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HENRY J. ITRI AND JOANNE V. ITRI v. EQUIBANK (08/19/83)

filed: August 19, 1983.

HENRY J. ITRI AND JOANNE V. ITRI, HIS WIFE, APPELLANTS,
v.
EQUIBANK, N.A.



No. 883 Pittsburgh 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, Pennsylvania, at No. GD 80-12841.

COUNSEL

Lee R. Golden, Pittsburgh, for appellants.

Sidney R. Finkel, Pittsburgh, for appellee.

Rowley, Popovich and Hoffman, JJ.

Author: Popovich

[ 318 Pa. Super. Page 270]

This is an appeal by the appellants, Henry J. and Joanne V. Itri, from the Order of the Court of Common Pleas of Allegheny County sustaining appellee's, Equibank's, preliminary objections (in the nature of demurrers and jurisdictional grounds) to their Complaint in Trespass. We reverse and remand for proceedings consistent with this Opinion.

Since review is sought of the sustainment of the preliminary objections in the nature of demurrers, the well-pleaded factual allegations set forth in the Complaint are to be regarded as true for purposes of review. Carlino v. Whitpain Investors, 499 Pa. 498, 453 A.2d 1385 (1982). The facts as alleged by appellants' Complaint establish the following: In 1973, appellants' Pennsylvania based corporation, Itri Construction Co., of which Henry Itri was President, began to engage in banking transactions with (Douglas McAdams, William Roderus, H.P. Pernisek and Scott Gray) duly authorized agents of appellee. The transactions consisted of, inter alia, borrowing money with payments to be made in accordance with installment notes and demand notes.

[ 318 Pa. Super. Page 271]

On or about September 21, 1975, appellee (in particular William Roderus) became aware that Henry Itri had suffered a heart attack, and, as a result, would not be able to continue operating the construction business. Thereafter, on or about May 27, 1976, a 1975 commercial note drawn on the appellee in the amount of $10,000 was satisfied by the appellants borrowing $12,700 from the same banking institution and executing another note to evidence the debt. This was the first time that the appellant-wife became jointly liable with the appellant-husband to the appellee. After the passage of almost two years (September 9, 1978), appellants paid the outstanding balance owing on the May, 1976 personal loan by securing a new advancement ($10,000), evidenced by a note, from appellee, which was to be used for personal rather than commercial expenses. There was no dispute between the parties that the $10,000 note was the primary obligation of the appellants, as distinguished from the corporation, and was secured by an insurance policy on the life of the appellant-husband, issued by General American Life Insurance and owned by appellant-wife. Lastly, it was agreed that repayment was to be made in monthly installments "and that the full amount of said note was not to be demanded unless [appellants] defaulted in making a monthly payment." (See Appellants' "Complaint in Trespass," Point 19)

The last portion of appellants' Complaint consists of sixteen (16) counts which allege, in pertinent part, the following:

COUNT I

20. On or about March 12, 1979, William Roderus, agent of Defendant, phoned Plaintiffs requesting a financial statement and said life insurance policy with General American Life Insurance Company to forward to the Downtown office at the request of agent, H.P. Pernisk; and this request for said life insurance was harassment and/or abuse . . . .

[ 318 Pa. Super. Page 272]

COUNT II

21. On or about March 13, 1979, Plaintiffs met with William Roderus, agent of Defendant, at Defendant's Monroeville office, and William Roderus agreed that it would be satisfactory to rewrite said $10,000 note into a formal sixty (60) month installment loan note with credit life insurance in lieu of said General American Life Insurance policy, but William Roderus stated that he understood a judgment would be entered through the directions of the Downtown office; said judgment to be entered against Plaintiffs.

22. At said time and place referred to in Paragraph 21 above, William Roderus, agent of Defendant, stated that he was no longer allowed to do business with Plaintiffs or any companies with which they were associated, . . . .

COUNT III

23. On or about March 16, 1979, Defendant unlawfully confessed judgment upon said $10,000 note at No. GD 79-6672, in violation of the agreement between Plaintiffs and William Roderus when Plaintiffs' monthly payments were current, . . . .

COUNT IV

24. . . .

25. On or about April 11, 1979, Plaintiffs received a letter from H.P. Pernisek, agent of Defendant, regarding said $10,000 note and said judgment without seeking a Court's permission and/or without seeking the permission of Plaintiffs' attorney . . . who H.P. Pernisek should have known was involved in said judgment [since on or about April 6, 1979 the attorney filed a petition to open and/or strike said judgment], . . . .

COUNT V

26. On or about May 30, 1979, Plaintiffs met with H.P. Pernisek and Scott Gray, agents of Defendant, at H.P.

[ 318 Pa. Super. Page 273]

Pernisek's request in Defendant's Oliver Plaza Building offices with reference to said $10,000 note.

27. At the time and place stated in Paragraph 26 above, H.P. Pernisek, agent of Defendant, knew Plaintiffs' General American Life Insurance policy was a term policy without cash value and that a copy of said policy was on file with Defendant.

28. At the time and place stated in Paragraph 26 above, H.P. Pernisek, agent of Defendant, refused to accept Plaintiffs' monthly payment on said $10,000 note until such time as said American General Life Insurance policy was turned over to Defendant, which conduct constituted harassment and/or abuse, . . . .

COUNT VI

29. . . .

30. At the time and place stated in Paragraph 26 above, H.P. Pernisek, agent of Defendant, communicated with Plaintiffs without seeking a Court's permission and/or without seeking the permission of Plaintiffs' attorney . . . who H.P. Pernisek should have known, . . . .

COUNT VII

31. At the time and place stated in Paragraph 26 above, Scott Gray, agent of Defendant, left the meeting room under the pretense of searching for records requested by Plaintiffs and instead telephoned General American Life Insurance Company, which phone call was a third party communication, . . . .

COUNT VIII

32. The conduct referred to in Paragraph 31 above was calculated to harass and ...


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