HomeMy WebLinkAbout99-2310 civilGEORGE E. CRUM and LINDA
M. CRUM,
Plaintiffs
Vo
AGWAY ENERGY PRODUCTS,
INC.; J & S FUELS, INC.;
KEYSTONE PETROLEUM
EQUIPMENT, LTD;
ENVIRONMENTAL, INC.
FIREMAN'S FUND; and JOHN
WARNER,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
·NO. 99-2310 CIVIL TERM
·
' CIVIL ACTION- LAW
IN RE' PRELIMINARY OBJECTIONS OF DEFENDANT AGWAY ENERGY
PRODUCTS, INC. TO PLAINTIFF'S COMPLAINT
BEFORE HOFFER, P.J., OLER, GUIDO, J J,
OPINION AND ORDER OF COURT
AND NOW, this
day of OCTOBER, 1999, the demurrer to
Plaintiffs' claim for punitive damages against Defendant Agway Energy Products, Inc. is
SUSTAINED.
By the
Edward E. Guido, J.
Andrew J. Ostroski, Esquire
For the Plaintiffs
Harry D. McMunigal, Esquire
For Defendant Agway Energy Products, Inc.
Wayne Partenheimer, Esquire
For Defendants J & S Fuels, Inc. and John Warner
Kevin M. Gold, Esquire
For Defendant Keystone Petroleum Equipment, Ltd.
Robert E. Kelly, Jr., Esquire
For Defendant Environmental Products and Services, Inc.
R. James Reynolds, Jr., Esquire
For Defendant Shield Environmental Associates, Inc.
Thomas J. Madigan, Esquire
James W. Creenan, Esquire
For Defendant Shield Environmental Associates, Inc.
David A. Baric, Esquire
For Defendant Fireman's Fund
:sld
GEORGE E. CRUM and LINDA
M. CRUM,
Plaintiffs
Vo
AGWAY ENERGY PRODUCTS,
INC.; J & S FUELS, INC.; :
KEYSTONE PETROLEUM :
EQUIPMENT, LTD; :
ENVIRONMENTAL, INC; :
FIREMAN'S FUND; and JOHN :
WARNER,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· NO. 99-2310 CIVIL TERM
CIVIL ACTION- ACTION
JURY TRIAL DEMANDED
IN RE' PRELIMINARY OBJECTIONS OF DEFENDANT AOWAY ENEROY
PRODUCTS, INC. TO PLAINTIFF'S COMPLAINT
BEFORE HOFFER, P,J., OLER, GUIDO, JJ.
OPINION AND ORDER OF COURT
On April 19, 1999 Plaintiffs filed a Complaint seeking damages for the
professional negligence of seven named Defendants. On May 24, 1999 Defendant Agway
Energy Products, Inc (hereinafter "Agway") filed a preliminary objection in the nature of a
demurrer to Plaintiffs' punitive damages claims. The issues were briefed by the parties and
argued before this Court. This matter is now ready for disposition.
FACTUAL BACKGROUND
The Complaint avers the following relevant facts'
1. Plaintiffs regularly purchased their home heating oil from Defendant Agway.~
Complaint ¶ 10.
NO. 99-2310 CIVIL TERM
2. Prior to January 14, 1998 Agway assigned Plaintiffs' account to Defendant J&S
Fuels, Inc. (hereinafter "J&S Fuels") for the delivery of home heating oil.2
3. On January 14, 1998 an employee of J&S Fuels, appeared at Plaintiffs' home to
deliver home heating oil. He broke open the seal of an inoperative oil fill pipe and
pumped aP3Proximately 250 gallons of home heating oil directly into the Plaintiff's
basement.
4. Agway did not inform J&S Fuels or its employee of the new position of Plaintiffs'
oil storage tank.4
The complaint goes on to provide that Agway's breach of duty to Plaintiffs included the
following actions and/or inactions:
(a) failing to properly supervise its agents and/or employees in the delivery of home
heating oil;
(b) failing to properly instruct its agents and/or employees in. the delivery of home
heating oil;
(c) failing to inform its agents and/or employees of the conditions of Plaintiffs'
premises that affect the safe delivery of home heating oil to the Plaintiffs;
(d) failing to have an effective plan in place for the expeditious and effective
remediation of spills that may occur during the course of home heating oil
deliveries; and
(e) failing to exercise due care to protect Plaintiffs' real and personal property from
' damages arising out of the delivery of home heating oil.5
Based upon the foregoing averments, Plaintiffs have requested an award of punitive damages.
