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HomeMy WebLinkAbout14-4675 09/07/2014 THU 12: 49 FAX (dJ002/009 Supreme Co,� nnnsylvania ;4'�b COUr f,CO�Itln10 10119 ForPruthunotaryUseOnly: C 11,eY1v ,` he tDocket No: Cu ��farid County The inforn)ulion cullecled on 1hi,r farm is used solely for colo•l udinini.vii-atiun purposes, %his farm does not SuPplement or re dace the filing and seri4ce o p leadin s or other a ers as rec aired )y law or rules of curt. Commencement of Action: ® Complaint ❑ Writ of Summons ® Petition ❑ Transfer from Another Jurisdiction ® Declaration of'1'aking E c Lend Plaintiff's Name: I cad Dckndant's Namc: T Thomas Blaine Joshua Ozio 1 Are money damages requested? p Yes ® No Dollar AmountRequusted: ❑within arbitration limits (check ono) ®outside arbitration limits 4 N Is this a. Class Action Suit? ❑Yes 0 No Is this an MWAppeal? ❑ Yes © No A Name of Plaintiff/Appellant's Attorney: Andrew R.Spirt,Esquire ❑ Check here if you have no attorney(Arc a Self-Represented (Pro Sel Litigant) Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. if you are making more tlym one type of claim,check the one that you consider most important. TORT(do not include Muss Torg CONTRACT(do not incliede Jud{mrenly) CIVIL APPEALS ❑ intentional ❑BuycrPlaintiff Administrative Agencies ®Malicious Prosecution ®Debt Collection:Credit Card ® Board of Assessment x❑Motor Vehicle ❑Debt Collection:Other ❑ Board of Elections ❑Nuisance Dept.of Transportation Premises Liability ® Statutory Appeal:Other >7 ❑Product Liability(does not include ®Employment Dispute: E mass tort) E] Slander/Libel/Defamation Discrimination r]Employment Dispute:Other ❑ 9.onin 'Board C ❑ Other: Zoning 'Board ® Other: 1 MASS TORT © Other: ❑ Asbestos .N ❑ Tobacco (2 Toxic Toil-DFS ❑ Toxic Tort-Tmplant REAL PROPN',RTV MISCELLANEOUS ❑ Toxic Waste j� Other: ®1'Jectment In Common Law/Statutory Arbitration ❑)--'minent Domain/Condemnation ❑Declaratory Judgment ®Ground Rent ❑Mandamus ❑Landlord/Tenant Oispi to ❑ Non-Domesticxelations ❑Moilgage'Porec)osu►•e:.K.esidential Restraining Order PROFESSIONAL LIABLITY ❑Mortgage foreclosure:Commercial 0(duo Warranto ® Dental in Partition ❑Replevin ❑ Legal ❑ Quiet Title ❑Other: ® Medical ❑ Other: ❑ Other Professional: 11pdated WOO 11 •v GOLOMB & HONIK THIS IS A MAJOR CASE BY: ANDREW R. SPIRT, ESQUIRE JURY TRIAL DEMANDED `' , (�� , tfl1 Identification No.: 75582 P IV 1515 Market Street Attorney for Plaintiffs Philadelphia, PA 19102 ,d1 (215) 985-9177 THOMAS BLAINE and COURT OF COMMON PLEAS JEANNE BLAINE, H/W OF CUMBERLAND COUNTY 1709 Kent Road Camp Hill, PA 17011 vs. LJ JOSHUA E. OZIO NO: I t" 644 Mountain Street Enola, PA 17025 and KATHRYN E. MCBRIDE 19 Stephen Road Camp Hill, PA 17011 CIVIL ACTION COMPLAINT NOTICE AVISO You have been sued in court. If you wish to defend against the claims set forth Le ban demandado a usted en la carte. Si usted quiere defenderse de estas in the following pages,you must take action within twenty(20)days after this complaint and demandas expuestas en las paginas siguientes,usted tiene veinte(20)dial de plain al partir de notice are served,by entering a written appearance personally or by attorney and filing in la fecha de la demanda y la notification. Hace falta asentar una wmparencia escrita o en writing with the court your defenses or objections to the claims set forth against you. You are persona o con un abogado y entregar a la torte en forma escrita sus defensas o sus objeciones a warned that if you fail to do so the case may proceed without you and a judgment may be las demandas en contra de su persona. Sea avisado que si usted no se defiende,la torte tomara entered against you by the court complaint or for any other claim or relief requested by the medidas y puede continuar la demanda en contra suya sin previo aviso o nofificacion. plaintiff. You may lose money or property or other rights important to you. Ademas,la torte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades y otros YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER OR CANNOT AFFORD ONE, derechos importantes para usted. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE LLEVE ESTA DEMANDA A UN ABOGADO IMIVIEDIATAMENTE. SI NO TIENE YOU CAN GET LEGAL HELP ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO. VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION Cumberland County Bar Association SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE 32 South Bedford Street CONSEGUIR ASISTENCIA LEGAL. Carlisle,PA 17013 (800)990-9108 Cumberland County Bar Association (717)249-3166 32 South Bedford Street Carlisle,PA 17013 (800)990-9108 (717)249-3166 3oci s �a GOLOMB & HONIK THIS IS A MAJOR CASE— BY: ANDREW R. SPIRT,ESQUIRE JURY TRIAL IS DEMANDED Identification No.: 75582 1515 Market Street Attorney for Plaintiff Suite 1100 Philadelphia, PA 19102 (215) 985-9177 THOMAS BLAINE and COURT OF COMMON PLEAS JEANNE BLAINE,H/W OF CUMBERLAND COUNTY 1709 Kent Road Camp Hill, PA 17011 vs. JOSHUA E. OZIO NO: 644 Mountain Street Enola, PA 17025 and KATHRYN MCBRIDE 19 Stephen Road Camp Hill, PA 17011 CIVIL ACTION COMPLAINT 1. Plaintiffs, Thomas Blaine and Jeanne Blaine, are an adult individuals residing at the above address as husband and wife. 2. Defendant, Joshua E. Ozio, is an adult individual residing at the above address. 