Loading...
HomeMy WebLinkAbout2009-6197 ARROW FINANCIAL : IN THE COURT OF COMMON PLEAS OF SERVICES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : : JODI A. WITMER, : DEFENDANT : 09-6197 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 Jodi A. Witmer, Defendant, to the second amended complaint filed by Plaintiff, Arrow Financial Services LLC. For the reasons stated below, Defendant's preliminary objections are sustained. Previously, our esteemed colleague, the Honorable M.L. Ebert, Jr., issued an opinion and order sustaining Defendant's preliminary objections to Plaintiff's first amended complaint in this matter. In response, Plaintiff filed the second amended complaint and Defendant filed preliminary objections thereto. Now, following briefing and argument we again sustain Defendant's preliminary objections and dismiss the second amended complaint. In doing so, we grant Plaintiff 30 days leave to file a third amended complaint. However, in light of the repeated deficiencies of Plaintiff's pleadings up to this point, we will not grant Plaintiff leave to file subsequent amended complaints. This is a collections matter arising from an allegedly delinquent credit card 09-6197 CIVIL TERM account. Defendant objects to the adequacy of Plaintiff's second amended complaint on two grounds, first Plaintiff has not included written evidence of the assignment of Defendant's debt from the original creditor to Plaintiff, and second, the second amended complaint fails to identify the terms of the parties' agreement, or attach a copy of the document upon which its claim is based. I. Evidence of Assignment Where, as here, a plaintiff is not the defendant's original creditor, the complaint must include a writing evidencing the assignment of the defendant's account from the original creditor to the plaintiff. Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). Here, Plaintiff's second amended complaint includes a document labeled “Bill of Sale” indicating the sale of various accounts from Washington Mutual Bank to Plaintiff. This writing is wholly inadequate to establish Plaintiff is a real party in interest in this matter. First, we note this document is identical to the document already ruled insufficient by Judge Ebert in his opinion and order granting the preliminary objections to Plaintiff's amended complaint. He reasoned: [T]his document reflects a transfer of some unspecified accounts. The individual accounts that were transferred by the original creditor to Plaintiff are not specified in this document. Nowhere does it reflect that Defendant's account was among the accounts that were transferred to Plaintiff by the original creditor. Arrow Financial Services LLC v. Witmer, No. 09-6197, slip op. at 6 (Cumb. Co. May 13, 2010). Plaintiff has failed to include any supplementary documentation in its second amended complaint. Accordingly, Plaintiff has again failed to provide an adequate writing to demonstrate the chain of assignment whereby it -2- 09-6197 CIVIL TERM became the owner of Defendant's alleged debt. Defendant's preliminary objection will be granted in this respect. II. Absence of Cardholder Agreement Next, we address Defendant's objection to the absence of the terms of her original cardholder agreement. She argues the alleged debt is based upon a written cardholder agreement, and accordingly, Plaintiff must attach a copy of the document to the complaint. We agree. We note with disapproval that this issue, like that raised by Defendant's previous preliminary objection, was already addressed by Judge Ebert in his opinion resolving the last round of preliminary objections. There he clearly stated that “Plaintiff must attach to the Amended Complaint the cardholder agreement between Defendant and the original creditor.” Arrow Financial Services LLC v. Witmer, slip op. at 8-9. Plaintiff concedes it has failed to do so. Nonetheless, Plaintiff asks us to overlook the absence of this essential document because it is not accessible at this time. It is well-settled that when a claim is based on a written agreement, that writing must be attached to the pleadings. Pa. R.C.P. No. 1019. However, if the writing is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. Pa. R.C.P. No. 1019(i). Here, Plaintiff avers, “[a] copy of the credit application and agreement are not accessible to Plaintiff at this time.” Am. Compl. at ¶4. No further detail is provided to establish the reason the document is currently unavailable. Plaintiff's bare assertion that the document is unavailable, absent further explanation, is -3- 09-6197 CIVIL TERM insufficient to satisfy Rule 1019's requirements. For similar reasons, Plaintiff's summary of the substance of the cardholder agreement is also inadequate. Plaintiff described the underlying cardholder agreement in only vague and general terms: “Defendant was given the right to make purchases in return for a promise to timely pay the principal balance accumulated plus interest, fees and penalties where applicable.” Am. Compl. at ¶6. This statement fails to set forth the material terms of the cardholder agreement in any detail and therefore fails to set forth the substance of that agreement as contemplated by Rule 1019. Plaintiff has failed to comply with Judge Ebert's demand that it attach a copy of the cardholder agreement to its second amended complaint. In lieu of including the agreement, Plaintiff has failed to offer a satisfactory explanation for its absence and has failed to set forth the substance of the agreement in sufficient detail. Accordingly, Defendant's preliminary objections are sustained in this respect. III. Conclusion Defendant’s preliminary objections are sustained. We grant Plaintiff 30 days leave to amend its second amended complaint. However, in light of Plaintiff's repeated failures to file a legally sufficient complaint, this will be Plaintiff’s final opportunity to do so. ORDER OF COURT AND NOW, this day of October, 2010, Defendant's preliminary ARESUSTAINED objections . We grant Plaintiff 30 days from the date of this -4- 09-6197 CIVIL TERM order and opinion to amend its second amended complaint. Plaintiff will receive no further opportunities to plead a legally sufficient complaint. By the Court, Albert H. Masland, J. Benjamin J. Cavallaro, Esquire For Plaintiff Joseph Goldberg, Esquire For Defendant :saa -5- ARROW FINANCIAL : IN THE COURT OF COMMON PLEAS OF SERVICES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : : JODI A. WITMER, : DEFENDANT : 09-6197 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 ARESUSTAINED objections . We grant Plaintiff 30 days from the date of this order and opinion to amend its second amended complaint. Plaintiff will receive no further opportunities to plead a legally sufficient complaint. By the Court, Albert H. Masland, J. Benjamin J. Cavallaro, Esquire For Plaintiff Joseph Goldberg, Esquire For Defendant :saa