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).

Judge Nealon Addresses Procedural and Substantive Complaint Issues Regarding a Complaint in Med Mal Case

In the case of Healey v. Scranton Hospital Company, LLC, No. 23-CV-1793 (C.P. Lacka. Co. Nov. 20, 2023 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed by Defendants in a medical malpractice case.

In part, the hospital Defendant filed Preliminary Objections in the nature of a demurrer to the Plaintiff’s vicarious liability claims for failing to identify its alleged agents by name and failing to specify their agency authority.

The hospital Defendant also filed Preliminary Objections against the Plaintiff’s corporate negligence claims for (1) neglecting to allege its notice of the claimed institutional deficiencies, and (2) asserting the corporate liability claims against it and a Co-Defendant LLC in the same Count in the Complaint.

Also at issue in this case was a demurrer filed by the hospitalist and the LLC employer to the vicarious liability and corporate negligence claim asserted against those parties. 

Those Defendants also sought to strike the Plaintiff’s allegations of gross negligence as well as allegations against “Defendants” as asserted in lump sum fashion in certain paragraphs without clarifying which particular Defendant is being referenced, among other issues.

The Court issued the following decisions in this Opinion.    

Judge Nealon noted that, since it is not necessary for a Plaintiff to establish a right to recover on a vicarious liability claim based upon the negligence of a specifically named employee, the demurrers to the Plaintiff’s vicarious liability claims premised on the conduct of unnamed agents was overruled.

The court otherwise also ruled that, while the Plaintiffs had alleged a viable claim for corporate liability against the hospital and the LLC employer, the Plaintiff had failed to state a cognizable corporate negligence claim against the individual hospitalist Defendant for institutional negligence.  As such, the corporate liability claim against the hospitalist was dismissed.

The court additionally sustained the Preliminary Objections regarding the combined allegations asserted in single pleadings against multiple Defendants..  The court ruled that the corporate liability claims against the hospital and the LLC employer were required to be alleged in self-sufficient separate Counts under separate, distinct headings in the Complaint in order to comport with Pa. R.C.P. 1019(a) and 1020(a).

The court additionally ruled that, pursuant to 40 P.S. §1303.505(b) and (c), the Plaintiff’s allegations of “gross” negligence were immaterial to the Plaintiff’s malpractice burden of proof and, as such, would be stricken as impertinent matter in accordance with Pa. R.C.P. 1028(a)(2).

The court otherwise noted that blanket references to “Defendants” in lump sum fashion in certain paragraphs in the Complaint were improper.

The Plaintiff was afforded an opportunity to amend the Complaint to correct these errors and other errors identified above.

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

Just the Facts: Untimely Answer To Complaint Does Not Mean Allegations of Negligence and Causation Are Admitted

In the case of Derbyshire v. Aria Health, No. 200202192 (C.P. Phila. Co. Aug. 21, 2023 Cunningham, J.), the court addressed a Plaintiff’s Motion to Post-Trial Relief in a slip and fall case.

The Plaintiff asserted that the Defendant’s failure to file a timely Answer to her Complaint constituted admissions as to the claims of negligence.

With this decision, the trial court filed an Opinion pursuant to Pa. R.A.P. 1925 requesting that the Superior Court affirm the trial court’s decision finding that the Plaintiff’s allegations of negligence and causation were allegations that constituted conclusions of law, not factual averments. The trial court asked the Superior Court to therefore find that the Defendant’s failure to answer such allegations did not constitute admissions of fact.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 17, 2023).

Source of Image:  Photo by Anastasiya Badun on www.unsplash.com.

Claims of Recklessness And Punitive Damages Allowed To Proceed in Trucking Accident Case Where Outrageous Facts Pled

In the case of Guy v. Eliwa, No. 4:23-CV-00472 (M.D. Pa. Sept. 11, 2023 Brann, C.J.), Chief Judge Matthew W. Brann of the Federal Middle District Court for the Middle District of Pennsylvania reviewed the propriety of claims of recklessness in civil litigation matters in the context of a federal court personal injury suit.

According to the Opinion, this case arose out of a three (3) vehicle accident on Interstate 80 that involved three (3) tractor trailers. Two (2) tractor trailers were involved in an accident on the highway and then struck the Plaintiff’s parked tractor trailer.

One of the Defendant tractor trailer drivers fled the scene of the accident without attempting to stop or render aid. That driver was subsequently charged with accidents involving death or personal injury, disregarding the traffic lane, accident involving property damage, failure to stop and give information and render aid, careless driving, and recklessly endangering another person.

The Plaintiff sued the tractor trailer drivers and their employers. In the Complaint, the Plaintiff asserted various allegations of recklessness.

