CHASE BANK USA, N.A., ) NO. C-48-CV-2010-8328 Plaintiff, ) v. ) TREVOR ...

[Pages:7]IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW

CHASE BANK USA, N.A., Plaintiff,

v. TREVOR JONES,

Defendant.

) NO. C-48-CV-2010-8328 ) ) ) ) ) ) ) )

ORDER OF COURT AND NOW, this 20th day of January, 2011, upon due consideration of Defendant's Preliminary Objections to Amended Complaint, Brief in Support thereof, Plaintiff's Brief in Opposition, after notice and opportunity for argument, IT IS HEREBY ORDERED that Defendant's preliminary objections to Plaintiff's Amended Complaint are OVERRULED. Defendant is directed to file an answer within twenty (20) days after receiving notice of this order.

STATEMENT OF REASONS Factual and Procedural History Plaintiff, Chase Bank USA, N.A., filed a Complaint on August 4, 2010, seeking to collect an allegedly unpaid credit card debt owed by Defendant, Trevor Jones. Defendant filed Preliminary Objections to the Complaint on August 27. This Court granted Defendant's Preliminary Objections to the Complaint on September 28, 2010, after Plaintiff failed to appear at the call of the Argument List; however, the order was not filed until October 26, 2010. Plaintiff filed an Amended Complaint on November 17, 2010.

The caption of the Amended Complaint identifies the Plaintiff as Chase Bank USA, N.A. and the Defendant as Trevor Jones. The six-paragraph Amended Complaint alleges: Defendant obtained a credit card from Plaintiff, Defendant agreed to the terms and conditions of the credit card by using the card to make purchases and a balance of $3,084.33 remains unpaid on the account after the last known payment was made on January 29, 2009. Attached to the Amended Complaint is a "First USA Internet Application" dated 8/10/2007 identifying Trevor Jones as an applicant for a credit card, copies of monthly account statements dated October 8, 2008 through September 5, 2009, and a "Card member Agreement" with a copyright date of 2006.

Defendant filed Preliminary Objections to the Amended Complaint on December 1, 2010, alleging that Plaintiff lacked standing, Plaintiff failed to attach the required documents to allege a breach of contract action, that the Amended Complaint lacked specificity, and the Amended Complaint was untimely filed. Defendant's brief was also filed at this time. Plaintiff filed a Brief Opposing the Preliminary Objections on December 9, 2010. The matter was set for the January 4, 2011, Argument List, at which time both parties presented oral argument.

Legal Standard In ruling on preliminary objections in the nature of a demurrer, the trial court may consider no testimony or evidence outside of the complaint. Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. Ct. 1994). All well-pleaded, material, relevant facts, along with all reasonable inferences therefrom, must be taken as true; i.e., the court may not consider the factual merits of the claims. In re Adoption of S.P.T., 783 A.2d 779, 782 (Pa. Super. Ct. 2001). In order to grant a demurrer, it must be certain from the face of the complaint that the claims will

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not support recovery under any legal theory. Mellon Bank, supra at 899; Eckell v. Wilson, 597 A.2d 696, 697-98 (Pa. Super. Ct. 1991).

Preliminary objections, whose end result would be the dismissal of a cause of action, should be sustained only where "it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief." Bourke v. Kazaras, 746 A.2d 642, 643 (Pa. Super. Ct. 2000) (citation omitted). Moreover, it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit recovery. If there is any doubt, it should be resolved by the overruling of the demurrer. Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. Ct. 1999).

A preliminary objection due to lack of specificity is intended to ensure that an adverse party's right and ability to answer and defend will not be unduly impaired by a pleader's vagueness in stating the grounds of his or her suit. Local No. 163, Intern. Union of United Brewery Flour, Cereal, Soft Drink and Distillery Workers of America v. Watkins, 207 A.2d 776 (Pa. 1965); Stip v. Com., 910 A.2d 775 (Pa. Commw. Ct. 2006). The sole question for the court is "whether the pleading is sufficiently clear to enable the defendant to prepare his defense." Paz v. Com. Dep't of Corrections, 580 A.2d 452 (Pa. Commw. Ct. 1990). The preliminary objection will be denied if the complaint provides enough facts to allow the defendant to frame a proper answer and prepare a defense. Foster v. Peat Marwick Main & Co., 587 A.2d 382 (Pa. Commw. Ct. 1991), aff'd 767 A.2d 652 (Pa. 1996).

Discussion As we understand Defendant's argument, he has three objections to the Amended Complaint. First, Defendant argues Plaintiff failed to allege in the Amended Complaint that it

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had standing to pursue a civil action in Pennsylvania as a foreign corporation pursuant to 15 Pa. C.S. ? 4141(a). Defendant's second objection argues Plaintiff failed to attach sufficient documentation to support a breach of contract claim. The third objection raised two issues: i) the Amended Complaint lacked sufficient specificity to allow Defendant to prepare a proper defense, and ii) the Amended Complaint was not timely filed. 1. Plaintiff has standing to sue under the National Bank Act

