Filing a Breach of Contract Lawsuit

Whether you have been sued and need a defense, or are contemplating a claim in court against another for breach of contract, one thing needs to be understood about the content of the lawsuit. If the case is in state court in Pennsylvania, certain formalities must be followed.

Rule 1019 of the Pennsylvania Rules of Civil Procedure provides the following in pertinent part:

(h)       When any claim or defense is based upon an agreement, the pleading (the complaint) shall state specifically if the agreement is oral or written.

(i)        When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.

Pa.R.C.P. 1019(h)-(i)(emphasis added).

In other words, unlike a claim based on negligence, pleading a claim for breach of contract is fairly unique: in Pennsylvania Plaintiff must affirmatively plead evidence regarding the “agreement” – if any – between the Parties.  See Pa.R.C.P. 1019(h)-(i).  Thus, it is not necessary for a Defendant to answer a Complaint for breach of contract – much less do discovery to ascertain the “contract” — because the contract has to be pleaded with particularity and affirmatively attached to the Complaint.  See Pa.R.C.P. 1019(h)-(i).

One of the first things our Pittsburgh attorneys do when looking at any claim — or defense — is, we ask:  can (or did) the plaintiff attached the actual contract to the Complaint?  If not, is there an explanation for the failure to attach the contract to the lawsuit?  These things need to be set forth in the lawsuit, before the defendant’s duty to admit or deny the allegations is triggered.

For a defendant facing a lawsuit that lacks the above specificity, the correct course of action is to file preliminary objections according to Pennsylvania Rule Civil Procedure 1028 to ask a judge to force the Plaintiff to plead the case with specificity.

Note: your objections must be filed within twenty (20) days of service on the lawsuit on you, or the plaintiff can take a default judgement against you for your failure to response.

Some judges are inclined to sustain the objections, others are less inclined.  For example, in Allegheny County, the judges have sustained preliminary objections to a complaint, as follows:

Judge Colville (who is no longer on the bench of the court of common pleas of Allegheny County but is on the federal court): Plaintiff must plead how and when the alleged terms of any “agreement” came into existence, and how any when any change to the terms of the agreement occurred. See the Court’s October 10, 2019 Order in Portfolio Recovery Associates, LLC, v. Amanda Woehrel, AR-19-002209, which is incorporated by reference.

Judge Walko: On May 19, 2020, the Allegheny County Court of Common Pleas Judge Donald Walko (after receiving credit card collection case that would have gone to Judge Colville, but for Judge Colville becoming a federal judge)  sustained objections to a claim for breach of contract by Bank of America, suing an alleged credit card holder, where Plaintiff failed to plead exactly how or when Defendant supposedly agreed to any particular terms.  See Bank of America, N.A., v. Esma Small, AR 19-001196.

Judge McVay: By Order dated July 8, 2020, following oral argument and supplemental briefing, Judge McVay sustained Defendant’s Preliminary Objections to the Complaint, based upon Plaintiff’s failed to plead when, how, and by what instrumentality Defendant allegedly “agreed” to the claimed “terms” of the Parties’ agreement and allegedly amended Agreement.  See Discover Bank v. Pam Elber, Court of Common Pleas of Allegheny County, AR-18-002962.  See also the prior Order in this case, sustaining Defendant’s Preliminary Objections to the Original Complaint in this matter.

Judge Wettick — now retired — has opined it is the Plaintiff’s burden to plead how, why, and when the alleged agreement was formed and amended, and produce documentation, so the Defendant can understand and ascertain interest and other charges. See Worldwide Asset Purchasing, LLC v. Nancy A. Stern v. Scott Miller, PLJ May 13, 2005, page 111, 112.

In other words, the Plaintiff must plead exactly how, when, and through what instrumentality the Defendant agreed to particular terms and any amended terms, if the terms are alleged to have changed. See Worldwide Asset Purchasing, LLC v. Nancy A. Stern v. Scott Miller, PLJ May 13, 2005, page 111, 112.

Note, however, that many interpret the Superior Court’s decision in Discover Bank v., David P. Stucka, 33 A.3d 82 (2011) to lessen Plaintiff’s burden to plead with specificity regarding certain kinds of breach of contract claims.  Our view, however, is that Stucka, should be limited to its facts given how precise the evidence was, regarding the existence of a contract in that case, in the absence of the actual contract being attached to the complaint.  Plus, there, the Plaintiff had explained why the contract was unavailable, which things that not every plaintiff can do.  

Others believe that Stucka allows a creditor to assert a claim for “account stated” or contract implied at law as a substitute for proving a contract, but we disagree for the reasons stated here.

Feel free to contact our Pittsburgh Breach of Contract Lawyers to see if the lawsuit is specific enough, or whether preliminary objections would be warranted.

Feel free to Email Us or call any time:

412.780.0008