HomeMy WebLinkAbout04-29-14 o
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Paige Macdonald-Matthes,Esquire co v G: o
(Pa.Attorney LD. No. 66266) ::o v' A
Kevin J. Kehner, Esquire Q
(Pa.Attorney LD.No. 33539) • x
200 Locust Street,Suite 400 f7 0 0 3 --i
Harrisburg,PA 17101 0 C c
(717) 234-9730 Telephone —i N rr-- M
(717) 234-9734 Facsimile
Email:Pmm(a)rtbermayer.com O
Email:kevin.kehtte n,oberntaVer.cont
Attorneys for Petitioner,Stacy Adler Smith
IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS
ROBERT A. ADLER, : CUMBERLAND COUNTY,PENNSYLVANIA
DECEASED
ESTATE NO. 21-12-252
REGISTER OF WILLS
NOTICE TO PLEAD
To: NATALIIA TYKHONOVA ADLER
c/o Thomas P. Gacki, Esq.
Eckert Seamans Cherin&Mellott, LLC
213 Market Street, 8t"Floor
Harrisburg,PA 17101
YOU ARE HEARBY NOTIFIED to file a written response to the enclosed Preliminary
Objections to Respondent's New Matter within twenty(20)days from service hereof or a judgment may
be entered against you.
Respectfully submitted,
OBERMAYER REBMANN MAXWELL&HIPPEL
LLP �/
Date: April 29, 2014 -�A
Paige Mac onald-Matthes,Esquire
(Pa. Attorney I.D. No. 66266)
Kevin J. Kehner, Esquire
(Pa. Attorney I.D. No. 33539)
200 Locust Street, Suite 400
Harrisburg, PA 17101
(717) 234-9730 Telephone
(717)234-9734 Facsimile
»mm(&obemiayer.com
kevin.kchncr o obermaver.com
Attorneys for Petitioner, Stacy Adler Smith
4822478
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Paige Macdonald-Matches, Esquire C>
(Pa. Attorney LD. No. 66266) rn n
Kevin J. Kehner, Esquire N °
(Pa. Attorney LD. No. 33539)
200 Locust Street, Suite 400
Harrisburg,PA 17101 C7 -n
(717) 234-9730 Telephone o r~v r- m
(717) 234-9734 Facsimile n o co o
Email.pmmC&obermaVer.com -n
Entail. keviri.kehneffa),obermayertcorn
Attorneys for Petitioner, Stacy Adler Smith
IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS
ROBERT A. ADLER, : CUMBERLAND COUNTY, PENNSYLVANIA
DECEASED
: ESTATE NO. 21-12-252
: REGISTER OF WILLS
PETITIONER, STACY ADLER SMITH'S PRELIMINARY OBJECTIONS
TO RESPONDENT'S NEW MATTER
AND NOW, comes Petitioner, Stacy Adler Smith (hereinafter"Petitioner"), by and
through her counsel, Obermayer Rebmann Maxwell &Hippel LLP, and files her Preliminary
Objections to Respondent, Nataliia Tykhonova Adler's (hereinafter"Respondent")New Matter
to Petition to Revoke Ab Initio Letters of Administration (hereinafter"Petition"), and in support
thereof avers as follows:
PETITIONER'S FIRST PRELIMINARY OBJECTION
TO RESPONDENT'S NEW MATTER
Failure to Conform to Law or Rule of Court
Pa.R.C.P. 1028 (a)(2)
1. Rule 1030(a) of the Pennsylvania Rules of Civil Procedure requires that "all
affirmative defenses"including those listed in the rule"shall be pleaded in a responsive pleading
under the heading `New Matter'."
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4822478
2. Respondent's 71 paragraphs under the heading"New Matter" fail to identify an
affirmative defense and otherwise fail to identify how the stated paragraphs relate to a specific
affirmative defense in violation of Rule 1030. See Edmonds v. Royal, 2005 Phila. Ct. Com. Pl.
LEXIS 392 (August 22, 2005) (New Matter is a responsive pleading which must set forth
affirmative defenses with requisite material facts); McElwee v. Leber, No. 00-01, 795, slip op.
