Judges Opinions Public Notices, — June 30, 2020 8:57 — 0 Comments

Public Notices, June 3, 2020

Volume 57, No. 44

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

 

 

TABLE OF CONTENTS

Risser Family Limited Partnership, et al., v. Raymond D. Griggs

 

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF VIRGINIA L. YINGST, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Joan Y. Breidenstine, Executrix

Estate of Virginia L. Yingst

Reilly Wolfson Law Offices

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF FREDERICK RUEBMAN, JR., late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

James Ruebman, Co-Executor

Keith Mearig, Co-Executor

John R. Gibbel, Esquire

PO Box 5349

Lancaster, PA 17606

 

ESTATE OF PHYLLIS A. STONER, late of the Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Daniel Stoner, Sr., Executor

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MERLIN C. CRAUN late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Suzanne K. Rueppel, Executrix

George W. Porter, Esquire

909 E. Chocolate Avenue

Hershey, PA 17033

 

ESTATE OF ESTHER L. BUCK, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Carol A. Danz, Co-Executrix

Karen M. Meads, Co-Executrix

George W. Porter, Esquire

909 E. Chocolate Avenue

Hershey, PA 17033

 

ESTATE OF ROBERT P. FUNK, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Ronald P. Funk, Executor

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE HENRY M. BERGER, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Johan E. Berger, Co-Executor

Ross A. Berger, Co-Executor

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042

 

ESTATE OF FREDERICK RUEBMAN, JR., late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

James Ruebman, Co-Executor

Keith Mearig, Co-Executor

John R. Gibbel, Esquire

PO Box 5349

Lancaster, PA 17606

 

SECOND PUBLICATION

 

ESTATE OF RIDA J. DEVITZ a/k/a RIDA JEANNETTE DEVITZ a/k/a JEANNETTE R. DEVITZ late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Hayes A. Clark, IV, Executor

Patrick M. Reb, Esquire

547 S. 10th Street

Lebanon, PA 17042

 

ESTATE OF KATHLEEN ANN MULHERN, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Dominic J. Mulhern

PO Box 336

Richland, PA 17087

 

Kenneth C. Sandoe, Esquire

36 West Main Avenue

Myerstown, PA 17067

 

THIRD PUBLICATION

 

ESTATE OF WILLIAM D. PRICE, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Cynthia F. Dupler, Executrix

Keith D. Wagner, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF LARRY L. HETRICK, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Beth Ann Shirk

902 Harry Avenue

Palmyra, PA 17078

 

John A. Feichtel, Esquire

Sullivan Rogers & Feichtel

100 Sterling Parkway, Suite 100

Mechanicsburg, PA 17050

 

ESTATE OF MERVIN M. FANSLER, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Mervin Fansler, III, Co-Executor

Cynthia Walter, Co-Executrix

 

Gerald J. Brinser, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF ESTHER Z. YEAKLEY, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Co-Executrixes.

 

Shirley Henly, Co-Executrix

1235 Hilltop Road

Myerstown, PA  17067

 

Barbara Stauffer, Co-Executrix

446 Yeagley Road

Myerstown, PA  17067

 

Linda Craun, Co-Executrix

444 Yeagley Road

Myerstown, PA  17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue,

Myerstown, PA  17067

 

FICTITIOUS NAME

 

Notice is hereby given that an Application for Registration of Fictitious Name was filed in the Department of State of the Commonwealth of Pennsylvania on February 05, 2020 for CH Property Maintenance & Remodeling at 261 Mountain Dr. Fredericksburg, PA 17026. The name and address of each individual interested in the business is Corey L. Hoffert at 261 Mountain Dr. Fredericksburg, PA 17026. This was filed in accordance with 54 PaC.S. 311.

 

Notice is hereby given that an Application for Registration of Fictitious Name was filed in the Department of State of the Commonwealth of Pennsylvania on February 05, 2020 for Crazy Savings Wholesales at 232 S. Sheridan Road Newmanstown, PA 17073. The name and address of each individual interested in the business is Shawna A. Shollenberger at 232 S. Sheridan Road Newmanstown, PA 17073. This was filed in accordance with 54 PaC.S. 311.

 

Notice is hereby given that an Application for Registration of Fictitious Name was filed in the Department of State of the Commonwealth of Pennsylvania on January 29, 2020 for Rocker and Sons Electric at 301 South Market Street Newmanstown, PA 17073. The name and address of each individual interested in the business is Gregory P. Rocker at 301 South Market Street Newmanstown, PA 17073. This was filed in accordance with 54 PaC.S. 311.

 

 

JUDGE’S OPINION

 

Risser Family Limited Partnership, et al., v. Raymond D. Griggs

 

Civil Action-Law-Family Business Dealings-Breach of Fiduciary Duty-Breach of Contract-Amendment of Pleadings-Prejudice-Attachment of Writing to Pleading-Joinder of Parties-Judicial Efficiency

 

Plaintiffs, whose members are limited partners of the Grace Group, LP, and family members of Defendant, brought an action against Defendant, the general partner of the Grace Group, LP, in Breach of Contract and Breach of Fiduciary Duties for failing to perform minimal management tasks and to pay taxes for the Grace Group, LP.  After Defendant filed an Answer to Plaintiffs’ Complaint, Plaintiffs filed a Motion for Leave to File an Amended Complaint seeking to add parties as plaintiffs on the basis that significant factual changes relating to the dispute occurred and to ensure that all disputes between the parties related to business dealings with the Grace Group, LP, could be adjudicated in a single action.