DISCUSSION
"Punitive damages may be awarded for conduct that is outrageous, because of the defendant's
2 Complaint ¶ 11.
3 Complaint ¶¶ 15-16.
4 Complaint ¶ 17.
Complaint ¶ 46.
NO. 99-2310 CWIL TERM
evil motive or his reckless indifference to the fights of others." Martin v. Johns-Manville
Corp.., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (Pa. 1985). Plaintiffs concede that Defendant
Agway did not have an evil motive. However, they argue that its actions and inactions "were
committed in reckless disregard of the fights of Plaintiffs...or were reckless, outrageous, and
~6
wanton...
As Judge Oler noted in dismissing Plaintiffs' claim for punitive damages against co-
defendant Fireman's Fund, "although malice, intent, knowledge, and other conditions of mind
may be averred generally in a pleading, the attendant material facts pled must support such an
averment.''7 (citations and footnote omitted). In the instant case, the Plaintiffs have not
alleged any facts which would support an averment of the reckless state of mind necessary to
support an award of punitive damages. At most, the misconduct alleged by Agway or its
agents constitutes ordinary negligence for which punitive damages may not be awarded. Field
v. Philadelphia Electric Co., 388 Pa. Super. 400, 565 A.2d 1170 (1989).
For the reasons set forth above, we will sustain Defendant Agway's demurrer to
Plaintiffs claim for punitive damages.
ORDER
AND NOW, this 7TH day of OCTOBER, 1999, the demurrer to Plaintiffs' claim for
punitive damages against Defendant Agway Energy Products, Inc. is SUSTAINED.
6 Complaint ¶ 3.
7 See page 7 of the opinion of the Honorable J. Wesley Oler dated September 24, 1999.
NO. 99-2310 CIVIL TERM
By the Court,
/~/Edward E. Guido
Edward E. Guido, J.
Andrew J. Ostroski, Esquire
For the Plaintiffs
Harry D. McMunigal, Esquire
For Defendant Agway Energy Products, Inc.
Wayne Partenheimer, Esquire
For Defendants J & S Fuels, Inc. and John Warner
Kevin M. Gold, Esquire
For Defendant Keystone Petroleum Equipment, Ltd.
Robert E. Kelly, Jr., Esquire
For Defendant Environmental Products and Services, Inc.
R. James Reynolds, Jr., Esquire
For Defendant Shield Environmental Associates, Inc.
Thomas J. Madigan, Esquire
James W. Creenan, Esquire
For Defendant Shield Environmental Associates, Inc.
David A. Baric, Esquire
For Defendant Fireman's Fund
:sld
GEORGE E. CRUM and
LINDA M. CRUM,
Plaintiffs
Ve
AGWAY ENERGY PRODUCTS,
INC.; J & S FUELS, INC.;
KEYSTONE PETROLEUM
EQUIPMENT, LTD; SHIELD
ENVIRONMENTAL PRODUCTS
& SERVICES, INC.
FIREMAN'S FUND; and
JOHN WARNER,
Defendants
' IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
·NO. 99-2310 CIVIL TERM
·CIVIL ACTION- LAW
·
·
IN RE' PRELIMINARY OBJECTIONS OF DEFENDANT SHIELD
ENVIRONMENTAL, INC.
BEFORE HOFFER, P.J., OLER, GUIDO, JJ.
ORDER OF COURT
AND NOW, this 0~~x day of OCTOBER, 1999, the demurrer to Plaintiffs'
claim for punitive damages against Defendant Shield Environmental, Inc. is
SUSTAINED. The remaining preliminary objections are DENIED.
By the Court,
Edward E. Guido, J.
Andrew J. Ostroski, Esquire
For the Plaintiffs
Harry D. McMunigal, Esquire
For Defendant Agway Energy Products, Inc.
