IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bitter Sweet Properties, LP; BSP Inc.; :

Somerset Enterprises Inc. d/b/a Future : Building of America; and Ricky A. :

Kennett, :

Appellant s :

:

v. :

:

The City of Farrell; Shenango Valley :

Economic Development Partnership :

Committee for and on Behalf of the : City of Farrell and also surrounding :

c ommunities in the Shenango Valley : Participating in the Shena ngo Valley :

Economic Development Partnsership; : No. 1640 C.D. 2016

a nd Stephen J. Mirizio, Esquire : S ubmitted: January 27, 2017

BEFORE: HONORABLE P. KEVIN BROBSON

, Judge

HONORABLE ANNE E. COVEY

, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE 1 FILED: October 20, 2017

Bitter Sweet Properties, LP

, BSP Inc., Somerset Enterprises Inc. d/b/a

Future Building of America, and Ricky A. Kennett ( Appellants ) appeal the June 27,

2016 Order of the Court of Common Pleas of Mercer County (trial court) which

1 Currently, there is a vacancy among the commissioned judges of this Court. Pursuant to

our opinion circulation rules, all commissioned judges voted on the opinion and a tie vote resulted.

Therefore, this opinion is filed pursuant to Section 256(b) of th e Internal Operating Procedures of

the Commonwealth Court, 210 Pa. Code § 69.256(b).2

granted the preliminary objections of the City of Farrell ( City )

, Shenango Valley

Economic Development Partnership Committee for and on behalf of the City of

Farrell and also surrounding com munities in the Sh e nango Valley participating in

the Shenango Valley Economic Development Partnerships ( EDP )

, and Stephen J.

Mirizio, Esquire ( Mirizio) ( Appellees) and dismissed Appellant s ’ complaint with

prejudice. Upon review, w e affirm in part and vaca te in part

.

Appellants entered into a transaction with the City and EDP for the

purchase of land and construction of a building by means of a construction loan

(Transaction). Two separate loan agreements were executed

– one between

Appellants and the Ci ty/EDP (City/EDP Loan) and another between Appellants and

Bridgewater Capital (Bridgewater Loan). The Transaction was negotiated and

ultimately closed in March 2014. Although the Transaction was memorialized in

written, integrated instruments, Appellants nevertheless contended that an oral

agreement existed among Appellants, the City and EDP, creating a joint venture.

Appellants alleged the oral joint venture agreement was breached by Appellees.

Specifically, Appellants alleged that time was of the esse nce under the oral joint

venture agreement and the due diligence period for closing the Transaction went on

for so long that it constituted a breach of fiduciary duties imposed by the joint

venture. This delay, Appellants contend, gave rise to a contract breach and a number

of ancillary tort claims, including alleged professional malpractice claims against

the City solicitor, Mirizio, whom Appellants claim was engaged as their counsel

.

Appellants filed a civil action with the trial court on May 12, 201 5.

(Reproduced Record (R.R.) at 6a. ) The complaint, which contained 280 separate

paragraphs, included eight counts alleging fraudulent inducement, breach of oral

contract, breach of fiduciary duty, intentional interference with contractual relations,3

int entional/negligent infliction of emotional distress, professional negligence and

negligence per se against Mirizio, and vicarious liability against the City and EDP

.

Id. at 8a

- 61a. Appellees filed preliminary objections. The tria l court sustained the

preliminary objections and dismissed the complaint, stating its “rambling narrative

and evidentiary averments fail[ed] to comply with the requirements of Pa.R.C.P. No.

1019, subsections (a), (b), (f), (h) and (i).” Id. at 167a.

A ppellants filed an amended complaint (First Amended Complaint) on

November 5, 2015

. (R.R. at 3 a .) The First Amended Complaint included 320

paragraphs, many of which contained subparagraphs. Id. at 175a

- 237a. Appellees

filed preliminary objections to th is First Amended Complaint, after which

Appellants filed a second amended complaint (Second Amended Complaint). Id. at

4a. The Second Amended Complaint

, filed January 7, 2016, contained 229

paragraphs and incorporated by reference 89 paragraphs from the First Amended

Complaint. Id. at 451a

- 499a. Preliminary objections were filed by Appellees to this

Second Amended Complaint. On June 27, 2016, t he trial court “granted” 2 the

p reliminary o bjections filed by Appellees and dismissed with prejudice the Secon d

Amended Complaint

, concluding it failed to conform to Rule 1019(a), Appellants

failed to plead or produce a contract of engagement for legal services with Mirizio,

failed to plead facts that evidence the creation of a joint venture relationship, and

fail ed to plead facts to support the remaining causes of action. (Appellants’ Brief,

Appendix A.) This appeal followed. 3

2 The trial court used the word “granted” rather than “sustained” in addressing the

preliminary objections. (Appellants’ Brief, Appendix A, at 1.)

