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HomeMy WebLinkAbout96-0271 CivilDEBORAH C. ESPOSITO, Individually and trading as SEW WITH US SEWiNG CENTER and DEBORAH C. ESPOSITO and SHARON SILVA Individually and trading as SEW WITH US SEWING CENTER, a Pennsylvania Partnership Plaintiffs Vo IRENE B. KERMISCH, DORIS B. KLEIMAN AND HOWARD S. BROWN, Trustee of the Estate of JULIAN KERMISCH, Deceased and IRENE B. KERMISCH, JEFFREY C. COHEN, HOWARD S. BROWN and BRENDA LIPITZ, Individually and t/d/b/a WINDSOR PARK SHOPPING CENTERS, a Maryland General Partnership, DAVID S. BROWN ENTERPRISES, DAVID S. BROWN ENTERPRISES, LTD., a Maryland Corporation, PYRAMID FABRICATORS, INC., SAMUEL COOPERMAN, individually and as a successor-in- interest to PYRAMID FABRICATORS, INC., GERALD BERG, Individually and as a successor-in-interest to PYRAMID FABRICATORS, INC., CHARLES USLANDER, t/d/b/a STRUCTOMATIC and as successor-in-interest to STRUCTOMATIC, INC., DONALD B. SMITH INCORPORATED, MECHANICSBURG OVENS, INC., CAPITOL OVENS, INC., successor-in-interest to MECHANICSBURG OVEN, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VICTOR R. SMITH t/dgo/a : SMITH MANAGEMENT GROUP, : FIRESTONE BUILDING : PRODUCTS CO., FIRESTONE : BUILDING PRODUCTS CO., : FIRESTONE BUILDING : PRODUCTS CO., a division of : FIRESTONE TIRE AND RUBBER : COMPANY, FIRESTONE TIRE : AND RUBBER CO., MICHAEL : MARSHALL, JEROME : SHUMAN, CHARLES KLEIN & : SONS, ROTHSCHILD : ARCHITECTS, JOHN MOORE, : BERT DAVIS & ASSOCIATES, : RONALD RAFFENSBERGER, : MOORE & MORFORD, CORY : CONSTRUCTION COMPANY, : NEIL CORY CONSTRUCTION : COMPANY, INC., MCDONALD : ENGLEHART ARCHITECTS, : BRIDGESTONE CORPORATION, : and FIRESTONE BUILDING : PRODUCTS CO., : Defendants : NO. 96-0271 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE HOFFER, P,J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 30'~&ay of October, 1998, after careful consideration of Defendants' preliminary objections to Plaintiffs' amended complaint, Plaintiffs' answer to Defendants' preliminary objections, and the briefs and oral arguments on the matters raised, and for the reasons stated in the accompanying opinion, (1) Defendants' preliminary objection in the form of a motion for a more specific pleading as to the allegations of damages in Counts XLIV and XLV of the Amended Complaint is sustained; (2) Defendants' preliminary objection to language in Count XLIV of the Amended Complaint indicative of a claim for punitive damages is deemed moot by virtue of a representation of Plaintiffs' counsel; and (3) Defendants' preliminary objection in the form of a motion for a more specific pleading as to the claims contained in Counts XLIV, XLVI, XLVIII, XLIX, L, and LI is sustained. Plaintiffs are granted 20 days within which to file an amended complaint. BY THE COURT, )jWesley Ole , J. Douglas B. Marcello, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Plaintffs Michael A. Fan:ell, Esq. MARSHALL & FARRELL, P.C. 2000 Linglestown Road, Suite 108 Harrisburg, PA 17110-9347 Attorney for Defendants Kermisch, Kleiman, Brown, Cohen & Lipitz Structomatic, Inc., c/o Helen Eagle 233 South Wacker Drive 8000 Sears Tower Chicago, IL 60606-6404 Defendant, Pro Se Dennis J. Bonetti, Esq. PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant Donald B. Smith, Inc. Thomas McAndrew, Jr., Esq. 37 W. Gay Street, P.O. Box 3391 West Chester, PA 19380 Attorney for Defendants Mechanicsburg Oven, Victor Smith, Smith Management Group James Kutz, Esq. MCNEES, WALLACE & NURICK 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorney for Defendant Firestone/Bridgestone Charles Klein & Sons 5220 Klees Mill Road Sykesville, MD 21784 Defendant, Pro Se David Hickton, Esq. Robert Ray, Esq. Paul Walsh, Esq. BURNS, WHITE & HICKTON 2400 Fifth Avenue Place 120 Fourth Avenue Pittsburgh, PA 15222-3001 Attorney for Defendant Rothschild