HomeMy WebLinkAbout2010-0077 Civil
TARGET NATIONAL BANK, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
V. :
:
BECKY D. ROSE, :
DEFENDANT : 10-0077 CIVIL TERM
BEFORE HESS, P.J. AND MASLAND, J.
OPINION AND ORDER OF COURT
Masland, J., April 26, 2010:--
This matter arises from a complaint filed by plaintiff, Target National Bank, suing
defendant, Becky D. Rose, for breach of an open-ended credit card contract, under a theory
of an account stated. Now before the court is plaintiff’s motion for judgment on the pleadings.
Plaintiff argues defendant’s unverified answer and new matter either admit or generally deny
the complaint’s allegations. Thus, defendant admits all allegations and the court should grant
judgment on the pleadings. We disagree.
For the purposes of a motion for judgment on the pleadings, we limit our consideration
to the pleadings and relevant documents attached thereto, accepting as true all well-pleaded
facts. Wachovia v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007). Judgment on the pleadings
is appropriate when there are no disputed factual issues and the moving party is entitled to
judgment as a matter of law. Id.
A review of the pleadings indicates defendant’s unverified answer and new matter
allege facts not of record. Although a pleading may be stricken because of an insufficient
verification, it is an abuse of the court's discretion to do so without affording an opportunity to
file an amended verification. Lewis v. Erie Ins. Exchange, 421 A.2d 1214, 1217 (Pa. Super.
1980). Accordingly, we grant defendant 30 days leave to amend her pleading to include the
necessary verification.
10-0077 CIVIL TERM
We find further support for our decision in Rule 126 which directs us to liberally
construe procedural rules “to secure the just, speedy[,] and inexpensive determination of
every action ….” Pa. R.C.P. No. 126. Plaintiff sues defendant on an account stated claim.
Where a claim is based on an account stated, “the account must be rendered, and the other
party must accept, agree to, or acquiesce in the correctness of the account.” Target National
Bank v. Kilbride, 10 Pa. D. & C. 5th 489 (C.P. Centre, 2010), available at 2010 WL 1435304,
*492 (emphasis added). Here, plaintiff seeks to exclude the factual averments in defendant’s
answer and new matter that specifically refuse to accept the correctness of the credit card
account at issue. We decline to employ a technical defect to defeat defendant’s apparently
meritorious defense where the defect is minor and not prejudicial to plaintiff. Althof, Inc. v.
Spartan Inns of America, 441 A.2d 1236, 1238 (Pa. Super. 1982).
ORDER OF COURT
AND NOW, this day of April, 2010, Target National Bank’s motion for
DENIEDGRANTED
judgment on the pleadings is . Becky D. Rose is 30 days to amend her answer
and new matter to include the necessary verification.
By the Court,
Albert H. Masland, J.
Gregg L. Morris, Esquire
213 E Main Street
Pittsburgh, PA 15106
For Plaintiff
Becky D. Rose, Pro se
430 State Street
Enola, PA 17025
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TARGET NATIONAL BANK, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
V. :
:
BECKY D. ROSE, :
DEFENDANT : 10-0077 CIVIL TERM
BEFORE HESS, P.J. AND MASLAND, J.
ORDER OF COURT
AND NOW, this day of April, 2010, Target National Bank’s motion for
DENIEDGRANTED
judgment on the pleadings is . Becky D. Rose is 30 days to amend her answer
and new matter to include the necessary verification.
By the Court,
Albert H. Masland, J.
Gregg L. Morris, Esquire
213 E Main Street
Pittsburgh, PA 15106
For Plaintiff
Becky D. Rose, Pro se
430 State Street
Enola, PA 17025
:sal