3 Our review of an ord er sustaining preliminary objections is whether the law states with

certainty no recovery is possible under the facts alleged. Weaver v. Franklin County

, 918 A.2d

194 (Pa. Cmwlth. 2007). We accept as true all well

- pled allegations and material facts aver red in

the complaint, as well as inferences reasonably deduced therefrom. Id.4 Discussion

The issue before this Court is w hether the trial court committed an error

of law and/or abused its discretion by sustaining Appellees’ preliminary objections

pursuant to Pennsylvania Rule of Civil Procedure No. 1019(a) for pleading too many

facts and paragraphs, and dismissing Appellants ’ claims with prejudice.

Preliminary objections should only be granted in cases that are clear

and free from doubt. Gail v. Hammer

, 617 A.2d 23, 24 (Pa. Super. 1992). This

Court’s inquiry must be to ascertain whether the well

- pleaded facts in the complaint,

assumedly true, would, if shown, suffice to prove the c laims set forth by A ppellants.

Yania v. Bigan

, 155 A.2d 343 (Pa. 1959). Amendments to a complaint are liberally

permitted in order to allow full development of a party’s theories and averments,

however, amendments may be properly denied where it appears amendment is futile.

Weaver

, 918 A.2d at 203.

Pursuant to Rule 1019(a), the material facts on which a cause of action

or defense is based shall be stated in a concise and summary form. Pa.R.C.P. No.

1019(a). The purpose of Rule 1019(a) is to disclose the material facts sufficient to

enable the adverse party to prepare his or her case. General State Authority v. Sutter

Corp.

, 356 A.2d 377, 381 ( Pa. Cmwlth. 1976). A complaint must do more than

simply give the defendants fair notice of what the claims are and the grounds upon

which they rest. Id. Material facts are those essential to support the claim. Id.

Appellants argue the trial court abused its discretion in dismissing the

Second Amended Complaint with prejudice for pleading too many facts

, and cite

Commonweal th v. Percudani

, 844 A.2d 35 (Pa. Cmwlth. 2004) 4 as support for this

4 Following a Motion for Reconsideration filed by the Defendants in Percudani

, this Court

amended its order filed February 27, 2004

. See Commonwealth v. Percudani

, 851 A.2d 9 87 ( Pa.5

argument

. In Percudani

, this Court de termined a 278

- page complaint containing

1,957 paragraphs satisfied Rule 1019(a) because a paragraph

- by

- paragraph review

of the complaint allowed each defendant to identify those causes of action against it

and its alleged actions

. Id. at 4 9

. If one considers the 89 paragraphs incorporated

by reference from Appellants’ First Amended Complaint, with subparagraphs,

Appellants’ Second Amended Complaint contains 376 separate paragraphs

. While

the trial court recited the respective length of Appellants’ three complaints in its

opinion, the Second Amended Compla int did not fail because of its length

. Rather,

the trial court concluded Appellants’ pleadings failed to meet the requirements of

the rules of pleading. (Appellants’ Brief, Appendix A at 2.) Similarly, the issue for

this Court is not whether the number of paragraphs or pages tha t form Appellants’

Second Amended Complaint exceeds an acceptable number. T his Court is tasked

with ascertain ing whether the well

- pleaded facts within those 376 paragraphs, if true,

would suffice to prove the claims set forth by Appellants. Yania.

Count s 1

- 3

. Fraudulent Inducement, Breach

o f Oral Contract, and Breach of Fiduciary Duty

The elements of fraud in the inducement are as follows: 1) a

representation; 2) material to the transaction at hand; 3) made falsely, with

knowledge of its falsity or recklessness as to whether it is true or false; 4) with the

intent of misleading another into relying on it; 5) justifiable reliance on the

misrepresentation ; and 6) the resulting injury was proximately caused by the

Cmwlth. 2004). The amendment did not affect the Court’s prior determination that the

Commonwealth’s complaint satisfied the requirements of Pa.R.C.P. No. 1019(a).6

reliance. Eigen v. Textron Lycoming Re ciprocating Engine Division

, 874 A.2d 1179,

1185 (Pa. Super. 2005).

