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HomeMy WebLinkAbout2005-2977 Civil CITIBANK (SOUTH DAKOTA) N.A. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION - LAW NO. 05-2977 CIVIL BRUCE ENSOR, Defendant IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER AND NEW MATTER BEFORE HESS AND OLEK II OPINION AND ORDER Before the court are the plaintiff s preliminary obj ections to the defendant's answer and new matter. The plaintiff has moved to strike the defendant's answer and new matter because it has not been verified pursuant to Pa.R. C.P. 1 024( a). The plaintiff has also filed a demurrer to the defendant's new matter. The new matter asserts defenses of res judicata and collateral estoppel contending that the underlying dispute has already been a part of an arbitration proceedings. Many of the salient facts in the complaint are admitted by the defendant. The plaintiff, Citibank (South Dakota) N.A., is a business located in Sioux Falls, South Dakota. The defendant is a Pennsylvania resident, residing in Enola, Cumberland County, Pennsylvania. The plaintiff extended credit to the defendant by means ofa Citibank Credit Card and AT&T Universal Credit Card issued by Citibank. The complaint alleges that the defendant owes $6,083.95 on the Citibank card and $7,350.06 on the AT&T Universal credit card. The defendant denies owing these amounts as evidenced by the fact that he requested arbitration and obtained a decision in his favor. NO. 05-2977 CIVIL According to the preliminary objections, the defendant, Ensor, filed a claim for arbitration with Solomon Arbitration Group.l On February 9, 2004, the plaintiff notified Solomon that it did not agree to Solomon's arbitration of the matter. Notwithstanding, in September of2004, the defendant received a default award in his favor with respect to amounts due on both of his Citibank credit cards. We address first the issue of whether Ensor's answer and new matter should be stricken for his failure to attach a verification. This matter is properly raised by preliminary objection: a party may object to a pleading if the other party fails to conform to a law or rule of court. Pa.R.C.P. 1024. The Rules of Civil Procedure require that "[e]very pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state the fact that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified." Pa.R.C.P. 1024(a). The rule is also clear that verification must be made by the party unless he is outside the jurisdiction of the court. The defendant, in this case, resides in Cumberland County. Normally speaking, a court should not strike a pleading for a defect in the verification but rather should extend an opportunity to amend. See Louis v. Erie Ins. Exchange, 421 A.2d. 1214 (Pa.Super. 1980). Our courts "should not be astute in enforcing technicalities to defeat apparently meritorious claims." Safeguard Investment Co. v. Davis, 361 A.2d 893, 896 (Pa.Super. 1976). In this case, the defendant has had ample opportunity to amend. The preliminary objections in this case have been pending since August of2005. Pa.R.C.P. 1028 grants to the defendant an automatic right to cure defects raised by preliminary 1 The preliminary objections contain a notice to plead. No answer has been filed disputing the plaintiff's factual allegations. 2 NO. 05-2977 CIVIL objection. Pa.R.C.P. 1028(c)(I). More importantly, granting leave to amend, in this case, would not, in any event, preserve the viability of an otherwise meritorious pleading. There is, in fact, nothing meritorious about it. The thrust of the defense's answer and new matter is that he owes no balances on his credit card because he has submitted the matter to arbitration and has obtained an award in his favor. For the reasons which follow, we are satisfied that this assertion is without merit. Whether a particular dispute falls within a contractual arbitration provision is a matter of law for a court to decide. See Nationwide Ins. Enterprise v. Mousdakidis, 830 A.2d 1288 (Pa. Super. 2003). The governing contractual document in this case is the "Cardholder Agreement." That agreement provides that federal law governing arbitration under the Federal Arbitration Act (FAA) and state substantive law shall apply to any dispute. Arbitration under the Federal Arbitration Act is a matter of consent, not coercion, and the parties are generally free to structure their arbitration agreements as they see fit. They may limit, by contract, the issues which they will arbitrate and may specify, by contract, the rules under which the arbitration is to be conducted. Volp Information Sciences, Inc. v. Bd of Trustees of Leland Stanford Jr. University, 489 U.S. 468, 479 (1989). The "Cardholder Agreement" provides "[E]ither you or we may, without the other's consent, elect to mandatory, binding arbitration for any claim, dispute, or controversy between you and us." It further provides that to initiate arbitration: "[T]he party filing an arbitration must choose one of the three arbitration firms and follow its rules and procedures for initiating and pursuing an arbitration: American Arbitration Association, JAMS, and National Arbitration Forum." The United States Supreme Court has observed that an agreement to arbitrate before a special tribunal is, in effect, a specialized kind of 3 NO. 05-2977 CIVIL forum-selection clause that governs not only the situs of the suit but also the procedure to be used in resolving the dispute. Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 630 (1985). The Solomon Arbitration Group, Inc. is not one of the three arbitration firms listed in the agreement between the parties in this case. In submitting the matter to the Solomon Arbitration Group, Ensor, in effect, appointed his own arbitrator. Citibank, however, was not required by the "Cardholder Agreement" to accede to this arbitration. To the contrary, Ensor's chosen arbitrator was clearly not one of the three agreed to by the parties. Ensor contends that Citibank's claims are barred by the doctrines of res judicata and collateral estoppel inasmuch as the claims were dealt with in arbitration. His contentions, in these regards, are nothing short of frivolous. Accordingly, we will sustain the preliminary objections of the plaintiff to the defendant's answer and new matter. ORDER AND NOW, this 15th day of March, 2006, the preliminary objections of the plaintiff to the defendant's answer and new matter are SUSTAINED and the answer and new matter of the defendant are STRICKEN. BY THE COURT, Kevin A. Hess, J. Edward J. O'Brien, Esquire F or the Plaintiff Scott Stein, Esquire F or the Defendant :rlm 4 CITIBANK (SOUTH DAKOTA) N.A. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION - LAW NO. 05-2977 CIVIL BRUCE ENSOR, Defendant IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER AND NEW MATTER BEFORE HESS AND OLEK II ORDER AND NOW, this 15th day of March, 2006, the preliminary objections of the plaintiff to the defendant's answer and new matter are SUSTAINED and the answer and new matter of the defendant are STRICKEN. BY THE COURT, Kevin A. Hess, l Edward l O'Brien, Esquire F or the Plaintiff Scott Stein, Esquire F or the Defendant :rlm