HomeMy WebLinkAbout94-4528 Civil (2) GAILE F. GEMUNDT, Executrix : IN THE COURT OF COMMON PLEAS OF
of the Estate of Raymond L. : CUMBERLAND COUNTY, PENNSYLVANIA
Gemundt, :
Plaintiff :
:
v. : CIVIL ACTION - LAW
:
CRST, INC., RAPID LEASING, :
INC., DOY L. TALBOTT, :
MICHAEL CONNER, and THE :
CONNER GROUP, :
Defendants : NO. 94-4528 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF PLAINTIFF TO
SECOND AMENDED NEW MATTER OF DEFENDANTS MICHAEL
CONNOR and THE CONNOR GROUP
BEFORE HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this % ~day of August, 1995, upon consideration of
Plaintiff's Preliminary Objections to Defendants Michael Conner and
The Conner Group's Second Amended New Matter, as well as the briefs
and oral arguments presented in the matter, and for the reasons
stated in the accompanying Opinion, Plaintiff's preliminary
objections are DENIED.
BY THE COURT,
Robert W. Foeman, Esq.
247 S. 8th Street
P.O. Box 25
Lebanon, PA 17042-0025
Attorney for Plaintiff
James R. Hankle, Esq.
428 Boulevard of the Allies
Pittsburgh, PA 15219
Attorney for Defendants
CRST, Inc., Rapid Leasing, Inc.,
and Doy L.-Talbott
John F. Yaninek, Esq.
110 South Northern Way
York, PA 17402
Attorney for Defendants
Michael Connor and The Connor Group
:re
GAILE F. GEMUNDT, Executrix : IN THE COURT OF COMMON PLEAS OF
of the Estate of Raymond L. : CUMBERLAND COUNTY, PENNSYLVANIA
Gemundt, :
Plaintiff :
:
v. : CIVIL ACTION - LAW
:
CRST, INC., RAPID LEASING, :
INC., DOY L. TALBOTT, :
MICHAEL CONNOR, and THE :
CONNOR GROUP, :
Defendants : NO. 94-4528 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF PLAINTIFF TO
SECOND AMENDED NEW MATTER OF DEFENDANTS MICHAEL
CONNOR and THE CONNOR GROUP
BEFORE HOFFER and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
The present wrongful death and survival action arises out of
a motor vehicle accident° For disposition at this time are
preliminary objections of Plaintiff to the Second amended new
matter pleading filed by Defendants Michael Connor and The Connor
Group. The preliminary objections consist of a motion to strike
for lack of conformity to law or rule of court,~ a motion to strike
for inclusion of impertinent matter,2 and a demurrer.3
The said Defendants' second amended new matter, to which
Plaintiff has filed preliminary objections, states the following:
66. Any and all claims made by the Plaintiff
against Michael Connor and The Connor Group
See Pa. R.C.P. 1028(a)(2)o
See Pa. R.C.Po 1028(a)(2).
See Pa. R.C.P. 1028(a)(4).
NO. 94-4528 CIVIL TERM
are barred by the legal doctrine of collateral
estoppel.
67. The issue of negligence of Michael Connor
and The Connor Group is identical to the issue
that was decided in a prior adjudication on
November 3, 1994 in the Middle District Court
of Pennsylvania in a suit brought by CRST,
Inc. and Rapid Leasing, Inc. against Michael
Connor and.The Connor Group which [sic] Doy L.
Talbott was an additional Defendant.
68. There was a final judgment on the merits
in the federal court case decided on November
3, 1994 against Doy L. Talbott and CRST, Inc.
and Rapid Leasing, Inc.
69. The jury in the Middle District of
Pennsylvania decided that Michael Connor's
negligence was not a substantial factor
causing the accident between his Ford Taurus
and the tractor trailer driven by Doy L.
Talbott.
70. Plaintiff was aware of the trial in the
Middle District of Pennsylvania because
Plaintiff's counsel was present as a spectator
for various portions of the trial.
71. Plaintiff's counsel was aware of the
federal court trial prior to the trial
beginning.
72. CRST, Inc., Rapid Leasing, Inc., and Doy
L. Talbott had a full and fair opportunity to
litigate the issues of Michael Connor and The
Connor Group's negligence in an eight day
federal trial presided by Judge Sylvia Rambo.
73. Plaintiff had a full and fair opportunity
to litigate the issues of Michael Connor and
The Connor Group's negligence by interpleader
into the federal suit filed by CRST, Inc.