 

  1. Pa.R.C.P. Rule 1033 allows a party to amend pleadings either with the consent of the adverse party or leave of court.

 

  1. The right to amend pleadings should be granted liberally at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.

 

  1. The resulting prejudice that may warrant the denial of a request for amendment is established only if the detriment suffered would go beyond that which normally would flow from the allowance of the amendment.

 

  1. Pa.R.C.P. Rule 1033 provides that the amended pleading may aver occurrences that have happened after the filing of the original pleading even if the occurrences give rise to a new cause of action or defense.

 

  1. An amendment to a pleading will not be permitted where the amendment is against a positive rule of law.

 

  1. The right to amend will be withheld if there does not appear to be a reasonable possibility that the amendment will be successful.

 

  1. In determining whether there is a reasonable possibility that amendment will be successful, the Court is prohibited from rendering an advisory opinion.

 

  1. Pa.R.C.P. Rule 1019(i) provides that if a writing upon which a claim or defense is based is inaccessible to the pleader, it is sufficient to state the same with the reason for the inaccessibility and to set forth the substance of the writing in the pleading.

 

  1. Where the four (4) corners of the proposed Amended Complaint clearly set forth allegations supporting a cause of action for Breach of Fiduciary Duty, sufficient facts have been put forth to survive demurrer such that the amendment sough is not against a positive rule of law despite the fact that written assignments for promissory notes upon which the action is based are not attached to the proposed Amended Complaint, as the Amended Complaint set forth the substance of the promissory notes in writing with Defendant having the right to lodge preliminary objections on that basis at the appropriate stage of the proceedings.

 

  1. The proper avenue to challenge joinder of a party is by way of preliminary objection to the joinder complaint.

 

  1. Pa.R.C.P. Rule 2229(a) provides that persons may join as plaintiffs anyone who asserts any right to relief jointly, severally, separately or in the alternative in respect of or arising out of the same transaction or occurrence if any common question of law or fact affecting the right to relief of all such persons will arise in the action.

 

  1. Rule 2229 should be construed liberally to secure the just, speedy and inexpensive determination of every action.

 

  1. In a joinder analysis, the key inquiry is whether the additional party’s liability is related to the original claim, in which case the joinder is permissible.

 

  1. The proper procedure for amending a pleading to add a party under Rule 1033 is by motion or petition.

 

  1. Since the proposed Amended Complaint joins parties who assert their right to relief jointly with the right to relief arising from the same series of occurrences as it relates to Defendant’s breach of fiduciary duties with all parties alleged to have suffered harm stemming from that breach, the requirements of Rule 2229 have been satisfied.

 

  1. The Court may treat the Motion to Amend as a motion to join an additional party despite the fact that Plaintiffs have not petitioned the Court in a motion to join additional parties.

 

  1. Sufficient prejudice has not been discerned to preclude amendment of the Complaint where the additional plaintiffs allege harm suffered by common actions or inactions of Defendant as the original Plaintiffs and demanding that additional plaintiffs seek relief against Defendant in a separate action clearly would be an inefficient use of judicial resources.

 

L.C.C.C.P. No. 2017-00823, Opinion by Samuel A. Kline, Judge, August 14, 2019.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

RISSER FAMILY LIMITED PARTNERSHIP ET AL,

 

Plaintiff,

 

v.

 

RAYMOND D. GRIGGS,

 

Defendant.

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No. 2017-00823

ORDER

AND NOW, to wit, this 14th day of August, 2019, upon consideration of Plaintiff’s Motion for Leave to File an Amended Complaint, Plaintiff’s Motion is hereby GRANTED. Plaintiff is granted leave to file an Amended Complaint within twenty (20) days of the date of this Order.

 

BY THE COURT,

 

 

_____________________J.

SAMUEL A. KLINE

cc:           Aaron K. Zeamer Esq.

Brandon S. Harter Esq.

Eric L. Winkle Esq.

Court Administration (order only)

Simon R. Ryder Esq. // Law Clerk (order only)

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION

RISSER FAMILY LIMITED PARTNERSHIP ET AL,

 

Plaintiff,

 

v.

 

RAYMOND D. GRIGGS,

 

Defendant.

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No. 2017-00823

APPEARANCES:

Eric L. Winkle Esq.                               for Defendant

Aaron K. Zeamer Esq.             for Plaintiff

OPINION, KLINE, J., AUGUST 14, 2019

Before this Court is Plaintiff’s Motion for Leave to File an Amended Complaint, Defendant’s Answer in Opposition to Plaintiff’s Motion for Leave to File an Amended Complaint and respective briefs of the parties. For the reasons set forth herein, Plaintiff’s Motion for Leave to File an Amended Complaint is GRANTED.