Lycoming Ct. Com. Pl (October 18, 2002) (same) (A copy of this slip opinion is attached as
Exhibit"A"). See also, Coldren v. Peterman, 2000 Pa. Super. 364, 763 A.2d 905 (Pa. Super.
2000), appeal denied, 2001 Pa. LEXIS 1201 (Rule 1030 requires affirmative defenses to be
specifically pled in New Matter).
3. The Pennsylvania Rules of Civil Procedure require that the material facts on
which a cause of action or defense is based shall be stated in a concise and summary form.
Pa. R.C.P. 1019(a).
4. Material facts are those facts essential to support the claim or defense raised in the
matter. A pleading must do more than simply give notice of what the claim or defense is and the
ground upon which it rests. See Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d
600 (1983). In order to comply with Rule 1019(a), a pleading must be clear and legible to allow
a party to understand the material facts and be able to prepare a response or defense. Id.
5. Rule 1030 and Rule 1019 must be read in Ln materi a, so that material facts must
be pleaded to support the affirmative defense. See McElwee, supra; Allen v. Lipson, 8 D.&C. 4"'
390 (Pa. Com. Pl. 1990).
6. Respondent's New Matter fails to conform to the pleading requirements set forth
in Rule 1019(a) and 1030(a). It fails to state whether an affirmative defense is being raised and,
if so, identify which one and what material facts are being pled to support that defense.
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WHEREFORE, Petitioner respectfully requests that this Honorable Court sustain her
First Preliminary Objection to Respondent's New Matter and strike and dismiss the New Matter
with prejudice, and further award Petitioner all such other relief as is proper and just.
PETITIONER'S SECOND PRELIMINARY OBJECTION TO
RESPONDENT'S NEW MATTER
Inclusion of Scandalous or Impertinent Matter
Pa.R.C.P. 1028 (a)(2)
7. The averments set forth in Paragraphs 1 through 6 are incorporated by reference
as if more fully set forth at length herein.
8. New Matter is a responsive pleading for affirmative defenses and material facts
which are not merely denials of the averments in the Complaint. Pa. R.C.P. 1030(a). See
Edmonds, supra; McElwee, supra; Coldren, supra.
9. Scandalous or impertinent matter are allegations that are immaterial and
inappropriate to the proof of the cause of action. Common Cause/Pa v. Commonwealth, 710
A.2d 108, 115 (Pa. Commw. 1998); Edmonds, supra.
10. The"information" contained in paragraphs 2-5, 27, 41-45, 49, 52-61 and 66 is not
relevant to the causes of action of the Petition and, further, "improperly cast a derogatory light on
the [Petitioner]. Such scandalous statements have no place in [New Matter]." Id.
11. For example, in T5, Respondent states: "Petitioner greatly resents the fact that
Robert Adler succeeded to ownership of the [parents'] property... .'; and, in T 56: "... Petitioner
used derogatory terms in reference to Respondent's nationality." Such allegations have nothing
to do with Petitioner's causes of action or any affirmative defense thereto. They are insulting and
inflammatory and have no place in New Matter. See Id.
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12. Paragraphs 58-60 are not only impertinent and immaterial, they are based upon
improper hearsay.
13. The above-enumerated paragraphs violate Rule 1019(a) and 1030(a) because they
contain neither affirmative defenses nor the requisite material facts but, rather, immaterial and
inappropriate scandalous matter.
WHEREFORE, Petitioner respectfully requests that this Honorable Court sustain her
Second Preliminary Objection to Respondent's New Matter and strike and dismiss the New
Matter with prejudice, and further award Petitioner all such other relief as is proper and just.
PETITIONER'S THIRD PRELIMINARY OBJECTION
TO RESPONDENT'S NEW MATTER
Inclusion of Scandalous or Impertinent Matter
Pa.R.C.P. 1028 (a)(2)
14. The averments set forth in Paragraphs 1 through 13 are incorporated by reference
as if more fully set forth at length herein.
