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HomeMy WebLinkAbout2011-3121DISCOVER BANK, Plaintiff u DOUGLAS E. ROSS and SERLA E. ROSS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2011 — 3121 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT BEFORE HESS, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., September 9, 2011. In this debt collection action against a credit card debtor, Plaintiff Discover Bank has sued Defendants for an allegedly delinquent credit card balance of $13,062.98. For disposition at this time are preliminary objections filed by Defendants to Plaintiff's Amended Complaint. Oral argument was held on August 26, 2011. For the reasons stated in this opinion, Defendants' Preliminary Objections will be overruled. STATEMENT OF FACTS In this case, Plaintiff filed a nine -paragraph complaint on March 18, 2011, which alleged that Defendants failed to pay a credit card bill. i To its complaint, Plaintiff attached a single billing statement dated December of 2010, and showed a "Minimum Payment Due" of $13,062.98.2 On April 14, 2011, Defendants filed preliminary objections to Plaintiff's complaint .3 In response, Plaintiff filed an amended complaint on June 21, 2011, again seeking $13,062.98 on theories of breach of contract and unjust enrichment ,4 and attached thereto a written "Cardholder Agreement,"5 updated terms ' Plaintiff's Complaint, ¶6, filed March 18, 2011. 2 Plaintiff s Complaint, Exhibit 1, filed March 18, 2011. ' Defendants' Preliminary Objections to Complaint, filed April 14, 2011. 4 Plaintiff s Amended Complaint, filed June 21, 2011. thereto,6 and billing statements dated April 12, 2004 to December 15, 2010.7 Defendants again filed preliminary objections to the amended complaint on July 21, 2011,8 raising issues of failure of a pleading to conform to law or rule of court under Rule 1028(a)(2), legal insufficiency of a pleading under Rule 1028(a)(4), and insufficient specificity in a pleading under Rule 1028(a)(3).9 Both Plaintiff and Defendants filed briefs in compliance with local rules of court, and oral argument was held on August 26, 2011. DISCUSSION Preliminary Objections, general rule. The Defendants in the case have filed preliminary objections that claim Plaintiff has failed to plead in conformance with law or rule, and that Plaintiffs pleadings are insufficiently specific. Based on these preliminary objections, Defendants have asked the Court to dismiss the complaint with prejudice, or in the alternative, to strike the complaint. With respect to preliminary objections in the form of a demurrer, the objecting party bears the burden of proof, and therefore, any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa. Cmwlth. 2003). Objections to Contract Claims Breach of Contract, general rule. A breach of contract claim in Pennsylvania is dependent for its validity upon three elements: (1) the existence of a contract; (2) a breach of a duty imposed by the contract; and (3) resultant damages. J.E. Walker Co., Inc. v. Excalibur Oil Group, Inc., 2002 PA Super 39, ¶7, 792 A.2d 1269, 1272, citing Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881, 884 (Pa. Super. 2000). s Exhibit 1, attached to Plaintiff's Amended Complaint, filed June 21, 2011 (hereinafter "Cardholder Agreement, Pl.'s Am. Compl."). 6 Exhibit 3, attached to Plaintiff's Amended Complaint, filed June 21, 2011 (hereinafter "Updated Terms, Pl.'s Am. Compl."). Exhibit 2, attached to Plaintiff's Amended Complaint, filed June 21, 2011 (hereinafter "Statement, attached to Pl.'s Am. Compl."). s Defendants' Preliminary Objections to Amended Complaint, filed July 21, 2011 (hereinafter "Def's Prelim. Obj. to Pl.'s Am. Compl."). 9 Def's Prelim. Obj. to Pl.'s Am. Compl. 2 Failure to conform to law or rule of court. Defendants' first preliminary objection argues that the credit card customer agreement Plaintiff attached to the amended complaint is insufficient to satisfy pleading requirements of Rule 1019(1).10 As required by Pennsylvania Rules of Civil Procedure 1019(h) and 1019(1), when any claim or defense is based upon an agreement, and the agreement is in writing, the agreement between the plaintiff and the defendant must be attached to the pleading. Pa. R.C.P. No. 1019(h); Pa. R.C.P. 1019(1). If the writing is not available to the pleader, the pleader may provide the reason for the unavailability of the writing and state the substance of the writing in the pleading. Pa. R.C.P. No 1019(1). Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Pa. Com. Pl. Erie 1982) (In collection cases dealing with bank credit cards, Rule 1019(1) is complied with by attaching to the complaint a copy of the issuer/cardholder agreement.). The failure to produce the cardholder agreement may establish a meritorious defense and a basis for preliminary objections pursuant to Rules of Civil Procedure 1019(1) and 1028(a)(2). Atlantic Credit and Finance, Inc. v. Giuliana, 2003 PA Super 259, 829 A.2d 340. In Giuliana, the court reaffirmed this attachment requirement, stating that a creditor must "attach the writings which assertedly establish [the creditor's] right to a judgment," as the cardholder/bank agreement establishes the terms for the line of credit and the procedure by which the cardholder may incur obligations and liabilities for the purchase of goods and services. Atlantic Credit and Finance Inc. v. Giuliana, 2003 PA Super 259, ¶13, 829 A.2d 340, 345; Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Pa. Com. Pl. Erie 1982). Application of law. In this case, Plaintiff has sufficiently pled facts and terms of the agreement between itself and Defendants to satisfy the pleading requirements of the Rules of Civil Procedure. In its Amended Complaint, Plaintiff has averred that it sent a credit card to Defendants, along with a cardholder agreement containing terms and 10 Def's Prelim. Obj. to Pl.'s Am. Compl. ¶¶1-3. 