Appellants base their claim f or “ fraudulent inducement ”

on alleged mis representations made by a consultant for the City, Arnold Clebone

(Clebone) and the City Manager, Michael Ceci (Ce ci). These alleged

mis representations also form the basis for the claim of breach of oral contract

. The

oral contract

, it is averred, created the alleged joint venture. The viability of

Appellants’ third count for breach of fiduciary duty relies upon a finding that the

parties established a joint venture.

Appellants’ specific pleading of fraudulent inducement can be

summarized as follows : Appellees made misrepresentations which they did not

intend to honor, the misrepresentations were made to induce reliance, Appellants

justifiably relied on the misrepresentations, and they were harmed as a result. (R.R.

at 482a

- 485a.) While Appellants generally allege Ceci and Clebone were “at all

times pertinent hereto,” acting as agents, servants, employees, representatives, and

ostensible agents of the City, (R.R. at 454a.), no material facts have been pleaded

which suppor t the allegations with sufficient particular ity so as to allow justifiable

reliance on the part of Appellants.

Per Section 11.3

- 306 of the City’s Home Rule Charter, “councilmanic

authority shall be asserted by the councilmanic body only.” (R.R. at 605 a. ) 5 The

5 References to the City’s Home Rule Charter appear throughout Appellants’ Second

Amended Complaint

. (R.R. at 457a

- 459 a

, 461a, 497a

- 498a .) Appellants allege misrepresentations

by Ceci and Clebone were made in derogation of their obligations as set forth in the Home Rule

Charter. Id. These misrepresentations form the basis for Appell ants’ claims. Appellants failed to

attach a copy of the Home Rule Charter to the Second Amended Complaint. Mirizio

, however,

attached a copy of this document to the pr eliminary objections filed in response to the Second

Amended Complaint. (R.R. at 602a

- 631a.) Included with t hese preliminary objections was a

notice to plead. Id. at 575a. Where a complaint references the existence of a document to establish7

specific powers set forth for the City Manager provide h e may sign contracts, but he

lacks authority to otherwise bind the City. ( R.R. at 613a

- 614a

. ) “[I]t is a general

and fundamental principl e of law that persons contracting with a municipal

corporation must at their peril inquire into the power of the corp oration or its officers

to make the contract...” Pittsburgh Baseball, In c. v

. Stadium Authority of City of

Pittsburgh

, 630 A.2d 505, 509 (Pa. Cmwlth. 1993)

, quoting Pittsburgh Paving Co.

v. City of Pittsburgh

, 3 A.2d 905, 908 (Pa. 1938)

. As to Clebone, App ellants have

pleaded n o facts to support the averment that Clebone

, a contractor, had authority to

act on behalf of the City or EDP.

Even if this Court assumes as true the facts pleaded by Appellants

, 6

Cec i and Clebone still have no authority to bind the City or EDP or act on behalf of

either entity. We therefore cannot conclude Appellants have sufficiently pleaded the

material facts necessary to support a claim of fraud in the inducement.

The existence o f a joint venture

, Appellants argue, gives rise to the

second and third claims

. A joint venture is, generally, a special combination of two

or more persons, where, in some specific venture, a profit is jointly sought without

a claim but fails to include it as an exhibit, the court may consider such a document when attach ed

to preliminary objections. St. Peter’s Roman Catholic Parish v. Urban Redevelopment Authority

of Pittsburgh

, 146 A.2d 724 (Pa. 1958). See also Martin v. Department of Transportation

, 566

A.2d 969 (Pa. Cmwlth. 1989) (where plaintiff avers the existence of a written agreement and relies

upon it to establish his cause of action but fails to attach it to the complaint, the defendant may

properly annex that agreement without creating an impermissible speaking demurrer since the

agreement is a factual matter arising out of the complaint itself.)

