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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 PRODUCTS & SERVICES, INC.; SHIELD ENVIRONMENTAL, INC. FIREMAN'S FUND; and JOHN WARNER, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION--LAW · No. 99-2310 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT FIREMAN'S FUND BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this ~t~ day of September, 1999, upon consideration of the preliminary objections of Defendant Fireman's Fund, and for the reasons stated in the accompanying opinion, the demurrer to Plaintiffs' claim for punitive damages against Defendant Fireman's Fund is sustained, and the preliminary objections are otherwise denied. Andrew J. Ostrowski, Esq. Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiffs BY THE COURT, -Wesley O1 ,e~., J. '(/ ' Harry D. McMunigal, Esq. Bingaman, Hess, Coblentz & Bell, P.C. P.O. Box 61 Reading, PA 19603-0061 Attorney for Defendant Agway Energy Products, Inc. Wayne Partenheimer, Esq. Campbell, O'Keefe, Nolan & Daly Suite 620 The Curtis Center Walnut Street at 7th Street Philadelphia, PA 19106 Attorney for Defendants J & S Fuels, Inc., and John Warner Charles E.Gutshall, Esq. Timothy J. Nieman, Esq. Kevin M. Gold, Esq. Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17101-1146 Attorneys for Defendant Keystone Petroleum Equipment, Ltd. Robert E. Kelley, Esq. Marc A. Moyer, Esq. Duane, Morris & Hecksher, LLP Fifth Floor 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 Attorneys for Defendant Environmental Products & Services, Inc. Thomas J. Madigan, Esq. James W. Creenan, Esq. Cohen & Grigsby, P.C. 15th Floor 11 Stanwix Street Pittsburgh, PA 15222 R. James Reynolds, Jr., Esq. Thomas, Thomas, Armstrong & Niesen 212 Locust Street P.O. Box 9500 Harrisburg, PA 17108-9500 Attorneys for Defendant Shield Environmental Associates, Inc. David A. Baric, Esq. Brian R. Ade, Esq. O'Brien, Baric & Scherer 17 West South Street Carlisle, PA 17013 Attorneys for Defendant Fireman's Fund GEORGE E. CRUM and LINDA M. CRUM, Plaintiffs, AGWAY ENERGY PRODUCTS, INC.; J & S FUELS, INC.; KEYSTONE PETROLEUM EQUIPMENT, LTD.; ENVIRONMENTAL PRODUCTS & SERVICES, INC.; SHIELD ENVIRONMENTAL, INC.; FIREMAN'S FUND; and JOHN WARNER, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION--LAW · No. 99-2310 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT FIREMAN'S FUND BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., September 24, 1999. This action arises out of an incident in which heating oil was allegedly pumped into the basement of Plaintiffs' home through the inadvertent use of a disconnected pipe. Plaintiffs' complaint includes claims based upon a negligently-conducted cleanup operation. Among the defendants is an insurance company which allegedly provided liability coverage for two companies that Plaintiffs claim were responsible for the delivery of the oil. This insurance company has filed preliminary objections to Plaintiffs' complaint. Defendant's preliminary objections are in the form of a motion to dismiss the complaint for failure to conform to law or rule of court,~ a motion for a more specific I See Pa. R.C.P. 1028(a)(2). pleading,2 and a demurrer.3 For the reasons stated in this preliminary objections will be sustained in part and denied in part. STATEMENT OF FACTS opinion, Defendant's The allegations of Plaintiffs' complaint may be summarized as follows. On January 14, 1998, Defendant John Warner inadvertently pumped 250 gallons of heating oil into the basement of Plaintiffs' home in Carlisle, Pennsylvania, by utilizing a disconnected intake pipe that had been sealed. The delivery was made pursuant to a contract Plaintiffs had with Defendant Agway Energy Products, Inc., which had assigned the account to Defendant J & S Fuels, Inc. The liability insurance carrier for Defendant Agway and Defendant J & S was Defendant Fireman's Fund. This defendant assumed responsibility for the cleanup of the residence. Specifically, Plaintiffs' complaint alleged the following: 20. Upon information and belief, Defendants Agway and/or Fireman's Fund contracted for the services of Defendant Keystone [Petroleum Equipment, Ltd.] to conduct the initial cleanup and perform other remedial measures on the date of the spill. 21. Defendant Fireman's Fund issued guidelines to govern the fuel oil cleanup and restoration effort and retained the responsibility to distribute and implement the guidelines and the authority to employ all services necessary to effect the restoration of Plaintiffs' property to its pre-accident condition. 26. On January 15, 1998, Defendant Fireman's Fund contracted for the services of Defendant Shield [Environmental, Inc.] for the purpose of supervising the environmental aspects of the cleaning and the continuing remediation. 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. 2 See Pa. R.C.P. 1028(a)(3). 3 See Pa. R.C.P. 1028(a)(4). 2 37. Notwithstanding the foregoing, Plaintiffs' home continues [as of April 19, 1999] 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. 