FACTUAL BACKGROUND:

This action is brought by the Risser Partnership, asserting claims against Mr. Griggs for breach of contract and breach of his fiduciary duties to his partners and The Grace Group.

The Grace Group, LP is a limited partnership formed to construct and lease a commercial building on a tract of real property in South Lebanon Township. The Grace Group’s general partner is Raymond Griggs (hereinafter “Defendant”). The Grace Group’s limited partners are the Risser Family Limited Partnership (hereinafter “Plaintiff”) and members of Mr. Griggs’s family.

The original Complaint was filed on May 2, 2017 and alleges that Defendant has acted as the general partner of The Grace Group and has managed its day-to-day finances and operations. The Complaint further alleges that Defendant has failed to perform the minimal management required for The Grace Group and has failed to pay taxes. Complaint further states that (1) Defendant has failed to make comparable pro rata distributions to all partners, including the Risser Partnership, in accordance with their respective ownership interests in The Grace Group; (2) Defendant has failed to retain income in The Grace Group sufficient to satisfy the imminent balloon payment on the Loan or to otherwise make arrangements for the satisfaction thereof; (3) Defendant facilitated the transfer of limited partnership interests to his wife in violation of the Limited Partnership Agreement for The Grace Group; (4) Defendant never notified Plaintiff of the transfer or sale of Brittany Griggs and R. Brandon Griggs interest in The Grace Group; (5) Plaintiff was never given the opportunity to purchase the limited partnership interests transferred to Brenda Griggs; (6) Defendant failed to provide financial information of The Grace Group to the Plaintiff, despite the Plaintiffs repeated requests. The original Complaint presents two causes of action: (1) breach of fiduciary duty to the partnership and (2) breach of fiduciary duty to partners.

On November 3, 2017, Defendant filed an Answer and New Matter, where he requests the Complaint be dismissed with prejudice and alleges that one or more of Plaintiff’s claims are barred by the applicable statutes of limitations and by the doctrine of laches. However, in the contents of his New Matter, Defendant substantively denies factual averments made in the Complaint and provides no factual support for either statute of limitations argument or the doctrine of laches.

On March 11, 2019, Plaintiff filed the instant Motion for Leave to File an Amended Complaint, where he alleges that since the filing of Plaintiff’s Complaint, significant factual changes relating to this dispute have occurred including the sale of The Grace Group’s primary asset. To reflect these factual changes and to eliminate unnecessary requests for relief, Plaintiff requests leave to file an Amended Complaint under Pa. R.C.P. 1033(a). Plaintiff also wishes to file its Amended Complaint so that all disputes between the parties related to their business dealings with The Grace Group can be adjudicated in a single civil action.

On April 1, 2019, Defendant filed his Answer in Opposition to Motion for Leave to File an Amended Complaint. In his answer, Defendant requests that Plaintiffs’ Motion to Amend Complaint be denied because the new claims are unrelated.

Defendant further avers that Mr. Risser wants to amend the Complaint in this action to include claims against Mr. Griggs for repayment of those two promissory notes, despite the fact that neither Risser FLP nor the Grace Group were involved with either of those loans (as lender or borrower). He argues that Tom Risser is attempting to use this lawsuit as a means to collect debts that he believes Ray Griggs owes to him and his other corporation. He argues that the proposed Amended Complaint raises new claims for debt collection by Tom Risser and Risser Group, Inc. for loans made personally to Ray Griggs in 2006. He avers that lthough the Amended Complaint alleges that the two promissory notes referenced above “have been assigned by the Risser Group, Inc. and Mr. Risser to the Risser Partnership,” Plaintiff did not attach written assignments to the proposed Amended Complaint.  Defendant further avers that the Amended Complaint offers absolutely no business reason why Risser FLP would have accepted an assignment of those two promissory notes or purchased those promissory notes from Mr. Risser and the Risser Group, Inc.

DISCUSSION

The amendment of pleadings is governed by Pa.R.C.P. 1033, which “allows a party to amend his or her pleadings with either the consent of the adverse party or leave of the Court.” Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014) (quoting Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996)). Although the grant or denial of leave to amend a pleading is committed to the sound discretion of the trial Court, “the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.” Blackwood, Inc. v. Reading Blue Mountain & Northern R. Co., 147 A.3d 594, 598 (Pa. Super. 2016). “The policy underlying this rule of liberal leave to amend is to insure that parties get to have their cases decided on the substantive case presented, and not on legal formalities.” Chaney v. Meadville Med. Ctr., 912 A.2d 300, 303 (Pa. Super. 2006)). See also Horowitz v. Universal Underwriters Ins. Co., 580 A.2d 395, 398 (Pa. Super.1990) (holding that this Rule has “repeatedly been interpreted as requiring the liberal evaluation of amendment requests, in an effort to secure a determination of cases based upon the merits rather than based upon a mere technicality.” Id.)

