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Home My WebLink About2012-4949 PENN PRODUCTS CORPORATION, : IN THE COURT OF COMMON PLAINTIFFS : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA : V. : : SANDRA L. McCORKEL, GREGORY : R. SWOPE, MEGAN SWOPE, AND : JOHN D. SWOPE, : DEFENDANTS : 12-4949 CIVIL TERM IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT BEFORE HESS, P.J., MASLAND, J., AND PLACEY, J. Masland, J., April 5, 2013:-- Before the court are the Preliminary Objections filed by Defendants Sandra L. McCorkel, Gregory R. Swope, Megan Swope, and John D. Swope, to the Second Amended Complaint filed by Plaintiff, Penn Products Corporation. Following briefing by the parties and argument en banc, we overrule the objections in all respects. This matter arises from a dispute between the Plaintiff corporation and its former officers and directors. Relevant here, the Complaint presents a count alleging the Defendants breached their fiduciary duty to the corporation, a count alleging unjust enrichment, and a count requesting a declaratory judgment against Defendant, Sandra L. McCorkel. 12-4949 CIVIL TERM I. Discussion 1 Restated for clarity, Defendants present the following preliminary objections: 1. An objection to Plaintiff’s breach of fiduciary duty claim for insufficient specificity; 2. A demurrer to Plaintiff’s claim for unjust enrichment; 3. An objection to Plaintiff’s claim for unjust enrichment on the basis of insufficient specificity; and 4. A demurrer to Plaintiff’s request for a declaratory judgment. A. Breach of Fiduciary Duty – Insufficient Specificity Underlying Plaintiff’s claim is the contention that Defendants paid themselves inappropriate real estate commissions during their tenure as officers of the Plaintiff Corporation. Defendants argue that Plaintiff has failed to aver with sufficient specificity each allegedly improper payment. Defendants concede Plaintiffs averred eighteen specific payments between May 20, 2002 through May 4, 2007, but argue there are no specific payments listed after that date despite Plaintiff’s allegation that improper payments continued after that date. As such, Defendants assert they are without sufficient information to admit or deny any allegations of improper payments after May 4, 2007. We disagree. The Pennsylvania Rules of Civil Procedure provide, in relevant part, “[a]verments of time, place and items of special damage shall be specifically stated.” Pa. R.C.P. No. 1019(f). A preliminary objection on the basis of insufficient specificity may be sustained if a plaintiff merely alleges a lump sum of 1 Defendants initially filed six preliminary objections but withdrew two at the time of briefing. -2- 12-4949 CIVIL TERM damages owed without itemizing those damages insofar as reasonably practical. Masters v. Karivalis, 73 Pa. D. & C.2d 40, 41-42 (Phila. Co. 1975). Here, Plaintiff has averred with specificity substantially all allegedly improper payments. Furthermore, this matter is not proceeding in a vacuum. All parties have previously participated in a lengthy and hotly contested hearing on 2 injunctive relief relating to the control of the Plaintiff Corporation. At the hearing, presided over by the undersigned, substantial testimony was elicited from all relevant parties and all witnesses were subjected to substantial cross examination on all factual aspects of the underlying dispute that is the subject of this litigation. At this stage, for any party to claim it has insufficient information to admit or deny any claim associated with this case is not credible. Accordingly, this preliminary objection is overruled. B. Demurrer – Unjust Enrichment Defendants next object to Plaintiff’s claim for unjust enrichment on the basis that Plaintiff cannot convert a claim for fraud and breach of fiduciary duty into a claim for unjust enrichment. We agree that, ultimately, Plaintiff may not recover damages for both breach of contract and for unjust enrichment. However, at this initial stage of litigation, Plaintiff has the right to plead an equitable remedy in the alternative to its contract claim. Further, if Plaintiff had failed to plead an alternative count of unjust enrichment that remedy would be unavailable if it failed to prove the 2 See Penn Products Corporation, David J. Horick, Douglas C. Horick, Marilyn Snyder Budzynski, Executrix-DBN of the Estate of Maybelle Asper, Deceased, Daniel A. Kuhn, Donna Lee Goff, Lewis G. Kuhn, Carolyn Wagner, Doris I. Ernst, and Jean M. Horick v. Sandra McCorkel, Gregory R. Swope, Megan Swope, and John Swope, 12-2838 Civil Term, Cumberland County. Hearing held, May 14, 2012. -3- 12-4949 CIVIL TERM existence of a contract at trial. Birchwood Lakes Community Ass’n Inc. v. Comis, 442 A.2d 304, 308 (Pa. Super. 