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Home My WebLink About98-5606 civilGLADYS E. TOWNSEND- ENSOR and PHILIP ENSOR, Plaintiffs VS. NELSON L. ENTWISTLE, M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 98-5606 CIVIL IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS AND OLER, JJ.. ORDER AND NOW, this t :~' day of June, 1999, it is ordered and directed that: 1. The preliminary objections of the defendant to paragraph 35(k) of the plaintiff' s complaint is sustained and the contention that the defendant "was otherwise negligent, careless and/or reckless as may be demonstrated at trial or determined in discovery" is stricken. 2. The preliminary objections of the defendant to paragraphs 37 and 44 of the plaintiff' s complaint and specifically to the language "but not limited to" and "not limited to" are sustained and said language stricken. 3. The preliminary objection of the defendant to the plaintiff's complaint for punitive damages is sustained. 4. The remaining preliminary objections of the defendant are dismissed as moot. BY THE COURT, K~A. Hess, J. Madelaine N. Baturin, Esquire For the Plaintiffs Daniel L. Grill, Esquire For the Defendant :rlm GLADYS E. TOWNSEND- · ENSOR and PHILIP ENSOR, · Plaintiffs ' ,, VS. ' · NELSON L. ENTWISTLE, · · M.D., Defendant ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW 98-5606 CIVIL IN RE' PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HESS AND OLER, JJ. OPINION AND ORDER The defendant, Dr. Nelson L. Entwistle, has filed five separate preliminary objections to plaintiff, Gladys E. Townsend-Ensor's complaint alleging medical malpractice in the performance of an excisional biopsy by the defendant which resulted in a surgical sponge being left in plaintiff's right breast. Four of the defendant's preliminary objections in the form of motions to strike contend that plaintiff' s complaint fails to conform to law or role of court pursuant to Pa.R.C.P. 1028(a)(2). The remaining preliminary objection is a motion for a more specific pleading under Pa.R.C.P. 1028(a)(3) as an alternative to a motion to strike for failure of a pleading to conform to law or role of court under Pa.R.C.P. 1028(a)(2). Defendant's first preliminary objection contends that paragraph 35(k) of plaintiff' s complaint fails to comply with Pa.R.C.P. 1019(a) which states' "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Paragraph 35(k) of plaintiff's Count I alleging negligence follows paragraphs 35(a)-(j) which allege specific instances of negligent conduct by defendant 98-5606 CIVIL before, during, and after the excisional biopsy performed on the plaintiff. Paragraph 35(k) then alleges that defendant was "... otherwise negligent, careless and/or reckless · as may be demonstrated at trial or determined in discovery." Pa. R.C.P. 1019(a) requires a complaint to' (a) apprise the defendant of the claim being asserted; and (b) summarize the essential facts to support the claim. Krasia v. Keypunch, Inc., 424 Pa. Super. 230, 235,622 A.2d 355,357 (1993). Allegations in a complaint are satisfied under Pa.R.C.P. 1019(a) if they aver all of the facts that the plaintiff will later have to prove to recover, and the facts are pled with sufficient specificity so as to allow the defendant to prepare a defense. Baker v. Rangos, 229 Pa. Super. 333,350, 324 A.2d 498, 505,506 (1974). Defendant's brief relies on Connor v. Allegheny General Hospital in stressing the importance of filing preliminary objections to complaints that contain allegations not supported by material facts. 501 Pa. 306, 461 A.2d 600 (1983). In Connor, plaintiff's initial complaint alleged defendant's negligence caused plaintiff to suffer a perforation of the abdominal cavity. Id... at 601. The lower court refused to allow the plaintiff to amend the complaint to allege that defendant was negligent in failing to discover and remedy an already existing perforation of the abdominal cavity. Id. at 601,602. The lower court held that such an allegation would amount to a new theory of negligence being introduced after the statute of limitations had expired. Id. at 602. In reversing the lower court's decision, the Supreme Court held that the complaint could be amended because it contained an allegation that the defendant was negligent "[I]n otherwise failing to use due care and caution under the circumstances." Id.._:. The Court held that the new allegation was merely an amplification of the original cause of action. Connor, 461 A.2d at 602. 