HomeMy WebLinkAbout2011-4636
MORRISON INFORMATICS, INC., : IN THE COURT OF COMMON PLEAS OF
ANTONY M. GRIGONIS, AND : CUMBERLAND COUNTY, PENNSYLVANIA
MALCOLM H. MORRISON, :
PLAINTIFFS :
:
V. :
:
st
MEMBERS 1 FEDERAL CREDIT :
UNION, MARK ZAMPELLI, AND :
SCOTT DOUGLASS, :
DEFENDANTS : 11-4636 CIVIL TERM
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF
APPELLATE PROCEDURE 1925
Masland, J., April ___, 2013: --
Before the court is the appeal filed by Plaintiffs, Morrison Informatics, Inc.,
Antony M. Grigonis, and Malcolm H. Morrison. This appeal arises from this court’s
sustaining of Preliminary Objections filed by the Defendants and dismissing Plaintiffs’
Amended Complaint. Subsequent to the court’s decision, the Plaintiffs filed the instant
appeal.
Plaintiffs complain of the following matters on appeal:
1. The court committed an error of law by holding that Morrison
Informatics lacked standing to bring its causes of action
against Defendants.
2. The court committed an error of law by holding that the
Chapter 7 Trustee could not be substituted as Plaintiff for
Morrison Informatics, Inc.
3. The court committed an error of law when it held that
Malcolm H. Morrison and Antony M. Grigonis did not have
standing when they alleged they suffered losses of monetary
funds, losses of employment, losses of livelihood, damage to
reputation, and shame and embarrassment due to the
actions of Defendants which are separate and distinct from
the damages Morrison Informatics suffered.
11-4636 CIVIL TERM
Pls. State. of Matters Complained of on Appeal, filed April 8, 2013.
Upon review, the court finds that the issues complained of in Paragraphs 12 (1
above), 13 (2 above) and 17 (3 above) were adequately addressed in the previously
filed opinion announcing the judgment of the court, filed February 20, 2013 and now
herein incorporated. However, Plaintiffs have raised additional precedential support for
their argument that the Chapter 7 Trustee could be substituted as Plaintiff in Paragraphs
14 and 15. The court will address this precedential support now.
Plaintiffs state that the Chapter 7 Trustee can be substituted as a Plaintiff in a
state court case before the Cumberland County Court of Common Pleas based on the
holding in Nagle v. Commercial Credit Bus. Loans, Inc. Pls. State. Of Matters
Complained of on Appeal ¶¶ 14-15. This statement is incorrect and misinterprets the
holding and discussion in Nagle. See Nagle v. Commercial Credit Bus. Loans, Inc., 102
F.R.D. 27 (E.D. Pa. 1983).
Like the present case, Nagle addressed whether a bankruptcy trustee can be
substituted as a party of interest in a cause of action arising out of a contract. Id. at 30-
31. However, unlike the present case, the Nagle case was heard in federal court, and
the Plaintiff was joining the trustee under Federal Rule of Civil Procedure 17. Id.
Federal Rule of Civil Procedure 17(c) states that “[t]he court may not dismiss an action
for failure to prosecute in the name of the real party in interest until, after an objection, a
reasonable time has been allowed for the real party in interest to ratify, join, or be
substituted into the action.” F.R.C.P. 17(c). The court in Nagle specifically stated that
Rule 17, based on its text and spirit, permits a trustee to be substituted as plaintiff for
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the bankrupt parties, even when the trustee would be time barred from bringing the
case himself. Nagle, 102 F.R.D. at 31.
Plaintiffs in the present case were not before the federal court. Plaintiffs also
were not invoking a Federal Rule of Civil Procedure in order to substitute the Chapter 7
Trustee as a Plaintiff for Morrison Informatics, Inc. Rather, Plaintiffs were attempting to
merely amend the caption to its case under Pa.R.C.P. 1033. Pennsylvania Rule of Civil
Procedure 1033 states “[a] party, either by filed consent of the adverse party or by leave
of court, may at any time change the form of action, correct the name of a party or
amend his pleading.” Pa.R.C.P. 1033. Rule 1033 notably does not provide for
substitution of a party nor prohibit dismissal of an action for failure to prosecute in the
name of a party of real interest. Compare Pa.R.C.P. 1033 with F.R.C.P. 17.
Accordingly, it is apparent that Pa.R.C.P. 1033 is in no way analogous to F.R.C.P. 17,
and consequently, any holding based upon the application of F.R.C.P. 17 would not be
1
dispositive in a case such as the present one.
For all the reasons stated above, the Superior Court should affirm this court in all
respects.
By the Court,
__________________________
Albert H. Masland, J.
1
Plaintiffs additionally cite to Rousseau v. Diemer, 24 F.Supp.2d 143 (D. Mass. 1998), as support for their
contention that the trustee can be substituted as Plaintiff in this matter. However, as in Nagle, the court in
Rousseau bases its determination upon application of F.R.C.P. 17. Rousseau, 24 F.Supp.2d at 143.
Consequently, the analysis of Nagle above applies to Rousseau as well.
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LeRoy Smigel, Esquire
Darryl J. Liguori, Esquire
For Plaintiffs
John D. Sheridan, Esquire
Co-Counsel for Plaintiffs
Steven B. Kantrowitz, Esquire
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For Members 1 Federal Credit Union
James Franklin, Esquire
For Scott Douglass
Mark Zampelli, Pro se
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