The “resulting prejudice” that may warrant the denial of a request to amend a pleading “must be something more than a detriment to the other party since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.” Rettger v. UPMC Shadyside, 991 A.2d 915, 928 (Pa. Super. 2010). “Thus, an allegation of prejudice will be sufficient to deprive another party of the right to amend only if the detriment suffered would go beyond that which would normally flow from the allowance of an amendment.” Sands v. Forrest, 434 A.2d 122, 125 (Pa. Super. 1981). Rule 1033 expressly states that “[t]he amended pleading may aver…occurrences which have happened…after the filing of the original pleading, even though they give rise to a new cause of action or defense.” Pa.R.C.P. 1033.

The sole issue for the Court to determine is whether Plaintiff’s Motion for Leave to File an Amended Complaint should be granted.

Plaintiff argues that the Court should grant their request to file the Amended Complaint because nothing in the Amended Complaint violates any positive Rule of law. Plaintiff argues that the Amended Complaint does not create any unfair surprise or prejudice to Mr. Grigg sbecause with respect to requests to amend pleadings, prejudice means an injury caused by the lateness of the new allegations, not merely because the adverse party may lose on the merits if the pleading is allowed. He concludes that Mr. Griggs suffers no injury because of the timing of the new allegations related to the promissory notes.

In his response, Defendant argues that this Court should not permit amendment of the Complaint as proposed by Plaintiffs for three reasons. He contents that first, the proposed Amended Complaint alleges assignment of two promissory notes from Tom Risser and his corporation Risser Group, Inc. to Risser Partnership. He argues that Plaintiff did not attach any written assignments which would constitute part of the contract allegedly making Mr. Griggs liable to Risser Partnership for repayment of the two promissory notes. Second, allowing the claims of other parties to be added to the claims of Plaintiffs, in this case, will unfairly prejudice Mr. Griggs since he will be forced to defend against unrelated claims from multiple plaintiffs. Third, he avers that the addition of the promissory notes to this lawsuit is nothing but a sham. He concludes that this Court should not reward Risser Partnership’s earlier misstatements by permitting additional contrived claims made two years after initiation of the lawsuit.

In his brief, Plaintiff avers that the Amended Complaint also does not create any unfair surprise or prejudice to Mr. Griggs. He alleges that Mr. Griggs suffers no injury because of the timing of the new allegations related to the promissory notes. Further, he argues that it is clear Defendant is already mindful of the amounts he borrowed in 2006. Mr. Griggs argues that the Amended Complaint is flawed, because the written assignments for the promissory notes “do not exist.” He similarly challenges the assignments because the Amended Complaint lacks an explanation of why the promissory notes were assigned to the Risser Partnership. Mr. Griggs’s disagreement with the Amended Complaint’s factual allegations is not a basis for denying the pending Motion. He avers that Mr. Griggs can challenge the existence of the assignments, including why they were made, in his Answer to the Amended Complaint.

In his brief, Defendant avers that the proposed Amended Complaint is defective on its face because it does not comply with the Pennsylvania Rules of Civil Procedure in that the Rule requires that any written portion of the contract (such as the alleged assignments) must be attached to the Amended Complaint. He argues that if the assignments were verbal, that must be stated in the Amended Complaint. Defendant then avers that the Amendment would be a misuse of the judicial system because the proposed Amended Complaint does nothing more than allow two other plaintiffs (Tom Risser and Risser Group, Inc.) to add their purported claims against Mr. Griggs to this single lawsuit. He contends that it allows those two non-parties to misuse the Court to collect personal debts of Mr. Griggs from The Grace Group partnership funds currently frozen in the partnership’s bank account. He avers that permitting other parties to lump their claims in with those of Risser Partnership unfairly prejudices Ray Griggs by forcing him to defend against multiple unrelated claims by multiple parties.

Defendant avers that the proposed Amended Complaint allows a mini-class action against him for what he believes to be unrelated claims. He argures that it is clear from the proposed Amended Complaint that the value of the Risser Partnership’s claims is only $394,590 and not $1 million. He contends that the Court ordered $1 million of The Grace Group’s funds to be held under the injunction because of the representations of Risser Partnership’s counsel at the 2017 hearing. At the time those representations were made, Risser Partnership’s claims were less than half of that amount. He further avers that now, a year and a half later, Risser Partnership wants to amend its Complaint to allege approximately $1 million of claims against Mr. Griggs. He concludes that this Court should not reward the earlier misstatements by allowing new additional claims by other parties so that the claims will now total $1 million.

First, the Court will address Defendant’s argument as it relates to the failure to attach written assignments.

As to Defendant’s contention that an alleged lack of attachment of an additional document constitutes a violation of the substantive Rules Pa.R.C.P. 1019 (h) and (i) in the context of objecting to the Motion to Amend the Complaint, Defendant presents no argument to convince the Court as to how Rule 1019 governing the contents of pleadings can be enforced by means other than a preliminary objection, which Defendant does not instantly file with the Court. In other words, the Court is not convinced that Pa.R.C.P. 1019 (h) and (i) can be procedurally enforced by means of a responsive pleading that Defendant instantly files objecting to the Motion to Amend the Complaint. A mere fact that a lack of attachment of additional document subjects the Amended Complaint to preliminary objections does not resolve the merits of the issue because of the apparent difference between stating that an amendment is subject to preliminary objections and stating how in a situation where Defendant doesn’t file any preliminary objections on this matter, a violation of Pa.R.C.P. 1019 (h) and (i) entitles him to relief from an allegedly improper proposed amendments.

