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Home My WebLink About93-2245 Civil ROBERT T. DUNN and ANNETTE DUNN, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW ECLIPSE, LTD., STEPHEN VAN : VOORHEES, and GOLDWEIL, U.S.A., : Defendants : : NO. 2245 CIVIL 1993 IN RE: DEFENDANTS, PRELIMINARY OBJECTIONS BEFORE HOFFER and OLER jj. QRDER OF COURT AND NOW, this 2~day of April, 1994, upon consideration of Defendants, Preliminary Objections to Plaintiffs, Complaint, as well as the briefs and arguments on the matter, paragraph 24(b) of the Plaintiffs, Complaint is STRICKEN. All other relief requested by Defendants is DENIED. BY THE COURT, J~Wesl~ Richard E. Freeburn, Esq. 600 North Second Street Harrisburg, PA 17101 Attorney for Plaintiffs Timothy I. Mark, Esq. Deborah A. Cavacini, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorneys for Defendants Eclipse, Ltd. and Stephen Van Voorhees Philip D. Priore, Esq. 1845 Walnut Street Philadelphia, PA 19103 Attorney for Goldwell Cosmetics USA, Inc. : rc ROBERT T. DUNN and : IN THE COURT OF COMMON PLEAS OF ANNETTE DUNN, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. : CIVIL ACTION - LAW ECLIPSE, LTD., STEPHEN : VAN VOORHEES, and : GOLDWEIL, U.S.A., : Defendants : NO. 2245 CIVIL 1993 IN RE: DEFENDANTS, PRELIMINARY OBJECTIONS BEFORE HOFFER and OLER, Jj. ~PINION AND ORDER OF COURT Oler, J. At issue in the present case are preliminary objections filed by Eclipse, Ltd., and Stephen Van Voorhees (Defendant Eclipse and Defendant Van Voorhees, respectively) and Goldwell Cosmetics USA, Inc. (Defendant Goldwell),~ to a complaint filed by Robert T. Dunn and Annette Dunn (Plaintiffs). For the reasons set forth in this Opinion, the preliminary objections will be sustained in part and denied in part. The facts as alleged in Plaintiffs, Complaint may be summarized as follows. Plaintiffs are husband and wife, residing at 3909 Brookridge Drive, Mechanicsburg, Cumberland County, Pennsylvania.2 Defendant Eclipse is a Pennsylvania corporation with its principal place of business in Lemoyne, Cumberland County, ~ Plaintiffs, Complaint names this Defendant as "Goldweil, U.S.A.'. but Defendant,s counsel has entered his appearance on behalf of "Goldwell Cosmetics USA, Inc." 2 Plaintiffs, Complaint, paragraph 1. NO. 2245 CIVIL 1993 Pennsylvania-3 Defendant Van Voorhees is an individual, residing in East Berlin, Pennsylvania,4 and "at all [relevant] times ... was the principal shareholder, officer, director, agent, employee and servant of Eclipse, Ltd., whose main business was haircutting, styling, coloring and all other services and functions performed by a full service hair and beauty salon..S Defendant Goldwell is a foreign business corporation not registered to do business in Pennsylvania,6 the principal business of which "at all [relevant] times ... was -.- manufacturing and supplying hair dye and hair coloring products..? Approximately one month prior to August 21, 1991, Plaintiff- Husband had his hair cut and colored by Defendant Van Voorhees, in the latter's capacity as an agent, servant and employee of Defendant Eclipse.8 At that time, based upon representations made by Defendant Van Voorhees regarding his skill, training and knowledge, Plaintiff-Husband authorized Defendant Van Voorhees to Plaintiffs, Complaint, paragraph 2. Plaintiffs, Complaint, paragraph 3. Plaintiffs, Complaint, paragraph 4. Plaintiffs, Complaint, paragraph 5. Plaintiffs, Complaint, paragraph 6. Plaintiffs, Complaint, paragraphs 8-9. 2 NO. 2245 CIVIL 1993 color 'his hair.9 Plaintiff-Husband returned to Defendant Eclipse to have Defendant Van Voorhees cut and color his hair again on August 21, 1991.~0 When Defendant Van Voorhees cut and colored Plaintiff- Husband,s hair on the aforementioned date, as well as one month prior thereto, the hair coloring he used was manufactured by Defendant Goldwell.~ At no time did Defendant Van Voorhees "perform any test, including a skin patch test, or ask any questions or secure any relevant information as to whether [Plaintiff-Husband] might be allergic to or have any sensitivity to the product which was used or would be used in the process of coloring his hair..,~2 After Defendant Van Voorhees colored Plaintiff-Husband,s hair on August 21, 1991, Plaintiff-Husband began to have an adverse reaction "to the hair coloring product and/or the manner in which it was applied by [Defendant] Van Voorhees...~3 As part of this reaction, Plaintiff-Husband,s "scalp began to itch and ooze a liquid substance, blisters formed on his head and scalp, a severe rash developed over his back, shoulders and body and he experienced 9 Plaintiffs, Complaint, paragraphs 10-11. Plaintiffs, Complaint, paragraph 7. Plaintiffs, Complaint, paragraph 12. Plaintiffs, Complaint, paragraph 13. Plaintiffs, Complaint, paragraph 14. 