HomeMy WebLinkAbout93-0034 CivilRAPHAEL L. CHIEKE,
Plaintiff' IN THE COURT OF COM
V. CUMBERLAND COUN ON PLEAS OF
• �'1',M PENNSYLVAN�
HOBART AUTO BODY, CIVIL ACTION -LAW
Defendant
NO. 34 CIVIL 1993
IN RE' DEFENDANT'S PRELIMINARY O
BEFORE SHEELY p J B`IECTI�NS
and OLER J.
ORDER OF COURT
AND NOW, this 13t4 day o f August
Defendant's P , 1993, upon careful consideration of
reliminary Objections, as well as
the briefs and oral
submitted on the arguments
matter, it is ORDERED
as follows:
1• Defendant's preliminary objection in the form of a motion to strike
Other respects, the
paragraphs 3, 5, 11, and 12 of Plaintiff's Complaint
as drafted is to
in all
motion to strike is DENIED.
2• Defendant's
Preliminary objections based upon lack of s e
GRANTED as indicated in the accompan n P cificity are
3'i g opinion.
3• Plaintiff is granted 20 days within which to file an amended complaint,
BY THE COURT,
Raphael K. Chieke le '
4241 VV'ams,Pro Se esy Oler, J J
burg Drive
Harrisburg, PA 17109
Plaintiff
Fred H. Hait, Esq.
200 North Hanover Street
Carlisle, PA 17013
Attorney for Defendant
RAPHAEL L. CHIEKE,
Plaintiff
V.
HOBART AUTO BODY,
Defendant
Oler, J.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 34 CIVIL 1993
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE SHEELY. P.J., and OLER. J.
OPINION AND ORDER OF COURT
At issue in the present case are preliminary objections filed by Hobart Auto
Body (Defendant) in response to a complaint filed by Raphael K. Chieke (Plaintiff).
For the reasons set forth in this Opinion, Defendant's preliminary objections are
granted, and Plaintiff is granted 20 days in which to file an amended complaint.
Plaintiff is a pro se litigant who commenced this action by filing a complaint
against Defendant on January 12, 1993. The facts, as alleged in Plaintiff s complaint,
may be summarized as follows:
In June, 1991, Plaintiff took his automobile to a certain mechanic for repairs
and a recommendation of "a good body shop."' In March, 1992, this individual
completed the mechanical work on Plaintiffs automobile and recommended one Ed
Hobart of "Hobart Auto Body" to perform the "body work" on Plaintiffs car.'
Subsequently, Plaintiff met with Mr. Hobart to discuss the work to be done on
1 Plaintiffs Complaint, paragraph 1.
2 Plaintiff"s Complaint, paragraph 2.
No. 34 Civil 1993
the automobile.' At that time, Mr. Hobart told Plaintiff that he would contact him
with an estimate for the cost of the "body work."' When Plaintiff did not hear from
Mr. Hobart after two days, he contacted him and was given an estimate of $1,800.5
Both parties thereafter agreed to a price of $1,700, and, after refusing Plaintiffs
request to "write the work order," Mr. Hobart began working on Plaintiff's car.'
In May, 1992, Plaintiff contacted Mr. Hobart to ascertain when he could pick
up his car.' At this time, Mr. Hobart told Plaintiff that he was not charging tag on
the services rendered, and, therefore, Plaintiff should bring cash to pay for the work
done on the automobile.'
On May 15, 1992, Plaintiff went to pick up his automobile from Mr. Hobart.9
However, since some molding on the trunk of the automobile was missing, and since
Mr. Hobart had not sanded or buffed the automobile, Plaintiff gave Mr. Hobart only
$1,600 of the agreed upon price and retained $100 until such time as the job was
3 Plaintiff's Complaint, paragraph 3. It should be noted that although Plaintiff has named
Hobart Auto Body as the Defendant in the caption of his complaint, he refers to Mr. Hobart
as the Defendant in the text of his complaint.
4 Id.
5 Id.
6 Id.
7 Plaintiff's Complaint, paragraph 4.
a Id.