3 conditions,11 a copy of which Plaintiff attached to its Amended Complaint at Exhibit I. The first page of the said Cardholder Agreement provided the following language: 2. Acceptance of Agreement: The use of your Account or a Card by you or anyone whom you authorize or permit to use your Account or Card, or your failure to cancel your Account within 30 days after receiving a Card, means you accept this Agreement .12 In its Amended Complaint, Plaintiff avers that, pursuant to that language, Defendants opened the account and accepted the terms of the agreement through their use of the card to make purchases. 13 Although the alleged agreement between Plaintiff and Defendants is based upon the Cardholder Agreement, Defendants' acceptance of the terms and conditions of the Cardholder Agreement was established by Defendants' conduct, according to the pleading. 14 Therefore, Plaintiff has sufficiently (1) claimed that the Cardholder Agreement is the basis of the parties' agreement, (2) attached a "true and correct" 15 copy of said agreement to the Amended Complaint, 16 and (3) averred that Defendants have breached the terms of the agreement through their failure to pay the amounts set forth in the monthly statements. Accordingly, Plaintiff has adequately apprised the Defendants of the basis of its claim, and Defendants' preliminary objection based upon Plaintiff s failure to attach the written agreement will be overruled. Objections to Unjust Enrichment/Quantum Meruit Defendants challenge the validity of Plaintiffs unjust enrichment claim. Defendants raised the issue as part of the challenge to the sufficiency of Plaintiffs Amended Complaint as follows: " Pl.'s Am. Compl. at ¶5. 12 Cardholder Agreement, at p. 1, attached to Pl.'s Am. Compl. " Pl.'s Am. Compl., at ¶6. 14 Pl.'s Am. Compl., at ¶¶6-7. " Pl.'s Am. Compl., at ¶5. 16 While the court determines that the unsigned copy of a card agreement attached to Plaintiff's Amended Complaint is adequate to comply with Pa. R.C.P. No. 1019(h), it would be preferable if Plaintiff included an averment in the amended complaint clearly stating that the claims are based on a written contract as stated in Rule 1019(h). 0 OBJECTIONS TO UNJUST ENRICHMENT/QUANTUM MERUIT 5. Plaintiffs Amended Complaint pleads unjust enrichment/quantum meruit but is legally insufficient to sustain an award of damages under this theory. 6. Accordingly, the Amended Complaint is the proper subject of preliminary objections pursuant to Pa. R.C.P. 1028(a)(4) as it is legally insufficient." Demurrers, in general. A preliminary objection to a complaint in the nature of a demurrer is appropriate only where the complaint is legally insufficient to sustain a cause of action recognized by law. Pa. R.C.P. No. 1028(a)(4). A preliminary objection in the nature of a demurrer requires the court to resolve the issues solely on the basis of the challenged pleading; in general, no testimony or other evidence outside of that pleading may be considered to dispose of the legal issues presented by the demurrer. Cooper v. Church of St. Benedict, 2008 PA Super 171, ¶2, 954 A.2d 1216, 1218 (2008), citing Hess v. Fox Rothschild, LLP, 2007 PA Super 133, ¶18, 925 A.2d 798, 805, appeal denied, 596 Pa. 733, 945 A.2d 171 (2008). When considering a demurrer to a complaint, a court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, as admitted and true and decide whether, based on the facts averred, recovery is impossible as a matter of law. Wagner v. Waitlevertch, 2001 PA Super 100, ¶6, 774 A.2d 1247, 1250, citing Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616 (Pa. Super. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). The demurrer should be sustained only if, after the averments of the complaint are assumed true, the plaintiff has failed to assert a legally cognizable cause of action and, therefore, cannot prevail. Lerner v. Lerner, 2008 PA Super 183, ¶11, 954 A.2d 1229, 1234, citing Kramer v. Dunn, 2000 PA Super 101, ¶18, 749 A.2d 984, 990. Unjust enrichment. Unjust enrichment is a quasi -contractual remedy where a contract is implied in law. Ragnar Benson, Inc. v. Bethel Mart Associates, 308 Pa. Super 405, 454 A.2d 599 (1982). Parties are expressly permitted to plead in the alternative 1' Def.'s Prelim. Obj. to Pl.'s Am. Compl. ¶¶5-6. 