Portfolio Recovery Associates vs. Miller No. 2012-02115

Civil Action – Breach of Contract – Account Stated – Plaintiff’s Disregard of Court Deadlines – Lack of Due Diligence – Motion to Dismiss Complaint.

1. The Court viewed Plaintiff’s flagrant and repeated disregard for the deadlines it established as evidence that Plaintiff does not really wish to pursue its cause of action against the Defendant.
2. By virtue of the lack of due diligence detailed in its Opinion, the Court granted the Defendant’s Motion to Dismiss Plaintiff’s Complaint.
3. The Court also noted that should Plaintiff seek to re-file another Complaint, it entertain a counterclaim by the Defendant for fees, costs and expenses incurred in  the defense of the instant matter.

Defendant’s Motion to Dismiss for Failure to Comply with Order of the Court.  C.P. of Lebanon County, Civil Action-Law, No. 2012-02115.

Morris A. Scott, Esquire, for Plaintiff

Howard Miskey, Esquire, for Defendant

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

PORTFOLIO RECOVERY                 :

ASSOCIATES,                                  :         NO. 2012-02115

Plaintiff                :

:

v.                                    :

:

SANDRA F. MILLER,                        :

Defendant            :

 

 

APPEARANCES:

 

Morris A. Scott, Esquire                 For Plaintiff

BLATT, HASENMILLER,

LEIBSKER & MOORE, LLC

 

Howard Miskey, Esquire                 For Defendant

 

 

OPINION BY CHARLES, J., August 6, 2013

 

If a lawsuit is worth bringing, then it should be worth pursuing in accordance with the rules and deadlines established by the Court.  In this case, Plaintiff Portfolio Recovery Associates (hereafter “PLAINTIFF”) initiated a lawsuit to recover the allegedly unpaid balance of a credit card debt.  Since the lawsuit was filed, PLAINTIFF’s counsel has consistently ignored deadlines and directives of this Court.  At this point, we have been forced to conclude that PLAINTIFF does not care enough about its lawsuit to pursue it with even minimal diligence.  Because of this, we respond:  “Because PLAINTIFF does not care enough to properly pursue its lawsuit, we will not care enough to retain the suit on our dockets.”

On or about October 26, 2012, PLAINTIFF filed a Complaint against the Defendant Sarah F. Miller that contained only five paragraphs set forth in less than one full page.  The Complaint is contained in its entirety as follows:

Plaintiff PORTOFOLIO RECOVERY ASSOCIATES LLC, claims as follows:

1.       The Defendant(s), SANDRA F MILLER, is a resident of Lebanon County, Pennsylvania.

2.       The Defendant(s) obtained extensions of credit with HSBC BANK NEVADA N.A, (Original Credit Grantor) agreeing to make monthly payments as required by the terms of the account, for purchases charged to the account.

3.       The Defendant(s) did make purchases and charged same to the account but failed to make the monthly payments called for on that account.  There is a balance due and owing of $1393.42.

4.       Plaintiff is the successor in interest of said account having purchased the account in the regular course of business in good faith and value.

5.       Plaintiff declared Defendant(s) to be in default and demands payment of the balance.

WHEREFORE, the Plaintiff, PORTFOLIO RECOVERY ASSOCIATES LLC, prays for judgment in its favor against Defendant(s), SANDRA F MILLER in the amount of $1393.42, plus costs.

 

The only supporting documents attached to the Complaint were an Affidavit of Non-Military Service and a Verification submitted on behalf of an employee of PLAINTIFF authenticating the truth and accuracy of the Complaint.

In response, the Defendant submitted Preliminary Objections to the PLAINTIFF’s Complaint on December 7, 2012 alleging that PLAINTIFF had not set forth a valid cause of action for breach of contract nor a valid cause of action under a theory of account stated.  Defendant filed a brief in support of her argument on that same date.  This Court issued an Order dated December 18, 2013 setting January 18, 2013 as the deadline for opposing counsel’s brief.  PLAINTIFF’s counsel did not file their brief opposing the objections until January 23, 2013.  Despite the late nature of PLAINTIFF’s response, both parties’ briefs were reviewed and analyzed by this Court.