3 NO. 2245 CIVIL 1993 severe hair loss.-14 Because of these symptoms, Plaintiff-Husband suffered "great physical pain, mental anguish, discomfort, inconvenience, distress and extreme embarrassment and humiliation. ,,~5 Moreover, Plaintiff-Husband was "disabled from engaging in gainful employment,.16 has been "required to incur reasonable and necessary medical and rehabilitative bills and expenses,,, and has suffered "the loss of the ability to enjoy life's pleasures.-18 Plaintiffs have instituted the present action, against Eclipse, Van Voorhees, and Goldwell. Plaintiffs assert, inter alia, claims of strict liability against all of the Defendants, as well as negligence on the part of Defendant Van Voorhees and Defendant Eclipse. In Count I of their Complaint, Plaintiffs allege that the Defendants are strictly liable for the damages resulting from the "hair coloring product" that they had supplied to Plaintiff- Husband-19 Plaintiffs contend that the "product was defective and unreasonably dangerous to users thereof in that: Plaintiffs, Complaint, paragraph 15. Plaintiffs, Complaint, paragraph 16. Plaintiffs, Complaint, paragraph 17. Plaintiffs. Complaint, paragraph 20. 4 NO. 2245 CIVIL 1993 a. It had a propensity to cause harmful reactions to users; b. It was too strong for users with sensitive skin; c. It failed to provide adequate warnings with respect to the dangers and risks from its use and application; d. It failed to provide adequate warnings and instructions with respect to its use and application; and e. The product was unreasonably dangerous for use by the general public..,20 In Count III of their Complaint, Plaintiffs allege that Defendant Eclipse was directly negligent in the following respects: a. Failing to adequately supervise and train its employees; b. In failing to exercise reasonable care for the safety of its customers including Robert T. Dunn.~ , In response to the allegations set forth in Plaintiffs, Complaint, Defendants have filed preliminary objections to certain paragraphs of the Complaint. More specifically, Defendant Goldwell seeks to strike paragraph 20(e) of Plaintiffs, Complaint,~2 contending that it consists of "vague, ambiguous and redundant 20 Plaintiffs, Complaint, paragraph 20. 2~ Plaintiffs, Complaint, paragraph 24. Another count of the Complaint predicates liability of Defendant Eclipse upon the doctrine of respondeat superior. Plaintiffs, Complaint, Count IV. ~2 See supra text accompanying notes 19-20. 5 NO. 2245 CIVIL 1993 boilerplate averments..23 Likewise, Defendants Eclipse and Van Voorhees have filed a motion to strike, or in the alternative, a motion for a more specific pleading, with respect to paragraph 24(b) of Plaintiffs, Complaint.24 On the issue of the sufficiency of a pleading, it initially should be noted that Pennsylvania Rule of Civil Procedure 1019 requires that "It]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." In this regard, where a preliminary objection has been filed challenging the sufficiency of a pleading, "It]he question to be decided ... is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a response, or whether [the] pleading informs an opponent with accuracy and completeness of the specific basis on which recovery is sought so that he or she may know without question upon what grounds to make his or her defense... 2 Goodrich Amram 2d, S1017(b):21, at 265 (1991). Moreover, in considering this question, a court must keep in mind the principle that, "[n]ot only must pleadings put an opponent on notice of what he or she will be called upon to meet at trial, they 23 Defendant Goldweil,s Preliminary Objections, paragraph 5. ~ See supra text accompanying note 21. During oral argument, counsel for Defendants Eclipse and Van Voorhees indicated to the Court that paragraph 22(e) of Plaintiffs, Complaint, relating to Defendant Van Voorhees, is similarly objectionable. However, this paragraph was not the subject of a preliminary objection and its propriety was not briefed. NO. 2245 CIVIL 1993 must also form the issues in an action so that the proof at trial may be restricted to those issues.,, 2 Goodrich Amram 2d, S1019:2, at 310-11 (1991). The Supreme Court of Pennsylvania has addressed the issue of the sufficiency of a pleading containing a general allegation as to a ground for liability in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). There, the Court held that an allegation that the defendant was negligent "in otherwise failing to use due care and caution under the circumstances,, provided a basis for subsequent amendment of the complaint to "amplify" this allegation after the statute of limitations had run. Id. at 310, 461 A.2d at 602. In an