff opines that from Defendants’ perspective there is no issue as to what claims are being alleged in the suspect counts. However, this is not the appropriate and required standard. As explained above, courts frown upon commingled claims and will sustain objections to such claims with leave for plaintiff’s to amend their pleadings. Plaintiff here claims that Defendants’ objection to his failure to set out cause of action for dissolution and cause of action for accounting in separate counts is just “another example of Defendants’ efforts to thwart the litigation process by interjecting non-injurious 9 procedural issues.” This claim is unfounded and presents no basis for this Court to overrule Defendants’ objection. Plaintiff has twenty (20) days within which to file an amended pleading with separate causes of action for dissolution and accounting. 9 Pl.’s Br. at 9. 6 C. Pa. R.Civ. P. 1028(a)(3). Defendants next propose to dismiss Plaintiff’s entire Complaint due to Plaintiff’s failure to conform to Pa. R.Civ. P. 1028(a)(3), (allowing for a preliminary objection based on insufficient specificity in the pleadings), in paragraph 7 of his Amended Complaint. The key question raised by §1028(a)(3) is, “whether the complaint is sufficiently clear to enable the defendant to prepare his defense,” or, “whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” McNeil v. Jordan, 814 A.2d 264, 237-38 (Pa. Super. 2002). This case is currently only in the pleading stages and, though Plaintiff has made a request for production of documents upon Defendants, no discovery has yet occurred. As Plaintiff has correctly pointed out, “it is not the function of the complaint to be an all-inclusive narrative of events underlying the claim, but must only plead the facts necessary for plaintiff to sustain a recovery which at the same time enables defendant to defend.” General State Auth. V. Lawrie & Green, 356 A.2d 851, 854, 24 Pa. Cmwlth. 407, 412 (Pa. Cmwlth., 1976); see also Pl.’s Br. at 11. Discovery is the process used in order to develop facts further and, as such, it is not necessary to plead all evidence in the complaint. Local No. 163, International Union U.B.F.C.S.D. & D. W. v. Watkins, 207 A.2d 776, 778, 417 Pa. 120, 122-23 (1965). Furthermore, a motion for specificity cannot be used to force a plaintiff to plead evidentiary matters. Id. Notably, requirements of precision and detail are more easily met where the matters involved are equally or more in the knowledge of the objecting party. Id. 207 A.2d at 778, 417 Pa. at 123. 7 Defendants’ clearly conflicting rationale is damaging to their position. Defendants state that, “[w]ithout the benefit of a more specific pleading, Defendants are unable to prepare their defense against this claim because Plaintiff’s Amended Complaint does not sufficiently specify 10 the nature of Plaintiff’s purported ownership interest in Carlisle Crossing.” Yet, just five pages prior, Defendants prepared a thorough attack on Plaintiff’s “purported ownership interest,” 11 acknowledging Plaintiff’s claim of 25% ownership in Carlisle Crossingand outlined why 12 Plaintiff does not in fact have this ownership right. Given Defendants acknowledgment of, and adamant attack on, Plaintiff’s ownership in Carlisle Crossing, it is clear that Plaintiff’s causes of action are indeed plead sufficiently specific. Therefore, Defendants’ objection is overruled. D. Pa. R.Civ. P. 1028(a)(4). Defendants next contend that Plaintiff failed to state a claim upon which relief can be legally granted against three of the four Defendants: Washco-Carlisle Crossing, LLC, AFC Carlisle, LLC and AFC Carlisle Limited Partner. Defendants acknowledge and concede that there is a deed, attached to Plaintiff’s original complaint as Exhibit “A,” which shows Plaintiff’s ownership interest in Carlisle Crossing. All of Plaintiff’s claims arise under this deed. Defendants argue, however, that this deed does not give rise to a claim against the other listed Defendants as they are not part of the deed. A preliminary objection in the nature of demurrer is properly granted where the contested pleading is legally insufficient. Hess v. Fox Rothschild, LLP., 925 A.2d 798, 805 (Pa. Super. 2007). In ruling on the demurrer, a court must accept as true all well-plead allegations of material facts as well as all inferences reasonably drawn from the assertions. Id; see also Com., Office of Atty. Gen. ex rel Corbett v. Richmond Tp., 917 A.2d 397, 400 (Pa. Cmwlth. 2007). Yet, 10 Defs.’ Br. 13. 11 Defs.’ Br. 5-6. 12 Defs.’ Br. 7-11. 8 the court need not accept expressions of opinions or conclusions of law. Id. The court should overrule preliminary objections where the facts supporting the objection are in the briefs of the parties and not of record in the pleadings, depositions or otherwise. Lawrence County Housing Authority v. Fireman’s Fund Ins. Co., 23 Law. L.J. 114, *3 (Pa. Cmwlth. 1966). Under these circumstances, it is often more desirable that the issues raised by preliminary objection are resolved at the trial of the action, where all of the relevant facts may be developed. Id. Furthermore, where the preliminary objections raise issues requiring production of extensive documents, the court has the authority to postpone deciding on the matter until the trial on the merits. Id. Accordingly, where any doubt exists as to whether the preliminary objections should be sustained, the doubt should be resolved by refusal to sustain them, Montanya v. McGonegal, 757 A.2d 947, 949 (Pa. Super. 