6 Appellants’ factual averments include the City and EDP, by and through Ceci and

Clebone representing that the Transaction was a “win

- win” for all parties, that the real estate

purchased by Appellants was located in a zone which p rovided better tax benefits, that Ceci

represented “they would ‘control Mirizio’ and that Mirizio ‘ cannot hurt you on this.’” (R.R. at

458a

- 460a

. ) Despite these representations, Appellants aver “the [C] ity did absolutely nothing to

keep any of those promises and they did even less to control Mirizio.” (R.R. at 202a.)8

any actual partne rship or corp orate designation. McRoberts v. Phelps

, 138 A.2d 439,

443 (Pa. 1958). The existence of a joint venture depends upon what the parties

intended in associating together. Id. Certain factors are essential to establish a joint

venture: 1) each party to the venture must make a contribution, not necessarily of

capital, but by way of services, skill, knowledge, materials or money; 2) profits must

be shared among the parties; 3) there must be a joint proprietary interest and right of

mutual control over the sub ject matter of the enterprise; and there is usually a single

business transaction rather than a general and continuous transaction. Id. at 443

-

444. The Transaction at issue involved a loan from EDP to Appellants for purposes

of construction of a building

. There is nothing in the City/EDP Loan or actions of

the parties which suggest they engaged in a “single business for profit.” McRoberts.

N o facts are alleged or pleaded which would indicate the City or EDP intended to

create a joint venture.

Appellants contend the joint venture was oral in nature and based upon

representations made by Ceci and Clebone. 7 As with Count 1, Appellants have

failed to sufficiently plead reasonable reliance on any alleged representations made

by Ceci and Clebone. F urther, the City/EDP Loan executed by all parties contains

an entire agreement clause. Amendments must be in writing and signed by all

parties. ( R.R. at 553 a. ) We conclude Appellants have not sufficiently pleaded the

material facts necessary to support a claim of breach of oral contract.

Appellants’ third Count alleges a breach of the fiduciary duty owed by

Appellees as a result of the joint venture. As we have concluded no joint venture

7 Appellan ts set forth the alleged terms and conditions of the oral contract in paragraph 60

of the Second Amended Complaint. One such term is that the City and EDP would “control

Mirizio and make certain that he did not delay the Transaction or other wise do anything to hurt

[ the Appellants].” (R.R. at 463a.)9

was created by the parties, we must likewise conclude no fiduci ary duty existed

between the parties and, thus, there can be no claim for breach thereof.

Count 4

. Intentional Interference with

Existing and Prospective Contractual Relations

Appellants next suggest the delays in finalizing the loans constitute

in terference with the Transaction. 8 Appellants allege interference with the

Bridgewater Loan and a lease agreement with the future occupant of the building

being constructed (Fastenal Lease). Appellants contend the Bridgewater Loan could

not close until the loan with the City/EDP was finalized.

The elements for a cause of action for intentional interference with a

contractual relation, whether existing or prospective, are as follows: 1) the existence

of a contractual, or prospective contractual relation between the complainant and a

third party; 2) purposeful action on the part of the defendant, specifically intended

to harm the existing relation, or to prevent a prospective relation from occurring; 3)

the absence of privilege or justification on the par t of the defendant; and 4) the

occasioning of actual legal damage as a result of the defendant’s conduct. Pelagatti

v. Cohen

, 536 A.2d 1337, 1343 (Pa. Super. 1987).

Beyond bald assertions that “inordinate, unreasonable and unnecessary

delays” were des igned to interfere with the Bridgewater Loan, Appellants plead no

facts to su ggest purposeful action on the part of Appell ees which was specifically

intended to harm the relationship between Appellants and Bridgewater

. The

Bridgewater Loan closed and $217 ,717.50 of the available loan proceeds were

8 It should be noted that there are no allegations Appellees breached the terms of the

City/EDP Loan.10

released to Appellants on January 10, 2014. (R.R. at 209a). Appellants aver delay

and a claim of harm in “the minimum amount of $548, 123.82,” but plead no facts

which indicate interference with the Fastenal Lease. (R.R. at 490a.) And while

Appellants suggest time was of the essence in regards to the City/EDP Loan due to

the existence of other agreements

, and Appellants allege all parties were aware of

this fact, the City/EDP Loan contains no time

- of

- the

- essence clause.

As to prospective contracts, Appellants allege the City/EDP was

approached regarding another project and “[d]espite the fact that the project would

be a ‘win

- win’ for all concerned and bring another beautiful, new building, many

new jobs and significant additional tax revenue to the City...” the City/EDP have

demonstrated “virtually no interest in the project and have taken purposeful action

to prohibit [Appellants] from moving forward with the project. ” (R.R. at 490a.) 9 It

is not clear how lack of interest in a project constitutes tortious interference with a

prospective contract

. Further, Appellants’ averments do not indicate the presence of

a third party, one of the required elements for a finding of intentional interference

with a prospective contract.

