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Home My WebLink About00-4934 CivilDICKINSON COLLEGE, Plaintiff HARRY J. ' WOLFINGTON and · SEAN J. WOLFINGTON, · Defendants ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00-4934 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT SEAN J. WOLFINGTON TO PLAINTIFF'S COMPLAINT BEFORE HESS, OLER and GUIDO, JJ.* ORDER OF COURT AND NOW, this,3 ~-,[day of April, 2001, upon consideration of Defendant Sean J. Wolfington's preliminary objections to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained and Plaintiff's complaint is dismissed as to Defendant Sean J. Wolfington. BY THE COURT, t' ~ Wesley Ole~._~Jr.,,) J. ' Charles T. Young, Jr., Esq. 100 Pine Street Harrisburg, PA 17108-1166 Attorney for Plaintiff Douglas G. Miller, Esq. West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant Sean J. Wolfington Harry J. Wolfington 501 Weatherstone Drive Paoli, PA 19301 Defendant, Pro Se :rc * GUIDO, J., did not participate in the consideration or disposition of this case. DICKINSON COLLEGE, Plaintiff Vo HARRY J. WOLFINGTON and SEAN J. WOLFINGTON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00-4934 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT SEAN J. WOLFINGTON TO PLAINTIFF'S COMPLAINT BEFORE HESS, OLER and GUIDO, JJ.-~ OPINION and ORDER OF COURT Oler, J., April 3,2001. In this contract case, a college has filed a complaint against a student and his father for failure to pay for certain educational services allegedly provided to the son. For disposition at this time are preliminary objections filed by the son to the complaint. Plaintiff's complaint consists of three counts. One count asserts that Defendant Harry J. Wolfington (the father) entered into an "Educational Goods and Services Retail Installment Contract" with Plaintiff, and subsequently defaulted on the terms of that contract. In this count, Plaintiff requests relief in the form of an award of $25,522.25, plus interest, late fees, costs of suit, attorneys' fees and collection costs. The second count asserts that Defendant Sean J. Wolfington (the son) executed the contract as a co-signer, and thereby assumed liability for payment in the event the co- Defendant failed to abide by the terms of the contract. In this count, Plaintiff requests relief in the form of an award of $25,522.25, plus interest, late fees, costs of suit, attorneys' fees and collection costs. The third count asserts an alternative claim against Defendant Sean J. Wolfington for unjust enrichment. In this count, Plaintiff requests relief in the form of an award of $25,522.25, plus interest, late fees, costs of suit, attorneys' fees and collection costs. The preliminary objections of Defendant Sean J. Wolfington seek dismissal of the complaint by reason of a dismissal of a prior action for collection of the same obligation by Plaintiff against Defendants; the prior dismissal resulted from docket inactivity.2 Argument was held on the preliminary objections on January 3, 2001. For the reasons stated in this opinion, Defendant's preliminary objections will be sustained, and the complaint will be dismissed as to Sean J. Wolfington. STATEMENT OF FACTS; PROCEDURAL HISTORY On October 14, 1993, Plaintiff filed a complaint against Defendant Harry J. Wolfington (the father) in this court, docketed at No. 3270 Civil Term 1993.3 This complaint consisted of a count for breach of contract for payment of educational ~ GUIDO, J., did not participate in the consideration or disposition of this case. 2 Preliminary Objections of Defendant Sean J. Wolfington to Plaintiff's Complaint. 3 Preliminary Objections of Defendant Sean J. Wolfington to Plaintiff's Complaint, paragraph 1; Response of Plaintiff Dickinson College to Defendant Sean J. Wolfington's Preliminary Objections, paragraph 1. 2 services.4 On September 6, 1996, Plaintiff filed an amended complaint, adding Sean J. Wolfington (the son) as a Defendant in a count for breach of contract as a co-signer.5 In October 1999, this amended complaint was dismissed pursuant to Pennsylvania Rule of Judicial Administration 1901, and Cumberland County Rule of Procedure 228, due to lack of docket activity.6 Thereafter, without leave of court, the Plaintiff filed the instant complaint, docketed at 00-4934, on July 12, 2000, involving the same parties and contractual obligations. On October 25, 2000, Defendant Sean J. Wolfington filed preliminary objections to Plaintiff's complaint. The preliminary objections aver that Plaintiff did not petition "to reinstate the original action following its termination in accordance with Pa. R.J.A. No. 1901."