Loading...
HomeMy WebLinkAbout02-4101 CivilTHE BANK OF NEW YORK, TRUST U/A DATED 12/1/01 (EQCC TRUST 2001-2) Plaintiff VS. RICHARD M. WALLACE, Defendat IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4101 CIVIL CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTION OF DEFENDANT BEFORE BAYLEY AND HESS. J.J. OPINION AND ORDER The captioned case is a mortgage foreclosure action. The plaintiff, The Bank of New York, Trust U/A, alleges that a mortgage, with respect to 112 North 34th Street Camp Hill, Cumberland County, a property owned by the defendant, is in default. The issue before the court involves the defendant's preliminary objection to the plaintiff' s complaint. The defendant asserts that the complaint's verification is invalid because it fails to comply with Pennsylvania Rule of Civil Procedure 1024. The verification of the complaint contains only the signature of the plaintiff' s attorney and not the signature of any representative of the plaintiff having knowledge of the facts asserted in the complaint. Pennsylvania Rule of Civil Procedure 1024 states: (a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge 02-4101 CIVIL as to a part and upon information and belief as to the remainder. (b) If a pleading contains averments which are inconsistent in fact, the verification shall state that the signer has been unable after reasonable investigation to ascertain which of the inconsistent averments, specifying them, are true but that the signer has knowledge or information sufficient to form a belief that one of them is true. (c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person's information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party. In summary, the rule requires that the verification shall be made normally by one or more of the parties filing the pleading. There is an exception if all of the parties lack sufficient knowledge or information or are outside the jurisdiction of the court. The exception to the rule is further satisfied if the person making the verification states the source of their information and the reason why the verification was not made by a party. It is important, however, that a specific reason be stated. "Merely stating that the party is unavailable, ..., does not demonstrate the necessary prerequisites for permitting a nonparty to make the verification ...."Lewis v. Erie Insurance Exchange, 421 A.2d 1214, 1217 (Pa. Super. 1980). In Hercoform Marketing, Inc. v. Brown, 75 Pa. D. & C. 2d 02-4101 CIVIL 394 (1975), the court stated that it is well settled that a verification made by an attorney for the pleader is defective when it merely avers the parties were outside the jurisdiction. In the matter sub judice, the complaint is verified by the plaintiff' s attorney with assertions that the plaintiff is outside the jurisdiction and/or the verification could not be obtained within the time allowed. The verification offers no further explanation. Interestingly enough, it goes on to say that "[I]t is counsel's intention to substitute a verification from Plaintiff as soon as it is received by counsel." In other words, the verification itself contains something of a concession that an amended verification will be required. We are somewhat mystified, therefore, why the case is now before the court on the question of the adequacy of the verification. We will sustain the preliminary objection of defendant. It would not be proper, however, for us to dismiss this action without giving the plaintiff the opportunity to amend the verification. See Lewis v. Erie Insurance Exchange, supra. ORDER AND NOW, this 13th day of January, 2003, the preliminary objection of the defendant is SUSTAINED. The plaintiff is granted leave to amend its pleading in accordance with the opinion filed of even date herewith. BY THE COURT, Jenine R. Davey, Esquire For the Plaintiff Vicki Piontek, Esquire For the Defendant Kevin A. Hess, J. 02-4101 CIVIL :rlm THE BANK OF NEW YORK, TRUST U/A DATED 12/1/01 (EQCC TRUST 2001-2) Plaintiff VS. RICHARD M. WALLACE, Defendat IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4101 CIVIL CIVIL ACTION - LAW PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE BAYLEY AND HESS. J.J. ORDER AND NOW, this 13th day of January, 2003, the preliminary objection of the defendant is SUSTAINED. The plaintiff is granted leave to amend its pleading in accordance with the opinion filed of even date herewith. BY THE COURT, Jenine R. Davey, Esquire For the Plaintiff Vicki Piomek, Esquire For the Defendam :rlm Kevin A. Hess, J.