Edel v. Callen

30 Pa. D. & C.5th 540
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMay 31, 2013
DocketNo. 10067-2012
StatusPublished

This text of 30 Pa. D. & C.5th 540 (Edel v. Callen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edel v. Callen, 30 Pa. D. & C.5th 540 (Pa. Super. Ct. 2013).

Opinion

COX, J.,

— Before the court for disposition are the preliminary objections To plaintiff’s amended complaint filed on behalf of the defendant Ted Callen, individually and doing business as Two Fat Guys And An Oven, which argue the following:

I. The plaintiff’s amended complaint does not conform to Pa.R.C.P. No. 1024(b) as it asserts inconsistent causes of action in counts I, II, III and IV without attaching the proper verification;
II. Count II of the plaintiff’s amended complaint lacks [542]*542specificity and is legally insufficient as the plaintiff has failed to specify the alleged breach by the defendant or any type of actual damages;
III. Count III of the plaintiff’s amended complaint is legally insufficient as it fails to set forth that the defendant made a material misrepresentation;
IV. Count IV of the plaintiff’s amended complaint is legally insufficient as the plaintiff has failed to aver that the defendant deliberately deprived the plaintiff of his personal property because that claim was based upon an alleged claim for withholding future proceeds from the purported partnership; and
V. Count V of the plaintiff’s amended complaint lacks specificity and is legally insufficient as it asserts a claim for unjust enrichment but fails to aver what effort, time, skills and experience the plaintiff performed for the benefit of the defendant.

The facts as averred in the plaintiff’s amended complaint are as follows: The defendant Ted Callen, individually and doing business as Two Fat Guys And An Oven, and the plaintiff Phillip Edel entered into an oral agreement to open and operate a bakery known as Two Fat Guys And An Oven. The alleged oral agreement set forth that the plaintiff would work in and manage the bakery while the defendant would provide the initial capital. The plaintiff also asserts that the agreement provided that he and the defendant would split the proceeds of the partnership after the defendant was compensated for his initial investment. The plaintiff and the defendant opened [543]*543their bakery at 811 Moravia Street, New Castle, Lawrence County, Pennsylvania in May of 2011. However, the landlord increased the rent at that facility in July of 2011 and they relocated to another facility at 839 Moravia Street, New Castle, Lawrence County, Pennsylvania. They opened for business as Two Fat Guys And An Oven on October 1, 2011. The plaintiff worked for the bakery approximately 587 and one half hours from July 31, 2011, through October 7, 2011. According to the plaintiff’s amended complaint, on October 8, 2011, the defendant prevented the plaintiff from entering the bakery and sharing the proceeds of the business. After that date, the defendant has refused to allow the plaintiff to access partnership property or participate in partnership affairs. Moreover, the plaintiff alleges that the defendant refuses to pay the plaintiff’s share of the partnership proceeds.

As a result, the plaintiff filed suit on August 22, 2012, asserting claims for dissolution of partnership, breach of partnership agreement, fraud, conversion, breach of oral employment agreement and unjust enrichment. On September 11, 2012, the defendant filed preliminary objections. In response, the plaintiff filed an amended complaint. The defendant has now filed preliminary objections to the amended complaint.

First, the defendant claims the plaintiff’s amended complaint does not conform to Pa.R.C.P. No. 1024(b) as it asserts inconsistent causes of action in counts I, II, III and V without attaching the proper verification.

Pa.R.C.P. No. 1024(a) and (b) state:

[544]*544(a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder.
(b) If a pleading contains averments which are inconsistent in fact, the verification shall state that the signer has been unable after reasonable investigation to ascertain which of the inconsistent averments, specifying them, are true but that the signer has knowledge or information sufficient to form a belief that one of them is true...

It appears that a party seeking to recover the quantum meruit value of services or products rendered to another party and to recover for breach of contract must attach a verification to the complaint that conforms with Pa.R.C.P. No. 1024(b). See La Rosee v. La Rosee, 86 Pa. D. & C. 245 (Pa. Com. PL Bucks 1954); Bowers v. Bon Ton Foods, Inc., 58 Pa. D. & C. 2d 372 (Pa. Com. Pl. York 1972). In La Rosee, the court held that a claim for quantum meruit for the cost of supplies utilized in the construction of a house and labor and a claim for breach of contract were inconsistent requiring the plaintiff to verify the complaint using the form prescribed in Pa.R.C.P. No. 1024(b). La Rosee, 86 Pa. D. & C. at 247. “A cause of action for unjust [545]*545enrichment may arise only when a transaction of the parties not otherwise governed by an express contract confers a benefit on the defendant to the plaintiff’s detriment without any corresponding exchange of value.” Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super. 2004) (citing Temple Univ. Hosp. v. Healthcare Mgmt., 832 A.2d 501, 507 (Pa. Super. 2003); Mitchell v. Moore, 729 A.2d 1200, 1203-1204 (Pa. Super. 1999)). In addition, it has been determined that claims of unjust enrichment and breach of contract are inconsistent for the purposes of alternative pleading and must be pleaded in separate counts. Lugo v. Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009).

In the current matter, the plaintiff has asserted claims for dissolution of partnership, breach Of partnership agreement, and fraud in counts I through III. However, in count V, the plaintiff pleaded a claim for unj ust enrichment. It is apparent that counts I through III are based upon an express agreement between the plaintiff and the defendant. Conversely, count V is based upon the value of services he provided to the business, not on any alleged breach of contract. Hence, the claim for unjust enrichment is similar to a claim in quantum meruit as the plaintiff is attempting to recover for the fair market value of his services. As such, count V is inconsistent with counts I through III and the plaintiff is required to utilize the verification set forth in Pa.R.C.P. No. 1024(b). Therefore, the defendant’s first preliminary objection is sustained and the plaintiff is granted leave to amend his amended complaint to include a verification in accordance with Pa.R.C.P. No. 1024(b).

Next, the defendant contends that count II of the [546]

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Cite This Page — Counsel Stack

Bluebook (online)
30 Pa. D. & C.5th 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edel-v-callen-pactcompllawren-2013.