HomeMy WebLinkAbout2012-1705
CITIBANK, N.A., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION
:
HEATHER B. WADAS, :
Defendant : NO. 2012-1705 CIVIL TERM
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
PURSUANT TO PA.R.C.P. 1028
BEFORE HESS, PJ., and PECK, J.
OPINION and ORDER OF COURT
Peck, J., June 14, 2012.
In this debt collection case against a credit card debtor, Plaintiff, Citibank, N.A.,
has filed an action against Defendant for an allegedly delinquent credit card balance of
1
$23,404.55. For disposition at this time are Defendant’s Preliminary Objections Pursuant
2
to PA.R.C.P. 1028, which were filed on April 25, 2012. Oral argument on the
preliminary objections was held on June 1, 2012.
For the reasons stated in this opinion, Defendant’s preliminary objections will be
sustained.
STATEMENT OF FACTS
On March 16, 2012, Plaintiff filed an eleven-paragraph complaint against
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Defendant, alleging that Defendant failed to pay a credit card obligation. Attached to
Plaintiff’s Complaint as “Exhibit A” was a single-page document, which, according to
the Complaint, purported to be a monthly statement of an account with respect to a credit
card. The document, which indicated a “Statement Closing Date” of November 14, 2011,
1
Complaint, ¶ 11, filed March 16, 2012.
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Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, filed April 25, 2012.
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Complaint, filed March 16, 2012.
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showed a “New Balance” of $23,404.55 and a “Minimum Payment Due” of $1,827.07.
Plaintiff’s brief complaint asserted the following:
4. Defendant obtained extensions of credit from Citibank, N.A., successor in interest to
Citibank (South Dakota), N.A., by means of a credit card account (hereafter the Account)
with account number ending in 4386.
5. Citibank (South Dakota), N.A. merged into Citibank, N.A. in or about July 2011.
6. Accurate records of all debits and credits to the Account were maintained by plaintiff.
7. Defendant was provided with monthly statements for the Account including the billing
statement attached hereto as Exhibit A (redacted to remove confidential information).
The monthly statements accurately stated the previous balance and the debits and credits
to the Account for the prior billing period.
8. Defendant had for many months after receipt of a billing statement made payment on
the Account or retained the statement without payment.
9. Defendant retained the Exhibit A statement without making payment by the stated
date.
10. Defendant’s assent to the Account balance set forth in the Exhibit A statement is
manifested through the prior conduct of defendant either making payment on the Account
or retaining the statement without payment, after receipt of the monthly billing
statements.
11. As a result of said assent, an account stated for the sum of $23,404.55 exists which
sum reflects the Exhibit A statement balance less credits, if any, which were applied
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subsequent to the date of Exhibit A.
On April 25, 2012, Defendant filed her Preliminary Objections Pursuant to
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PA.R.C.P. 1028. Defendant’s preliminary objections are premised upon the following
purported deficiencies in the pleading: (1) failure to state a cause of action for which
relief may be granted, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), due
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to Plaintiff’s failure to properly plead an account stated cause of action; (2) failure to
4
Exhibit A (Citibank Statement for Account ending in 4386, Statement closing date of November 14,
2011), attached to Complaint, filed March 16, 2012.
5
Complaint, ¶¶ 4-11, filed March 16, 2012.
6
Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, filed April 25, 2012. The court notes
that, at times, the meaning of the contents of Defendant’s counseled preliminary objections are difficult to
discern. From the court’s fair reading of Defendant’s preliminary objections, it appears Defendant
challenges the Complaint on four grounds: (1) failure to properly plead an account stated cause of action;
(2) insufficient specificity; (3) failure to indicate whether the agreement is oral or written; (4) failure to
attach a copy of a written agreement. The court will address the substance of the preliminary objections
over their arguably deficient form.
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Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, Count I, filed April 25, 2012.