Consistent with the prior Counts, Appellants ’ complaint merely asserts

delays on the part of Appellees constitute interference with the Bridgewater Loan

and the Fastenal Lease. They do not plead with specificity. With regard to the

tortious interference with prospective contracts, Appellants have not come close to

establishing a “reasonable likelihood or probability that an anticipated business

arrangem ent would have been consummated, ” Cloverleaf Development Inc. v.

9 Appella nts have averred in paragraph 174 of the First Amended Complaint, incorporated

by reference in the Second Amended Complaint, that Bridgewater is “refusing to get involved with

the City or EDP on any other transactions or deals as long as Mirizio is their S olicitor.” (R.R. at

207a.) As Bridgewater is not a party to the City/EDP Loan, this averment represents but one of

the irrelevant and surplus factual averments contained in Appellants’ pleading.11

Horizon Financial F.A

., 500 A.2d 163, 167 ( Pa. 1985)

, or the existence of a

necessary third party

.

Given the above, w e must conclude Appellants have not sufficiently

pleaded the materi al facts necessary to support claims for intentional interference

with existing and prospective contractual relations.

Count 5

. Intentional/Negligent Infliction of Emotional Distress

In its next Count, Appellants allege that Appellees knew delays in

closing the City/EDP L oan and

, consequently, the Bridgewater Loan, would cause

Appellant Ricky A. Kennett ( Kennett ) severe emotional stress. Appellants allege

that the “inordinate, unreasonable, and unnecessary delays and [Appellees’] other

actions, inactions and conduct did, in fact

, cause Kennett to suffer severe emotional

stress,” which in turn caused his stroke. (R.R. a t 492a

- 493a.) Appellees’ conduct

was therefore “so extreme and outrageous as to go beyond all possible bounds or

human decency and is regarded as atrocious and ut terly intolerable in civilized

society.” Id. at 493a.

While Appellants argue that the trial court erred in dismissing C ount V,

they do not offer a terribly persuasive argument in their brief. While we do not find

the argument waived, it is clear th at Count 5 of the Second Amended Complaint fails

on the merits. Appellants’ complaint does not aver how mere delay in executing a

contract rises to the level of outrageous conduct necessary to state a claim for

intentional infliction of emotional distress

. Appellants must be able to demonstrate

that Appellees, by extreme and outrageous conduct, intentionally or recklessly

caused Kennet t severe emotional distress. Britt v. Chestnut Hill College

, 632 A.2d12

557, 561 (Pa. Super. 1993). In lieu thereof, Appellants have parroted the language

of Section 46(1) of the Restatement (Second) of Torts, 10 that Appellants’ delay in

executing the City/EDP Loan went beyond all possible bounds of decency, and

nothing more.

Appellants allege the d elays and misrepresentations by Ceci and

Clebone (that they would “control” Mirizio ) support a claim for negligent infliction

of emotional distress. N egligent infliction of emotional distress is restricted to four

scenarios where : 1) the defendant had a contractual or fiduciary duty toward the

plaintiff; 2) the plaintiff was subjected to a physical impact; 3) the plaintiff was in a

“ zone of danger, ” thereby reasonably experiencing a fear of impending physical

injury; and 4) the plaintiff observed a tortio us injury to a close relative. Doe v.

Philadelphia Community Health Alternatives AIDS Task Force

, 745 A.2d 25, 27 (Pa.

Super. 2000). Clearly, the only scenario applicable here is the first one. Appellants

have not sufficiently ple a d ed a fiducia ry duty o n the part of Appellee s. The only

duty would be contractual and, beyond the breach of oral contract alleged,

Appellants have not alleged or claimed a breach of the City/EDP Loan.

Therefore, Appellants’ claim s for negligent infliction of emotional

distress must fail.

Count 6. Negligent Representation

10 Restatement (Second) of Torts § 46 (1965). Paragraph d of the commentary to Section

46 provides that liability for intentional infliction of emotional distress has been found “only where

the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all the

possible bounds of decenc y, and to be regarded as atrocious, and utterly intolerable in a civilized

community. Generally, the case is one in which the recitation of the facts to an average member

of the community would arouse his resentment against the actor, and lead him to excl aim,

‘ Outrageous! ’ ”13 Next, Appellants assert a count of professional malpractice against

Mirizio, whom Appellants aver was engaged as their counsel. Appellants have not

suggested a n express contract with Mirizio existed, but that a “defacto [sic] attorney

client relationship existed between [Appellants] and Mirizio, even if an actual

attorney

- client relationship did not exist.” (R.R. at 495a.)