3. Defendant, Kathryn McBride, is an adult individual residing at the above address. 4. Plaintiffs are entitled to full tort rights as set forth in the Amended Motor Vehicle Financial Responsibility Act. 5. On or about September 23, 2012, Plaintiff, Thomas Blaine was operating his motor vehicle on Pine Hill Road at the intersection of Pine Hill Road and Valley Road in East Pennsboro Township, Cumberland County, Pennsylvania. r 6. On or about September 23, 2012, Defendant, Joshua E. Ozio, was operating a motor vehicle owned by Defendant, Kathryn McBride. 7. At the same time and place, Plaintiff, Thomas Blaine, was travelling westbound on Valley Road in front of and within the clear line of sight of Defendant, Joshua E. Ozio, who was travelling at or near 87 miles per hour on a road with a speed limit of 35 miles per hour, behind Plaintiff when, without braking, he violently struck the rear of Plaintiff's vehicle, causing Defendant's vehicle to flip and his passenger to be ejected, and resulting in the injuries and damages set forth in detail hereinafter. 8. As a result of the aforesaid accident, the passenger in Defendant's vehicle was killed and Defendant, Joshua E. Ozio, was charged with, and plead guilty to, Involuntary Manslaughter and Carless Driving-Unintentional Death. 9. As a result of the aforesaid accident, Plaintiff, Thomas Blaine, suffered severe, permanent and debilitating injuries set forth in detail hereafter. COUNT PLAINTIFFS V. DEFENDANT JOSHUA E. OZIO NEGLIGENCE 10. Plaintiffs hereby incorporate by reference the averments set forth in paragraphs 1 through 8 inclusive as though more fully set forth herein. 11. The aforesaid occurrence was caused by the negligence and carelessness of Defendant, Joshua E. Ozio, and consisted of the following: (a) Failing to have the vehicle under proper and adequate control; (b) Operating the vehicle at an excessive rate of speed of almost three times the speed limit; (c) Failing to warn of the approach of the vehicle without due regard for the rights and safety of Plaintiff, (d) Failing to maintain an assured clear distance ahead; (e) Failing to note the position of Plaintiff, (f) Being inattentive; (g) Operating the vehicle in a reckless, dangerous and unsafe manner; (h) Failing to make application of the vehicle's brakes; (i) Failing to bring the vehicle to a stop in a timely-fashion; (j) Failing to maintain a proper lookout and yield the right of way to the Plaintiff; (k) Having a reckless disregard for the safety of others on the roadway, including Plaintiff; (1) Operating the motor vehicle in violation of the statutes of the Commonwealth of Pennsylvania pertaining to the proper operation of motor vehicles, including the Assured Clear Distance Rule, applicable speed limit and committing Involuntary Manslaughter; and (m) Negligence as a matter of law. 12. As a direct and proximate result of the aforesaid occurrence, Plaintiff, Thomas Blaine, sustained severe injuries to his body, including, but not limited to, his back and hip, as well as severe shock to his nerves and nervous system, extreme embarrassment, humiliation, loss of the enjoyment of their usual duties, usual occupations, life's pleasures and activities, to his great detriment and loss, some or all of which may be permanent in nature. 13. As a further direct and proximate result of the aforesaid occurrence, Plaintiff, Thomas Blaine, has and may in the future, suffer mental anguish, emotional distress, pain and suffering, impairment of physical activity, and may continue to suffer same for an indefinite time in the future. 14. As a direct and proximate result of this occurrence, Plaintiff, Thomas Blaine, has been and will be obligated to expend various sums of money or to incur various expenses for the A r injuries sustained, and may continue to incur such expenses in the future to his great financial loss and detriment. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant, Joshua E. Ozio, in an amount in excess of Fifty Thousand ($50,000.00) Dollars,together with such other relief as the Court shall deem appropriate. COUNT II PLAINTIFF V. DEFENDANT KATHRYN MCBRIDE NEGLIGENT ENTRUSTMENT 15. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through 13 as though fully set forth herein. 