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Home My WebLink About98-6576 EquityRONALD RILEY, AK-8743 in his own behalf, c/o SCI- Pittsburgh, Box 99901, Pittsburgh, PA 15233, Plaintiff FIRST UNION HOME EQUITY BANK, d/b/a Financial Lending Institution and Enjoying Commerce In The State of Pennsylvania, 1000 LOUIS ROSE PLACE, CHARLOTTE NORTH CAROLINA, 28288-1184, Defendant Vo ROBERT M. MRAZ, individually and residing at 3653 CHESTNUT STREET, CAMP HILL, PENNA. 17011-4313, Defendant IN THE COURT OF COMMON PI.EAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 98-6576 EQUITY TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT FIRST UNION HOME EQUITY BANK TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT AND NOW, this 2.~ rc~ day of December, 1999, upon consideration of the preliminary objections of defendant First Union Home Equity Bank to plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that plaintiff is directed to file a more specilic complaint, and are other~vise denied. Plaintiff is granted 45 days from the date of this order within which to tile the amended complaint. BY THE COURT, Ronald Riley, AK-8743 SCI-Greene 640 Jefferson Road Waynesburg, PA 15370-8090 Plaintiff, Pro Se 1,// /,.,dx Jr:' ~'(Ves ley O ler;'~_~) Robert M. Mraz 3653 Chestnut Street Camp Hill, PA 17011-4313 Defendant Lisa D. Blankenburg, Esq. Federman & Phelan Two Penn Center Plaza Suite 900 Philadelphia, PA 19102 Attorney for Defendant First Union Home Equity Bank .'rc 12/23/99 - Judge; Shep'd by Pcnny 12/22/99 RONALD RILEY. AK-8743 in his own behalf, c/o SCI- Pittsburgh, Box 99901, Pittsburgh, PA 15233, Plaintiff FIRST UNION HOME EQUITY BANK, d/b/a Financial Lending Institution and Enjoying Commerce In The State of Pennsylvania, 1000 LOUIS ROSE PLACE, CHARLOTTE NORTH CAROLINA, 28288-1184, Defendant ROBERT M. MRAZ, individually and residing at 3653 CHESTNUT STREET, CAMP HILL, PENNA. 17011-4313, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 98-6576 EQUITY TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT FIRST UNION HOME EQUITY BANK TO PLAINTIFF'S COMPLAINT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., December -43, 1999. In this equity case, a pro se plaintiff has filed an action against an individual and a bank. The gist of the complaint seems to be that a mortgage was placed upon certain real estate in which plaintiff had an interest, by thc individual and in thvor of the bank, without plaintiff's knowledge. For disposition at thi<. time are preliminary objections filed by the defendant bank to the plaintifff~ comt;laiat. The preliminary objections consist of a motion to dismiss for lack of specificity, a demurrer and a motion to dismiss for lack of capacity to sue. For the reasons stated in this opinion, plaintiff will be directed to file a more specific complaint and the preliminary objections will be otherwise denied. STATEMENT OF FACTS The caption of plaintiff's complaint indicates that it represents an action in equity, an action in trespass, an action in assignment and an action in attachment. The complaint identifies plaintiff as a citizen of Pennsylvania, currently residing at the State Correctional Institution at Pittsburgh.~ It identifies defendant First Union Home Equity Bank as "a corporation or similar which function is that of a financial lending institution," which "is being sued as an individual to the extent said business operates in the capacity of that defined under law governing corporations, and, as an individual based upon the affiliative personnel conducting business as an agent of the afore-named principal .... ,,2 Defendant Robert M. Mraz is identified as an individual residing at 3653 Chestnut Street, Camp Hill [Cumberland County], Pennsylvania, as plaintiff's stepfather, and as a person "responsible for the caretaking, safe-keeping, protection and upkeeping of the property at the afore-said address, supra.''3 The complaint alleges that plaintiff, plaintiff's (defendant Mraz) resided together at the Camp Hill mother and his stepfather home prior to plaintiff's incarceration, and that a "verbal" contract existed among them whereby, in the event of the death of either plaintiff's mother or his stepfather, "the portion of the estate at the Plaintiff's complaint, paragraph 2. Plaintiff's complaint, paragraph 3. PlaintiWs complaint, paragraph 4. 2 listed address would be inherited by Plaintiff.''4 Paragraphs 6 and 7 of the complaint read as follows: 6. In June of 1995, after illness, Plaintiff's mother passed and has been deceased, whereby, as accorded by the agreement prior, Plaintiff stood and now possesses through such agreement, that portion of the estate which was then possessed by his mother, and, by way of addition of Plaintiff's name to the deed of said property and estate, the prior verbal agreement was finalized on the property at 3653 Chestnut Street [Hereinafter, "Estate" for brevity], making Plaintiff a party in interest in said estate, and, a party possessing property not capable of division. 