The Defendants filed various motions against the Complaint.

In contrast to the more stringent state court Rules of Civil Procedure requiring fact-pleading in Pennsylvania, under the Federal Rules of Civil Procedure, notice pleading is all that is required.  

Relative to the Plaintiff’s claims for punitive damages, the court in this case noted that the Plaintiff cited to Pennsylvania case law explaining that the procedural rules allow a Plaintiff to pled gross negligence and recklessness generally.

Chief Judge Matthew W. Brann
M.D. Pa.

Judge Brann noted that this would mean that a Plaintiff need only allege that a Defendant was “reckless” for punitive damages claims to survive a Motion to Dismiss, so long as the underlying negligence claim also survives.

In reviewing this area of the law, Judge Brann noted that there is a split of authority amongst the Pennsylvania state courts on this point. In noting the split of authority, Judge Brann cited to “Pleading For Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters” by Daniel E. Cummins, 93 PA Bar Ass’n Q.32 (2022).

Judge Brann noted that “even in Pennsylvania courts which permit recklessness to be averred generally at the Motion to Dismiss stage, the record must ultimately support a finding of recklessness beyond merely claiming recklessness generally. See Op. at 12 citing Monroe v. CBH20, LP, 286 A.3d 785, 780 (Pa. Super. 2022).

In this case, Judge Brann applied Federal Rule of Procedure 9(b). The court noted that Rule 9(b) mirrors Pennsylvania Rules of Civil Procedure 1019(b) by stating that “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”

With respect to the separate issue of allegations in support of a claim for punitive damages, the court noted that a Plaintiff is required to show that the Defendant had a state of mind such that the Defendant had to be an outrageous manner due to other an evil motive or a reckless indifference to the rights of others.

The court stated that, in order to show reckless indifference sufficient to support a claim for punitive damages, the Plaintiff must present evidence to establish that a Defendant had a subjective appreciation of the risk of harm to which the Plaintiff was exposed and that the Defendant acted, or failed to act, in conscious disregard of that risk.

Judge Brann stated that this means that recklessness - - like negligence - - is a legal standard, with components relating to a Defendant’s conduct and a Defendant’s state of mind. The court noted that Rule 9(b) only pertains to the Defendant’s state of mind.

Accordingly, Judge Brann held that a federal court may dismiss a completely bald allegation of “recklessness” as conclusory when a Plaintiff is requesting punitive damages. However, he emphasized that a federal court is not compelled to dismiss such a claim. 

Reviewing the law of the Third Circuit, Judge Brann found that the weight of authority in the Third Circuit has prompted most courts in the District, including the federal courts of the Middle District, to employ the trial court’s wide discretion in preserving recklessness claims at the Motion to Dismiss stage and allowing such claims to proceed into discovery.

Judge Brann continued by stating that the courts in the Middle District have more specifically stated that, because the question of whether punitive damages are proper often turns on the Defendants’ state of mind, this question frequently cannot be resolved on the pleadings alone but must await the development of the full factual record at trial.  As such, such claims are generally allowed to proceed beyond the pleadings stage.

Turning to the allegations asserted by the Plaintiff in this case, Judge Brann found that the Plaintiff had actually alleged outrageous facts to show evidence of reckless indifference on the part of the Defendant in any event so as to allow the claim to proceed into discovery. More specifically, the court noted that flight from the scene of an automobile accident, without attempting to stop or render aid, certainly demonstrates a degree of reckless indifference possibly justifying the application of punitive damages.

Judge Brann’s decision in this case is otherwise notable for his addressing various issues with regards to trucking accident cases, including the requirement of the Plaintiff to cite to specific statutes and laws and regulations in the Complaint when making claims of violations of the same.

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

I send thanks to Attorney Hannah Molitoris of the Philadelphia office of the Morgan & Morgan law firm for bringing this case to my attention.

Sanctions Awarded For Unreasonable and Vexatious Litigation

 In the case of Chicka v. Hearing Health PA., LLC, No. 2:21-CV-1405 (W. D. Pa. Feb. 23, 2023 Horan, J.), the court found that a Plaintiff’s attorney was subject to sanctions for unreasonable and vexatious litigation where the Plaintiff’s attorney unnecessarily delayed the proceedings for over a year as the case remained mired in the pleadings given that defense counsel was required to prepare multiple Motions to Dismiss to address repeated substantive and procedural errors that should have been easily remedied through simple cooperation.   

The court noted that, under 28 U.S.C. §1927, an attorney who multiples the proceedings unreasonably and vexatiously may be personally liable for the resulting costs, expenses, and attorney’s fees incurred.   