15. The Superior Court in Coldren, 763 A.2d 905, 908 explained:
The term "New Matter" (under which heading Rule 1030 requires
affirmative defenses to be pled) "embraces matters of confession
and avoidance as understood at common law, and has been defined
as matter which, taking all the allegations of the complaint to be
true, is nevertheless a defense to the action." Sechler v. Ensign-
Bickford Co., 322 Pa. Super. 162, 469 A.2d 233, 235 (Pa. Super.
1983). "New matter ignores what the adverse party has averred and
adds new facts to the legal dispute on the theory that such new
facts dispose of any claim or claims which the averse party had
asserted in his pleading." Id.
16. Respondent's New Matter does not take the allegations of the Petition to be true
nor does it aver any new facts that would dispose of any of Petitioner's claims. See Sechler,
supra.
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17. The allegations set forth at paragraphs 21-33, in particular, constitute mere
speculation and conclusions of law, neither of which are proper New Matter.
18. In pleading New Matter, "a party may assert material facts so long as they are not
mere denials or conclusions of law [or speculation]. Statements in New Matter that are mere
denials or conclusion of law [or speculation] will be stricken..." McElwee slip op. at 3.
19. By way of example, paragraph 25 of New Matter states: "Nothing in the
Settlement Agreement requires that Respondent resign or is to be removed as Administratrix of
the Estate."This paragraph does not state an affirmative defense or any material facts relevant to
a defense to Petitioner's causes of action, is impertinent and constitutes a speculative conclusion
of law.
20. Paragraphs 21 through 33 violate the pleading requirements of Rule 1019(a) and
Rule 1030(a) and should be stricken.
WHEREFORE, Petitioner respectfully requests that this Honorable Court sustain her
Third Preliminary Objection to Respondent's New Matter and strike and dismiss the New Matter
with prejudice, and further award Petitioner all such other relief as is proper and just.
PETITIONER'S FOURTH PRELIMINARY OBJECTION
TO RESPONDENT'S NEW MATTER
Inclusion of Scandalous or Impertinent Matter
Pa.R.C.P. 1028 (a)(2)
21. The averments set forth in Paragraphs I through 20 are incorporated by reference
as if more fully set forth at length herein.
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22. The statements in Respondent's New Matter at¶¶30-31, 64 and 68-71 are not
only impertinent and inappropriate they are improper accusations and conclusions of law that do
not belong in New Matter.
23. The above-mentioned paragraphs accuse Petitioner of violating a Pennsylvania
statute, 18 Pa. C.S. § 4904, and/or a Court Rule, Pa. R.C.P. No. 1023.1.
24. The paragraphs fail to comply with Rules 1019(a) and 1030(a) because they
contain neither affirmative defenses nor requisite material facts and are not relevant to the causes
of action. See Edmonds, supra; McElwee, supra.
25. In addition, it is not appropriate or proper for Respondent to assert a Rule 1023.1
sanction in New Matter. The Explanatory Comments to Rule 1023.1 make clear:
[Rule 1023.1] should not be employed... to test the legal
sufficiency or efficacy of allegations in the pleadings; other
motions are available for those purposes.
26. New Matter is not the appropriate pleading in which to assert a Rule 1023.1
violation. Rather, a party must follow the procedures proscribed by Rule 1023.1 et seq.
27. Paragraphs 30-31, 64 and 68-71 state conclusions of law and fail to set forth an
affirmative defense or material facts and should be stricken.
WHEREFORE, Petitioner respectfully requests that this Honorable Court sustain her
Fourth Preliminary Objection to Respondent's New Matter and strike and dismiss the New
Matter with prejudice, and further award Petitioner all such other relief as is proper and just.
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PETITIONER'S FIFTH PRELIMINARY OBJECTION
TO RESPONDENT'S NEW MATTER
Inclusion of Scandalous or Impertinent Matter
Pa.R.C.P. 1028 (a)(2)
28. The averments set forth in Paragraphs 1 through 27 are incorporated by reference
as if more fully set forth at length herein.
