Rock v. Antoine's, Inc.

• Decision Date: 13 February 1964
• Parties: , 57 Del. 164 Joseph W. ROCK, Plaintiff-Appellant, v. ANTOINE'S, INC., a Delaware corporation, Dorset Apartments, Inc., a Delaware corporation, Anthony Muscelli, Francis Kearney, a/k/a Alex Kearney, Abe Goldfeder, and Isadore Berger, Defendants-Appellees.
• Court: United States State Supreme Court of Delaware

Page 737

197 A.2d 737

7 Storey 164, 57 Del. 164

Joseph W. ROCK, Plaintiff-Appellant, v. ANTOINE'S, INC., a Delaware corporation, Dorset Apartments Inc., a Delaware corporation, Anthony Muscelli, Francis Kearney, a/k/a Alex Kearney, Abe Goldfeder, and Isadore Berger, Defendants-Appellees.

Supreme Court of Delaware.

Feb. 13, 1964.

Abraham Hoffman, Robert E. Daley and Hiram Warder, Wilmington, for plaintiff.

E. Dickinson Griffenberg, Jr., of Killoran & Van Brunt, Wilmington, for Dorset Apartments, Inc., appellee.

W. Laird Stabler, Jr., Deputy Atty. Gen., for Abe Goldfeder and Isadore Berger, appellees.

Thomas Herlihy, Jr., Thomas Herlihy, III and Joseph M. Kwiatkowski, Wilmington, for Antoine's, Inc., Anthony Muscelli and Francis Kearney, appellees.

TERRY C. J., and WOLCOTT and CAREY, JJ., sitting.

TERRY, Chief Justice.

During October, 1961, plaintiff executed a conditional sales contract with defendant Antoines, Inc. for the purchase of approximately $5,500.00 of furniture and other household goods. The contract was signed by plaintiff alone. At the request of plaintiff, the furniture was moved to an apartment leased by plaintiff and a co-tenant from defendant Dorset Apartments. Discovery proceedings indicate that the first payment subsequent to the initial down payment was due on February 20, 1962.

On February 6, 1962, defendant Muscelli, an agent of the defendant furniture company, procured three separate writs of replevin, each in the amount of $500.00, from defendant Goldfeder, a Justice of the Peace. The complaint filed by plaintiff alleges that defendant Berger, a constable, acting in concert with the defendant furniture company, its agents and the employees of the apartment house, wrongfully broke into and entered the locked apartment of plaintiff and unlawfully converted the property found therein. Damages were requested against defendant Goldfeder for abuse of process and from all defendants for the alleged unlawful conversion of property.

Defendant Dorset Apartments filed a motion for summary judgment, which was initially resisted by plaintiff upon the grounds that discovery was incomplete. In addition, defendants Goldfeder and Berger filed motions before the court below to dismiss the complaint as to these defendants, or, in the alternative, to require the plaintiff to give a more definite statement of his claim. No motions were filed by defendant Antoine's or the individual defendants Anthony Muscelli and Francis Kearney associated with the furniture store. After considerable delay, the court requested counsel to complete discovery in order that pending motions could be resolved. In addition, the court noted that plaintiff had failed to include his co-tenant as a party plaintiff and requested plaintiff to make appropriate amendments to the pleadings. No such amendment was made.

At the completion of the discovery contemplated by the initial motion for summary judgment, the court granted defendant Dorset Apartments' motion for summary judgment, granted Goldfeder's and Berger's motion for dismissal, and dismissed the complaint as to Antoine's and its agents because of the failure of plaintiff to complete discovery and because of his failure to include his co-tenant as a party plaintiff. It is from these orders that plaintiff prosecutes his appeal.

As to defendant Dorset Apartments, the complaint alleges that this defendant wrongfully broke into the locked apartment of plaintiff and participated in the unlawful removal of his chattels. In response to interrogatories directed to plaintiff, plaintiff listed those individuals whom he believed to have exclusive knowledge of the facts which generated this allegation. Such individuals have all been subjected to discovery proceedings, and their testimony clearly indicates that Dorset Apartments, through its agents, did not break into the locked room of plaintiff and did not participate in the removal of his property. On the contrary, such discovery indicates that the participation of Dorset Apartments was limited to yielding to the writs served by defendant Berger.

Plaintiff, however, alleges that a substantial issue of fact remains because of his additional allegation of illegal eviction. This statement of illegal eviction, contained in the final demand paragraph of the complaint, reasonably refers back to the allegation of unlawful entry. The only allegation against defendant Dorset Apartments is the unlawful breaking and entering; the complaint can be reasonably construed to allege a claim against defendant Dorset Apartments both for the conversion of property and for the constructive eviction resulting from such conversion. However, both claims ultimately depend upon the allegation of unlawful entry upon which, as hereinbefore noted, there exists no dispute of material fact which would warrant denial of the motion for summary judgment.

As to defendant Goldfeder, as noted above, the court granted the motion to dismiss the complaint upon the grounds that the claim was not one upon which relief could be granted. The applicable standard governing such motions was established by this court in Fish Engineering Corporation v. Hutchinson, 162 A.2d 722 (1960), wherein we stated:

'A court should not dismiss a complaint for failure to state a claim unless it appears to a reasonable certainty that under no state of facts which could be proved to support the claim asserted would plaintiff be entitled to relief. Mere vagueness or a lack of detail are not alone sufficient ground to dismiss a complaint for failure to state a claim.' (At page 724 of 162 A.2d)

In this connection, we note that the court declined to pass on the motion for a more definite statement but instead elected to dismiss the entire claim.

The opinion of the court below indicates two grounds for its decision. In the first place, the court held that the writs in question were superfluous, since the conditional vendor had a right through the contract to repossess, and the actual participation of the constable was merely intended to prevent a breach of peace. Such a conclusion is not drawn from the body of the complaint but instead represents factual inferences drawn from the discovery proceedings held on the motion of Dorset Apartments for summary judgment. We doubt that propriety of utilizing discovery proceedings involving other parties to support a motion to dismiss, in which the allegations of the complaint are taken as true. ¹ In any event, the discovery proceedings clearly indicate that the writs were, in fact, utilized by the constable in order to gain entrance into the apartment in question.

The second ground relied upon by the court below was the holding that the actions of the Justice of the Peace in issuing the three writs of replevin were 'pursuant to statutory authorization'. It is clear from a reading of the briefs filed by the plaintiff in the court below and before this court that the allegation of plaintiff against defendant Justice of the Peace is predicated upon a contention that the action of the Justice of the Peace in issuing three separate writs of replevin to secure return of goods pledged under a single contract was an attempt to evade the jurisdictional limitations placed upon him by 10 Del.C. Sec. 9304. Defendant, however, contends that this allegation does not fairly appear upon the face of the complaint. The complaint clearly indicates that all of the property in question was sold under a single contract and called for a single monthly payment. In addition, the complaint alleges that the...