The court found that the four (4) elements required to be shown for sanctions were met in this case, including the elements of (1) multiplied proceedings; (2) unreasonable and vexatious conduct; (3) increased costs of the proceedings; and (4) bad faith or intentional misconduct.   

The court noted that it would schedule a separate hearing to determine the amount of sanctions to be awarded.   

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 23, 2023). 

Case Dismissed Due To Untimely Filed Amended Complaint Being Found to Be a Legal Nullity

In the non-precedential decision by the Pennsylvania Superior Court in the case of Tabb v. Thomas, No. 72 EDA 2022 (Pa. Super. March 2, 2023 Panella, P.J., Stabile, J. and King, J.) (Mem. Op. by Panella, P.J.), the Pennsylvania Superior Court addressed the ability of a Plaintiff to file an Amended Complaint after the time allowable for the same has expired. 

In this case, which arose out of a slip and fall matter, the Plaintiff started the lawsuit with a Writ of Summons and then filed a Complaint. The Defendant responded with Preliminary Objections. When the Plaintiff did not reply to the Preliminary Objections, the court sustained the same and dismissed the Plaintiff’s Complaint.

Thereafter, without leave of court, or agreement or consent of the Defendant, the Plaintiff filed an Amended Complaint raising essentially the same claims. The Defendant again filed Preliminary Objections raising the same issues as raised before and adding an argument that Amended Complaint was untimely filed and that the Plaintiff had failed to seek the leave of court or the Defendant’s agreement prior to the filing of the Amended Complaint.

In response, the Plaintiff filed a Second Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant responded with Preliminary Objections again.

Thereafter, the Plaintiff filed a Third Amended Complaint, again without the permission of the trial court or the agreement of the Defendant. The Defendant raised the same arguments in his Preliminary Objections, again asserting that the Plaintiff had failed to seek leave of court or the Defendant’s agreement to file the additional Amended Complaint. 

The trial court sustained the Defendant’s Preliminary Objections in this regard, finding that the Plaintiff had failed to seek leave of court or the agreement of the Defendant to file the Amended Complaint. The court also held that the Amended Complaints were void and should be stricken. As such, the case was dismissed by the trial court with prejudice. The Plaintiff then filed this appeal.

On appeal, the Pennsylvania Superior Court affirmed the dismissal of the case by the trial court.

The Superior Court rejected arguments by the Plaintiff that what was before the court were mere technical errors that the Plaintiff should not be punished for due to his counsel’s failure to strictly adhere to the court rules. 

The Superior Court also rejected an argument by the Plaintiff that amendments to allegations in a Complaint must be liberally allowed to secure a speedy determination of the action. 

The Superior Court additionally rejected the Plaintiff’s arguments that the Amended Complaint should be allowed as the Defendant did not suffer any prejudice given that the Defendant was aware of the claims presented.

The trial court additionally rejected the Plaintiff’s separate argument that, even though the trial court struck the various Amended Complaints, the original Writ of Summons remained valid such that the Plaintiffs should be allowed to further litigate the Writ.

In so ruling, the Pennsylvania Superior Court confirmed that a Plaintiff has an automatic right to amend the Complaint within twenty (20) days of the filing of a Defendant’s Preliminary Objections as per Pa. R.C.P. 1028(c)(1).

The Superior Court also noted that, if the Amended Complaint is not filed within twenty (20) days, the Plaintiff must obtain either the Defendant’s consent or leave of court to file an Amended Complaint under the mandate of Pa. R.C.P. 1033(a).

In this matter, the Pennsylvania Superior Court held that, given that the Plaintiff did not ever request leave of court to file an Amended Complaint nor the consent of the Defendant to do the same, the Plaintiffs later filed Amended Complaint was a legal nullity.

The court rejected the Plaintiff’s argument that the trial court had and an obligation to sua sponte allow an amendment of the Complaint.

Given the Plaintiff’s failures, the Superior Court in Tabb agreed with the trial court's ruling and upheld the finding that that the Plaintiff had waived his claims under the circumstances presented. 

Given that the Plaintiff is found to have waived his claims, the appellate court affirmed the trial court’s dismissal of the case with prejudice.

Although the Tabb decision was listed as non-precedential, the Superior Court cited to the Pennsylvania Rules of Civil Procedure and precedential appellate court decisions on point to support its decision in this matter.    

Anyone wishing to review this non-precedential decision of the Pennsylvania Superior Court in the case of Tabb v. Thomas may click this LINK.

Source: “Pennsylvania Civil Law Case Alerts Issued by Fastcase.com.” (March 4, 2023).

Source of image:  Photo by Jon fabrikasimf on www.freepik.com.