74. Plaintiff was in privity with CRST, Inc.,
Rapid Leasing, Inc., and Doy L. Talbott in the
prior case tried in the Middle District Court
of Pennsylvania in 1994.
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NO. 94-4528 CIVIL TERM
Plaintiff's motion to strike for lack of conformity to law or
rule of court is based upon the assertion that evidence has been
pled in paragraphs 70 and 71 of the second amended new matter
instead of ultimate facts, in violation of Pennsylvania Rule of
Civil Procedure 1019(a). Plaintiff's motion to strike for
inclusion of impertinent matter is based upon the argument that
allegations of the second amended new matter purporting to raise a
collateral estoppel defense are irrelevant to that issue.
Plaintiff's demurrer is based on the proposition that the averments
contained in the second amended new matter fail to set forth facts
sufficient to establish a defense of collateral estoppel. For the
reasons stated in this Opinion, the preliminary objections will be
denied.
STATEMENT OF FACTS
Plaintiff, in her First Amended Complaint, avers the following
facts, the recitation of which is not intended to imply a view by
the court as to their accuracy: Plaintiff is Gaile F. Gemundt, who
currently has an address of P.O. Box 83, Mt. Gretna, Lebanon
County, Pennsylvania. She is the duly appointed executrix of the
estate of Raymond F. Gemundt, deceased. Defendant CRST, Inc., is
an Iowa corporation with its principal place of business at 3930
Sixteenth Avenue S.W., Cedar Rapids, Iowa. Defendant Rapid
Leasing, Inc., is a Montana corporation with its principal place of
business in Cedar Rapids, Iowa, and a registered office at 2005
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NO. 94-4528 CIVIL TERM
Felway Drive, P.O. Box 464, Dillon, Montana. Defendant Doy L.
Talbott is an adult individual who resides at 540 West Eaton Pike,
Richmond, Indiana. Defendant Michael Connor is an adult individual
who resides at 412 Springhouse Road, Harrisburg, Dauphin County,
Pennsylvania. Defendant, The Connor Group, "is a fictitious name"
registered to Defendant Michael Connor, with a registered office at
4915 Derry Street, Harrisburg, Dauphin County, Pennsylvania.
The facts and occurrences hereinafter set forth took place on
or about June 18, 1993, at approximately 11:02 p.m. on Route 581 in
Cumberland County, Pennsylvania° At that time and place, Defendant
Doy L. Talbott was operating a 1989 International tractor that was
pulling a 1993 Fruehauf trailer owned by Defendant Rapid Leasing,
Inc., and leased to Defendant, CRST, Inc. ~ He was traveling
westbound in the passing lane of Route 581, at its intersection
with an entrance ramp leading from Routes 11 and 15. Defendant
Michael Connor was operating a 1990 Ford Taurus owned by either
himself or Defendant, The Connor Group, and was traveling westbound
in the right lane of travel on Route 581 in the vicinity of the
said entrance ramp. The decedent, Raymond L. Gemundt, was the
owner and operator of a 1985 Chevrolet Spectrum, and was traveling
in an eastbound direction on Route 581, in the opposite direction
of travel from that of the vehicles operated by Defendants Doy L.
Talbott and Michael Connor.
The vehicles operated by Defendants Doy L. Talbott and Michael
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NO. 94-4528 CIVIL TERM
Connor came into contact with each other. As a result of this
collision, the vehicle operated by Defendant Doy L. Talbott crossed
the median divider on Route 581, entered the lane of travel of
Raymond L. Gemundt, and struck his vehicle. Mr. Gemundt died as a
result of the injuries he sustained in the collision with the
tractor trailer. ~
Defendants, Michael Connor and The Connor Group, in their
second amended new matter,~ aver the following facts: As a result
of the previously described accident, a lawsuit was institUted on
July 1, 1993 in the United States District Court for the Middle
District of Pennsylvania by CRST, Inc., and Rapid Leasing, Inc.,
against Michael Connor and The Connor Group. Michael Connor and
The Connor Group then joined Doy L. Talbot% as an additional
defendant. A trial was commenced in the federal court on October
21, 1994.
On November 3, 1994, the jury returned a verdict consisting of
answers to several special interrogatories, including the
following:
1. Do you find Defendant Michael Connor
negligent?
Yes.
2. Was Michael Connor's negligence a
substantial factor in causing the accident?
No.
3. Do you find Defendant Doy L. Talbott
negligent?
