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Home My WebLink About2002-4950 Civil GREGORY SCOTT WHITEFORD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW ALLFIRST FINANCIAL, INC., Defendant NO. 02-4950 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., February 14,2006. In this civil action, an IRA account depositor has sued a financial institution as a result of the institution's refusal to maintain an interest rate of 10% on the account indefinitely. 1 Plaintiff s complaint contains counts for a declaratory judgment, violation of Pennsylvania's Unfair Trade Practices Act and Consumer Protection Law, fraud, breach of contract, breach of fiduciary duty, quantum meruit, and promissory estoppel. 2 For disposition at this time are Defendant's preliminary objections in the nature of a demurrer to Plaintiff s quantum meruit and promissory estoppel claims.3 The ground for the demurrer is that "[a]s a matter oflaw, the doctrines of quantum meruit and promissory estoppel are inapplicable where the relationship between the parties is governed by an express contract. ,,4 Defendant's preliminary objections were argued on January 11, 2006. For the reasons stated in this opinion, the preliminary objections will be denied. 1 Complaint, ~~ 9-11, 16-18, filed October 10,2002 (hereinafter CompI. ~. 2 CompI. ~~ 21-26,28-37,39-44,46-49,51-53,55-59,61-65. 3 Preliminary Objections to Plaintiffs Complaint, ~~ 1-6, filed December 9, 2002 (hereinafter Prelim. Obj. ~. STATEMENT OF FACTS According to Plaintiff's complaint, in the early 1980s Plaintiff opened an individual retirement account with Defendant's predecessor which paid interest at the rate of ten percent per annum. 5 Accounts of the type opened by Plaintiff eventually resulted in class action litigation, the gist of which was described by the Pennsylvania Supreme Court as follows: Between January 1982 and June 1984 Dauphin Bank offered certificates of deposit for individual retirement accounts which paid a variable rate of interest based on the yield of two-year treasury notes, but which would pay no less than 10% interest. Approximately 4,900 such accounts were open at the time this lawsuit began, and the bank now seeks to terminate these accounts and replace them with other investment vehicles paying a lower interest rate. At issue is whether the 10% CDs were sold with the understanding that they would be renewable every eighteen months until the IRA account holder withdrew this investment from his IRA account, or whether this "perpetual" renewal option was not a feature of the contract between the bank and the account holder. It is undisputed that the bank provided an IRA kit which contained a brochure which stated that the interest rate for the CD would not go below 10% as long as Dauphin Deposit offered an 18 month variable rate account, but the extent to which these brochures were made available or explained to customers is disputed by the parties. Dauphin Deposit Bank and Trust Co. v. Hess, 556 Pa. 190, 192-93, 727 A.2d 1076, 1077 (1999). Although the class action was settled,6 Plaintiff avers that he opted out of the class.7 According to Plaintiff s complaint, the financial institution ultimately terminated the guaranteed interest rate feature of his account. 8 As noted, 4 Prelim. Obj. ~ 5. 5 CompI. ~~ 3-7. 6 CompI. ~ 14. 7 CompI. ~ 13. 8 CompI. ~~ 16-19. 2 Plaintiff s complaint consists of various counts, including breach of contract, quantum meruit, and promissory estoppel,9 and Defendant has demurred to the latter counts on the ground that they are inappropriate when an action is based 10 upon a contract. DISCUSSION 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 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 P A Super. 323, ,-r6, 832 A.2d 1066, 1070 (2003). Under Pennsylvania Rule of Civil Procedure 1 020( c), "[ c ]auses of action. . . may be pleaded in the alternative." Thus, although it may be true that a plaintiff can not recover on more than one theory in a given case, at the pleading stage he or she is not required to make an election as to that theory. See Braginetz v. Foreign Motor Sales, Inc., 76 Dauphin Co. 1 (1960). This principle has been emphasized by the Honorable Edward E. Guido of this court as follows: [In their preliminary objection,] Defendants' only argument is that quantum meruit relief is not available where the parties' relationship is founded on an express agreement. They have cited numerous cases which stand for this proposition. However, not one of those cases involve an objection to the pleadings. The reason is clear. Pennsylvania 9 CompI. ~~ 46-49,55-59,61-65. 10 Prelim. Obj. ~ 5. 3 Rule of Civil Procedure 1 020( c) unequivocally provides that causes of action may be pleaded in the alternative. It has long been the law of this Commonwealth that ". . . plaintiffs should not be forced to elect a particular theory in pursuing a claim" at the pleadings stage. Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977). There is not one scintilla of doubt that Defendants' preliminary objection should be denied. Humbert v. Gates, 47 Cumberland L.1. 186, 187 (1998), aff'd, 760 A.2d 437 (Pa. Super. Ct. 2000). In the present case, as a more complete record is developed, Defendant's position that quasi-contract and promissory estoppel are not tenable theories upon which relief can be granted to Plaintiff may become more evident. However, such a conclusion at the complaint stage would not be warranted. ORDER OF COURT AND NOW, this 14th day of February, 2006, upon consideration of Defendant's preliminary objections in the nature of a demurrer to Plaintiffs complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Thomas 1. Weber, Esq. David M. Steckel, Esq. 320 Market Street P.O. Box 1268 Harrisburg, P A 17108-1268 Attorneys for Plaintiff 4 Thomas A. French, Esq. Timothy 1. Nieman, Esq. Mary P. Patterson, Esq. One South Market Square P.O. Box 1146 Harrisburg, P A 17108-1146 Attorneys for Defendant 5 6 GREGORY SCOTT WHITEFORD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW ALLFIRST FINANCIAL, INC., Defendant NO. 02-4950 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 14th day of February, 2006, upon consideration of Defendant's preliminary objections in the nature of a demurrer to Plaintiffs complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, 1. Wesley Oler, Jr., 1. Thomas 1. Weber, Esq. David M. Steckel, Esq. 320 Market Street P.O. Box 1268 Harrisburg, P A 17108-1268 Attorneys for Plaintiff Thomas A. French, Esq. Timothy 1. Nieman, Esq. Mary P. Patterson, Esq. One South Market Square P.O. Box 1146 Harrisburg, P A 17108-1146 Attorneys for Defendant 8