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HomeMy WebLinkAbout2010-2455 FERRIS LAND : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT, LP, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : CIVIL ACTION – LAW vs. : NO. 10-2455 CIVIL : WILMER R. ERWIN, JR., : DAVID H. MARTIN : EXCAVATING, INC., : Defendants : JURY TRIAL DEMANDED IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS BEFORE HESS, P.J. AND OLER, J. OPINION AND ORDER Defendants Wilmer R. Erwin, Jr. and David H. Martin Excavating Inc. have filed Preliminary Objections to Plaintiff’s Complaint pursuant to Pa.R.Civ.P 1028(a). (Defendants’ Preliminary Objections with Notice to Plead, filed May 25, 2011). Plaintiff’s Complaint contains three counts: negligence; private nuisance; and public nuisance or, in the alternative, public nuisance per se. (Complaint, filed May 5, 2011). The Complaint has been preliminarily objected to in the form of a demurrer and by way of a motion to strike for insufficient specificity and/or failure to conform to rule of law. Plaintiff’s Complaint may be summarized as follows. Plaintiff is a Pennsylvania limited partnership in the business of purchasing commercial real estate for the purpose of developing and improving the properties for re-sale. (Complaint, ¶ 4). In pursuit of that business, Plaintiff owns two parcels of land located at the intersection of Route 11 and Hempt Road in Hogestown, Cumberland County, Pennsylvania. (Complaint, ¶ 5). Plaintiff avers that on April 18, 2008, Defendant Wilmer R. Erwin, Jr. was driving a dump truck, owned by Defendant David H. Martin Excavating, Incorporated. (Complaint, ¶ 12). On that date, Defendant Erwin ran a red light at the aforementioned intersection and collided with a gasoline tanker owned by R.M. Roach & Sons, Inc. (Complaint, ¶¶ 2, 3, 12). The collision caused the release of approximately 3,300 gallons of unleaded gasoline onto Plaintiff’s land and resulted in a large contamination of the soil and storm water drainage system. (Complaint, ¶¶ 12, 15-18). Plaintiff alleges that the gasoline flowed over the paved road surface, into the nearby storm water sewer catch basin, travelled through a pipe, and discharged onto the property owned by Plaintiff. (Complaint, ¶ 16-17). Plaintiff contends that this spillage caused the contamination of soils, surface water, and groundwater. (Complaint, ¶ 18). Emergency response and remediation activities were implemented, and large amounts of contaminated soils were removed from the area. (Complaint, ¶¶ 19-21). Subsequent to the incident and resultant clean-up, Plaintiff filed a complaint against Defendants which contained counts of negligence, private nuisance, and public nuisance, or, in the alternative, public nuisance per se. (Complaint, filed May 5, 2011). In its Complaint, Plaintiff has set forth the following categories of damages which it alleges arose as a result of the incident: at Counts I and III, the diminution in value of the contaminated parcels (Complaint, ¶¶ 45, 68); at Counts I and III, the deprivation of profits, interest and/or reinvestment gain which Plaintiff would have earned had it not had to wait to sell the parcels (Complaint, ¶¶ 48, 68); and, at Count II and III, the deprivation of interest and/or reinvestment income that Plaintiff would have earned on the purchase price for over two years during the time in which it was precluded from selling the parcels. (Complaint, ¶¶ 60, 68). Defendants have filed the instant preliminary objections to Plaintiff’s Complaint. Defendants allege that certain paragraphs of Plaintiff’s Complaint should be stricken for failure 2 to comply with Pa.R.Civ.P. 1019(a) and Pa.R.C.P. 1028(a). The matter was argued, and briefs were submitted. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including the following: (2) Failure of a pleading to conform to law or rule of court . . .; (3) Insufficient specificity in a pleading; (4) Legal insufficiency of a pleading (demurrer). Pa.R.C.P. 1028(a)(2), (3), (4). The standard of review for preliminary objections in this Commonwealth is well settled. Preliminary objections are properly granted only when, “based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief.” Mazur v. Trinity Area School Dist., 599 Pa. 232, 240-41, 961 A.2d 96, 101 (2008) (internal citations omitted). Furthermore, “[f]or the purpose of evaluating the legal sufficiency of the challenged pleading, the court must accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts.” Mazur v. Trinity Area School Dist., 599 Pa. at 241. The trial court “need not accept as true conclusions of law, unwarranted inferences from fact, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995). Additionally, “the lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is inapplicable of precise measurement.” United Refrigerator Co. v. Appplebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963). The appellate court will only reverse a trial court’s ruling on a preliminary objection 3 when “there has been an error of law or abuse of discretion.” Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 2007 Pa. Super. 327, ¶ 5, 936 A.2d 111, 113. Pennsylvania is a fact-pleading jurisdiction. Foster v. UPMC South Side Hosp., 2010 PA Super 143, 2 A.3d 655, 666 (quoting Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa.Super. 2008)). The plaintiff must state the material facts of a complaint “in a concise and summary form.” Pa.R.Civ.P. 1019(a). It is well established that a plaintiff’s complaint must provide sufficient factual averments in order to sustain a cause of action. Feingold v. Hendrzak, 2011 PA Super 34, 15 A.3d 937, 942. The complaint must “not only give the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but the complaint must also formulate the issues by summarizing those facts essential to support the claim.” Id. (internal citations omitted). Moreover, the complaint must be sufficiently specific so that the defending party will know how to prepare his defense. Commonwealth ex rel. Pappert v. TAP Pharmaceutical Products, Inc., 868 A.2d 624 (Pa.Cmwlth. 2005). With regard to damages, Pennsylvania Rule of Civil Procedure 1019(f) requires that “items of special damage shall be specifically stated.” Pa.R.Civ.P. 1019(f). Special damages are “those which are not the usual and ordinary consequences of the wrong done, but which depend upon special circumstances.” Parsons Trading Co. v. Dohan, 312 Pa. 464, 468, 167 A. 310, 312 (1933). General damages are those that are the usual and ordinary consequences of the wrong done. Id. The line between the two is often difficult to ascertain with precision. General damages need not be specifically pled; however, the Pennsylvania Rules of Civil Procedure require that special damages may not be recovered unless the special facts giving rise to them are first averred in the pleadings. Hooker v. State Farm Fire and Cas. Co., 880 A.2d 70, 4 77 (Pa.Cmwlth. 2005) (citing Laing v. Colder, 8 Pa. 479 (1848)). Additionally, a request for a more specific pleading of damages “will be denied where the details of items of special damages, pleaded generally, are readily obtainable by discovery.” Commonwealth ex rel. Milk Mktg. Bd. v. Sunnybrook Dairies, Inc., 29 Pa. Commw. 210, 214, 370 A.2d 765, 768 (1977); U.S. Claims, Inc. v. Ostroff, Villari & Kusturiess, P.C. 2001 WL 1807893, 1 (Pa.Com.Pl.,2001); see also Foster v. Health Mkt., Inc., 146 Pa. Commw. 156, 161–62, 604 A.2d 1198, 1201 (1992) (rejecting objection asserting insufficient specificity where amount of damages could be obtained through discovery). Defendants first Preliminary Objection seeks to Strike Paragraphs 45, 48, 60 and 68 from Plaintiff’s Complaint for failure to aver damages in compliance with the specificity requirements of Pa.R.Civ.P. 1019(a). Those paragraphs of the Complaint provide as follows: 45. As a direct and proximate result of Defendants’ negligence and the contamination caused thereby, the Contaminated Parcel was damaged and diminished in value; 48. As a direct and proximate result of Defendants’ negligence and the contamination caused thereby, Ferris was deprived of the profit it would have earned as interest and/or reinvestment gain on the money paid for the Parcels had Ferris not had to wait to sell the Parcels; 60. By depriving Ferris of the ability to sell its property, Defendants deprived Ferris of the interest and/or reinvestment income it would have earned on the purchase price for over two years during which time Ferris was precluded from selling the Parcels; and 68. As a result of the contamination of the soil, surface and/or groundwater caused by the Defendants’ negligent operation of a motor vehicle, Ferris has suffered harm of a different kind from that suffered by the general public, including a diminution of property value, lost use and opportunity to sell the Parcels, and lost interest and/or reinvestment income as a result of the inability of to sell the Parcels. (Complaint, ¶¶ 45, 48, 60, 68). 