Domiano v. Penn Security Bank

28 Pa. D. & C.5th 251
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedJanuary 29, 2013
DocketNo. 2160 CIVIL 2012
StatusPublished

This text of 28 Pa. D. & C.5th 251 (Domiano v. Penn Security Bank) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Domiano v. Penn Security Bank, 28 Pa. D. & C.5th 251 (Pa. Super. Ct. 2013).

Opinion

WILLIAMSON, J.,

Plaintiffs commenced this action by filing a complaint on April 23, 2012. Defendant filed preliminary objections to plaintiffs’ complaint on May 21, 2012, and a brief in support thereof on November 5,2012. Plaintiffs filed a brief in opposition to defendant’s preliminary objections on December 31, 2012. Defendant filed a reply brief on January 4, 2013. Oral argument was heard before the court on January 7, 2012. We are now ready to dispose of the preliminary objections.

Plaintiffs entered into a settlement agreement with defendant on May 21,20102 to re-acquire properties which were the subject of Federal Bankruptcy proceedings. The settlement agreement, among other things, states that:

Withm(60)daysfromthedateofanyrequiredBankruptcy Court approval of this agreement, the debtors shall [253]*253provide the Bank with a (“written commitment”) from a recognized lending institution agreeing to provide the debtors with the financing necessary to pay the bank the hereinafter defined Scranton property settlement amount. Provided the debtors timely provide the bank with the written commitment and should debtors pay the bank one hundred, forty five thousand (145,000.00) dollars, (“Scranton property settlement amount”) within (120) days from the date of this agreement, the bank agrees to a.) release the Scranton property from the first Pocono mortgage and the second Pocono mortgage; b.) discontinue the Lackawanna County foreclosure action and c.) return the consent to entry of judgment in the Lackawanna County mortgage foreclosure action and the deed to the debtors.

The settlement agreement goes on to state that:

If the debtors (a) fail to provide the bank with the written commitment within the time they are required to do so; or (b) fail to timely pay the bank the Scranton property settlement amount within the time they are required to do so, the debtors shall immediately be in default hereunder.

(Settlement agreement. Compl. exhibit A. pgs. 4-5.) (emphasis added)

The plaintiffs herein were the “debtors” referenced in the settlement agreement. In their complaint, plaintiffs allege that agents for the defendant made representations that the property would be conveyed to the plaintiffs upon receipt of the written commitment of financing. Plaintiffs allege that [254]*254they complied will all material aspects of the aettlement agreement and delivered a mortgage commitment letter to the defendant, (See Compl. Exhibit C.) and now the defendant has arbitrarily refused to comply with the terms of the settlement agreement. As plead, plaintiffs’ complaint does not support a cause of action.

The defendant’s preliminary objections are pled generally as Pennsylvania Rule of Civil Procedure 1028 objections. Defendant’s first preliminary objection is that plaintiffs’ allegation of contract or quasi contract with unsigned supporting documents in count I and count II do not and could not support a cause of action. Defendant’s second preliminary objection is that the complaint must be dismissed, since any document relied upon by the parties in support of their contract litigation must be attached and fully supported by executed documents.

DISCUSSION

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

I. Demurrer for Insufficiency of Pleading Pursuant to Pa.R.C.P. 1028(a)(4)

Defendant’s preliminary objections are couched in the [255]*255language of a demurrer for insufficiency of pleading. A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 672 A.2d 1359 (Pa. Super. 1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 650 A.2d 895 (Pa. Super. 1994). Sometimes, the standard of review for a demurrer is whether or not the facts alleged establish a prima facie case. Weber v. Bell Telephone Company, 203 A.2d 554, 556 (Pa. 1964).

Simply put, defendant asserts that the complaint does not set forth a cause of action because the plaintiffs attach unsigned supporting documents. In particular, the defendant points to the unsigned letter from Penn Business Credit, LLC to plaintiffs. (Compl. exhibit C). In support of this argument, defendant cites Target National Bank v. Kilbride, 10 Pa. D&C. 5th 489 (Centre County 2010). In Target National Bank, the Centre County Court of Common Pleas granted defendant’s preliminary objection pursuant to Pa. R.C.P. 1019 (b) and 1019 (i) because the plaintiffs did not attach the signed writing to its pleading, nor did the plaintiffs set forth a reason for failing to attach the writing. Pa. R.C.P. 1019(i) states:

(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.

[256]*256Pa.R.C.P. 1019(i)

In this case, plaintiffs ’ claim isbaseduponthe defendant’s alleged breach of the settlement agreement. The settlement agreement is signed and attached to the complaint. There is no 1019(i) violation in regards to the settlement agreement. Defendant argues that Target National Bank and similar cases should be interpreted that any writing attached to the complaint, that advances the cause of action therein must be signed. We agree. Plaintiffs’ complaint is based upon two writings; the settlement agreement and the Penn Business Credit, LLC commitment letter. Here, plaintiffs attached the Penn Business Credit, LLC letter unsigned, and did not state the reason that it was unsigned. In their brief, plaintiffs argues that defendant is in possession of the signed letter. If that were true, it is unclear how the plaintiffs do not have a copy of the signed letter to attach. Therefore, defendant’s second preliminaiy objection is granted for the above stated reasons. This however, is not the end of our discussion, because it is clear on the face of the complaint that the law will not provide the plaintiffs for the recovery sought.

The settlement agreement, attached to the plaintiffs’ complaint as Exhibit A, is signed by both parties. The settlement agreement lists the terms of the agreement between both parties in clear terms. Plaintiffs had 60 days from May 21, 2010 to provide the defendant with a written commitment letter.

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Related

WURTH BY WURTH v. City of Philadelphia
584 A.2d 403 (Commonwealth Court of Pennsylvania, 1990)
Mellon Bank, N.A. v. Fabinyi
650 A.2d 895 (Superior Court of Pennsylvania, 1994)
Morgan v. McPhail
672 A.2d 1359 (Superior Court of Pennsylvania, 1996)
Penn Title Insurance Co. v. Deshler
661 A.2d 481 (Commonwealth Court of Pennsylvania, 1995)
Weber v. Bell Telephone Co.
203 A.2d 554 (Supreme Court of Pennsylvania, 1964)

Cite This Page — Counsel Stack

Bluebook (online)
28 Pa. D. & C.5th 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domiano-v-penn-security-bank-pactcomplmonroe-2013.