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HomeMy WebLinkAbout98-6915 civilTERENCE S. HEVNER and FAYE J. HEVNER, Plaintiffs Ve BLUE RIDGE HAVEN WEST, INC., WEST SHORE HEALTH REHAB CENTER, BEVERLY HEALTH AND REHABILITATION, INC., BEVERLY ENTERPRISES, INC., and BEVERLY ENTERPRISES OF PENNSYLVANIA, INC., Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA o · NO. 98-6915 · · · CIVIL ACTION-LAW · JURY TRIAL DEMANDED IN RE: PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' ANSWER WITH NEW MATTER BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this ~'"day of July, 1999, the plaintiffs' preliminary objections to defendants' answer with new matter are OVERRULED. BY THE COURT, Arthur K Hoffman, Esquire Douglas M. Wolfberg, Esquire Attorneys for Defendants Leah B.Graff, Esquire Attorney for Plaintiffs Key~' A. Hess, J. TERENCE S. HEVNER and FAYE J. HEVNER, Plaintiffs Vo BLUE RIDGE HAVEN WEST, INC., WEST SHORE HEALTH REHAB CENTER, BEVERLY HEALTH AND REHABILITATION, INC., BEVERLY ENTERPRISES, INC., and BEVERLY ENTERPRISES OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-6915 CIVIL ACTION-LAW JURY TRIAL DEMANDED IN RE: PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' ANSWER WITH NEW MATTER BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER This action was instituted by the plaintiffs, Terrence S. Hevner and Faye J. Hevner, by the filing of a complaint on or about December 8, 1998. Plaintiffs alleged in their complaint that Mr. Hevner, as a business invitee, fell on ice "which had accumulated on the parking lot" at the West Shore Health and Rehabilitation Center, owned and operated by Beverly Enterprises-Pennsylvania, Inc. Plaintiff alleged that the fall occurred on December 20, 1996. Defendants filed an answer and new matter to plaintiff's complaint on January 29, 1999. Defendants' new matter asserted affirmative defenses of assumption of risk and contributory/comparative negligence. Plaintiffs on February 23, 1999 filed preliminary objections to defendants' Paragraph 25 (f), alleging that it was insufficiently specific to allow them to prepare a response. Paragraphs 25 (a)-(e) lay out five specific bases for defendants' assertion of the affirmative defense of contributory negligence and Paragraph 25 (f) states' in such other manner as may be revealed during the course of discovery in this case. Ever since Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the courts have been increasingly called upon to determine whether pleadings comply with Pa.R.C.P. 1019 (a). The Connor court observed in a footnote, that the defendant could have moved to strike an averment in the complaint alleging it was negligent "in otherwise failing to use due care and caution under the circumstances" or at least to have sought a more specific pleading. Fitzgerald v. Kaguyutan, 18 Pa. D. & C.4th 1, 5 (1993). Case law in Pennsylvania is limited regarding situations where preliminary objections have been filed to general averments raising affirmative defenses in new matter. However, in Gotwalt v. York Hospital, 102 York L.R. 151 (1988), the Honorable Richard H. Horn denied motions to strike or for more specific pleading because 1) of the disparity in time available to plaintiffs and defendants in preparing their initial pleadings, 2) Pa.R.C.P. 126 allows courts to liberally construe the pleading roles, and 3) plaintiff had ample opportunity to examine the hospital's pertinent medical records, so most facts are within the knowledge of both parties thereby making the defenses raised predictable. Fitzgerald v. Kaguyutan, 18 Pa. D. & C.4th 1, 5-6 (1993). In a situation almost identical to the one at bar, Judge Michael A. Georgelis stated in Latshaw v. Valeriano, et al: I believe that the discovery process is the appropriate way to uncover the viability of the affirmative defenses which have been pled by the defendants in their new matter. If that process produces evidence which supports one or more of those defenses, then the defendants may continue to pursue them. On the other hand, if that process failS to produce supporting evidence for one or more of the defenses, and, in the event the defendants refuse to abandon any such defense, recourse will be available to the plaintiff. For all of these reasons, I conclude that the Plaintiffs preliminary objections to the defendant's new matter are not the appropriate way to attack the asserted affirmative defenses and must, consequently be overruled. Latshaw v. Valeriano, et al., No. CI-97-12452 (1998) (Lancaster C.P. 1998). The foregoing conclusions follow all the more logically given the amendments made in 1994 to the Rules of Civil Procedure, specifically Rule 1030, dealing with new matter, which provided that: (b) The affirmative defenses of assumption of the risk, comparative negligence, and contributory negligence need not be pleaded. In this case, the plaintiff would have us require the defendant to more specifically plead defenses which need not have been pled at all. Such an argument is not logical. ORDER AND NOW, this day of July, 1999, the plaintiffs' preliminary objections to defendants' answer with new matter are OVERRULED. BY THE COURT, Hess, J. Arthur K Hoffman, Esquire Douglas M. Wolfberg, Esquire Attorneys for Defendants Leah B.Graff, Esquire Attorney for Plaintiffs