Court Grants Trucking Defendant's Motion to Amend its Answer and New Matter to Change Denials to Admissions

In the case of Bellersen v. Gill, No. 19-CV-2686 (C.P. Lacka. Co. Nov. 1, 2021 Nealon, J.), Judge Terrence R. Nealon addressed a motion filed by a trucking Defendant in a motor vehicle accident litigation under which the trucking Defendant sought to amend its Answer and New Matter to change previous denials in its original Answer and New Matter relative to the facts and the cause of the accident.

The trucking Defendant sought to admit factual allegations of the accident and to further admit that the Defendant driver’s failure to use due care while driving his vehicle on Interstate 380 caused him to rear-end the vehicle in front of him which, in turn, caused that vehicle to rear-end the vehicle that the Plaintiff was driving, and further caused the front of the Plaintiff’s vehicle to hit the vehicle in front of the Plaintiff.

It was noted in the Opinion that, while this proposed amendment was offered up two (2) years after the original Answer and New Matter was filed, no trial date was scheduled in the case and discovery was ongoing.

The Defendant offered up a proposed Order that not only granted his motion but also contained language under which the Defendant driver seeking the court to rule that such admissions shall not be used as any admission of any type of conduct which could serve as the basis for the imposition of punitive damages.

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Nealon reviewed the rules regarding pleading, which he confirmed are to be liberally applied. The court also noted that there was no time limit under Pa.R.C.P. 1033 for the filing of any request for an amendment to a pleading.

The court granted the Defendant’s Motion and allowed the amendment but held any decision on the impact of any such amendment on any claim for punitive damages for a later day.

The court noted that the Defendant’s request that the Plaintiff be prevented from making any evidentiary use of the allowed admissions in support of the Plaintiff’s punitive damages claims was not an appropriate consideration relative to the request for leave of court to amend a pleading under Rule 1033. Rather, the court noted that the preclusion of evidence at trial is more properly a subject for a Motion In Limine to be decided by any assigned trial judge.

The court emphasized that any admission that the trucking Defendant would put in his Answer and New Matter would be considered a judicial admission. However, any legal conclusions in the Plaintiff’s Complaint, such as allegations of negligence and/or recklessness, would not qualify as judicial admissions under Pennsylvania law.

Anyone wishing to review a copy of this interesting Opinion by Judge Nealon in the case of Bellersen may click this LINK.

Source of top image: Photo by Mike from Pexels.com.

LOOKING TO TRY TO BRING YOUR TRUCKING ACCIDENT CASE TO A CLOSE BEFORE THE END OF THE YEAR?

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Can Any Negative Impact Result From a Plaintiff's Failure to File a Reply to a New Matter?

In the case of Mayfield Assoc., LLC v. Clauss Bovard Agency, Inc., No. 19-CV-2282 (C.P. Lacka. Co. April 7, 2020 Nealon, J.), the court reaffirmed the rule of law that a Plaintiff need not file a Reply to any conclusions of law contained in a New Matter as such allegations are deemed denied by operation of law. 

This matter involved an insurance coverage dispute. 

After the pleadings were filed in this case in the form of a Complaint and an Answer and New Matter, but no Reply to the New Matter, the Defendant filed a Motion for Judgment on the Pleadings based upon the Plaintiff’s failure to file a timely Reply to the New Matter contained in the Defendant’s Answer and New Matter. 

The Defendant asserted that the Plaintiff’s failure to file a Reply amounted the admissions of facts alleged in the New Matter. More specifically, West Chester had alleged that an exclusion contained in the policy applied to preclude coverage. 

The Plaintiff filed a Reply to the New Matter after the Motion for Judgment on the Pleadings was filed. In its Reply, the Plaintiff asserted that the allegations of the New Matter only set forth conclusions. The Plaintiff also contended that issues of fact remain to be resolved through discovery such that judgment on the pleading should not be granted. 

The court agreed that a party did not need to answer mere conclusions of law contained in a New Matter as such allegations are deemed denied pursuant to Pa. R.C.P. 1029(d). 

More specifically, the court found that the Defendant’s allegation in its New Matter that the Plaintiff’s claim was barred by a policy exclusion was a conclusion of law which, as a matter of law, was deemed denied. 

As such, the Motion for Judgment on the Pleadings filed by the defense was denied. 

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (May 19, 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. 

Preliminary Objections Sustained Where Only Conclusory Allegations Set Forth in Dram Shop Action

In the case of Shultz v. Barnes, No. 18-CV-1308 (C.P. Lyc. Co. July 19, 2019 Linhardt, J.), the court sustained several Preliminary Objections filed by a Defendant in a liquor liability motor vehicle accident case given that the Plaintiff failed to allege sufficient facts to support various claims. 