Defendant claims the Plaintiff is a foreign corporation and cannot maintain an action without alleging it filed a certificate of authority pursuant to 15 Pa. C.S.A. ? 4141(a). Plaintiff identifies itself as a national banking association organized pursuant to the National Bank Act by using the initials "N.A." in its name. A national banking association has the capacity to sue and be sued in any jurisdiction in the United States. See 12 U.S.C.A. ? 24. The provisions of Chapter 41, including Pa. C.S.A. ? 4141(a), do not apply to national banking associations organized under the National Bank Act. See 15 Pa. C.S.A. ?4101(b)(1)(i). As a result, Plaintiff may maintain a lawsuit in Pennsylvania without a certificate authority because it is a national banking association. This preliminary objection is overruled. 2. Plaintiff attached sufficient documentation to maintain a breach of contract or

account stated action in accordance with Pa. R.C.P. 1019(i) Defendant argues that Plaintiff did not attach the necessary monthly statements from Defendant's credit card account to comply with Rule 1019(i). See Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). In order to maintain a breach of contract action against a credit card account holder, the plaintiff must submit with the pleadings: 1) a

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cardholder agreement, 2) a complete statement of account, and 3) evidence of ownership of the debt. Id. at 345.

The Amended Complaint states Defendant applied for a credit card from Plaintiff over the Internet. A print-out of the alleged Internet application is attached to the Amended Complaint as Exhibit A. In addition, Plaintiff attached a copy of a "Cardmember Agreement" that has a 2006 copyright date. This "Cardmember Agreement" apparently contains the terms of the contract Defendant allegedly agreed to by using the credit card. Finally, copies of all the credit card statements allegedly mailed to Plaintiff from the 10/8/08-11/5/08 statement to the 8/6/09-9/5/09 statement are attached to the Amended Complaint. We note that the 10/8/0811/5/08 statement indicates Plaintiff had a balance of $0 when the statement period began.

Plaintiff satisfied the first and third elements of Atlantic Credit and Finance by attaching the Internet application and "Cardmember Agreement." The Cardmember Agreement and Internet application are writings necessary for the Plaintiff to aver that Defendant obtained a credit card from Plaintiff under the terms discussed in the Cardmember Agreement. It is not necessary for Plaintiff to produce a signed writing because it is argued that the offer for this contract was the act of sending the credit card and acceptance was manifested by Defendant's use of the credit card. Additionally, Plaintiff alleged it issued the credit card to Defendant and owns Defendant's account. Because Plaintiff attached the Internet application and "Cardmember Agreement", it provided a sufficient writings to satisfy Rule 1019(i) and the first two elements of the Atlantic Credit and Finance test.

The second element that requires a plaintiff to provide a statement of account is intended to put the defendant on notice of how the plaintiff arrived at the amount demanded in the

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complaint. See Atlantic Credit and Finance, supra at 345 (plaintiff failed to comply with Rule 1019(i) by failing to attach writings that would show how it was entitled to a judgment for $17,496.27 when it purchased the debt for substantially less than $9,644.66). In this case, Plaintiff provided a statement showing an initial balance of $0 and then all subsequent statements until the 8/6/09-9/5/09 statement that indicates Defendant owes Plaintiff $3,084.33, the amount alleged in the Complaint. Rule 1019(i) only requires the pleader to attach a copy of the writing, "or the material part thereof," to support a claim based on that writing. Atlantic Credit and Finance does not require a plaintiff to attach every single statement ever mailed to the defendant in order to sustain a breach of contract action in a credit card case. Plaintiff attached writings that show how Defendant's account went from $0 to $3,084.33, which is the amount of the requested judgment in the Amended Complaint. This is sufficient to allow Defendant to prepare a defense to any charges he believes are inaccurate. By attaching the statements that show how Defendant accumulated the alleged debt beginning from a $0 balance, we find Plaintiff satisfactorily complied with Rule 1019(i) as interpreted by Atlantic Credit and Finance.

Therefore, we overrule Defendant's preliminary objection on this count. 3. Plaintiff's Amended Complaint is sufficiently specific and was timely filed

Defendant argues that because Plaintiff failed to comply with Atlantic Credit and Finance, the Amended Complaint lacked sufficient specificity to put Defendant on notice of Plaintiff's allegations. As discussed above, Plaintiff pleaded with sufficient specificity a cause of action for both breach of contract and account stated. There is no requirement that different causes of action be separately pleaded so long as the elements are all sufficiently pleaded to allow the opposing party to prepare a defense to each cause of action; the pleader is not even

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required to identify the legal theory underlying the complaint. Weiss v. Equibank, 460 A.2d 271, 274-5 (Pa. Super. Ct. 1983). In this case, Plaintiff sufficiently pleaded all the facts necessary to allow Defendant to prepare a defense to both claims.

Defendant also baldly asserts that the Amended Complaint was untimely filed. An amended pleading must be filed within twenty days after notice of the order granting preliminary objections or "within such other time as the court shall fix." Pa. R.C.P. No. 1028. The order granting Defendant's preliminary objections to the original Complaint was issued on September 28, 2010, but it was not filed until October 26, 2010. Plaintiff filed its Amended Complaint on November 17, 2010. Defendant failed to aver any facts to support his claim that Plaintiff failed to file the Amended Complaint in a timely manner after receiving notice of the September 28 court order. This matter cannot even be submitted to a finder of fact on this issue because Defendant failed to raise any facts that would create a genuine issue of material facts.

Therefore, we overrule Defendant's third preliminary objection. We overrule all of Defendant's preliminary objections to the Amended Complaint. Defendant is directed to file an answer within twenty days of notice of this order.

BY THE COURT:

____________________________________ STEPHEN G. BARATTA, J.

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