29. Paragraphs 6 through 18 of Respondent's New Matter relate to Respondent's
execution of the Pre-Nuptial Agreement. They are an attempt by Respondent to litigate the Pre-
Nuptial Agreement between Respondent and decedent, Robert Adler, in the confines of New
Matter to this Petition. That challenge, however, is without merit and should have been made in
another forum at another time against Robert Adler and/or his estate.
30. It is not an appropriate use of New Matter to this Petition to assert fruitless and
futile arguments regarding the merits of the Pre-Nuptial Agreement. Respondent cannot escape
the consequences of the Pre-Nuptial Agreement by asserting that it is void as an alleged defense
to Petitioner's claims.
31. Respondent cannot establish that the Pre-Nuptial Agreement is "void" or
"voidable"by way of allegations in New Matter to the Petition. Respondent would be required to
mount her own separate challenge to litigate the enforcement of the Pre-Nuptial Agreement.
32. The cited paragraphs do not provide an affirmative defense since they will not
dispose of the Petitioner's claims and they should therefore be stricken. See Edmonds, supra;
McElwee, supra. Similarly, Respondent's claim for relief is inappropriate for inclusion in New
Matter. Id.
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WHEREFORE, Petitioner respectfully requests that this Honorable Court sustain her
Fifth Preliminary Objection to Respondent's New Matter and strike and dismiss the New Matter
with prejudice, and further award Petitioner all such other relief as is proper and just.
Respectfully submitted,
OBERMAYER REBMANN MAXWELL &
HIPPEL LLP
Date: April 29, 2014
Paige Macdo d-Matthes, Esquire
(Pa. Attorney I.D. No. 66266)
Kevin J. Kehner, Esquire
(Pa. Attorney I.D. No. 33539)
200 Locust Street, Suite 400
Harrisburg, PA 17101
(717) 234-9730 Telephone
(717) 234-9734 Facsimile
pinm a,obermayer.com
kevi n.kehner(c�.ob ennayer.com
Attorneys for Petitioner, Stacy Adler Smith
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CERTIFICATE OF SERVICE
I, Kevin J. Kehner, Esquire, certify that on this date I served a true and correct copy of
the foregoing Preliminary Objections to Respondent's New Matter via electronic and first class
U.S. mail addressed as follows:
Thomas P. Gacki, Esq.
Eckert Seamans Cherin & Mellott, LLC
213 Market Street
8`h Floor
Harrisburg, PA 17101
Counsel.for the Respondent Nataliia Tykhonova Adler
Dated: April 29, 2014 - _
Kevin J. Ketffier, Esquire
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KEVIN McELWEE, individually as IN THE COURT OF COMMON PLEAS OF
parent to JESSICA McELWEE, LYCOMING COUNTY, PENNSYLVANIA
deceased, and as Administrator of the
Estate of JESSICA McELWEE, JURY TRIAL DEMANDED
Deceased; KEVIN McELWEE and
JO ANN McELWEE, parents of CIVIL ACTION - LAW
JESSICA McELWEE, individually,
Plaintiffs
vs. NO. 00-01,795
PAUL E. LEBER, M.D.; ADAM M.
EDELMAN, M.D.; DONALD E.
SHEARER, M.D.; JEANINE
SINSABAUGH; CINDY KOONS; JUDY
KERSHNER; MUNCY VALLEY
HOSPITAL; SUSQUEHANNA HEALTH
SYSTEM; SUSQUEHANNA PHYSICIAN
SERVICES; and EM CARE and/or WEST
BRANCH EMERGENCY PHYSICIANS,
Defendants
Date: October 18, 2002
OPINION and ORDER
Facts
The case before the court is a medical malpractice claim filed against the.above
captioned defendants who were involved in the care of Plaintiffs' minor child, Jessica.
McElwees filed their original Complaint on November 15, 2000, an Amended Complaint on July
18, 2001, and a Second Amended Complaint on November 9, 2001.
The motions before the Court are as follows:
1. Plaintiffs' Preliminary Objections to the Answer with New Matter to
Plaintiffs' Second Amended Complaint of Defendants Donald E. Shearer.
