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HomeMy WebLinkAbout96-5349 CivilJOSEPH J. CURRERI, JR., TRADING AS THE CURRERI REAL ESTATE COMPANY, Plaintiff Vo DAVID E. DYSON, JAMES P. STEPHENS, JR., JOHN H. RHODES, MICHAEL K. LAU, JEFFREY D. BILLMAN, AND RHODES DEVELOPMENT GROUP, INC., TRADING AS CAPITOL VIEW ASSOCIATES, A PENNSYLVANIA GENERAL PARTNERSHIP, and CAPITOL VIEW ASSOCIATES, A PENNSYLVANIA GENERAL PARTNERSHIP, HARLIN: WALL AND JOHN : RHODES, TRADING AS : THE CHERRINGTON : GROUP, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-5349 CIVIL TERM IN RE: SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANT CHERRINGTON GROUP BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this~2'l~ay of October, 2000, upon consideration of the second motion for partial summary judgment filed on behalf of Defendant Cherrington Group, and for the reasons stated in the accompanying opinion, the motion is granted and summary judgment is entered in favor of Defendant Cherrington Group and against Plaintiff with respect to count X of Plaintiff's second amended complaint. BY THE COURT, o '_eCr 3r., J. Timothy M. Anstine, Esq. Craig R. Shagin, Esq. 100 Pine Street Suite 510 Harrisburg, PA 17101 Attorneys for Plaintiff Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Defendants JOSEPH J. CURREPd, JR., TRADING AS THE CURRERI REAL ESTATE COMPANY, Plaintiff Vo DAVID E. DYSON, JAMES P. STEPHENS, JR., JOHN H. RHODES, MICHAEL K. LAU, JEFFREY D. BILLMAN, AND RHODES DEVELOPMENT GROUP, INC., TRADING AS CAPITOL VIEW ASSOCIATES, A PENNSYLVANIA GENERAL PARTNERSHIP, and CAPITOL VIEW ASSOCIATES, A PENNSYLVANIA GENERAL PARTNERSHIP, HARLIN: WALL AND JOHN : RHODES, TRADING AS : THE CHERRINGTON : GROUP, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-5349 CIVIL TERM IN RE: SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANT CHERRINGTON GROUP BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, J., October 12, 2000. This rather complicated civil case, commenced in 1996, has been characterized by plaintiffs complaint, defendants' preliminary objections to the complaint, plaintiffs first amended complaint, defendants' answer with new matter and counterclaim to the first amended complaint, plaintiffs reply to the new matter and counterclaim, with new matter, a defendant's counter-reply to plaintiffs new matter, plaintiffs motion for partial summary judgment, an order denying plaintiffs motion for partial summary judgment, defendants' first motion for partial summary judgment, an order with opinion denying defendants' first motion for partial summary judgment, plaintiffs motion to amend the first amended complaint, an order with opinion granting plaintiffs motion to amend the first amended complaint, plaintiffs second amended complaint, defendants' answer with new matter and counterclaim to plaintiffs second amended complaint, plaintiffs reply to the new matter and counterclaim, and a defendant's second motion for partial summary judgment.~ For disposition at this time is the defendant's second motion for partial summary judgment. The dispute between the parties has its genesis in a business relationship in which Plaintiff served as listing agent for properties in a certain development on behalf of one of the Defendants. The specifics of the parties' dispute have been detailed in prior opinions of the court and will not be repeated here.2 Count X of PlaintifFs second amended complaint asserts a claim for intentional interference with prospective contractual relations against Defendant Cherrington Group. In addition, Plaintiff has filed two discovery motions. See Opinions and Orders of Court, December 28, 1999. 2 Defendant's second motion for partial summary judgment seeks judgment in its favor on that count based upon the statute of limitations. The issue presented by the motion is whether, on a motion for summary judgment, a movant/defendant is precluded from relying upon the statute of limitations as a defense to plaintiff's claim in an amended complaint, where the defense was not raised in defendant's answer with new matter to the claim in the original complaint, notwithstanding its viability at that time, where a motion for partial summary judgment filed by. defendant to the claim in the original complaint based upon the statute of limitations was denied for this reason, where plaintiff filed an amended complaint upon motion and leave of court which, inter alia, reiterated the claim, and where defendant