HomeMy WebLinkAbout2009-7570
AMERICAN EXPRESS : IN THE COURT OF COMMON PLEAS OF
BANK, FSB : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
:
CRAIG HENCH, :
DEFENDANT : 09-7570 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 5, 2010:--
Before the court are the preliminary objections of Craig Hench,
Defendant, to the amended complaint filed by Plaintiff, American Express Bank,
FSB. 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 amended complaint on
the grounds that Plaintiff has failed to plead its case with sufficient specificity and
that the amended complaint is improperly verified.
Defendant first argues Plaintiff's amended complaint is not sufficiently
clear to enable him to prepare a defense. He contends Plaintiff's failure to
articulate the legal theory underlying its claim against Defendant justifies the
granting of a demurrer and striking of the complaint. We disagree.
Plaintiff's amended complaint is admittedly sparse. However, we conclude
it contains sufficient pleading to establish its claim against Defendant. The
09-7570 CIVIL TERM
amended complaint makes it clear that this is a credit card collection matter
arising from the breach of a written cardholder agreement, a copy of which is
attached to the pleadings. A complaint in debt collection filed against a credit
card debtor must, at a minimum, include a copy of the relevant cardholder
agreement and a statement of the account to substantiate the amount allegedly
owed. Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super.
2003). As Plaintiff's amended complaint contains both these documents,
Defendant's objection to the sufficiency of the specificity of the amended
complaint is overruled.
We next address the verification issue. Plaintiff's amended 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 amended 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 and
Defendant's preliminary objection is sustained. The court grants Plaintiff leave to
file a legally sufficient second amended complaint within 30 days of this opinion
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09-7570 CIVIL TERM
and order.
ORDER OF COURT
AND NOW, this day of October, 2010, Defendant's preliminary
SUSTAINED
objection to Plaintiff's amended complaint is . The court grants
Plaintiff leave to file a legally sufficient second amended complaint within 30 days
of this order.
By the Court,
Albert H. Masland, J.
Benjamin J. Cavallaro, Esquire
For Plaintiff
Peter Russo, Esquire
For Defendant
:saa
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AMERICAN EXPRESS : IN THE COURT OF COMMON PLEAS OF
BANK, FSB : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
:
CRAIG HENCH, :
DEFENDANT : 09-7570 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
objection to Plaintiff's amended complaint is . The court grants
Plaintiff leave to file a legally sufficient second amended complaint within 30 days
of this order.
By the Court,
Albert H. Masland, J.
Benjamin J. Cavallaro, Esquire
For Plaintiff
Peter Russo, Esquire
For Defendant
:saa