The URL can be used to link to this page

Home My WebLink About2009-7268 KUAN FANG-CHENG, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION - LAW TAREK ELTANBDAWY, : AMAL EZZAT, : RASHA ELNAGGAR, AND : No. 09-7268 WALID KHALIL Defendants IN RE: DEFENDANT, WALID KHALIL’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT ORDER OF COURT th AND NOW , this 7 day of January, 2013, upon consideration of the Defendant’s Preliminary Objection to Plaintiff’s Complaint, the briefs filed by the parties, and after argument, IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Preliminary OVERRULED Objection to Count II of the Complaint is . By the Court, __________________________ M. L. Ebert, Jr., J. Melissa L. Kelso, Esquire Attorney for Plaintiff 354 Alexander Spring Road Carlisle, PA 17015 Tabetha A. Tanner, Esquire Attorney for Defendant Walid Khalil 3507 Market Street, Suite 303 Camp Hill, PA 17011 Richard A. Wix, Esquire Attorney for Defendant Tarek Eltanbdawy 4705 Duke Street Harrisburg, PA 17109-3041 Amal Ezzat Defendant 701 Hanover Manor, Apt. 201 Carlisle, PA 17013 Rasha Elnaggar Defendant 4220 Heathrow Court, Apt. B Harrisburg, PA 17109 2 KUAN FANG-CHENG, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION - LAW TAREK ELTANBDAWY, : AMAL EZZAT, : RASHA ELNAGGAR, AND : No. 09-7268 WALID KHALIL Defendants IN RE: DEFENDANT, WALID KHALIL’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT OPINION AND ORDER OF COURT Ebert, J., January 7, 2013 – On August 17, 2009, Defendant, Walid Khalil (hereinafter “Defendant”) filed preliminary objections to Kuan Fang-Cheng’s (hereinafter “Plaintiff”) Complaint. Plaintiff’s Complaint alleges a breach of contract action against Defendant in Count II. Count I alleges breach of contract against the other defendants. This Court finds that OVERRULED Defendant’s Preliminary Objection to Count II is . Statement of Facts Plaintiff is an adult individual residing at 811 Bowman Street, Lebanon, 1 Pennsylvania. Defendant is an adult individual residing at 4729 Gettysburg Road, 2 Mechanicsburg, Pennsylvania. The other named defendants, who did not raise preliminary objections, are adult individuals residing in Harrisburg and Carlisle, 1 Pl.’s Compl., July 21, 2009, ¶ 1. 2 Pl.’s Compl., July 21, 2009, ¶ 5. 3 Pennsylvania. Plaintiff and Defendant entered into a lease agreement for property located at 3421 Simpson Ferry Road, Camp Hill, Pennsylvania on September 15, 4 2007. Plaintiff contends that Defendant guaranteed the performance of new tenants, the other named defendants, for a period of twenty-four months so that Plaintiff would 5 let Defendant out of the lease early. Defendant contends that he was asked to 6 guarantee the defendants’ performance but refused to do so. Plaintiff then entered into 7 a new lease for the property with the other named defendants on August 4, 2008. 8 Plaintiff contends the defendants failed to pay money owed pursuant to the lease. Plaintiff further contends that Defendant has failed to pay the amounts due as 9 guarantor, despite having due notice. Procedural History On July 21, 2009, Plaintiff initiated this action against Defendant and others in the Court of Common Pleas of Lebanon County. Defendant filed Preliminary Objections to Plaintiff’s Complaint on August 17, 2009. The Court of Common Pleas of Lebanon County, PA sustained Defendant’s Preliminary Objection to Venue and the case was transferred to the Court of Common Pleas of Cumberland County, PA, pursuant to Pa.R.C.P. 1006(e). The Court of Common Pleas of Lebanon County, PA did not decide Defendant’s other Preliminary Objections but preserved them for disposition in the Court of Common Pleas of Cumberland County, PA. Oral argument was held on Defendant’s 3 Pl.’s Compl., July 21, 2009, ¶ 2-4. 4 Pl.’s Compl., July 21, 2009, ¶ 22; Pl.’s Ex. B. 5 Pl.’s Compl., July 21, 2009, ¶ 23. 6 Def.’s Preliminary Objections, August 17, 2009, ¶ 17. 7 Pl.’s Compl., July 21, 2009, ¶ 6; Pl.’s Ex. A. 8 Pl.’s Compl., July 21, 2009, ¶ 8. 9 Pl.’s Compl., July 21, 2009, ¶ 24. 2 Preliminary Objections on December 21, 2012. This Court now considers Defendant’s Preliminary Objections to Plaintiff’s Complaint. DISCUSSION Preliminary objections in the form of a demurrer may be sustained only when it is clear that the plaintiff cannot recover. HCB Contractors v. Liberty Place Hotel Assoc., 652 A.2d 1278, 1279 (Pa. 1995). When considering a motion for a demurrer, “the facts that are well-pleaded, material and relevant will be considered as true, together with such reasonable inferences as may be drawn from such facts.” Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999). If there is any doubt about the plaintiff’s ability to recover, the demurrer should be overruled. Id. In Count II of his Complaint, Plaintiff avers that Defendant entered into an agreement with Plaintiff to guarantee the performance of the other three defendants in a lease agreement for twenty-four months. This agreement was entered into in order to induce the Plaintiff to terminate a lease with Defendant early. Plaintiff alleges that Defendant breached this agreement because, despite having notice of the amounts due as a result of the other defendants failure to pay, Defendant has failed to pay. To support a claim for breach of contract in Pennsylvania, a plaintiff must allege three elements: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resulting damages. Pittsburg Const. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. 2003), citing CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). A contract may manifest orally, in writing, or as an inference from the conduct of the parties. J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002). 3 Taking the facts pled as true, the Plaintiff has pled enough facts to establish a legally cognizable claim for breach of contract against Defendant. Plaintiff stated that he and the Defendant entered into an agreement where the Defendant guaranteed the performance of the other three defendants for twenty-four months. This agreement was entered into in order to induce the Plaintiff to release the Defendant from the obligation owed under a prior lease between them early. Defendant has failed to perform under this agreement, because he has not paid the amounts due when the other defendants breached the lease. Plaintiff was harmed because he did not receive payment of rent. Defendant argues that no such agreement was entered into between the parties because he never signed the personal guarantee section of the new lease between Plaintiff and the other defendants. While the lack of Defendant’s signature on that portion of the new lease shows that there was not a written contract between Defendant and Plaintiff, it fails to establish that there was not an oral contract. This Court must take Plaintiff’s facts as true and Plaintiff has merely pled that a contract was entered into with Defendant, not that the contract was a written one. Whether the Plaintiff can prove that an oral contract existed between the parties at trial remains to be seen. Therefore, Defendant’s Preliminary Objections to Plaintiff’s Complaint are overruled. The following order is entered: ORDER OF COURT th AND NOW , this 7 day of January, 2013, upon consideration of the Defendant’s Preliminary Objection to Plaintiff’s Complaint, the briefs filed by the parties, and after argument, 4 IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Preliminary OVERRULED Objection to Count II of the Complaint is . By the Court, __________________________ M. L. Ebert, Jr., J. Melissa L. Kelso, Esquire Attorney for Plaintiff Tabetha A. Tanner, Esquire Attorney for Defendant Walid Khalil Richard A. Wix, Esquire Attorney for Defendant Tarek Eltanbdawy Amal Ezzat Defendant Rasha Elnaggar Defendant 5