HomeMy WebLinkAbout97-3505 CivilDAVID W. KNAUER,
ESQUIRE, and DAVID W.
KNAUER, P.C.,
Plaintiffs
Vo
RISK ENTERPRISE
MANAGEMENT LIMITED
a/k/a REM, JAMES R.
SCHADEL, ESQUIRE,
WEINHEIMER, SCHADEL &
HABER, MICHAEL P. O'DAY,
ESQUIRE, EDWARD H.
SMITH, ESQ., O'DAY &
SMITH, a partnership,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-3505 CIVIL TERM
DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE HOFFER, P.J., and OLER, J.
ORDER OF COURT
AND NOW, thisfi_~,~day of February, 1999, aPrer careful consideration of the
Defendants' Preliminary Objections to Plaintiff's Amended Complaint (Third), Plaintiff's
response to Defendants' Preliminary Objections and the briefs and arguments in support
thereof, Defendants' Preliminary Objections will be sustained in part and denied in part.
The preliminary objection to venue of Defendants Schadel, Weinheimer; Schadel &
Heber, O'Day, Smith and O'Day and Smith (Schadel et al.) is denied. The preliminary
objection of Defendants Schadel et al. to service is denied. The preliminary objection of
Defendants Schadel et al. to the wrongful use of civil proceedings claims is denied. The
preliminary objection of Defendants Schadel et al. to the abuse of process claims is denied.
The demurrer of Defendants Schadel et al. to the claim for intentional infliction of
emotional distress is sustained. The preliminary objection ofDefendants Schadel et al. to the
claim for punitive damages is sustained. The preliminary objection of Defendants Schadel
et al. to the standing of David W. Knauer, P.C., is denied. The objection of Defendants
Schadel et al. to the inclusion of the partnership of O'Day and Smith as a defendant is
denied. The demurrer of Defendants Schadel et al. to the civil conspiracy claim is denied.
The preliminary objection of Defendants Schadel et al. in the form of a motion to strike for
failure to comply with Pennsylvania Rules of Civil Procedure is denied.
The preliminary objection of Defendant Risk Enterprise Management Limited (REM)
in the form of a motion to strike for lack of capacity to sue is denied. The demurrer of
Defendant REM to Plaintiff's claims for abuse of process is denied. The demurrer of
Defendant REM to Plaintiff's claim for intentional infliction of emotional distress is
sustained. The demurrer of Defendant REM to Plaintiff's claim for wrongful use of civil
The demurrer of Defendant REM to Plaintiff's claim for civil
proceedings is denied.
conspiracy is denied.
David W. Knauer, Esq.
41 lA East Main Street
Mechanicsburg, PA 17055
Attorney for Plaintiffs
BY THE COURT,
esley O1~., J. ~v
James R. Schadel, Esq.
602 Law and Finance Building
429 Fourth Avenue
Pittsburgh, PA 15219-1503
Attorney for Defendants James
R. Schadel, Esq., Weinheimer,
Schadel & Haber, Michael P. O'Day,
Esq., Edward H. Smith, Esq., and
O'Day & Smith
Timothy J. MacMahon, Esq.
P.O. Box 803
Harrisburg, PA 17108-0803
Attorney for Defendant Risk
Enterprise Management Limited
:rc
DAVID W. KNAUER,
ESQUIRE, and DAVID W.
KNAUER, P.C.,
Plaintiffs
Vo
RISK ENTERPRISE
MANAGEMENT LIMITED
a/k/a REM, JAMES R.
SCHADEL, ESQUIRE,
WEINHEIMER, SCHADEL &
HABER, MICHAEL P. O'DAY,
ESQUIRE, EDWARD H.
SMITH, ESQ., O'DAY &
SMITH, a partnership,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-3505 CIVIL TERM
DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE HOFFER, P.J., and OLER, J.
OPINION and ORDER OF COURT
Oler, J., February , 1999.
This is a civil action for abuse of process, intentional infliction of emotional distress,
wrongful use of civil proceedings, and civil conspiracy. Briefly stated, Plaintiff David W.
Knauer, Esquire, complains that he was wrongfully joined as an additional defendant in an
action which he had filed on behalf of a client in another county.
