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Home My WebLink About2008-3034 CivilK. ROCHELLE WHITNEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW JENNIFER WERNER, Defendant : NO. 08-3034 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS, OLER and EBERT, JJ. OPINION and ORDER OF COURT OLER, J., October 28, 2008. In this civil case Plaintiff has sued Defendant for unjust enrichment, in replevin and for fraud in connection with an automobile which Plaintiff allegedly paid for and which Defendant allegedly refused to yield possession of' For disposition at this time are preliminary objections filed by Defendant in the nature of a demurrer to each of Plaintiff's claims.2 These preliminary objections were argued on September 3, 2008. For the reasons stated in this opinion, Defendant's preliminary objections will be denied. STATEMENT OF FACTS The gist of Plaintiff's complaint is that in August of 2007 Plaintiff paid $28,452.64 in order to purchase a certain 2008 Saturn Vue sports utility vehicle ,3 that Plaintiff had the vehicle titled in her and Defendant's name s,4 that Defendant induced Plaintiff to engage in this transaction by pretending to be Plaintiff's friend,5 that Plaintiff's gift to Defendant of an interest in the vehicle was ' Plaintiff's Complaint, filed May 13, 2008. 2 Defendant's Preliminary Objections to Plaintiffs Complaint, filed June 2, 2008. ' Plaintiffs Complaint, paras. 3, 5, 6. 4 Plaintiffs Complaint, para. 4 and Ex. "A." ' Plaintiffs Complaint, para. 31. conditional in that Defendant's use of the vehicle was dependent upon a continuation of the parties' joint residency,6 that Defendant terminated the joint residency,' and that Defendant continues to use the vehicle in derogation of Plaintiff's rights in it.8 Defendant's preliminary objections to Plaintiff's complaint read in their entirety, as follows: L DEMURRER 1. The Complaint fails to plead facts that if taken as true, are sufficient to state a cause of action in Count I [Unjust Enrichment]. IL DEMURRER 2. The Complaint fails to state a cause of action against Defendant in Count II [Replevin] because the Plaintiff does not hold a security interest in the subject automobile. III. DEMURRER 3. The Complaint fails to plead facts that if taken as true, are sufficient to state a cause of action in Count II. IV. DEMURRER 4. The Complaint fails to plead facts that if taken as true, are sufficient to state a cause of action in Count III [Common Law Fraud].9 DISCUSSION Statement of Law General principles pertaining to demurrers to pleadings. In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a pleading, the court "must accept all material facts set forth in the [pleading,] as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995) (citations omitted). A preliminary objection in the form of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that" the position challenged by the demurrer can not prevail. Id. at 489, 653 A.2d at 621. If any 6 Plaintiff's Complaint, para. 12. Plaintiff's Complaint, para. 13. s Plaintiff's Complaint, paras. 17, 29. 9 Defendant's Preliminary Objections to Plaintiff's Complaint, filed June 2, 2008. 2 lingering doubt remains as to whether to sustain the demurrer, "this doubt should be resolved in favor of [the nonmoving party]." Presbyterian Medical Center v. Budd, 2003 PA Super 323, ¶6, 832 A.2d 1066, 1070. As stated succinctly by the Pennsylvania Supreme Court, the standard governing the grant of a demurrer is highly restrictive—it is not appropriate if the facts as pleaded state a claim for which relief may be granted under any theory of law. White Deer Township v. Napp, 590 Pa. 300, 309, 912 A.2d 781, 786-87 (2006) (citation omitted) (emphasis added). Unjust enrichment. "`Unjust enrichment' is essentially an equitable doctrine.... Where unjust enrichment is found, the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred.... The elements necessary to prove unjust enrichment are: (1) benefits conferred on defendant by plaintiff, (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.... The application of the doctrine depends on the particular factual circumstances of the case at issue. In determining if the doctrine applies, our focus is not on the intention of the parties, but rather on whether the defendant has been unjustly enriched." Mitchell v. Moore, 1999 PA Super 77, ¶8, 729 A.2d 1200, 1203-04 (citations omitted) (emphasis omitted). "To sustain a claim of unjust enrichment, a claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that it would be unconscionable for [him or] her to retain." Torchia v. Torchia, 346 Pa. Super. 229, 233, 499 A.2d 581, 582 (1985) (citation omitted). Where an interest in property has been obtained by fraud, a constructive trust may be imposed upon such property to avoid unjust enrichment. See generally Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975). Replevin. In appropriate circumstances, the failure of a condition with respect to a "conditional gift" can form the basis for a cause of action. See, e.g., 3 Semenza v. Alfano, 443 Pa. 201, 279 A.2d 29 (1971). In such cases, actions in replevin for recovery of the gifted items have been permitted. See, e.g., Gindin v. Silver, 430 Pa. 409, 243 A.2d 354 (1968). Fraud. "To establish common law fraud, a plaintiff must prove: (1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation; and (5) damage to the party defrauded as a proximate result." Colaizzi v. Beck, 2006 PA Super 41, ¶9, 895 A.2d 36, 39. Application of Law to Facts In the present case, where it is alleged by Plaintiff (a) that Defendant induced Plaintiff to create an interest in a motor vehicle in her favor by a false pretense, (b) that the creation of the interest was understood by the parties to be a conditional gift, and (c) that the condition ceased to exist as a result of Defendant's action, it would be difficult to say with certainty no recovery could be premised upon the theories pled. Although it may be that ultimately the evidence will not support more than a partition action,10 it would be premature to conclude that such is the case at this preliminary stage of the proceeding. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 28th day of October, 2008, upon consideration of Defendant's Preliminary Objections to Plaintiff's Complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 10 See Act of April 27, 1927, P.L. 460, § 1, 68 P.S. § 111. 11 Vincent M. Monfredo, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff Andrew H. Shaw, Esq. Suite 11 200 S. Spring Garden Street Carlisle, PA 17013 Attorney for Defendant E K. ROCHELLE WHITNEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW JENNIFER WERNER, Defendant : NO. 08-3034 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS, OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 28th day of October, 2008, upon consideration of Defendant's Preliminary Objections to Plaintiff's Complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, J. Wesley Oler, Jr., J. Vincent M. Monfredo, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Plaintiff Andrew H. Shaw, Esq. Suite 11 200 S. Spring Garden Street Carlisle, PA 17013 Attorney for Defendant