The Court delineates an apparent difference between the three statements: (1) “Amended Complaint is subject to preliminary objections and thus the amendment to the Complaint is not allowed”, (2) “Because the Amended Complaint is subject to preliminary objections, it violates the positive Rule of law” and (3) “Because the Amended Complaint is subject to preliminary objections, whereas resolving the substance of those objections in a situation where they have not been filed would not constitute an advisory opinion, where the Amended Complaint violates the positive Rule of law to the point that the newly proffered Amended Complaint instills a firm conviction upon the Court that as amended, there is no reasonable possibility for Plaintiff to be entitled to relief for the cause of action stated.” The Court views that at most, the facts and averments presented by Defendant resemble the first statement, which on its face does not resolve the substance of his issue on the merits. Instead, the Court will focus its attention on the third statement, that the Court believes to be the essential question that needs to be resolved in order to address the issue on the merits. The analysis is as follows.

Defendant is correct in his contention that failure to attach relevant assignments to the Complaint does subject the Complaint to the determinations of whether preliminary objections are warranted. However, as the record of the case indicates, Defendant is responding to Plaintiff’s Motion for Leave to File an Amended Complaint, which is governed by a different section of Pa.R.C.P.–1033. The plain reading of the respective authority of the Rule 1033, reveals that a preliminary objection is not a valid instrument under this section.

However, it is true that “[a]n amendment to a pleading will not be permitted where it is against a positive rule of law.” TCPF Ltd. Partnership v. Skatell, 976 A.2d 571, (Pa.Super.2009). Our Superior Court has examined whether upon reviewing a hypothetical preliminary objection, not yet submitted, the Court has a procedural authority to rule on the merits of such a hypothetical. It held that “[t]he right to amend will be withheld if there does not appear to be a reasonable possibility that amendment will be successful.” Spain v. Vicente, 461 A.2d 833, 837 (Pa.Super.1983). “[A] Court is not required to allow amendment of a pleading if a party will be unable to state a claim on which relief could be granted.” Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa.1996). In determining this reasonable possibility, this Court is constrained by the general principles of the prohibition against rendition of advisory opinions. See Philadelphia Entm’t and Dev. Partners, L.P. v. City of Phila., 937 A.2d 385, 393 (Pa. 2007) (holding that the Court “should not give answers to academic questions or render advisory opinions or make decisions based on assertions as to hypothetical events that might occur in the future” Id.).

The substantive Rules of Civil Procedure governing preliminary objections are clearly established. A party may file preliminary objections in the form of a motion to strike under Pa.R.C.P. 1028(a) (2) for “(2) failure of a pleading to conform to law or Rule of Court or inclusion of scandalous or impertinent material.” Kapacs v. Martin, 81 Pa. D. & C.4th 509, 515 (Com. Pl. 2006). A party may also bring forth preliminary objections under Pa.R.C.P. 1028(a) (3) for “(3) insufficient specificity in a pleading.” Where a party has asserted a preliminary objection under Rule 1028(a)(3), the question for the Court is whether the pleading is sufficiently clear to enable the opposing party to adequately prepare a defense, or whether the pleading informs the opposing party “with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Ammlung v. City of Chester, 302 A.2d 491, 498 n. 36 (Pa. Super. 1973). As it is clear, when a party in a case wishes to file preliminary objections, the Rules allow it.

In light of Zazycznys incorporated reasoning as to the demurrer considerations in determining a “reasonable possibility,” “[a] preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cardenas v. Schober, 783 A.2d 317, 321 (Pa.Super.2001) (citing Pa.R.C.P. 1028(a)(4)). “Preliminary objections in the nature of a demurrer require the Court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” Id. at 321–22. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Id. at 321. “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208–209 (Pa. Super. 2012).

Essentially, the question for the Court is to determine based on the pleadings only, whether in spite of the missing written assignments not attached to the amended pleadings, that pleading is or is not legally sufficient to state a cause of action to survive the demurrer.

Here, the cause of action is clearly stated. Under Snitow v. Snitow, 2017 WL 6557479, at *7 (Pa. Super. 2017), “[a] claim for breach of fiduciary duty requires the plaintiff to demonstrate that: the Defendant negligently or intentionally (1) failed to act in good faith and solely for the benefit of the plaintiff or (2) failed to use reasonable care in carrying out his duties; the plaintiff suffered injury; and the Defendant’s failure to (1) act solely for the plaintiff[‘]s benefit or (2) use the skill and knowledge demanded of him by law was a real factor in bringing about the plaintiff’s injuries. [See] Pa. SSJI (Civ.) § 6.210 (2014).” On the face of Plaintiff’s pleadings, there appear to be sufficient facts to survive the demurrer because the pleading’s factual contentions clearly support the cause of action for breach of the fiduciary duties. Specifically, Defendant owed Plaintiff a duty of care; he breached that duty by failing to act in good faith in carrying out his duties, which caused the damages Plaintiff sustained.

