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HomeMy WebLinkAbout90-4029 CivilVENINI FURS, LTD., Plaintiff V. WILLIAM B. GOETZ i/t/d/b/a THE NEW ENGLANDER, Defendant IN THE COURr OF COMMON PLEAS OF CUMBERLAND OUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 4029 CIVIL 1990 DEFENDANT'S EY ORDER OF COURT AND NOW, this 41J, day of March, 192, preliminary objections are DISMISSED. Thomas M. Kutz, Esq. 204 State Street Harrisburg, PA 17101 Counsel for Plaintiff James M. Bach, Esq. 352 S. Sporting Hill Road Mechanicsburg, PA 17055 Counsel for Defendant :rc BY THE COURT, the Defendant's FIL E Cop y ME VENINI FURS, LTD., Plaintiff V. WILLIAM B. GOETZ i/t/d/b/a THE NEW ENGLANDER, Defendant 01 IN THE COU T OF COMMON PLEAS OF CUMBERLAND CNTY, PENNSYLVANIA CIVIL ACTI NOU- LAW NO. 4029 CIVIL 1990 This case is a contract action arising out of the alleged failure of Defendant to pay for "certain goods, wares, merchandise, and/or services"' sold to him by Plaint'ff.2 Preliminary objections to the complaint in the form of motion for a more specific complaint and a motion to strike ofJ the complaint have been filed by Defendant.3 For the reasons stated in this opinion, we dismiss the preliminary objections. Plaintiff's complaint avers that tl Le "goods, wares, merchandise, and/or services" sold to Defendant are "more specifically shown by Plaintiff's Invoice and referenced in Plaintiff's books of original entry ....j4 Copies of these documents are attached to the complaint as exh bits.5 The invoice, dated January 8, 1988, contains a price of $1595.00, a style ' Plaintiff's complaint, paragraph 3. 2 Plaintiff's complaint, paragraphs , p para ra hs 3-6 9. 3 An additional motion for a more specific complaint, based upon an allegedly improper verification, and a demurrer have not been briefed by Defendant. See C.C.R.P. 210- 4 Plaintiff's complaint, paragraph 3. 5 Plaintiff's complaint, p paragraph 3, Ex ibits "A," "B." No. 4029 Civil 1990 number, a stock number, and an invoice number, but an illegible item description.' The books of original record show an open account as to Defendant with seven orders from August 21, 1987, through December 27, 1988; a debit on January 8, 988, of $1595.00, referenced to the aforesaid invoice number; and a balance due on the account as of December 27, 1988, of $1595.2 .7 Damages requested in Plaintiff's complaint are in the amount of $1,746.62, representing the $1595.00 figur and $151.62 in interest, plus "appropriate additional interest and costs."g The specified interest amount was computed with refe ence to a rate of one-half percent per month,9 from February 9, 198 (one month after invoice date), through September 8, 1990 (aprroximate date of complaint verification) .10 Defendant's preliminary objection in the form of a motion for a more specific complaint is premised upon t e assertion that "[t]he Exhibits which propose to show the subject matter of this Complaint [are] illegible, confusing, and [do] not state in any ' Plaintiff's complaint, Exhibit "A." ' Plaintiff's complaint, Exhibit "B." Pla'ntiff has chosen to forgo the $.27 portion of the alleged debt. Plaintiff's Brief, at 4. 8 Plaintiff's complaint, paragraphs 6, 8 alaim for relief. 9 Plaintiff's complaint, p paragraph 7. 10 Plaintiff's complaint, p paragraph 8. 2 No. 4029 Civil 1990 fashion what, if anything, was shipped to Defendant."11 Defendant's preliminary objection in the form of a motion to strike off the complaint is based upon the proposition that "Plaintiff requests interest but has not produced a contract, as required, granting this relief. 02 These two objections wilL be discussed in the order stated. With respect to a motion for a more specific omplaint, it may be noted that Pennsylvania Rule of Civil Procedure 1019(a) provides that "[t]he material facts on which a cause of action ... is based shall be stated in a concise and summary form." Thus, it has been said that "[g]enerally speaking, a pleading shoul be sufficiently specific so as to enable an opposing party to p epare his or her response." 2 Goodrich Amram 2d §1019:4, at 313 1991). The present action may be viewed as one on an open book account13 or on a single sale of merchandise. "Proper pleading in an action upon an open book account ... requires hat the attached account be more than an unintelligible list of fig res, but must be clear and definite charges, not lumped but itemized, showing the nature of the transactions." 1 P.L.E. Accounts a d Accounting §6, at 108 (1986); see C -E Glass v. Ryan, 70 D. & C. 2d 251 (Beaver Co. 11 Defendant's Preliminaryobjections, 7 para raph 2. 12 Defendant's Preliminaryobjections, � para raph 3. 13 See C -E Glass v. Ryan, 70 D. & C.2d 251 Beaver Co. 1975) stated). (discussion of actions on an open book account a d on an account 3 No. 4029 Civil 1990 1975). An action upon a sale of goods must ilso comply with pleading specificity requirements. Cf. Landis & Co. v. Strauss, 72 Schuylkill L.R. 1, 2 (1976) (complaint containing invoices "totally and completely illegible and conveying no more in ormation than if said invoices had not been attached"). In this case, the open book account is an int lligible list of debits and credits, arranged by dates and invoice numbers and mathematically coherent; seven purchase orders re shown by the Defendant over a sixteen -month period. The invoice representing the purchase in question is legible as to invoice number, date, price, style number and stock number, and is reflected on the open book account. In combination, these documents do not constitute an unintelligible list of figures, are not substantially illegible, and are sufficiently specific to enable Defendant to prepare his response. For this reason, Defendant's prelimi ry objection in the form of a motion for a more specific p eading will be dismissed. With respect to a motion to strike off a complaint based upon a claim for interest at the rate of one-half percent per month, it may be noted that, 11[i)n claims that arise out Df a contractual right, interest has been allowed at the legal rate from the date that payment was wrongfully withheld; or as otherwise stated, a successful plaintiff is entitled to prejudgment interest at the statutory rate calculated from the time the de t became due or payable." 20 P.L.E. Interest and Usury §21, at 3E-39 (1990). "In 4 No. 4029 Civil 1990 such cases, the plaintiff is entitled to int�rest at the six percent legal rate as a matter of law." Id., At 39; see Act of January 30, 1974, P.L. 13, No. 6, §202, 41 P.S. 202 (1991 Supp.). In its complaint, Plaintiff has based its calculation of interest in accordance with the legal rate of six percent per annum. Accordingly, Defendant's preliminary obj of a motion to strike off the complaint will be ORDER OF COURT AND NOW, this q-z"'L, day of March, 1992, preliminary objections are DISMISSED. Thomas M. Kutz, Esq. 204 State Street Harrisburg, PA 17101 Counsel for Plaintiff James M. Bach, Esq. 352 S. Sporting Hill Road Mechanicsburg, PA 17055 Counsel for Defendant :rc BY THE COURT, 5 tion in the form smissed. the Defendant's J.