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Home My WebLink About90-3591 Civil Law GEORGE S. MILLER and : IN THE COURT OF COMMON PLEAS OF MILDRED E. MILLER, his wife : CUMBERLAND COUNTY, PENNSYLVANIA and LARRY L. MILLER, : Plaintiffs : CIVIL ACTION - EQUITY : v. : NO. 3591 CIVIL 1990 RIC L. POTTEIGER and : KATHLEEN GELINAS-RICE, : Defendants : IN RE: PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this ~day of March, 1995, upon consideration of Plaintiffs' Preliminary Objections to the Counterclaim of Defendants, and for the reasons stated in the accompanying Opinion, Plaintiffs' demurrer to Defendants' Counterclaim is GRANTED and the Counterclaim is DISMISSED, without prejudice to Plaintiffs' right to raise the issue contained therein at an appropriate time. BY THE COURT, I , I./ /," J.~sley Oler, ~; J. ¢ ' Marla R. Miller, Esq. Larry L. Miller, Esq. Suite 3A 160 South Progress Avenue Harrisburg, PA 17109 Attorneys for Plaintiffs Frances H. Del Duca, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendants :rc GEORGE S. MILLER and : IN THE COURT OF COMMON PLEAS OF MILDRED E. MILLER, his wife : CUMBERLAND COUNTY, PENNSYLVANIA and LARRY L. MILLER, : Plaintiffs : CIVIL ACTION - EQUITY : V. : NO. 3591 CIVIL 1990 RIC L. POTTEIGER and : KATHLEEN GELINAS-RICE, : Defendants : IN RE: PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT Oler, J. In this action in equity arising out of an alleged wrongful denial of access to Plaintiffs' land by Defendants,~ Defendants filed a counterclaim requesting counsel fees under Section 2503 of the Judicial Code,2 based on allegedly arbitrary, vexatious and bad faith conduct on the part of Plaintiffs in commencing the action.3 For disposition at this time are Plaintiffs' preliminary objections to the counterclaim in the form of a demurrer, motion to strike scandalous and impertinent matter, petition raising misjoinder of a cause of action and motion to strike for lack of conformity to law or rule of court.4 Plaintiffs' brief in support of the preliminary objections is confined to the issue of whether See Plaintiffs' Amended Complaint, filed September 10, 1992. Act of July 9, 1976, P.L. 586, S2, 42 Pa. C.S. §2503. See Defendants' Answer to Amended Complaint with new matter and counterclaim. 4 See Plaintiff's Preliminary Objections to the Counterclaim of Defendants, filed January 6, 1993. 3591 CIVIL 1990 Defendants' claim for attorney's fees is properly raised at this stage of the pleadings in the form of a counterclaim,s The Court's consideration of the preliminary objections will be similarly limited.6 The issue raised in Plaintiffs' demurrer to Defendants' counterclaim for attorney's fees under Section 2503 of the Judicial Code has been previously considered by this Court, and resolved adversely to Defendants' position. Koepf v. Peters, No. 11 Equity, 1993 (June 2, 1993). A copy of the decision in Koepf is attached hereto as an appendix. Based upon the reasoning expressed in Koepf, the following Order will be entered: ORDER OF COURT AND NOW, this ~ ~day of March, 1995, upon consideration of Plaintiffs' Preliminary Objections to the Counterclaim of Defendants, and for the reasons stated in the accompanying Opinion, Plaintiffs' demurrer to Defendants' Counterclaim is GRANTED and the Counterclaim is DISMISSED, without prejudice to Plaintiffs' right to raise the issue contained therein at an appropriate time. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. s See Brief of Plaintiffs in Support of Preliminary Objections to Defendants' Counterclaim, submitted January 20, 1995. 6 "Issues raised, but not briefed, shall be deemed abandoned." C.C.R.P. 210-7. 