9 Id.
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No. 34 Civil 1993
finished.10 Additionally, Plaintiff avers that Mr. Hobart denied Plaintiff's request
that he give him a receipt for the payment, indicating that, if he were to do so, he
would have to charge Plaintiff tax on the services rendered."
During the months of July and August, 1992, Plaintiff contacted Mr. Hobart
several times regarding the missing piece of molding and the sanding and buffing of
his automobile.12 After being told several times by Mr. Hobart that he could not find
the molding, Plaintiff purchased it himself."
On September 15, 1992, Plaintiff brought his automobile back to Mr. Hobart to
be sanded and buffed and to have the molding put on the trunk.14 Additionally, Mr.
Hobart was to repair "the rust on the back glass" and to paint the door linings and rear
bumper of Plaintiffs automobile.16 When Plaintiff picked up his automobile on
September 18, 1992, Mr. Hobart had painted the door linings and had put the molding
on the trunk.18 Mr. Hobart charged Plaintiff an additional $50 for these services. 17
10 Plaintiff% Complaint, paragraph 4.
11 Id.
12 Plaintifrs Complaint, paragraph 7.
13 Id.
14 Plaintifrs Complaint, paragraph 8.
15 Id.
16 Plaintifrs Complaint, paragraph 9.
17 Id.
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No. 34 Civil 1993
Furthermore, Plaintiff later discovered that Mr. Hobart had jammed the lock on the
trunk when replacing the molding.18
When Plaintiff went to pick up his automobile on the aforesaid date, Mr. Hobart
insisted on payment in cash from Plaintiff.19 Since Mr. Hobart would not release
Plaintiff's car and was "hostile and intimidating to Plaintiff and his wife," Plaintiff
went to a nearby bank to obtain $150 in cash."
Plaintiff further alleges that Mr. Hobart did not sand and buff his automobile
and that Mr. Hobart did not repair "the rust on the back glass" of the automobile.21
Rather, Plaintiff avers, Mr. Hobart "damaged Plaintiff s air-conditioning system having
used Plaintiff's car to drag race. 1122
Additionally, Plaintiff avers that on October 2, 1992, when he and his wife took
his automobile back to Mr. Hobart to have the trunk lock fixed, Mr. Hobart became
"hostile and threatening to Plaintiff and his wife to the extent that they had to run
away leaving their car behind."' Subsequently, Plaintiff filed a 'verbal complaint"
" Plaintiffs Complaint, paragraph 9.
is Plaintiffs Complaint, paragraph 10.
20 Id.
21 Plaintiff's Complaint, paragraph 11.
22 Id. Plaintiff bases this allegation on the fact that he saw Mr. Hobart washing mud off
of his car.
' Plaintiffs Complaint, paragraph 12.
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No. 34 Civil 1993
against Mr. Hobart with a "nearby Magistrate.i"
In his complaint, Plaintiff also avers that "Mr.Hobart is currently under
investigation by the [Pennsylvania] State Attorney General and the [Pennsylvania]
Department of Revenue for this and other only cash dealings."' Furthermore,
Plaintiff has attempted to incorporate his pleading from proceedings below before a
district justice into his present complaint and has attached portions thereof to the
complaint as exhibits."
Defendant has filed the present preliminary objections in the form of a motion
for a more specific pleading, a motion to strike portions of Plaintiff's complaint, and
a demurrer. More specifically, Defendant has filed a motion for a more specific
pleading based upon the following grounds: 1) the complaint does not properly identify
the parties to the action, 2) the complaint does not specify the nature of the "body
work" to be performed by Defendant, and 3) paragraph 13 of the complaint makes
reference to exhibits not attached to the complaint.27 Defendant has also requested
the Court to strike portions of Plaintiffs complaint contending that 1) the complaint
violates Pennsylvania Rule of Civil Procedure 1022 (which requires, as far as
24 id.
2" Plaintiff's Complaint, paragraph 5.
zs Plaintiff's Complaint, paragraph 13.