Wayne Partenheimer, Esquire
For Defendants J & S Fuels, Inc. and John Warner
Kevin M. Gold, Esquire
For Defendant Keystone Petroleum Equipment, Ltd.
Robert E. Kelly, Jr., Esquire
For Defendant Environmental Products and Services, Inc.
R. James Reynolds, Jr., Esquire
For Defendant Shield Environmental Associates, Inc.
Thomas J. Madigan, Esquire
James W. Creenan, Esquire
For Defendant Shield Environmental Associates, Inc.
David A. Baric, Esquire
For Defendant Firemans's Fund
'sld
GEORGE E. CRUM and
LINDA M. CRUM,
Plaintiffs
Ve
AGWAY ENERGY PRODUCTS,
INC.; J & S FUELS, INC.;
KEYSTONE PETROLEUM
EQUIPMENT, LTD; SHIELD
ENVIRONMENTAL PRODUCTS
& SERVICES, INC.
FIREMAN'S FUND; and
JOHN WARNER,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
·
· NO. 99-2310 CIVIL TERM
· CIVIL ACTION- LAW
IN RE- PRELIMINARY OBJECTIONS OF DEFENDANT SHIELD
ENVIRONMENTAL, INC.
BEFORE HOFFER, P,J., OLER, GUIDO, JJ.
OPINION AND ORDER OF COURT
Plaintiffs commenced this action by complaint filed on April 19, 1999. On June
14, 1999, Defendant Shield Environmental, Inc. [hereinafter "Shield"] filed preliminary
objections. The parties have briefed and argued their respective positions. This matter is
now ready for disposition.
STATEMENT OF FACTS
Prior to January 14, 1998, the Plaintiffs had regularly purchased their home
heating oil from Defendant Agway Energy Products, Inc., (hereinafter "Agway"). At
some point, Defendant Agway assigned Plaintiffs' account to Defendant J & S Fuels, Inc.
(hereinafter "J&S Fuels"). On January 14, 1998, J & S Fuels' employee, Defendant John
Warner, pumped 250 gallons of heating oil directly into the Plaintiffs' basement through
99-2310 CIVIL TERM
a disconnected intake pipe. Although the pipe had previously been sealed, Mr. Warner
broke the seal so that he could pump the oil.
Defendant Shield was hired by the liability insurance carder, Defendant
Fireman's Fund, to deal with certain aspects of the clean up. The "Factual Background"
portion of the complaint makes the following relevant averments'
26. On January 15, 1998, Defendant Fireman's Fund contracted for the services of
Defendant Shield for the purpose of supervising the environmental aspects of
the cleaning and the continuing remediation.
27. Subsequent to January 19, 1998, Defendant Shield contracted for the services
of Defendant EPS to complete the cleaning and deodorizing of Plaintiffs'
property.
30.
On February 19, 1998, Defendants EPS and Shield inspected Plaintiffs'
premises and advised Plaintiffs that their home was in pre-accident condition
and ready for occupancy.
31. Notwithstanding the foregoing, Plaintiffs' residence continued to present
environmental and health hazards, oil remained on the premises, and the odors
and fumes presented a continuing nuisance.
32. Upon information and belief, Defendant Shield knew of past instances in
which Defendant EPS failed to provide services in a workmanlike manner and
did not perform their services in a manner consistent with the generally
applicable standards in their field.
33. On February 26, 1998, Defendant Shield directed Defendant EPS to undertake
additional remedial measures to restore the home to its pre-accident condition
and to complete the cleanup.
34. Defendant EPS remained on the premises under the direction and supervision
of Defendants Shield and Fireman's Fund until on or about June 20, 1998.
36. From January 14 through August 2, 1998, Plaintiffs remained in a hotel as
Defendants continued their unsuccessful endeavors to remediate the effects of
the oil spill and restore Plaintiffs' premises to its pre-accident condition.
99-2310 CIVIL TERM
37. Notwithstanding the foregoing, Plaintiffs' home continues to be permeated
with offensive fumes and odors and other effects of the January 14, 1998 oil
spill and remediation work remains to be completed.