5 under the Pennsylvania Rules of Civil Procedure. See Pa. R.C.P. 1020(c); Lugo v. Farmers Pride Inc., 2009 PA Super 5, 967 A.2d 963. Application of law. In count two of the amended complaint, clearly pleading in the alternative, Plaintiff raises the issue of unjust enrichment as an alternative theory to recover damages. Plaintiff structured the first count of its amended complaint as one for breach of contract, and pleaded the unjust enrichment claim in case the alleged harm to Plaintiff is not redressed under the claim raised in count one. Under these circumstances, the unjust enrichment claim is permissible under law and Defendants' preliminary objection directed to Count Two of Plaintiffs Amended Complaint is overruled. Objections Directed toward Lack of SDecifici Defendants argue Plaintiffs Amended Complaint is insufficiently specific because it does not meet the requirements of Rule 1019.18 Plaintiff maintains it has pled facts with sufficient specificity to allow Defendants to answer the complaint. Sufficiency of pleadings. In determining sufficiency of the pleadings in a complaint, the court will consider "whether the plaintiffs complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." Rambo v. Green, 2006 PA Super 231, ¶11, 906 A.2d 1232, 1236. Rule 1019(a) states that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Rule 1019(f) states that "[a]verments of time, place and items of special damage shall be specifically stated." In debt collection actions filed by credit card companies against their customers, "[a] defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what he must contest." Remit Corporation v. Miller, 5 Pa. D. & C. 5th 43, 2008 WL 4491523 (Centre Cty. 2008); accord Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Erie Cty. 1982). As accurately stated by Defendants, " Def's Prelim. Obj. to Pl.'s Am. Compl. ¶¶1-3. 31 "[i]n the context of a credit case, the requirements of Rule 1019 are normally met by attaching copies of an un -interrupted chain of statements."19 See Marine Bank v. Orlando, 25 Pa. D. & C. 3d at 268; see also Remit Corp v. Miller, 5 Pa. D. & C. 5th 43. Application of law. In the present case, Plaintiff avers that Defendants owe a balance due of $13,062.98 for charges made under a credit agreement. Plaintiff has pled facts with sufficient specify by attaching numerous Discover Platinum Card monthly billing statements bearing Defendants' names, dating from May of 2004 to December of 2010.20 Additionally, the statements reflect individual transactions and credits made on the account, in a subsection labeled "Transactions .„21 Furthermore, despite Defendants' contention to the contrary, the statement dated January of 2006 indicates a "new balance” of zero, and the following statement, dated October of 2006,22 clearly shows alleged transactions that Defendants had made which increased the balance from zero to $6,493.11.23 Additionally, the subsequent four -years' worth of monthly billing statements demonstrate the alleged payments, transactions, and fees made against the account which increased the balance due to $13,062.98. Accordingly, Plaintiff has attached all statements which illustrate how it has arrived at the amount that it claims is due from Defendants. Defendants' preliminary objects directed toward lack of specificity are overruled. For the reasons stated above, the following order will be entered: 19 Def's Prelim. Obj. to Pl.'s Am. Compl. ¶9. 20 Statements, attached to Pl.'s Am. Compl. 21 Statements, attached to Pl.'s Am. Compl. 22 Plaintiff's Amended Complaint states the following: "It should be noted that statements were not issued from February 2006 through September 2006 as the credit card had a balance of zero during that time." Pl.'s Am. Compl., ¶8. 23 Statement, October 12, 2006, attached to Pl.'s Am. Compl. 7 ORDER OF COURT AND NOW, this 91h day of September, 2011, upon consideration of Defendants' Preliminary Objections to Plaintiff's Amended Complaint, following oral argument held on August 26, 2011, and for the reasons stated in the accompanying opinion, Defendants' preliminary objections are overruled. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. James C. Warmbrodt, Esq. Weltman, Weinberg and Reis Co., LPA 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 Attorney for Plaintiff Ashley M. Derr, Esq. Joe Murphy, Esq. The J. Murphy Firm 210 Grant Street, Suite 301 Pittsburgh, PA 15219 Attorneys for Defendants Jayne A. Garver, Esq. 6723 Allentown Blvd. Harrisburg, PA 17112 Local counsel for Defendants DISCOVER BANK, Plaintiff u DOUGLAS E. ROSS and SERLA E. ROSS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2011 — 3121 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT BEFORE HESS, P.J., and OLER, J. ORDER OF COURT AND NOW, this 9th day of September, 2011, upon consideration of Defendants' Preliminary Objections to Plaintiff's Amended Complaint, following oral argument held on August 26, 2011, and for the reasons stated in the accompanying opinion, Defendants' preliminary objections are overruled. BY THE COURT, J. Wesley Oler, Jr., J. James C. Warmbrodt, Esq. Weltman, Weinberg and Reis Co., LPA 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 Attorney for Plaintiff Ashley M. Derr, Esq. Joe Murphy, Esq. The J. Murphy Firm 210 Grant Street, Suite 301 Pittsburgh, PA 15219 Attorneys for Defendants Jayne A. Garver, Esq. 6723 Allentown Blvd. Harrisburg, PA 17112 Local counsel for Defendants