27 Defendant's Preliminary Objections, paragraphs 1-3.
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No. 34 Civil 1993
practicable, only one allegation per paragraph); that 2) the complaint improperly
refers to proceedings at the district justice level; and that 3) paragraphs 3, 5, and 12,
and 13 of the complaint (relating to Defendant's character as a "gentle man," an
alleged investigation of Defendant by the Pennsylvania Department of Revenue and
the Pennsylvania Attorney General, and the proceedings at the district justice level)
allege impertinent matter.28 Finally, Defendant has filed a demurrer to Plaintiffs
complaint, contending that it fails to set forth a cause of action."
With respect to Defendant's contention that Plaintiff s complaint fails to
properly identify the parties, Pennsylvania Rule of Civil Procedure 1018 requires that
"[e]very pleading shall contain a caption setting forth ... the name of all the parties."
In this regard, "[i]t is essential that a complaint set forth the names of all the parties
to an action, since, if the action is commenced by complaint, the failure to name the
parties would exclude them from the action." 2 Goodrich Amram 2d, §1018:3 at 292
(1991). However, it should be noted that "[n]o action or proceeding may be dismissed
by reason of an erroneous caption or docketing, but the court on motion of any party
or on its own motion may correct the caption or direct appropriate docketing." Order
of Pennsylvania Supreme Court, February 8, 1969; see Pa. R.C.P. 1018.
In the present case, Plaintiff s complaint names Hobart Auto Body as the
2" Defendant's Preliminary Objections, paragraphs 4-6.
29 Defendant's Preliminary Objections, paragraph 7.
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No. 34 Civil 1993
Defendant. However, the text of Plaintiff s complaint refers to Mr. Hobart, not Hobart
Auto Body, as the Defendant. Moreover, Plaintiff's complaint fails to state where
Hobart Auto Body is located and in what capacity Mr. Hobart is associated with
Hobart Auto Body.30 As such, we must agree with Defendant's contention that
Plaintiffs complaint fails to adequately identify the parties to the action.
With respect to Defendant's contention that Plaintiff's complaint lacks
specificity in defining the nature of the "body work" that was to be performed by Mr.
Hobart, Pennsylvania Rule of Civil Procedure 1019(a) mandates that "[t]he material
facts on which a cause of action... is based shall be stated in a concise and summary
form." Under the requirements of this rule, "[n]ot only must [the] pleadings put an
opponent on notice of what he or she will be called upon to meet at trial, they must
also form the issues in an action so that the proof at trial may be restricted to those
issues." 2 Goodrich Amram 2d, §1019:2 at 310-11 (1991). "Generally speaking, a
pleading should be sufficiently speck so as to enable an opposing party to prepare his
or her response." 2 Goodrich Amram 2d, §1019:4 at 313 (1991).
In the present case, upon reviewing Plaintiff's complaint, we cannot say that it
sufficiently specifies the "body work" which Defendant was hired to perform. As such,
30 Defendant's Brief states that "even though it is not of record, Hobart Auto Body is a
fictitious name registered to an entity in another county, and not to the entity at 600
Centerville Road, Newville." Defendant's Brief, at 2. Since the averments of Plaintiff's
complaint make no reference to the nature and identity of Hobart Auto Body, we cannot
address this issue here.
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No. 34 Civil 1993
we believe that Defendant will not be able to adequately prepare a response indicating,
for instance, which portions of the specified work he or it had completed. Moreover,
since the allegations of the complaint are not specific, they do not adequately put
Defendant on notice of what he or it will be required to meet at trial.sl
Defendant has also filed a motion to strike portions of Plaintiffs complaint,
contending that "[t]he [c]omplaint flagrantly violates [Pennsylvania Rule of Civil
Procedure] 1022 which requires that each paragraph contain as far as practicable only
one material allegation."" When a challenge to a complaint arises under Rule 1022,
"the test of compliance is the difficulty or impossibility one has in answering the
complaint." General State Authority v. Sutter Corp., 24 Pa. Commw. 391, 394, 356 A.2d
377, 380 (1976).