16. The accident aforesaid was caused by the negligence and carelessness of Defendant, Kathryn McBride, in that she did: (a) Negligently entrust the vehicle to Defendant, Joshua E. Ozio, whom Defendant knew or reasonably should have known was an incompetent, un-licensed and/or careless driver; (b) Negligently failed to keep her vehicle in good repair at all times relevant hereto; (c) Negligently entrust his vehicle to Defendant, Joshua E. Ozio, whom she knew or reasonably should have known was not fit to drive; and (d) Commit negligence as a matter of law. 17. As a direct and proximate result of the aforesaid occurrence, Plaintiff, Thomas Blaine, sustained severe injuries to his body, including, but not limited to, his back and hip, as well as severe shock to his nerves and nervous system, extreme embarrassment, humiliation, loss of the enjoyment of their usual duties, usual occupations, life's pleasures and activities,to his great detriment and loss, some or all of which may be permanent in nature. 18. As a further direct and proximate result of the aforesaid occurrence, Plaintiff, Thomas Blaine, has and may in the future, suffer mental anguish, emotional distress, pain and suffering, impairment of physical activity, and may continue to suffer same for an indefinite time in the future. 19. As a direct and proximate result of this occurrence, Plaintiff, Thomas Blaine,has been and will be obligated to expend various sums of money or to incur various expenses for the injuries sustained, and may continue to incur such expenses in the future to his great financial loss and detriment. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant, Kathryn McBride, in an amount in excess of Fifty Thousand ($50,000.00) Dollars, together with such other relief as the Court shall deem appropriate. COUNT III PLAINTIFFS V. DEFENDANTS LOSS OF CONSORTIUM 20. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 through 18 as though fully set forth herein. 21. At all times material hereto, Plaintiff, Jeanne Blaine, was married to and the wife of Plaintiff, Thomas Blaine. 22. As a direct and proximate result of the negligence and carelessness aforesaid and the injuries sustained by her husband, Plaintiff, Jeanne Blaine, has been deprived of the assistance, society and companionship of her husband, Thomas Blaine, her spouse, both in the past and into the future, all of which may be permanent. WHEREFORE, Plaintiff, Jeanne Blaine, demands judgment in her favor and against Defendants in an amount in excess of Fifty Thousand ($50,000.00) Dollars, together with such other relief as the Court shall deem appropriate. a r COUNT IV PLAINTIFFS V. DEFENDANTS PUNITIVE DAMAGES 23. Plaintiffs incorporate by references paragraphs 1 through 18 as though the same were set forth herein at length. 24. At all times relevant hereto, Defendants, Joshua E. Ozio and Kathryn McBride, knew that Joshua E. Ozio was, or more than likely would, operate the motor vehicle at an excessive rate of speed. 25. Despite this knowledge, Defendants willfully, recklessly, maliciously and with wanton disregard for the safety of Plaintiff, operated the motor vehicle at an extremely excessive rate of speed at the time of this accident, failed to apply his brakes and committed Involuntary Manslaughter. 26. The Defendants' actions as stated above constitute outrageous and wanton conduct, subjecting Defendants to punitive damages. WHEREFORE, Plaintiffs demands judgment in their favor and against Defendants in an amount in excess of Fifty Thousand ($50,000.00) Dollars, together with such other relief as the Court shall deem appropriate. GOLOMB & HO BY: AND W . SPIRT,ESQUIRE Attorney or Plaintiff Date: July 30, 2014 VERIFICATION ANDREW R. SPIRT, ESQUIRE, hereby states that he is counsel for plaintiffs in this action and verifies that the statements made in the foregoing Civil Action Complaint are true and correct to the best of his knowledge, information and belief and that this verification is made with the knowledge,permission and consent of plaintiffs. Counsel takes this verification for the purpose of assuring the timely filing of this pleading. The verification of the party-plaintiff will be substituted at a later date. The undersigned understands that the statements therein are made subject to penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. GOLOMB & IK BY: AND R. IRT,ESQUIRE Attortayfor Plaintiff Date: July 30, 2014 GOLOMB & HONIK BY: ANDREW R. SPIRT, ESQUIRE Identification No.: 75582 1515 Market Street Suite 1100 Philadelphia, PA 19102 (215) 985-9177 THOMAS BLAINE and JEANNE BLAINE, H/W vs. JOSHUA E. OZIO and KATHRYN MCBRIDE "4j rLE - t1rrl t 'f1 ' 0NO-1 R ii, Attorney for Plaintiff 2014 AUG 22 PM CUMBERLAND UMBER I: ;gi p PENNS Y� COUNTY �l/a COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO: 14-4675 PRAECIPE TO SUBSTITUTE VERIFICATION Kindly substitute the attached Verification of Plaintiff, Thomas Blaine, for that of Andrew R. Spirt, Esquire, which was attached to Plaintiff's Complaint, filed of record with the Court on August 7, 2014. GOLOMB & HONIK BY: Date: August 19, 2014 ANDREW R. SPIRT, ESQUIRE Attorney for Plaintiff VERIFICATION THOMAS BLAINE hereby states that he is the Plaintiff in this action and verifies that the statements made in the foregoing CIVIL ACTION COMPLAINT are true and correct to the best of his knowledge, information and belief The undersigned understands that the statements therein are made subject to penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. THOMAS BLAINE Date: JOHNSON, DUFFIE, STEWART & WEIDNER By: Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. 0. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 wdm@jdsw.com ';.1.LED--1:1FHC;L, THE PROTHONOTAW( Mid SEP —3 AM ft CUMBERLAND COUNTY PENNSYLVANIA Attorneys for Defendants, Joshua E. Ozio and Kathryn E. McBride THOMAS BLAINE and JEANNE BLAINE, H/W Plaintiffs v. JOSHUA E. OZIO and KATHRYN E. McBRIDE, Defendants • • IN THE COURT OF COMMON PLEAS OF • • CUMBERLAND COUNTY, PENNSYLVANIA • • NO. 14-4675 CMI • • CIVIL ACTION — LAW • • JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of the Defendants, Joshua E. Ozio and Kathryn E. McBride, in the above -captioned matter. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Date: September 2, 2014 649321 W Wade D. Manl y, Esquire Attorney I.D. No. 87244 301 Market Street P. 0. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on September , 2014: Andrew R. Spirt, Esquire Golomb & Honik 1515 Market Street Suite 1100 Philadelphia, PA 19102 JOHNSON, DUFFIE, STEWART & WEIDNER By: Gmlam lelWade D. Manl y, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER By: Wade D. Manley, Esquire I.D. No. 87244 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 wdm@jdsw.com THOMAS BLAINE and JEANNE BLAINE, H/W Plaintiffs v. JOSHUA E. OZIO and KATHRYN E. McBRIDE, Defendants OF THE PROTHONO iAi`j: 2Ott1SEP -lE AM{I;t49 C lJ g`gr H f O e d a is s� Joshua E. Ozi Sn �thPyn`4�M' cBride : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-4675 Civil : CIVIL ACTION — LAW : JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT AND NOW come the Defendants, Joshua E. Ozio and Kathryn E. McBride, by and through their attorneys, Johnson, Duffie, Stewart and Weidner, P.C., and file these Preliminary Objections to the Plaintiffs' Complaint: 1. This matter arises out of a motor vehicle accident that allegedly occurred on September 23, 2012, at the intersection of Pine Hill Road and Valley Road, in East Pennsboro Township, Cumberland County, Pennsylvania. 2. The Plaintiffs filed their Complaint against the Defendants on August 7, 2014. 3. The Complaint asserts separate counts of negligence, negligent entrustment, loss of consortium and punitive damages. 4. The Defendants file these Preliminary Objections to Count I the Negligence count against Defendant, Joshua E. Ozio, pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(2) and 1028(a)(3) based upon the overbroad allegations of negligence, lack of factual predicates to support an allegation of recklessness and inclusion of scandalous and impertinent matter. 5. The Defendants file these Preliminary Objections to Count II the Negligent Entrustment count against Defendant, Kathryn McBride, pursuant to Pennsylvania Rules of Civil Procedure 1028(a)(2) and 1028(a)(3) based upon the overbroad allegations of negligence, lack of factual predicates to support an allegation of recklessness and inclusion of scandalous and impertinent matter. 6. The Defendants file these Preliminary Objections to Count IV the Punitive Damage count against Defendants pursuant to Pennsylvania Rules of Civil Procedure Pennsylvania Rule of Civil Procedure 1028(a)(2) based on failure of a pleading to conform to law or rule of court. 7. Pennsylvania Rule of Civil Procedure 1028(b) requires that all Preliminary Objections to a pleading be raised at one time. I. PRELIMINARY OBJECTIONS TO COUNT I A. Overbroad Allegations of Negligence 8. Defendant incorporates by reference the averments made in paragraphs 1 through 7 as if the same were set forth herein at length. 9. Relevant to the Preliminary Objections is Pennsylvania Rule of Civil Procedure 1028(a)(2) which states that: "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: failure of a pleading to conform to law or inclusion of scandalous or impertinent matter." Pa. R.C.P. 1028(a)(2). 10. Further, preliminary objections are appropriate where the pleading is insufficiently specific. Pa. R.C.P. 1028(a)(3). 2 11. The law in this Commonwealth with respect to pleading is that a Complaint must set forth the material facts upon which the cause of action is based in a concise and summary form. Pa. R.C.P. 1019(a). 12. Paragraph 11(1) of the Complaint set forth overbroad allegations of negligence against the Defendant, Joshua E. Ozio. 13. More specifically, Paragraph 11(1) alleges that the Objecting Defendant was negligent and careless in operating the motor vehicle in violation of the statues of the Commonwealth of Pennsylvania pertaining to the proper operation of motor vehicles. 14. These allegations violate Pa. R.C.P. 1028(a)(2) and (3) because they are vague and contain insufficient specificity as to the Objection Defendant's alleged negligence and therefore fail to conform to applicable law. 15. Paragraph 11(1) of the Complaint should be stricken so as not to allow Plaintiffs to assert new causes of action or theories of liability at a later date under the guise of merely amplifying what has been pleaded. See Blair v. Mehta, 67 Pa. D.