Therefore, looking at the four corners of the pleadings for the purposes of legal sufficiency, it is evident that factual contentions of the Complaint clearly support the cause of action for the breach of the fiduciary duties. However, the legal standard for the preliminary objections does not even require Plaintiff to state his cause of action with particularity, only the facts that support a right to relief under any theory of law. Foster v. Peat Marwick Main & Co., 587 A.2d 382, 385 (Pa.Cmwlth. 1991). See also Foster v. Mut. Fire, Marine & Inland Ins. Co., 676 A.2d 652, (Pa. 1996) (holding that “if any theory of law will support a claim, preliminary objections are not to be granted.”) Id. Even when the Court looks at “any theory,” it does not need to be a specific legal theory, but rather only the essential facts to support the claim to survive preliminary objections. See Glomar Holding, L.P. v. E. Metal Recycling-Terminal, LLC, 2017 WL 1856261, at *3 (Pa. Super. 2017) (holding that “[t]he complaint need not identify specific legal theories, but it must provide essential facts to support the claim.”) As discussed above, a cause of action for breach of fiduciary duties is sufficiently stated.

Defendant’s allegation that failure to attach the assignments to Amended Complaint violates Rule 1019(h) or (i) is unwarranted.

Rule 1019(i) of the Pennsylvania Rules of Civil Procedure provides as follows:

(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.

Pa.R.C.P. 1019(i).

Rule 1019(h) of the Pennsylvania Rules of Civil Procedure provides as follows:

(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.

Note: If the agreement is in writing, it must be attached to the pleading. See subdivision (i) of this Rule.

Pa.R.C.P. 1019(h).

Here, the Amended Complaint clearly provides references to the exhibits B and C as it relates to the promissory notes. (See p.3 of the Amended Complaint.) In Castle Cheese v. Sadler, 2007 WL 1797513 (Pa. Com. Pl. 2007), the Court was satisfied with a reference to the material portions of the writing as satisfactory of Pa.R.C.P. 1019(i), holding that “it is clear that plaintiff has provided the material portions of the writing for which the complaint is based by attaching exhibits C and D to the complaint, which provide a basis for the [] claim.” Id.

When faced with a similar issue, the Court in Discover Bank v. Stucka, 33 A.3d 82, (Pa. Super.2011) held that the bank’s amended complaint set forth sufficient allegations to provide credit cardholders with notice of bank’s claims, even though bank did not attach any document signed by cardholders because, inter alia (1) amended complaint alleged that credit card was subject to terms and conditions of the agreement, (2) amended complaint alleged that cardholders had failed to make monthly payments on account as required by agreement, (3) there were references to the summaries of the contents of the agreement.

The Court additionally notes, that in Stucka supra, the Court was considering preliminary objections as a proper procedural instrument to enforce Pa.R.C.P. 1019(i), this case, however, presents Defendant’s answer to the motion and Defendant did not file any preliminary objections. The combination of those factors brings the Court to the conclusion that if the Court had jurisdiction to enforce Pa.R.C.P. 1019(i) under the adopted “positive rule of law” framework of Zazyczny supra, Skatell supra balanced by the limitations of Philadelphia Entm’t and Dev. Partners, L.P. supra, then it is clear that under Sadler and Stucka Plaintiff’s references to the promissory notes clearly satisfy the requirements of Pa.R.C.P. 1019(i). Alternatively, if Philadelphia Entm’t and Dev. Partners, L.P. supra is construed to generally preclude a hypothetical ruling on hypothetical preliminary objections not yet submitted, then the Court arrives at the same conclusion (that a Pa.R.C.P. 1019(i) and (h) challenge to the Amended Complaint is unwarranted) based on the fact that no preliminary objections were instantly filed to enforce Pa.R.C.P. 1019(i) and (h).

Therefore, pursuant to Vicente supra, the Court is compelled to conclude the Amended Complaint is not legally insufficient because it doesn’t violate a positive rule of law. See TCPF Ltd. Partnership v. Skatell, 976 A.2d 571, (Pa.Super. 2009). Nothing in this reasoning should be interpreted to mean that the Court prevents or limits the party’s rights to introduce preliminary objections later.

Next, the Court will analyze whether Defendant’s argument that he will be unfairly prejudiced because he will be forced to defend against unrelated claims from multiple plaintiffs has merit.

Our Superior Court has directly resolved Defendant’s concern of whether his objection to joinder of parties based on the Amended Complaint is even recognized under the Rules of Civil Procedure by holding that “[t]he proper challenge to joinder is by way of preliminary objection to the joinder complaint.” Somers v. Gross, 574 A.2d 1056 (Pa.Super. 1990). Here, Defendant objects to the Amended Complaint by means of submitting a motion “in opposition” and titles his argument “The Amendment Would be a Misuse of the Judicial System.” Defendant never filed his preliminary objections and did not rely on the Rules of Civil Procedure governing preliminary objections in making his instant argument.