Presently before the court are two sets of preliminary objections to Plaintiffs' third
amended complaint. Defendants James R. Schadel, Esquire, Weinheimer, Schadel & Haber,
Michael P. O'Day, and O'Day & Smith (Schadel et al.) have filed preliminary objections
consisting of a motion to strike based upon the statute of limitations, demurrers and a
challenge to venue. Defendant Risk Enterprise Management Limited (REM) has filed
preliminary objections consisting of demurrers.
The former set of preliminary objections was not endorsed with a notice to plead, and
the answer filed by Plaintiffs is, basically, unspecific. By order of court issued by the writer
of this opinion on October 1, 1998, the parties were directed to file depositions and/or factual
stipulations to provide a basis in the record for the court to rule upon the issue of venue.
STATEMENT OF FACTS
This case, commenced on December 30, 1997, involves the allegedly wrongfuljoinder
of Plaintiff David W. Knauer, Esquire, as an additional defendant in a case in Indiana
County. In that case, PlaintiffKnauer had filed suit on behalfofa client for legal malpractice
in the handling of a third case. In the third case, the client had purportedly been inadequately
represented on a workers' compensation claim.
Plaintiffs are David W. Knauer, Esq., a practicing Pennsylvania attorney, and David
W. Knauer, P.C., his employer. Plaintiffs' law office is located in Mechanicsburg,
Cumberland County, Pennsylvania.
Defendants are Risk Enterprise Management Limited, also known as REM; James R.
Schadel, Esquire; Weinheimer, Schadel & Haber, Michael P. O'Day, Esquire; Edward H.
Smith, Esquire; and O'Day & Smith, a partnership.
REM is a foreign corporation doing business under the laws of the Commonwealth
of Pennsylvania, with an address of 59 Maiden Lane, New York, New York.~ REM is a third
party administrator of claims for insurers, businesses and commercial enterprises) REM has
no offices or employees in Cumberland County, Pennsylvania.3 REM's only Pennsylvania
Deposition of Conrad G. Cyriax, November 3, 1998, at 4 (Hereinafter "Cyriax Dep.
2 Id. at 7.
3 Id. at 8.
2
offices are located in Philadelphia and Pittsburgh.4
James R. Schadel, Esquire, is an adult individual with a business address of
Weinheimer, Schadel & Haber, 806 Law & Finance Building, 429 Fourth Avenue,
Pittsburgh, Allegheny County, Pennsylvania.s Michael P. O'Day, Esquire, is an adult
individual with a business address of O'Day Law Associates, 158 East Chestnut Street,
Lancaster, Lancaster County, Pennsylvania.6 Edward H. Smith, Esquire, is an adult
individual with an address of Box 534, Maytown, Lancaster County, Pennsylvania. The
partnership of O'Day & Smith is also named as a defendant in the action.
The allegations of the complaint filed in this case may be summarized as follows: The
case finds its genesis in a workers' compensation case wherein Defendants O'Day and
O'Day & Smith represented the claimant. The claimant's case was based on the following
allegations: On September 9, 1983, the claimant, Fred F. Schleicher, suffered an injury while
at work. Mr. Schleicher retained Defendants O'Day and O'Day & Smith to represent him
in a claim against his employer. At that time, Mr. Schleicher was under the impression that
his employer was a company named Great Northeastern Trucking, Inc. (Great Northeastern).
Mr. Schleicher prevailed in his workers' compensation claim against Great Northeastern;
however, Great Northeastern was insolvent and carried no workers' compensation insurance
for Mr. Schleicher. Judgment on the award against Great Northeastern was entered in
Lancaster County, Pennsylvania, but it was never satisfied.
Falcon Transport, Inc. (Falcon), was allegedly the proper employer against which a
claim should have been filed. Falcon had insured Mr. Schleicher with United States Fidelity
4 Id. at 19.
s Deposition of James R. Schadel, Esquire, November 3, 1998, at 4 (Hereinafter
"Schadel Dep. _.").
6 Deposition of Michael P. O'Day, November 3, 1998, at 4 (Hereinafter "O'Day
Dep. _.").
3
and Guaranty Insurance Company (USF&G). Eventually, Mr. Schleicher learned that the
identities of the purportedly proper defendants in his workers' compensation case were
Falcon and USF&G. Mr. Schleicher then contacted Jay I. Rubin, Esquire, an Indiana County
attorney, who, on August 23, 1986, informed Timothy A. Lanza, Esquire, an attorney with
Defendant O'Day & Smith, of the identity of Falcon and USF&G. The statute of limitations
respecting the workers' compensation claim was to expire 17 days later, on September 9,
1986. However, Defendants O'Day and O'Day & Smith did nothing to pursue Mr.
Schleicher's claim against Falcon and USF&G.