Architects Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 100 Pine Street, Fourth Floor Harrisburg, PA 17108 Attorney for Defendants Bert, Davis & Associates Ronald Raffensberger 981 Silver Lake Drive Harrisburg, PA 17102 Defendant, Pro Se Moore & Morford Board Street Greensburg, PA 15601 Defendant, Pro Se Thomas E. Brenner, Esq. GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant Cory Construction DEBORAH C. ESPOSITO, Individually and trading as SEW WITH US SEWING CENTER and DEBORAH C. ESPOSITO and SHARON SILVA Individually and trading as SEW WITH US SEWING CENTER, a Pennsylvania Partnership Plaintiffs IRENE B. KERMISCH, DORIS B. KLEIMAN AND HOWARD S. BROWN, Trustee of the Estate of JULIAN KERMISCH, Deceased and IRENE B. KERMISCH, JEFFREY C. COHEN, HOWARD S. BROWN and BRENDA LIPITZ, Individually and t/d/b/a WINDSOR PARK SHOPPING CENTERS, a Maryland General Partnership, DAVID S. BROWN ENTERPRISES, DAVID S. BROWN ENTERPRISES, LTD., a Maryland Corporation, PYRAMID FABRICATORS, INC., SAMUEL COOPERMAN, individually and as a successor-in- interest to PYRAMID FABRICATORS, INC., GERALD BERG, Individually and as a successor-in-interest to PYRAMID FABRICATORS, INC., CHARLES USLANDER, t/d/b/a STRUCTOMATIC and as successor-in-interest to STRUCTOMATIC, INC., DONALD B. SMITH INCORPORATED, MECHANICSBURG OVENS, INC., CAPITOL OVENS, INC., successor-in-interest to IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MECHANICSBURG OVEN, INC., : VICTOR R. SMITH t/d/b/a : SMITH MANAGEMENT GROUP, : FIRESTONE BUILDING : PRODUCTS CO., FIRESTONE : BUILDING PRODUCTS CO., : FIRESTONE BUILDING : PRODUCTS CO., a division of : FIRESTONE TIRE AND RUBBER : COMPANY, FIRESTONE TIRE : AND RUBBER CO., MICHAEL : MARSHALL, JEROME : SHUMAN, CHARLES KLEIN & : SONS, ROTHSCHILD : ARCHITECTS, JOHN MOORE, : BERT DAVIS & ASSOCIATES, : RONALD RAFFENSBERGER, : MOORE & MORFORD, CORY : CONSTRUCTION COMPANY, : NEIL CORY CONSTRUCTION : COMPANY, INC., MCDONALD : ENGLEHART ARCHITECTS, : BRIDGESTONE CORPORATION, : and FIRESTONE BUILDING : PRODUCTS CO., : Defendants : NO. 96-0271 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE HOFFER. P.J., OLER and GUIDO. JJ. OPINION AND ORDER OF COURT Oler, J., October 30, 1998. Presently before the court in this civil action are preliminary objections of Defendants Irene B. Kermisch, Doris B. Kleiman and Howard S. Brown, Trustee of the Estate of Julian Kermisch, deceased, and Irene B. Kermisch, Jeffrey G. Cohen, Howard S. Brown and Brenda 2 Lipitz, individually and t/d/b/a Windsor Park Shopping Centers, a Maryland general partnership, David S. Brown Enterprises and David S. Brown Enterprises, LTD., a Maryland Corporation, to Plaintiffs' amended complaint. For the reasons stated in the accompanying opinion, the preliminary objections will be sustained in part. FACTS The allegations of the amended complaint relevant to the preliminary objections presently before the court may be summarized as follows: Plaintiffs Deborah C. Esposito and Sharon Silva own and operate the Sew With Us Sewing Center, located in the Windsor Park Shopping Center on East Simpson Ferry Road in Cumberland County near Mechanicsburg, Pennsylvania. l Defendants raising preliminary objections are: Irene B. Kermisch, Doris B. Kleiman and Howard S. Brown, Trustees of the Estate of Julian Kermisch, Deceased, and Irene B. Kermisch, Jeffrey G. Cohen, Howard S. Brown and Brenda Lipitz, who were and are co-partners, trading as Windsor Park Shopping Centers, a Maryland General Partnership (the "Windsor Park Defendants"); David S. Brown Enterprises, a Maryland corporation, with a principal place of business at 9183 Reisterstown Road, Owings Mills, Maryland; and David S. Brown Enterprises, Ltd., a Maryland limited corporation with an address of 9183 Reisterstown Road, Owings Mills, Maryland? The Windsor Park Defendants are the owners of the property commonly known as the Plaintiffs' amended complaint, para. 1. Plaintiffs' amended complaint, para 27, 29-30. 