HomeMy WebLinkAbout02-103 CIVIL JOHN GROSS &
COMPANY, INC.,
Plaintiff
Vo
GARRY L. BENTZEL and:
RUBY A. BENTZEL,
t/d/b/a DUTCH COUNTRY:
RESTAURANT, and
DUTCH COUNTRY
RESTAURANT, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-103 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S FIRST AMENDED COMPLAINT
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
OLER, J., November ,2002.
For disposition in this breach of contract and quantum meruit case are
preliminary objections of Defendants to Plaintiff's first amended complaint. The
preliminary objections raise issues of legal sufficiency, venue, specificity, and
conformity to rules of court.
For the reasons stated in this opinion, Defendants' preliminary objections
will be denied.
STATEMENT OF FACTS
For present purposes, the record in the case consists of Plaintiff's first
amended complaint and Defendants' preliminary objections to the first amended
complaint.~ The allegations of Plaintiff's first amended complaint may be
summarized as follows:
Plaintiff is John Gross & Company, Inc., a Pennsylvania corporation with
its principal place of business at 400 Cheryl Avenue, Mechanicsburg, Cumberland
~ Defendants' preliminary objections did not contain a notice to plead and no answer was filed to
the preliminary objections.
County, Pennsylvania) Defendants Garry L. Bentzel and Ruby A. Bentzel are
adult individuals residing at 1031 Beir Road, Hanover [York County],
Pennsylvania) In their individual capacities they are registered owners of the
fictitious name "Dutch Country Restaurant.''4 Defendant Dutch Country
Restaurant, Inc., is a business entity located at 946 Baltimore Street, Hanover
[York County], Pennsylvania.s
Plaintiff is in the business of supplying goods and services to restaurants.6
On July 10, 1996, Plaintiff received a written "Credit Application and Agreement"
executed by Defendant Garry L. Bentzel.7 A copy of this document is attached to
Plaintiff' s first amended complaint.8
The "trade name" of the applicant was given on the application as "Dutch
Country Restaurant.''9 The "legal company name" of the applicant was given as
Dutch Country Restaurant Inc.''~° The "business name" of the applicant was given
as "Dutch Country Restaurant.''~ The "owners/parmers" of the applicant were
given as "Garry & Ruby Bentzel.''~2 The "authorized representative of applicant"
was given as "Garry L. Bentzel.''~3 Mr. Bentzel's "title" was given as
Plaintiff's First Amended Complaint, filed Sept. 6, 2002, para. 1.
S ld. para. 2.
Id. para. 8.
Id. para. 3.
Id.
para. 5.
Vid. para. 4, Ex. A.
8Id. Ex.A.
9Id'
~O ld'
~ Id.
~2 Id'
~ Id.
2
"president.''~4 The "business address" of the applicant was given as "946
Baltimore St., Hanover, Pa.''~5
Plaintiff began supplying goods and services to "Dutch Country
Restaurant" on account. 16 By April 1, 2000, Plaintiff was owed $16,126.51 on the
17
account.
On April 1, 2000, "Defendants" entered into an agreement of sale with Sam
Taylor Enterprises, Inc., "whereby Defendants agreed to sell a restaurant to Sam
Taylor Enterprises, inc. upon payment of $200,000.00 amortized over a 5 year
period during which time Sam Taylor Enterprises, inc. would manage the
restaurant.''~8 Under the agreement, "Defendants" retained rights to inspect,
manage, work for, and retake possession of the business upon default. ~9 A copy of
the agreement of sale is not attached to Plaintiff's first amended complaint, but
20
Defendants are in possession of a copy.
On April 4, 2000, Plaintiff received a written "Credit Application and
Agreement" executed by one Melissa A. Spalla.2~ A copy of this document is
attached to Plaintiff's first amended complaint.22
The "trade name" of the applicant was given on the application as "Dutch
Country Restaurant.''23 The "legal company name" of the applicant was given as
14/d.
