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HomeMy WebLinkAbout92-584 CivilTANDY COMPUTER LEASING, a IN THE COURT OF C MMON PLEAS OF Division of TANDY CUMBERLAND COUNTY PENNSYLVANIA ELECTRONICS, INC., Plaintiff CIVIL ACTION - IAW V. PRIMERO, INC. and MICHAEL STANOVICH, Defendants NO. 584 CIVIL 1912 PLAINTIFF'S PRr;LlMllvlitci TO PRELIMINARY OBJECTIONS BEFORE BAYLEY and OLER JJ. OPINION AND ORDER OF COURT AND NOW, this X *s I day of November, 1992, t Preliminary Objections to Preliminary Objections ai BY THE COURT, J.[J Wesley Oier, (i)•• William T. Wilson, Esq. LEGG & WILSON 7 South High Street P.O. Box 553 West Chester, PA 19381 Attorney for Plaintiff Gerard M. Mackarevich, Esq. P.C. GOLDBERG, KATZMAN & SHIPMAN, 320 E. Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant :rc Plaintiff's DISMISSED. IJ. TANDY COMPUTER LEASING, a Division of TANDY ELECTRONICS, INC., Plaintiff V. PRIMERO, INC. and MICHAEL STANOVICH, Defendants IN THE COURT OF CIMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION - NO. 584 CIVIL 19P2 PLAINTIFF' S PRr;LlMllX L TO PRELIMINARY OBJECTIONS BEFORE BAYLEY and OLER JJ. OPINION AND ORDER OF COURT Oler, J. present case are preliminary objections For disposition in the to preliminary objections. The preliminary obje tions at issue have been filed by Plaintiff, challenging the timeliness of preliminary objections of Defendant to the complaint. For present purposes, the facts as alleged may be summarized iLS follows. On December 3, 1987, Primero, Inc. (Primero) entered into an agreement (Agreement) under which it agreed to lease computer equipment (Equipment) from Tandy Computer Leasing (Plaintiff).' Under the terms of the Agreement, Primero was o ligated to make monthly payments for the use of the Equipment .2 ichael Stanovich (Defendant) executed an Individual Personal Guaranty (Guaranty) in favor of the Plaintiff .3 Pursuant to the Guaranty, Defendant expressly guaranteed "payment to [the Plaintiff of all rentals, 1 Plaintiff's Complaint, paragraph 4. 2 Monthly payments of $254.20 were re uired under the Agreement. Plaintiff's Complaint, Exhibit A. 3 Plaintiff's Complaint, Exhibit B. No. 584 Civil 1992 maintenance and/or other payments due and owing" if Primero failed to meet its obligations under the Agreement.' Plaintiff alleges that Primero and the Defendant have failed to make monthly payments,5 as required by the A reement, from January 1, 1988 until the present date.(' consequently, the Plaintiff commenced this action against both seeking delinquent rental payments, liquidated damages, interest, and attorney's fees.' Defendant and Primero were served with t e Plaintiff's Complaint on February 19, 1992 and February 27, 1992 respectively .8 Defendant filed preliminary objections to t e Plaintiff's complaint on March 25, 1992.9 The Plaintiff subsequently filed preliminary objections to the Defendant's preliminary objections, id. 5 See note 2 infra. (' Plaintiff's Complaint, paragraph 7. ' The Plaintiff claims that delinquent rent payments in the amount of $9,351.20 were due "on or after February 16, 1988." Plaintiffs Complaint, paragraph 8. Additionall , the Agreement qra P provided for liquidated damages of twenty Jercent of the Plaintiff's original investment in the Equipment, interest at a rate of one and one-half percent, and reasonableattorney's fees. Plaintiff's Complaint, Exhibit A, paragraph 12. s Cumberland County Sheriff's Return dated March 6, 1992. 9 Defendant's preliminary objections were in the form of a motion to strike for lack of conformity to Rules of Court, or in the alternative, a motion for a more spe ific pleading. Defendant's Preliminary Objections to Plaintiff's Complaint. Primero failed to respond to the Plaintiff's complaint int he default judgment was entered against it on April20, 37. amount of $19,113.16. Cumberland County Judgmen Index, P. 2 No. 584 Civil 1992 asserting that, because the Defendant failed to respond within the time prescribed by the Pennsylvania Rules of Civil Procedure and because there was no agreement to extend the time for filing, the Defendant's preliminary objections should be denied. 10 This matter was submitted to the Court for disposition on brief . Pennsylvania Rule of Civil Procedure 1026 states in pertinent part that "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading "The word 'shall' in Rule 1026 has always been interpreted flexibly, thus permitting exception to the rule where justice so requires." Francisco v. Ford Motor Company, 397 Ia. Super. 430, 433, 580 A.2d 374, 376 (1990). Moreover, it has been stated that the twenty -day filing rule is permissive rather than mandatory. Urban v. Urban, 332 Pa. Super. 373, 378, 481 A.2d 662f 665 (1984). Where a plaintiff has failed to seek a defau t judgment the Court may ignore the late filing of a pleading. 2 Goodrich Amram 2d §1026(a):8, at 432 (1991). This principle is Eaid to be based upon the theory "that a plaintiff cannot be prejudiced by such a delay, and that his or her neglect to take a defaILlt judgment ... operates as an extension of the period for filin the pleading. Id. "[T]he fact that a trial court can refuse to strike such an untimely filed pleading does not mean that anytime a party fails to io Plaintiff's Preliminary Objections Objections. 3 Ito Preliminary No. 584 Civil 1992 seek a default judgment as a result of a late filed pleading, the period within which the party may file its late pleading is automatically extended." 2 Goodrich Amram 2d §102 (a):8, at 432 (1991). The trial court may strike an untimely plea ing where the opposing party is prejudiced and justice requires Paulish v. Bakaitis, 442 Pa. 434, 441, 275 A.2d 318, 322 (1971 . Turning to the facts in the instant case, we note that the Defendant's preliminary objections were filed fifteen days late. In his preliminary objections, Defendant complains that a damage figure has been set forth in the complaint without a sufficient factual predicate upon which a response can be based, 11 and that the complaint contains no statement as to the a licability or nonapplicability of compulsory arbitration,12 inter lia. Although they may not be successful, the preliminary obje tions are not clearly frivolous, and Plaintiff has not alleged, nor does it appear that there is, any prejudice accruing t it from the lateness of Defendant's filing. Based upon the foregoing, the following Order o ill be entered: ORDER OF COURT AND NOW, this *X"J day of November, 1992, th Plaintiff's 11 See Pa. R.C.P. 1019(a). 12 See Pa. R.C.P. 1021(c). 4 No. 584 Civil 1992 Preliminary Objections to Preliminary Objections a BY THE COURT, J. Wesley Oler, Jr., f. William T. Wilson, Esq. LEGG & WILSON 7 South High Street P.O. Box 553 West Chester, PA 19381 Attorney for Plaintiff Gerard M. Mackarevich, Esq. GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 E. Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant :rc [•i DISMISSED.