did raise the defense in defendant's answer with new matter to the amended complaint. For the reasons stated in this opinion, the court will hold that a defendant is not precluded from relying upon the statute of limitations under these circumstances. STATEMENT OF FACTS This action was commenced by complaint on September 27, 1996. Count X of the complaint asserted a claim against Defendant Cherrington Group for intentional interference with prospective contractual relations.3 This cause of action arose in May or June of 1994, when Plaintiff became aware of the alleged interference.4 The statute of limitations for the tort of intentional interference with contractual relations is two years.5 Plaintiff does not argue that the statute had not run on this claim as of the time that the action was commenced. Plaintiff's amended complaint, filed on November 20, 1996, in response to various preliminary objections, reiterated count X against Defendant Cherrington Group. Defendants, in an answer with new matter and counterclaim to the amended complaint, 3 Plaintiff's complaint, count X. 4 Deposition of Joseph Curreri, March 12, 1998, at 225; see Dellape v. Johnson, 651 A.2d 638, 640 (Pa. Commw. Ct. 1994). 5 See Bednar v. Marino, 435 Pa. Super. 417, 425, 646 A.2d 573,577 (1994). did not raise the defense of the statute of limitations with respect to count X.6 A motion filed by Defendants for summary judgment was denied for this reason, as it related to count X and was based upon the statute of limitations.? On April 5, 1999, plaintiff filed a motion to amend the amended complaint.8 In the motion, plaintiff proposed to add paragraphs to the body of the complaint identifying various general partners (who had been named in the caption) as defendants and indicating that damages were being sought from them for Partnership liabilities.9 In granting the motion, the court accepted Plaintiff's position that the proposed amendments served to clarify the pleading as opposed to Defendants' position that the amendments served to introduce new parties to the action,l° Plaintiff's second amended complaint reiterated count X against Defendant Cherrington Group. In its answer with new matter and counterclaim to the second amended complaint, Defendants raised the defense of the statute of limitations, il On April 20, 2000, Defendant Cherrington Group filed a second motion for partial summary judgment, with respect to count X of Plaintiff's complaint, based upon the statute of limitations. The matter was argued on May 31, 2000. DIS C S__QU_SS_!_Q~ Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: 6 See Answer with New Matter of Defendants Capitol View Associates and the Cherrington Group to Plaintiff's Amended Complaint and Counterclaim of Capitol View Associates, filed December 10, 1996. 7 Opinion of Court on Defendants' motion for partial summary judgment, December 28, 1999, at 16; see Pa. R.C.P. 1030(a) (statute of limitations as affirmative defense to be pled in responsive pleading); Pa. R.C.P. 1032(a) (waiver of defenses and objections by failure to include in preliminary objections, answer or reply). 8 Plaintiff's Motion to Amend Complaint. 9 See Plaintiff's Amended Complaint; Plaintiff's Second Amended Complaint. l0 Opinion and Order of Court on Plaintiff's motion to amend the amended complaint, December 28, 1999. ii Defendants' Answer with New Matter to Plaintiff's Second Amended Complaint and Counterclaim of Capitol View Associates, paragraph 170. 4 ARer the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law. (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. "[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial." Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). Summary judgment can "properly be entered in favor of a defendant when the plaintiff's cause of action is barred by the statute of limitations." Kingston Coal Co. v. Felton Mining Co., 456 Pa. Super. 