At 3:00 p.m., on September 9, 1986, Plaintiff Knauer met with Mr. Schleicher to
discuss his workers' compensation claim. Mr. Schleicher arrived at Plaintiffs' office without
his workers' compensation file, and Plaintiff Knauer sent Mr. Schleicher to retrieve the file
from the offices ofO'Day & Smith. Mr. Schleicher returned to Plaintiffs' office on the same
day, after the Bureau of Workmen's Compensation office had closed. On September 10,
1986, PlaintiffKnauer filed a workers' compensation claim against Falcon and USF&G on
behalf of Mr. Schleicher.?
On September 12, 1986, PlaintiffKnauer commenced a professional negligence action
on behalf of Mr. Schleicher against Lanza, O'Day, Smith and O'Day & Smith by filing a
praecipe for writ of summons in Indiana County. The basis for the suit was the defendants'
alleged negligence in allowing the statute of limitations to run without filing a claim. The
defendants in that action filed preliminary objections alleging that Plaintiff Knauer was the
party responsible for missing the deadline. These preliminary objections were denied.
On October 23, 1993, Defendants joined Knauer as an additional defendant in the
Indiana County case. On December 15 and 16, 1994, Plaintiff Knauer and several of the
Defendants were deposed in the case at Plaintiffs' office at 411-A East Main Street,
7 This claim was ultimately denied because the claim was filed one day after the
running of the applicable statute of limitations.
4
Mechanicsburg, Cumberland County, Pennsylvania? During his deposition, Mr. O'Day is
alleged to have testified falsely. On February 2, 1995, a rule was issued upon the Defendants
to file a complaint in the Indiana County case. The Defendants discontinued the joinder in
lieu of filing a complaint. Plaintiffs then commenced the instant action.
Plaintiffs' third amended complaint advances the following causes of action by
Plaintiff Knauer: (1) abuse of process for the initiation of the joinder in the Indiana County
action, against Defendant REM; (2) abuse of process for the continuation ofjoinder, against
Defendant REM; (3) abuse of process for the initiation ofjoinder, against Defendant James
R. Schadel, Esquire; (4) abuse of process for the continuation ofjoinder, against Defendant
James R. Schadel, Esquire; (5) abuse of process for the initiation of joinder, against
Defendant O'Day; (6) abuse of process for the continuation ofjoinder, against Defendant
O'Day; (7) intentional infliction of emotional distress, against Defendant REM; (8)
intentional infliction of emotional distress, against Defendant James R. Schadel; (9)
intentional infliction of emotional distress, against Defendant O'Day; (10) wrongful use of
civil proceedings in initiating joinder, against Defendant REM; (11) wrongful use of civil
proceedings in initiating joinder, against Defendant Schadel; (12) wrongful use of civil
proceedings in initiating joinder, against Defendant O'Day; (13) wrongful use of civil
proceedings in continuing joinder, against Defendant REM; (14) wrongful use of civil
proceedings in continuing j oinder, against Defendant S chadel; and (15) wrongful use of civil
proceedings in continuing joinder, against Defendant O'Day.
The third amended complaint asserts the following causes of action by Plaintiff David
W. Knauer, P.C.: (1) abuse of process, wrongful initiation of joinder and wrongful
continuation ofjoinder, against Defendant REM; (2) abuse of process, wrongful initiation
ofjoinder and wrongful continuation ofjoinder, against Defendant Schadel; and (3) abuse
of process, wrongful initiation of joinder and wrongful continuation of joinder, against
s O'Day Dep. 24-25.
Defendant O'Day.
In addition, the third amended complaint sets forth causes of action by Plaintiffs
Knauer and David W. Knauer, P.C., against Defendant O'Day & Smith for (1) abuse of
process, (2) wrongful initiation ofjoinder, and (3) wrongful continuation ofjoinder. Finally,
the third amended complaint asserts a cause of action by PlaintiffKnauer against Defendants
REM, Schadel, Weinheimer, Schadel & Haber and O'Day, for civil conspiracy.
