Deibler v. Thrift Drug Co.

34 Pa. D. & C.2d 209, 1964 Pa. Dist. & Cnty. Dec. LEXIS 99
CourtPennsylvania Court of Common Pleas, Lebanon County
DecidedSeptember 3, 1964
Docketno. 328
StatusPublished

This text of 34 Pa. D. & C.2d 209 (Deibler v. Thrift Drug Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lebanon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deibler v. Thrift Drug Co., 34 Pa. D. & C.2d 209, 1964 Pa. Dist. & Cnty. Dec. LEXIS 99 (Pa. Super. Ct. 1964).

Opinion

Gates, P. J.

On July 15, 1963, plaintiffs filed a complaint in trespass against defendants. The gist of the complaint is that three boys1 were at defendant Thrift Drug Company’s place of business in a shopping center in Palmyra, Lebanon County, Pa., when they were accosted and accused of shoplifting by defendant William H. Long. From the complaint, it would appear that defendant Carl S. Farver stated to defendant Donald E. Moretz that the minor plaintiffs had stolen a tube of lipstick in the W. T. Grant Store, which was also located in the Palmyra Shopping Center. In turn, defendant Donald E. Moretz telephoned defendant William H. Long, agent, servant or employe of defendant Thrift Drug Company, to the [211]*211effect that the minor plaintiffs had stolen items from the W. T. Grant Store. Defendant William H. Long, observing the minor plaintiffs in the Thrift Drug Company, allegedly assaulted the minor plaintiffs by making certain gestures and grabbing the minor plaintiff Robert Deibler, Jr., by the collar, thus committing a battery. He further searched the person of the minor plaintiffs, falsely imprisoned them and falsely accused them of larceny, theft or shoplifting in the presence of a number of people.

To plaintiffs’ complaint, defendants filed preliminary objections. All of the preliminary objections of the various defendants are substantially identical.

This is a complaint by three plaintiffs against four defendants. In drafting the complaint, plaintiffs set up various counts, wherein the individual plaintiffs and the individual defendants are described as the parties. Introductory paragraphs in each count incorporate prior pertinent paragraphs by reference.2 The incorporating paragraphs are unnumbered. This is the basis for defendants’ first preliminary objection.

While it is true that Pennsylvania Rule of Civil Procedure 1022 does require that every pleading be divided into paragraphs numbered consecutively, we are of the opinion that this rule has no application to introductory paragraphs. This rule was similar to the rule set forth in the prior Practice Act, and the requirement is important to defendant, for he is required to either admit or deny specifically the allegations of the complaint and do so by reference to the numbered paragraphs of plaintiffs’ complaint. Where, as here, the introductory paragraphs require no answer, the failure to number them is not sufficient cause to either require plaintiffs to amend or to strike the complaint. [212]*212The preliminary objections of defendants on this ground will be refused.

Another reason submitted in support of the preliminary objections of defendants in the nature of a motion to strike off the complaint is that the verifications to plaintiffs’ complaint fail to conform to the requirements of Pa. R. C. P. 1024(a). The rule is as follows:

“Every pleading containing averments of fact not appearing of record in the action or containing denials shall be verified on oath or affirmation that the aver-ments or denials are true upon the affiant’s personal knowledge or information and belief. The affiant need not aver the source of his information or expectation of ability to prove the averments or denials at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder.”

If we understand defendants’ contention correctly, they submit that the last sentence of the rule requires the affiant to set forth in the verification which facts are of his personal knowledge and which facts are verified upon information and belief. We do not write such a sweeping requirement into the sentence. It is our view rather that this sentence clarifies a third possible alternative form of verification. An affiant could swear that all the facts are true on his personal knowledge. He could also swear that all the facts are true based on information and belief but not of his own personal knowledge. The third alternative would permit an affiant in his verification to aver that part of the facts are true, based upon his own personal knowledge and other parts are based upon his information and belief. We do not believe, however, that the drafters of this rule intended that the affiant insert in the verification those facts which are based upon the affiant’s own knowledge and those facts which are based upon in[213]*213formation and belief. Such an interpretation would have the tendency of requiring a plaintiff to restate the substance of the complaint again in the verification. This, of course, would be needlessly repetitious and unnecessary. If the means of proof are important to a defendant’s case, or if this information is required prior to his preparing an answer, resort may be had by him to the rules of discovery. We see no real merit to this contention, and the preliminary objections based upon this ground will be refused.

Defendants also preliminarily object in the nature of a. motion to strike off the complaint on the ground that this complaint does not conform to the requirements of Pa. R. C. P. 1020 (a) in that it does not separate into counts different causes of action in trespass. We have found conflicting lower court authority on this proposition. Judge Sweney, of the Common Pleas Court of Delaware County, in Porter v. Arnold, 63 D. & C. 109, takes the position that this rule applies only in assumpsit cases and does not, by virtue of Rule 1041, become incorporated into the rules relating to actions in trespass. Judge Fred Davis, of Monroe County, in Fetherman v. Citizens Gas Company, 7 D. & C. 2d 773, held that the rule does apply in trespass cases. We have the highest regard for Judge Sweney’s opinions and equal regard for those of Judge Davis. However, this is not a matter of judicial partisanship, and we must necessarily adopt one view or the other. Consequently, we will enter ourselves on Judge Davis’ team. Not alone for the reason that we are of the opinion that Pa. R. C. P. 1041 does incorporate Rule 1020(a) in the rules governing pleadings in trespass cases, but for what we regard to be a very realistic and basic consideration. It is customary for juries to return a verdict as to each count as set forth in plaintiffs’ complaint. This, of course, is absolutely necessary where there are, as here, many counts, three plaintiffs [214]*214and four defendants, for some might be liable while others not. A general verdict in a case such as this, simply finding for plaintiff and against defendants in a stated amount, would be unacceptable as well as un-reviewable. In the instant complaint, there are 12 counts, each count properly headed as one of the plaintiffs v. one of the defendants. However, and, for example, the first count in paragraph 11 purports to state a case for damages for simple assault; paragraph 14 states a case of assault and battery; paragraphs 16, 27 and 28 purport to state a case for damages as a result of false imprisonment; paragraphs 20 through 24 purport to state a case in defamation; finally, paragraphs 17, 25 and 26 purport to state a case for damages as a result of defendants’ invasion of plaintiffs’ right of privacy. Immediately following paragraph 28 of the first count, plaintiff demands damages both generally and exemplarily. If the jury were to return a verdict as to count 1 in favor of plaintiff and against defendant in a stated sum of money, neither we nor an appellate court could properly review the jury’s action.

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Cite This Page — Counsel Stack

Bluebook (online)
34 Pa. D. & C.2d 209, 1964 Pa. Dist. & Cnty. Dec. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deibler-v-thrift-drug-co-pactcompllebano-1964.