2 3591 CIVIL 1990 Marla R. Miller, Esq. Larry L. Miller, Esq. Suite 3A 160 South Progress Avenue Harrisburg, PA 17109 Attorneys for Plaintiffs Frances H. Del Duca, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendants : rc JAY KOEPF, JOYCE E. MORROW, : IN THE COURT OF COMMON PLEAs OF FREDERICK NORDAI, STEPHAN!E : CUMBERLAND COUNTY, PENNSYLVANIA NORDAI, C. ROBERT SCULL, : JOHN HUDOCK, JILL HUDOCK, : DONALD ENGLE, and KATHLEEN : ENGLE, Plaintiffs : : v. : CIVIL ACTION - EQUITY : KATHY J. PETERS, : Defendan~ : NO. 11 EQUITY 1993 IN RE: PLAINTIFFS' PRELIMINARY OBJECTION TO DEFENDANT'S COUNTERCLAr~ BEFORE BAYLEY and OLER, JJ. OPINION AND ORDER OF COURT Oler, J. At issue in the present case is a preliminary objection in the nature of a demurrer fried by Jay Koepf, Joyce E. Morrow, Frederick Nordai, Stephanie Nordai, C. Robert Scull, John Hudock, Jill Hudock, Donald Engle, and Kathleen Engle (Plaintiffs) to a counterclaim fried ~by Kathy J. Peters (Defendant). For the reasons set forth in this Opinion, Plaintiffs' preliminary objection will be granted. Plaintiffs and Defendant live in a subdivision lrnown as Country Manorlocated in Southampton Township, Cumberland County, Pennsylvan/a~' Plaintiffs aver that all lots located in this subdivision are subject to protective covenants,e including a covenant which limits the use of the lots for commercial business activity and only "permits professional offices in Country Manor... when situate[d] in the building used ~ Plaintiffa' Complaint, paragraphs 1-6. Defendant's Answer, paragraph 1-6. 2 Plaintiffs' Complaint, paragraph 7; but see Defendant'a Anawer, paragraph 7, in which Defendant denies that "all" Iota are subject to the Protective Covenants. APPENDIX NO. 11 EQUITY 1993 by the practitioner as his or her private dwelling? In their present equity action, Plaintiffs allege that Defendant's primary use of her lot in Country Manor is to "house her chiropractic practice," and, as such, Plaintiffs aver that "Defendant has transgressed the intent of the Protective Covenants, thereby violating the Protective Covenants to the damage and detriment of the Plaintiffs.''4 Consequently, Plaintiffs are requesting "the Court to enjoin Defendant from using [her lot] as her primary place of business, to order appropriate safeguards to ensure that any use by Defendant of the building ... as a professional office is merely incidental to its use as a residence," and to award Plaintiffs costs of suit.5 Defendant has filed a counterClaim to Plaintiffs' complaint, alleging that Plaintiffs have previously attempted to preclude Defendant "from using a portion of the Building £or her chiropractic practice by engaging in vexatiOus and obdurate behavior? Defendant further avers that "[t]he complaint has no basis in law and was filed by Plaintiffs in bad faith in a continued effort to obstruct [Defendant's] legitimate · use of her property.''? Moreover, Defendant contends that "[c]ommencing the action Plaintiffs' Complaint, paragraph 10 and Exhibit B, paragraph "O." Plaintiffs' Complaint, paragraphs 11, 12. Plaintiffs' Complaint, as damnum clause. Defendant's Counterclaim, paragraph 39. Defendant's Counterclaim, paragraph 40. 2 NO. 11 EQUITY 1993 set forth in the Complaint ... was arbitrary, vexatious and in: bad faith.''s Consequently, in the counterclaim Defendant seeks damages in the form of attorney's fees and costs of suit? The relief clauses attached to the portions of the Answer constituting New Matter and constituting admissions and denials also seek attorney's fees and costs. In response to Defendant's counterclaim, Plaintiffs have £ded the present preliminary objection in the nature of a demurrer, contending that Defendant's ounterclaim fails to state a cause of action in that the claim is not ripe, and cannot ripen unless and .until Plaintiffs do not prevail on the merits,t'~° In so stating, Plaintiffs are seeking dismissal of Defendant's counterclaim. It is well settled in Pennsylvania that to sustain a demurrer the court must find that, "on the facts averred, the law says with certainty that no recovery is possible, and where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." Scarpitti v. Weborg, 530 Pa~ 366, 369, 609 A.2d 147, 148-49 (1992); see also SnYder v. City of Philadelphia, 129 Pa~ Commw. 