The URL can be used to link to this page

Home My WebLink About93-0819 Civil LORING COAT CO., INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA ; v. : CIVIL ACTION - LAW : W~LLIAM B. GOETZ, III, : individually and t/d/b/a : THE NEW ENGLANDER, : Defendant : NO. 819 CML 1993 .IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS ..BEFORE SHEELY, P.J., HOFFER and OLER, ~ ORDER OF COURT AND NOW, this ~[~ day of January, 1994, upon careful consideration of Defendant's preliminary objections to Plaintiff's complaint, the preliminary objections are DENIED except as to the defective verification. Plaintiff is GRANTED twenty days within which to file an amended complaint with a proper verification. BY THE COURT, ~Ve-sley Ole ,~'., J.'"'" q ~ W. Scott Henning, Esq. 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 Attorney for Plaintiff William B. Goetz, Pro Se 326 South 10th Street Lemoyne, PA 17043 Defendant :rc LORING COAT CO., INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : WILLIAM B. GOETZ, III, : individually and t/d/b/a : THE NEW ENGLANDER, : Defendant : NO. 819 CML 1993 IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE SHEELY, P.J., HOFFER and OLER, JJ. OPINION AND ORDER OF COURT Oler, J. The present case arises out of an alleged breach of contract due to Defendant's failure to pay for merchandise ordered and received from Plaintiff. For disposition at this time are Defendant's preliminary objections, fried pro se, consisting of a demurrer and several motions to strike. For the reasons stated in this Opinion, the preliminary objections will be denied, with one exception. The following facts are alleged in Plaintiff's complaint: Plaintiff is a corporation maintaining an office and place of business at 8-18 South Lander Street, Newburgh, New York. ~ Defendant is an adult individual, trading and doing business as The New Englander, and maintaining an office and place of business at 326 South Tenth Street, Lemoyne, Cumberland County, Pennsylvania? On or about December 11, 1991, Plaintiff, at the request of Defendant, sold and delivered to Defendant twenty-four wool coats; the total price of the coats, which Plaintiff's Complaint, paragraph 1. Plaintiff's Complaint, paragraph 2. No. 819 Civil 1993 Defendant agreed to pay, was $2180.23.3 However, Defendant failed to make payment as required, notwithstanding demand therefor. Plaintiff seeks to recover the total price of $2180.23, interest as of the complaint filing date, pursuant to the terms of an invoice, in the amount of $239.83,4 additional interest accruing thereafter, and costs. The demurrer fried by Defendant to Plaintiff's complaint asserts simply that "[t]he complaint as written fails to state a cause of action against the defendant."5 The motions to strike are based upon the following grounds: (1) that the complaint was verified by an improper person, namely, Plaintiff's attorney;6 (2) that paragraph 3 of the complaint states that Plaintiff, at the special instance and request of Defendant, sold and tendered to Defendant various wool coats, and that these were not in fact the wo(~l coats which Defendant had ordered;? and (3) that paragraph 3 of the complaint requests interest, but does not refer to or include a written document "which would grant this sort of relief."8 With respect to Defendant's demurrer to Plaintiff's complaint, several points of law are pertinent. First, as to a demurrer in general, it is well settled in Pennsylvania ~ Plaintiff's Complaint, paragraphs 3, 4, and Exhibit A. 4 Plaintiff's Complaint, paragraphs 3, 5. 5 Defendant's Preliminary Objections, paragraph 1. 6 Defendant's Preliminary Objections, paragraph 2. ? Defendant's Preliminary Objections, paragraph 3. s Defendant's Preliminary Objections, paragraph 4. 2 No. 819 Civil 1993 that "[t]he question presented by a demurrer is whether, 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). In considering such an objection, a court must keep in mind that "a demurrer admits every well- pleaded fact and all inferences reasonably deducible therefrom." Rutherford v. Presbyterian-UniversityHospital, 417 Pa. Super. 316, 321-22, 612 A.2d 500, 502 (1992). Moreover, "a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible." Cianfrani v. Commonwealth of Pennsylvania, Employees' Retirement Board, 505 Pa. 294, 297, 479 A. 2d 468, 469 (1984). Second, "[p]reliminary objections must state specifically the grounds upon which they rely." 3 Goodrich Amram 2d §1028(a):1, at 33 (1991). "IA] demurrer generally averring that a complaint fails to state a cause of action must be dismissed because [of] its generality ...."Id. Third, on the specific subject of what must be included in a complaint for breach of contract, it has been held that "Ia] cause of action ex contractu must be established by pleading the existence of a contract (including its essential terms), a breach of duty imposed by the contract and resultant damages." The General State Authority, Commonwealth of Pennsylvania v. Coleman Cable and Wire Company, 27 Pa. Commw. 