Defendants Schadel et al. have filed ten preliminary objections to Plaintiffs' third
amended complaint. Defendants first object to venue being laid in Cumberland County,
arguing venue is improper in Cumberland County. Second, Defendants object to the
timeliness of service, essentially arguing that the rule of Lamp v. Heyman, 469 Pa. 465, 766
A.2d 882 (1976), should be applied. Defendants' third preliminary objection demurrer to
Plaintiffs' wrongful use of civil proceedings claims, asserting that Plaintiffs have failed to
plead facts in support of the proposition that the joinder was made to harass or intimidate.
Defendants' fourth objection demurrer to Plaintiffs' abuse of process claims, asserting that
Plaintiffs have failed to plead any facts showing that the Defendants took action primarily
to accomplish a purpose for which the process was not designed. Defendants' fifth
preliminary objection raises a demurrer to Plaintiffs' intentional infliction of emotional
distress claims. Essentially, Defendants contend that Pennsylvania has not adopted such a
tort, and that, even if Pennsylvania recognizes such a cause of action, the allegation of facts
in the complaint are insufficient to state a valid claim. Defendants' sixth preliminary
objection raises a demurrer to Plaintiffs' claims for punitive damages, essentially contending
that the allegations of the complaint do not rise to the level necessary to sustain a claim for
punitive damages.
Defendants' seventh preliminary objection is styled a challenge to the standing of
Plaintiff David W. Knauer, P.C. to raise claims in this suit. Defendants' eighth preliminary
objection is to the inclusion ofO'Day & Smith, a partnership, as a Defendant in this action.
6
Defendants' ninth preliminary objection raises a demurrer to the civil conspiracy claims.
Essentially, Defendants argue that the count was included in the third amended complaint
without leave of court and, as such, is impermissible. Additionally, Defendants contend that
the claim was brought after the expiration of the statute of limitations. Defendants' final
preliminary objection consists of a motion to strike certain paragraphs of the third amended
complaint for failure to comply with Pennsylvania Rules of Civil Procedure in that more than
one cause of action is stated in some of the counts of the third amended complaint.
Defendant REM has filed five preliminary objections to Plaintiffs' third amended
complaint. REM's preliminary objections consist of a motion to strike for lack of capacity
to sue; a demurrer to Plaintiffs' claims for abuse of process; a demurrer to Plaintiffs' claim
for intentional infliction of emotional distress; and a demurrer to Plaintiffs' claim for
wrongful use of civil proceedings. Each of these objections is based on grounds substantially
similar to the corresponding objections raised by the Schadel et al. Defendants. Defendant
REM also raises a demurrer to the civil conspiracy claims, apparently arguing that absent the
initiation of a criminal prosecution against Defendant, there can be no cause of action for
civil conspiracy.
The answer of Plaintiffs to the preliminary objections of Defendants Schadel et al. (a)
"denie[s] as alleged" paragraphs 18-102 in the preliminary objections, (b)"incorporate[s] by
reference" Plaintiffs' third amended complaint, which "speaks for itself," and (c) "reserve[s]
the right to supplement" the answer.
7
DISCUSSION
1. PRELIMINARY OBJECTIONS OF DEFENDANTS SCHADEL ET AL.
Preliminary Objection Challenging Venue in Cumberland County9
In Pennsylvania, venue questions pertinent hereto are controlled by the following
Rules of Civil Procedure:
RULE 1006. VENUE. CHANGE OF VENUE
(a) Except as otherwise provided by Subdivisions (b) and
(c) of this rule, an action against an individual may be brought
in and only in a county in which he may be served or in which
the cause of action arose or where a transaction or occurrence
took place out of which the cause of action arose or in any other
county authorized by law.
(b) Actions against the following defendants, except as
otherwise provided in Subdivision (c), may be brought in and
only in the counties designated by the following rules: political
subdivisions, Rule 2103; partnerships, Rule 2130;
unincorporated associations, Rule 2156; corporations and
similar entities, Rule 2179.
(c) An action to enforce a joint or joint and several
liability against two or more defendants, except actions in which
the Commonwealth is a party defendant, may be brought against
all defendants in any county in which the venue may be laid
against any one of the defendants under the general rules of
Subdivisions (a) or (b).
