Ellenbogen v. PNC BANK, NA

• Decision Date: 28 May 1999
• Citation: 731 A.2d 175
• Parties: James ELLENBOGEN, Executor of the Estate of Edgar S. Ellenbogen, Appellant, v. PNC BANK, N.A., Appellee.
• Court: Pennsylvania Superior Court

731 A.2d 175

James ELLENBOGEN, Executor of the Estate of Edgar S. Ellenbogen, Appellant, v. PNC BANK, N.A., Appellee.

Superior Court of Pennsylvania.

Argued April 6, 1999.

Filed May 28, 1999.

Mark T. Knapp, Allison Park, for appellant.

Jonathan S. McAnney, Pittsburgh, for appellee.

Before POPOVICH, LALLY-GREEN, JJ., and CIRILLO, President Judge Emeritus. CIRILLO, President Judge Emeritus:

¶ 1 James Ellenbogen appeals from two Motions Court orders, one overruling his preliminary objections (PO's) to PNC Bank's PO's, and the other sustaining PNC's PO's to Ellenbogen's amended complaint and dismissing his amended complaint with prejudice. We reverse and remand.

¶ 2 Ellenbogen commenced this suit against PNC by filing a praecipe for a writ of summons. PNC was served eight days later, and counsel entered his appearance. Ellenbogen then served upon PNC a subpoena and notice of deposition of a bank employee for the following month. Shortly before the deposition, PNC filed a Praecipe for Rule to File Complaint, averring that allowing the deposition of the bank employee would be unfair since PNC was still unaware of the substance of the suit, no complaint having been filed. The court quashed the subpoena and continued the deposition until after Ellenbogen filed his complaint.

¶ 3 Ellenbogen then filed a complaint in his capacity as executor of the estate of his father, Edgar Ellenbogen ("Edgar"). He averred PNC had breached various duties by allowing his father's wife, Jacqueline Ellenbogen ("Jacqueline"), unauthorized access to his father's safe deposit box, held solely in his father's name, just before he died. He alleged that after initially being denied access to the box because she was not authorized, Jacqueline inquired how she could gain access to it. A named PNC employee allegedly gave her a written safe deposit box lease application and told her to fill it out in both names, thus transferring the box from Edgar's name alone to both of their names and allowing her access. She took this application home and purportedly forced Edgar to sign it. The bank did not require him to appear in person and did not otherwise verify that he had willingly signed the application before accepting and honoring it. Jacqueline then opened the box, read for the first time the decedent's will contained in it, and allegedly forced Edgar to make changes to it. A separate action has been filed contesting the will due to these allegedly improper changes to the will and to a related deed. Such changes, the complaint averred, were made possible by PNC's breach. The damages claimed by Ellenbogen were the legal expenses and costs incurred by the estate in the separate will contest action.¹

¶ 4 PNC responded with PO's to the original complaint in the nature of a demurrer. As to bailment, it noted the safe deposit box agreement disclaimed the creation of one. Even if a bailment existed, PNC alleged there was no breach because the contents of the box had been returned without damage or loss. As to breach of contract, PNC averred that the deposit box agreement limited the bank's liability² and that case law limits such loss only to non-delivery of, or damage to, the personalty deposited in the box. As to negligence, the bank represented that Ellenbogen was pleading purely economic loss in negligence, in violation of the "economic loss" doctrine as stated in Aikens v. Baltimore and Ohio Railroad Co., 348 Pa.Super. 17, 501 A.2d 277 (1985). Finally, the bank noted the absence of authority for liability on the part of a bank for attorney's fees in an unrelated action based upon unauthorized access to a safe deposit box, where the contents of the box were not lost or damaged but merely read. The then-sitting Motions Judge, the Honorable S. Louis Farino of the Court of Common Pleas of Allegheny County, entered a succinct order sustaining this first set of PO's and allowing Ellenbogen 30 days to amend his complaint.

¶ 5 Ellenbogen filed an amended complaint four days after the 30-day deadline set by Judge Farino. He did not therein address the points raised in PNC's sustained demurrer.³ In response, PNC filed what it termed a "Motion to Strike Amended Complaint" in which it raised the sole issue of Ellenbogen's failure to comply with Judge Farino's 30-day deadline. The Honorable Ronald W. Folino, then sitting as Motions Judge, in another succinct order, denied PNC's motion. He gave no further instruction as to how the case was to proceed.

¶ 6 PNC then filed what it termed "Preliminary Objections" to Ellenbogen's amended complaint, asserting primarily that Ellenbogen's failure to amend his complaint substantially (see note 3 supra) rendered the demurrer to his original complaint the law of the case. Therefore, it claimed, dismissal was mandatory.