Based upon the specific language of Rule 1022, as well as the test set forth
above, we must agree with Defendant that paragraphs 3, 11, and 12 of Plaintiffs
complaint are not in compliance with Rule 1022.33 Although not every paragraph of
31 With respect to Defendant's contention that paragraph 13 of Plaintiffs complaint makes
reference to exhibits which are not attached to the complaint, we fail to see a basis for such
a preliminary objection. Our copy of Plaintiff's complaint contains both of the exhibits
referred to in paragraph 13 of the complaint.
32 Defendant's Preliminary Objections, paragraph 4. The language used by Defendant is
substantially equivalent to that set forth in Rule 1022.
33 Defendant's preliminary objection generally states that Plaintiff's complaint does not
comply with Rule 1022. However, Defendant's brief only challenges paragraphs 3, 11, and 12
of Plaintiff's complaint. See C.C.R.P. 210-7.
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No. 34 Civil 1993
a complaint which contains more than one allegation of material fact should be
regarded as materially defective, the aforementioned paragraphs of the current
complaint contain substantially more than one allegation of material fact." As such,
we are compelled to grant Defendant's motion to strike paragraphs 3, 11, and 12 of the
complaint as drafted.
Defendant also moves to strike paragraphs 3, 5, 12, and 13 of Plaintiff's
complaint, contending that the allegations contained therein are impertinent to
Plaintiff s cause of action. In this regard, it has been noted in Pennsylvania that the
"right to strike impertinent matter should be sparingly exercised; where the matter is
impertinent but not injurious, it need not be stricken." 2 Goodrich Amram 2d,
§1017(b):16 at 261 (1991). If the challenged allegations are not prejudicial to the
objecting party, the "matter may be treated as mere surplusage and ignored." Id.
a' The following is an example of the paragraphs of Plaintiff's complaint to which
Defendant has filed preliminary objections:
Noteworthy again on September 18, 1992, Defendant did not
sand or buff Plaintiffs car as agreed upon. Also, Defendant did
not repair the rust on the back glass. Instead, Defendant
damaged Plaintiff's air-conditioning system having used
Plaintiff's car to drag race, because Plaintiff saw Defendant on
the day he came to pick up his car washing off mud from
Plaintiff's car. Plaintiff has paid Defendant a total of $1750.00
in cash. Defendant has not fulfilled his own end of the
agreement. Additionally, Defendant has committed wrongful act
by his insistence for cash payments, including not providing
Plaintiff with any receipts for the work Defendant performed.
Plaintiff's Complaint, paragraph 11.
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No. 34 Civil 1993
Moreover, "a preliminary objection in the nature of a motion to strike off a pleading
should be overruled unless a party can affirmatively show prejudice." Id.
In light of this standard, and upon review of the Plaintiff s complaint, we believe
that the only allegation contained in the complaint which is prejudicial to Defendant
as well as impertinent is that which states that "Mr. Hobart is currently under
investigation by the [Pennsylvania] State Attorney General and the [Pennsylvania]
Department of Revenue for this and other only cash dealings.i35 Consequently, the
paragraph setting forth this allegation, specifically paragraph 5, will be stricken from
Plaintiff s complaint."
Finally, Defendant has also filed a preliminary objection in the nature of a
demurrer contending that Plaintiff s complaint does not state with sufficient specificity
the work which Defendant was obligated to perform for Plaintiff.37 Defendant
contends that "the [c]omplaint only states that Defendant was to do `bodywork' for
Plaintiff with no further details supplied," and, as such, it "should be dismissed ... for
failure to state a claim for which relief can be granted.""
35 Plaintiff's Complaint, paragraph 5.
36 Although Defendant has also challenged other allegations in Plaintiff's complaint,
namely those making reference to the proceedings before the district justice and those making
reference to Mr. Hobart's character as a "gentle man," we do not believe that such allegations
rise to the level of prejudice warranting that they be stricken from the complaint.
37 Defendant's Brief, at 7.
38 Id.
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No. 34 Civil 1993
It is well settled in Pennsylvania that, in ruling on a preliminary objection in
the nature of a demurrer, a trial court must accept as true "all material facts set forth
in the complaint as well as all inferences reasonably deducible therefrom." Eckell v.