~s /d. Plaintiff's address was indicated as 308 Cheryl Ave., P.O. Box 1189, Mechanicsburg
[Cumberland County], PA 17055. Id.
16 Id., paras. 4-5.
~7Id. para. 5.
~8Id. para. 6.
19Id. para. 11.
2o See Defendant's Preliminary Objections to Plaintiff's First Amended Complaint, filed Sept. 20,
2002, para. 39 (purporting to attach agreement of sale to preliminary objections). Defendants
submitted an alleged copy of the agreement of sale to the prothonotary following oral argument.
See Letter from Douglas G. Gent, Esq., to Office of the Prothonotary (Oct. 29, 2002) (requesting
that enclosed copies of agreement be clocked in and distributed to argument court judges).
2~ Plaintiff's First Amended Complaint, filed Sept. 6, 2002, Ex. B.
22 ]d.
3
"Sam Taylor Enterprises.''24 The "business name" of the applicant was given as
"Sam Taylor Enterprises, Inc.''25 The "owners/partners" of the applicant were
given as "Melissa Spalla" and "Sam Spalla.''26 The "authorized representative of
applicant" was given as "Melissa A. Spalla.''27 Ms. Spalla's "title" was given as
"V.P.''28 The "business address" of the applicant was given as "946 Baltimore St.,
Hanover, PA.''29
Sam Taylor Enterprises, inc., and its stockholders acted in agency
capacities for "Defendants, the true owners of the business and fictitious name, in
contracting for goods and services for the Dutch Country Restaurant from
Plaintiff.''3° By June 26, 2001, the debt owed to Plaintiff for goods and services
provided to the restaurant totaled $48,79 i.57.31
"[A]ll payments made by Defendants on their account were received in
Cumberland County" by Plaintiff at the address indicated on the credit
applications.32 In September of 2001, "Defendants retook possession of the
business pursuant to a default under the Agreement of Sale and retained as
liquidated damages all payments made by Sam Taylor Enterprises, inc.''33
24 ]d.
25 ]d.
26 Id.
27 ]d.
28 ]d.
:9Id. Plaintiff's address was indicated as 308 Cheryl Ave., P.O. Box 1189,
[Cumberland County], PA 17055. Id.
3o Id. para. 12.
3~ Id. paras. 9-10.
32 Id. para. 14.
33 Id. para. 13.
Mechanicsburg
4
Plaintiff has demanded payment of the $48,791.57 debt.34 However, the
amount remains owing,35 under breach of contract36 and quantum meruit37
theories.
Preliminary objections to Plaintiff's first amended complaint were filed by
Defendants.38 The preliminary objections request dismissal of the first amended
complaint due to (a) legal insufficiency arising out of a lack of averments
supporting individual liability of Defendants Garry L. Bentzel and Ruby A.
Bentzel for obligations incurred by their corporation,39 (b) legal insufficiency
arising out of the absence of specificity in terms of the agency relationship
between Defendants and Sam Taylor Enterprises, Inc.,4° (c) legal insufficiency
arising out of a lack of averments supporting a benefit to Defendants from goods
and services provided while Sam Taylor Enterprises, Inc., was operating the
restaurant,4~ (d) improper venue,42 (e) failure to state whether Defendant's liability
was based upon a writing,43 and (f) failure to attach a copy of the agreement of
sale involving Sam Taylor Enterprises, Inc.44
The issues raised in Defendants' preliminary objections were argued on
October 23, 2002.
34 Id. para. 16.
35 ]d.
~6Id. paras. 17-18.
~7Id. paras. 19-20.
38 Defendant's Preliminary Objections to Plaintiff's First Amended Complaint, filed Sept. 20,
2002.
39 Id. paras. 31-37.
4°Id. paras. 26-30, 38-46.
4~ Id. paras. 47-50.
42 Id. paras. 13-18.
43 Id. paras. 19-23.
44Id. paras. 24-25.