98-5606 CIVIL More importantly, the Court in footnote three asserted that "[I]f appellee did not know how it 'otherwise fail[ed] to use due care and caution under the circumstances,' it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants' complaint." Id_._:. at 602 n.3. This is precisely what the defendant has done here. By merely claiming that the defendant was "otherwise negligent, careless, and/or reckless ..." the plaintiff has failed to provide in a concise and summary form the material facts underlying the claim of negligence required under Pa.R.C.P. 1019(a). Denying defendant's preliminary objection would allow the plaintiff to generally allege the defendant was "otherwise negligent" without providing the material facts which form the basis of the claim. Such would defeat the purpose of Pa.R.C.P. 1019(a) which is to allow the defendant to understand the claim and prepare an effective defense. The defendant's third preliminary objection is similarly grounded in that it objects to the plaintiff' s use of the phrases "but not limited to" and "not limited to" as not conforming to the pleading requirements set forth in Pa.R.C.P. 1019(a). The pertinent parts of the allegedly offending paragraphs contained in the complaim are as follows' 37. As a result of the conduct of Defendant... Plaintiff has suffered, and will continue to suffer, permanent damage including, but not limited to:... 44. As a direct result of Defendant's negligence, Plaintiff has suffered damages not limited to those set forth in paragraphs 34 through 43, inclusive. Again, we agree with the defendant that the plaintiff has not pled sufficient material facts relating to damages to properly state a cause of action under Pa.R.C.P. lO19(a). 98-5606 CIVIL In Cicero v. Cominsky, 25 D.&C.4th 422 (Luzeme County 1994) the court granted a motion to strike language in a paragraph of a complaint nearly identical to the language used in the present plaintiff's complaint. The paragraph states: Plaintiffs suffered the damages described herein as a result of the careless and negligent conduct of the defendants, including but not li,rnited to: The court held that the aforesaid language is "violative of... Pa. R.C.P. 1019, said language not providing all of the material facts upon which the cause of action is based and allowing potential of permitting the plaintiff to prove facts not pled, of which the defendant would have no notice." Id___:. at 424. The defendant makes an additional motion to strike pursuant to Pa. R.C.P. 1028(a), asserting that plaintiff's allegations in the complaint that defendant's conduct was outrageous, reckless, and wanton are not accompanied by specific facts, and thus, do not conform to law as it pertains to the pleading of punitive damages. With respect to punitive damages, Pennsylvania has adopted the following language from the RESTATEMENT (SECOND) OF TORTS § 908(2) (1965)' "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." Martin v. Johns-Manville Corp., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (Pa. 1985). An actor displays a "reckless indifference to the rights of others" if the "actor knows, or has reason to know,.., of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or fail to act, in conscious disregard of, or indifference to, that risk." Id.. at 1097 (quoting RESTATEMENT (SECOND) OF TORTS § 500 cmt. a. (1965)). "Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such 98-5606 CIVIL as inadvertence, mistake and errors of judgment." Id. at 1097 '(citing RESTATEMENT (SECOND) OF TO~TS § 908 cmt. b. (1965)). Facts supporting a claim of outrageous conduct must be found in plaintiffs complaint. Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743,745 (1980). In the present case, the plaintiff's use of the words outrageous, reckless, and wanton to describe the defendant's conduct in leaving a sponge in plaintiff' s breast are not supported by facts which allege that the defendant knew or had reason to know of circumstances that placed the plaintiff in grave danger of bodily harm. Further, the plaintiff's complaint is void of factual allegations which accuse the defendant of acting in conscious disregard of, or with indifference to, a serious risk of bodily harm to the plaintiff. Therefore, the defendant's motion to strike the claim for punitive damages will be granted for the plaintiff' s failure to conform the complaint to law pursuant to Pa. R.C.P. 1028(a). In light of this disposition, we need not address the remaining contention with respect to the punitive damages claim. ORDER AND NO W, this day of June, 1999, it is ordered and directed that: 1. The preliminary objections of the defendant to paragraph 35(k) of the plaintiff' s complaint is sustained and the contention that the defendant "was otherwise negligent, careless and/or reckless as may be demonstrated at trial or determined in discovery" is stricken. 98-5606 CIVIL 2. The preliminary objections of the defendant to paragraphs 37 and 44 of the plaintiff' s complaint and specifically to the language "but not limited to" and "not limited to" are sustained and said language stricken. 3. The preliminary objection of the defendant to the plaintiff' s complaint for punitive damages is sustained. 4. The remaining preliminary objections of the defendant are dismissed as moot. BY THE COURT, Madelaine N. Baturin, Esquire For the Plaintiffs I~A. Hess, J. Daniel L. Grill, Esquire For the Defendant :rim