HomeMy WebLinkAbout00-0213 EquitySHIRLEY E. KIDD,
Plaintiff
Vo
LOUIS S. BISCUIT, JR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 00-213 EQUITY TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT; PLAINTIFF'S MOTION TO AMEND COMPLAINT
BEFORE BAYLEY and OLER, JJ.
ORDER OF COURT
AND NOW, this~tI~ day of November, 2000, upon consideration of
Defendant's preliminary objections to Plaintiff's complaint, in the form of a
motion for a more specific pleading and in the nature of a demurrer, and of
Plaintiff's motion to amend the complaint, and for the reasons stated in the
accompanying opinion, Defendant's preliminary objections are denied and
Plaintiff's motion to amend the complaint is granted.
BY THE COURT,
J(ffCesley Oler, ~Z;)J.' ' 7> ~r
Robert L. O'Brien, Esq.
17 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
Attorney for Defendant
SHIRLEY E. KIDD,
Plaintiff
LOUIS S. BISCUIT, JR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 00-213 EQUITY TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT; PLAINTIFF'S MOTION TO AMEND COMPLAINT
BEFORE BAYLEY and OLER, JJ.
OPINION and ORDER OF COURT
OLER, J., November 8, 2000.
In this equity action a transferor has sued a transferee to rescind a certain
real estate transaction. For disposition at this time are preliminary objections to
the complaint filed by Defendant, and a motion to amend the complaint filed by
Plaintiff.
Defendant's preliminary objections are in the form of a motion for a more
specific pleading and a demurrer. Plaintiff's motion to amend the complaint seeks
to add a claim for rent against Defendant.
The matters were submitted on briefs at the argument court held on October
11, 2000. For the reasons stated in this opinion, Defendant's preliminary
objections will be denied, and Plaintiff's motion to amend the complaint will be
granted.
STATEMENT OF FACTS
The present action was commenced by complaint on January 11, 2000. The
facts alleged in Plaintiff's complaint may be summarized as follows: Plaintiff, the
mother of Defendant, by a 1998 deed reserved a life estate in her home to herself
and conveyed the remainder interest to Defendant. The transaction was based
upon an agreement between the parties that Defendant would care for another son
of Plaintiff who had special needs and whom Plaintiff felt she could not continue
to care for since she had been diagnosed with a fatal illness.
This agreement involved an "explicit constructive trust" whereby
Defendant was to "provide the necessary care and upbringing of [the child in
question] and provide a home for him as long as necessary.''~ Following the
conveyance, Defendant advised Plaintiff that he would not care for the child or act
as the child's guardian, failed to perform his obligation under the agreement, and
failed upon request to reconvey the property to Plaintiff.
Defendant's preliminary objection in the form of a motion for a more
specific pleading contends that the complaint is not sufficiently specific with
respect to (a) the dates and terms of the alleged agreement between the parties, (b)
Defendant's refusal to care for the child in question, and (c) Plaintiff's request for
reconveyance. Defendant's preliminary objection in the nature of a demurrer
contends that the elements of a constructive trust have not been pled.
Plaintiff's motion to amend the complaint avers that Defendant placed
certain items in storage on the subject property, that subsequent to the filing of
Plaintiff's complaint Plaintiff's counsel wrote to Defendant's counsel advising that
a storage fee of $1,000.00 per month would be charged if the items were not
removed, and that Defendant's response was to enter upon the premises and nail
the door shut on the building where the items were stored. Plaintiff's motion
seeks to amend her complaint to add a count for rent due for the storage.
DISCUSSION
Defendant's Preliminary. Objections
Motion for a more specific complaint. "The question to be decided when a
preliminary objection in the form of a motion for a more specific pleading is
interposed ... is whether [the] pleading is sufficiently clear to enable an opposing
party to prepare a response .... " 2 Goodrich-Amram 2d §1017(b):21, at 265
Plaintiff's complaint, paragraph 11.
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(1991). A motion for a more specific pleading will be denied when "the objecting
party may be presumed to have at least as much information as does the pleader."
5 Standard Pennsylvania Practice 2d {}25:60, at 170 (1993); see Clark v. General
Mills, Inc., 48 Cumberland L.J. 124, 127 (1999). In addition, a preliminary
objection based on lack of particularity may, in certain cases, be denied on the
ground that discovery is a more appropriate vehicle to resolve the matter. See 2
Goodrich-Amram 2d §1017(b):24, at 268 (1991).2
In the present case, Plaintiff's complaint alleges a 1998 conveyance of an
interest in land to Defendant in return for a promise on the part of Defendant to
care for a certain child. It alleges further a breach of the agreement in the form of
Defendant's repudiation of his promise.
These allegations are sufficient, in the court's view, to enable Defendant to
prepare a response to Plaintiff's claim. In addition, Defendant may be presumed
to have at least as much information as does Plaintiff as to the accuracy of the
allegations. Finally, the case revolves around the versions of events as proffered
by the two parties; a deposition of Plaintiff can be easily utilized to particularize
her account in support of the claim.
For these reasons, Defendant's preliminary objection in the form of a
motion for a more specific pleading will be denied.
Demurrer. Under Pennsylvania Rule of Civil Procedure 1028(a)(4), a
preliminary objection may be filed by any party on the grounds of legal
insufficiency of a pleading. Upon review of a demurrer to a complaint, the
allegations in the complaint must be regarded as true and accorded the inferences
reasonably deducible therefrom. National Building Leasing, Inc. v. Byler, 252 Pa.