oft-cited footnote, the Court observed that, if the defendant "did not know [what the allegation had meant,] it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of [the] complaint.,, Id. at 311 n.3, 461 A.2d at 602 n.3 (1983). It has also been said that "Ia] motion to strike is not a substitute for a motion for a more specific pleading.,, 2 Goodrich Amram 2d, S1017(b):12, at 256 (1991). In addition, lower courts have "broad discretion in determining the amount of detail that must be averred [in a complaint] since the standard of pleading ... is incapable of precise measurement. United Refrigerator Company v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253 (1963). The pleading 7 NO. 2245 CIVIL 1993 of evidentiary matters is not required. Commonwealth ex rel., Milk Marketing Board v. Sunnybrook Dairies, Inc., 29 Pa. Commonw. 210, 214, 370 A.2d 765, 768 (1977), citing Local 163, International Union of United Brewery v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). Further, where facts are known better or at least as well to the defendant as to the plaintiff, a motion for a more specific complaint will be denied. Sorber v. UGI Corp., 70 D. & C.2d 624, 625-26 (1975). See also, Line Lexington Lumber & Millwork Company, Inc. v. Pennsylvania Publishing Corporation, 451 Pa. 154, 162, 301 A.2d 684, 689 (1973)..,25 "lin reference to the impact of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), in this area, t]he precedential value of Connor [may] very well be overstated [in some cases]... Derr v. Yingling, 72 Lancaster L.R. 351, 355 (1991). The thrust of [the footnote in Connor noted above] appears to have been a suggestion by the Court that defense counsel might, in the future, consider objecting to the overbroad, general and vague averment of negligence which typically was couched in language such as "the defendant was otherwise negligent., or "the defendant failed to exercise reasonable care... An objection to such language would proceed under the authority of Rule 1019 with a nudge in the right direction by footnote 3 from the Connor opinion. In fact, since Connor was decided in 1983, the use of such "catchall.. provisions appears to have decreased .... IAI court is required to review the 2s Derr v. Yingling, 72 Lancaster L.R. 351, 355 (1991). 8 NO. 2245 CIVIL 1993 complaint in its entirety. Any one of the averments of negligence, when viewed on its own and out of the context of the complaint, might appear to be general, broad or vague. However, when considered in light of the complaint as a whole, Ia different result may obtain]... Id. at 356-57 (1991). Finally, it should be noted that success on a theory of strict liability "requires only proof that a product was sold in a defective condition unreasonably dangerous to the user or consumer, and that the defect was the proximate cause of plaintiff,s injuries... Walton v. AVCO Corp., 530 Pa. 568, 576 610 A.2d 454 458 (1992). ' , Viewing the allegations of Plaintiffs, Complaint with respect to Defendant Goldwell, the Court is of the opinion that it cannot grant Defendant Goldwell,s motion to strike paragraph 20(e) of the Complaint. In the context of strict liability, the allegation that "It]he product was unreasonably dangerous for use by the general public"26 constitutes an averment of one of the elements of strict liability. Moreover., in this context, it is not unreasonable to assume that Defendant Goldwell had at least as much knowledge of the condition of its product as did Plaintiff. The averment will, instead of being stricken, be construed as qualified by the other allegations of the Complaint. On the other hand, we believe that paragraph 24(b) of 26 Plaintiffs, Complaint, paragraph 20(e). 9 NO. 2245 CIVIL 1993 Plaintiffs, Complaint, which pertains to the alleged negligence of Defendant Eclipse, is not sufficiently specific to inform Defendants of the basis upon which Plaintiffs are seeking recovery. Accordingly, this paragraph of Plaintiffs, Complaint will be stricken. QRDER OF COURT AND NOW, this A~day of April, 1994, upon consideration of Defendants, Preliminary Objections to Plaintiffs, Complaint, as well as the briefs and arguments on the matter, paragraph 24(b) of the Plaintiffs, Complaint is STRICKEN. All other relief requested by Defendants is DENIED. BY THE COURT, s J- Wesle Oler Jr. J. Wesley Oler, Jr., J. -------- Richard E. Freeburn, Esq. 600 North Second Street Harrisburg, PA 17101 Attorney for Plaintiffs Timothy I. Mark, Esq. Deborah A. Cavacini, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorneys for Defendants Eclipse, Ltd. and Stephen Van Voorhees 10 NO. 2245 CIVIL 1993 Philip D. Priore, Esq. 1845 Walnut Street Philadelphia, PA 19103 Attorney for Goldwell Cosmetics USA, Inc. : rc 11