5 Specifically, Defendants seek to classify these damages as “special damages.” Even assuming that those damages are “special damages,” we are satisfied that the details pled thus far have been pled with the requisite specificity. While Plaintiff has not pled specific amounts which it seeks in damages, it is not required to do so; rather, Plaintiff has pled all the special facts necessary to entitle it to an award of damages if the averments contained within its Complaint are proven by a preponderance of the evidence. In the meantime, the exact amount of damages is ascertainable through discovery. Furthermore, while Defendants’ preliminary objection will herein be overruled, Plaintiff will continue to be limited to an award of only those damages based upon the facts which have been pled. Defendants’ second Preliminary Objection is in the nature of a Motion to Strike “all Plaintiff’s claims under the Clean Streams law” for failure to conform to rule of law. At oral argument, this preliminary objection was withdrawn by Defendants upon the parties’ agreement that Plaintiff does not intend to proceed with a claim under the Clean Streams law. As a result, Defendants’ second Preliminary Objection is overruled and need not be addressed herein. Defendants’ third Preliminary Objection is in the nature of a Motion to Dismiss all claims of public nuisance. The standard of review for a demurrer is well settled: “[a] preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” Strausser v. PRAMCO, III, 2008 PA Super 28, ¶ 12, 944 A.2d 761, 764-65. All material facts contained within the pleadings, and all inferences reasonably deducible therefrom, must be admitted as 6 true. Id. When a defendant alleges a demurrer, that party admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. Lerner v. Lerner, 2008 Pa. Super. 183, ¶ 11, 954 A.2d 1229, 1234-35. “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Wawa, Inc. v. Alexander J. Litwornia & Associates, 2003 PA Super 55, ¶ 2, 817 A.2d 543, 544 (quoting Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (1996)). The definition of a public nuisance contained within § 821(B) of the Restatement (Second) has been adopted in Pennsylvania and provides as follows: (1) A public nuisance is an unreasonable interference with a right common to the general public. (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. Duquesne Light Co. v. Pennsylvania American Water Co., 2004 PA Super 160, ¶ 16, 850 A.2d 701, 706 (citing Restatement (Second) of Torts § 821(B)). Generally, claims of public nuisance are redressed by an action in the name of a governing body or an officer thereof as its authorized representative. Pennsylvania Society For 7 Prevention of Cruelty to Animals v. Bravo Enterprises, Inc., 428 Pa. 350, 237 A.2d 342 (1968). A private claim for public nuisance is available only in limited circumstances where a plaintiff has suffered a “harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of the interference.” Duquesne Light Co., 2004 PA Super 160 at ¶ 17, 850 A.2d at 706. Lastly, and as noted above, certain conduct may be defined as a public nuisance through statute. See Restatement (Second) of Torts § 821(B)(2)(b). The Supreme Court of Pennsylvania has expressly held that the pollution of public waterways can constitute a public nuisance both under common law and statutory principles. Machipongo Land and Coal Co., Inc. v. Com., 569 Pa. 3, 41, 799 A.2d 751, 773 (2002); see also Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 319 A.2d 871, 880 (1974). Citing the Clean Streams Law, 35 P.S. § 691.401, our Supreme Court held that when a person unlawfully places, allows, or permits a substance defined as pollution to enter the waters of the Commonwealth, such conduct constitutes a public nuisance per se as a violation of that statute. Machipongo, 569 Pa. at 42-43. Applying the foregoing, Plaintiff has averred sufficient facts which, when taken as true, constitute a public nuisance or a public nuisance per se. Plaintiff has alleged that by and through their conduct, Defendants caused the release of approximately 3,300 gallons of unleaded gasoline onto Plaintiff’s land which resulted in a large contamination of the soil and storm water drainage system. Plaintiff has alleged that the gasoline flowed over the paved road surface, into the nearby storm water sewer catch basin, travelled through a pipe, and discharged onto the property owned by Plaintiff. Plaintiff contends that this spillage caused the contamination of 8 1 soils, surface water, and groundwater in violation of the Clean Streams Law. Additionally, Plaintiff has alleged that this contamination of the soil, surface, and groundwater has caused it harm of a different kind from that suffered by the general public. Specifically, in Paragraph 68 of its complaint, Plaintiff alleged that it suffered harm in the form of a diminution of property value, lost use and opportunity to sell the parcels, and lost interest and/or reinvestment income as a result of its inability to sell the land. Accepting as true all well-pleaded, material, and relevant facts alleged in the Complaint, and