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HomeMy WebLinkAbout91-3933 CivilJAY V. STONE, trading t/b/a WEST PENN AUTO SALES, Plaintiff v. DAUPHIN DEPOSIT BANK SHE IN THE COURT F COMMON PLEAS OF CUMBERLAND CO NTY, PENNSYLVANIA CIVIL ACTION LAW NO. 3933 CIVI 1991 JURY TRIAL D )ANTIS PRELIMINAR7 Y, P.J., HESS AND ORDER OF COURT DED J , l J `y , - AND NOW, this 24th day of February, 1992, upon consideration of Defendant's preliminary objections to P1 intiff's complaint, it is ordered as follows: Defendant's preliminary objection in the form of a motion to strike for failure to attach a copy of the Agreement upon which the complaint is based under Pennsylvania Ru e of Civil Procedure 1019(h) is SUSTAINED. Plaintiff is gra ted leave to file an amended complaint within 10 days to conform to the rule. Defendant's preliminary objection in the form of a motion for a more specific pleading is DISMISSED. Defendant's preliminary objection in he nature of a demurrer is SUSTAINED to the extent that it is based upon the absence in Plaintiff's complaint of a claim for relief or damages, and otherwise DISMISSED without prejudice to Defendant's right to challenge the validity of Plaintiff's clain upon further pleadings or proceedings. Plaintiff is granted le ve to file an amended complaint within 10 days to specify the relief and amount of damages claimed. BY THE n EIIEGOP� ���� John L. Perry, Esq. Attorney for Plaintiff John B. Fowler, III, Esq. Attorney for Defendant JAY V. STONE, IN THE COURT OF CO trading t/b/a CUMBERLAND COUNTY, WEST PENN AUTO SALES, Plaintiff CIVIL ACTION - LAW NO. 3933 CIVIL 199 DAUPHIN DEPOSIT BANK JURY TRIAL DEMAND IN RE: DEFENDANT'S PRELIMINARY OBJI BEFORE SHEELY, P.J., HESS AND OLER OPINION AND ORDER OF COURT [MON PLEAS OF PENNSYLVANIA OLER, Judge. At issue in this case are preliminary bjections to a complaint for breach of contract filed by Jay V. Stone (Plaintiff) against Dauphin Deposit Bank (Defendant). According to the complaint, the factual background of the litigation is as follows: Plaintiff, trading and doing business as �enn Auto Sales,l entered into an agreement (Agreement) on or about October 5, 1978, wherein the Defendant agreed to purchase, with recourse, retail paper in the form of notes, installment sales contracts, conditional sales contracts, and other security interests, referred to in the Agreement as "contracts. ,2 Although the Agreement was silent as to the procedure to be followed uponiconsumer default under these contracts,3 the Defendant's course o� conduct was one of active pursuit of payment for, and/or reposses ion of, vehicles purchased under the contracts.4 In late 1989 or 1990, the Defendant altered 1 Plaintiff's Complaint, paragraph 1. 2 Plaintiff's Complaint, paragraphs 2, 4. 3 Plaintiff's Complaint, paragraph 7. 4 Plaintiff's Complaint, paragraph 7. lits policies and 3933 Civil 1991 practices with respect to administration of the contracts, without notice to Plaintiff, ceasing active collection efforts and causing thereby a significant increase in defaults.s As a consequence of Defendant's conduct in this regard, losses in an unspecified amount have been occasioned to Plaintiff in the form of increased liability under the Agreement.b An explicit claim for relief appears to have been inadvertently omitted at the conclusion of Plaintiff's complaint.' In addition, a copy of the Agreement was not attached to the complaint; however, the Agreement appears to e attached to a complaint filed by Defendant against Plaintiff and Plaintiff's spouse at No. 3921 Civil 1991, the latter action having been recently consolidated with this one by order of court.a Defendant has filed preliminary objectio s to Plaintiff's complaint in the form of a motion to strike ihe complaint for failure to attach a copy of the Agreement, a motion for a more specific pleading with respect to the matters complained of, and a demurrer based upon a failure to state a claim upon which relief can be granted and failure to include a clam for relief or damages. These issues were argued on January 1, 1992. With respect to Defendant's motion to strike the complaint for 5 Plaintiff's Complaint, paragraphs 11-12, 14. 