On January 25, 2013, this Court issued an Order finding the PLAINTIFF’s Complaint to be defective as currently drafted.  We noted that PLAINTIFF’s Complaint did not specifically set forth what theory of recovery was being pursued.  The Court then further determined that PLAINTIFF failed to attach a written contract to support a breach of contract theory and did not set forth the required allegations needed to support an account stated cause of action as outlined in Target National Bank v. Baratucci, C.P.Leb.Co. No. 2009-02289 (Tylwalk, P.J., March 18, 2010).  Therefore, we granted Defendant’s Preliminary Objections but did not dismiss the Complaint.  Instead, we decided to afford PLAINTIFF with 45 days to amend the Complaint, setting a deadline of March 11, 2013, and advised PLAINTIFF’s counsel to “specifically outline causes of action it wishes to pursue within separate counts.”  (Order 1/25/13 ¶ H).

We received no timely response from PLAINTIFF’s counsel.  Rather, on March 14, 2013, the Defendant filed a Motion to Dismiss with Prejudice for Failure to Comply with an Order of the Court.  This Court finally received PLAINTIFF’s untimely Amended Complaint on March 15, 2013.  Although not specifically outlined as requested by this Court, the document sets forth the required allegations needed to support an account stated cause of action.  However, PLAINTIFF’s counsel again appears to vaguely refer to a breach of contract claim based upon a written document but stipulates that the credit card agreement is “currently in the process of being obtained from archive and/or lost and unavailable at the present time.”

We filed an Order on March 15, 2013, issuing a Rule to the PLAINTIFF to Show Cause why the Complaint should not be dismissed and allotted PLAINTIFF with 14 days to respond.  PLAINTIFF never responded to this Court Order.  Defense counsel accordingly filed a Praecipe for Disposition on April 8, 2013.

Finally, on May 23, 2013, PLAINTIFF’s counsel addressed the untimeliness of its Amended Complaint via a “Brief in Contra to Defendant’s Motion to Dismiss.”  This Brief was truly brief; it contained only three relatively short paragraphs.  Within those paragraphs, PLAINTIFF appropriately argues that the Rules of Civil Procedure should be construed liberally and that no case should be dismissed “due to alleged technicalities.”  However, PLAINTIFF also relies upon the unintelligible argument that because PLAINTIFF’s counsel prepared the Amended Complaint on March 1, 2013, which was within the Court’s deadline, we should somehow excuse the fact that the Amended Complaint was not actually filed within the deadline imposed by the Court.[1]

In this case, PLAINTIFF failed to timely file a Brief opposing Defendant’s Preliminary Objections as required by this Court.  PLAINTIFF then failed to file a timely Amended Complaint even though we afforded it with more than one month to do so.  To compound these failures, PLAINTIFF then completely failed to respond to our Rule to Show Cause why the Complaint should not be dismissed with prejudice.  We do not view these failures as “alleged technicalities.”  Rather, we view PLAINTIFF’s flagrant and repeated disregard for the deadlines we established as evidence that PLAINTIFF does not really wish to pursue its cause of action against the Defendant.  Neither PLAINTIFF nor its attorneys can treat civil litigation cavalierly and not expect to suffer the consequences.  If it was worth the time and resources to file a lawsuit, then the lawsuit must be pursued correctly.

By virtue of the lack of due diligence referenced above, we will grant the Defendant’s Motion to Dismiss Plaintiff’s Complaint.  Should PLAINTIFF seek to re-file another Complaint, we would entertain a counterclaim by the Defendant for fees, costs, and expenses incurred in the defense of the instant matter.  An Order to accomplish our decision will be entered on today’s date.