According to the Opinion, the Plaintiff was the administrator of the estate of a decedent who was killed in a motor vehicle accident caused by a tortfeasor driver. The Plaintiff alleged that the tortfeasor driver was driving a motor vehicle under the influence of alcohol. 

In addition to suing the driver, the Complaint also identified the company that operated the bar where the tortfeasor driver was drinking prior to the accident as a defendant in this case. The owner and president of that bar was also listed as a defendant.  

 The Defendants filed various Preliminary Objections to the Complaint.  

The court sustained the Defendants’ Preliminary Objections to the count in the Complaint alleging a violation of the Dram Shop Act.  

The defense had argued that the Plaintiff had only provided conclusory allegations that the Defendants knew that the tortfeasor driver was visibly intoxicated while he was at the bar.   The court granted these Preliminary Objections and noted that it was not sufficient for a Plaintiff to simply allege that alcoholic beverages were served to patrons in order to support a Dram Shop action.  

The court noted that the Plaintiff failed to assert any facts regarding the physical appearance of the tortfeasor Defendant driver in terms of whether he was visibly intoxicated or not while he was served at the bar.   Although this Preliminary Objection was sustained, the Plaintiff was granted an opportunity to file an Amended Complaint.  

Relative to the Preliminary Objections filed by the individual Defendant, the court found that the Plaintiff failed to allege sufficient facts to pierce the corporate veil.   Again, the Plaintiff was granted an opportunity to file an Amended Complaint in this regard.  

The court also sustained Preliminary Objections to the Plaintiff’s wrongful death claim given that that claim was brought not only on the Plaintiff’s behalf but also on behalf of entities who were allegedly entitled to damages for reasonable hospital, nursing, and medical expenses, as well as funeral expenses, burial expenses and other losses.  The court noted that, under the Rules of Civil Procedure, such allegations were improper in a wrongful death claim.  As such, the Preliminary Objections in this regard were sustained.   Again, the Plaintiff was granted leave to file an Amended Complaint.

Lastly, the court also sustained Preliminary Objections to the allegations of recklessness and the claims for punitive damages under a finding that the Plaintiff failed to allege sufficient facts to support these allegations.   The court noted that, should discovery later reveal facts supporting an award of punitive damages on separate claims, the Plaintiff would be allowed to seek an amendment at that time.   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (August 27, 2019).    

New Rule Pertaining to John Doe Designations in Pleadings Recently Went Into Effect - Pa.R.C.P. 2005

On April 1, 2019, Pa.R.C.P. 2005, which governs the use of “John Doe” or “Jane Doe” designations in pleadings, took effect.

According to the Comment to the Rule, the Rules of Civil Procedure were silent as to this issue prior to the implementation of Pa.R.C.P. 2005.

The rule allows a plaintiff or a defendant joining party to designate an unknown defendant by use of a Doe designation provided certain conditions are met. Under the Rule, the Doe defendant’s actual name must be unknown to the plaintiff or the defendant joining party after the completion of a reasonable search for the person using due diligence.

According to the Comment, an effort to list as parties, “Defendants John Doe 1-10 is frowned upon.

The Rule also requires a specific allegation in the pleading confirming that the Doe designation is a designation of a fictitious person or entity.  Also included in the pleading must be a factual description of the unknown defendant which must contain sufficient particularity for identification.
 

Moreover, the plaintiff or defendant joining party must aver that a reasonable search to determine the actual name of the Doe defendant has been conducted.

Any named defendant in the action is granted authority under Rule 2005(e) to file Preliminary objections on the grounds of nonconformity with this Rule 2005 by the Plaintiff or on the grounds of prejudice.

The Rule additionally provides that once the actual name of the unknown defendant is determined, the plaintiff or joining party must file a motion to amend the Complaint pursuant to this Rule 2005 and in accordance with Pa.R.C.P. 1033, by replacing the “Doe” designation with the defendant’s actual name.  Such a motion must be supported by an affidavit explaining the nature and extent of the investigation utilized to determine the Doe defendant’s actual identity and to provide the date that the identity was determined.

Under the Rule, it is also provided that subpoenas in aid of discovery relating to an unknown Defendant may not be issued or served without leave of court.

Rule 2005 also confirms that a judgment may not be entered by the court against an unknown Defendant.

Source:  Article “New Rule of Civil Procedure Governing Unknown Defendants Took Effect April 1, 2019” by Matthew E. Salmasska, Esq. in the PBA’s Civil Litigation Sections Civil Litigation Update Newsletter at p. 13 (Spring, 2019).  See also Pa.R.C.P. 2005.