2000), and resolved in the favor of the non-moving party. Com., Office of Atty. Gen., 917 A.2d at 687. Upon examination of Plaintiff’s brief in opposition to this preliminary objection, this Court finds that Plaintiff, in his Amended Complaint, claims his present ownership right in Carlisle Crossing (equivalent to 25%) along with his future ownership rights collectively against 13 all Defendants. Plaintiff further incorporated by reference said paragraph into each count of the Complaint, thereby integrating it into all his claims and against all of the Defendants. It is also apparent that the full contract, deed and other documents material to the resolution of these preliminary objections have been neither discovered nor made part of the record. As this Court is directed by precedent to look only to the pleading submitted by the parties and the record before it, we consider this objection unripe. As Plaintiff has, on the record, stated a cause of action against all of the Defendants hereto listed, further evidence in the 13 Pl.’s Br. 12. 9 form of discovery is necessary before any Defendants may be excused from this action. Accordingly, Defendants demurrer to Counts V – XVI are overruled. E. Pa. R.Civ. P. 1028(a)(8). Defendants’ final preliminary objection is under Pa. R.Civ. P. 1028 (a)(8), and claims that Plaintiff has available to him an adequate remedy at law. Plaintiff included equitable claims for unjust enrichment and quantum meruit along with a non-statutory remedy at law via a claim for breach of contract. In order for a court to consider an objection for available adequate remedy at law, a defendant must plead the existence of those other remedies; lack of such pleading is fatal to the objection. Cohen v. McLafferty, 2000 WL 33711044, 4 (Pa. Com. Pl. 2000). The court will sustain a preliminary objection on these grounds for the plaintiff’s benefit only where the legal remedy is, in fact, adequate and complete as well as reasonably convenient. Public Utility Commission v. Atlantic Freight Lines, Inc., 4 Pa. D. & C. 2d 364, 386 (1956), see also Borough of Collegeville v. Philadelphia Suburban Water Co., 105 A.2d 722, 727, 377 Pa. 636, 646 (Pa., 1954). The court will, however, overrule the preliminary objection to equitable remedy at law if the remedy is inadequate or is necessary to prevent irreparable harm. Pa. State Chamber of Commerce v. Torquato, 125 A.2d 755, 766, 386 Pa. 306, 328 (Pa. 1956). In order for the remedy to be full, adequate, and complete, the remedy at law must not leave room for future litigation matters involved in the controversy. Flanders v. Wines, 6 Pa. D. & C.2d 241, 245 (1956). In addition, as Plaintiff correctly cites, courts have allowed both claims (for equitable and legal relief) to continue forward and are capable of instructing the jury accordingly. See Goldenberg v. Royal Petroleum Corp., 2004 WL 3051577, *3 (Pa. Com. Pl. 2004). 10 It is clear from the current pleadings on the record that Plaintiff’s ownership rights in Carlisle Crossings and related claims are based on his contract with Defendants. What is not clear, however, is whether the breach of contract claim will serve as a full, complete and adequate remedy for the Plaintiff. Plaintiff claims that Defendants benefited from Plaintiff’s work and knowledge of the construction process and are thereby unjustly enriched by now 14 revoking his ownership status in the partnership. Without further discovery and evidence on the record we cannot make a clear determination so as to be sure that the remedy at law, Plaintiff’s breach of contract claim, will foreclose all future litigation of matters involved in this controversy. Consequently, Defendants objection to Counts III, IV, VII, XI, XII, XV, XVI are overruled. Accordingly, the following order shall be entered: 14 Pl.’s Br. at 12-13. 11 ORDER OF COURT AND NOW , this 25th day of February, 2008, upon consideration of the Preliminary Objections by AFC Wascho-Carlisle Crossing, LP, et. al. and Plaintiff’s Response thereto, IT IS HEREBY ORDERED AND DIRECTED 1. Defendants’ preliminary objection as to Plaintiff’s failure to state the nature of the SUSTAINED agreement and attach any relied upon written agreement is . Plaintiff is given 20 days to amend the Complaint and Defendants are given a period of 20 days from the date they are served with an Amended Complaint to plead thereto. 2. Defendants’ preliminary objection as to Plaintiff’s failure to provide a pleading in SUSTAINED conformity to law or rule of court is . Plaintiff is given 20 days to amend the Complaint and Defendants are given a period of 20 days from the date they are served with an Amended Complaint to plead thereto. 3. Defendants’ preliminary objection as to Plaintiff’s failure to plead with specificity OVERRULED. is 4. Defendants’ preliminary objections in the nature of demurrer to Counts V – XVI OVERRULED are . 5. Defendants’ preliminary objections to Counts III, IV, VII, XI, XII, XV, XVI OVERRULED regarding Plaintiff’s adequate remedy at law are . IT IS HEREBY FURTHER ORDERED AND DIRECTED that Defendants follow Pa. R.Civ. P. 1026 in their future filings. By the Court, M. L. Ebert, Jr., J. James S. Tupitza, Esquire Tupitza & Bryman, PC 212 West Gay Street West Chester, PA 19380 12 Paige Macdonald-Matthes, Esquire Attorney ID: 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorney for Defendants 13