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Home My WebLink About2010-1160PERINI SERVICES/ : IN THE COURT OF COMMON PLEAS OF SOUTH HAMPTON : CUMBERLAND COUNTY, PENNSYLVANIA MANOR, L.P., Plaintiff : CIVIL ACTION u DAN L. KEEN, Defendant NO. 2010-1160 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., January 6, 2011. In this civil case, a nursing home has filed a complaint for non-payment of a debt allegedly due the facility for services rendered to a resident.' The named Defendant in the complaint is an individual said to have been the resident's attorney-in-fact pursuant to a power of attorney.2 For disposition at this time is Plaintiff's motion for judgment on the pleadings.3 The matter was argued on December 15, 2010. For the reasons stated in this opinion, the motion will be denied, without prejudice, and Defendant will be afforded a period of 20 days within which to file a proper answer to the complaint. STATEMENT OF FACTS On February 18, 2010, Plaintiff Perini Services/South Hampton Manor, L.P., filed a complaint against Dan L. Keen.4 In pertinent part, the allegations of the complaint may be summarized as follows: 'See Complaint, filed February 18, 2010 (hereinafter "Complaint"). 2 Complaint, ¶5. ' Plaintiff's Motion for Judgment on the Pleadings Pursuant to Pa. R.C.P. 1034, filed August 5, 2010. 4 See Complaint. In April of 2006, Defendant executed an "Admission Agreement" on behalf of one Donna L. Nead for her admittance into a nursing home in Shippensburg, Cumberland County, Pennsylvania, operated by Plaintiff.' A signature page on the application indicated that Ms. Nead signed as the "Resident" and Defendant signed as the "Responsible Party" in his capacity as the applicant's attorney-in-fact pursuant to a "POA. ,6 Preceding Defendant's signature was the following paragraph: If the Resident has been adjudicated disabled or the Resident's doctor determines that the Resident is incapable of understanding or exercising his or her rights and responsibilities, the Facility may require the signature of another person on this contract. The other person may be: (1) An appointed healthcare agent under an advance directive for medical care; (2) A guardian or Power of Attorney of the person; (3) A surrogate or family member.' Ms. Nead was a resident of Plaintiff's facility from April 14, 2006, until December 24, 2007, and had accumulated an unpaid bill of $11,459.00,8 when she died.9 Defendant, who received social security and pension benefits of Ms. Nead in his capacity as her attorney-in-fact, became liable to Plaintiff on contract and quasi -contract theories as a result of the foregoing.10 Plaintiff's complaint alleges that, "[p]ursuant to the Admission Agreement, Dan Keen agreed, as the responsible party for Donna L. Nead, to pay the costs of care provided from the income of Donna L. Nead."11 However, the agreement, with the exception of the signature page attached to the complaint, is not part of the record. Defendant was served with a copy of Plaintiff's complaint on March 3, 2010,12 but no response to the complaint appears on the docket. On August 5, 2010, Plaintiff filed the 'See Complaint ¶¶1-5. 6 Complaint ¶¶5, 8; Exhibit A, affixed to Complaint, filed February 18, 2010 (hereinafter "Ex. A") Exhibit A. s Complaint, ¶9; Exhibit B, affixed to Complaint, filed Feb. 18, 2010 (hereinafter "Ex. B") 9 Complaint, ¶10. 10 See Complaint, ¶¶16, 20-22. " Complaint, ¶8. 'Z Sheriffs Return of Service, dated March 3, 2010, filed March 16, 2010. 2 motion for judgment on the pleadings sub judice. 13 Although the motion alleges that Defendant filed an "answer" to the complaint in the following form, no such pleading appears on the docket: To: The Court of Common Pleas of SUBMITTED BY U.S. MAIL Cumberland County Pennsylvania 03-31-10 Re: 2010-1160 Civil Term From: Pastor Dan L. Keen P.O. Box 124 Chambersburg, PA 17201 Enclosed: Letter Dated 03-24-10 (copy) In response to this letter from David A. Baric I would like to respond in person to whatever claims there are against me. I am working out of town at this time and should be back in Chambersburg by the end of April. The job I do is somewhat critical in nature and it is hard for me to get a replacement , however if the court could set a date toward the end of April this could give me time to clear things and find a lawyer in this case or an arbitrator. I have tried in the past to contact Mr. Baric by phone. He called and left a voice mail message a couple