7. Prior to the addition of Plaintiff's name to the deed of the estate, unbeknownst to Plaintiff, Defendant MRAZ had applied for and was granted two (2) loans from which said Defendant used the estate Plaintiff had interest in as a collateral therefor. Said loans by Defendant were absent the knowledge and/or consent of Plaintiff, and, absent any meterial [sic] or other benefit by Plaintiff as to the area(s) of need for said loan(s), the material(s) purchased and/or enjoyed by Defendant as results of said loans, etc. This is to say that Defendant MRAZ, either prior to and/or after adding the Plaintiff to the deed of the estate as agreed upon prior, did deliberately, recklessly and maliciously keep Plaintiff in the dark and unaware of the financial situation relating to the loans, reasons for the need of such loans, and, the manner which the loans were to be repaid as well as using the estate as collateral therefor. According to the complaint, plaintiff learned of the lien or liens upon the property in October of 1998, after a notice of intention to foreclose was issued by defendant bank.5 One count of the complaint asserts a claim against Mr. Mraz for fraud, by virtue of his subjection of the property in which plaintiff had an interest to a lien "either prior to and/or after placement of Plaintiff on the deed as party in interest to the estate,''6 inter alia. Another count premises liability of defendant bank upon its conspiratorial Plaintiff's complaint, paragraph 5. Plaintiff's complaint, paragraph 8. Plaintiff's complaint, paragraph 17. 3 participation i~ his stepfather's fraud.7 The third count against defendant bank appears to sound in negligei~.c~.8 ']'he complaint requests equitable relief, including impoundment of bank records to prevent tampering9 and a direction to the district attorney to commence a criminal investigation of the matter.~° It also seeks compensatory damages in the amount of $15,000.00~ and punitive damages in the amount of$15,000.00.12 The preliminary objection of defendant bank in the form ora motion to dismiss the complaint as to it for lack of specificity contends that the defendant "is unable to defend against Plaintiff's Complaint as [defendant] cannot identify any specific legal theory under which Plaintiff has made any claim against [it].''13 The motion requests that the dismissal be with prejudice. ~4 The preliminary objection of defendant bank in the nature of a demurrer alleges a number of facts not contained in the complaint. Among these are allegations that the property in question was conveyed to plaintiff's mother and stepfather, as husband and wife and tenants by the entireties, in 1993 by plaintiff's stepfather; that they secured an $88,000.00 loan from defendant bank with a mortgage on the premises in 1994; that, at 7 Plaintiff's complaint, paragraphs 20-23. 8 Plaintiff's complaint, paragraphs 24-25. 9 Plaintiff's complaint, paragraph 26(b). l0 Plaintiff's complaint, paragraph 26(e). ~ Plaintiff's complaint, paragraph 26(g). ~2 Plaintiff's complaint, paragraph 26(h). 13 Preliminary objections of defendant First Union Home Equity Bank to plaintiff's complaint, paragraph 12. t4 Preliminary objections of defendant First Union Home Equity Bank to plaintiff's complaint, wherefore clause. 4 the time of the mortgage, plaintiff had no legal interest of record in the property: timt upon the death of plaintiff's mother in June of 1995 plaintiff's stepfather became tl~e owner of the premises; that on October 20, 1995, the property was conveyed to plain;it'! and plaintiff's stepfather by plaintiff's stepfather; and that as a consequence ora default in payments on the loan the property is the subject of foreclosure proceedings. ~5 Based upon these allegations, defendant bank contends that "Plaintiff's complaint is legally insufficient to sustain any cause of action against Defendant.''~6 The preliminary objection of defendant bank in the form of a motion to dismiss the complaint as to it for lack of capacity to sue maintains that "Plaintiff lacks capacity to sue [the bank] as there is no privity of contract between the parties."