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allege with specificity averments of time, place, and items of special damages or to attach
documentation in support thereof, pursuant to Pennsylvania Rules of Civil Procedure
1019(a) and 1019(f), resulting in the Complaint being insufficiently specific according to
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Rule 1028(a)(3); (3) failure to specify whether the agreement is oral or written, a
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deficiency accordingly to Pennsylvania Rule of Civil Procedure 1019(h); and (4) failure
to attach a copy of the writing upon which the action is based or otherwise comply with
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the requirements of Rule of Civil Procedure 1019(i). Based upon these preliminary
objections, Defendant requests the court to order Plaintiff to file an Amended Complaint,
or in the alternative, to dismiss the action with prejudice.
Plaintiff filed response to the preliminary objections on May 9, 2012, maintaining,
inter alia, that (1) its cause of action was premised upon an account stated theory rather
than contract, as a consequence of which it was not required to attach to the complaint
any documentation other than the last billing statement, (2) that Exhibit A properly sets
forth the total balance due and owing, (3) that the complaint contains no allegations of
special damages, and (4) that, in an account stated cause of action, a plaintiff is not
required to allege any item with specificity, including the individual items comprising the
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total balance due. Both Plaintiff and Defendant submitted briefs to the court in
accordance with local rules of court. Oral argument was held on June 1, 2012, and the
matter is now ripe for disposition.
DISCUSSION
This matter raises the familiar issue of whether a credit card collection action may
proceed without written documentation by characterizing it as a claim based on an
account stated. Based upon a reading of the relevant appellate precedent, and in
8
Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, Count II, filed April 25, 2012.
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Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, Count III, filed April 25, 2012.
10
Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, Count IV, filed April 25, 2012.
11
See Plaintiff’s Response to Preliminary Objections, filed May 9, 2012.
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accordance the holdings of other members of the same bench, the court will adhere to
the position that a plaintiff in a credit card action cannot escape the pleading formalities
described in Atlantic Credit and Finance, Inc. v. Giuliana, 2003 PA Super 259, 829 A.2d
340, 345, and Arrow Financial Services LLC v. Witmer, 59 Cumb. L.J. 154 (Pa. Com. Pl.
Cumb. Cnty. 2010) (Ebert, J.) simply by characterizing its claim as one based on an
account stated.
Defendant’s preliminary objections will be addressed in an order facilitating their
discussion.
I.Preliminary Objection Raising Insufficient Specificity
Defendant argues that Plaintiff’s Complaint is insufficiently specific because it
does not meet the requirements of Rule 1019 (averments of time, place, and special
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damages are to be specifically stated). Plaintiff maintains it has pled facts with
sufficient specificity to allow Defendant to answer the complaint and to support its claim
for account stated.
Statement of law. In determining sufficiency of the pleadings in a complaint, the
court will consider “whether the plaintiff’s 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.”
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See, e.g., Arrow Financial Services LLC v. Witmer, No. 59 Cumb. L.J. 154 (Pa. Com. Pl. Cumb. Cnty.
2010) (Ebert, J.) (in an action to collect on an alleged debt due on a consumer credit card, creditor cannot
escape otherwise applicable pleading requirements simply by characterizing the claim as one based upon
an “accounts stated” theory, and must support debtor’s acceptance of account stated by attaching copy of
cardholder agreement, statement of account, and debtor’s acquiescence to amount due); Citibank (South
Dakota) N.A. v. Skaboulos, No. 2009-8676 (Pa. Com. Pl. Cumb. Cnty. 2011 (Oler, J.); Citibank (South
Dakota) N.A. v. Ross, No. 2010-5668 Civ. T. (Pa. Com. Pl. Cumb. Cnty. 2011) (slip op.) (Masland, J.)
(holding attachment of single statement insufficient for pleading requirements in an account stated cause
of action to collect on an alleged consumer credit card debt).
13
Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, Count II, filed April 25, 2012.
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Defendant argues that case law directs that, in an action to collect on consumer
credit card debt, a properly-pled complaint must set forth several averments with
specificity, including the specific identification of items purchased, the specific date
during which the purchases were made, the place from where the items were purchased,
the dates and amounts corresponding to any cash advances, and the amount of money that
a defendant had paid on the account. The basis for Defendant’s contention is that it is
only by pleading these averments particularly that a defendant would be enabled to
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“calculate the total amount of damages . . . allegedly due.” Pennsylvania case law, not
all of which is binding on this court, does provide legal support for Defendant’s position.