38. Throughout the performance of the remediation work on premises, Plaintiffs were provided with misinformation on the extent of the efforts that were needed, Plaintiffs were repeatedly informed that the house was restored to pre-accident condition when it was not, and Plaintiffs' expectations concerning return to their residence were constantly in flux. 39. During the course of the performance of the remediation work, work had to be duplicated due to the inadequacy of the original effort, and there were substantial periods of time when no work was being done because no comprehensive plan had been implemented and no payments had been authorized. During the course of the cleanup effort, uninsulated pipes were installed, resulting in leaks and warping of ceiling tiles, Plaintiffs' telephone was used for unauthorized calls, a garage door opener was damaged, a window was broken, door hinges were bent, the kitchen floor was damaged, trash was piled in the driveway for several months, oil was spilled on the patio and lawn, and other lOsses occurred.4 "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.''5 Specific instances of neglect on the part of Defendant Fireman's Fund were as follows: (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; Plaintiffs' complaint, paragraph 35. Plaintiffs' complaint, paragraph 42. 3 (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.6 "The actions, and inactions of Defendants were commitment (sic) in reckless disregard of the rights of the Plaintiffs to their real and personal property and/or were reckless, outrageous, and wanton, and Plaintiffs are entitled to an ... unliquidated amount of punitive damages.''7 Losses warranting compensatory damages included the following: (a) personal property losses in the approximate amount of $4,800.00; (b) mortgage and home maintenance expenses in the approximate 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,s "Plaintiffs [also] ... incurred a diminution in the value of their real property as a result of the disclosures that must be made to any prospective purchaser.''9 "In addition, or in the alternative, if Plaintiffs' real property cannot be restored to its pre-accident condition, Plaintiffs' (sic) will suffer a total loss of the value of their real property.''~° Finally, "Plaintiffs ... endured tremendous aggravation, inconvenience, upset, and Plaintiffs' complaint, paragraph 56. Plaintiffs' complaint, paragraph 62. Plaintiffs' complaint, paragraph 58. Plaintiffs' complaint, paragraph 59. l0 Plaintiffs' complaint, paragraph 60. 4 physical discomfort caused by the interference with their peaceful possession and use of their real property.''~ The preliminary objections of Defendant Fireman's Fund to Plaintiffs' complaint consisted of the following: (1) a motion to dismiss for lack of conformity to law or rule of court, based upon an absence of identification of the cause of action, a failure to plead damages for diminution of value of the property in the alternative, an absence of material facts in support of a claim of negligence, a proscription on suits against defendants' insurers, and Plaintiffs' lack of status as a real party in interest; (2) a motion for a more specific complaint, based upon the absence of facts addressing the bar to actions against defendants' insurers, the absence of an identification of the cause of action, the absence of facts indicative of a duty on the part of Defendant to Plaintiffs, the absence of facts showing negligence, and the absence of facts in support of agency; and (3) a demurrer, based upon the absence of the elements of a recognizable cause of action, the proscription on suits against defendants' insurers, the absence of facts supporting a punitive damages claim, and the impermissibility of disguising a suit for breach of contract as a negligence action. These objections will be discussed seriatim in the following section of this opinion. DISCUSSION Motion to dismiss for lack of conformity to law or rule of court. Under Pennsylvania Rule of Civil Procedure 1028(a)(2), a preliminary objection may be based upon the "failure of a pleading to conform to law or rule of court .... "On the other hand,_ "[t]he court at every stage of [an] action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties." Pa. R.C.P. 126. With respect to identification of a cause of action in a complaint, the Pennsylvania Superior Court has stated as follows: A complaint must, at a minimum, set forth the facts upon which a cause of action is based. However, it is not necessary that a plaintiff identify the specific legal theory underlying the complaint. Plaintiffs' complaint, paragraph 61. Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 277, 505 A.2d 973, 980 (1985) (citations omitted). With respect to Plaintiffs' failure to plead a claim for a certain item of damages in the alternative, the court is of the view that a dismissal of the complaint would not be warranted for such a deficiency, and that the substantial rights of the parties can be protected as to damages by a proper charge to the jtiry and verdict form. The balance of Defendant's contentions in its motion to dismiss for lack of conformity to law or rule of court will be discussed in the portion of this opinion relating to the legal sufficiency of Plaintiffs' complaint. Motion for a more specific complaint. "The question to be decided when a preliminary objection in the form of a motion for a more specific pleading is interposed ... is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a response .... "2 Goodrich-Amram 2d §1017(b):21, at 265 (1991). A motion for a more specific pleading will be denied when "the objecting party may be presumed to have at least as much information as does the pleader." 