~7 DISCUSSION Motion To Dismiss Based on Lack of Specificity Dismissal of a pleading for lack of specificity is, as a general rule, not an appropriate remedy for the defect. "[A] claim should not be stricken or dismissed for mere lack of specificity." Garrett Electronics Corp. v. Conwell, 46 Cumberland L.J. 256, 260 (1997). "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 (1991). A review of plaintiff's complaint in the present case indicates that it is lacking in specifics as to the form, terms and recordation (if any) of the ~5 Preliminary objections of defendant First Union Home Equity Bank to plaintiff's complaint, paragraphs 2-7. 16 Preliminary objections of defendant First Union Home Equity Bank to plaintiff's complaint, paragraph 19. 17 Preliminary objections of defendant First Union Home Equity Bank to plaintiff's complaint, paragraph 25. alleged contract among plaintiff, his mother and his stepfather, as to the chronology of events upon which liability of defendant bank to plaintiff is predicated, and as to kno~vledge, constructive or actual, of defendant bank of plaintiff's "interest" in the property at the time the loan(s) and lien(s) were effected. These deficiencies, in the court's view, are so related to the elements of any legally cognizable claim by plaintiff against defendant bank as to seriously impair the ability of defendant bank to prepare a response to the pleading. For this reason, defendant bank's preliminary objections in the form of a motion to dismiss the complaint as to it for lack of specificity will be granted to the extent that plaintiff will be directed to file a more specific complaint. Demurrer Preliminary objections in the nature of a demurrer may be sustained and a claim of a plaintiff dismissed where it appears that the claim lacks merit as a matter of law.~8 However, a claim should be dismissed on a demurrer "only in clear cases.''19 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 will not uphold the pleading? In ruling upon a preliminary objection in the nature of a demurrer, the court "must accept as true all well-pled allegations and material facts averred in the complaint as well as inferences reasonably deducible therefrom and any doubt should be resolved in favor ~8 Philmar Mid-Atlantic, Inc. v. York Street Associates II, 389 Pa. Super. 297, 302, 566 A.2d 1253, 1255 (1989). ~9 Graham v. Pinckiney, 125 Pa. Commw. 233,235,557 A.2d 60, 61 (1989). 20 2 Goodrich-Amram 2d §1017(b):27, at 271 (1991). 6 of overruling the demurrer.''2~ "The question presented by a demurrer is xvhether, on the facts alleged, the law says with certainty that no recov..-.','y is possible.''22 In addition, "[i]t is well settled ... tlmt a demurrer cannot be a 'speaking demurrer' and cannot be used to supply a fact missing in the complaint." Johnston v. Lehman, 148 Pa. Commw. 98, 102, 609 A.2d 880, 882 (1992). In the present case, plaintiffs complaint is so indirect and lacking in specificity that it cannot be said with certainty that no recovery under the law is possible. Nor may the factual averments made by the bank in its preliminary objections be permitted to supplement the record for purposes of disposing of the detnurrer. For this reason, the demurrer of defendant bank to plaintiffs complaint as it relates to the bank will be denied. Motion To Dismiss Based on Lack of Capacity To Sue Lack of capacity to sue "has nothing to do xvith the right of a plaintiff to recover on the merits. Instead, it refers to the personal disability of a plaintiff by virtue of some statute or by reason of the fact that the plaintiff is not sui juris." 2 Goodrich-Amram 2d §1917(b):34, at 279 (1991). The motion of defendant bank to dismiss plaintiffs complaint as to it by reason of a lack of privity between plaintiff and the bank relates to plaintiffs right to recover on the merits rather than to a personal disability. For this reason, the motion of defendant bank to dismiss plaintiffs complaint as it relates to the bank on the ground of a lack of capacity to sue will be denied. For the foregoing reasons, the following order will be entered: 21 Tiedeman v. City of Philadelphia, 732 A.2d 696, 698 (Pa. Commw. Ct. 1999). 22 Feigley v. Department of Corrections, 731 A.2d 220, 222 (Pa. Commw. Ct. 1999). 7 ORDER OF COURT AND NOW, this 23rd day of December, 1999, upon consideration of the preliminary objections of defendant First Union Home Equity Bank to plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that plaintiff is directed to file a more specific complaint, and are otherwise denied. Plaintiff is granted 45 days from the date of this order within which to file the amended complaint. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Ronald Riley, AK-8743 SCl-Greene 640 Jefferson Road Waynesburg, PA 15370-8090 Plaintiff, Pro Se Robert M. Mraz 3653 Chestnut Street Camp Hill, PA 17011-4313 Defendant Lisa D. Blankenburg, Esq. Federman & Phelan Two Penn Center Plaza Suite 900 Philadelphia, PA 19102 Attorney for Defendant First Union Home Equity Bank 8