? Defendant contends that the present action should therefore be dismissed.8 Plaintiff does not specifically deny that it failed to petition for reinstatement.9 It notes, however, inter alia, that under Pennsylvania Rule of Civil Procedure 126 a court 4/d. 5 See Preliminary Objections of Defendant Scan J. Wolfington to Plaintiff's Complaint, paragraph 2; Response of Dickinson College to Defendant Scan J. Wolfington's Preliminary Objections, paragraph 2. 6 See Preliminary Objections of Defendant Scan J. Wolfington to PlaintiWs Complaint, paragraph 4; Response of Plaintiff Dickinson College to Defendant Scan J. Wolfington's Preliminary Objections, paragraph 4. 7 Preliminary Objections of Defendant Scan J. Wolfington to PlaintiWs Complaint, paragraphs 6-8. 8 Brief in Support of Defendant Scan J. Wolfington's Preliminary Objections to PlaintiWs Complaint, at 7. 9 Response of Plaintiff Dickinson College to Defendant Scan J. Wolfington's Preliminary Objections, paragraph 6. "may disregard any error or defect of procedure which does not affect the substantial rights of the parties.''~° DISCUSSION In Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank and Trust Co., 298 Pa. Super. 454, 444 A.2d 1272 (1982), the Pennsylvania Superior Court affirmed the dismissal of a complaint in equity on preliminary objections where an earlier action had been dismissed for lack of docket activity under a local rule adopted pursuant to Pennsylvania Rule of Judicial Administration 1901 and where the new action had been filed without securing leave of court. In its opinion, the Court stated as follows: [We have] recognized that Pa. R.J.A. No. 1901 sets forth a judicial policy to resolve pending cases as promptly as possible and, if a plaintiff's stale claim is dismissed, he may still petition the court to (1) take offthe non pros or (2) bring a second action. Clearly, the alternatives do not permit unilateral action by the party seeking reinstatement of its action. A petition setting forth ... three necessary allegations in excuse of delay must be submitted to the court. Whether the party requests that the original case be reinstated or requests permission to start the same cause of action under a new term and number is ... not material. What is important is that he shall give cogent reasons for his inactivity, and that the court shall determine whether permission to proceed will be forthcoming. Plaintiff in this case had a remedy to pursue, but simply chose to make an "end run" around the Rules. The court below was proper in refusing to permit this action. Id. at 457, 444 A.2d at 1273 (1982). Plaintiff's Memorandum of Law in Opposition to Preliminary Objections of Defendant Sean J. Wolfington, at 4. 4 The three allegations referred to by the Court in Bon Homme to support a petition for reinstatement or a new complaint are that: "(1) the petition was timely filed; (2) the reason for the default was reasonably excused; [and] (3) facts constituting a meritorious cause of action were alleged." Id. at 456,444 A.2d at 1273. It may be noted that Plaintiff herein has recently filed a petition to reinstate the earlier action, which petition remains pending.~ The court being of the view that the decision in Bon Homme is controlling with respect to Defendant's preliminary objections in the present case, the following order will be entered: ORDER OF COURT AND NOW, this 3rd day of April, 2001, upon consideration of Defendant Sean J. Wolfington's preliminary objections to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained and Plaintiff's complaint is dismissed as to Defendant Sean J. Wolfington. BY THE COURT, s/ J. Wesley Oler, Jr., J. J. Wesley Oler, Jr., J. Charles T. Young, Jr., Esq. 100 Pine Street Harrisburg, PA 17108-1166 Attorney for Plaintiff it See Plaintiff's Petition for Reinstatement of Case Dismissed for Lack of Docket Activity, filed January 3, 2001, Dickinson College v. Harry J. Wolfington and Sean J. Wolfington, No. 3270 Civil Term 1993. The court issued a rule upon Defendants in response to the petition on January 22, 2001. The matter remains pending. Douglas G. Miller, Esq. West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant Sean J. Wolfington Harry J. Wolfington 501 Weatherstone Drive Paoli, PA 19301 Defendant, Pro Se :rc 6