Even if the Court assumes that Defendant could have argued that a joinder of additional parties as Plaintiffs constitutes a violation of “positive Rule of law” as discussed in Skatell, 976 A.2d 571, (Pa.Super.2009), the record here presents insufficient evidence.

Persons may join as plaintiffs who assert any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the rights to relief of all such persons will arise in the action.

Pa.R.C.P. 2229. (a)

“The Rule[] shall be liberally construed to secure the just, speedy and inexpensive determination of every action. .. The Court at every stage of any such action may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Johnson v. Pilgrim Mut. Ins. Co., 1978 WL 308, at *6 (Pa. Com. Pl. 1978). “[I]t is also predicated on administrative convenience…. If the issues between the various parties may be conveniently tried and determined in one action, the joinder is desirable. Issues between various parties arising from a common factual background and involving common questions should ordinarily be determined in one action.” Buchanan v. Brentwood Fed. Sav. & Loan Ass’n, 1975 WL 16967 (Pa. Com. Pl. 1975).

“In a joinder analysis, the key inquiry is whether the additional [party’s] liability is related to the [original claim].” Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971). “If so, then joinder is permissible because joinder allows the Court to evaluate all possible sources of the plaintiff’s harm in one action, regardless of who asserted the specific theory of harm.” Id.

The Court must determine whether the requirements of Pa.R.C.P. 2229. (a) are satisfied. We find that they are. Here, the Amended Complaint joins Plaintiffs Tom Risser and Risser Group who assert their right to relief jointly, and their right of relief arises from the same series of occurrences as it relates to the original Plaintiff, namely Defendant’s breach of fiduciary duties. Further, there is a common question of fact affecting the rights to the relief of all named plaintiffs because all named parties alleged to have suffered the harm that stemmed from the alleged breach of fiduciary duties by Defendant. Therefore, the material requirements of Pa.R.C.P. 2229 relating to joinder of Plaintiffs are satisfied.

However, the Court must address the issue of whether an additional plaintiff, who himself has not petitioned for a joinder, may be added by the original Plaintiff by means of amending the Complaint.

According to the Pa.R.C.P. 1033,

(a) A party, either by filed consent of the adverse party or by leave of Court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences that have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.C.P. 1033.

According to the explanatory comment 2013 to the Rule, it states that

Rule 1033 has been amended to specifically state that an amendment may add a person as a party. It is the practice of litigants and trial courts to refer to Rule 1033 when a party seeks to amend a pleading to add another party. The purpose of this amendment is to eliminate any uncertainty as to whether a motion to amend a pleading to add an additional party is governed by Rule 1033.

Pa.R.C.P. 1033. Exp. Com. 2013.

 

The explanatory comment clearly resolves the issue as to whether a motion to amend a pleading to add an additional party is governed by Rule 1033. It clearly is. However, it does not resolve the issue as to what specific procedural steps must be taken in order to add the party who is an additional plaintiff. The Court in Kiley v. Tredyffrin Tp. Bd. of Sup’rs, 17 Pa. D. & C.3d 431 (1980) held that although “Pa.R.C.P. 1033 does not set forth the procedure which must be followed”, nevertheless the proper procedure for amending a pleading to add a party under this Rule would be by motion or by petition. Id.

In Belle v. Chieppa, 659 A.2d 1035 (Pa.Super. 1995), the Superior Court held:

… In the absence of a mandated procedure, trial courts have adopted various methods to effect a proper joinder of an additional party under circumstances other than the traditional situation of a defendant adding an additional defendant which is covered by Rules 2251 et seq. See 7 Goodrich Amram § 2232(c):1.1, pp. 563–64. Among the methods approved by the lower courts is the kind of procedure adopted [by the trial court] in this case, namely, adding an additional party by petition and rule. 7 Goodrich Amram § 2232(c):1.1, supra.

Belle, supra (quoting Lower Frederick Township v. Clemmer, 543 A.2d 502, 509 (Pa. 1988) and citing Pa.R.C.P. 2232(c)).

However, the Belle Court reversed the trial Court’s reasoning based on trial Court’s “inability to treat the motion to amend the complaint as a motion to join a defendant.” Id. at 916. In light of the foregoing, it is clear that the Superior Court had resolved the issue of the standing requirement of the party to assert their rights by personally petitioning the Court to join the lawsuit on one hand and the general principle of liberal construction of the procedural requirements tending to guard the party’s interests from legal formalities if they don’t affect substantive rights in favor of the latter on the other hand, to allow the treatment of the motion to amend the complaint as a motion to join an additional party. See Chaney v. Meadville Med. Ctr., 912 A.2d 300, 303 (Pa. Super. 2006). Therefore, although the newly alleged plaintiffs here have not petitioned the Court to be included in the Amended Complaint, this Court pursuant to the discussed authority may properly treat the motion to amend the Complaint as a motion to join an additional party.