9 Defendant REM filed preliminary objections to the third amended complaint on
June 4, 1998, but did not object to venue. An objection to venue may be waived by a
defendant. See Pa. R.C.P. 1006(e). However, such a waiver by one defendant is not
dispositive of the issue of venue when properly raised by another defendant. See Pension v.
Lower Bucks Hospital, 395 Pa. Super. 480, 482, 577 A.2d 644, 645 (1990) (holding that one
defendant's failure to object to venue does not thereby make venue proper).
(e) Improper venue shall be raised by preliminary
objection and if not so raised shall be waived. If a preliminary
objection to venue is sustained and there is a county of proper
venue within the State the action shall not be dismissed by shall
be transferred to the appropriate court of that county. The costs
and fees for transfer and removal of the record shall be paid by
the plaintiff.
(f) If the plaintiff states more than one cause of action
against the same defendant in the complaint pursuant to Rule
1020(a), the action may be brought in any county in which any
one of the individual causes of action might have been brought.
RULE 213 0. VENUE
(a) Except as otherwise provided by subdivision (c) of
this rule, an action against a partnership may be brought in and
only in a county where the partnership regularly conducts
business, or in the county where the cause of action arose or in
a county where a transaction or occurrence took place out of
which the cause of action arose.
2179. VENUE
(a) Except as otherwise provided by an Act of Assembly
or by subdivision (b) of this rule, a personal action against a
corporation or similar entity may be brought in and only in
(1) the county where its registered office or
principal place of business is located;
(2) a county where it regularly conducts
business;
(3) the county where the cause of action
arose; or
(4) a county where a transaction or
occurrence took place out of which the cause of
action arose.
"Rule 1028 specifically provides that, '[i]f an issue of fact is raised [in preliminary
objections], the court shall consider evidence by depositions of otherwise.'" Gale v. Mercy
Catholic Medical Center Eastwick, Inc., FitzgeraM Mercy Division, 698 A.2d 647, 651 ( Pa.
Super. Ct. 1997), quoting Pa. R.C.P. 1028, appeal denied, 716 A.2d 1249 (Pa. 1998). When
dealing with an issue of venue, "each case rests on its own facts." Purcell v. Bryn Mawr
Hospital, 525 Pa. 237, 246, 579 A.2d 1282, 1286 (1990).
In a civil action against an individual, venue is proper in any county where any
defendant can be served, in any county in which the cause of action arose, or in any county
in which a transaction or occurrence took place out of which the cause of action arose. See
Pa. R.C.P. 1006(a). Count XXII of Plaintiffs' third amended complaint advances a claim for
civil conspiracy. The factual allegations supporting this count include an allegation that false
testimony in furtherance of the alleged conspiracy took place at a deposition conducted in
Cumberland County. As such, venue is properly laid in Cumberland County.
Objection to Proper Service
Pennsylvania Rule of Civil Procedure 1007 states that an action is "commenced" upon
the date of the filing of a praecipe for a writ of summons with the prothonotary. See Lamp
v. Heyman, 469 Pa. 465,475,366 A.2d 882, 887 (1976). The plaintiff must not delay service
of the writ, however. See id. at 475, 366 A.2d at 887 (1976) (holding that "a writ of
summons shall remain effective to commence an action only if the plaintiff then refrains
from a course of conduct which serves to stall in its tracks the legal machinery he [or she]
has just set in motion"). Failure to comply with the mandate of Lamp "serves to nullify both
the commencement of the action and the tolling of [the] statute of limitations." Collins v.
Greene County Memorial, 419 Pa. Super. 519, 525, 615 A.2d 760, 762 (1992). Such
delaying actions need not amount to bad faith; simple neglect and mistake may be sufficient.
10
See Rosenberg v. Nicholson, 408 Pa. Super. 502, 509-10, 597 A.2d 145, 148 (1991).
Neglect, as used by the Rosenberg court, includes inattentiveness or absentmindedness, such
as misplacing the writ or forgetting of its existence. See id.
InFulco v. Sheaffer, 455 Pa. Super. 30, 686 A.2d 1330 (1996), appealdenied, 548 Pa.