& C. 4th 246, 254 (Lycoming CCP, June 10, 2004, Kieser, J.); Connor v. Allegheny General Hospital, 461 A.2d 600, 603 (Pa. 1983); Arner v. Sokol, 96 A.2d 854, 856 (Pa. 1953). WHEREFORE, the Defendants respectfully request that this Honorable Court sustain the Preliminary Objections and issue an Order striking the Complaint in its entirety. In the alternative, the Defendants requests an order striking Paragraph 11(1) from the Complaint as it is insufficiently specific and fails set forth the material facts upon which the cause of action is based in a concise and summary form. B. Recklessness Allegations Not Warranted Based on Facts Asserted 16. Defendant incorporates by reference the averments made in paragraphs 1 through 15 as if the same were set forth herein at length. 17. Pennsylvania Rule of Civil Procedure 1028(a)(4) states, " Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds:... (4) legal insufficiency of a pleading (demurrer)." Pa. R.C.P. 1028(a)(2). 18. In Paragraphs 11(g) and 11(k), the Plaintiffs have alleged that the Objecting Defendant acted with recklessness without presentation of sufficient factual allegation to support such a claim. 19. This factual allegations found in the Complaint does not rise to the level necessary to show reckless indifference to the rights of others on the part of the Objecting Defendant. 20. According to the Pennsylvania Supreme Court, Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Restatement (Second) of Torts § 908(1) ("Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future."). Hutchinson v. Luddy, 582 Pa. 114, 121-122 (2005)(internal citing references omitted). 4 21. Our Supreme Court has "stressed that, when assessing the propriety of the imposition of punitive damages, "the state of mind of the actor is vital". The act, or the failure to act, must be intentional, reckless or malicious. Id. at 122. 22. A claim for punitive damages "must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk." Id. at 124. 23. Based on the meager factual allegations plead in the Plaintiff's Complaint, punitive damages are not legally recoverable in this case. References to constitute impertinent matter, and any claim therefore should be stricken from the Complaint pursuant to Pa. R.C.P. 1028(a)(2). WHEREFORE, the Defendants respectfully request that this Honorable Court sustain the Preliminary Objections and issue an Order striking the Complaint in its entirety. In the alternative, the Defendants request an order striking Paragraphs 11(g) and 11(k) as well as all claims of reckless conduct from the Complaint as they are legally insufficient. C. Allegations Based on Criminal Charges are Scandalous and Impertinent 24. Defendant incorporates by reference the averments made in paragraphs 1 through 23 as if the same were set forth herein at length. 25. Relevant to the Preliminary Objections is Pennsylvania Rule of Civil Procedure 1028(a)(2) which states that: "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: . . . inclusion of scandalous or impertinent matter." Pa. R.C.P. 1028(a)(2). 5 26. The inclusion of the allegations that a passenger in the Defendant's vehicle was ejected and that the Defendant, Joshua E. Ozio, was charged with and plead guilty to Involuntary Manslaughter and Careless Driving -Unintentional Death in paragraphs 7, 8, 11(1) and 25 of the Complaint is irrelevant to Plaintiffs' claims and consists of impertinent matter which should be stricken from the Complaint. 27. For allegations to be "scandalous and impertinent," and thus subject to being stricken, allegations must be immaterial and inappropriate to the proof of the cause of action. Pa. R.C.P. 1028(a)(2); Common Cause/Pennsylvania v. Com., 710 A.2d 108 (Pa. Commw. 1998). 28. The averments contained in paragraphs 7, 8, 11(1) and 25 bear absolutely no relation to Plaintiff's claims. 29. The charges allegedly brought against the Defendant are related to injuries sustained to a different individual that was not in Plaintiffs' vehicle and not subject to the same conditions, restraints or mechanisms as Plaintiff. Injuries sustained to another individual bearing no factual relation to the Plaintiffs are irrelevant to the occurrence and scope of the injuries allegedly sustained by the Plaintiffs. 30. The sole purpose of inclusion of the allegations of the charges is to inappropriately attempt to amplify the alleged scope and nature of the accident and injuries claimed by the Plaintiffs. 31. The allegations of the charges provide no probative value to the claims set forth by the Plaintiffs and only serve to inappropriately prejudice the Defendants. 32. As such, the paragraphs should be stricken as improper, scandalous, and impertinent matter. 