3 No. 819 Civil 1993 385, 388-89, 365 A.2d 1347, 1349 (1976). In the present case, Defendant's demurrer is merely general and, in any event, ff all of Plaintiff's well-pleaded facts are accepted as true the complaint sets forth a sufficient cause of action for breach of contract. Plaintiff has pled the existence of a contract by alleging that it delivered various wool coats at the special instance and request of Defendant, and that an agreement had been reached on the price that Defendant was to pay for the merchandise? The complaint contains an allegation of a breach by Defendant of a duty imposed by the contract -- i.e., Defendant's failure to pay for the goods as promised, despite a demand for payment by Plaintiff. Finally, Plaintiff has sufficiently pled damages resulting from Defendant's breach by stating the amount owing for the merchandise. The demurrer of Defendant must therefore be denied. With respect to Defendant's motion to strike the complaint because of improper verification by Plaintiff's attorney, Pennsylvania Rule of Civil Procedure 1024(a) provides in pertinent part that "[e]very pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signor's personal knowledge or information and belief and shall be verified." Rule 1024(c) states: The verification shall be made by one or more of the parties f"fling the pleading unless all the parties (1) lack 9 Plaintiff's Complaint, paragraphs 3, 4. 4 No. 819 Civil 1993 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 by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated upon his own knowledge and the reason why the verification is not made by a party. "Although a complaint may be stricken because of an insufficient verification, it is an abuse of a court's discretion to dismiss a pleading for improper verification without affording a party an opportunity to FOe an amended verification." 2 Goodrich Amram 2d §1024(a):5, at 412-13 (1991). In Monroe Contract Corp. v. Harrison Square, Inc., 266 Pa. Super. 549, 557, 405 A. 2d 954, 958 (1979), a case reversing a lower court's dismissal of a petition on the ground that it was verified by an attorney rather than a party to the action, the Court noted that, "[w]hile we do not, of course, condone willful noncompliance with our procedural rules, a hypertechnical reading of each clause, and a blind insistence on precise, formal adher[e]nce, benefits neither the judicial system nor those utilizing that system." Id. Therefore, the Court stated, "at a bare minimum, a court confronted by a defective verification should grant leave to amend before dismissing .... "Id. In the present case, the verification of Plaintiff's complaint was signed by its attorney without an indication as to why it was not made by a party in accordance with Pennsylvania Rule of Civil Procedure 1024(c). Thus, it does not meet the formal 5 No. 819 Civil 1993 requirements of the rule. In accordance with the foregoing authority, leave will be granted to Plaintiff to frle an amended complaint with proper verification within twenty days. With respect to Defendant's motion to strike the complaint because the merchandise delivered to Defendant by Plaintiff was not the same as that ordered by Defendant,~° it should be noted that permissible preliminary objections are limited by Pennsylvania Pennsylvania Rule of Civil Procedure 1028(a) to the following grounds: (1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint; (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificty in a pleading; (4) legal insufficiency of a pleading (demurrer); and (5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action; and (6) pendency of a prior action or agreement for alternative dispute resolution. In raising the issue of the consistency of the merchandise delivered by Plaintiff with that ordered by Defendant, Defendant has raised a factual defense which is not among the grounds authorized by Rule 1028(a) for a preliminary objection. In ~o Defendant's Preliminary Objections, paragraph 3. 6 No. 819 Civil 1993 addition, any attempt to construe the motion as an attempted demurrer is similarly unavailing to Defendant. "A demurrer which supplies facts not in the record is known as a 'speaking demurrer,' which is condemned." 2 Goodrich Amram 2d §1017(b):29, at 275 (1991). Consequently, Defendant's motion to strike on the ground that the merchandise delivered was not the same as that which was ordered must be denied. With respect to Defendant's motion to strike the complaint on the ground that Plaintiff requests interest, but does not refer to or include a written document addressing this subject,~ it should be noted that Plaintiff has attached to and incorporated in its complaint, as Exhibit A, a copy of the invoice pertaining to the merchandise in question, 12 The invoice states on its face that past due payments are subject to interest at "2 above current prime rate."~s Thus, this ground for relief asserted by Defendant must also be rejected.~4 For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this /¥~: day of January, 1994, upon careful consideration of ~ Defendant's Preliminary Objections, paragraph 4. ~2 Plaintiff's Complaint, paragraph 3 and Exhibit A. ~s Plaintiff's Complaint, Exhibit A. ~4 It appears that Defendant has fa/led to file a brief in support of his preliminary objections. Cumberland County Rule of Court 210-7 provides that "[i]ssues raised, but not briefed, shall be deemed abandoned." The denial of various preliminary objections herein is warranted not only upon the merits, as indicated in the text, but upon this procedural ground as well. 7 No. 819 Civil 1993 Defendant's preliminary objections to Plaintiff's complaint, the preliminary objections are DENIED except as to the defective verification. Plaintiff is GRANTED twenty days within which to file an amended complaint with a proper verification. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. W. Scott Henning, Esq. 319 Market Street P.O. Box 1177 Harrisburg, PA 17108 Attorney for Plaintiff William B. Goetz, Pro Se 326 South 10th Street Lemoyne, PA 17043 Defendant :rc 8