670, 698 A.2d 594 (1997), the Superior Court, refusing to strike the complaint under the
Lamp rule, elaborated upon the holding of Lamp. In Fulco, the plaintiff had repeatedly
attempted to obtain sheriffs service in several counties before effectuating service in the
proper county. See id. at 32, 686 A.2d at 1331. In the case subjudice, PlaintiffKnauer was
communicating with the Defendants conceming the acceptance of service, which Defendants
refused to accept. See Exhibit F to preliminary objections of Schadel et al. Here, as in
Fulco, Plaintiffs were not sitting idly by, but rather were attempting to effect service. Nor
were Plaintiffs negligent within the meaning of the Rosenberg opinion. Accordingly, the rule
established by Lamp and its progeny, which provides that such delay may bar a claim, would
not be appropriately applied in the instant case.
Demurrer -- Wrongful Use of Civil Proceedings Claims
"A preliminary objection in the nature of a demurrer tests the legal sufficiency of the
complaint." Smith v. Wagner, 403 Pa. Super. 316, 320, 588 A.2d 1308, 1310 (1991). In
reviewing a preliminary objection in the nature of a demurrer, the court must accept "all
material facts as set forth in the complaint as well as all the inferences reasonably deducible
therefrom as true. The question presented by a demurrer is whether, on the facts averred, the
law says with certainty that no recovery is possible. Where a doubt exists as to whether a
demurrer should be sustained, this doubt should be resolved in favor of overruling it." Elias
v. Lancaster General Hospital, 710 A.2d 65 (Pa. Super. Ct. 1998).
To state a claim for wrongful use of civil proceedings, a plaintiff must allege "that the
defendant maliciously instituted proceedings against the plaintiff, that the defendant lacked
probable cause to institute the proceedings, and that the proceedings terminated in favor of
11
the plaintiff." Meiksin v. Howard Hanna Co., Inc., 404 Pa. Super. 417, 420, 590 A.2d 1303,
1304 (1995). After a review of the various counts alleging a claim for wrongful use of civil
proceedings, the court is of the view that a doubt exists as to whether the demurrers should
be sustained. In accordance with the appropriate standard set forth above, the court is
constrained to deny the demurrers.
Demurrer -- Abuse of Process Claims
"Abuse of process occurs when the legal process is utilized for some unlawful
purpose, and not for which it was intended." Dietrick Industries, Inc. v. Abrams, 309 Pa.
Super. 202, 455 A.2d 119 (1982). The Superior Court has stated that the "gist of the action
is the proper issuance of the original process, but an abuse of that process after it has been
issued such that there is a perversion of the process." Triester v. 191 Tenants Ass 'n, 272 Pa.
Super. 271, 415 A.2d 698 (1978). As was the case with the wrongful use of civil
proceedings claims addressed above, the court is not of a view that the Plaintiff's inability
to sustain a claim is free from doubt, and must, therefore, deny the demurrers to these claims.
Demurrer -- Intentional Infliction of Emotional Distress Claims
Although Pennsylvania courts have made reference to the tort of outrage, or
intentional infliction of emotional distress, the tort "based on section 46 of the Restatement
(Second) of Torts has not been adopted nor made part of the law of Pennsylvania."
Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 43 n. 1,633 A.2d 605, 608 n. 1
(1993). Counts VIII and IX of the third amended complaint assert claims for intentional
infliction of emotional distress against Defendants James R. Schadel, Esquire and Michael
P. O'Day, Esquire, respectively. In support of the claims, PlaintiffKnauer has alleged that
the action of joining him as an additional defendant has caused him to suffer severe
emotional distress.l°
In Strickland v. University of Scranton, 700 A.2d 979 (Pa. Super. Ct. 1997), the
Paragraphs 151-54, Plaintiffs' Amended Complaint (Third).
12
defendants demurred to a claim of intentional infliction of emotional distress brought by
plaintiff. This claim was based upon the defendants' bringing of a civil suit and filing of
criminal charges against the plaintiff. Id. at 987. The court, after addressing the relevant
standard by which such claims are measured, held that, as a matter of law, such conduct did
not rise to the level necessary to support a claim for intentional infliction of emotional
distress. Id. In accordance with the holding of Strickland, Defendants' preliminary objection
in the nature of a demurrer to the claims of intentional infliction of emotional distress in
counts VIII and IX will be sustained.
Demurrer -- Claims for Punitive Damages
In some cases, punitive damages are appropriate. The defendant's conduct, however,
must be malicious, wanton, reckless, willful, or oppressive. See Rizzo v. Haines, 520 Pa.