Preliminary Objections Denied in Premises Case on Issues of Agency, Recklessness, and Specificity

The Lackawanna County Court of Common Pleas addressed Preliminary Objections to a personal injury Complaint in the case of Rossi v. School Side Builders, Inc., No. 2017-CV-2731 (C.P. Lacka. Co. Nov. 15, 2018 Nealon, J.).   This matter arose out of a premises liability claim.   

The Plaintiff contends that she was a residential tenant on the Defendant’s premises.   The Plaintiff was in the process of cooking french fries in a pan with grease on an electric stove when the pan suddenly caught on fire.   

The Plaintiff alleged that the flames from the fire activated the automatic sprinkler system in the building and water was emitted from the sprinkler head which then allegedly caused a fireball explosion when the water contacted the boiling grease.  This allegedly caused the boiling grease to splash from the pan and burn the Plaintiff on various parts of her body.  

The case came before the court by way of Preliminary Objections filed by the Defendant seeking to strike the Plaintiff’s vicarious liability claim based upon the Plaintiff’s failure to identify the Defendant’s alleged agents by name.    

The Defendants also preliminarily objected to the Plaintiff’s allegations of recklessness and the related claim for punitive damages on the grounds that the Plaintiff has not alleged sufficient facts to support those claims.   

The Defendants additionally asserted a “Connor” objection with regards to the Plaintiff’s references to the Defendant’s alleged failure to comply with certain requirements of the International Building Code and the National Fire Protection Association requirements without specifying which code provisions or requirements were allegedly violated.  

With regards to the Preliminary Objections to the vicarious liability claim, the court addressed various appellate decisions which have repeatedly held that a plaintiff's failure to identify the Defendant’s agents by name, or the designation of those individuals as a unit, does not justify striking agent allegations in a Complaint.   Judge Nealon noted that these appellate court decisions have led to a number of similar decisions in the Lackawanna County Court of Common Pleas rejecting efforts by Defendant to strike agency claims for failure to identify the actual or ostensible agents by name [usually in the medical malpractice context].   

The court in Rossi also noted that, to rule otherwise, would result in numerous requests for pre-Complaint discovery in virtually every case in order to pre-empt the filing of these types of Preliminary Objections by Defendants.   Accordingly, these Preliminary Objections to the vicarious liability allegations in the Complaint were denied.  

Relative to the allegations of recklessness and the claim for punitive damages, the court reviewed the requirements for this type of cause of action and held that, based upon a review of the allegations in the Complaint, the Plaintiff had sufficiently pled these claims under the current status of the law.  As such, these Preliminary Objections were denied as well.  

With regards to the Defendant’s Connor objections regarding the Plaintiff’s allegations pertaining to violations of co-provisions and requirements, the court ruled that the Plaintiff alleged sufficient facts to implicate the Code provisions and noted that the issue of which sections of the application Codes were applicable could be developed and determined during the course of discovery and thereafter addressed and resolved in Pre-Trial Motions In Limine.   As such, these Preliminary Objections were denied by the court as well.

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

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).

STUFF YOU GOTTA KNOW

With the Pennsylvania state court systems gradually moving over into the digital age, the Administrative Office of Pennsylvania Courts (AOPC) has taken steps to address the need to protect individuals from identity theft and from disclosure of private information.

Effective this upcoming January 8th, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and/or confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form:

"I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents."


Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other documents noted below will have to be filed as well.


Here is a LINK to the Public Access Policy of the Unified Judicial System of Pennsylvania:  Case Records of the Appellate and Trial Courts.

Here is a LINK to the "Explanatory Report" on the Public Access Policy of the Unified Judicial System of Pennsylvania.

Here is a LINK to the Confidential Information Form which shall be filed whenever a party is required to submit documents or filings containing confidential information with the court filing.

Here is a LINK to a Confidential Document Form which is required to be filed whenever documents attached to the filing contain confidential information that should be shielded from the public.

Judge Gartley of Luzerne County Addresses Service of Process Issues

In her recent decision in the case of Nicholas v. Zolner, No. 2013-CV-9828 (C.P. Luz. Co. Dec. 29, 2016 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas issued a Pa. R.A.P. 1925 Opinion in support of her previous Order sustaining the Defendant’s Preliminary Objections which asserted that the Plaintiff’s case should be dismissed for failing to serve the Defendant with original process.  

The court sustained the Defendant’s Preliminary Objections after finding that the Plaintiff failed to file the Writ of Summons upon the Defendant as required by the Pennsylvania Rules of Civil Procedure and Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) and its progeny. 

