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HomeMy WebLinkAbout2009-1720 (2) ARROW FINANCIAL SERVICES, LLC, : IN THE COURT OF COMMON PLEAS Assignee and Successor in interest : OF CUMBERLAND COUNTY, PENNSYLVANIA of WASHINGTON MUTUAL BANK, : PLAINTIFF : : V. : : DEBORAH L. GRAHAM, : DEFENDANT : 09-1720 CIVIL TERM IN RE: DEFENDANT’S PETITION TO STRIKE OFF DISCONTINUANCE AND DEFENDANT’S MOTION FOR DISMISSAL OF SUIT WITH PREJUDICE FOR FAILURE BY PLAINTIFF TO COMPLY WITH COURT ORDER OPINION AND ORDER OF COURT Masland, J., December 1, 2010:-- Before the court is Defendant, Deborah L. Graham's petition to strike off discontinuance and motion for dismissal of suit with prejudice for the failure of Plaintiff, Arrow Financial Services, LLC, to comply with a court order. Upon review, the court denies both requests. This matter was previously before the court sitting en banc with Judge Oler and the undersigned presiding. There, we sustained Defendant's preliminary objections to Plaintiff's second amended complaint and granted Plaintiff leave to file a legally sufficient second amended complaint within 30 days of our order. Subsequent to the filing of our order and opinion, Plaintiff filed a praecipe to dismiss the case without prejudice. Defendant now asks the court to strike off the discontinuance on the grounds that it is unduly prejudicial to her interests. She also moves for dismissal of the suit with prejudice on the grounds that Plaintiff's filing of a discontinuance violates our previous court order sustaining her preliminary objections and granting Plaintiff leave to file a second amended complaint. The Rules provide that a court, “upon petition and after notice, may strike off a 09-1720 CIVIL TERM discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice.” Pa. R.C.P. No. 229(c) (emphasis added). Here, Defendant asserts she “is entitled to be free of any further unreasonable inconvenience, vexation, harassment, expense and prejudice by the Plaintiff's unconscionable business practices including the derogatory reporting of this account to credit reporting agencies ….” Pet. at ¶4(i). The court is constrained to conclude Defendant's asserted prejudice is insufficient to justify striking the discontinuance. Finally, the court addresses Defendant's motion to dismiss with prejudice for failure to follow an order of court. That order read, in relevant part, “Defendant's preliminary objections to Plaintiff's amended complaint are SUSTAINED. The court grants Plaintiff leave to file a legally sufficient second amended complaint within 30 days of this order.” Defendant argues that this order contemplated no further action other than Plaintiff's filling of a legally sufficient complaint. The court disagrees. The plain language of the court order was permissive rather than mandatory. The grant of leave to file a second amended complaint does not prevent Plaintiff from voluntarily discontinuing the suit. Accordingly, Plaintiff did not violate a court order and Defendant's motion to dismiss with prejudice must be denied. ORDER OF COURT AND NOW, this ___ day of December, 2010, Defendant's Petition to Strike Off DENIED Discontinuance and Defendant's Motion for Dismissal of Case with Prejudice are in all respects. By the Court, Albert H. Masland, J. -2- 09-1720 CIVIL TERM David J. Apothaker, Esquire 520 Fellowship Road C306 Mount Laurel, NJ 08054 For Plaintiff Deborah Graham, Pro se 902 Allenview Drive Mechanicsburg, PA 17055 :saa -3- ARROW FINANCIAL SERVICES, LLC, : IN THE COURT OF COMMON PLEAS Assignee and Successor in interest : OF CUMBERLAND COUNTY, PENNSYLVANIA of WASHINGTON MUTUAL BANK, : PLAINTIFF : : V. : : DEBORAH L. GRAHAM, : DEFENDANT : 09-1720 CIVIL TERM IN RE: DEFENDANT’S PETITION TO STRIKE OFF DISCONTINUANCE AND DEFENDANT’S MOTION FOR DISMISSAL OF SUIT WITH PREJUDICE FOR FAILURE BY PLAINTIFF TO COMPLY WITH COURT ORDER ORDER OF COURT AND NOW, this ___ day of December, 2010, Defendant's Petition to Strike Off DENIED Discontinuance and Defendant's Motion for Dismissal of Case with Prejudice are in all respects. By the Court, Albert H. Masland, J. David J. Apothaker, Esquire 520 Fellowship Road C306 Mount Laurel, NJ 08054 For Plaintiff Deborah Graham, Pro se 902 Allenview Drive Mechanicsburg, PA 17055 :saa