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HomeMy WebLinkAbout2007-2409 Civil CURTIS JOHNSON, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RONALD JUMPER, LINDA JUMPER, : MITCHELL S. GELBAUGH, : (individually and as agent for : Performance Realty Group, : Inc., t/d/b/a Remax Sterling : Associates), PERFORMANCE : REALTY GROUP, INC., : (t/d/b/a Remax Sterling : Associates), SCOTT GARDNER : (Individually and as Agent For : Straub & Associates Real : Estate Group, Inc.), : STRUAB & ASSOCIATES REAL : ESTATE GROUP, INC., CEDAR CLIFF : ABSTRACT AGENCY, INC., AND : COMMONWEALTH LAND TITLE : INSURANCE COMPANY, : DEFENDANTS : : V. : : SEARCH ONE ABSTRACTING, INC., : ADDITIONAL DEFENDANT : NO. 07-2409 CIVIL IN RE: PLAINTIFF’S PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE DEFENDANTS, RONALD JUMPER AND LINDA JUMPER’S PRELIMINARY OBJECTIONS BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT th AND NOWIT IS ORDERED , this 6 day of March, 2008, that Plaintiff’s Preliminary Objections in the Nature of a Motion to Strike Defendants, Ronald DISMISSED Jumper and Linda Jumper’s Preliminary Objections are . By the Court, M. L. Ebert, Jr., J. George A. Michak, Esquire 2000 Linglestown Road, Suite 100 Harrisburg, PA 17110 Attorney for Plaintiff Hubert Gilroy, Esquire 10 East High Street Carlisle, PA 17013 Attorney for Defendants Jumper James L. Goldsmith, Esquire 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant Gelbaugh Stephan L. Banko, Jr., Esquire 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendant Gardner Paul W. Minnich, Esquire 100 East Market Street P. O. Box 15012 York, PA 17405-7012 Attorney for Cedar Cliff Abstract Agency and Commonwealth Land Title Ins. Co. Christopher J. Conrad, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Additional Defendant bas 2 CURTIS JOHNSON, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RONALD JUMPER, LINDA JUMPER, : MITCHELL S. GELBAUGH, : (individually and as agent for : Performance Realty Group, : Inc., t/d/b/a Remax Sterling : Associates), PERFORMANCE : REALTY GROUP, INC., : (t/d/b/a Remax Sterling : Associates), SCOTT GARDNER : (Individually and as Agent For : Straub & Associates Real : Estate Group, Inc.), : STRUAB & ASSOCIATES REAL : ESTATE GROUP, INC., CEDAR CLIFF : ABSTRACT AGENCY, INC., AND : COMMONWEALTH LAND TITLE : INSURANCE COMPANY, : DEFENDANTS : : V. : : SEARCH ONE ABSTRACTING, INC., : ADDITIONAL DEFENDANT : NO. 07-2409 CIVIL IN RE: PLAINTIFF’S PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE DEFENDANTS, RONALD JUMPER AND LINDA JUMPER’S PRELIMINARY OBJECTIONS BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Ebert, J., March 6, 2008 - Procedural History Plaintiff began this civil action by filing a writ of summons on April 26, 2007. On September 25, 2007, a rule was issued upon the Plaintiff by Counsel for Defendants, Scott Gardner and Straub Associates, to file a complaint. The Plaintiff then filed the complaint on October 16, 2007, and served it upon all the Defendants including Ronald and Linda Jumper. 3 The complaint was 22 pages long, averred 13 separate counts in 138 separate paragraphs. The complaint was supplemented with 9 exhibits lettered A through I. There were counts alleged against the Jumpers for negligent misrepresentation, fraud, breech of contract, and unfair trade practices. All toll the complaint with its attached exhibits consisted of 67 pages. Pursuant to Pa.R.C.P. 1026, a response to this complaint should have been filed by Defendant Jumpers within 20 days after service of the complaint which in this case was on or before November 5, 2007. The Jumpers did not file a response within the required 20 day period. On November 6, 2007, Plaintiff served a 10 day notice on Defendant Jumpers counsel by first class mail, postage pre-paid, which pursuant to Pa.R.C.P. 237.5 read: YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. On November 14, 2007, Defendant Jumpers filed 3 Preliminary Objections for (1) failure to plead fraud with particularity, (2) failure to plead unfair practices with particularity, and (3) demurrer – failure to state a cause of action for unfair trade practices. The Plaintiff then filed his Preliminary Objection in the nature of the Motion to Strike Defendants Jumpers’ Preliminary Objections as untimely and listed the matter for argument. Argument in the case was held on February 27, 2008. 4 DISCUSSION The Plaintiff raises two issues regarding the Defendants’ Preliminary Objections. First, that they were untimely filed without just cause and therefore should be stricken; and secondly, that given the untimeliness, the only responsive pleading now available to Defendant Jumpers is to answer the complaint. After careful consideration the Plaintiff’s Motion to Strike Defendants’ untimely Preliminary Objections is dismissed. At issue here is the meaning of the word “act” as used within the Pa.R.C.P. 237.5, Default Judgment Notice. The Plaintiff would have the Court hold that the only action allowed by law is to answer the complaint because failure to comply with the 20 day responsive pleading rule set forth in Pa.R.C.P. 1026 bars the filing of Preliminary Objections. Defendant Jumpers on the other hand, maintain that the word “act” would include all of the things available to a party prior to the 10 day default judgment notice which would allow the filing of either an answer or preliminary objections. The decision of whether or not to grant exception to the 20 day filing rule is within the trial court’s discretion. The word “shall” in Rule 1026 has always been interpreted flexibly, thus permitting exception to the Rule where justice so requires. There is no question that a pleading that is not filed within the articulated time period may be stricken by a trial court. Francisco v. Ford Motor Company, 580 A.2d 374,376 (Pa. Super. 