On balance, in determining whether a procedural violation both with regards to (1) Plaintiff’s naming of the additional plaintiffs who did not personally allege their injury and (2) Defendant’s failure to mount a proper challenge to that joinder by means of preliminary objections, the Court was guided by the general principles Coppage v. Smith, 113 A.2d 247, (Pa. 1955) (overruled on other grounds) holding that Rules of Civil Procedure relating to the joinder of additional parties should be interpreted liberally to accomplish their purpose, which is to further simplify and expedite the disposition of matters involving numerous parties with divergent interests.

Pursuant to this principle, the Court fails to discern a material enough prejudice to Defendant if additional plaintiffs who also allege harm suffered by misfeasance or nonfeasance of Defendant are allowed to proceed in one suit against him. On the other hand, the Court is convinced that in spite of the fact that new Plaintiff’s claims share common circumstances relating to the misfeasance or nonfeasance of Defendant, demanding that they sue Defendant separately would be a clearly inefficient use of judicial resources. Therefore, the law clearly weighs in favor of overruling Defendant’s objections, even though they are improperly placed in his responsive pleading rather than in his preliminary objections.

Next, the Court will analyze the last Defendant’s argument that the addition of the promissory notes to this lawsuit is a sham by Risser Partnership in order to justify claims of its counsel at the last hearing that the Risser Partnership was owed one million dollars by The Grace Group. However, in his later brief, Defendant rephrased the argument as “Amendment of the Complaint is Sought to Justify Keeping 1 million dollars of partnership’s Funds Frozen.”

The Court duly analyzed the contents of the entire Pa. Rules of the Civil Procedure to determine whether an allegation of “sham” or an allegedly improper motivation behind amending the Complaint is a cognizable challenge to the contents of the Complaint under the Rules at this stage of the proceedings. This Court’s research yielded no such findings.

In support of his argument, Defendant cites Arzinger v. Baughman, 34 A.2d 64, 65 (Pa. 1943). In Arzinger, the Court was faced with an action of replevin by Arzinger against Baughman to recover possession of certain equipment. After the property had been replevied, the Coke Reclamation Corporation filed a motion for leave to intervene, which motion was granted, and a counter bond was then entered by the corporation. Thereafter, the plaintiffs presented a petition to strike off the counter bond and the order of the Court allowing intervention for noncompliance with the Pennsylvania Rules of Civil Procedure. From an order vacating its previous order wherein the Coke Reclamation Corporation was granted leave to intervene as a party defendant, striking off the corporation’s counter bond and directing the sheriff to deliver possession of the equipment replevied to plaintiffs, the Coke Reclamation Corporation appealed. The sole issue on appeal was whether the trial Court abused its discretion in not affording an opportunity to comply with the Rules by amendment, where the corporation by no fault of their client, inadvertently proceeded under section 3 of the Act of April 19, 1901, P.L. 88, as amended, 12 P.S. §§ 1826-1831, instead of under the Pennsylvania Rules of Civil Procedure which had suspended certain provisions of that statute.

The Court agreed with the trial Court that the motion, supported by nothing more than a formal affidavit of ownership, does not comply in any fair manner with the Rules. However, the Court was convinced that the trial Court abused its legal discretion in not first affording intervenor corporation an opportunity to amend its pleadings in order to comply with the Rules, before vacating its previous order and striking off the counter bond filed. Essentially, the Court concluded that striking off a counter bond without an opportunity to amend was a denial of a substantive right.

First, the Arzinger Court dealt with the intervention, which is governed by an entirely different set of Rules. Second, even by a very generous reading of the facts and holdings of Arzinger, and according the benefit of all reasonable inferences to Defendant, it is fairly obvious that Arzinger does not even closely support the allegations of “sham” and “improper motivation” alleged by Defendant. Nothing in Arzinger supports the thesis statement of Defendant’s argument relating to sham and improper motive. This Court fails to discern how the holdings allowing intervenor corporation an opportunity to amend its pleadings before striking off the counter bond logically relates or is capable of extrapolation onto the alleged issues of “sham” and “improper motive” behind the proposed Amended Complaint.

Under these circumstances, the Court is compelled to conclude that Defendant’s argument is without merit as it more than clearly lacks a sufficient arguable basis in the law because as stated Defendant’s averments are not cognizable under the Rules, legal authorities cited by Defendant do not support the thesis statement argued. See Lichtman v. Glazer, 111 A.3d 1225, (Pa. Cmwlth. 2015). The Court further recites TCPF Ltd. Partnership v. Skatell, 976 A.2d 571, (Pa. Super.2009) holding that “[a]n amendment to a pleading will not be permitted where it is against a positive rule of law.” Defendant presented no support to the argument that as amended, the new Complaint violates the positive Rule of law and as previously determined, Arzinger provides no support to Defendant’s contentions in his third argument.

Ultimately, there is insufficient evidence that, as amended, the new Complaint violates a positive Rule of law and in spite of the policy underlying this Rule, of liberal construction, to insure that parties get to have their cases decided on the substantive case presented, and not on legal formalities, this Court is compelled to conclude that Motion for Leave to File an Amended Complaint shall be granted. We will enter the Order accordingly.

 

 

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