Court Upholds Assault and Battery Exclusion in Liability Policy Related To Shooting Incident

In the case of The Farmers Fire Ins. Co. v. S.W. Krauss, LLC, No. 2023-CV-5087 (C.P. Lacka. Co. May 12, 2025 Gibbons, J.), the court granted a liability carrier’s Motion for Judgment on the Pleadings based upon an assault battery exclusion contained in the subject policy relative to a shooting incident that occurred on the insured’s premises.

According to the Opinion, this matter involved an injured party who suffered a gunshot wound after gunfire was exchanged between unidentified individuals who were engaged in an dispute.

President Judge James A. Gibbons
Lackawanna County

The carrier for the landowner filed a declaratory judgment action and asserted that coverage was barred under the assault and battery exclusion contained in the policy. After reviewing the policy as compared to the facts alleged in the underlying civil litigation Complaint, the trial court here agreed and granted the carrier’s Motion for Judgment on the Pleadings.

The trial court also rejected the injured party’s efforts to create issues of fact based upon affirmative defenses raised in the injured party’s New Matter responses to the declaratory judgment Complaint. In this regard, the trial court noted that there were boilerplate allegations in the New Matter pleadings and no factual allegations in support of the same.

Anyone wishing to review a copy of this decision may click this LINK.

Trial Court Confirms that Defendant Must Plead Facts In Support of New Matter Defenses Asserted

In the case of Kieser v. Beyer, No. CV23-00,923 (C.P. Lyc. Co. Sept. 11, 2024 Lindhardt, J.), the court addressed Preliminary Objections filed against a Defendant’s New Matter in a medical malpractice action.
The court sustained the Preliminary Objections in part and overruled the Preliminary Objections in part.

The court found that one paragraph of the New Matter, when read with another paragraph, properly asserted that the medical system Defendant had no control over a doctor who allegedly caused the Plaintiff’s injuries. As such, that paragraph of the new matter was allowed to stand. 

However, the court ruled that other paragraphs in the New Matter that asserted affirmative defenses of contributory/comparative negligence, assumption of the risk, release, accord and satisfaction, or set off and/or that the Plaintiffs’ damages were caused by the natural progression of the Plaintiff’s medical condition were all struck for failure to plead any facts in support of those alleged defenses.

In so ruling, the court provided a detailed review of the current status of the law regarding the pleading of a New Matter as set forth under Pa. R.C.P. 1030 and otherwise. The court reiterated the general rule that Pennsylvania is a fact-pleading state and that the inquiry into the sufficiency of pleading involves a question of whether material facts on which a cause of action or a defense has been stated in a concise and summary form in the pleading.

As noted, the court issued a decision in this case that allowed certain defense raised in the New Matter to stand but not others due to the lack of supporting factual allegations. In striking the improper New Matter defenses, the court did allow the Defendants at issue to file an Amended Answer and New Matter.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert. www.Law.com (Oct. 30, 2024).

Defendant Given Another Chance to Allege More Factually Specific New Matter Defenses

In the case of J.C.F., a minor v. Brenneman, No. 2021-SU-001714 (C.P. York Co. March 4, 2022 Strong, J.), a court addressed Preliminary Objections filed by a Plaintiff against a Defendant’s Amended Answer and New Matter. According to the Opinion, this matter involved an alleged dog bite incident.

In the Plaintiff’s Preliminary Objections to the Defendant’s New Matter, the Plaintiff alleged a lack of factual specificity in violation of the Rules of Civil Procedure as well as a lack of legal sufficiency.

The Plaintiff attacked the allegations in the Defendant’s New Matter in which the Defendants had asserted that the Plaintiff’s injuries and/or damages may have been caused in whole or in part by the Plaintiff’s own conduct when the Plaintiff had interacted with the dog.  The Plaintiff also attacked allegations by the Defendant that the Plaintiff may have assumed the risk of injuries and/or that the Plaintiff failed to mitigate any alleged injuries by not following medical advice.

