J-S38031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DUNGAN HEIGHTS ASSOCIATES, LLP             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FOX CHASE SENIOR CENTER, INC.              :   No. 3231 EDA 2018


             Appeal from the Order Entered September 27, 2018
     In the Court of Common Pleas of Philadelphia County Civil Division at
                             No(s): 180502659


BEFORE:      OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                              FILED AUGUST 23, 2019

       This matter is one of two related appeals filed by Dungan Heights

Associates, LLP (Plaintiff) from orders of the Court of Common Pleas of

Philadelphia County sustaining preliminary objections in actions that Plaintiff

filed against tenants in a shopping center that it owns and dismissing the

actions without leave to amend.1 Because the court erred in failing to grant

Plaintiff leave to amend its complaint, we vacate in part and remand.




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1The other of these related appeals is Dungan Heights Associates, LLP v.
Colleen Sweeney and Thomas Remick, No. 3232 EDA 2018. While the
defendants, leases, and leased premises are different in the two appeals, the
preliminary objections and the courts’ orders and reasoning were the same in
both cases and the issues in the two appeals are identical.



*    Retired Senior Judge assigned to the Superior Court.
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       In April 2012, Plaintiff entered into a commercial lease with Fox Chase

Senior Center, Inc. (Defendant) under which Defendant leased Store Number

01 of Plaintiff’s 7770 Dungan Road, Philadelphia, Pennsylvania shopping

center. Plaintiff’s First Amended Complaint ¶¶3-4 & Ex. 1.2 That lease was

subsequently modified in January 2015 by a lease amendment signed by both

parties. Id. ¶5 & Ex. 2.

       In 2017, Plaintiff initiated a landlord-tenant action against Defendant in

Philadelphia County Municipal Court with respect to this lease. On April 24,

2018, Municipal Court entered a judgment in favor of Defendant. On May 23,

2018, Plaintiff filed a timely de novo appeal to the court of common pleas.

See Phila. Co. R.C.P. No. 1001(a)(1). In its complaint filed with the de novo

appeal, Plaintiff averred that Defendant had breached the lease by failing to

pay rent and other amounts due under the lease and sought damages and

possession of the leased premises. Defendant filed preliminary objections in

the nature of a motion for a more specific pleading asserting that Plaintiff’s

averments concerning both breach of the lease and damages were

insufficiently specific.      Defendant’s Preliminary Objections to Plaintiff’s

Complaint ¶¶11-14.




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2Because this is an appeal from an order sustaining preliminary objections,
we accept as true the facts alleged in Plaintiff’s complaint. Jones v. Board
of Directors of Valor Credit Union, 169 A.3d 632, 635 (Pa. Super. 2017).

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      In response to these preliminary objections, Plaintiff filed a First

Amended Complaint pleading additional detail concerning the monthly rent

under the lease, the date that Defendant entered into possession of the

premises, the date that it made demand on Defendant, and the total amounts

of its damages claims.        Plaintiff’s First Amended Complaint ¶¶6, 7, 9, 11.

Plaintiff’s First Amended Complaint, however, like its original complaint, made

no averments concerning the dates when Plaintiff claims that Defendant failed

to pay rent and other amounts owed under the lease.             Defendant filed

preliminary objections to the amended complaint consisting of both a motion

for a more specific pleading asserting that Plaintiff’s averments concerning

both breach of the lease and damages were insufficiently specific and a motion

to dismiss for failure to provide a sufficient verification.        Defendant’s

Preliminary Objections to Plaintiff’s Amended Complaint ¶¶14-24. Plaintiff in

response filed a substitute verification and an answer to the preliminary

objections contending that the averments of the First Amended Complaint

were sufficiently specific.

      On September 27, 2018, the court of common pleas sustained

Defendant’s preliminary objections and dismissed Plaintiff’s First Amended

Complaint without leave to amend. Plaintiff timely moved for reconsideration

and specifically requested in that motion that the court of common pleas grant

it leave to file a second amended complaint to cure the insufficient specificity

alleged by Defendant. Plaintiff’s Motion for Reconsideration ¶¶16-19. The


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court denied the motion for reconsideration on October 23, 2018 and Plaintiff

timely filed the instant appeal from the September 27, 2018 dismissal order

on October 25, 2018. In its Pa.R.C.P. 1925(a) opinion, the court of common

pleas stated that it sustained Defendant’s preliminary objections on the

ground that Plaintiff’s First Amended Complaint was insufficiently specific

because it contained no averments as to when Defendant failed to pay rent

and make other required payments under the lease and no averments as to

the amounts of the payments that Defendant failed to make.          Trial Court

Opinion at 4-5.