6 WHEREFORE, the Defendants respectfully request that this Honorable Court sustain the Preliminary Objections and issue an Order striking the Complaint in its entirety. In the alternative, the Defendants request an order striking the allegations that a passenger in the Defendant's vehicle was ejected and that the Defendant, Joshua E. Ozio, was charged with and plead guilty to Involuntary Manslaughter and Careless Driving -Unintentional Death in Paragraphs 7, 8, 11(1) and 25 of the Complaint as they contain improper scandalous and impertinent matter. 11. PRELIMINARY OBJECTIONS TO COUNT II A. Overbroad Allegations of Negligence 33. Defendant incorporates by reference the averments made in paragraphs 1 through 32 as if the same were set forth herein at length. 34. Relevant to the Preliminary Objections is Pennsylvania Rule of Civil Procedure 1028(a)(2) which states that: "Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: failure of a pleading to conform to law or inclusion of scandalous or impertinent matter." Pa. R.C.P. 1028(a)(2). 35. Further, preliminary objections are appropriate where the pleading is insufficiently specific. Pa. R.C.P. 1028(a)(3). 36. The law in this Commonwealth with respect to pleading is that a Complaint must set forth the material facts upon which the cause of action is based in a concise and summary form. Pa. R.C.P. 1019(a). 37. The Plaintiffs assert that Defendant, Kathryn E. McBride, negligently entrusted her vehicle to the Defendant, Joshua E. Ozio, without a single allegation of factual support for the entire Count. 7 38. The Plaintiffs baldly assert that Defendant, Kathryn E. McBride, knew or should have known that Defendant, Joshua E. Ozio, was an incompetent driver and not fit to drive without asserting any evidence as to how or why she knew or should have known the alleged information. 39. The Plaintiffs further assert that Defendant, Kathryn E. McBride, failed to keep her vehicle in good repair without asserting any evidence as to how or why she knew or should have known the alleged information. 40. In Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1993), the Pennsylvania Supreme Court determined that when a Plaintiff's pleading contains averments lacking specificity, those allegations may be expanded on at any time during the course of litigation if they are not initially objected to. 41. The Pennsylvania Supreme Court reasoned that if a Defendant is unable to determine what actions serve as the basis for a Plaintiff's allegation because the allegation lacks the required specificity, the Defendant should file Preliminary Objections. Id. at 311, n.3, 461 A.2d at 602, n.3. 42. As noted, the Complaint lacks any factual support for the averments contained in Count II of the Complaint and therefore Count II must be stricken. WHEREFORE, the Defendants respectfully request that this Honorable Court sustain the Preliminary Objections and issue an Order striking the Complaint in its entirety. In the alternative, the Defendants request an order striking Count II from the Complaint as it is insufficiently specific and fails set forth the material facts upon which the cause of action is based in a concise and summary form. 8 III. PRELIMINARY OBJECTIONS TO COUNT IV A. Failure to Conform to Law or Rule of Court 43. Defendant incorporates by reference the averments made in paragraphs 1 through 42 as if the same were set forth herein at length. 44. Pennsylvania Rule of Civil Procedure 1028(a)(2) states, " Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds:.. .(2) failure of a pleading to conform to law or rule of court." Pa. R.C.P. 1028(a)(2). 45. The Supreme Court of Pennsylvania has held that because "punitive damages are an element of damages arising out of the initial cause of action, if that cause of action is dismissed, the punitive damages which are incident to actual damages cannot stand. . , If no cause of action exists, then no independent action exists for a claim of punitive damage since punitive damages is only an element of damages." Kirkbride v. Lisbon Contractors. Inc., 555 A.2d 800, 802 (Pa. 1989). 46. In Kirkbride, the Pennsylvania Supreme Court conclusively established that punitive damages are not a cause of action, they are an element of damages arising out of a cause of action. 47. Plaintiffs' Complaint sets forth claims for punitive damages in Count IV in direct contradiction to Kirkbride requiring Plaintiffs' claim for punitive damages to be stricken. WHEREFORE, the Defendants respectfully request that this Honorable Court sustain the Preliminary Objections and issue an Order striking the Complaint in its entirety. In the alternative, the Defendants requests an order striking Count IV from the Complaint as it fails to conform to law or rule of court. 9 B. Recklessness Allegations Not Warranted Based on Facts Asserted 48. Defendant incorporates by reference the averments made in paragraphs 1 through 47 as if the same were set forth herein at length. 49. Pennsylvania Rule of Civil Procedure 1028(a)(4) states, " Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds:... (4) legal insufficiency of a pleading (demurrer)." Pa. R.C.P. 1028(a)(2). 