484, 555 A.2d 58 (1989). The purpose of punitive damages is to punish such a party. See
SHB Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991). In the case sub
judice, the actions of Defendants alleged by Plaintiffs supporting a claim for punitive
damages are the actions ofjoinder of PlaintiffKnauer in the Indiana County action. In light
of the standard by which punitive damages must be measured, this court is of the view that
the allegations of the third amended complaint are insufficient to state a claim for punitive
damages.
Demurrer -~ Objection to Standing of David VZ. Knauer, P.C.
Pursuant to Cumberland County Rule of Procedure 210-7, which provides that
"[i]ssues raised, but not briefed, shall be deemed abandoned," Defendants' preliminary
objection to standing is deemed abandoned.
Demurrer -- Objection to Inclusion of Partnership 0 'Day & Smith As a Defendant.
Pursuant to Cumberland County Rule of Procedure 210-7, which provides that
"[i]ssues raised, but not briefed, shall be deemed abandoned," Defendants' preliminary
objection to the inclusion of the partnership of O'Day & Smith is deemed abandoned.
13
Demurrer --Civil Conspiracy Claim
Initially, Defendants object to the filing of the third amended complaint with the
inclusion ora new count of civil conspiracy in the absence of leave of court as required under
Pennsylvania Rule of Civil Procedure 1033. Rule 1028(c)(1), however, permits a party to
file an amended pleading as of course within twenty days after service of a copy of the
preliminary objections. The Defendants' preliminary objections to the second amended
complaint were filed on May 5, 1998. The third amended complaint was filed on May 20,
1998. Accordingly, the Rule 1033 objection is without merit.
Additionally, Defendants maintain that such a claim is barred by the statute of
limitations. Pennsylvania Rule of Civil Procedure 1028(a) sets forth the grounds upon which
a pleading may be attacked by means of preliminary objections. The statute of limitations
is not listed in Rule 1028(a), but rather is an affirmative defense. Based upon the general
rule that a defense of the statute of limitations is not to be raised by preliminary objection,
this objection will be denied.TM
Motion To Strike for Failure To Comply
with Pennsylvania Rules of Civil Procedure
Pennsylvania Rule of Civil Procedure 1020(a) provides that "It]he plaintiff may state
in the complaint more than one cause of action against the same defendant... Each cause of
action and any special damage related thereto shall be stated in a separate count containing
a demand for relief." Paragraphs 108, 117, 136 and 143 of the third amended complaint each
state, "The plaintiff incorporates herein by reference thereto Count XXII of the within
Amended Complaint pleading a cause of action for conspiracy." Defendants contend that
this language improperly states two causes of action in one count.
When addressing pleadings in a complaint, "[p]leadings will be construed against a
11 Because the court finds that this objection is not procedurally proper, we do not
address the merits of the Defendants' statute of limitations objection.
14
pleader on theory that he or she has stated his or her case as best he or she can; any conflicts
or ambiguities will be interpreted against him or her." Goodrich Amram 2d § 1019:7 (1991).
In accordance with this principle, the court will interpret the above quoted language from the
complaint as incorporating by reference the factual allegations contained in Count XXII of
the complaint. Accordingly, Defendants' motion to strike for failure to comply with
Pennsylvania Rules of Civil Procedure is denied.
II. PRELIMINARY OBJECTIONS OF DEFENDANT RISK MANAGEMENT, INC.
Motion To Strike for Lack of Capacity
To Sue Pursuant to Pa. R.C.P. 1028(5)
Defendant's preliminary objection is styled as an objection to the capacity of David
W. Knauer, P.C., to be a plaintiff in this action. Defendant is actually raising a standing
issue, improperly presented as a preliminary objection. Such a contention should be raised
as an affirmative defense. Accordingly, Defendant's objection can not be sustained.
Motion To Strike Plaintiffs' Claims for Abuse of Process for Legal
Insufficiency of a Pleading (Demurrer) Pursuant to Pa. R.C.P. 1028(4)
In accordance with the disposition of the demurrers of Defendants Schadel et al. to
the abuse of process claims, the court is of the view that the Plaintiffs' inability to sustain a
claim is not free from doubt. Accordingly, the demurrers to these claims will be denied.