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DISCUSSION
Statement of Law
Legal insufficiency failure to state claim upon which relief can be
granted Under Pennsylvania Rule of Civil Procedure 1028(a)(4), preliminary
objections may include a challenge to the legal sufficiency of a pleading--a
demurrer. Pa. R.C.P. 1028(a)(4). "The question presented by a demurrer is
whether, on the facts averred, the law says with certainty that no recovery is
possible, and where a doubt exists as to whether a demurrer should be sustained,
this doubt should be resolved in favor of overruling it." Scarpitti v. Weborg, 530
Pa. 366, 369, 609 A.2d 147, 148-49 (1992); see Cianfrani v. Commonwealth,
State Employees' Retirement Board, 505 Pa. 294, 297, 479 A.2d 468, 469 (1984)
(stating that demurrer not to be sustained and complaint dismissed unless law says
with certainty no recovery possible).
"[A] demurrer admits every well-pleaded fact and all inferences reasonably
deducible therefrom .... "Rutherfoord v. Presbyterian-University Hospital, 417
Pa. Super. 316, 321-22, 612 A.2d 500, 502 (1992). "An averment of agency is a
fact that is admitted for purposes of a demurrer .... "Line Lexington Lumber &
Millwork Co., Inc. v. Pennsylvania Publishing Corp., 451 Pa. 154, 163, 301 A.2d
684, 689 (1973).
"[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).
Specificity. Under Pennsylvania Rule of Civil Procedure 1028(a)(3),
preliminary objections may include a challenge to the specificity of a pleading.
The question to be decided when the specificity of a pleading is challenged "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).
"[D]eficiencies of specificity will generally not result in relief on preliminary
objections where the objecting party may be presumed to have at least as much
6
information as does the pleader." Clark v. General Mills, Inc., 48 Cumberland
L.J. 124. 127 (1999) (citation omitted). 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).
"A preliminary objection [challenging the specificity of a complaint] cannot
be used to compel the pleading of evidentiary matter." 2 Goodrich-Amram 2d
§1019(a):6, at 258 (2001) (citations omitted). Nor, as noted previously, may a
challenge to specificity be used to secure dismissal of a complaint.45
Venue. Under Pennsylvania Rule of Civil Procedure 1028(a)(1), a
preliminary objection may include a challenge based upon improper venue.
Actions against individuals and corporations may be brought in "a county.., in
which the cause of action arose or where a transaction or occurrence took place
out of which the cause of action arose," inter alia. Pa. R.C.P. 1006(a), 2179(a)(3),
(4). Where venue is proper as to one claim of several claims against a defendant,
it is proper as to all claims. Pa. R.C.P. 1006(f). Where venue is proper as to one of
several defendants, it is proper as to all defendants. Pa. R.C.P. 1006(c).
In the case of a contract requiring a payment of money, "in the absence of
agreement to the contrary,.., payment is due at the plaintiff's residence or place
of business, and venue is proper there in a breach of contract action alleging
failure to make payment." Lucas Enterprises, Inc. v. Paul C. Harman Co., Inc.,
273 Pa. Super. 422, 425, 417 A.2d 720, 721 (1980).
Conformity to rules of cour~requirements respecting a writing. Under
Pennsylvania Rule of Civil Procedure 1028(a)(2), a preliminary objection may
include a challenge to a pleading's conformity to rule of court. Pa. R.C.P.
1028(a)(2).
See Dorsey v. Pinker, 48 Cumberland L.J. 271 (1999); Borough of New Cumberland v. Gates,
47 Cumberland L.J. 21 (1997); McNally v. Etnoyer, 1 Pa. D. & C.4th 372, 375 (Lancaster 1988);
7
Under Rule 1019(h), "[w]hen any claim.., is based upon an agreement,
the pleading shall state specifically if the agreement is oral or written." Pa. R.C.P.
