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HomeMy WebLinkAbout03-1458 CivilMICHALENE A. PETICCA and JEFFREY L. PETICCA, Plaintiffs VS. DENNIS D. DIAZ, M.D., F.A.C.S., individually and t/d/b/a CENTRAL PENN EAR, NOSE AND THROAT,: CENTRAL PENN EAR, NOSE AND THROAT, INC., individually and t/d/b/a CENTRAL PENN EAR, NOSE AND THROAT,: Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 03-1458 CIVIL JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO COMPLAINT BEFORE HESS, J., ON BRIEFS MEMORANDUM AND ORDER In this case, the defendant has filed preliminary objections to the plaintiff' s complaint. The complaint alleges, in brief, that a physician, Dennis D. Diaz, M.D., performed a surgical procedure which was unnecessary and, in any event, performed negligently. The complaint contains a count with respect to the lack of informed consent. The complaint also contains a count entitled "Fraud and Misrepresentation." The complaint also seeks punitive damages. The defendant has filed preliminary objections which we will sustain in part. Specifically, the plaintiff' s allegations of fraud and of intentional wrong, in support a claim for punitive damages, are based on a contention that the defendant "fraudulently conveyed and/or misrepresented to plaintiff" that the surgical procedure was necessary when he "knew or should have known that these procedures were not necessary." This bald assertion of misrepresentation without any further specificity of pleading is not sufficient to support an allegation of fraud. 03-1458 CIVIL Moreover, the inclusion of the phrase "or should have known" allows for the conclusion that the misrepresentation was negligent as opposed to intentional. If the plaintiff means to allege that the doctor intentionally misrepresented to the plaintiff that surgery was necessary when he knew that it was not necessary, then the complaint should say so and should contain further facts which support this allegation. ORDER AND NOW, this day of October, 2003, the court being satisfied that the plaintiff' s complaint does not plead fraud with specificity, nor does it contain facts, independent of the plaintiff' s allegations of mere negligence, which support a claim for punitive damages, the preliminary objections of the defendant to the allegations of fraud and to the claim for punitive damages are SUSTAINED. The remaining preliminary objections of the defendant are OVERRULED. BY THE COURT, Clark DeVere, Esquire For the Plaintiffs Terence M. Pitt, Esquire For the Defendants :rlm Kevin A. Hess, J. 2 MICHALENE A. PETICCA and JEFFREY L. PETICCA, Plaintiffs VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 03-1458 CIVIL DENNIS D. DIAZ, M.D., F.A.C.S., individually and t/d/b/a CENTRAL PENN EAR, NOSE AND THROAT,: CENTRAL PENN EAR, NOSE AND THROAT, INC., individually and t/d/b/a CENTRAL PENN EAR, NOSE AND THROAT,: Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO COMPLAINT BEFORE HESS, J., ON BRIEFS ORDER AND NOW, this day of October, 2003, the court being satisfied that the plaintiff' s complaint does not plead fraud with specificity nor does it contain facts, independent of the plaintiff' s allegations of mere negligence, which support a claim for punitive damages, the preliminary objections of the defendant to the allegations of fraud and to the claim for punitive damages are SUSTAINED. OVERRULED. The remaining preliminary objections of the defendant are BY THE COURT, Clark DeVere, Esquire For the Plaintiffs Terence M. Pitt, Esquire For the Defendants Kevin A. Hess, J. 03-1458 CIVIL 4