Motion To Strike Plaintiffs' Claim for Intentional Infliction of Emotional Distress
for Legal Insufficiency of a Pleading (Demurrer) Pursuant to Pa. R.C.P. 1028(4)
In accordance with the disposition of the demurrer of Defendants Schadel et al. to
the intentional infliction of emotional distress claims, and pursuant to the holding of
Strickland v. University of Scranton, 700 A.2d 979 (Pa. Super. Ct. 1997), REM's demurrer
to the intentional infliction of emotional distress claims will be sustained.
Motion To Strike Plaintiffs' Claim for Wrongful Use of Civil Proceedings
in Initiating and Continuing Joinder for Legal Insufficiency of a
Pleading (Demurrer) Pursuant to Pa. R.C.P. 1028(4)
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In accordance with the disposition of the demurrer of Defendants Schadel et al. to
Plaintiffs' wrongful use of civil proceedings claims, the court is of the view that a doubt
exists as to whether the demurrers should be sustained. In accordance with the appropriate
standard for reviewing a demurrer, the court is constrained to deny the demurrer.
Motion To Strike Plaintiff's Claim for Civil Conspiracy for Legal Insufficiency
of a Pleading (Demurrer) Pursuant to Pa. R.C.P. 1028(4)
To state a cause of action for civil conspiracy, Plaintiff must allege "a combination
of two or more persons acting with a common purpose to do an unlawful act or to do a lawful
act by unlawful means or for an unlawful purpose; an overt act done in pursuance of the
common purpose; and actual legal damage." Strickland v. University of Scranton, 700 A.2d
979, 987-88 (Pa. Super. Ct. 1997). An examination of the allegations of the complaint
reveals that Plaintiff has successfully pled a cause of action for civil conspiracy.
Accordingly, Defendant REM's demurrer cannot be sustained.
ORDER OF COURT
AND NOW, this 22nd day of February, 1999, after careful consideration of the
Defendants' Preliminary Objections to Plaintiff's Amended Complaint (Third), Plaintiff's
response to Defendants' Preliminary Objections and the briefs and arguments in support
thereof, Defendants' Preliminary Objections will be sustained in part and denied in part.
The preliminary objection to venue of Defendants Schadel, Weinheimer; Schadel &
Heber, O'Day, Smith and O'Day and Smith (Schadel et al.) is denied. The preliminary
objection of Defendants Schadel et al. to service is denied. The preliminary objection of
Defendants Schadel et al. to the wrongful use of civil proceedings claims is denied. The
preliminary objection of Defendants Schadel et al. to the abuse of process claims is denied.
The demurrer of Defendants Schadel et al. to the claim for intentional infliction of
emotional distress is sustained. The preliminary objections of Defendants Schadel et al. to
the claim for punitive damages is sustained. The preliminary objection of Defendants
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Schadel et al. to the standing of David W. Knauer, P.C., is denied. The objection of
Defendants Schadel et al. to the inclusion of the partnership of O'Day and Smith as a
defendant is denied. The demurrer of Defendants Schadel et al. to the civil conspiracy claim
is denied. The preliminary objection of Defendants Schadel et al. in the form of a motion
to strike for failure to comply with Pennsylvania Rules of Civil Procedure is denied.
The preliminary objection of Defendant Risk Enterprise Management Limited (REM)
in the form of a motion to strike for lack of capacity to sue is denied. The demurrer of
Defendant REM to Plaintiff's claims for abuse of process is denied. The demurrer of
Defendant REM to Plaintiff's claim for intentional infliction of emotional distress is
sustained. The demurrer of Defendant REM to Plaintiff's claim for wrongful use of civil
proceedings is denied.
conspiracy is denied.
The demurrer of Defendant REM to Plaintiff's claim for civil
BY THE COURT,
s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
David W. Knauer, Esq.
41 lA East Main Street
Mechanicsburg, PA 17055
Attorney for Plaintiffs
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James R. Schadel, Esq.
602 Law and Finance Building
429 Fourth Avenue
Pittsburgh, PA 15219-1503
Attorney for Defendants James
R. Schadel, Esq., Weinheimer,
Schadel & Haber, Michael P. O'Day,
Esq., Edward H. Smith, Esq., and
O'Day & Smith
Timothy J. MacMahon, Esq.
P.O. Box 803
Harrisburg, PA 17108-0803
Attorney for Defendant Risk
Enterprise Management Limited
irc
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