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HomeMy WebLinkAbout02-4636 CivilKEITH A. STAMY, Plaintiff VS. DENISE L. NENN1NGER and GORDON E. NENNINGER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4536 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HOFFER. P.J. AND HESS, J. OPINION AND ORDER In this case, the defendants have raised several preliminary objections to the plaintiff' s complaint. They contend that the pleading is legally insufficient, insufficiently specific and contains impertinent matter. All of these, of course, are proper bases for preliminary objections. See Pa.R.C.P. 1028. Nonetheless, preliminary objections, the end result of which would be the dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Bower v. Bower, 611 A.2d 181 (Pa. 1982). This case arises out of an automobile accident which occurred on October 21, 2000, on Walnut Bottom Road in South Middleton Township. (Plaintiff' s Complaint, para. 3 and 4) The plaintiff alleges that the accident occurred "as Denise L. Nenninger, driving a 1995 Ford Aerostar west of Walnut Bottom Road, attempted to turn left onto Eastgate Drive." (Plaintiff' s Complaint, para. 4) The complaint further alleges that, "[a]t the time of the accident, the Defendant, Denise L. Nenninger was acting on behalf of Gordon E. Nenninger, as his agent. In the alternative, said Gordon E. Nenninger negligently entrusted the vehicle to Defendant, Denise L. Nenninger. He is therefore liable for the negligent actions of the Defendant, Denise L. Nenninger." 02-4536 CIVIL The defendant first demurs to any cause of action based on agency or negligent entrustment. Defendants argue that the plaintiff must allege facts which demonstrate that Mr. Nenninger was himself negligent, or that Mrs. Nenninger was actually an agent or employee of Mr. Nenninger in such as a way as to demonstrate vicarious liability. It is well established, however, that recovery may be had against the principle for the negligent acts of an agent. The question presented by demurrer is whether, accepting averments as true, the law says with certainty that no recovery is possible. Warner v. Plater-Zvberk, 799 A.2d 776 (Pa. Super. 2002). Given the plaintiff' s allegations, it cannot said, with certainty, that recovery is impossible. We do agree, however, with the defendants that the allegations of agency or negligent entrustment are pled with insufficient specificity. In fact, the complaint contains mere general assertions in those regards and no facts are pled which support the allegations. We will, therefore, sustain the preliminary objection with respect to the insufficient specificity of this pleading and permit the plaintiff to file an amended complaint but, in default thereof, to suffer dismissal of the count against Mr. Nenninger. Also, pending is the preliminary objection of the defendant with respect to the inclusion of scandalous and impertinent matter. The defendants except to the allegation of the plaintiff that Mrs. Nenninger was cited for a traffic violation following a police investigation of the accident. The plaintiff, both at oral argument and in his brief, has agreed to the entry of an order striking this allegation. AND NOW, this ORDER day of August, 2003, the preliminary objection of the defendants in the nature of a motion to strike paragraph 7 of the plaintiff's complaint is GRANTED. 2 02-4536 CIVIL The preliminary objection of the defendants in the nature of a request for more specific pleading is GRANTED and the plaintiff is given twenty (20) days within which to file an amended complaint and in the event an amended complaint is not filed within twenty (20) days, the defendant, Gordon E. Nenninger, shall be deemed dismissed from the case. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Marcus McKnight, III, Esquire For the Plaintiff John R. Ninosky, Esquire For the Defendants :rlm Kevin A. Hess, J. 3 KEITH A. STAMY, Plaintiff VS. DENISE L. NENN1NGER and GORDON E. NENNINGER, Defendants AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4536 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HOFFER. P.J. AND HESS, J. ORDER day of August, 2003, the preliminary objection of the defendants in the nature of a motion to strike paragraph 7 of the plaintiff's complaint is GRANTED. The preliminary objection of the defendants in the nature of a request for more specific pleading is GRANTED and the plaintiff is given twenty (20) days within which to file an amended complaint and in the event an amended complaint is not filed within twenty (20) days, the defendant, Gordon E. Nenninger, shall be deemed dismissed from the case. The remaining preliminary objections of the defendants are DENIED. BY THE COURT, Marcus McKnight, III, Esquire For the Plaintiff John R. Ninosky, Esquire For the Defendants :rim Kevin A. Hess, J.