Super. 370, 372, 381 A.2d 963,964 (1977).
2 See Cline v. Glen Moore Transport, Inc., No. 98-3636 Civil Term (Cumberland
Co. November 19, 2000), at 5.
A claim should be dismissed on a demurrer "only in clear cases.''3
In order to sustain a demurrer, it is essential that an
opponent's pleading indicate on its face that his claim ...
cannot be sustained. The question to be decided is ... whether,
upon the facts averred, it shows with certainty that the law ~vill
not uphold the pleading.
2 Goodrich-Amram 2d §1017(b):27, at 271 (1991).
"[A] constructive trust arises where a person holding title to property is
subject to an equitable duty to convey it to another on the ground that he would be
unjustly enriched if he were permitted to retain it." Truver v. Kennedy, 425 Pa.
294, 305, 229 A.2d 468, 474 (1967). Under Section 44(1) of the Restatement
(Second) of Trusts (1959), a constructive trust with respect to realty transferred
may be found where "(a) the transfer was procured by fraud, duress, undue
influence or mistake, (b) the transferee at the time of the transfer was in a
confidential relation to the transferor, or (c) the transfer was made as security for
an indebtedness of the transferor."
The Pennsylvania Superior Court has derived the following principles
regarding constructive trusts from appellate cases:
The [Pennsylvania] Supreme Court has said that a
constructive trust "is not really a trust at all but rather an
equitable remedy." As such, it "is the formula through which
the conscience of equity finds expression. When property has
been acquired in such circumstances that the holder of the legal
title may not in good conscience retain the beneficial interest,
equity converts him into a trustee." A constructive trust may
arise "even though the acquisition of property was not
wrongful and the defendant's intention was not malign. Our
courts focus not on intention, but on the result of unjust
enrichment."
Gee v. Eberle, 279 Pa. Super. 101, 112, 420 A.2d 1050, 1056 (1980); see Friday v.
Friday, 311 Pa. Super. 17, 21,457 A.2d 91, 92-93 (1983) (citations omitted).
3 Graham v. Pinckiney, 125 Pa. Commw. 233, 235, 557 A.2d 60, 61 (1989),
appeal dismissed, 527 Pa. 653,593 A.2d 424 (1991).
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In appropriate circumstances, "a constructive trust for realty can be based
upon oral evidence because statutory law specifically exempts trusts arising by
'implication or construction of law' from the Statute of Frauds." Friday v. Friday,
311 Pa. Super. 17, 21,457 A.2d 93 (1983).
Based upon the foregoing authority, and a review of the allegations of
Plaintiff's complaint, the court can not say with certainty at this early stage of the
case that no recovery would be possible upon Plaintiff's claim. For this reason,
Defendant's preliminary objection in the nature of a demurrer to Plaintiff's
complaint can not be sustained.
Plaintiff's Motion To Amend Complaint
Under Pennsylvania Rule of Civil Procedure 1033, "[a] party, either by
filed consent of the adverse party or by leave of court, may at any time change the
form of action, correct the name of a party or amend his pleading."
Pennsylvania courts "have established as parameter a
policy that amendments to pleadings will be liberally allowed
to secure a determination of cases on their merits." Gallo v.
Yamaha Motor Corp., 335 Pa. Super. 311,313,484 A.2d 148,
150 (1984). "An amendment will not be allowed ... where it
states a new cause of action after the statute of limitations has
run, or where it will surprise or prejudice the opposing party."
Somerset Hospital v. Mitchell & Associates, 454 Pa. Super.
188, 199, 685 A.2d 141,147 (1996). Amendments should also
be disallowed "where there is no possibility that [an] apparent
defect could be cured." Spain v. Vincente, 315 Pa. Super. 135,
144, 461 A.2d 833,838 (1983).4
Timeliness of an amendment is, of course, a factor to be considered in
reviewing a motion to amend, but only insofar as it presents a question of
prejudice in the nature of loss of witnesses or eleventh hour surprise. Pilotti v.
Mobil Oil Corp., 388 Pa. Super. 518-19, 565 A.2d 1227, 1229 (1989). "The
possible prejudice must stem from the fact that the new allegations are offered late
4 Woltz v. Newville Borough Water & Sewer Authority, No. 96-4768 Civil Term
(Cumberland Co. June 27, 1997), at 3.
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rather than in the original pleading, and not from the fact that the opponent may
lose his [or her] case on the merits if the pleading is allowed." Gallo v. Yamaha
Motor Corp., 335 Pa. Super. 311, 314, 484 A.2d 148, 150 (1984) (emphasis in
original).
In the present, recently-commenced case, none of the impediments
mentioned above to amendment of Plaintiff's complaint is apparent. Based upon
the rule that amendments are to be liberally allowed, Plaintiff's motion will be
granted.5
ORDER OF COURT
AND NOW, this 8th day of November, 2000, upon consideration of
Defendant's preliminary objections to Plaintiff's complaint, in the form of a
motion for a more specific pleading and in the nature of a demurrer, and of
Plaintiff's motion to amend the complaint, and for the reasons stated in the
accompanying opinion, Defendant's preliminary objections are denied and
Plaintiff's motion to amend the complaint is granted.
BY THE COURT,
Robert L. O'Brien, Esq.
17 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
Attorney for Defendant
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
5 Nothing herein is intended to express an opinion as to whether Plaintiff's claim
for rent would be subject, upon motion, to a transfer to the law side of the court.
Cf. Adams v. Wolf, 49 Cumberland L.J. 279 (2000) (Bayley, J.).
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