¶ 7 Ellenbogen responded with PO's to PNC's PO's to the amended complaint.⁴ Therein, Ellenbogen averred that PNC's motion to strike should have been, and was in effect, a form of preliminary objection to his amended complaint. He claimed PNC's motion to strike was chronologically its second set of preliminary objections (its first having been filed in response to the original complaint) and was its first set of preliminary objections in response to the amended complaint. Only one set of preliminary objections is permitted to the amended complaint, he averred, and PNC's PO's in the nature of a motion to strike the amended complaint had already been denied. Therefore, Ellenbogen requested that PNC's chronologically third set of preliminary objections, its second to the amended complaint, should be dismissed as waived and PNC be made to answer.

¶ 8 A different Motions Judge, the then-sitting Honorable Judith L.A. Friedman, soon held a brief hearing on both PNC's and Ellenbogen's outstanding PO's. Ellenbogen's attorney, however, did not appear. Court staff telephoned his office to no avail, and the hearing (a dialogue solely between the judge and counsel for PNC) proceeded without him. The court began by stating, "[Ellenbogen's attorney] did file objections to what he refers to as Third Preliminary Objections, the second document entitled Preliminary Objections, but in a way, it is a third set because the motion to strike, I think, was in the nature of Preliminary Objections." Of PNC's PO's and its earlier motion to strike, Judge Friedman stated that "that should have all been done at once." Although she noted that Ellenbogen's attorney's absence resulted in the waiver of his PO's to PNC's PO's to the amended complaint, she still considered whether PNC's motion to strike the amended complaint had been a form of preliminary objection and thus, whether PNC's subsequent PO's to the amended complaint were not properly before her. Initially, she found the motion to strike was a form of preliminary objection. She thus initially concluded that she could not consider PNC's PO's to the amended complaint and that PNC should answer.⁵

¶ 9 However, after consulting a source not of record, the court changed its mind and became convinced that PNC's counsel was correct in representing that a pre-trial motion to strike is not a form of preliminary objection.⁶ The court thus concluded that PNC's third set of PO's were actually only its second (and its first to the amended complaint). At this time the court entered an order finding Ellenbogen's PO's to PNC's PO's "overruled for failure to appear."

¶ 10 The court's record statement makes it quite clear that it was only after coming to, and in reliance upon, the conclusion that a pre-trial motion to strike is not a form of preliminary objection, that it reached the substance of PNC's PO's to the amended complaint. The court then entered an order sustaining PNC's PO's to the amended complaint and dismissing Ellenbogen's amended complaint for failure to amend, with prejudice. Both orders were dated and entered September 10, 1998.

¶ 11 Fifteen days later, Ellenbogen filed a motion for reconsideration. He represented that "[b]ecause of a communication problem in his office, counsel for Plaintiff did not diary this date properly, was not in town, and thus failed to appear at said hearing." As to PNC's alleged waiver of its "third" set of PO's, without citation to authority, Ellenbogen stated that "[t]he case law, in this circumstance, notes that the demur[r]er may be raised later as a summary judgment motion, but that Defendant can[ ]not do it at this time and must answer." PNC responded a week later, without citation to authority, that Ellenbogen's reconsideration motion, as a post-trial motion, was untimely, for it had been filed beyond a ten-day period from the order sustaining PNC's PO's to his amended complaint.⁷ PNC also maintained its motion to strike simply could not be viewed as a form of preliminary objection. Finally, it averred that Ellenbogen had twice been notified of the hearing date which he had missed: first by cover letter to PNC's PO's, and second, in accordance with Allegheny County Local Rule 1028(e), when he filed his PO's to PNC's PO's to the amended complaint.⁸

¶ 12 On October 8, 1998, the court denied Ellenbogen's motion for reconsideration and issued a memorandum opinion. In this opinion, the court did not address the question it had considered preliminarily and as a threshold issue at the hearing, whether PNC's motion to strike had been a form of preliminary objection. Instead, the court stated simply that Ellenbogen's excuse for failure to appear was not satisfactory under Pennsylvania Rule of Civil Procedure 218; that it had considered Ellenbogen's PO's to PNC's PO's to the amended complaint in any event and had found them to be without merit; and iterated that, as a court of coordinate jurisdiction, it was constrained to agree with Judge Farino's earlier order sustaining PNC's PO's in the nature of a demurrer to the original complaint, since Ellenbogen's amended complaint had not corrected the defects which had led to the earlier dem...