M.D. and Donald E. Shearer, M.D., P.C. filed August 9, 2002.
C:\Temp\McElwee101802k.doc 10/22/2002
2. Plaintiffs' Preliminary Objections to the Answer with New Matter to
Plaintiffs' Second Amended Complaint of Defendants Paul E. Leber,
M.D., Adam M. Edelman, M.D., EMCare, Inc., and New
Jersey/Pennsylvania EM-1 Medical Services, P.C. filed August 29, 2002.
3. Plaintiffs' Motion to Compel Responses to Plaintiffs' First Set of
Interrogatories, Plaintiffs' Expert Interrogatories, and Plaintiffs' other Se+
of Interrogatories Entitled Plaintiffs' First Set of Interrogatories filed July
16 2002.
4. Plaintiffs' Motion to Compel Production of Original X-rays filed August
27, 2002.
Plaintiffs' Preliminary Objection to the Answer with New Matter to Plaintiffs'
Second Amended Complaint of Dr. Shearer was argued before the Court on September 3, 2002.
The other Preliminary Objections and Motions were.argued before the Court on September 13;
2002.
Discussion
Pa. R.C.P. 1030 governs the pleading of New Matter. A party must set forth all
affirmative defenses, including the statute of limitations, in his responsive pleading under the
heading "New Matter." See, Pa. R.C.P. 1030(a). Rule 1030 and Rule 1019 must be read in pari
materia, so that material facts must be pleaded to support the affirmative defense. See, Allen v.
Lipson, 8 D. & C. 4t' 390, 394 (Pa. Com. Pl. 1990). If a party fails to assert material facts that
support the affirmative defense, then the paragraph containing the affirmative defense must be
stricken. See, Thurman v. Jones, No. 02-00,518 at 1 (Lye. Co., July 16, 2002); Trimble v. Beltz,
2
No. 98-01, 720 at 3 (Lye. Co., April 27, 2000). Also, in pleading New Matter, a party may assert
material facts so long as they are not mere denials or conclusions of law. See, Pa. R.C.P.
1030(a). Statements in New Matter that are mere denials or conclusions of law will be stricken.
from New Matter. See, Trimble, supra; Allen, supra. Defenses that are not required to be
pleaded, such as "a legal defense to a claim and any other non-waivable defense or objection,"
are not waived by their absence from New Matter. See, Pa.RC.P. 1032(a).
An affirmative defense is different then a denial of facts, in that, an affirmative
defense requires "the averment of facts extrinsic to plaintiff's claim for relief." See, Coldren V.
Peterson, 763 A.2d 905, 908 (Pa. Super. 2000). An affirmative defense ignores what is alleged
in the complaint and through the extrinsic facts disposes of the asserted claim. See,Ibid.
Plaintiffs' Preliminary Objections to the Answer with New Matter of Defendants Donald Z
Shearer. M.D. and Donald E. Shearer, M.D.. P.C.
The first motion before the court is Plaintiffs' Preliminary Objections to the
Answer with New Matter of Defendants Donald E. Shearer, M.D. and Donald E. Shearer, M.D.;
P.C. The paragraphs at issue are:
142. Because some of the Plaintiffs' claims against the
answering Defendants are general, vague, and lacking factual
support, specifically those claims objected to via Preliminary
Objections to the Complaint, preliminary Objections to the First
Amended Complaint, and Preliminary Objections to the Second
Amended Complaint, the answering Defendants reserve the right
to raise the defense that those claims are barred by the two year
statute of limitations under Section 5524(2) of the Judicial Code,
42 Pa. C.C. Section 5524(2), to the extent that Plaintiffs attempt to
plead new causes of action against the answering Defendants
before trial.
143. Based on the claims stated against them by Plaintiffs, the
answering Defendants reserve the right to exercise all limitations
of liability available and limitations to the damages claimed
3
pursuant to the Health Care Services malpractice Act and the
Medical Care Availability and Reduction of Error (MCARE) Act,
and specifically, Section 505 (punitive damages), Section 508
(collateral sources), Section 509 (determination and payment of
damages), and Section 510 (determination and payment of loss of
future earning capacity).