6 Plaintiff's Complaint, paragraph 13. 7 The concluding clause of Plaintiff's Complaint contains the word "Wherefore," without more. The omission of the remainder of the clause is attributed in Plaintiff's Brief in Opposition to Defendant's Preliminary Objections to a clerical error. 8 See Order of Court, February 21, 1992, at os. 3933 and 3921 Civil 1991. 2 3933 Civil 1991 failure to attach a copy of the Agreement, it m y be noted that Pennsylvania Rule of Civil Procedure 1019(h) pro ides as follows: A pleading shall state specifically wh ther any claim or defense set forth therein is based tpon a writing. If so, the pleader shall attach a copy of the writing, or the material part thereof, but if t e writing or copy is not accessible to him, it is st fficient so to state, together with the reason, and tc set forth the substance of the writing. Where a plaintiff fails to attach a copyrbjections f a writing or material part thereof to a complaint, preliminary in the form of a motion to strike or a motion for a more specific pleading are said to be appropriate. Maurer, trad. v. Towlship of Coal, 65 D. & C.2d 112, 114 (Northumberland Co. 1974). The Court, however, may at any stage of a proceeding disregard any a ror or defect of procedure which does not affect the substantial rights of the parties. Pa. R.C.P. 126. In addition, it may, of its own motion, permit or require amendment of a complaint or oth r pleading.9 The court's discretion to allow such amendments s limited by a consideration of whether they might unduly prej dice an adverse party.10 In view of the evident awareness of Defendant of the writing involved here and in the consolidated case which it initiated, the Court does not believe that prejudice will accrue allowance of an amendment to Plaintiff's complaint of the Agreement referred to therein. Accordingly preliminary objection to Plaintiff's complaint : 9 Delgrosso v. Gruerio, 255 Pa. Super. 560, 119, 121 n.6, (1978); see Pa. R.C.P. 1033. 10 West Penn Power Co. v. Bethlehem Steel Corx 413, 433, 348 A.2d 144, 155 (1975). 3 to Defendant by to attach a copy the Defendant's _n the form of a 64 n.6, 389 A.2d , 236 Pa. Super. 3933 Civil 1991 motion to strike will be sustained, with leave t4 amend to attach a copy of the Agreement. See Porta v. Keely, No 3675 Civil 1990 (Cumberland Co. 1992); Maurer, trad. v. Township of Coal, 65 D. & C.2d 112 (Northumberland Co. 1974). With respect to Defendant's motion for a more specific pleading as to the matters complained of, tie standard for evaluation of such a motion has been stated as follows: The test is whether the plaintiff's coplaint informs the defendant with accuracy and comple eness of the specific basis on which recovery is so ght so that he may know without question upon what gr unds to make his defense.... Where facts are within the knowledge of the adverse party, he is not entitled to a much precision in his pleading as if he did not know hem. Bethlehem Steel Corp. v. Litton Industries, Inc., 71 D. & C.2d 635, 644 (Allegheny Co. 1974). "It has been held that [a] preliminary objection in the nature of a motion for a more pecific pleading will be denied ... where the objecting party ma be presumed to have at least as much knowledge of the informati n sought as does the pleader ... [or] where the objecting party seeks the pleading of evidence." 5 Standard Pennsylvania Practice 2d §25:56, at 214-5 (1982). In the present case, the substance of complaint is that the Defendant breached an Plaintiff by ceasing to aggressively pursue de vehicle repossession on various contracts purchas thereby causing the Plaintiff financial loss. the Plaintiff's question is the subject of an earlier acti n Defendant, and the agreement's terms and Def n agreement with collection or with recourse, agreement in initiated by ant's conduct thereunder are known to Defendant. Without expr+ssing an opinion 4 3933 Civil 1991 as to the merits of the Plaintiff's claim, the believes that the subject matter of this litigation is within the knowledge of both parties, and that the complaint sufficie tly informs the Defendant of the basis on which recovery is sought. For this