Loading...
HomeMy WebLinkAbout2010-5668 (2) CITIBANK (SOUTH DAKOTA), N.A., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : DOUGLASS ROSS, : DEFENDANT : 10-5668 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S AMENDED COMPLAINT OPINION AND ORDER OF COURT Masland, J., July 22, 2011:-- Before the court are the preliminary objections of Douglas Ross, Defendant, to the amended complaint filed by Plaintiff, Citibank (South Dakota), N.A. For the following reasons the preliminary objections are sustained in part and overruled in part. This is a collections matter arising from an allegedly delinquent credit card account. Defendant objects to the adequacy of Plaintiff's amended complaint based on the following: no copy of the underlying contract or writing was attached to the amended complaint; the amended complaint improperly pleads account stated; and the amended complaint was verified by counsel for the Plaintiff, but did not comply with Rule 1024(c). We begin with Defendant's second objection. Plaintiff's amended complaint contains two alternative counts, one premised on breach of contract and the other on a theory of account stated. In our previous opinion and order in this matter dated, April 18, 2011, we sustained Plaintiff's preliminary objection to 10-5668 CIVIL TERM Defendant's complaint on the basis that a credit card collections case cannot be premised on a theory of account stated. On the basis of that opinion, we sustain Plaintiff's preliminary objection and strike count two of the amended complaint. We now address the remaining objections. Generally, a complaint 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). Here, Plaintiff has attached what purports to be the cardholder agreement between itself and Defendant. Compl. Ex. B. Though the agreement does not appear to be signed by the Defendant, it does appear to establish the relevant terms governing the alleged contractual agreement between the parties. As such, Plaintiff has satisfied its pleading requirement in this respect and Defendant's first preliminary objection is overruled. Defendant also objects to the amended complaint's verification on the basis that it was made by counsel rather than one of Plaintiff's officers or representatives. 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). 2- - 10-5668 CIVIL TERM Here, Plaintiff's counsel's verification reads, in relevant part: Counsel, rather than an officer or other representative of plaintiff is verifying the foregoing Amended Complaint because plaintiff's officers and/or representatives are outside the jurisdiction of the court and the verification of none of them could be obtained within the time required to file this pleading. Plaintiff's counsel is verifying plaintiff's Amended Complaint based upon information and belief from information in his file. This verification comports with Rule 1024 and is therefore sufficient for the matter to proceed. Accordingly, Defendant's third preliminary objection is overruled. For all these reasons we sustain in part and overrule in part Defendant's preliminary objections to the amended complaint. Specifically, we sustain Plaintiff's second objection and strike count two of the amended complaint. In all other respects, Plaintiff's objections are overruled and he is directed to file an answer to the amended complaint. ORDER OF COURT AND NOW, this day of July, 2011, the second preliminary SUSTAINED objection filed by the Defendant, Douglas Ross, is and Count II of STRICKEN the Amended Complaint is . In all other respects the preliminary OVERRULED objections are and Defendant is directed to file an answer to the amended complaint. By the Court, Albert H. Masland, J. 3- - 10-5668 CIVIL TERM Yale D. Weinstein, Esquire 1060 Andrew Drive, Suite 170 West Chester, PA 19380 For Plaintiff Joseph P. Murphy, Esquire 210 Grant Street, #301 Pittsburgh, PA 15219 For Defendant :saa 4- - CITIBANK (SOUTH DAKOTA), N.A., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : DOUGLASS ROSS, : DEFENDANT : 10-5668 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S AMENDED COMPLAINT ORDER OF COURT AND NOW, this day of July, 2011, the second preliminary SUSTAINED objection filed by the Defendant, Douglas Ross, is and Count II of STRICKEN the Amended Complaint is . In all other respects the preliminary OVERRULED objections are and Defendant is directed to file an answer to the amended complaint. By the Court, Albert H. Masland, J. Yale D. Weinstein, Esquire 1060 Andrew Drive, Suite 170 West Chester, PA 19380 For Plaintiff Joseph P. Murphy, Esquire 210 Grant Street, #301 Pittsburgh, PA 15219 For Defendant :saa