42. Plaintiffs' damages are continuing insofar as they suffer from frequent
headaches, nausea, and discomfort, and have incurred larger utility bills as a
result of the constant need to ventilate (emphasis added).
The cause of action against Defendants Fireman's Fund and Shield is set forth in Count II
of the complaint. In addition to incorporating by reference the allegations set forth above
Count II contains the following averments'
55. Defendants Firemans' Fund and Shield owed a duty to Plaintiffs to promptly
develop an effective remediation plan, to provide for the effective
implementation of that plan, and to retain and supervise competent contractors
who could perform the work in a workmanlike manner to restore Plaintiffs'
property to its pre-accident condition.
57. The actions and/or inactions of Defendant Shield that constitute a breach of
their duty to Plaintiffs include, but are not limited to, the following:
(a) failing to complete the initial cleanup in a reasonable time;
(b) failing to promptly provide replacement services after receiving notice
of the unworkmanlike manner in which the cleanup and remediation
effort were proceeding;
(c) failing to implement a cleanup and remediation plan suitable to the
circumstances of the spill;
(d) failing to properly instruct and/or supervise the contractors' and others
whose services they secured in accordance with an appropriate plan;
(e) failing to exercise due care to protect Plaintiffs' real and personal
property from additional damages during the course of the cleanup
and remediation; and
(f) failing to restore Plaintiffs' real property to its pre-accident condition.
58. As a direct and proximate result of the negligence, carelessness, and
recklessness of the Defendants, Plaintiffs have suffered damages as follows'
99-2310 CIVIL TERM
(a) personal property losses in the approximate amount of $4,800.00;
(b) mortgage and home maintenance expenses in the appropriate amount
of $5,300.00;
(c) housing and living expenses from January 14 through August 1, 1998
in the approximate amount of $20,190.25;
(d) income losses in the amount of $343.00; and
(e) an unliquidated amount that will be needed to complete the
remediation efforts and restore Plaintiffs' real property to its
pre-accident condition.
61. Plaintiffs have endured tremendous aggravation, inconvenience, upset, and
physical discomfort caused by the interference with their peaceful possession
and use of their real property (emphasis added).
62. The actions, and inactions of Defendants were committed in reckless disregard
of the fights of the Plaintiffs to their real and personal property and/or were
reckless, outrageous, and wanton, and Plaintiffs are entitled to an additional
unliquidated amount of punitive damages.
DISCUSSION
Defendant Shield has raised three issues in its preliminary objections. In the first
instance, it requests that we grant a demurrer since the complaint fails to state a cause of
action against it. In the alternative it asks us to strike "Count II" of the complaint for
failing to comply with Pa. Rule of Civil Procedure 1020 (a). Finally, it requests that we
sustain a demurrer to Plaintiffs' claim for punitive damages. We will address each
objection separately.
Demurrer
Defendant Shield asks us to dismiss the case with prejudice because the
allegations contained in Count II of the Complaint fail to state a cause of action. A
demurrer can be sustained only when it is clear and free from doubt that no relief can be
granted on the facts as pled. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). For the
99-2310 CIVIL TERM
purpose of testing the legal sufficiency of the pleading, we must accept as true all well
pleaded facts together with any reasonable inferences which may be drawn therefrom.
Mellon Bank v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). If the facts as pleaded
state a claim for which relief may be granted under any theory of law, a demurrer should
be rejected. Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985).
Applying the above standard to the case at bar, we cannot sustain the demurrer of
Defendant Shield. Paragraphs 42 and 61 of the Complaint allege, inter alia, that Plaintiffs
have suffered personal injuries as a result of Defendant Shield's negligent performance of
its contractual duties. This has been a cognizable cause of action in this Commonwealth
since Evans v, Otis Elevator, 403 Pa. 13, 168 A.2d 573 (1961).~ For this reason alone,
the demurrer cannot be sustained.2
Failure to comply with Pa,R,C.P. 1020(a).
Count II of Plaintiffs' complaint sets forth a cause of action against both
Defendant Shield and Defendant Fireman's Fund. Defendant Shield alleges this to be a
violation of Pa.R.C.P. 1020(a) which provides'
(a) The plaintiff may state in the complaint more than one
cause of action against the same defendant heretofore
asserted in assumpsit or trespass. Each cause of action and
any special damage related thereto shall be stated in a
separate count containing a demand for relief.