89, 564 A.2d 1036 (1989). Pursuant to Pennsylvania Rule of Civil Procedure 1031, "It]he defendant may s Defendant's Counterclaim, paragraph 41. 9 Defendant's Counterclaim, ad damnum clause. ~0 Plaintiffs' Preliminary ObjeCtion, paragraph 3. 3 NO. 11 EQUITY 1993 set forth in the answer under the heading 'Counterclaim' any cause of action ... which he has against the plaintiff at the time of filing the answer." In this regard, "Rule 1031(a) imposes no limitation that the cause of action arise from the same factual background as the plaintiff's cause of action." 3 Goodrich .Amram 2d, §1031(a):10, at 126 (1991). However, the right of a defendant to bring a counterclaim is limited to causes of action Which are not regarded as premature at the time the counterclaim is filed. 3 Goodrich .Amram 2d, §1031(a):11, at 127 (1991). By statute in Pennsylvania, reasonable attorney's fees may be awarded to a party if "the conduct of another party in commencing the matter ... was arbitrary, vexatious or in bad faith." Act of May 20, 1949, P.L. 1491, §4, 42 Pa. C.S. §2503(9). It is under this provision that Defendant has asserted a counterclslm for attorney's fees, alleging that in commencing the above-captioned action Plaintiffs acted arbitrarily, vexatiously and in bad faith,u However, we are of the opinion that Defendant's claim for attorney's fees should be regarded as premature at this time and, therefore, should not be asserted as a counterclaim. As the Court of Common Pleas of Westmoreland County has recently stated: ...IA] claim asserted pursuant to 42 Pa. C.S. §2503 is not properly raised [in the defendant's Answer] but should be raised at the conclusion of the underlying action, utilizing the record and history in the underlying action as a basis to support the claim. Defendant's Counterclaim, paragraph 41. 4 NO. 11 EQUITY 1993 To hold otherwise would raise an ancillary matter in every litigation that would serve only to complicate the issues .... These are matters that are best decided by the court upon a petition at the conclusion of the case .... Shevchik v. Zwergel, 8 Pm D. & C.4th 66, 67 (Westmoreland Co. 1990). We are in accord with the hol~ding of the court in Shevchik. An assertion of a claim for attorney's fees under Section 2503(9) in the form of a counterclaim requiring a Reply - and possibly generating pretrial motions for judgment on the issue would confound the issues to be determined at trial as well as pretrial. Such a claim in the present case 'would best be determined at the conclusion of the trial, because the record and history of the trial would facilitate the Court's consideration of whether Plaintiffs' actions were in fact arbitrary, vexatious and in bad faith. For these reasons, and because Defendant's inclusion of requests for attorney's fees elsewhere in the Answer precludes any argument that the right to file a timely petition for such fees has been waived, we will grant Plaintiffs' demurrer to Defendant's counterclaim. ORDER OF COURT AND NOW, this f~- day of June, 1993, upon careful consideration of Defendant's Countercla/m and Plaintiffs' Prel/minary Objection in the nature of a demurrer thereto, as well as the briefs and oral arguments presented on the matter, NO. 11 EQUITY 1993 Plaintiffs' Preliminary Objection is GRANTED and the Counterclaim is .DISMISSED, without prejudice to raise the issue contained therein at an appropriate time. BY THE COURT, ..s/ J. Wesley Oler~ Jr. J. Wesley Oler, Jr. J. Fred H. Hait, Esq. 200 North Hanover Street Carlisle, PA 17013 Attorney for Plaintiffs Barbara A. Zemlock, Esq. P.O. Box 1265 Harrisburg, PA 17108-1265 Attorney for Defendant ;rc 6