The Plaintiff filed an appeal from that decision and Judge Gartley issued this Pa. R.A.P 1925 Opinion to outline her reasoning to the Pennsylvania Superior Court.  In her Opinion, Judge Gartley provides a detailed analysis of the rules surrounding proper service of process.  

Judge Tina Polachek Gartley
Luzerne County

The court not only found that the Plaintiff failed to complete service but also rejected the Plaintiff’s argument that the party Defendant was put on notice of the lawsuit because the Plaintiff was in contact with the Defendant’s insurance company prior to the lawsuit being filed.    

Judge Gartley noted that the Superior Court has held that notice to an insurance company or its attorney of the filing of a lawsuit is insufficient to toll the statute of limitations when there has been no good faith effort to serve the actual Defendants.  

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

The prevailing defense attorney in this matter was Attorney Stephen T. Kopko of the Foley, Comerford & Cummins insurance defense law firm in Scranton, Pennsylvania.  

Judgement Non Pros Granted in Monroe County Case Relative to Delays in Prosecuting Claim

In his recent decision in the case of Moll v. Reinhart and Rusk, PICS Case No. 15-1336 (C.P. Monroe Co. May 11, 2015 Williams, J.), Judge David J.Williamson granted a Defendant’s request for the entry of a judgment non pros in a case where nearly four (4) years passed between the filing of a Writ of Summons and the filing of a Complaint without any compelling reason for the delay being provided to the Court. Judge Williamson found that this amounted to a lack of due diligence on the part of the Plaintiff and, therefore, the Defendant’s Motion to Dismiss For Lack of Prosecution was granted.

This matter arose out of a fall from a work place ladder.

The Writ of Summons was filed the day before the expiration of the applicable statute of limitations and was timely served on one (1) of the Defendants. Another Defendant was not served until approximately two (2) years later with Writ. Although the Writ was filed in August of 2012, the Complaint was not filed until June of 2014.

Judge David J. Williamson
Monroe County

The Court noted that, in the interim, the only witness to the accident passed away. This, according to the Court, amounted to prejudice to all of the Defendants.

Anyone desiring a copy of this decision by the Court may contact the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427.

Source: "Digest of Recent Cases" Pennsylvania Law Weekly "September 1, 2015"

Where Corporate Franchisor is Named Defendant, Service of Process on Local Franchisee is Insufficient

In the case of  Trexler vs McDonald’s Corporation, 2015 Pa. Super. 131, 903 MDA 2014 (Pa. Super. June 3, 2015 Ford Elliott, P.J.E.,  Shogan, J., Stabile, J.)(Op. by Stabile, J.), the Pennsylvania Superior Court recently clarified that, where the named Defendant in a lawsuit is the Corporate Franchisor, in order for service of a Complaint as original process to be proper, the Complaint must be served upon that Corporate Franchisor Defendant, and not he individual franchisee who may own the local establishment.  

In this case, the Plaintiff sued the McDonald's Corporation after an alleged slip and fall at a local McDonald's located in Pottsville, Pennsylvania.

The Plaintiff served the Complaint upon the manager of the local Pottsville franchisee McDonald’s where the Plaintiff was allegedly injured as a result of an alleged slip and fall.  The Plaintiff did not properly serve the Complaint upon an agent of McDonald’s Corporation, who was the actual Defendant named in the lawsuit.   

The Corporation argued in Preliminary Objections that it did not own or manage the local Pottsville McDonald’s and that, as such, service was improper or incomplete.  The McDonald’s Corporation also asserted that no one at the local McDonald’s in Pottsville was authorized to accept service of any lawsuit on behalf of the Corporate Franchisor.

The Court agreed that proper service of the Complaint had not been effectuated over the Corporate Franchisor Defendant named in the suit under the circumstances presented.

The Plaintiff countered with an argument that the Preliminary Objections filed by McDonald’s Corporations, which were filed eleven months after the local franchisee’s manager was served, were untimely, as the Preliminary Objections were well beyond the 20 days within which Rule 1026 permits the filing of pleadings subsequent to a Complaint.  

The Superior Court rejected this argument and emphasized that the deadline noted in Pa.R.C.P. 1026(a) to file Preliminary Objections within 20 days was a deadline the time for which did not begin until after proper service of the previous pleading.  Since there was no proper service of the Complaint, the 20 day rule to file the subsequent pleading never began to run.

As such, the trial court’s granting of the Corporate Defendant’s Preliminary Objections was affirmed by the Superior Court.

This Superior Court Opinion in the Trexler v. McDonald's case can be viewed online HERE.

I send thanks to Attorney Patricia Burns Horn of the Exton, PA law firm of Connors O'Dell, LLP for bringing this decision to my attention.