every inference that is reasonably deducible therefrom, we are satisfied that Plaintiff has pled sufficient facts to support a cause of action for public nuisance or public nuisance per se. Defendants’ fourth and final preliminary objection is in the nature of a motion to strike all claims for “unspecified future and current potential, unidentified and uncharacterized contamination” pursuant to Pa.R.Civ.P. 1028(a)(3). It is difficult to determine what paragraphs, exactly, Defendants’ seek to have stricken from the Complaint. Subsequent to oral argument, and after thorough review of the briefs, it appears that Defendants seek to limit potential future claims which may come to light at some point in the future. Defendants allege that the Complaint hints at what “could be” or what is yet “unidentified,” and that these words leave Defendants vulnerable to potential additional causes of actions. Defendants appear to be troubled that Connor-style claims and issues may arise if Plaintiff is allowed to use its current claims as a springboard for potential future claims at trial. See Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Connor and its progeny are generally concerned with variance problems where the proof at trial establishes a cause of action that was not alleged 1 Plaintiff is not, however, proceeding with a claim under the Clean Streams Law; rather, it is Plaintiff’s contention that Defendants’ conduct is proscribed by the Clean Streams Law and constituted a nuisance per se. 9 in the party’s pleadings. Reynolds v. Thomas Jefferson University Hosp., 450 Pa. Super. 327, 336, 676 A.2d 1205, 1209 (1996). These issues arise because of the relatively liberal and informal rules of modern pleading and practice. Id. “General allegations of a pleading, which are not objected to because of their generality, may have the effect of extending the available scope of a party’s proof, such that the proof would not constitute a variance, beyond that which the party might have been permitted to give under a more specific statement.” Id. at 336-37. The concern, therefore, is that a new cause of action will arise out of that which has been pled when the original pleadings are relatively general in nature so as to be subject to arguably different interpretations. In the instant case, we do not believe that such concerns are warranted. Plaintiff has pled claims of negligence, private nuisance, and public nuisance. All the claims have arisen out of the same set of facts: that Defendants’ negligent conduct in running a red light caused harm to Plaintiff, and also that Defendants’ conduct constituted both private and public nuisances. With regard to damages as explained above, Plaintiff has pled all the special facts necessary to entitle it to an award of damages if the averments contained within its Complaint are proved by a preponderance of the evidence. It appears, therefore, that Defendants have been sufficiently informed of all the material facts underlying Plaintiff’s claims so as to enable them to prepare a proper defense. In the meantime, we see no danger of new causes of action arising out of the current pleadings. If Plaintiff seeks in the future to add additional claims it must do so in accordance with the Rules of Civil Procedure and within the applicable statutes of limitations. For the foregoing reasons, the Preliminary Objections of Defendants will be overruled, and the following order will be entered. 10 ORDER th AND NOW, this 5 day of October, 2011, upon consideration of Defendants’ Preliminary Objections, and the responses filed thereto, and after oral argument by the parties heard on August 26, 2011, Defendants’ Preliminary Objections are hereby OVERRULED. BY THE COURT, ___________________________ Kevin A. Hess, P.J. Richard H. Friedman, Esquire Dana Windisch Chilson, Esquire For the Plaintiff Jason C. Giurintano, Esquire For the Defendants :rlm 11 FERRIS LAND : IN THE COURT OF COMMON PLEAS OF DEVELOPMENT, LP, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : CIVIL ACTION – LAW vs. : NO. 10-2455 CIVIL : WILMER R. ERWIN, JR., : DAVID H. MARTIN : EXCAVATING, INC., : Defendants : JURY TRIAL DEMANDED IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS BEFORE HESS, P.J. AND OLER, J. ORDER th AND NOW, this 5 day of October, 2011, upon consideration of Defendants’ Preliminary Objections, and the responses filed thereto, and after oral argument by the parties heard on August 26, 2011, Defendants’ Preliminary Objections are hereby OVERRULED. BY THE COURT, ___________________________ Kevin A. Hess, P.J. Richard H. Friedman, Esquire Dana Windisch Chilson, Esquire For the Plaintiff Jason C. Giurintano, Esquire For the Defendants :rlm