3 Windsor Park Shopping Center, located at 5216-5258 East Simpson Ferry Road, Mechanicsburg, Pennsylvania.3 On or about August 2, 1971, Windsor Park Shopping Centers obtained a building permit to erect improvements on the property.4 The Windsor Park Defendants acted as architect and contractor for the construction? On or about April 1, 1974, the Windsor Park Defendants obtained another building permit for additional improvements upon the property.6 In applying for each of these building permits, the Windsor Park Defendants submitted identical Labor and Industry drawings.7 These drawings represented that the roof was to be supported by steel tresses.8 Ultimately, the building was constructed with wooden tresses instead of the steel trusses indicated by the drawings.9 On or before April 13, 1988, the Windsor Park Defendants and/or their agent or employee David S. Brown Enterprises performed substantial repairs to certain portions of the roof of the Windsor Park Shopping Center. l° The repairs were effected without a building 3 Plaintiffs' amended complaint, para. 28. 4 Plaintiffs' amended complaint, para. 32. 5 Plaintiffs' amended complaint, para. 33. 6 Plaintiffs' amended complaint, para. 35. 7 Plaintiffs' amended complaint, para. 39. 8 Plaintiffs' amended complaint, para. 39. 9 Plaintiffs' amended complaint, para. 40. l0 Plaintiffs' amended complaint, para. 47. 4 permit.I~ These repairs consisted of placing new roofing material on top of the existing roof, instead of replacing the existing roof.~2 On or about January 21,. 1994, the roof of the Windsor Park Shopping Center collapsed.~3 Plaintiffs allege that the damage to their leasehold resulting from this collapse was attributable to the acts of the Defendants? Plaintiffs aver the following to support their claim for damages in Count XLIV: 269. As a direct and proximate result of the negligent acts and omissions of Defendant Windsor Park, as set forth above, Plaintiffs have sustained damages in that the building collapsed and was consequently demolished, causing extensive real and personal property loss, as well as a lengthy interruption of the Plaintiffs' business and resultant loss of profit.~5 Plaintiffs aver the following in support of their claim for damages in Count XLV: 276. Plaintiff as a direct and proximate result of the above-listed breaches, has suffered damages to its leasehold and personal property and a substantial interruption of its business and resultant loss of profit.~6 In the claims asserted in counts XLIV, XLVI, XLVIII, XLIX, L, and LI of the amended complaint, the plaintiffs advance various theories of liability against the Defendants. The theories of liability set forth in Count XLIV, paragraph 268(aa), Count 11 Plaintiffs' amended complaint, para. 47. ~2 Plaintiffs' amended complaint, para. 48. 13 Plaintiffs' amended complaint, para. 55. ~4 Plaintiffs' amended complaint, para. 55. ~5 Plaintiffs' amended complaint, para. 269. ~6 Plaintiffs' amended complaint, para. 276. 5 XLVI, paragraph 282, Count XLVIII, paragraphs 292, 292(aa), 294 and 294(c), (d) and (k), Count XLIX, paragraph 297, Count L, paragraphs 302, 302(z) and (aa), 304 and 304(c), (d) and (k), and Count LI, paragraph 307, are preceded by either the words "including but not limited to" or the word "generally." Defendants Irene B. Kermisch, Doffs B. Kleiman and Howard S. Brown, Trustee of the Estate of Julian Kermisch, deceased, and Irene B. Kermisch, Jeffrey G. Cohen, Howard S. Brown and Brenda Lipitz, individually and t/d/b/a Windsor Park Shopping Centers, a Maryland general partnership, David S. Brown Enterprises and Davis S. Brown Enterprises, LTD., a Maryland Corporation have raised three preliminary objections to Plaintiffs' amended complaint. These objections are (1) a motion for a more specific pleading; (2) a motion to strike language suggestive of a claim for punitive damages; and (3) a motion to strike/motion for a more specific pleading pursuant to Pa. R.C.P. l019(a) and Connor v. Allegheny General Hospital.