After reviewing the pleadings, the court found that the Defendants failed to provide sufficient factual specificity in support of the defenses raised in the Defendant's New Matter. The court noted that the conclusory paragraphs asserted by the Defendant did not enable the Plaintiff to prepare their case in opposition to the defenses raised.

In striking the new matter allegations regarding contributory negligence and assumption of the risk, the court noted that, under Pa. R.C.P. 1030(b), it is provided that the affirmative defenses of assumption of the risk and contributory negligence need not be pled.  As such, the court noted that the Defendant did not need to restate these claims in any amended pleading but that, if they chose to do so, the Defendants were required to fully conform to the requirement under Pa. R.C.P. 1019(a) of providing sufficient factual specificity in support of such pleadings.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Thomas J. Newell of Newell Law in Perkasie, PA for bringing this case to my attention.

New Matter Defense Stricken for Lack of Factual Specificity

In the case of Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. Oct. 1, 2021 Williamson, J.), the court found that the Defendant’s Answer and New Matter, which attempted to assert that the Plaintiff’s own contributory negligence was a factor in this dog bite case, failed for lack of specificity where the Defendant did not allege enough facts to put the Plaintiff on notice as to what purported misconduct and/or negligence on the part of the Plaintiff was at issue.

According to the Opinion, the Plaintiff was an Assistant Fire Chief who had responded to a 911 call regarding a potential house fire. When the Plaintiff entered the premises, he was allegedly attacked by a pit bull.

In filing Preliminary Objections to the Defendant’s New Matter allegations, the Plaintiff asserted that the facts alleged in the New Matter only indicated that the Plaintiff had come into contact with the dog but did not put the Plaintiff on notice of any alleged misconduct on the part of the Plaintiff that allegedly caused the dog to attack the Plaintiff.

The court agreed with the Plaintiff that the Defendants’ allegations were not factually sufficient to support claims of contributory negligence.  In so ruling, Judge Williamson emphasized that Pennsylvania is a fact-pleading state under the mandates of Pa.R.C.P. 1019(a).

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 23, 2021).

Source of image:  Photo by Nikola Cedikova on www.pexels.com.

Court Holds Defense to Task with New Matter Pleadings

In the case of Kremser v. Lindauer, No. CV-21-0022 (C.P. Lyc. Co. April 30, 2021 Tira, J.), the court granted a Plaintiff’s Preliminary Objections to a Defendant’s Answer and New Matter in a motor vehicle accident case.

In its New Matter, the defense included a paragraph that stated that the “Defendant reserves the right to raise additional affirmative defenses which may become known during the investigation of this case or throughout the discovery process.”

The trial court sustained the Plaintiff’s Preliminary Objections this New Matter pleading. The court emphasized that Pennsylvania is a fact-pleading state.  The court noted that, under Pa. R.C.P. 1019(a), “the material facts on which a cause of action or defense is based shall be stated in concise and summary form.”  As such, all pleadings must sufficiently stated  in order to put the opponent on notice of the issues presented.

The court also sustained the Defendant’s assertion of an affirmative defense in the New Matter in which the Defendant cited to the entirety of the Pennsylvania Motor Vehicle Financial Responsibility Law. The court stated that such catch-all all provisions are improper under the Rules of Civil Procedure whether they are attempted by a plaintiff or a defendant.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 6, 2021).

Source of Image:  Photo by Wesley Tingey on unsplash.com

Factually Unsupported Allegations Asserted in a New Matter in a Med Mal Case Stricken

In the case of Arens v. Remick, No. 20-CV-21 (C.P. Lacka. Co. April 30, 2021, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a detailed Order addressing Preliminary Objections filed by Plaintiffs seeking to strike numerous paragraphs in the Defendants’ New Matter under an argument that the affirmative defenses asserted by the medical malpractice Defendants are legally insufficient and/or without the requisite factual specificity or support.