1990). In Commonwealth, Dept. of Environmental Resources v. Morcoal Co., 419 A.2d 821 (Pa. Cmwlth. 1980), the court dismissed a defendant’s preliminary 5 objection in the nature of a demurrer because it was filed 25 days after service of the complaint. This court notes however, that Morcoal was a per curiam memorandum opinion which in essence addressed the broader issue of whether Morcoal could use injunctive relief against the institution of enforcement actions by the Department of Environmental Resources when the coal company had a statutory remedy available to challenge a denial of a license to mine. The opinion does not address the nature of the defendant’s Stefanan demurrer and is very brief, being only four paragraphs in length. It provides very little precedential value in interpreting what would constitute an abuse of discretion in allowing or dismissing late pleadings. The case certainly supports the proposition that a pleading that is not filed within the articulable period may be stricken by the Court but it does not dictate that such a pleading must be stricken. The facts in Francisco are more illuminating. In that case, the Defendants filed their answer and new matter 3 years and 9 months after the Plaintiffs filed their complaint. The Superior Court held that a 3 year and 9 month delay in responding to a complaint constituted “abject indifference” to the rule warranting that the answer be stricken. Similarly Peters Creek Sanitary Authority v. Welch, 681 A.2d 167 (Pa. 1996) held that a Court did not abuse its discretion in granting a motion to strike an answer as untimely when the answer was filed 23 months after the complaint was served and one day before trial was set to begin. In both these appellate cases the decisions in large measure turn on the egregious nature of the delay. Terms such as “abject indifference” to or “blatant 6 disregard” of the time limits established by the rules of civil procedure are used to describe the type of the late pleadings that should be stricken. Francisco v. Ford Motor Co., 580 A.2d 374 (Pa. Super. 1990), Peters Creek Sanitary Authority v. Welch, 681 A.2d 167 (Pa. 1996). In examining the record now before this Court, it becomes apparent that the preliminary objections filed by the Defendant Jumpers were only 9 days late. The Plaintiff filed its notice of default judgment only 1 day after the end of the 20 day period required for filing of a response. The Defendant Jumpers immediately responded to the notice by filing their preliminary objections well within the 10 day period allowed by the Rule 237.5, Default Judgment Notice. This Court finds that such a response to a rather lengthy complaint based on a $79,000.00 residential real estate sale does not equate to “abject indifference” to or “blatant disregard” of the 20 day pleading requirement of Rule 1026. In short, this Court does find that the complexity of the complaint adequately demonstrates just cause for a relatively short 9 day delay. It is clear that the Plaintiff has not suffered any real prejudice by this relatively short delay in pleading. Equally important, this Court does find that within the parameters of the Pa.R.C. P. Rule 237.5, Default Judgment Notice, Defendant Jumpers did “act” within the 10 day period required by the notice. In circumstances such as presented in this case, the filing of preliminary objections will ultimately promote judicial economy in resolving this case. In this case, given the permissive nature of Rule 1026, there is no abuse of discretion in allowing the Defendants Preliminary Objections to be filed 9 days 7 after the 20 day pleading time period. In making this conclusion, it is compelling that neither party could cite any case which held that such a violation of such short duration warranted the striking of a pleading. Accordingly, we enter the following order: ORDER OF COURT th AND NOWIT IS ORDERED , this 6 day of March, 2008, that Plaintiff’s Preliminary Objections in the Nature of a Motion to Strike Defendants, Ronald DISMISSED Jumper and Linda Jumper’s Preliminary Objections are . By the Court, M. L. Ebert, Jr., J. George A. Michak, Esquire 2000 Linglestown Road, Suite 100 Harrisburg, PA 17110 Attorney for Plaintiff Hubert Gilroy, Esquire 10 East High Street Carlisle, PA 17013 Attorney for Defendants Jumper James L. Goldsmith, Esquire 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant Gelbaugh Stephan L. Banko, Jr., Esquire 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendant Gardner 8 Paul W. Minnich, Esquire 100 East Market Street P. O. Box 15012 York, PA 17405-7012 Attorney for Cedar Cliff Abstract Agency and Commonwealth Land Title Ins. Co. Christopher J. Conrad, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Additional Defendant bas 9