5
NO. 94-4528 CIVIL TERM
Yes.
4. Was Defendant Doy L. Talbott's negligence
a substantial factor in causing the accident?
Yes.
On August 12, 1994, Gaile F. Gemundt, as executrix of the
estate of Raymond L. Gemundt, filed a complaint in this court,
naming the following parties as original defendants: CRST, Inc.;
Rapid Leasing, Inc.; Doy L. Talbott; Michael Connor; and The
Connor Group. Subsequently, on September 23, Plaintiff filed her
first amended complaint.
On September 27, 1994, Defendant Michael Connor and The Connor
Group filed an answer with new matter to Plaintiff's first amended
complaint. On November 11, 1994, subsequent to the return of the
verdict in the federal suit, Defendants Michael Connor and The
Connor Group filed a motion to amend the answer with new matter to
include a defense of collateral estoppel. The motion was granted
on March 30, 1995. The said Defendants filed the amended new
matter on April 27, 1995, to which Plaintiff and Defendants CRST,
Inc., Rapid Leasing, Inc., and Doy L. Talbott filed preliminary
objections. In response to these preliminary objections,
Defendants Michael Connor and The Connor Group filed a second
amended new matter. The initial preliminary objections were deemed
moot by this court on June 19, 1995, due to the timely amendment by
the said Defendants. See Pa. R.C.P. 1028(c)(1). The preliminary
objections that are presently before this court for disposition
6
NO. 94-4528 CIVIL TERM
were filed by Plaintiff in response to the second amended new
matter filed by Defendants Michael Connor and The Connor Group.
STATEMENT OF LAW
Motion to strike for lack of conformity to law or rule of
court. Under Pennsylvania Rule of Civil Procedure 1019(a), "[t]he
material facts on which a cause-of action or defense i~ based shall
be stated in a concise and summary form." Where a pleading is not
in conformity with this requirement, it is subject to a preliminary
objection. Pa. R.C.P. 1028(a)(2).
"Rule 1019(a) requires fact pleading. The purpose of [the
rule] is to require the pleader to disclose the material facts
sufficient to enable the adverse party to prepare his case ....
Material facts are ultimate facts, i.e., thosei~.facts essential to
support the claim. Evidence from which such facts may be inferred
not only need not but should not be alleged .... Allegations will
withstand challenge under 1019(a) if (1) they contain averments of
all of the facts the plaintiff will eventually have to prove in
order to recover, and (2) they are sufficiently specific so as to
enable defendant to prepare his defense." Baker v. Rongos, 229 Pa.
Super. 333, 349-50, 324 A.2d 498, 505-06 (1974) (citations
omitted).
"Under [Rule 1019(a)] as now drawn, any evidence, inference or
conclusion of law may be and usually is treated as harmless
surplusage and ignored by an opponent in preparing a responsive
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NO. 94-4528 CIVIL TERM
pleading." 2 Goodrich Amram 2d §1019(a):2, at 318 (1991).
"Additional immaterial facts, evidence, or conclusions of law in a
pleading do not necessarily render it defective .... A pleading
will not be stricken because of the inclusion of unnecessary words
which do not harm or prejudice an opponent .... On the other hand,
if the presence of immaterial facts, evidence, or conclusions.~of
law in a pleading is confusing or harmful, they may be stricken."
Id. §1019(a):ll, at 326.~ "A court has wide discretion in
determining whether a particular averment ... constitutes eVidence
rather than a material fact." Id. §1019(a):8, at 324.
Motion to strike for inclusion of impertinent matter.
Impertinent matter has been defined as the "averment of a fact or
facts which are irrelevant to the material issues made or tendered,
and which, whether proven or not, or whether admitted or not, can
have no influence in leading to the result of a judicial decree."
2 Anderson, Pennsylvania Civil Practice §1017:103, at 480 (1976).
With respect to a preliminary objection seeking to strike
impertinent matter, it has been said that "[t]he right of a cou~t
to strike impertinent matter should be sparingly exercised and only
when a party can affirmatively show prejudice." Commonwealth,
Dep't of Envtl. Resources v. Hartford Accident & Indem. Co., 40 Pa.
Commw. 133, 138, 396 A.2d 885, 898 (1979). Impertinent matter that
is not prejudicial may be treated as "mere surplusage and ignored."
2 Goodrich Amram ~1017(b):16, at 261 (1991).
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NO. 94-4528 CIVIL TERM
Demurrer. "When reviewing the grant or denial of a
preliminary objection in the nature of a demurrer, [a court] must
regard the allegations in the [pleading] as true and accord [the
pleader] all the inferences reasonably deductible therefrom."