In his Order, Judge Nealon emphasized that Pennsylvania is a fact-pleading state and that pleadings must advise the opposing party of the claims or defenses being asserted and summarize the essential facts supporting those claims and/or defenses.

After reviewing the standard or review in addressing a claim that a pleading lacks the requisite factual support, the court found that certain allegations in the Defendants’ New Matter did not provide the Plaintiffs with adequate notice of the defenses being raised. The court also noted that the Complaint was devoid of any allegations that made some of the defenses raised in the New Matter even applicable to the case presented.

As such, the court struck certain paragraphs of the New Matter as being in violation of Pa. R.C.P. 1019(a), which governs the required contents of all pleadings. However, the court did allow the Defendants the opportunity to file an Amended New Matter with respect to the affirmative defenses at issue.

Anyone wishing to review a copy of this decision may click this LINK.

Boilerplate Affirmative Defenses Stricken

In the case of Greenspan v. Platinum Healthcare Group, LLC., No. 2: CV-05874-JDW (E.D. Pa. March 16, 2021 Wolson, J.) the court struck Affirmative Defenses from a Federal Court Answer filed by a Defendant in a case where the defendant failed to assert any allegations or cite to any facts or evidence that would give rise to a good faith basis to plead the defenses that were asserted.

The court found that the Defendant's Affirmative Defenses violated Rule 11 as they were pled with conditional language that indicated that the Defendant did not have evidence to support the assertion of the defenses at the time. Rather, the court seem to indicate that it felt that boilerplate defenses had been pled in the case.

While the court acknowledge that defense counsel only had a short time to investigate the case before the pleading deadlines, the court found that this did not excuse counsel from the requirement of having a good faith basis to assert Affirmative Defenses in an Answer. 

The court pointed out that defense counsel with limited time to investigate possible Affirmative Defenses could request an extension of time to file that Answer. The court stated that such request are routinely granted by Plaintiff’s attorneys and the courts as matter of courtesy.

The court additionally noted that the defendants have twenty-one (21) days for filing their Answer to file an amended Answer as of right under Rule F.R.C. P. 15.

The court also noted that defendants could thereafter request leave to file an amended Answer beyond the twenty-one (21) day period, which leave the court was required by the Rules to allow “when justice is so requires.”

In the Opinion, the court grandly stated that “its opinion will now be public record for counsel in this case and in future cases to use as a guide and pleading affirmative defenses.”

Given the court’s finding that the Defendant had violated Rule 11, the court issued the sanction of striking the Affirmative Defenses but did so without prejudice. The court noted that if the Defendant had a good faith basis to assert any Affirmative Defense, it could seek to assert them by filing an appropriate motion to amend its Answer.

The court ended the opinion by noting that “Pleadings are not an opportunity for lawyers to throw things against the wall and see what sticks.” The court noted that Rule 11 requires lawyers to give some thought to the assertions included in pleading before they are filed.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order of Court may be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Trial Court Requires Facts to be Pled to Support New Matter Defenses

In the case of Barnes v. Williamsport Petroleum, Inc., No. 20-0092 (C.P. Lycoming Co. Oct. 22, 2020 Linhardt, J.), the court sustained a Plaintiffs’ Preliminary Objections asserted against a Defendant’s affirmative defenses listed in a New Matter as such defenses were pled without any factual support. 

The court allowed the Defendants to file an amended pleading to contain factual allegations rather than a boilerplate listing of defenses in the New Matter.

This matter arose out of a slip and fall event.

The court agreed with the Plaintiff’s argument that facts were required to support New Matter defenses and that it would be inequitable to put the burden on the Plaintiff to conduct discovery to disprove a factually unsupported allegations, rather than requiring a Defendant to put forth some facts in the first place to support the defenses asserted.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 22, 2020).

Trial Court Rules that New Matter Defenses Must Be Supported by Factual Allegations

In the case of Mayernick v. Pattie, No. 2019-GN-1434 (C.P. Blair Co. Aug. 23, 2019 Doyle, J.), the court sustained certain Preliminary Objections filed by a Plaintiff to New Matter defenses asserted by a Defendant in a case arising out of a motor vehicle accident.  