McElwees contend that Dr. Shearer's Answer is deficient in two respects. First, ¶142 is
deficient, because no material facts were pled to support the statute of limitations defense.
McElwees also contend that Dr. Shearer had an opportunity to object to any deficiencies in their
complaints, so he cannot claim there is something wrong with it now and bootstrap in the statute
of limitations defense. The Court agrees with Plaintiffs that¶142 shall be stricken.
Paragraph 142 is bereft of material facts to support the statute of limitations
defense. Paragraph 142 states that it reserves the right to assert the statute of limitations defens
to new causes of actions the McElwees might plead. This is speculative. There are no facts to
establish what these causes of action are, never mind how the statute of limitations applies. But
more importantly, there are no facts pleaded to support how the statute of limitations applies to
the causes of action presently before the Court. Therefore¶142 is to be stricken.
McElwees next contend that ¶143 must be stricken. Plaintiffs contend that some
of the portions of the cited statutes are not, in effect as to this case. Plaintiffs argue that the
pleading of the statute sections is a conclusion of law and does not belong in New Matter;
However, if the statutes are appropriate for New Matter, Dr. Shearer has failed to set forth the
material facts to support the defenses. The Court agrees with the McElwees' that 1143 must b.-,
stricken.
It is unnecessary to raise statutes that do not contain affirmative defenses in New
Matter. See, Thurman, supra. ("We think it is sufficient to raise the statutes, in fact the
4
Defendant may be able to argue the statutes without raising it in the pleadings if they would apply
to this case." (emphasis added) ). The cited sections in T143 are not affirmative defenses since
they will not dispose of Plaintiffs' claim. See, Cotdren, supra= Dr. Shearer asserted that sections
505, 508, 509, and 510 apply to the McElwees' case. Sections 505, 508, 509, and 510 deal with
limits on recovery. They have nothing to do with establishing liability or lack there of
Consequently, they are not affirmative defense and have no place in New Matter.
Nor is the Court constrained by Judge Brown's decision in Thurman to permit the
pleading of these statutes to stand, as Defendants have argued. It is clear Judge Brown did not
decide that this type of pleading was acceptable in all cases, Judge Brown let the statutory
allegations in the Thurman New Matter stand only because there was a possibility the allegations
could be an affirmative defense in Thurman - "..: if they apply to this case." See, Thurman,
supra.
Dr. Shearer has failed to plead the material facts that support the alleged
affirmative defense. All T143 states is that the defense reserves the right to use the liability and
damages limits provided by the cited sections, but provides no facts to support that assertion, Ii
is a naked assertion of the statutes sections with nothing more. Since the cited acts do not
provide affirmative defenses in this case and there is a lack of material facts, 1143 does not
belong in New Matter and must be stricken.
Plaintiffs' Preliminary Objections to the Answer with New Matter of Defendants Paul E
Leber, M.D.. Adam M. Edelman, M.D.. EMCare, Inc., and New Jersey/Pennsylvania EM-I
Medical Services,P.C. "—
The next 'motion before the Court is Plaintiffs' Preliminary Objections to the
Answer with New Matter of Defendants Paul E. Leber, M.D., Adam M. Edelman, M.D.;
5
EMCare, Inc., and New Jersey/Pennsylvania EM-1 Medical Services, P.C. filed August 29, 2002.
The paragraphs at issue are:
143. By virtue of the vague and ambiguous manner in which the
causes of action have been asserted in this Complaint, most of
which have been previously objected to by the various Defendants
in this case, these Answering Defendants reserve the right to raise
the defense that some or all of the claims alleged are barred by the
two year Statute of Limitations set forth in 42 Pa. C.S. § 5524(2),
to the extent that Plaintiffs may attempt to utilize said allegations
to assert new causes of action up to and including time of trial.
144. These Defendants reserve all affirmative defenses available
including defenses available under the Comparative Negligence
Law and the HealthCare Malpractice Act.