of days later and then after receiving this letter, I called the Cumberland County Bar Association and they did not return my call at all. I would like to have a copy of the original claims Mr. Baric sent me as I have misplaced them during our move from our home at 5046 Lincoln Way West last month. Please send them to the above address if you would. Thank you for your consideration in the above matters. Pastor Dan L. Keen 14 Noting that general denials are to be considered admissions under Pennsylvania Rule of Civil Procedure 1029(b),15 Plaintiff requests in its motion that 'Judgment be entered in its favor and against Defendant as prayed in the Complaint filed by Plaintiff." 16 " Plaintiff's Motion for Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034, filed August 5, 2010 (hereinafter "Pl.'s Mot. for Judg. on Pleadings"). 14 Pl.'s Mot. for Judg. on Pleadings, ¶4, Exhibit C, affixed to Pl.'s Mot. for Judg. on Pleadings. " Pl.'s Mot. for Judg. on Pleadings, ¶¶7, 8. 16 Pl.'s Mot. for Judg. on Pleadings, ad damnum. 3 DISCUSSION Under Pennsylvania Rule of Civil Procedure 1034, "after the pleadings are closed... any party may move for judgment on the pleadings. "17 Pa. R.C.P. 1034(a) (emphasis added). Where a defendant has failed to file an answer to a complaint, the procedure for entry of a judgment by default is prescribed by Pennsylvania Rule of Civil Procedure 237. 1, and includes the prerequisite of a 10 -day notice of intention to file a praecipe for entry of a judgment by default. 18 In the present case, where Defendant did not in fact effect the filing of a pleading responsive to Plaintiff's complaint, and where the portion of the agreement which he purportedly executed as an attorney-in-fact that would indicate the contractual duties to the Plaintiff assumed by such a signatory was not appended to the complaint, the court is of the view that Plaintiff's motion for judgment on the pleadings must be regarded as premature. At the same time, Defendant's decidedly cavalier approach to the litigation has unfairly prejudiced Plaintiff by creating a latent ambiguity in terms of the procedural posture of the case at this pleading stage. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 6th day of January, 2011, upon consideration of Plaintiff's Motion for Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034, following oral argument held on December 15, 2010, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's motion for judgment on the pleadings is denied, without prejudice; "Pa. R.C.P. 1034(a) (emphasis added). " See Pa. R.C.P. 237.1(a)(2)(ii). 11 2. Defendant is afforded a period of 20 days from the date of this order to file with the prothonotary and serve upon Plaintiff's counsel a properly -captioned and verified, paragraph -by -paragraph answer to Plaintiff's complaint in full conformity with the Pennsylvania Rules of Civil Procedure applicable to responsive pleadings; and 3. Plaintiff may thereafter proceed in accordance with the Rules as circumstances permit. David A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff Dan L. Keen 5046 Lincoln Way West St. Thomas, PA 17252 Defendant, pro Se Dan L. Keen P.O. Box 1241 Chambersburg, PA 17201 Defendant, pro Se 5 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. PERINI SERVICES/ : IN THE COURT OF COMMON PLEAS OF SOUTH HAMPTON : CUMBERLAND COUNTY, PENNSYLVANIA MANOR, L.P., Plaintiff : CIVIL ACTION u DAN L. KEEN, Defendant NO. 2010-1160 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 6th day of January, 2011, upon consideration of Plaintiff's Motion for Judgment on the Pleadings Pursuant to Pa.R.C.P. 1034, following oral argument held on December 15, 2010, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's motion for judgment on the pleadings is denied, without prejudice; 2. Defendant is afforded a period of 20 days from the date of this order to file with the prothonotary and serve upon Plaintiff's counsel a properly -captioned and verified, paragraph -by -paragraph answer to Plaintiff's complaint in full conformity with the Pennsylvania Rules of Civil Procedure applicable to responsive pleadings; and 3. Plaintiff may thereafter proceed in accordance with the Rules as circumstances permit. BY THE COURT, J. Wesley Oler, Jr., J. David A. Baric, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff Dan L. Keen 5046 Lincoln Way West St. Thomas, PA 17252 Defendant, pro Se Dan L. Keen P.O. Box 1241 Chambersburg, PA 17201 Defendant, pro Se