~ Defendant Shield argues that the Plaintiff is precluded from recovery based upon the "well established"
principle of Pennsylvania law that "no cause of action exists for negligence which causes only economic
loss." (See p. 6 of its brief in Support of Preliminary Objections) Having read the cases cited, we are not
convinced that the "well established" principle exists as enunciated by defense counsel. The cases of N,Y.
State Electric & Gas Corp. v. Westinghouse Electric Corp., 387 Pa. Super. 537, 564 A.2d 919, (1989) and
Lower Lake Dock Co. v. Messinger Baring Corp., 395 Pa. Super. 456, 577 A.2d 631 (1990) specifically
hold that a product liability action sounding in negligence and/or strict liability cannot be maintained
between commercial enterprises for the recovery of purely economic losses. The only other Pennsylvania
appellate case cited, Aikens v, Baltimore and Ohio R.R., 348 Pa. Super. 17, 501 A.2d 277, (1985), held that
"purely economic loss occasioned by tortious interference with contract or economic advantage is not
available under a negligence theory." 501 A.2d at 278.
2 We do not address what, if any, other causes of action are properly stated in the complaint.
99-2310 CIVIL TERM
We do not read Rule 1020(a)as prohibiting a plaintiff from including a cause of action
against separate defendants in a single count. Rather it applies to separate and distinct
causes of actions against the ~ame defendant.
However, even if Pa. R.C.P. 1020(a) did apply to the situation before us, the
failure to comply with it is a procedural error of the sort which does not necessarily
foreclose the substantive fights of the parties. Bartanus v. Lis, 332 Pa. Super. 48, 480
A.2d 1178 (1984). Pa. R.C.P. 126 provides that "the court at every stage of any ... action
... may disregard any error or defect of procedure which does not affect the substantial
fights of the parties." We choose to do so in this case. Therefore, Defendant Shield's
second preliminary objection must be denied.
Punitive damage claim.
We are more receptive to Defendant Shield's request to dismiss Plaintiffs' claim
for punitive damages. "Punitive damages may be awarded for conduct that is outrageous,
because of the defendant's evil motive or his reckless indifference to the fights of other."
Martin v. Johns-Manville Corn_., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (Pa. 1985).
Plaintiffs concede that Defendant Shield did not have an evil motive. However, they
argue that its actions and inactions "were committed in reckless disregard of the fights of
Plaintiffs... or were reckless, outrageous, and wanton...''3
As Judge Oler noted in dismissing Plaintiffs' claim for punitive damages against
co-defendant Fireman's Fund, "although malice, intent, knowledge, and other conditions
of mind may be averred generally in a pleading, the attendant material facts pled must
support such an averment.''4 (citations and footnote omitted). In the instant case, the
3 Complaint ¶ 62.
4 See page 7 of the opinion of the Honorable J. Wesley Oler dated September 24, 1999.
99-2310 CIVIL TERM
Plaintiffs have not alleged any facts which would support an averment of the reckless
state of mind necessary to support an award of punitive damages. At most, the
misconduct alleged by Defendant Shield constitutes ordinary negligence for which
punitive damages may not be awarded. Field v. Philadelphia Electric Co., 388 Pa. Super.
400, 565 a.2d 1170 (1989).
For the reasons set forth above, we will sustain Defendant Shield's demurrer to
Plaintiffs claim for punitive damages.
ORDER
AND NOW, this 20TM day of OCTOBER, 1999, the demurrer to Plaintiffs' claim
for punitive damages against Defendant Shield Environmental, Inc. is SUSTAINED. The
remaining preliminary objections are DENIED.
By the Court,
/~/Edward E. Guido
Edward E. Guido, J.
Andrew J. Ostroski, Esquire
Harry D. McMunigal, Esquire
Wayne Partenheimer, Esquire
Kevin M. Gold, Esquire
Robert E. Kelly, Jr., Esquire
R. James Reynolds, Jr., Esquire
Thomas J. Madigan, Esquire
James W. Creenan, Esquire
David A. Baric, Esquire