The Plaintiff alleged that the Defendants failed to plead with sufficient specificity the affirmative defenses raised in their New Matter, including defenses with respect to the statute of limitations, allegations of intervening superseding causes of the alleged damages, claims that the Plaintiff failed to mitigate her damages, and claims that the Plaintiff may have selected the Limited Tort Option.  

The Plaintiff asserted that the Pennsylvania Rules of Civil Procedure require fact pleading even with respect to New Matter defenses and that the lack of specificity subjected the Plaintiff to possible unfair surprise at trial. 

After reviewing the Pennsylvania Rules of Civil Procedure 1019(a), the court noted that general, boilerplate allegations without specific factual averments averred in support of such allegations supported the sustaining of the Preliminary Objections to the New Matter pled in this case.  

Anyone wishing to review a copy of this Opinion may click this LINK.

I send thanks to Attorney Paul T. Oven of the Moosic, Pennsylvania law office of Dougherty, Leventhal & Price for bringing this decision to my attention. 

Propriety of New Matter Pleading Addressed By Judge Zulick of Monroe County

The propriety of pleadings in a New Matter contained in an Answer and New Matter to a Complaint were addressed by Judge Arthur K. Zulick of the Monroe County Court of Common Pleas in the case of Higgins v. Jimenez, No. 429 CV 2016 (C.P. Monroe Co. Aug. 24, 2018 Zulick, J.).  

This matter arose out of a motor vehicle accident.  

In response to the Complaint, the Defendant filed an Answer and New Matter in which he denied liability and asserted affirmative defenses.  In the New Matter, the Defendant generally alleged that the claims in the Plaintiff’s Complaint were barred or limited by accord and satisfaction, release, res judicata, collateral estoppel, arbitration and award, latches, and “any other affirmative defenses set forth in Pa.R.C.P. 1030(a).”  

The Plaintiff filed Preliminary Objections asserting that this boilerplate language contained in the New Matter was insufficient under the fact-pleading requirements of the Pennsylvania Rules of Civil Procedure.  

In the Brief in Opposition, the defense argued that, under the Rules of Civil Procedure, the Plaintiff was not even required to respond to the affirmative defenses contained in the new matter when they only contain conclusions of law as, under the Rules, such affirmative defenses would be deemed denied.  

The Defendant also asserted that, although a Plaintiff may have a long time to prepare a Complaint, a Defendant’s pleading in response to the Complaint had to be filed within only twenty (20) days of service of the Complaint.   As such, the defense argued that this short period of time did not provide the defense with time to investigate all potential affirmative defenses or gather facts in support of the same.

In this regard, it was additionally noted that a failure to raise affirmative defenses could result in a waiver of such defenses under the Rules.   For these reasons, the defense asserted that there conclusory defenses set forth in the New Matter should not be deemed to be objectionable at this stage of the litigation.

Judge Arthur K. Zulick
Monroe County
 

Judge Zulick agreed that the better approach was to allow for the raising of affirmative defenses as conclusions of law without the need for specific facts to support them at the time of the filing of the New Matter. 

The court went on to state that, at a later point in the proceedings, any affirmative defenses that remain without adequate factual support could be dismissed by way of a pre-trial motions.  

As such, the court allowed the specific affirmative defenses identified by the defense, but it granted the Plaintiff’s Motion to Strike the Catchall Allegation of “and any other affirmative defenses set forth in Pa.R.C.P. 1030(a) as that particular allegation was too vague. 

In his opinion, Judge Zulick emphasized that the court expected counsel to raise affirmative defenses in good faith and with a reasonable anticipation that they were, or could be, supported by facts.    The court noted that baseless pleadings could be subject to sanction by the court and attorney’s fees under 42 Pa. C.S.A. §2503(7).  

Anyone wishing to review a copy of this decision may click this LINK.
 

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).