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HomeMy WebLinkAbout02-3689 CivilTAMMY SIPES, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. RONALD BOUCH, THOMAS BIXLER, JR., DONALD GRUVER, in their official capacities as Supervisors of the South Newton Township Board of Supervisors, DEFENDANTS 02-3689 CIVIL TERM IN RE: MOTION OF DEFENDANTS RONALD BOUCH AND THOMAS BIXLER, JR. TO STRIKE PLAINTIFF'S AMENDED COMPLAINT, AND FOR JUDGMENT ON THE PLEADINGS ON PLAINTIFF'S ORIGINAL COMPLAINT OPINION AND ORDER OF COURT Bayley, J., March 14, 2003:-- On August 1, 2002, plaintiff, represented by Carol Cingranelli, Esquire, filed a complaint against defendants, Ronald Bouch, Thomas Bixler, Jr., and Donald Gruver, the three elected supervisors of South Newton Township, Cumberland County. Plaintiff avers that on June 11, 2002, she was suspended by defendants from her position as secretary/treasurer of South Newton Township. Pursuant to the Pennsylvania Whistleblower Law, 43 P.S. Section 1421-1428, she seeks, (1) restatement to her position, (2) an award of costs and attorney fees, (3) the assessment of a fine, and (4) the suspension of defendants from public service for a period of six month. Service of the complaint was made by the Sheriff against all defendants on 02-3689 CIVIL TERM August 19, 2002.1 On August 22, 2002, Cingranelli, by letter, granted defense counsel Steven Ludwig, Esquire, Ronald Bouch and Thomas Bixler, Jr., until October 8, 2002, to respond to the complaint. On October 2, 2002, Ludwig wrote to Cingranelli stating that Section 1426 does not apply to elected public officials. He asked her to stipulate to strike the requested relief that defendants be suspended from public service for a period of six months. On October 7, 2002, instead of filing a preliminary objection to the claim seeking suspension, defendants filed an answer to the complaint and new matter, endorsed with a notice to plead. On October 11, 2002, Cingranelli wrote to Ludwig saying that she agreed that a six month suspension of an elected supervisor was not authorized by the Whistleblower's Law. She stated: Therefore, I agree to eliminate this Request for Relief from our Complaint. It is my intent to file an Amended Complaint, which will exclude this particular demand, and I will forward same to your attention as soon as possible. On November 15, 2002, Ludwig wrote to Cingranelli that he had received her letter of October 11, 2002, but: [t]o date, however, an Amended Complaint has not been filed. Please file a praecipe to withdraw this request for relief from the Complaint or circulate a proposed Amended Complaint, with court order and stipulation, no later than November 25, 2002. Otherwise, I will file a Motion to Strike this demand for relief and seek sanctions as appropriate. On December 9, 2002, plaintiff filed an amended complaint which was similar to the original complaint in every way except that it deleted the claim seeking the The complaint against defendant, Donald Gruver, has been discontinued. -2- 02-3689 CIVIL TERM suspension of defendants from public service for a period of six months. On December 11, 2002, defendants, despite the fact that they had filed an answer and new matter to the original complaint on October 7, 2002, filed a motion to strike the relief sought in the original complaint for the suspension of defendants from public service for six months.: On January 21, 2003, plaintiff filed a reply to defendants' new matter that defendants had filed in reply to plaintiff's original complaint. On January 22, 2003, defendants, despite the fact that the amended complaint conforms exactly with the pleading that Ludwig sought when he wrote to plaintiff's counsel on October 2, 2002, filed a motion to strike the amended complaint as having been filed in violation of Pa. Rule of Civil Procedure 1033.3 At the same time, despite the fact that they had an outstanding preliminary objection to the original complaint, albeit filed subsequent to their answer and new matter, defendants filed a motion for judgment on the pleadings to plaintiff's original complaint. Plaintiff responded by claiming that there was an agreement of counsel to file an amended complaint. A hearing was conducted on February 21, 2003, at which evidence was taken on that issue, and argument made on both the motion of defendants' to strike plaintiff's : This is a preliminary objection to the original complaint in the form of a demurrer challenging the legal sufficiently of that claim for relief. Pa. Rule of Civil Procedure 1028(a)(4). 3 This is a preliminary objection to the amended complaint seeking dismissal for the failure of the pleading to conform to a rule of court. Pa. Rule of Civil Procedure 1028(a)(2). -3- 02-3689 CIVIL TERM amended complaint, and their motion for judgment on the pleadings to plaintiff's original complaint. I. DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFF'S AMENDED COMPLAINT Pa. Rule of Civil Procedure 1033 provides: 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 .... (Emphasis added.) When plaintiff filed her amended complaint on December 9, 2002, she had not sought or obtained leave of court, nor was there a filed consent of defendants to amend her pleading. Letters which are not filed with the court cannot affect the pleadings. Vetenshtein v. City of Philadelphia, 755 A.2d 62 (Pa. Commw. 2000). Therefore, the amended complaint was not filed in conformity with Rule 1033. In Vetenshtein, the Commonwealth Court of Pennsylvania stated that the failure to file a preliminary objection to an amended complaint waives a Rule 1033 violation. Pa. Rule of Civil Procedure 1026(a) provides: Except as provided by subdivision (b), every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead. (Emphasis added.) Defendants did not file their preliminary objection to plaintiff's amended complaint until January 22, 2003, which was more than twenty days after service. In paragraph 11 of their motion to strike, defendants aver that they did not file a response -4- 02-3689 CIVIL TERM because there was no notice to plead on the amended complaint. However, that means that they did not have to file a responsive pleading, not that if they chose to file such a pleading they did not have to comply with the time requirement in Rule 1026(a).4 Rule 1026(a) has been interpreted as permissive rather than mandatory. Peters Creek Sanitary Authority v. Welch, 681 A.2d 167 (Pa. 1996). It is left to the sound discretion of the trial court to permit a late filing of a pleading where the opposing party will not be prejudice and justice so requires. Id. We do not, however, have to determine whether to exercise such discretion here because the failure of plaintiff to file a timely preliminary objection to defendants' untimely preliminary objection constitutes a waiver of the untimeliness of the Rule 1033 objection. Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa. Super. 436 (1979). In Catanese v. Taorminia, 437 Pa. 519 (1970), the Supreme Court of Pennsylvania stated, in dicta, that an amended complaint filed in violation of Rule 1033 is a nullity. In Vetenshtein v. City of Philadelphia, supra, a complaint filed in violation of Rule 1033 was allowed to stand because the Commonwealth Court concluded that unlike in Catanese: (1) the complaint was not filed in direct contradiction to an outstanding court order, (2) there was no preliminary objection filed to the amended complaint, and (3) uniquely, the party who did not violate Rule 1033 would have been the party punished by allowing the amended complaint to stand. None of these factors 4 Rosenbloom v. Engines, Inc., 8 D. & C.3d 787 (Phila. Co. 1979). -5- 02-3689 CIVIL TERM are present in the case sub judice. Because plaintiff violated Rule 1033, and defendants have preliminary objected to that violation, we find that the amended compliant must be stricken. II. DEFENDANTS' MOTION FOR A JUDGMENT ON THE PLEADINGS TO PLAINTIFF'S ORIGINAL COMPLAINT Pa. Rule of Civil Procedure 1034 provides: (a) After the relevant proceedings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. (b) The court shall enter such judgment or order as shall be proper on the pleadings. Defendants aver as the sole reasons for their motion for a judgment on the pleadings that (1) plaintiff failed to answer the averments of fact in their new matter, (2) those averments of fact are therefore admitted under Pa. Rule of Civil Procedure 1029(b), and (3) based upon those admissions they are entitled to a judgment on the pleadings. Defendants, however considered on this motion are: (1 misstate the pleadings. The pleadings to be plaintiff's complaint filed on August 1, 2002, (2) defendants' answer and new matter filed on October 7, 2002, and (3) plaintiff's reply to defendants' new matter filed on January 21, 2003.5 When defendants filed a motion for judgment on the pleadings on January 22, 2003, plaintiff had already filed a reply to 5 The preliminary objection filed by defendants on December 11, 2002, after they had filed the answer and new matter to plaintiff's complaint on October 7, 2002, is of no legal significance. -6- 02-3689 CIVIL TERM defendants' new matter on January 21, 2003. A reply to new matter is a pleading under Rule 1017(a). Since it is endorsed with a notice to plead an answer should have been filed pursuant to Rule 1026(a) within twenty days after service. As previously stated, Rule 1026(a) has been interpreted as permissive rather than mandatory. However, as in the situation involving plaintiff's filing the amended compliant, we do not have to determine whether to exercise discretion here because when plaintiff filed an untimely reply to defendants' new matter, the failure of defendants to file a timely preliminary objection constitutes a waiver of the untimeliness? Taking into consideration the reply, plaintiff has not admitted facts pleaded in defendants' new matter that would warrant 6 If the issue of exercising our discretion as to whether to allow the late reply to new matter to stand had not been waived, we would still allow it to stand. Defendants have not been prejudiced by the late filing. On October 2, 2002, Ludwig wrote to Cingranelli, five days before he filed the answer with new matter, asking her to stipulate to strike that part of the complaint that requested that defendants be suspended from public service for a period of six months. On October 11, 2002, four days after the answer with new matter was filed, Cingranelli wrote to Ludwig agreeing to his request and stating that she intended to file an amended complaint. Ludwig again wrote to Cingranelli on November 15, 2002. He noted that an amended complaint had not been filed, and gave her until November 25, 2002, to "circulate a proposed Amended Complaint, with court order and stipulation." Clearly, Ludwig allowed Cingranelli to believe that she could file an amended complaint deleting the request that defendants be suspended from public service for a period of six months. That would negate any need to reply to the new matter defendants filed in response to the original complaint. Despite the fact that the amended complaint provided the exact relief for his clients that he wanted, when Cingranelli did not follow the strict requirement of Rule 1033, Ludwig, smelling an opportunity to have the original complaint dismissed, did not waive the requirements of the Rule. Under these circumstances, discretion would warrant our allowing the previously filed late reply to new matter to stand. -7- 02-3689 CIVIL TERM entry of a judgment on the pleadings.7 For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of March, 2003, IT IS ORDERED: (1) Defendants' preliminary objection to plaintiff's amended complaint, IS GRANTED. The amended complaint, IS STRICKEN. (2) Defendants' motion for a judgment on the pleadings, IS DENIED. By the Court, Edgar B. Bayley, J. Ron Turo, Esquire For Plaintiff Steven K. Ludwig, Esquire For Ronald Bouch and Thomas Bixler, Jr. :sal 7 We are constrained to note that we are no more enamored with the tactics of Ludwig than we are with the lack of pleading skills of Cingranelli, and Ludwig as well. This whole imbroglio could have been easily avoided as both counsel agreed that the claim for suspension of an elected official is not authorized under the Whistleblowers Act. Ironically, by trying to take advantage of the lack of Cingranelli's pleading skills, Ludwig winds up with the original complaint that still contains the request for the relief that his clients object to, notwithstanding Cingranelli's efforts to have it removed. In any event, as he has known since October 11, 2002, plaintiff will not seek to take that claim to trial. -8-