5 Standard Pennsylvania Practice 2d §25:60, at 170 (1993); see Clark v. General Mills, Inc., 48 Cumberland L.J. 124 (1999). In addition, a preliminary objection based on lack of particularity may, in certain cases, be denied on the ground that discovery is a more appropriate vehicle to resolve the matter. See 2 Goodrich-Amram 2d §1017(b):24, at 268 (1991). In the present case, the gist of Plaintiffs claim against Defendant is that it undertook to superintend and control the cleanup of Plaintiffs' premises, that th_e operation was conducted carelessly and dilatorily, and that Plaintiffs suffered various identified losses as a result. It is believed that the pleading is sufficiently clear to enable Defendant to prepare a defense, that Defendant may be presumed to have at least as much knowledge as Plaintiffs as to the specifics of the cleanup operation, and that the development of further detail as to Plaintiffs' claim may be relegated to the discovery process. Demurrer. A preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim upon which 6 relief can be granted. County ofAlleghany v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); see Clark v. General Mills, Inc., 48 Cumberland L.J. 124 (1999). As a general rule, direct actions based on insurance policies are not permissible in Pennsylvania by injured persons against liability carriers of tortfeasors. See Pettus v. Jones & Laughlin Steel Corp., 322 F. Supp. 1078 (W.D. Pa. 1971); Act of May 24, 1933, P.L. 987, §1, 40 P.S. §117. However, liability in tort may be predicated upon an actor's assumption of responsibility for the protection of another's person or things where certain harm results from the failure to exercise reasonable care in the undertaking. Restatement (Second) of Torts §323 (1965). Given the policy against dismissal of a claim on preliminary objections except in the clearest of cases and given the allegations of affirmative activity by Defendant in connection with the cleanup of Plaintiffs' property, the court is of the view that it would be premature to terminate Plaintiffs' negligence action against Defendant on the ground that no basis for liability could exist which would not be encompassed by the general rule against suit by injured parties against tortfeasors' insurers. Plaintiffs' claim for punitive damages, however, is less defensible. "Punitive damages may be awarded where the defendant's conduct evidences a reckless indifference to the rights of others." Taylor v. Albert Einstein Medical Center, 723 A.2d 1027, 1037 (Pa. Super. Ct. 1998). However, "although malice, intent, knowledge, and other conditions of mind may be averred generally in a pleading,12 the attendant material facts pled must support such an averment." Dorsey v. Pinker, Cumberland L.J. , __ (August 4, 1999); Robbins v. Cumberland County Children and Youth Services, 48 Cumberland L.J. 82, 94 (1999); see Waklet-Riker v. Sayre Area Education Association, 440 Pa. Super. 494, 656 A.2d 138 (1995); see also Miketic v. Baron, 450 Pa. Super. 91,675 A.2d 324 (1996). In the case sub judice, no underlying facts have been pled which support an averment of a reckless state of mind on the part of any agent of Defendant. For this See Pa. R.C.P. 1019(b). reason, Plaintiffs' claim for punitive damages as to Defendant Fireman's Fund will be dismissed. ORDER OF COURT AND NOW, this 24th day of September, 1999, upon consideration of the preliminary objections of Defendant Fireman's Fund, and for the reasons stated in the accompanying opinion, the demurrer to Plaintiffs' claim for punitive damages against Defendant Fireman's Fund is sustained, and the preliminary objections are otherwise denied. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Andrew J. Ostrowski, Esq. Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiffs Harry D. McMunigal, Esq. Bingaman, Hess, Coblentz & Bell, P.C. P.O. Box 61 Reading, PA 19603-0061 Attorney for Defendant Agway Energy Products, Inc. Wayne Partenheimer, Esq. Campbell, O'Keefe, Nolan & Daly Suite 620 The Curtis Center Walnut Street at 7th Street Philadelphia, PA 19106 Attorney for Defendants J & S Fuels, Inc., and John Warner Charles E. Gutshall, Esq. Timothy J. Nieman, Esq. Kevin M.Gold, Esq. Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant Keystone Petroleum Equipment, Ltd. Robert E. Kelley, Esq. Marc A. Moyer, Esq. Duane, Morris & Hecksher, LLP Fifth Floor 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 Attorneys for Defendant Environmental Products & Services, Inc. Thomas J. Madigan, Esq. James W. Creenan, Esq. Cohen & Grigsby, P.C. ! 5th Floor 11 Stanwix Street Pittsburgh, PA 15222 R. James Reynolds, Jr., Esq. Thomas, Thomas, Armstrong & Niesen 212 Locust Street P.O. Box 9500 Harrisburg, PA 17108-9500 Attorneys for Defendant Shield Environmental Associates, Inc. David A. Baric, Esq. Brian R. Ade, Esq. O'Brien, Baric & Scherer 17 West South Street Carlisle, PA 17013 Attorneys for Defendant Fireman's Fund 9