US Bank National Assoc. ND v. Seeley

21 Pa. D. & C.5th 558, 2011 Pa. Dist. & Cnty. Dec. LEXIS 346
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedJanuary 26, 2011
Docketno. 9562 CIVIL 2010
StatusPublished

This text of 21 Pa. D. & C.5th 558 (US Bank National Assoc. ND v. Seeley) 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
US Bank National Assoc. ND v. Seeley, 21 Pa. D. & C.5th 558, 2011 Pa. Dist. & Cnty. Dec. LEXIS 346 (Pa. Super. Ct. 2011).

Opinion

MILLER, J.,

US Bank (“plaintiff*) filed a complaint on October 4,2010, alleging it furnished consumer credit to Doane B. Seeley (“Seeley”) by means of a credit card. Plaintiff alleged it kept accurate running records of all debits and credits to this account and mailed monthly statements to Seeley. Additionally, it asserted that Seeley made payments for many months on account of the billing statement or retained the statement without payment. Plaintiff claims relief on an account stated theory in the amount of $7,601.41.

Seeley, acting pro se, filed preliminary objections to plaintiff’s complaint on November 9, 2010. He argues that plaintiff’s complaint fails to conform to law or rule of court. He cites several deficiencies in his preliminary objections.

Pennsylvania Rule of Civil Procedure 1028(a)(2) permits a party to file preliminary objections for “failure of a pleading to conform to law or rule of court or inclusion of scandalous and impertinent matter.” In considering preliminary objections, “all well-pleaded and material [560]*560facts averred in the complaint, as well as all reasonable inferences deductible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). However, we need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

First, Seeley argues that plaintiff has presented no itemized account showing all dates of charges, fees, credits and other charges pursuant to Pa.R.C.P. 1019(f). Rule 1019(1) states, “[a]verments of time, place and items of special damages shall be specifically stated.” This is an incorrect basis for objection to the damages requested in plaintiff’s complaint, which are general damages for monies owed under a credit card agreement. Pa.R.C.P. 1019(f) pertains to special damages which are defined as “[t]hose which are the actual, but not the necessary, result of the injury complained of...which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury.” Black’s Law Dictionary, 6th ed. (West’s 1990). However, general damages are “damages that the law presumes follow from the type of wrong complained of.” Black’s Law Dictionary, 7th ed. (West’s 1999). Since plaintiff alleges damages which follow the type complained of, that being an account stated theory from the use of a credit card, Pa. R.C.P. 1019(f) is inapplicable. Seeley’s preliminary objection on this basis is overruled.

Second, Seeley argues that plaintiff’s complaint fails to conform to law or rule of court pursuant to Pa. R.C.P. 1019(i) because it contains no signed contract or [561]*561agreement bearing his signature.

An account stated is “an account in writing, examined and accepted by both parties, which acceptance need not be expressly so, but may be implied from the circumstances.” Robbins v. Weinstein, 17 A.2d 629, 634 (Pa. Super. 1941); Citibank, (SD), N.A. v. Ambrose, 13 Pa. D. & C. 5th 402 (Pa. Com. Pl. 2010). To properly plead the elements of an account stated requires that plaintiff must allege that there had been a running account, that a balance remains due, that the account has been rendered upon the defendant and that the defendant has assented to the account and that a copy of said account is attached to the complaint. Rush’s Service Center Inc. v. Genareo, 10 Pa. D. & C. 4th 445, 447 (Pa. Com. Pl. 1991) (citation omitted). The acceptance need not be express but it may be implied from the circumstances. Id. (citation omitted)

Here, Seeley objects to plaintiff’s complaint for failure to attach a signed contract or agreement to its complaint in violation of Pa.R.C.P. 1019(i). However, in this case, plaintiff does not plead an action based upon breach of contract; plaintiff’s action is premised on an account stated theory. Furthermore, plaintiff has pleaded the requisite elements of an account stated. In accepting all well-pleaded and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, as true we find: plaintiff averred it furnished consumer credit to Seeley by means of a credit card; plaintiff kept accurate accounting records; plaintiff mailed monthly statements to Seeley for the account, and, plaintiff attached a copy of the most recent statement to its complaint. Plaintiff alleges Seeley had made payments for many months on account of the billing statement or retained the statement [562]*562without payment. Moreover, Seeley assented to the account by failing to object and retaining the statement of account. Based upon this pleading, we find that plaintiff has satisfactorily pleaded a cause of action for an account stated theory of recovery. Seeley’s preliminary objection on this basis is overruled.

Next, Seeley complains that plaintiff’s complaint lacks material facts on which the cause of action is based pursuant to Pa.R.C.P. 1019(a). Seeley does not specify the basis of his objection on these grounds.

In Pennsylvania, a plaintiff must state “the material facts on which a cause of action is based...in a concise and summary form.” Pa.R.C.P. 1019(a). These facts must advise the defendant of the claim being asserted as well as the essential facts to support it. Estate of Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1996).

The Pennsylvania Rules of Civil Procedure provide, in pertinent part, “(a) material facts on which a cause of action or defense is based shall be stated in a concise and summary form [and]...(h) [wjhcn any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.” Pa.R.C.P. 1019 (a),(h). A thorough review of the complaint reveals plaintiff conformed to this rule. Plaintiff’s averments are set forth in a concise and summary form and state the essential elements of an account stated theory of recovery. We have broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement. United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189 [563]*563A.2d 253, 255 (1963). We find that plaintiff’s complaint contains material facts which are set forth in a concise and summary form in compliance with Rule 1019 (a). Any further details of the specific charges may be disclosed through the discovery process. Therefore, we will overrule Seeley’s preliminary objections in this regard.

Seeley also claims the verification attached to plaintiff’s complaint is insufficient because it does not set forth the source of Tamara Lockridge’s information as to the matters contained in the complaint. Pa.R.C.P. 1024 states, in pertinent part:

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Related

WURTH BY WURTH v. City of Philadelphia
584 A.2d 403 (Commonwealth Court of Pennsylvania, 1990)
Estate of Swift Ex Rel. Swift v. Northeastern Hospital of Philadelphia
690 A.2d 719 (Superior Court of Pennsylvania, 1997)
Robbins v. Weinstein
17 A.2d 629 (Superior Court of Pennsylvania, 1940)
Penn Title Insurance Co. v. Deshler
661 A.2d 481 (Commonwealth Court of Pennsylvania, 1995)
Atlantic Credit & Finance, Inc. v. Giuliana
829 A.2d 340 (Superior Court of Pennsylvania, 2003)
United Refrigerator Co. v. Applebaum
189 A.2d 253 (Supreme Court of Pennsylvania, 1963)
Rush's Service Center Inc. v. Genareo
10 Pa. D. & C.4th 445 (Lawrence County Court of Common Pleas, 1991)
Citibank (South Dakota) N.A. v. Ambrose
13 Pa. D. & C.5th 402 (Adams County Court of Common Pleas, 2010)

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Bluebook (online)
21 Pa. D. & C.5th 558, 2011 Pa. Dist. & Cnty. Dec. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-national-assoc-nd-v-seeley-pactcomplmonroe-2011.