145. These Defendants reserve the right to exercise all defense
and limitations with respect to liability and damages including any
limitations to damages claimed pursuant to the Healthcare Services
Malpractice Act and the Medical Care Availability and Reduction
of Error Act including but not limited to Sections 505, 508, 509,
and 510 thereof.
See, Lebers' Answer with New Matter, %143, 144, 146. McElwees raise four contentions with
regard to Dr. Leber's Answer. The first is that paragraph 143 should be stricken. Paragraph 143
reserves the right to assert the statute of limitations defense against any new causes of action that
McElwees might bring based on the claimed vague and ambiguous causes of action contained in
the complaint. Plaintiff contends that paragraph 143 lacks the material facts to support the
claimed statute of limitations defense. The Court agrees with McElwees.
Paragraph 143 is devoid of material facts to support the claimed defense of statute
of limitations. The paragraph offers no material facts that would give rise to the statute of
limitations application to the case at bar. The only explanation for its inclusion in New Matter is
that it is a reservation of the right to use the defense should new causes of action appear. New
6
Matter is for affirmative defenses that exist to the present causes of action. If such defenses exist,
then they must be pled and supported by the material facts. See, Thurman, supra, Trimble,
supra. Thus, the spcculative}143 must be stricken.
McElwees' second contention is that paragraph 144 must be stricken. Plaintiffs
contend that 1144 lacks the support of material facts. The Court agrees with McElwees.
Again, ¶144 does not contain any material facts to support any affirmative
defense. It is merely a broad allegation that pleads all affirmative defenses. The paragraph not
only lacks the specificity of material facts, but also the specificity of which affirmative defense
applies. Such a broad and sweeping assertion cannot place the plaintiff on adequate notice as to
what affirmative defense it must prepare for. See, Commonwealth v. Shipley Humble Oil Co.,
370 A.2d 438, 439 (Pa. Cmwlth. 1977). Therefore, the lack of material facts requires that¶144 be
stricken.
McElwees' third contention is that ¶146 should be stricken. McElwees contend
that�146 lacks the needed material facts to support it. The Court agrees with McElwees. „
To reiterate, it is unnecessary to raise statutes that do not contain affirmative
defenses in New Matter. See, discussion supra as to ¶143 of Defendant Shearer's New Matter.,
The cited sections in 1[146 are not affirmative defenses since they will not dispose of Plaintiffs°
claims. See, Coldren, supra. Dr. Leber asserted that sections 505, 508, 509, and 510 apply to
McElwees' case. Sections 505, 508, 509, and 510 deal with limits on recovery. They have
nothing to do with establishing liability or lack there of. Consequently, they are not affirmative
defense and have no place in New Matter.
7
Also, Leber has failed to provide the material facts that support the alleged
affirmative defense. All ¶146 states is that the defense reserves the right to use the liability and
damages limits provided by the cited sections, but provides no facts to support that assertion. It
is a naked assertion of the statutes sections with nothing more. Since the cited acts do not
provide affirmative defenses,¶146 does not belong in New Matter and must be stricken.
The Court does not have to address the fourth contention under this motion,
because the verification issue has been addressed by a separate order. Also, Plaintiffs' motions
regarding answers to the interrogatories and the production of the original x-rays have been
addressed by separate orders.
ORDER
It is HEREBY ORDERED that Plaintiffs' Preliminary Objections to Dr. Shearer's
Answer with New Matter to Plaintiffs' Second Amended Complaint are granted. Paragraphs I42
and 143 are stricken. Plaintiffs' Preliminary Objections to Dr. Leber et al's Answer with New
Matter to Plaintiffs' Second Amended Complaint are granted. Paragraphs 143, 144, and 145 ap-
stricken. Defendants Shearer and Leber shall have twenty (20) days to file an amended New
Matter.
BY THE COURT:
William S. Kieser, Judge
cc: C. Scott Waters, Esquire
David R. Bahl, Esquire
C. Edward S. Mitchell, Esquire
M. David Halpern, Esquire
P. O. Box 2024; Altoona, PA 16601
Judges
Christian J. Kalaus, Law Clerk
Gary L. Weber, Esquire(Lycoming Reporter)
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