Wilson, 409 Pa. Super. 132, 135, 597 A.2d 696, 698 (1991), allocatur denied, 530 Pa.
643, 607 A.2d 253 (1992). "The question presented by a demurrer is whether, on the
facts averred, the law says with certainty that no recovery is possible." Vattimo v.
Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232 (1983). Moreover,
a demurrer should be sustained only if it is clear that "plaintiff has ... failed to state
a claim on which relief may be granted." Eckell v. Wilson, 409 Pa. Super. 132, 135,
597 A.2d 696, 698 (1991), allocatur denied, 530 Pa. 643, 607 A.2d 253 (1992).
Additionally, when dealing with a pro se complaint, the court is to hold the allegations
thereof "to a less stringent standard than that applied to the formal pleadings drafted
by attorneys.... If a fair reading of the [complaint] leads to the conclusion that [the
plaintiff] has pleaded facts which may entitle him to relief, the preliminary objections
will not be sustained." Reider v. Commonwealth of Pennsylvania, Bureau of
Corrections, 93 Pa. Commw. 326, 328, 502 A.2d 272, 273 (1985).
It should also be noted that, generally, "a demurrer will not be sustained on the
ground that a pleading is not sufficiently specific ...." 2 Goodrich Amram 2d
§1017(b):27, at 272 (1991). Moreover, "[w]hen a demurrer is improperly filed instead
of a motion [for a more specific pleading], the court may disregard the title of the
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No. 34 Civil 1993
objection and regard it as bearing the title of the objection which should have been
filed." 2 Anderson, Pennsylvania Civil Practice §1017.148, at 537 (1976). In other
words, "[w]hen a preliminary objection in the nature of a demurrer is in fact a motion
for a more specific statement the court ... will treat it as such." Id. at 537-38.
To maintain a cause of action for breach of contract, the complaint must allege
"the existence of a contract (including its essential terms), a breach of duty imposed
by the contract and resultant damages." General State Authority v. Coleman Cable and
Wire Co., 27 Pa. Commw. 385, 388-89, 365 A.2d 1347, 1349 (1976). Furthermore,
"every element of a contract must be specifically pleaded [in the complaint], ... and ...
when an oral contract is pleaded, clarity is important." Snaith v. Snaith, 282 Pa.
Super. 450, 455, 422 A.2d 1379, 1382 (1980). Moreover, "[a] cause of action founded
on an oral contract should specifically aver the time, place, and date when the contract
was made." Kisher and Sons, Inc. v. Resperski, 63 Luzerne 253, 255 (1973).
Upon reviewing Plaintiffs complaint, we are constrained to find that it does not
allege, with any degree of specificity, the essential terms of the oral contract between
Plaintiff and Defendant. Plaintiffs complaint does not allege the tasks which
Defendant was to perform on the automobile. Nor does it clearly allege how Defendant
breached the terms of the oral contract. Consequently, we must sustain Defendant's
preliminary objection for lack of specificity in the areas noted.
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No. 34 Civil 1993
ORDER OF COURT
AND NOW, this /96Cday of August, 1993, upon careful consideration of
Defendant's Preliminary Objections, as well as the briefs and oral arguments
submitted on the matter, it is ORDERED as follows:
1. Defendant's preliminary objection in the form of a motion to strike
paragraphs 3, 5, 11, and 12 of Plaintiff's Complaint as drafted is GRANTED; in all
other respects, the motion to strike is DENIED.
2. Defendant's preliminary objections based upon lack of specificity are
GRANTED as indicated in the accompanying opinion.
3. Plaintiff is granted 20 days within which to file an amended complaint.
Raphael K. Chieke, Pro Se
4241 Williamsburg Drive
Harrisburg, PA 17109
Plaintiff
Fred H. Hait, Esq.
200 North Hanover Street
Carlisle, PA 17013
Attorney for Defendant
:rc
BY THE COURT,
s/ J. Wesley Oler. Jr
J. Wesley Oler, Jr. J.
13