50. Punitive damages can not be awarded where a Defendant's alleged conduct merely constitutes ordinary or even gross negligence. Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d (1988). Therefore, a Plaintiff is required to plead that a Defendant's conduct was malicious, willful, wanton, reckless or oppressive. Id. 51. Even though punitive damages are not a separate cause of action, the Plaintiff is still required to plead the facts he claims support his claim for punitive damages. Schock v. T.J. Care, Inc., 65 Pa. D. & C. 4th 517, 2004 WL 1570109 (Fay. Cty. C.P. 2004). 52. It is essential for the Plaintiff to allege each and every element that constitutes the nature of his claim, including his claim of punitive damages. Nido v. Chambers, 70 Pa. D.& C. 2d 129, 1975 WL 16621 (Law. Cty. C.P. 1975). 53. Plaintiffs' Complaint fails to allege the required elements to support a claim for punitive damages, requiring the Plaintiffs' demand for punitive damages to be stricken. 54. The Plaintiffs have failed to allege sufficient facts that the Defendants possessed the knowledge required to elevate the Defendant's actions to being malicious, willful, wanton, reckless or oppressive. 55. In determining whether punitive damages are appropriate, the court must determine the nature of the tortfeasor's act, together with his motive, the relationship between 10 the parties, and other attendant circumstances. Martin v. Johns -Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). 56. Punitive damages are awarded to punish a Defendant and are only appropriate when the conduct is especially grievous and must not be allowed when mere negligence in the form of inadvertence, mistake or errors in judgment is alleged. Id. 57. Plaintiffs' Complaint fails to allege anything more than the Defendant acted with negligence at the time of the accident. WHEREFORE, the Defendants respectfully request that this Honorable Court sustain the Preliminary Objections and issue an Order striking the Complaint in its entirety. In the alternative, the Defendants request an order striking Count IV as well as all claims of reckless conduct from the Complaint as they are legally insufficient. Date: September 3 2014 649347 Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: 11 Wf1/41,44 Wade D. Manlq, Esquire Attorney I.D. No. 87244 301 Market Street P. 0. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Preliminary Objections to Plaintiffs' Complaint has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on September 5 , 2014: Andrew R. Spirt, Esquire Golomb & Honik 1515 Market Street Suite 1100 Philadelphia, PA 19102 JOHNSON, DUFFIE, STEWART & WEIDNER By: Ofittto IM1 Wade D. Mani y, Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for theaext Argument Court.) -rJ Gf) l-" rn Cli t ---- .t CAPTION OF CASE z r �1: (entire caption must be stated in full) c'Go --kc; -<k r`� -c, c7�+ THOMAS BLAINE and JEANNE BLAINE, H/W ;n . vs. JOSHUA E. OZIO and KATHRYN E. McBRI No. 14-4675 Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiffs' Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Andrew R. Spirt, Esquire, Golomb & Honik, 1515 Market Street, Suite 1100, Philadelphia, PA 19102 (Name and Address) (b) for defendants: Wade D. Manley, Esquire, Johnson, Duffle, Stewart & Weidner, 301 Market Street, P. 0. Box 109, Lemoyne, PA 17043-0109 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 14, 2014 Date: 9/5/14 Signature Print you name Wade D. Manley Attorney for Defendants INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. fi1q.75Pd A Ctk 9P-0 gm 3. iso GOLOMB & HONIK BY: ANDREW R. SPIRT, ESQUIRE Identification No.: 75582 1515 Market Street Suite 1100 Philadelphia, PA 19102 (215) 985-9177 THOMAS BLAINE and JEANNE BLAINE, H/W vs. JOSHUA E. OZIO and KATHRYN MCBRIDE Attorney for Plaintiff OFILED-OFFICE F THE PROTHONOTAfi'l 2014 SEP 10 PN I: 53 CU BERLAND COUNTY PENNS YL VA N14 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO: 14-4675 AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA: COUNTY OF PHILADELPHIA: Andrew R. Spirt, Esquire, being duly sworn according to law, deposes and says that he is the attorney for Plaintiffs in the action herein and that service of Plaintiffs' Civil Action Complaint was made upon Defendant, Kathryn McBride on August 15, 2014 and Defendant, Joshua E. Ozio on August 25, 2104, by the Sheriff of Cumberland County. A copy of Sheriffs Return of Service is attached hereto. Date: September 8, 2014 SS: GOLOMB & HO BY: K Attorney R. SPIRT, ESQUIRE or Plaintiff Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY Thomas Blaine (et al.) vs. Joshua E Ozio (et al.) Case Number 2014-4675 SHERIFF'S RETURN OF SERVICE 08/15/2014 .08:25 PM --Deputy Jamie DiMark, being duly sworn according to law, served the. requested.Complaint Notice by "personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Kathryn E McBride at 19 Stephen Road, East Pennsboro, Camp Hill, PA 17011. J Cdt. IE DlMAR LE, DEPUTY 