In the frequently cited case, World Wide Asset Purchasing, LLC v. Stern, 153 Pitts. L.J.
111 (Pa. Com. Pl. Allegh. Cnty. 2004), the Honorable R. Stanton Wettick provided a list
of items that must be included in a complaint for an action to collect on consumer credit
card debt as follows:
Amounts of the charges that are part of the claim, the dates of the charges, credit for
payments if any, dates and amounts of interest charges, and dates and amounts of other
charges. The complaint should contain sufficient documentation and allegations to permit
a defendant to calculate the total amount of damages that are allegedly due by reading the
documents attached to the complaint and the allegations within the complaint.
World Wide Asset Purchasing, LLC v. Stern, 153 Pitts. L.J. 111, at *4 (Pa. Com. Pl.
Allegh. Cnty. 2004) (Wettick, J.). In Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264 (Pa.
Com. Pl. Erie Cnty. 1982), the Erie County Court of Common Pleas addressed the issue
of specificity in the context of consumer credit card debt collection cases. The Marine
Bank court held that, although Rule 1019(f) requires only items of special damages to be
specifically stated, in the context of credit cards, “the plaintiff must particularize general
damage as far as is reasonably practicable.” Marine Bank v. Orlando, 25 Pa. D. & C. 3d
264, 268-69 (Pa. Com. Pl. Erie Cnty. 1982); see Remit Corp. v. Miller, 5 Pa. D. & C. 5th
43 (Pa. Com. Pl. Centre Cnty. 2008).
14
See Defendant’s Preliminary Objections Pursuant to PA.R.C.P. 1028, Count II, ¶12, filed April 25,
2012.
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Application of law. Neither binding appellate precedent nor the Cumberland
County Court of Common Pleas have ever held that, in an action to collect on an
outstanding credit card balance, the complaint must identify each transaction with such
particularity as to entitle a defendant to acquiesce or contest each individual purchase.
However, in an action based on a theory of account stated, in which the plaintiff argues
that the defendant’s silence and retention of monthly statements are to be interpreted as
acquiescence to the correctness of the account, it is clear to the court that the single
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isolated and uninformative billing statement cannot be considered sufficient for an
action to collect on an alleged consumer credit card debt, the amount of which is
supported solely by the number appearing on said statement. To clarify, while the court
does not require a plaintiff to attach every single statement detailing each transaction to
properly plead an action to collect on an outstanding consumer credit card account, the
contents of the instant Complaint are insufficient to support a cause of action for an
account stated.
II.Preliminary Objection Raising Failure of a Pleading To
Conform to Law or Rule of Court
Statement of law. A fair reading of Defendant’s preliminary objection contained in
“Count III” and “Count IV” show that Defendant contends that Plaintiff’s Complaint fails
to conform to law or rule of court pursuant to Pennsylvania Rule of Civil Procedure
1028(a)(2). In particular, Defendant argues that Plaintiff has failed to allege whether the
agreement upon which its action is based is either oral or written, in contradiction to Rule
1019(h), and that if the agreement is written, Plaintiff fails to conform to Rule 1019(i) by
way of its failure to attach a signed written contract between the parties. The
Pennsylvania Superior Court has held in Atlantic Credit and Finance that a plaintiff
should either attach a copy of the signed agreement that it entered into with defendant or
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The billing statement attached to the complaint did not indicate a single charge made by the alleged
account holder. The only information contained therein, in relation to debits or credits on the account, was
in the form of what appears to be a creditor-generated description of interest charged, resulting in a “Total
Interest for this Period” charge of $216.84. See Exhibit A (Citibank Statement for Account ending in
4386, Statement closing date of November 14, 2011), attached to Complaint, filed March 16, 2012.
