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Home My WebLink About2003-3138 Civil BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : NO.: 03-3138 CIVIL TERM YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE Defendants : CIVIL ACTION : JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS Before HOFFER. P.J. and OLER. J. OPINION HOFFER. P.J.: Before the Court are the Preliminary Objections of the Defendants, Young Men's Christian Association of Carlisle (hereinafter "YMCA") to the Complaint of the Plaintiff, Lashae Carter. The Complaint asserts negligence, assault and battery, and punitive damages claims against the YMCA. The Defendant's first objection contends that the Complaint be stricken and that the Plaintiff be required to file a more specific Complaint. The two other objections are in the nature of a demurrer dismissing both the assault and battery and punitive damages claims. This issue was scheduled to be argued before the Court on July 28, 2004. However, the Plaintiff's attorney failed to appear and failed to file a brief responding to the Defendant's objections. For reasons stated within this opinion, Defendant's Preliminary Objections shall be SUSTAINED. STATEMENT OF FACTS The allegations that can be gathered from the Complaint are paltry at best. It appears that the Plaintiff, Lashae Carter, is a fourteen-year-old girl, who on an unspecified date visited some facility maintained by the YMCA. (Complaint ~ 1-10.) No specific address or location of this facility is provided. The Plaintiff played in a swimming pool on the premises wherein she sustained bodily injury as a direct result of trauma to the head. (Compl. ~ 16- 17.) No agent or employee of the YMCA is identified or referred to as being involved in the incident. It is simply alleged that "Defendant caused trauma to the head of Plaintiff as she was violently swung twice into the side of the swimming pool despite her pleas to the contrary." (Compl. ~ 16.) Furthermore, although the Plaintiff states that her injuries were a direct result of the YMCA's negligence and recklessness (Compl. ~ 11), no allegations describing any instances of negligent acts or omissions are averred. DISCUSSION Preliminary Objections may be brought based on insufficient specificity in a pleading. Pa.R.C.P. 1028(a)(3)(2004). A plaintiff is required to state "[t]he material facts on which a cause of action... is based... in a concise and summary form." Pa .R.C.P. 1019(a). This rule requires that the complaint give notice to the defendant of an asserted claim and synopsize the essential facts to support the claim. Kraisa v. Keypunch, Inc., 622 A.2d 335, 357 (Pa.Super.Ct. 1993). In addition, "averments of time, place and items of 2 special damage shall be specifically stated." Pa.R.C.P. 1019(f). To determine if a complaint meets Pennsylvania's specificity requirements, a court must ascertain whether the facts alleged are "sufficiently specific so as to enable [a] defendant to prepare [its] defense." Smith v. WaQner, 588 A.2d 1308, 1310 (Pa.Super.Ct. 1991). Where a pleading fails to conform to a rule, it is susceptible to preliminary objections. See Pa.R.C.P. 1028(a)2. In the instant case, a careful reading of the Complaint indicates that the Plaintiff's claims cannot be understood as a synopsis of essential facts that gives the YMCA notice of what must be defended against. It does not identify: 1) the date and/or time of the incident; 2) the location; 3) if any YMCA employees or agents were involved in the incident; 4) any material facts describing the circumstances of the incident. The closest thing to an averment of fact appears in Paragraph 16, where it is alleged that "the Defendant caused trauma to the head of the Plaintiff as she was violently swung twice into the side of the pool..." The Complaint fails to give any essential facts that would enable the YMCA to identify the incident in question or prepare a defense. Therefore, it fails to conform to the requirements of Rule 1 019(a),(f) and must be stricken. Pa.R.C.P 1028(a)(4) also allows for preliminary objections based on legal insufficiency of a pleading. When reviewing preliminary objections in the form of a demurrer, "all well-pleaded material, factual averments and all inferences fairly deducible therefrom" are presumed to be true. Tucker v. 3 Philadelphia Daily News, 757 A.2d 938,941-42 (Pa.Super.Ct. 2000). Preliminary objections, whose end result would be the dismissal of a cause of an action, should be sustained only where "it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief." Bourke v. Kazara, 746 A.2d 642, 643 (Pa.Super.Ct. 2000). A complaint which consists of argumentative conclusions as opposed to properly pleaded statements of fact cannot withstand a demurrer for failure to set forth a claim. Division 85 AmalQamated Transit Union v. Port Authority, 455 A.2d 1265 (Pa.Commw.Ct. 1983). In their objections to the battery and assault claim (Count II) and punitive damages claim (Count III), YMCA contends that no facts pleaded can establish these claims, and that only argumentative legal conclusions are presented. After an examination of the Complaint, the Court agrees. In Pennsylvania, an actor commits a battery if: (a) he acts intending to cause a harmful or offensive contact with a person, or a imminent apprehension of such a contact, and; (b) a harmful contact directly or indirectly results. Restatement (Second) of Torts ~18. Furthermore, an assault is committed if: (a) a person acts with the intention to cause a harmful or offensive contact or to put another in reasonable apprehension of an immediate battery, and; (b) he succeeds in causing an immediate apprehension. Restatement (Second) of Torts ~21. Both bodily contact and/or intent to cause bodily contact or immediate apprehension of such contact are necessary elements. 4 In the instant case, absent from the Complaint is any allegation of bodily contact between the Plaintiff and a YMCA employee, yet alone harmful or offensive contact. Further absent are any allegations that any YMCA employee acted to place the Plaintiff in reasonable apprehension of imminent harmful bodily contact. Without these facts, this claim is insufficiently pled. Likewise, the claim for punitive damages is legally insufficient and cannot withstand a preliminary objection. Punitive damages must be based on conduct which is "'malicious', 'wanton,' 'reckless', or 'willfull'." Chambers v. MontQomerv, 192 A.2d 355, 358 (Pa. 1963). In order to substantiate a punitive damages claim, facts must be pled to demonstrate that an actor's conduct was not just tortious or wrong, but outrageous. See M. Commonwealth v. Kitchen Appliances Distributors, Inc., 27 Pa. D. & C.3d 91 (Pa.Com.PI. 1981.) The only averments in the Complaint characterizing the YMCA's conduct state that, "[they] acted with malice, fraud, gross negligence and/or oppression..." (Compl. ~ 19), and that "Defendant knew, or in the exercise of reasonable care should have known, that [safety measures] were inadequate" (Compl. 90).) These statements are not factual, but merely conclude that some unspecified conduct was malicious and reckless. They are insufficient to put the YMCA on notice as to what outrageous conduct is being alleged, let alone summarize that conduct. Therefore, the pleading violates Pa.R.C.P. 1 019(a),(f), and this preliminary objection must sustained. 5 BRUCIS M. CARTER, on behalf of LASHAE CARTER, a minor Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : NO.: 03-3138 CIVIL TERM YOUNG MEN'S CHRISTIAN ASSOCIATION OF CARLISLE Defendants : CIVIL ACTION : JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS Before HOFFER. P.J. and OLER. J. ORDER OF COURT AND NOW, this day of , 2005, upon consideration of the Defendant's Preliminary Objections to the Plaintiff's Complaint, it is hereby ordered that the objections are SUSTAINED and Complaint is DISMISSED without prejudice. By the Court, George E. Hoffer, P.J. Anthony N. Thomas, Esquire 3111 N. Front Street Harrisburg, PA 17110 (717)541-9979 Attorney for Plaintiff Dennis J. Bonetti, Esquire Cipriani & Werner, P.C. 1017 Mumma Road Lemoyne, PA 17043 (717)975-9600 Attorney for Defendant 6