      Plaintiff raises the following two issues in this appeal:

      1. Did the Court of Common Pleas err when it sustained the
         Preliminary Objections, because the First Amended Complaint
         was sufficiently specific to allow Defendants to prepare a
         defense?

      2. Did the Court of Common Pleas err when it dismissed the First
         Amended Complaint and failed to grant Plaintiff leave to amend
         the pleading to cure the purported deficiency, contrary to its
         duty to liberally allow amendment of the pleadings?

Appellant’s Brief at 2. We conclude that the court of common pleas did not

err in sustaining Defendant’s preliminary objections, but that it committed a

reversible abuse of discretion in dismissing Plaintiff’s First Amended Complaint

without granting Plaintiff leave to amend.

      In reviewing an order dismissing a plaintiff’s complaint on preliminary

objections we apply the same standard as the court below. Discover Bank

v. Stucka, 33 A.3d 82, 86 (Pa. Super. 2011). The sole preliminary objection


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on which the court of common pleas based its dismissal was Defendant’s

objection pursuant to Pa.R.C.P. 1028(a)(3) that the averments of Plaintiff’s

First Amended Complaint were insufficiently specific. To determine whether

the court properly sustained a preliminary objection under Rule 1028(a)(3),

this Court must examine the averments in the complaint, together with the

documents and exhibits attached thereto, in order to evaluate the sufficiency

of the facts averred. Rambo v. Greene, 906 A.2d 1232, 1235 (Pa. Super.

2006).

      The test for whether a complaint is sufficiently specific is whether its

averments are sufficiently clear and set forth sufficient facts to enable the

defendant to prepare its defense. Commonwealth by Shapiro v. Golden

Gate National Senior Care LLC, 194 A.3d 1010, 1030 (Pa. 2018); Rambo,

906 A.2d at 1236; Unified Sportsmen of Pennsylvania v. Pennsylvania

Game Commission, 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008). “A complaint

‘must apprise the defendant of the nature and extent of the plaintiff’s claim

so that the defendant has notice of what the plaintiff intends to prove at trial

and may prepare to meet such proof with his own evidence.’” Discover Bank,

33 A.3d at 86-87 (quoting Weiss v. Equibank, 460 A.2d 271 (Pa. Super.

1983)). A preliminary objection of insufficient specificity is properly sustained

where the failure of a complaint to aver when the defendant’s acts occurred

impairs the defendant’s ability to identify the conduct on which the plaintiff

bases its claims or the defendant’s ability to determine what defenses it has.


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Pa.R.C.P. 1019(f) (“[a]verments of time, place and items of special damage

shall be specifically stated”); Stilp v. Commonwealth, 910 A.2d 775, 786-

87 (Pa. Cmwlth. 2006) (en banc), aff'd, 974 A.2d 491 (Pa. 2009).

      Plaintiff’s First Amended Complaint avers facts sufficient to state a cause

of action and advise Defendant of the general nature of the claim against it.

Plaintiff pled the lease on which it bases its claims, attached copies of the

lease and amendment of the lease, and averred that Defendant had failed to

pay rent and other amounts under the lease despite demand. Plaintiff’s First

Amended Complaint ¶¶3-9, 14, 18 & Exs. 1-3. The First Amended Complaint,

however, is devoid of any allegations as to when Defendant failed to pay rent

and other amounts due under the lease and avers only total amounts owed in

2016 and 2018, after the lease had been in effect for a number of years. Id.

¶¶9, 11 & Ex. 3. Moreover, the First Amended Complaint does not attach any

statement of Defendant’s payments or plead any other information from which

the Defendant could ascertain what payments Plaintiff alleges that it failed to

make. Compare Discover Bank, 33 A.3d at 87 (complaint was sufficiently

specific where it attached account summaries showing defendants’ payment

history). Given the period of years that the lease was in effect, the mere

averments that Defendant at unidentified times failed to make payments

under the lease is insufficient to give Defendant adequate notice of what

Plaintiff alleges against it so as to enable Defendant to prepare its defense.