270, 277, 690 A.2d 284, 288, appeal denied, 549 Pa. 702, 700 A.2d 441 (1997). As noted previously, Plaintiff does not argue that the statute of limitations had not run on the claim sub judice at the time the present action was commenced. Rather, Plaintiff contends that Defendant is barred from relying upon the statute of limitations defense at this time because the defense was not raised in the initial responsive pleading to Plaintiff's claim, as a result of which the earlier motion for partial summary judgment was denied. In this regard, Pennsylvania Rule of Civil Procedure 1030(a) states that "all affirmative defenses including ... [the] statute of limitations ... shall be pleaded in a responsive pleading under the heading 'New Matter'." As a general rule, if a party fails to raise an affirmative defense or objection to a pleading, either by preliminary objection, answer or reply, the defense or objection is to be deemed waived. Pa. R.C.P. 1032(a). In addition, there is precedent for the proposition that a new preliminary objection may not be entertained as to a second complaint where it could have been filed to the original complaint. General State Authority v. Lawrie and Green, 29 Pa. Commw. Ct. 567, 568- 71,372 A.2d 45, 46-47 (1977). However, several factors militate against accepting Plaintiff's position herein. First, no case has been found by the court which holds that a defendant is barred from raising an affirmative defense in a responsive pleading to a subsequent complaint solely because the defense was not raised to the prior complaint. Second, such a holding would not be entirely consistent with one of the express purposes of the Rules of Civil Procedure--to promote a just determination of every action. See Pa. R.C.P. 126. Third, an analogy between the present situation and one involving successive preliminary objections is not fully compelling. The practitioner is specifically directed to file all preliminary objections to a pleading "at one time." Pa. R.C.P. 1028(b). The purpose of this rule is obviously to discourage dilatory tactics in the initial stage of litigation by means of successive submissions of issues (generally) not affecting the merits of the action. Affirmative defenses, such as the statute of limitations, are more substantive in nature than issues such as venue and the consequences of application of the waiver doctrine more severe. Fourth, a more analogous situation to the present case may be found in the rules pertaining to amendment of a pleading. See Pa. R.C.P. 1033. Such amendments are to be liberally allowed. See Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 137, 467 A.2d 1164, 1167(1990). In this regard, "an amendment [to a pleading] will not be permitted where it is against a positive rule of law, or where the amendment will surprise or prejudice the opposing party." Horowitz v. Universal Underwriters Ins. Co., 397 Pa. Super. 473, 479, 580 A.2d 395, 398 (1990), appeal denied, 527 Pa. 610, 590 A.2d 297 (1991). Such prejudice, however, "must be something more than a detriment to the other party, for to make an advantage operate as a bar to amendment would be to destroy the right to amend except in cases when the moving party would have no reason to amend." Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 138, 467 A.2d 1164, 1167 (1983). Nor, as a general rule, will undue delay, without more, constitute the type of prejudice which will preclude 6 amendment of a pleading. Carpitella v. Consolidated Rail Corp., 368 Pa. Super. 153, 157, 533 A.2d 762, 764 (1987); Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 137, 467 A.2d 1164, 1167 (1983). In the present case, no positive rule of law would be offended by interposition of the statute of limitations, and prejudice in the sense described above has not been shown. Fifth, in the present case the pleading to which Defendant added the defense of the statute of limitations was occasioned by Plaintiff's motion to amend his complaint. It was not the result of a motion by Defendant for leave to reformulate an earlier pleading of its own. For the foregoing reasons, the issue stated at the beginning of this opinion will be resolved in favor of Defendant, and Defendant's second motion for partial summary judgment as to count X of Plaintiff's second amended complaint, based upon the statute of limitations, will be granted. ORDER OF COURT AND NOW, this 12th day of October, 2000, upon consideration of the second motion for partial summary judgment filed on behalf of Defendant Cherrington Group, and for the reasons stated in the accompanying opinion, the motion is granted and summary judgment is entered in favor of Defendant Cherrington Group and against Plaintiff with respect to count X of Plaintiff's second amended complaint. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Timothy M. Anstine, Esq. Craig R. Shagin, Esq. 100 Pine Street Suite 510 Harrisburg, PA 17101 Attorneys for Plaintiff Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Defendants 8