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HomeMy WebLinkAbout92-3536 CivilSTEPHEN L. MILLER, Plaintiff V. WAYNE JONES and NANCY JONES, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3536 CIVIL 1992 IN RE: PLAINTIFF'S PRELIMINARY OBJECTION BEFORE OLER, J. i ORDER OF COURT AND NOW, this 2y day of December, 1993, after careful consideration of Plaintiff's preliminary objection to Defendants' new matter in the nature of a setoff, Plaintiff's preliminary objection is DENIED. BY THE COURT, � - " j C, G? . I. Wesley Ole Jr. J. Richard B. Bateman, Jr., Esq. Mychak, Geckle & Welker, P.C. 230 South /69�0s-.D Street, 11th Floor Philadelphia, PA 19102-4190 Attorney for Plaintiff Jeffrey B. Rettig, Esq. Thomas, Thomas & Hafer 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants :rc STEPHEN L. MILLER, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW WAYNE JONES and NANCY JONES, husband and wife, Defendants NO. 3536 CIVIL 1992 IN RE: PLAINTIFF'S PRELIMINARY OBJECTION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. At issue in the present case is a preliminary objection of Stephen L. Miller (Plaintiff) in the form of a motion to strike certain new matter in the nature of a setoff of Wayne Jones and Nancy Jones (Defendants). For the reasons set forth in this Opinion, Plaintiff's preliminary objection will be denied. Statement of facts. Plaintiff is an individual said to be residing in Spencer, Indiana.' Defendants are a husband and wife, said to be residing at 55 Pine Hill Road, Enola, Cumberland County, Pennsylvania.Z Plaintiff filed the instant complaint on April 26, 1993.3 In the complaint, Plaintiff alleges that he slipped and fell in front of a sliding glass door while at Defendants' Pine Hill Road residence.° As a result of the fall, Plaintiff claims that he ' Plaintiff's Complaint, paragraph 1. 2 Plaintiff's Complaint, paragraph 2. 3 Plaintiff's Complaint. 4 Plaintiff's Complaint, paragraphs 4, 5. No. 3536 CIVIL 1992 sustained serious injuries,' and he asserts that Defendants were careless, negligent, and reckless in failing to properly maintain the area in front of the door.6 In an answer to the complaint, Defendants have pleaded new matter in the nature of a setoff.' Defendants allege that as the result of a prior action a judgment was entered on December 5, 1991, in the Cumberland County Prothonotary's Office in favor of Defendant -wife and against Plaintiff in the amount of $7000.8 Defendants allege that Plaintiff has yet to satisfy this judgment and assert that, in the event Plaintiff receives a favorable verdict in the present case, the prior award of $7000 should be set off against it.' Plaintiff has filed a preliminary objection to this pleading, requesting the Court to strike Defendants' new matter in the nature of a setoff.10 The preliminary objection contends that the prior judgment may not be pleaded because (a) alternate means are ' Id. 6 Plaintiff's Complaint, paragraph 20. ' See generally Defendants' Answer with New Matter. 8 Defendants' Answer with New Matter, paragraph 32. 9 Defendant's Answer with New Matter, Paragraph 33. io See generally Plaintiff's Preliminary Objections to Defendants' New Matter and Counterclaim, and Responses Thereto. 2 No. 3536 CIVIL 1992 available for collection of the judgment, (b) if a setoff were permitted, it would not satisfy Defendant -wife's judgment against Plaintiff and would tend only to confuse matters in the instant action, and (c) Defendants' claim for setoff is inappropriate, prejudicial to Plaintiff, and unrelated to the instant action." Statement of law. "A setoff of a sum of money claimed by the defendant from the amount claimed by the plaintiff is properly pleaded as a counterclaim, rather than as a defense under the heading of new matter." 3 Goodrich Amram 2d §1031(a):3, at 120 (1991). However, "[i]n the event that a setoff is improperly pleaded as new matter, it will be treated as a counterclaim." Id. A counterclaim is provided for in Pennsylvania Rule of Civil Procedure 1031. "The defendant may set forth in the answer under the heading Counterclaim' any cause of action heretofore asserted in assumpsit or trespass which he has against the plaintiff at the time of filing the answer." Pa. R.C.P. 1031(a). The Commonwealth Court has noted that "under Pennsylvania law, a counterclaim is a claim by the defendant in opposition to or deduction from the plaintiff's claim and encompasses a set-off, which represents a 11 Plaintiff's Preliminary Objections to Defendants' New Matter and Counterclaim, and Responses Thereto, paragraphs 7-9. Plaintiff contends in his brief that the prior judgment which Defendants wish to utilize as a set off was entered in the name of "Nancy and Roddy" Jones and, thus, involves an unrelated party. See Plaintiff's Brief in Support of Plaintiff's Preliminary Objection, at 2-4. That record reveals, however, that the prior judgment was entered in the name of Ms. Jones alone. See Jones v. Miller, 762 Civil 1991 (Cumberland Co.) 3 No. 3536 CIVIL 1992 demand against the plaintiff possessed by the defendant arising from a transaction extrinsic to plaintiff's cause of action." Hill v. Port Authority Transit System of Allegheny County, 137 Pa. Commw. 132, 140, 585 A.2d 1129, 1133 (1991). Additionally, "[t]he fact that a claim has been reduced to judgment does not constitute sufficient reason why that claim should not be asserted as a setoff." 6 Standard Pennsylvania Practice 2d §29.12 at 45 (1982). Application of law to facts. In the present case, a setoff in the form of an unsatisfied judgment was pleaded in Defendants' new matter. Based upon the foregoing authority, the Court will regard this portion of the pleading as a counterclaim. Under the rules of civil procedure, a defendant is entitled to present a counterclaim even if it is unrelated to the plaintiff's cause of action. And a counterclaim in the form of a setoff may consist of an obligation that has already been reduced to judgment. For these reasons, Plaintiff's contention that Defendants' pleading as it relates to a setoff must be stricken because of the existence of an alternative means of collection, because it would tend to confuse matters in the instant action, and because the claim for setoff is inappropriate, prejudicial to Plaintiff, and unrelated to the instant action, can not prevail. ORDER OF COURT AND NOW, this 6X9'&L day of December, 1993, after careful consideration of Plaintiff's preliminary objection to Defendants' 4 No. 3536 CIVIL 1992 new matter in the nature of a setoff, Plaintiff's preliminary objection is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr. J. Richard B. Bateman, Jr., Esq. Mychak, Geckle & Welker, P.C. 230 South Board Street, 11th Floor Philadelphia, PA 19102-4190 Attorney for Plaintiff Jeffrey B. Rettig, Esq. Thomas, Thomas & Hafer 305 North Front Street, 6th Floor P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants :rc 5