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provide an explanation as to why the writing is not accessible to the pleader. Atlantic
Credit and Finance v. Giuliana, 2003 PA Super 259, ¶¶ 11-13, 829 A.2d 340, 344-45;
see also Target Nat’l Bank v. Kilbride, 10 Pa. D. & C. 5th 489, 2010 WL 1435304 (Pa.
Com. Pl. Centre Cnty. 2010); Marine Bank v. Orlando, 25 Pa. D. & C. 3d 264, 1982 WL
425 (Pa. Com. Pl. Erie Cnty. 1982).
Application of law. A review of Plaintiff’s brief complaint demonstrates that no
such agreement is attached. Furthermore, there is no statement in the complaint
explaining why a copy of the original agreement is not attached to the pleading. Initially,
the court must note that Plaintiff’s Complaint does not attempt to plead a cause of action
sounding in breach of contract, nor does it allege that a contract was ever entered into
between the parties from which the cause of action is arises. While Defendant’s objection
raising Plaintiff’s failure to conform to Rules 1019(h) and (i) appear misplaced ab initio,
the court cannot view such objection in a vacuum. Plaintiff’s argument, that its cause of
action is premised upon an “accounts stated” theory, and, therefore, that it need not attach
the writing, is not entirely consistent when viewed in connection with the remainder of its
complaint. For instance, in its ad damnum clause, Plaintiff requests, inter alia, that it be
awarded $23,404.55, which is the amount listed as the “New Balance” on the statement
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attached as Exhibit A. However, the single statement, upon which Plaintiff relies in
17
support of its account stated cause of action, displays a “Minimum Payment Due” as
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$1,827.07. Without an agreement that authorizes Plaintiff to collect on an amount other
than that due as explicitly indicated on the statement, the conclusion must follow that
Plaintiff is not entitled, at this time, to collect on the amount requested in its complaint.
Therefore, a consideration of the applicable pleading requirements for an action to collect
on an alleged consumer credit card debt, Plaintiff’s complaint is inadequate to support an
action seeking judgment for the amount demanded. Unless the court accepts Plaintiff’s
16
Exhibit A (Citibank Statement for Account ending in 4386, Statement closing date of November 14,
2011), attached to Complaint, filed March 16, 2012.
17
See infra, Part III.
18
Exhibit A (Citibank Statement for Account ending in 4386, Statement closing date of November 14,
2011), attached to Complaint, filed March 16, 2012.
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“accounts stated” theory based in part upon Defendant’s retention of the monthly bill as
acquiescence to a total balance of $23,404.55, and Plaintiff’s position that an action based
in such a theory does not require the otherwise applicable pleading formalities, the
complaint as drafted is not sustainable.
III.Preliminary Objection Raising Failure to Plead a Proper Cause of Action
Statement of law. In “Count I” of her preliminary objections, Defendant argues
that Plaintiff’s complaint fails to set forth sufficient facts to support its cause of action on
an “account stated” theory. An account stated is “an account in writing, examined and
expressly or impliedly accepted by both parties thereto, as distinguished from a simple
claim or a mere summary of accounts.” Target Nat’l Bank/Target Visa v. Samanez, 156
Pitts. Leg. J. 76, 77 (Pa. Com. Pl. Allegh. Cnty. 2007). Such a cause of action is
appropriate in the context of an ongoing relationship between the parties where the
substance of the parties’ back and forth discussions regarding the amount due is averred
in the complaint. Id. at 77; Capital One Bank v. Clevenstine, 7 Pa. D. & C. 5th 153, 2009
WL 1245043 (Pa. Com. Pl. Centre Cnty. 2009). An account stated cause of action
traditionally involved a promise by a debtor to pay a stated amount of money which the
parties expressly agreed was owed, in satisfaction of a preexisting debt. See 29
WC 4th 73:55. When a debtor had an opportunity to scrutinize the
ILLISTON ON ONTRACTS
account, his or her silence may be prima facie evidence of acquiescence in an account
stated. See Weck v. First Pa. Banking Trust, 202 Pa. Super. 39, 41, 195 A.2d 111, 114
(1965); Pierce v. Pierce, 199 Pa. 4, 14, 48 A. 689, 691 (1901). Nonetheless, more than a
mere failure to take exception to a series of statements of account received in the mail is
required to create an account stated, “unless the creditor can plead facts in addition to the
failure to object to the invoice which show an express or implied agreement to pay the
amount set forth in the invoice.” Target Nat’l Bank/Target Visa v. Samanez, 156 Pitts.