reason, Defendant's preliminary objection to Plai itiff's complaint in the form of a motion for a more specific leading will be denied. With respect to Defendant's demurrer to th complaint based upon a failure to state a claim upon which relief can be granted and failure to include a claim for relief or damages, several points of law are pertinent. On the general subjct of a demurrer, the Commonwealth Court has stated as follows: A demurrer admits all well -pleaded mat ial facts in the pleading which it attacks, as well as all inferences which may reasonably be deduced therefrom. [A court] cannot sustain [a] demurrer unless it s clear on the face of the pleading that the law will not permit the recovery being sought .... , 80 Pa. Commw. 329, 333, 471 A.2d 605, 607 (1984). "Any doubt s to whether [a] demurrer should be sustained should be resol ed in favor of refusing to enter it." Steel Corp., 33 Pa. Commw. 1, 11, 380 A.2d 1308, 1313 (1977). On the specific subject of inclusion of a claim for relief or damages, Pennsylvania Rule of Civil Procedure 1021(a) provides, in pertinent part, as follows: "Any pleading demanding relief shall specify the relief to which the party deems himself entitled." Furthermore, it is said that "[Pennsylvania] Rule [of Civil Procedure] 1019(f) requires ... items of special damage to be k, 3933 Civil 1991 specifically stated, [and] the great majority cf courts require general damages to be particularized insofar as reasonably practicable when such is requested in the form of a preliminary objection. 2 Goodrich Amram 2d §1019(f):5, at 44 (1991). "Any pleading demanding relief must specify the rel of to which the party deems himself or herself entitled." Id. However, it is also the rule that "[i]f a prayer for relief is omitted, it may be supplied by amendment." Id., at 344-45. Thus, in Allen v. Lake Township, 8 D. & C.2d 476 (Luzerne Co. 1956), the court, upon demurrer to a count in a complaint based upon the omission of a prayer for relief, permitted amendment of the complaint to correct the deficiency. In the instant case, it can not be said that it is clear on the face of the complaint, which presently lacks both a copy of the Agreement on which it is based and an explicit claim for relief, that the law will not permit recovery; on the other hand, the pretrial record may develop in a manner warranting reconsideration of the viability of Plaintiff's case. Nor show d a dismissal of the complaint without leave to amend be the consequence of Plaintiff's failure to include a clause contairiing a claim for relief or damages. For these reasons, Defend nt's preliminary objection to Plaintiff's complaint in the nature of a demurrer will be sustained to the extent that it invokes a right to inclusion in the complaint of a claim for relief or damages, uith leave granted to Plaintiff to amend to specify the relief and amount of damages claimed, and without prejudice to Defendant's ri ht to challenge 31 3933 Civil 1991 the validity of Plaintiff's claim upon fur proceedings. ORDER OF COURT r pleadings or AND NOW, this 24th day of February, 1992, u on consideration of Defendant's preliminary objections to Plaintiff's complaint, it is ordered as follows: Defendant's preliminary objection in the fo*m of a motion to strike for failure to attach a copy of the Agreement upon which the complaint is based under Pennsylvania Rule of Civil Procedure 1019(h) is SUSTAINED. Plaintiff is granted leave to file an amended complaint within 10 days to conform to the rule. Defendant's preliminary objection in the form of a motion for a more specific pleading is DISMISSED. Defendant's preliminary objection in the nat re of a demurrer is SUSTAINED to the extent that it is based uDI the absence in Plaintiff's complaint of a claim for relief or damages, and otherwise DISMISSED without prejudice to Defendant's right to challenge the validity of Plaintiff's claim upon ffurther pleadings or proceedings. Plaintiff is granted leave to file an amended complaint within 10 days to specify the reli f and amount of damages claimed. John L. Perry, Esq. Attorney for Plaintiff John B. Fowler, III, Esq. Attorney for Defendant 7 BY THE COURT, J.