Absent an express contract, an i mplied attorney/client relationship will

be found if 1) the purported client sought advice or assistance from the attorney; 2)

the advice sought was within the attorney’s professional competence; 3) the attorney

expressly or impliedly agreed to render such assistance; and 4) it is reasonable for

the putative client to believe the attorney was representing him. Atkinson v. Haug

,

622 A.2d 983, 986 (Pa. Super. 1993).

In support of its claim, Appellants aver that they “paid legal fees and

expenses to Miriz io for the representation that he provided.” (R.R. at 494a.)

Appellants do not d ispute that Mirizio was counsel for EDP and the City

. Per

Section 2.10 of the City/EDP Loan

, Appellants were responsible for satisfying “all

costs incurred by EDP, including reasonable attorney’s fees. 11 ( R.R. at 552 a. ) These

sums were more fully set forth in Section 4.13(13)

- (14 ) of the Contract. ( R.R. at

555 a. )

Here, m ere recitation of the elements required to find an implied

attorney/client relationship is not sufficient. Appellants have simply averred they

sought Mirizio’ s advice, that advice was within his professional competence, he

expressly or impliedly agreed to provide the advice, and they believed he was

representing them. There are simply no facts ple ad ed to support a claim for

11 In paragraph 60(j) of the Second Amended Complaint, Appellants aver that one of the

terms of the alleged oral agreement between the parties required payment by Appellants of

“attorneys’ fees and costs... incurred by the other parties to t he Transaction.” (R.R. at 463a. )14

professional malpractice. Appellants’ p ayment of Mirizio’s legal fees is easily

explained by the terms in the City/EDP Loan and an admitted term of the alleged

oral contract

.

Counts 7

- 8

. Vicarious Liability

Appellants ’ f

inal two counts aver the City and EDP are vicariously

liable for the actions of Clebone, Ceci, and Mirizio, as those individuals are agents,

servants, employees, representatives, and ostensible agents of the City/EDP. Once

again, Appellants have failed to plead facts to support the contention that Clebone,

Ceci, and Mirizio are agents of the City/EDP who had authority to bind the

City/EDP. They merely restate, as they did throughout the prior 300

- odd

paragraphs, that those individuals were acting as “ostensible agents of” the City and

EDP. (R.R. 498a.) Serial regurgitation of an averment throughout dozens of

paragraphs does not constitute disclosure of “ the material facts sufficient to enable

the adverse party to pr epare his case.” General State Auth. Given the absence of

w ell

- pleaded facts to support Appellants’ claim s

, it does not appear the City or EDP

can be vicariously liable for the actions of Ceci, Clebone, or Mirizio.

Conclusion

The trial court did not err in dismissing the Second Amended Complaint

as it does not plead facts essential to support Appellants’ claims. The Second

Amended Complaint is no more concise or coherent than the prior two iterations

. 12

12 Counted among the factual averments contained in Appellants’ Second Amended

Complaint are statements that “[o]ne of the attorneys who was in attendance at the closing when

Mirizio refused to close the Transaction and EDP Loan told [Appellants] that it was one of the15

Such a conclusion begs the question whether Appellants should be permitted to

amend. Based on the facts presented, or lack thereof, it does not seem likely facts

exist which support Appellants’ claims, or such facts would have been pleaded

earlier. Amendments may be properly denied where it appea rs amendment is futile.

Weaver

. We agree with Appellants, however, that “putting a party out of court”

under the circumstances of this case “is a draconian result ...” ( Appellants’ brief at

19. ) But our agreement must not be read as license to again engag e in the pleading

method employed thus far. If this warning is not heeded, Appellants should expect

no quarter at either the trial or appellate level. For these

reasons, the order of the trial court sustaining Appellees’ preliminary objections and

di smissing Appell ant s’ Second Amended Complaint is affirmed. The decision

dismissing this matter with prejudice is vacated

. This case is remanded to the trial

court for proceedings consistent with this opinion.

___________________________ JOSEPH M. COSGROVE, Judge

most unprofessional things he had ever seen an attorney do,” and “as was his typical modus

operandi, Mirizio was doing whatever he wanted, whenever and however he wanted to do it,

without any regard for his clients’ best interests or instructio ns...” (R.R. at 204a

- 205a, 209a.)