L.J. 76, 77 (Pa. Com. Pl. Centre Cnty. 2007); see C-E Glass v. Ryan, 70 Pa. D. & C. 2d
251, 253, 1975 WL 16632 (Pa. Com. Pl. Beaver Cnty. 1975) (holding that, when
presenting allegations of defendant’s assent to the amount owed, “something more than
8
mere acquiescence by failure to take exception to a series of statements of accounts
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received in the mail is required”).
Application of law. In the present case, Plaintiff attaches a single account
statement, arguing that it is unnecessary to attach a contract or any other documentation
since the case is being brought under an “accounts stated” cause of action. Limited to the
contents of the Complaint sub judice, it is clear that, even under an account stated theory,
the Complaint must at the very least include allegations which would support a finding
that the cardholder has agreed to, or acquiesced in, the correctness of the account.
Here, Plaintiff claims that Defendant’s acquiescence exists in Defendant’s failure
to object to the monthly statements sent to her home. However, as the court in C-E Glass
held, something more than merely failing to respond to statements received in the mail is
required to demonstrate a defendant’s assent. C-E Glass v. Ryan, 70 Pa. D. & C. 2d 251,
253, 1975 WL 16632 (Pa. Com. Pl. Beaver Cnty. 1975). More than Defendant’s failure to
object to the mailed statements is not averred in the instant Complaint.
Furthermore, the court must note the relatively brief time between the sending of
the statement and the date on which the Complaint was filed. Exhibit A displays a
19
This court does recognize the disagreement among the courts of common pleas concerning the
acceptance of an account stated cause of action in consumer credit card collections cases, and, if the
theory is accepted, what the Plaintiff must plead for its complaint to survive preliminary objections. See
Citibank (South Dakota) v. Ambrose, 13 Pa. D. & C. 5th 402, 2010 WL 3923159 (Pa. Com. Pl. Adams
Cnty. 2010) (holding account stated properly pleaded on averments similar to those of the instant
complaint); Citibank v. King, 2 Pa. D. & C. 5th 60 2007 WL 4967502 (Pa. Com. Pl. Centre Cnty. 2007)
(holding account stated properly pleaded on averments similar to those of the instant complaint). But see
Citibank (South Dakota) N.A. v. Skaboulos, No. 2009-8676 (Pa. Com. Pl. Cumb. Cnty. 2011) (Oler, J.);
Citibank (South Dakota) N.A. v. Ross, No. 2010-5668 (Pa. Com. Pl. Cumb. Cnty. 2011) (Masland, J.)
(requiring creditor to plead debtor’s acceptance of account stated by attaching a copy of cardholder
agreement, statement of account, and acquiescence to amount due, and cannot escape such pleading
requirements by characterizing its claim as being based upon an account stated theory); Citibank (South
Dakota) N.A. v. Ananiev, 13 Pa. D. & C. 5th 557, 2010 WL 3993713 (Pa. Com. Pl. Monroe Cnty. 2010)
(rejecting account stated claim and requiring attachment of credit card statements and cardholder
agreement); Target Nat’l Bank v. Kilbride, 10 Pa. D. & C. 5th 489, 2010 WL 1435304 (Pa. Com. Pl.
Centre Cnty. 2010) (holding defendant’s mere failure to respond to monthly credit card statements
insufficient to establish assent required to plead account stated claim); Capitol One Bank v. Clevenstine, 7
Pa. D. & C. 5th 153, 2009 WL 1245043 (Pa. Com. Pl. Centre Cnty. 2009) (rejecting account stated claims
for modern credit card collections); Target Nat’l Bank/Target Visa v. Samanez, 156 Pitts. L.J. 76 (Pa.
