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GROSS v. UNITED ENGINEERS AND CONSTRUCTORS (03/27/73)

decided: March 27, 1973.

GROSS, APPELLANT,
v.
UNITED ENGINEERS AND CONSTRUCTORS, INC.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 5816, in case of George Gross v. United Engineers and Constructors, Inc.

COUNSEL

Benjamin Pomerantz, for appellant.

Manfred Farber, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.

Author: Cercone

[ 224 Pa. Super. Page 234]

This appeal presents an issue as to the sufficiency of the allegations of plaintiff's Complaint charging libel and slander. The lower court sustained defendant's preliminary objections in the nature of a demurrer and plaintiff has appealed.

[ 224 Pa. Super. Page 235]

The lower court, in its opinion, reasoned: ". . . the closest plaintiff comes to particularity is '. . . defendant orally and in writing did communicate with Commonwealth Edison, and Paulin and others, from on and after June 28, 1971, informing them directly and by innuendo, that the plaintiff was dismissed by the defendant for dishonesty'. This falls far short of the requirements of the Rules of Civil Procedure, especially 1017(b)(4), 1020, 1019(a), (f) and (h)." We agree with this reasoning and conclusion. The Complaint fails to allege with any particularity the content of the oral or written statements claimed to have been made, the identity of the person or persons making those statements, the relationship of that person or persons to the defendant company and authority to act in behalf of the defendant company, the identity of the person or persons to whom the statements were made, and the relationship of that person or persons to the companies receiving the alleged communications.

Any information subsequently supplied by plaintiff upon deposition requested by defendant cannot be used to supply the missing allegata of the Complaint. The sufficiency of the Complaint is governed by the facts alleged therein and the fact that the lacking information subsequently was or could be supplied is not governing. As summarized in 2A Anderson Pa. Civil Practice, § 1019.8 (1969 Edition), page 86: ". . . the fact that the stipulation filed by both parties contains a specification of the damages not set forth in the complaint does not excuse the plaintiff from properly pleading the information in the complaint since 'the complaint should contain all necessary information in order to establish the plaintiff's cause of action', and liability cannot be predicated upon facts not set forth in the complaint.

"The duty of placing all material facts upon the record is not reduced by the fact that the adverse

[ 224 Pa. Super. Page 236]

    party is not actually dependent upon the pleading for his information since he could resort to discovery procedures. Accordingly, while the defendant may be relegated to discovery proceedings to obtain information when it is not clear whether the matter is merely evidentiary or basic fact that principle cannot be invoked when the plaintiff has not pleaded facts which should be pleaded by him." Furthermore, the plaintiff in this case under advice of counsel did not on deposition supply the information required to be pleaded in the Complaint. Though his testimony indicated (as did his brief in this appeal) that he was in possession of, and was placing reliance on, a letter written by the defendant's company to Paulin Construction Company which letter, he claims, sustains his charge of libel, plaintiff refused to produce that letter or make known its contents, his counsel contending (a) that such letter constituted proof and was not therefore required to be revealed prior to trial, and (b) that since a copy of the letter was in defendant's files it was not required to be produced. Neither of these contentions have merit. If plaintiff had in its possession a letter by the defendant's company upon which the charge of libel was based, such letter should have been alleged in the Complaint and a copy attached and made a part thereof.

That defendant would have knowledge of its own letter and conduct in the matter does not relieve plaintiff from his duty of pleading the material facts upon which he bases his claim of slander and libel. The rule is as stated in 2A Anderson Pa. Civil Practice, § 1019.8 (1969 Edition), pages 85-86: "The pleader is not relieved of his duty of pleading the material facts on which his claim or ...


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