Snyder v. Speciality Glass Products, Inc., Pa. Super. ,
· 658 A.2d-366 (1995). "By demurrer a party may contend that
even if the averments of the adverse party are true they do not
constitute a ... defense. The question raised by the demurrer is
whether upon the facts averred in the pleading being attacked the
law says with certainty that the ... defense has no merit." 2
Anderson· Pennsylvania Civil Practice ~1017.152, at 539-40 (1976).
"When a doubt exists as to whether a demurrer should be sustained,
this doubt should be resolved in favor of overrUling it. Snyder v.
Speciality Glass Products, Inc., Pa. Super. , , 658 A.2d
366, 368 (1995).
Collateral estoppel. "The doctrine of collateral estoppel· or
issue preclusion, operates to prevent a question of law or an issue
of fact which has once been litigated and adjudicated finally in a
court of competent jurisdiction from being relitigated in a
subsequent suit. Collateral estoppel is appropriate where (1) the
issue decided in the prior action was identical with the one
presented in the later action; (2) there was a final judgment on
the merits; (3) the party against whom the plea is asserted was a
party or in privity with a party to the prior adjudication; and (4)
9
NO. 94-4528 CIVIL TERM
the party against whom the plea is asserted has had a full and fair
opportunity to litigate the issue in question in a prior action.
Snyder v. Speciality Glass Products, Inc., Pa. Super.
, 658 A.2d 366, 372 (1995) (citations omitted).
With regard to the elements of collateral estoppel, "[p]rivity
is a term which the courts have never been able to define
satisfactorily. It is defined by Black's Law Dictionary (5th ed.
1979) as '[m]utual or successive relationship to the same rights of
property. In its broadest sense, privity is defined as mutual or
successive relationships to the same right of property, or such an
identification of interest of one person with another as to
represent the same legal right.'" Ammon v. McClaskey, Pa.
Super. .. , , 655 A.2d 549, 554 (1995). Furthermore,
"[c]ollateral estoppel applies only to issues which have been
actually litigated in a prior action." Hopewell Estates, Inc. v.
Kent, 435 Pa. Super. 471, 478, 646 A.2d 1192, 1195 (1994).
APPLICATION OF LAW TO FACTS
With regard to Plaintiff's motion to strike for lack of
conformity to law or rule of court, it is noted that, even if
paragraphs 70 and 71 of the second amended new matter should be
found to contain evidence, such a conclusion would not in itself
render the pleading fatally defective. Since Plaintiff has failed
to show any prejudice or harm resulting from the inclusion of the
above-referenced paragraphs, the court will not strike that portion
10
NO. 94-4528 CIVIL TERM
of the pleading.
With regard to Plaintiff's motion to strike for inclusion of
impertinent matter, it does not appear to the court that the
allegations in question are clearly immaterial to the issue of
collateral estoppel. Furthermore, Plaintiff has not met her burden
of showing the existence of prejudice which is a prerequisite to
the success of such a motion.
With regard to the demurrer, although it may well be that
Defendants Michael Connor and The Connor Group will eventually be
unable to establish the elements of collateral estoppel, and that
this inability will be clear upon a more developed pretrial record,
it can not be said at this stage of the proceedings with certainty
that as a matter of law the defense is impossible. Since a doubt
exists as to whether the demurrer should be granted, the court will
resolve the matter in favor of overruling it.
For the foregoing reasons, the following Order will be
entered:
ORDER OF COURT
AND NOW, this 15th day of August, 1995, upon consideration of
Plaintiff's Preliminary Objections to Defendants Michael Connor and
The Connor Group's Second Amended New Matter, as well as the briefs
and oral arguments presented in the matter, and for the reasons
11
NO. 94-4528 CIVIL TERM
stated in the accompanying Opinion, Plaintiff's preliminary
objections are DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Robert W. Feeman, Esq.
247 S. 8th Street
P.O. Box 25
Lebanon, PA 17042-0025
Attorney for Plaintiff
James R. Hankle, Esq.
428 Boulevard of the Allies
Pittsburgh, PA 15219
Attorney for Defendants
CRST, Inc., Rapid Leasing, Inc.,
and Doy L. Talbott
John F. Yaninek, Esq.
110 South Northern Way
York, PA 17402
Attorney for Defendants
Michael Connor and The Connor Group
:re
12