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HomeMy WebLinkAbout92-3463 CivilCHARLES A. DEITCH and IN THE COURT OF COMMON PLEAS OF BARBARA J. DEITCH, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW RICH SHINDEL and MARY LOU SHINDEL, his wife, NO. 3463 CIVIL 1992, Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER, HESS, and OLER, JJ. ORDER OF COURT AND NOW, this 2.514 day of January, 1993, Defendants' Preliminary Objections to Plaintiffs' Complaint are DISMISSED. BY THE COURT, Marlin McCaleb, Esq. Attorney for Plaintiffs David W. Knauer, P.C. Attorney for Defendants :rc 61- /L4, J. Marlin McCaleb, Esq. Attorney for Plaintiffs David W. Knauer, P.C. Attorney for Defendants :rc CHARLES A. DEITCH and IN THE COURT OF COMMON PLEAS OF BARBARA J. DEITCH, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW RICH SHINDEL and MARY LOU SHINDEL, his wife, NO. 3463 CIVIL 1992 Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER, HESS, and OLER, JJ. OPINION AND ORDER OF COURT Oler, J. For disposition in the present case are preliminary objections to a complaint in a contract action. For present purposes, the facts as alleged may be summarized as follows: On June 18, August 13, August 29, and November 15 of 1991, Charles A. and Barbara J. Deitch (Plaintiffs) agreed to loan various sums of money' to Rich and Mary Lou Shindel (Defendants).2 Plaintiffs aver that, in consideration for the loans, Defendants promised to repay the principal debt with interest at a rate of five percent per annum.' Plaintiffs further aver that Defendants have "failed and refused" to repay Plaintiffs, as promised; consequently, Plaintiffs have commenced the present action seeking ' Plaintiffs aver they advanced the following sums on the specified dates to the Defendants: (a) $150.00 on June 18, 1991; (b) $2,107.50 on August 13, 1991; (c) $901.00 on August 29, 1991; and (d) $10,649.00 on November 15, 1991. Plaintiffs' Complaint, paragraph 3. 2 Plaintiffs' Complaint, paragraphs 1-3. 3 Plaintiffs aver that Defendants promised to repay the loans in "reasonable installments," with the first payment being due on December 15, 1991. Plaintiffs' Complaint, paragraph 4. No. 3463 of 1992 judgment in their favor for the outstanding principal and accrued interest.a Defendants have filed the following Preliminary Objections to Plaintiffs' Complaint: (1) a motion to strike, or in the alternative a motion for a more specific pleading, premised upon Plaintiffs' alleged failure to specify whether the contract was in writing or attach a copy of the contract to the complaint; and (2) a motion for a more specific pleading premised upon Plaintiffs' alleged failure to specify the consideration upon which the contract was based.' This matter was submitted to the Court for disposition on briefs. Several principles of law with respect to preliminary objections to a complaint in the form of a motion to strike and a motion for a more specific pleading may be noted. As to the former, it has been said that "(a] motion to strike is limited to errors of form. It cannot be used for other objections." 5 Standard Pennsylvania Practice §25:44, at 196 (1982). Moreover, because the rules of pleading are to be construed liberally, "motions to strike are sparingly granted." Id. §25:51, at 207; see Pa. R.C.P. 126. As to motions for a more specific pleading, it has been stated Plaintiffs aver that the principal amount of outstanding loans is $13,808.40. Plaintiffs' Complaint, paragraph 5. ' Defendants' Preliminary Objections. 2 No. 3463 of 1992 that "[t]he purpose of a preliminary objection in the nature of a motion for a more specific pleading ... is to insure that an adverse party's right and ability to answer and defend will not be unduly impaired by a pleader's vagueness in stating the grounds of his suit, and to insure that the adverse party is adequately informed of the issues he must meet." Id. §25.52, at 209. In ruling on a preliminary objection in the form of a motion for a more specific pleading, the trial court should consider whether "the complaint adequately informs the defendant of the issues which he must be prepared to meet so that he may properly prepare his defense for trial Id. §25.53, at 210. With these principles in mind, we turn to the preliminary objections in the present case. Defendants' first Preliminary Objection, in the form of a motion to strike, or in the alternative a motion for a more specific pleading, is premised upon Plaintiffs' alleged failure to specify whether the contract was in writing or attach a copy of the contract to the Complaint in violation of Pa. R.C.P. 1019(h). In pertinent part, Pennsylvania Rule of Civil Procedure 1019(h) states that "[a] pleading shall state specifically whether any claim ... is based upon a writing. If so, the pleader shall attach a copy of the writing" to the complaint. It is well settled, however, that where a pleading is silent as to whether the "contract is oral or written ... an inference arises that the alleged agreement is not written." 2 Goodrich Amram §1019(h):3, at 357 (1991). In the 3 No. 3463 of 1992 instant case, Plaintiffs' Complaint is silent as to whether the contract was oral or written; consequently, the contract must be considered to be an oral contract. Based upon the foregoing authority, Defendants' first Preliminary Objection is denied. Defendants' second objection in the form of a motion for a more specific pleading is based upon Plaintiffs' alleged failure to specify the consideration upon which the contract was based. In paragraph four of Plaintiffs' Complaint, they clearly and concisely identify the consideration upon which the contract was based.' Thus, Plaintiffs' complaint adequately informs Defendants of the issues they must be prepared to meet at trial. Accordingly, Defendants' second Preliminary Objection is denied. ORDER OF COURT AND NOW, this JSj day of January, 1993, Defendants' Preliminary Objections to Plaintiffs' Complaint are DISMISSED. BY THE COURT, s/J. Wesley Oler, Jr. J. Marlin McCaleb, Esq. Attorney for Plaintiffs ' Paragraph four of Plaintiffs' Complaint states that "[i]n consideration of said loans, and as an inducement to Plaintiffs to advance said sums, Defendants promised to repay the principal debt, together with interest thereon at the rate of five per centum per annum, in reasonable installments commencing December 15, 1991." 4 No. 3463 of 1992 David W. Knauer, P.C. Attorney for Defendants :rc