Preliminary Objections Against Allegations of Recklessness in Negligence Auto Accident Suit Sustained

In the recent decision in the case of Roma v. Finney, PICS Case No. 15-0641 (C.P. Northampton Co. Feb. 23, 2015 Beltrami, J.), the trial court sustained a Defendant’s Preliminary Objections in an automobile accident matter and ordered that the words “reckless,” “recklessness,” and “recklessly” be stricken from the Complaint. 

The court noted that this matter involved a negligence cause of action arising out of a rear-end motor vehicle accident.  In her Complaint, the Plaintiff alleged negligence and/or recklessness on the part of the Defendant caused the accident and injuries.   Notably, the Plaintiff did not request punitive damages in the Complaint.  

The Defendant filed Preliminary Objections in the nature of a Motion to Strike impertinent matter pursuant to Pa. R.C.P. 1028(a)(2).  

As there were no facts plead in the Complaint to support the objected to language, and given that no claim for punitive damages was pled, the court granted the Preliminary Objections as allegations of recklessness were deemed to be immaterial to proving a negligence cause of action.  

Anyone desiring a copy of this Opinion may click this LINK.

Source:  "Case Digests," Pennsylvania Law Weekly (April 28, 2015).

Split of Authority Develops in Dauphin County on Post-Koken Severance vs. Consolidation Issue

A recent Post-Koken severance Order was handed down in Dauphin County in the case of Phaler v. Ray and Westfield Ins. Co., No. 2014 CV 7332 (C.P. Dauph. Co. April 3, 2015 Bratton, J.).

The court granted a third party tortfeasor's Preliminary Objections seeking the severance of the negligence claims asserted against him from the breach of contract claims asserted against the UIM carrier.

This decision was by Order only. 

Notably, this decision goes against the trend of several prior Dauphin County decisions that went the other way, i.e., in favor of the consolidation of such claims through discovery.  No rationale for this change of position is noted in the Phaler Order.

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

I send thanks to the prevailing defense attorney, W. Darren Powell, Esq. from the Lemoyne, PA law firm of Johnson, Duffie, Stewart & Weidner for bringing this case to my attention.

Proper Pleadings in a Federal Court Trucking Accident Case Reviewed

In its recent memorandum decision in the case of Gregg v. Lonestar Transportation, LLC, 2015 WL 1003911 (W.D. Pa. March 6, 2015 Gibson, J.) (mem.), the Western Federal District Court of Pennsylvania held that allegations that defendant trucking company's agent acted outrageously in operating a truck/trailer that measured 160 feet in length from a place of safety into a place that was extremely dangerous and which caused a sudden emergency, failed to allege sufficient facts supporting a claim for punitive damages.  However the Plaintiff was given an opportunity to amend.  More specifically, the court ruled that allegations pertaining to a Defendant’s moving of an oversize truck load over a bridge in dense fog could not possibly support a punitive damages claim. 

The court reaffirmed the well-settled principle of law that punitive damages are an extreme remedy available only in the most exceptional matters.  Such a claim requires allegations of an evil motive or reckless indifference.  Moreover, a plaintiff must plead and establish that the defendant’s subjective appreciation of the risk that harmed the plaintiff and that the defendant consciously disregarded that risk.  Here, the Plaintiff did not alleged that the Defendant knew of and disregarded any risk.  The Court also noted that the alleged failure to train amounted to negligence but not outrageous so as to support a claim for punitive damages.

The court also ruled that an assertion in the Complaint along the lines of "including but not limited to" language was not so vague and ambiguous so as to require a more definitive statement given the context in which that language appeared.  However, where that language appeared in another paragraph of the Complaint such a phrase was found to indeed require a more definitive statement.  Again, the Plaintiff was given opportunity to amend.  The Court also finds that plaintiff's use of "in otherwise" language in another allegation did not render the allegation so vague and ambiguous as to make it impossible for defendant to respond. 

Last, the allegation that defendant was negligent in: "Training and instructing its employees, agents and/or drivers that the laws and regulations governing motor vehicles and permitted motor vehicles in the Commonwealth of Pennsylvania required said employees, agents and/or drivers to proceed from an area where no danger to motorists existed into an area where an extremely dangerous condition would exist for motorists" was found not to be so vague and ambiguous that the Defendant could not respond. 

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

I send thanks to Attorney James Beck of the Philadelphia office of Reed Smith for bringing this case to my attention.  I highly recommend that you check out Attorney Beck's award-winning and nationally recognized blog, the Drug and Device Law Blog, which can be accessed at this LINK.

I also send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for tipping me off to this decision as well.