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The court of common pleas therefore properly sustained Defendant’s

preliminary objections to Plaintiff’s First Amended Complaint.

      The court, however, erred in dismissing the action without granting

Plaintiff leave to file a second amended complaint. While leave to amend a

complaint is a matter within a trial court’s discretion, it is a reversible abuse

of that discretion to dismiss a complaint on preliminary objections without

leave to amend where there is a reasonable possibility that the plaintiff could

cure the defect in the complaint by amendment. Hill v. Ofalt, 85 A.3d 540,

557-58 (Pa. Super. 2014) (vacating dismissal of complaint for failure to grant

plaintiff leave to file amended complaint); Lovelace v. Pennsylvania

Property & Casualty Insurance Guaranty Association, 874 A.2d 661, 666

(Pa. Super. 2005) (same); Hoza v. Hoza, 448 A.2d 100, 103-04 (Pa. Super.

1982) (same).    Here, it was evident that the defect in the First Amended

Complaint, lack of specificity, was readily curable by an amendment adding

averments concerning the dates of Defendant’s failure to make payments in

accordance with the lease and the amounts that Defendant failed to pay at

those times. Indeed, Defendant conceded in its preliminary objections that

Plaintiff could easily make the necessary averments to make its complaint

sufficiently specific. Defendant’s Preliminary Objections to Plaintiff’s Amended

Complaint ¶17 (asserting that “Plaintiff would know this information, and

averring it would be relatively simple and expeditious”).




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       Defendant argues that the dismissal without leave to amend can be

affirmed because Plaintiff had already amended the complaint once in

response to Defendant’s preliminary objections. This argument is without

merit. While a court need not grant endless opportunities for amendment

where a plaintiff has already filed multiple insufficient complaints and failed to

cure defects in its complaint following court orders sustaining preliminary

objections and granting leave to amend,3 that is not the case here. The court’s

order dismissing the First Amended Complaint without leave to amend was

the first and only court order finding that Plaintiff’s pleading was insufficient.

The fact that Plaintiff did not correct a defect in response to Defendant’s

preliminary objections before the court made a ruling does not show that

Plaintiff is unable or unwilling to sufficiently plead its claims against Defendant

or that amendment would be futile. Hoza, 448 A.2d at 103.

       Defendant also argues that under Werner v. Zazyczny, 681 A.2d 1331

(Pa. 1996), leave to amend was not required because Plaintiff did not request

leave to amend in its response to the preliminary objections to the First

Amended Complaint. This argument likewise fails. In Werner, our Supreme

Court held that the court was not required to sua sponte grant leave to amend



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3 See, e.g., Mace v. Senior Adult Activities Center of Montgomery
County, 423 A.2d 390, 390-91 (Pa. Super. 1980) (en banc) (court would not
be required to allow amendment where plaintiff had already filed five
complaints, at least one of which was filed after the court had ruled the prior
complaint insufficient).

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where the preliminary objections were granted on a legal issue that did not

appear curable by amendment and the party who brought the action “never

requested that the [c]ourt allow him leave to amend.” Id. at 1338. Neither

of those conditions is present here.       The defect on which Defendant’s

preliminary objections were based was a pleading issue that was patently

curable by amendment, not a legal defect. Moreover, Plaintiff made a clear

request that the court grant it leave to amend while the court had jurisdiction

of this matter and could have corrected its error and eliminated the need for

this appeal.    Plaintiff’s Motion for Reconsideration ¶¶16-19 & Supporting

Memorandum of Law at 3-4. The fact that this request for leave to amend

was in a motion for reconsideration does not negate its sufficiency to make

clear to the court that Plaintiff sought to cure the defects in its pleading by

amendment. See Hill, 85 A.3d at 546-47, 557-58 (vacating dismissal without

leave to file amended complaint although request that the court grant leave

to amend was first made in motion for reconsideration).

      For the foregoing reasons, we affirm the court of common pleas’ order

insofar as it sustained Defendant’s preliminary objections, but vacate the

order insofar as it dismissed Plaintiff’s First Amended Complaint without leave

to amend.

      Order affirmed in part and vacated in part. Case remanded. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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