Appellants further averred that “Mirizio assumed that

, because Kennett had formed Bitter Sweet

and BSP to consummate the Transaction and Loans, he ‘must be dirty’ and ‘must be hiding

something. ’ ” Id. at 209a.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bitter Sweet Properties, LP; BSP Inc.; :

Somerset Enterprises Inc. d/b/a Future : Building of America; and Ricky A. :

Kennett, :

Appellants :

:

v. :

:

The City of Farrell; Shenango Valley :

Economic Development Partnership :

Committee for and on Behalf of the : City of Farrell and also surrounding :

c ommunities in the Shenango Valley : Participating in the Shenango Valley :

Economic Development Partnsership; : No. 1640 C.D. 2016

a nd Stephen J. Mirizio, Esquire :

O R D E R

AND NOW, this 20 th day of October

, 201 7

, the June 27, 2016 order of

the Court of Common Pleas of Mercer County (trial court) is h ereby affirmed in part

and vacat ed in part. To the extent the trial court sustained Appellees’ preliminary

objections and dismiss ed Appell ants ’ Second Amended Complaint

, the order is

affirmed. To the extent the trial court dismissed the matter with preju dice, the order

is vacated. This case is remanded to the trial court for proceedings consistent with

this opinion

. Jurisdiction is relinquished.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bitter Sweet Properties, LP; :

BSP Inc; Somerset Enterprises Inc. :

d/b/a Future Building of America; :

and Ricky A. Kennett, :

Appellants :

:

v. :

:

The City of Farrell; Shenango :

Valley Economic Dev elopment :

Partnership Committee for and on :

Behalf of the City of Farrell and also :

surrounding communities in the :

Shenango Valley Participating :

in the Shenango Valley Economic :

Development Partnership; : No. 1640 C.D. 2016

and Stephen J. Miri zio, Esquire : Submitted: January 27, 2017

BEFORE: HONORABLE P. KEVIN BROBSON , Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

CONCURRING/ DISSENTING OPINION

BY JUDGE COVEY FILED: October 20, 2017

I concur with the Majority’s ruling affirming the Mercer County

Common Pleas Court’s (trial court) order sustaining the preliminary objections filed

by the City of Farrell (City), Shenango Valley Economic Development Partnership

Committee for and on behalf o f the City and surrounding communities in the

Shenango Valley participating in the Shenango Valley Economic Development

Partnership (EDP), and Stephen J. Mirizio, Esquire (Mirizio) (Appellees) . However,

I respectfully dissent from the M ajority ’s decision vacating the trial court’s order

dismissing with prejudice the Second Amended Complaint filed by Bitter SweetAEC

- 2

Properties, LP, BSP Inc., Somerset Enterprises Inc. d/b/a Future Building of America,

and Ricky A. Kennett (Appellants) and remanding the matter t o the trial court for

further proceedings.

Appellants filed a civil action with the trial court on May 12, 2015. The

complaint, which contained 280 separate paragraphs , included eight counts alleging

fraudulent inducement, breach of oral contract, brea ch of fiduciary duty, intentional

interference with contractual relations, intentional/negligent infliction of emotional

distress, professional negligence and negligence per se against Mirizio, and vicarious

liability against the City and EDP. Appellees f iled preliminary objections. The trial

court sustained the preliminary objections and dismissed the complaint, stating that

the complaint’s rambling narrative and evidentiary averments failed to comply with

the requirements of Pen nsylvania Rule of Civil P rocedure No. (Rule) 1019,

subsections (a), (b), (f), (h) and (i).

O n November 5, 2015

, Appellants filed an amended complaint (First

A mended Complaint)

. The First Amended Complaint included 320 paragraphs,

many of which contained subparagraphs

. Appelle es filed preliminary objections

to Appellants’ First Amended Complaint, after which Appellants filed a second

amended complaint (Second Amended Complaint). The Second Amended

Complaint, filed January 7, 2016, contained 229 paragraphs and incorporated by

r eference 89 paragraphs from the First Amended Complaint

. Appellees filed

p reliminary objections to th e Second Amended Complaint. Appellants did not

thereafter file a third amended complaint nor did they seek leave to amend

. On

June 27, 2016, the trial c ourt sustained Appellees’ preliminary objections and

dismissed the Second Amended Complaint with prejudice , concluding it failed to

conform to Rule 1019(a) because Appellants failed to plead or produce a contract of

engagement for legal services with Miriz io, failed to plead facts that evidence theAEC

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creation of a joint venture relationship, and failed to plead facts to support the

remaining causes of action.