~7 DISCUSSION Motion for more specific pleading. Defendants have filed a preliminary objection to Plaintiffs' complaint in the form of a motion for a more specific pleading. The objection contends that the allegations of damages are insufficiently specific and not in conformance with Pennsylvania Rules of Civil Procedure 1019(a) and (f). Former President Judge Sheely of this court had an opportunity to address this issue in a companion case to the case sub 17 501 Pa. 306, 461 A.2d 600 (1983). 6 judice. In this regard, President Judge Sheely stated: Under Pennsylvania law, "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa. R.C.P. 1019(a). A pleading should inform the court and the adverse party or parties of the matters in issue. See Department of Transp. v. Shipley Humble Oil Co., 29 Pa. Commw. 171 (1977). Rule 1019(a) is satisfied if allegations in a pleading (1) contain averments of all facts the plaintiff will eventually have to prove in order to recover, and (2) they are sufficiently specific as to enable the party served to prepare a defense thereto. See id. at 173. According to 1019(f), "averments of time, place and items of special damages shall be specifically stated." Pa.R.C.P. 1019(f). When pleading special damages, a defendant is entitled to greater specificity than a large lump sum recitation. See General State Auth. v. Larie & Green & John McShain, Inc., 24 Pa. Commw. 407, 356 A.2d 851 (1976). Our Pennsylvania Supreme Court has classified damages as follows: "Damages are either general, those which are the usual and ordinary consequences of the wrong done, or special, those which are not the usual and ordinary consequences of the wrong done, those which are not the usual and ordinary consequences of the wrong done, but which depend on special circumstances." Parsons Trading Co. v. Dohan, 312 Pa. 464, 468, 162 A.2d 310, 312 (1933). Mechanicsburg Oven, Inc. v. Kermisch, No. 96-171, slip op. at 3-4 (Cumberland County July 11, 1996). In the present case, Plaintiffs assert the following to support their claim for damages: 269. As a direct and proximate result of the negligent acts and omissions of Defendant Windsor Park, as set forth above, Plaintiffs have sustained damages in that the building collapsed and was consequently demolished, causing extensive real and personal property loss, as well as a lengthy interruption 7 of the Plaintiffs' business and resultant loss of profit? 276. Plaintiff as a direct and proximate result of the above-listed breaches, has suffered damages to its leasehold and personal property and a substantial interruption of its business and resultant loss of profit.19 We are of the view that the claim for damages is not sufficiently specific as to enable the Defendants to prepare a defense. Consistent with the ruling of President Judge Sheely in Mechanicsburg Oven, this court will sustain the preliminary objection in the form of a motion for a more specific pleading. Motion to strike language indicative of claim for punitive damages. The preliminary objection with respect to punitive damages has been rendered moot by a representation of Plaintiffs' counsel at oral argument on this matter that no claim for punitive damages is being pursued. Motion to ~trike/motion for more specific pleading pursuant tO Pa. R.C,P, 1019(a) and Connor v. Allegheny General Hospital. Defendants' final preliminary objection contends that the use of the language "including but not limited to" and "generally" in the complaint is in contravention to the Pennsylvania Rules of Civil Procedure. Defendants argue that the continued presence of such language, according to the holding of Connor v. Allegheny GeneralHospital, 501 Pa. 306, 461 A.2d 600 (1983), would permit the Plaintiffs to amend the complaint to include new causes of action at any point during the proceedings, without 18 Plaintiffs' amended complaint, para. 269. ~9 Plaintiffs' amended complaint, paragraph 276. 