1982). Accordingly, this preliminary objection is overruled. C. Insufficient Specificity – Unjust Enrichment Defendants next object to Plaintiff’s claim for unjust enrichment on the basis of insufficient specificity for identical reasons they objected to the breach of contract claim. We overrule this objection for the same reasons we overruled the first objection. Defendants have ample information to answer Plaintiff’s Complaint. D. Demurrer – Declaratory Judgment Finally, Defendants object to the request for a Declaratory Judgment on the basis that such relief is unavailable in the context of a claim for breach of fiduciary duty. We disagree. Prior to the filing of the Second Amended Complaint, Plaintiff received a demand letter from Defendant Sandra McCorkel seeking payment of a $337,010 real estate commission relating to the sale of Corporate real estate during her tenure as an officer of the Corporation. The final count of the Second Amended Complaint seeks a declaratory judgment stating Plaintiff has no obligation to pay the requested sum. Defendants argue such relief is unavailable and beyond the scope of the relief contemplated by the Declaratory Judgments Act, 42 Pa.C.S. §7531 et seq. Specifically, Defendants allege Plaintiff’s request for declaratory judgment does not seek to adjudicate a contractual dispute as contemplated by §7533 of the Act -4- 12-4949 CIVIL TERM and does not present a controversy appropriate for a final judgment or decree as required by §7532 of the Act. Defendants’ argument lacks merit. Defendants’ contentions completely ignore §7536, which states: §7536. Enumeration not exclusive. The enumeration in section 7533 (relating to construction of documents) … does not limit or restrict the exercise of the general powers, conferred in section 7532 (relating to general scope of declaratory remedy), in any proceeding, where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty. 42 Pa.C.S. § 7536 (emphasis added). By the plain language of the statute, declaratory relief is not solely available in contractual disputes or where a grant of such relief would result in a final judgment. Here, should the court grant the request for declaratory judgment, the uncertainty of Plaintiff’s obligation to Defendant Sandra McCorkel would be removed. As such, the request is proper and the preliminary objection is overruled. II. Conclusion For these reasons, the Defendants’ Preliminary Objections are overruled in all respects. Defendants shall file an Answer to the Second Amended Complaint within 20 days. ORDER OF COURT AND NOW, this day of April, 2013, upon consideration of the Defendants’ Preliminary Objections, the Plaintiff’s response thereto, briefing by OVERRULED the parties, and argument en banc, the Preliminary Objections are -5- 12-4949 CIVIL TERM SHALL FILE and the Defendants an Answer to the Plaintiff’s Second Amended Complaint within twenty (20) days. By the Court, Albert H. Masland, J. Marvin Beshore, Esquire 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 For Plaintiffs William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 For Defendants -6- PENN PRODUCTS CORPORATION, : IN THE COURT OF COMMON PLAINTIFFS : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA : V. : : SANDRA L. McCORKEL, GREGORY : R. SWOPE, MEGAN SWOPE, AND : JOHN D. SWOPE, : DEFENDANTS : 12-4949 CIVIL TERM IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT ORDER OF COURT AND NOW, this day of April, 2013, upon consideration of the Defendants’ Preliminary Objections, the Plaintiff’s response thereto, briefing by OVERRULED the parties, and argument en banc, the Preliminary Objections are SHALL FILE and the Defendants an Answer to the Plaintiff’s Second Amended Complaint within twenty (20) days. By the Court, Albert H. Masland, J. Marvin Beshore, Esquire 130 State Street, P.O. Box 946 Harrisburg, PA 17108-0946 For Plaintiffs William Andring, Esquire 248 Creek Road Camp Hill, PA 17011 For Defendants