Com. Pl. Allegh. Cnty. 2007) (requiring detailed averments to plead account stated against alleged credit
card debtor).
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“Statement Closing Date” of November 14, 2011, and a “Payment Due Date” of
December 10, 2011. It follows that, the timeframe for which Defendant’s silence on the
accuracy of the statement commenced, at the earliest, on November 14, 2011. The instant
Complaint was filed on March 16, 2012, a mere four months later. While the court
certainly does not condone silence between a creditor and a debtor, the court cannot
interpret the debtor’s failure of communication to equate to prima facie evidence of
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acquiescence in an account stated. The court concludes that Plaintiff’s position, namely
that an allegation of Defendant’s silence is sufficient to plead acquiescence to the
correctness of the account, is without merit. Accordingly, Plaintiff has failed to
sufficiently plead a cause of action in the present context, and Defendant’s preliminary
objection in this regard must be sustained.
Based on the foregoing, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 14 day of June, 2012, upon consideration of Defendant’s
Preliminary Objections Pursuant to PA.R.C.P. 1028, following oral argument held on
June 1, 2012, and for the reasons stated in the accompanying opinion, Defendant’s
SUSTAINED,
preliminary objections are to the extent that the Complaint fails to
properly plead a cause of action for account stated. This court grants Plaintiff leave to file
a legally sufficient Amended Complaint in accordance with this court’s Opinion within
30 days from the date of this Order.
20
Exhibit A indicates that Plaintiff and Defendant had an alleged ongoing relationship for well over a
decade (“Member Since 1995). See Exhibit A (Citibank Statement for Account ending in 4386, Statement
closing date of November 14, 2011), attached to Complaint, filed March 16, 2012. Assuming, arguendo,
that this sufficiently pleads the “ongoing relationship” element of an account stated cause of action, it
does not establish the debtor’s acquiescence to the correctness of the outstanding amount by way of her
silence. In the court’s view, the arguable lengthy “ongoing relationship” between Plaintiff and Defendant
further undermines Plaintiff’s position that it properly pleaded an account stated by way of its failure to
allege with any type of specificity the date(s) or time(s) on which Defendant “manifested” her assent,
especially when Plaintiff had maintained “accurate records of all debits and credits to the account.” See
Complaint, ¶¶ 6, 10, filed March 16, 2012.
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BY THE COURT,
s/ Christylee L. Peck
Christylee L. Peck, J.
Trenton A. Farmer, Esq.
Brit J. Suttell, Esq.
Burton Neil & Associates, P.C.
1060 Andrew Drive, Suite 170
West Chester, PA 19380
Attorney for Plaintiff
James Vincent Natale, Esq.
Harold Shepley & Assoc., LLC
209 West Patriot Street
Somerset, PA 15501
Attorney for Defendant
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CITIBANK, N.A., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION
:
HEATHER B. WADAS, :
Defendant : NO. 2012-1705 CIVIL TERM
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
PURSUANT TO PA.R.C.P. 1028
BEFORE HESS, P.J., and PECK, J.
ORDER OF COURT
AND NOW, this day of June, 2012, upon consideration of Defendant’s
Preliminary Objections Pursuant to PA.R.C.P. 1028, following oral argument held on
June 1, 2012, and for the reasons stated in the accompanying opinion, Defendant’s
SUSTAINED,
preliminary objections are to the extent that the Complaint fails to
properly plead a cause of action for account stated. This court grants Plaintiff leave to file
a legally sufficient Amended Complaint in accordance with this court’s Opinion within
30 days from the date of this Order.
BY THE COURT,
____________________
Christylee L. Peck, J.
Trenton A. Farmer, Esq.
Brit J. Suttell, Esq.
Burton Neil & Associates, P.C.
1060 Andrew Drive, Suite 170
West Chester, PA 19380
Attorney for Plaintiff
James Vincent Natale, Esq.
Harold Shepley & Assoc., LLC
209 West Patriot Street
Somerset, PA 15501
Attorney for Defendant