8 regard to any statutes of limitations. In Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the Pennsylvania Supreme Court held that the use of the language "otherwise failing to use due care and caution under the circumstances" enabled the plaintiff to amend the complaint to specify "the other ways in which [Defendant] was negligent in [that] case." Id. at 310, 461 A.2d at 602. The court elaborated on this holding by noting that "[i]f [defendant] 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 [Plaintiff's] complaint." Id. at 311 n.3, 461 A.2d at 602 n.3. In the case subjudice, the Defendants are faced with the uncertainty addressed by the Connor court in footnote 3. The Defendants, in accordance with the suggestion of the Connor Court, have filed a preliminary objection in the form of a motion to strike/motion for a more specific pleading. Based upon the holding of the Connor case, this court will grant the motion for a more specific pleading. For the reasons stated above, the following order will be entered: ORDER OF COURT AND NOW, this 30th day of October, 1998, after careful consideration of Defendants' preliminary objections to Plaintiffs' amended complaint, Plaintiffs' answer to Defendants' preliminary objections, and the briefs and oral arguments on the matters raised, 9 and for the reasons stated in the accompanying opinion, (1) Defendants' preliminary objection in the form of a motion for a more specific pleading as to the allegations of damages in Counts XLIV and XLV of the Amended Complaint is sustained; (2) Defendants' preliminary objection to language in Count XLIV of the Amended Complaint indicative of a claim for punitive damages is deemed moot by virtue of a representation of Plaintiffs' counsel; and (3) Defendants' preliminary objection in the form of a motion for a more specific pleading as to the claims contained in Counts XLIV, XLVI, XLVIII, XLIX, L, and LI is sustained. Plaintiffs are granted 20 days within which to file an amended complaint. BY THE COURT, s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 10 Douglas B. Marcello, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Plaintffs Michael A. Farrell, Esq. MARSHALL & FARRELL, P.C. 2000 Linglestown Road, Suite 108 Harrisburg, PA 17110-9347 Attorney for Defendants Kermisch, Kleiman, Brown, Cohen,Lipitz, Windsor Park Shopping Centers, and David S. Brown Enterprises Structomatic, Inc., c/o Helen Eagle 233 South Wacker Drive 8000 Sears Tower Chicago, IL 60606-6404 Defendant, Pro Se Dennis J. Bonetti, Esq. PETERS & WASILEFSKI 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant Donald B. Smith, Inc. Thomas McAndrew, Jr., Esq. 37 W. Gay Street, P.O. Box 3391 West Chester, PA 19380 Attomey for Defendants Mechanicsburg Oven, Victor Smith, Smith Management Group James Kutz, Esq. MCNEES, WALLACE & NURICK 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorney for Defendant Firestone/Bridgestone Charles Klein & Sons, Inc. 5220 Klees Mill Road Sykesville, MD 21784 Defendant, Pro Se David Hickton, Esq. Robert Ray, Esq. Paul Walsh, Esq. BURNS, WHITE & HICKTON 2400 Fifth Avenue Place 120 Fourth Avenue Pittsburgh, PA 15222-3001 Attorney for Defendant Rothschild Architects Timothy J. McMahon, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 100 Pine Street, Fourth Floor Harrisburg, PA 17108 Attorney for Defendants Bert Davis & Associates Ronald Raffensberger 981 Silver Lake Drive Harrisburg, PA 17102 Defendant, Pro Se Moore & Morford Board Street Greensburg, PA 15601 Defendant, Pro Se Thomas E. Brenner, Esq. GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant Cory Construction