08/25/2014 06:41 PM - Deputy Jason Kinsler, being duly sworn according to law, served the requested Complaint & Notice by "personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Joshua E Ozio at 644 Mountain Street, East Pennsboro, Enola, PA 17025. SON KINSLER, DEPUTY SHERIFF COST: $77.90 SO ANSWERS, August 26, 2014 '01 (c) CountySuito Shonfr. lolegnoft Inc. RONNY R ANDERSON, SHERIFF il:FicE t-Oo TAR Y CERTIFICATE QV 1: 12 ,u; ,Litto PREREQUISITE TO SERVICE OF A SUBPOENA:::.)1.7-.,:;4*-• L..) ! n I PURSUANT TO RULE 4009.22 IN THE MAI 1ER OF: Court of Common Pleas - Cumberland County, PA THOMAS BLAINE AND JEANNE BLAINE, H/W vs. TERM: JOSHUA E. OZIO AND KATHRYN E. MCBRIDE CASE No: 14 -4675 -CIVIL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22. RecordTrak on behalf of WADE MANLEY Defendant certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) No objection to the subpoena has been received or it has been waived, and (3) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date : 11/05/2014 RecordTrak on behalf of /S/ WADE MANLEY Attorney for Defendant RT#: 272470 RECORDS PERTAIN TO: THOMAS G. BLAINE THOMAS BLAINE AND JEANNE BLAINE, COURT: Court Of Common Pleas - Cumberland County, Pa H/W vs. TERM: JOSHUA E. OZIO AND KATHRYN E. DOCKET: 14 -4675 -CIVIL MCBRIDE NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS TO: ANDREW SPIRT GOLOMB & HONIK 1515 MARKET STREET SUITE 1100 PHILADELPHIA, PA 19102 (215) 985-4169 October 15, 2014 Please take notice that on behalf of WADE MANLEY, attorney for Defendant, RecordTrak intends to serve a subpoena identical to the one(s) attached to this notice. You have until November 4, 2014 to file of record and serve upon the undersigned an objection to the subpoena(s). If no objection is made, the subpoena(s) will be served. IF COUNSEL AGREES TO WANE THE 20 DAY NOTICE PERIOD, PLEASE INDICATE BELOW AND FAX SAME TO THE UNDERSIGNED AT YOUR EARLIEST OPPORTUNITY. IF YOU WISH TO PURCHASE COPIES OF THE RECORDS, PLEASE CONTACT RECORDTRAK FOR PRICING AND FAX THIS CORRESPONDENCE BY November 4, 2014 TO (610) 992-1405. All records will be provided (including no record statements) as produced by each record location. Daniel Wake 610.354.8348 RECORDTRAK 651 Allendale Road P. O. Box 61591 King of Prussia, PA 19406 LIST OF RECORD CUSTODIANS AND SUBPOENAS TAG RECORD CUSTODIAN CUMBERLAND COUNTY DISTRICT ATTORNEY Yes, I would like a copy of all of the records listed above. Yes, I would like specific records I have indicated above. SIGNATURE: FIRM: Date: YES, I AGREE TO WAIVE THE 20 DAY NOTICE PERIOD FOR ALL SUBPOENAS ON THIS NOTICE Signature of Plaintiff's Counsel: Date: FIRM: EMAIL: RT: 272470.1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND THOMAS BLAINE AND JEANNE BLAINE, HAAT V. JOSHUA E. OZIO AND KATHRYN E. MCBRIDi File No: 14 -4675 -CIVIL SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUMBERLAND COUNTY DISTRICT ATTORNEY (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the Court to produce the following documents or things: See attached rider. at 651 Allendale Road King of Prussia PA 19406 You may deliver or mail legible copies of the documents or produce things requested by this subpoena together with the certificate of compliance, to the party making this request at the address listed above. You may have the right to seek in advance the reasonable cost of preparing copies or producing the things sought, If you fail to produce the documents or things required by this subpoena within twenty (20) days aftc its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: RecordTrak, WADE MANLEY Address: 651 Allendale Road King of Prussia PA 19406 Telephone: ($QOM 220-1291 Supreme Court ID# Attorney for: I7efendant DATE: Seal of the Court BY THE COURT: RE: THOMAS BLAINE AND JEANNE BLAINE, H/W vs. JOSHUA E. OZIO AND KATHRYN E. MCBRIDE CASE NO. 14 -4675 -CIVIL RECORDTRAK FILE #: 272470; TAG 1 LOCATION: CUMBERLAND COUNTY DISTRICT ATTORNEY RECORDS PERTAIN TO: THOMAS G. BLAINE SS #: , DOB: X . YOUR COMPLETE FILE, INCLUDING BUT NOT LIMITED TO ACCIDENT REPORTS, SUPPLEMENTAL ACCIDENT REPORTS, RECONSTRUCTION REPORTS, CORRESPONDENCE, NOTES, COLOR PHOTOGRAPHS ON CD, VIDEOS, NEWS RELEASES, DIAGRAMS OR ANY OTHER DOCUMENTS IN REGARD TO INCIDENT NO. XXXXXXXXXX WHICH OCCURRED ON XX/XX/XXXX IN EAST PENNSBORO TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA. THOMAS BLAINE and JEANNE BLAINE, his wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION — LAW vs. : NO. 14-4675 CIVIL JOSHUA E. OZIO and KATHRYN E. MCBRIDE, Defendants IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE HESS, P.J., MASLAND AND PECK, J.J. ORDER AND NOW, this 3'� day of December, 2014, the Preliminary Objections of the Defendants to the Plaintiffs' Complaint are OVERRULED. BY THE COURT, Zndrew R. Spirt, Esquire 1515 Market Street Suite 1100 Philadelphia, PA 19102 For the Plaintiffs Wade D. Manley, Esquire 301 Market Street P. O. Box 109 Lemoyne, PA 17043 For the Defendants :rlm CO IES fibs. ITL spV Kevin . Hess, P.J.