1019(h). Under Rule 1019(i), "[w]hen any claim.., is based upon a writing, the
pleader shall attach a copy of the writing." Pa. R.C.P. 1019(i). Where a document
is within the possession of a party, the prejudice to that party from its omission
from another party's pleading can generally be regarded as de minimis. See, e.g.,
Foster v. Peat Marwick Main & Co., 587 A.2d 382, 387 (Pa. Commw. Ct. 1991).
Application of Law to Facts
In the present case, with respect to Defendants' demurrers to various
aspects of Plaintiff's first amended complaint, the court is of the view that the
circumstances as pled surrounding Plaintiff's provision of goods and services are
sufficient to survive a motion for dismissal. Stated otherwise, ambiguities as to
the capacities of the Defendants with regard to the transactions alleged, although
perhaps resolvable on the basis of evidence in Defendants' favor, do not as pled
permit a preliminary termination of the case, or some portion of it, on the ground
that the law says with certainty that no recovery is possible.
To the extent that the pleading might be more specific, the omitted details
(a) are as much within Defendants' knowledge as Plaintiff's, (b) can be supplied in
responsive pleadings and through discovery, if necessary, for purposes of future
dispositive motions, and (c) do not render the first amended complaint
unanswerable.
With respect to venue, the record as it exists supports Plaintiff's position
that venue is proper in Cumberland County, where payment allegedly was due
and, in breach of Defendants' obligation, not made. In this regard, the record does
not, through depositions or otherwise, contain a basis upon which a contrary ruling
could be justified.
Huguet v. Foodsales, Inc., 3 Pa. D. & C.3d 136, 138 (Chester 1977); 2 Goodrich Amram 2d
1017(b): 12, at 256 (1991).
8
With respect to the purported failure to Plaintiff to state whether its claim is
based upon a writing, and the failure to attach a copy of the agreement of sale
involving Sam Taylor Enterprises, Inc., to the pleading, it may be noted that
Plaintiff did attach to the first amended complaint copies of the credit
applications/agreements upon which Defendants' liability is directly predicated,
and that a copy of the agreement of sale, which is more incidental and evidentiary
in nature with respect to Plaintiff's claim, is in the possession of Defendants.
Under the circumstances, a dismissal of Plaintiff's complaint, or part of it, as
requested on the basis of these issues would not be appropriate.
For the foregoing reasons, the following order of court will be entered:
ORDER OF COURT
AND NOW, this day of November, 2002, upon consideration of
Defendants' preliminary objections to Plaintiff's first amended complaint, and for
the reasons stated in the accompanying opinion, the preliminary objections are
denied and Defendants are granted twenty days within which to file an answer to
the first amended complaint.
BY THE COURT,
George B. Faller, Jr., Esq.
Carl C. Risch, Esq.
Ten East High Street
Carlisle, PA 17013-3093
Attorneys for Plaintiff
Douglas H. Gent, Esq.
1157 Eichelberger Street
Hanover, PA 17331
Attorney for Defendants
J. Wesley Oler, Jr., J.
9
10
JOHN GROSS &
COMPANY, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vo
CIVIL ACTION - LAW
GARRY L. BENTZEL and:
RUBY A. BENTZEL,
t/d/b/a DUTCH COUNTRY:
RESTAURANT, and
DUTCH COUNTRY
RESTAURANT, INC.,
Defendants
NO. 02-103 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S FIRST AMENDED COMPLAINT
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this day of November, 2002, upon consideration of
Defendants' preliminary objections to Plaintiff's first amended complaint, and for
the reasons stated in the accompanying opinion, the preliminary objections are
denied and Defendants are granted twenty days within which to file an answer to
the first amended complaint.
BY THE COURT,
George B. Failer, Jr., Esq.
Carl C. Risch, Esq.
Ten East High Street
Carlisle, PA 17013-3093
Attorneys for Plaintiff
J. Wesley Oler, Jr., J.
12
Douglas H. Gent, Esq.
1157 Eichelberger Street
Hanover, PA 17331
Attorney for Defendants