Initially,

[e] xcept where an amendment is allowed as of course under

[Rule] 1028[(c)(1) (‘A party m ay file an amended pleading

as of course within twenty days after service of a copy of

preliminary objections.’)] , or granted as of right under other

provisions of the Rules of Civil Procedure, [ i.e., Rule 1033

(‘either by filed consent of the adverse part y or by leave of

court’)]

, the trial court has discretion of whether to allow

amended pleadings. Moreover, we will not reverse the

decision of the trial court in the absence of a clear abuse of

discretion. Amendments are liberally permitted in order to

a l low full development of a party’ s theories and averments.

However, amendments may be denied where there is

prejudice or surprise to the opposing party

. Also, an

amendment is properly refused where it appears amendment

is futile.

Weaver v. Franklin Cty., 918 A.2d 194, 203 (Pa. Cmwlth. 2007) (citations omitted).

In the instant case, t he trial court opined:

During the course of these three complaints, [Appellants]

have asserted a duplicity of factual pleadings, (all made

under verification), which state in consistent facts some of

which constitute judicial admissions. These inconsistent

pleadings belie the veracity of the facts stated and must be

considered in determining whether or not a valid cause of

action has been pleaded.

I have considered each of the counts and observe, inter al i a, the following:

COUNT VI

– PLAINTIFFS V. STEPHEN I. MIRIZIO,

ESQUIRE purports to allege professional negligence, but

fails to plead or produce a contract of engagement for

services. COUNTS VII and VIII

- PLAINTIFFS V.

DEFEN DANTS CITY O F FARRELL, AND EDP alleges

vicarious liability based upon the action o f [] Mirizio and

two non

- party employees of the City

. . . but fails to

properly plead the basis for finding an underlying cause of

action. COUNTS IV and V

- claim intention al interferenceAEC

- 4 with contractual relations and intentional infliction of

emotional distress with an additional bald allegation for

punitive damages without well pleaded facts to support

tortious conduct on the part of any of the Defendant s.

COUNTS I , II a nd III PLAINTIFFS V. CITY O F

FARRELL AND EDP allege fraudulent inducement, breach

of oral contract involving real estate, the creation of a joint

venture relationship without any written contract

- Typical

of the pervasive conjecture and hypothesized averm ents of

the Plaintiffs’ pleadings is a self

- serving statement that

‘ Furthermore, Plaintiffs surrendered to Defendants

substantial control over its affairs, and vested Defendants

with actual or apparent authority to carry out Plaintiffs’

interests[’] . . .

.

Trial Court Op. at 2

- 3. I agree with the trial court’s sound r easoning

. As stated by

the Majority: “ Based on the facts presented, or lack thereof, it does not seem likely

facts exist which support Appellants’ claims, or such facts would have been plea ded

earlier. Amendments may be properly denied where it appears amendment is futile.

Weaver

. ” Majority Op. at 15.

Moreover, I recognize, in the interest of judicial economy, that if

Appellants are permitted to amend a fourth time , the same facts wil l be presented to

which Appellees will be forced to review and for the fourth time prepare preliminary

objections . Once again, t he trial court will have to review and prepare a decision an d

order which it has already done twice and upon appeal therefrom t his Court will

similarly need to again review and write an opinion and order

. Thus, “a consideration

of . . . our interests in judicial economy and in conserving the time and interest of the

litigants militate in favor of our” dismissing Appellants’ compl aint with prejudice.

Temple Univ. of Commonwealth Sys. of Higher Educ. v . Pa. Dep’t of Pub. Welfare,

374 A.2d 991, 996 (Pa. Cmwlth. 1977). 1 It is clear after three complaints containing

between 280 and 320 paragraphs, that Appellants have no further fact s to support

1 We recognize that this c ase relates to the taking of equity jurisdiction to avoid the

multiplicity of actions, however, the same considerations apply here.AEC

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their allegations. Thus, I am “ constrained to find that there is no way the pleading

can be cured by an amendment. Where there is no possibility of recovery under a

better statement of the facts, leave to amend need not be granted. Accordin gly, [I

would] affirm the decision of the trial court

. ” Jones v. City of Phila., 893 A.2d 837,

846 (Pa. Cmwlth. 2006)

. 2

___________________________ ANNE E. COVEY, Judge

2 In Jones, as here, the trial court sustained preliminary objections to the appellants’

complaint and dismissed the complai nt with prejudice. The appellants argued that the trial court

abused its discretion in failing to allow them to amend their complaint.