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AMERICAN EXPRESS : IN THE COURT OF COMMON PLEAS OF
CENTURION BANK, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
:
MARGARET DRAGO, :
DEFENDANT : 10-3841 CIVIL TERM
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
BEFORE HESS, P.J. , OLER, J. AND MASLAND, J.
OPINION AND ORDER OF COURT
Masland, J., October 4, 2010:--
Before the court are the preliminary objections of Margaret Drago,
Defendant, to the complaint filed by Plaintiff, American Express Centurion Bank.
For the reasons stated briefly below, Defendant's preliminary objections are
sustained.
This is a collections matter arising from an allegedly delinquent credit card
account. Defendant objects to the adequacy of Plaintiff's complaint on the
grounds of improper verification, failure to identify the nature of the underlying
agreement, failure to attach a writing, and failure to plead items of special
damage.
In Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super.
2003), our Superior Court held, in relevant part, that a complaint in debt
collection filed against credit card debtors is inadequate if it fails to include a
statement of the account to substantiate the amount allegedly owed. Here,
Plaintiff has not entered such a document into the record. Instead, it simply
10-3841 CIVIL TERM
states a sum Defendant allegedly owes in the complaint. As such, the complaint
is deficient in that respect.
We next address the verification issue. Plaintiff's complaint is not verified
by a party to the cause of action, but by Plaintiff's attorney. Rule 1024(c), states:
The verification shall be made by one or more of the
parties filing the pleadings unless all 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.
Pa. R.C.P. No. 1024(c) (emphasis added). Here, Plaintiff's complaint is verified
by its attorney without providing any explanation for why the verification is not
made by a party. As such, the verification is deficient.
In conclusion, Plaintiff's complaint fails to include the necessary statement
of the account allegedly owed and is inadequately verified. Accordingly,
Defendant's preliminary objections are sustained. The court grants Plaintiff leave
to file a legally sufficient amended complaint within 30 days of this opinion and
order.
ORDER OF COURT
AND NOW, this day of October, 2010, Defendant's preliminary
SUSTAINED
objections to Plaintiff's complaint are . The court grants Plaintiff
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10-3841 CIVIL TERM
leave to file a legally sufficient amended complaint within 30 days of this order.
By the Court,
Albert H. Masland, J.
Michael Ratchford, Esquire
120 N. Keyser Avenue
Scranton, PA 18504
For Plaintiff
Ashley M. Derr, Esquire
The J. Murphy Firm
210 Grant Street, Suite 301
Pittsburgh, PA 15219
For Defendant
:saa
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AMERICAN EXPRESS : IN THE COURT OF COMMON PLEAS OF
CENTURION BANK, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
:
MARGARET DRAGO, :
DEFENDANT : 10-3841 CIVIL TERM
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
BEFORE HESS, P.J. , OLER, J. AND MASLAND, J.
ORDER OF COURT
AND NOW, this day of October, 2010, Defendant's preliminary
SUSTAINED
objections to Plaintiff's complaint are . The court grants Plaintiff
leave to file a legally sufficient amended complaint within 30 days of this order.
By the Court,
Albert H. Masland, J.
Michael Ratchford, Esquire
For Plaintiff
Ashley M. Derr, Esquire
For Defendant
:saa