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Home My WebLink About90-1157 Civil RANDOLPH Q. SABRIC, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ROXY,S CYCLES, INC., : KAWASAKi HEAVY INDUSTRIES, : LTD., a Japanese Corporation, : KAWASAKi HEAVY INDUSTRIES, : INC., a New York Corporation, : KAWASAKi MOTORS CORP., U.S.A.,: MOTO-PEAK PAULSON, U.S.A., : JOHN DOE(S) and/or MARY DOE(S)· t/a or d/b/a STARR,S HONDA : AND YAMAHA and STARR,S HONDA : AND STARR,S HONDA AND YAMAHA, : Defendants : NO. 1157 CIVIL 1990 DEFENDANT KAW _ JECTIONS OF ~uu~TRIES, LTD. BEFORE SHEELY p.j. and OLER j. - ORDER OF COURT AND NOW, this 2%~day of December, 1994, after Consideration of the parties, briefs and oral ar. um careful on the Defendant,s ,~A~= . g ents, a ruling m~=z~mlnary objection in the nature of a motion to dismiss the Amended Complaint is deferred, the parties are directed to take depositions, and they are requested to relist the matter for argument at such time as an appropriate record has been made· The Defendant,s motion to strike paragraphs 86-88 of the Amended Complaint is denied, and the Defendant,s motion to strike paragraphs 91-96 of the Amended Complaint is denied· BY THE COURT, John B. Dunn, Esq. 530 Main Street Stroudsburg, PA 18360 Attorney for Plaintiff Thomas Williams, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendants John Doe(s) and/or Mary Doe(s) t/a or d/b/a Starr's Honda and Yamaha and Starr's Honda Barry Kronthal, Esq. 101 Pine Street P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendant Roxy's Cycles, Inc. O. Daniel Ansa, Esq. Suite 1500, Two Penn Center Plaza Philadelphia, PA 19102 Attorney for Defendants Kawasaki Heavy Industries, Inc. and Kawasaki Motors Corp., U.S.A. : rc RANDOLPH Q. SABRIC, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : ROXY'S CYCLES, INC., : KAWASAKI HEAVY INDUSTRIES, : LTD., a Japanese Corporation, : KAWASAKI HEAVY INDUSTRIES, : INC., a New York Corporation, : KAWASAKI MOTORS CORP., U.S.A.,: MOTO-PEAK PAULSON, U.S.A., : JOHN DOE(S) and/or MARY DOE(S): t/a or d/b/a STARR'S HONDA : AND YAMAHA and STARR'S HONDA : AND STARR'S HONDA AND YAMAHA, : Defendants : NO. 1157 CIVIL 1990 IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT KAWASAKI HEAVY INDUSTRIES, LTD. BEFORE SHEELY, P.J., and OLER, J. OPINION and ORDER OF COURT Oler, J. The present case was commenced by the filing of a complaint requesting relief for injuries sustained through the use of an allegedly defective Kawasaki motorcycle. At issue at this time are preliminary objections of Defendant Kawasaki Heavy Industries, Ltd., to the Plaintiff's Amended Complaint. Statement of Facts The facts alleged by Plaintiff in the instant case may be summarized as follows: The Plaintiff, Randolph Q. Sabric, is the owner of a 1984 KDX80-C1 Kawasaki motorcycle.~ Defendant Kawasaki Heavy Industries, Ltd., is a Japanese corporation which participated in the design, manufacture, inspection and assembly of the Plaintiff's motorcycle.2 The Plaintiff's Amended Complaint alleges that, while the Plaintiff was operating the motorcycle in Amended Complaint, paragraph 9. Amended Complaint, paragraphs 3, 10. NO. 1157 CIVIL 1990 question, the motorcycle chain broke.3 The Amended Complaint further alleges that, due to defects in the motorcycle, it veered off of the roadway, ejecting the Plaintiff and causing him to strike his head on the ground.4 According to the Amended Complaint, the Plaintiff has sustained severe injuries as a result of being thrown from the motorcycle,s With regard to Defendant Kawasaki Heavy Industries, Ltd., the Plaintiff alleges that Kawasaki negligently designed, assembled, inspected, sold and manufactured the motorcycle in question.6 Additionally, the Plaintiff's Amended Complaint alleges that Kawasaki Heavy Industries, Ltd., was negligent in failing to warn the Plaintiff of the dangers involved in operating the motorcycle and in failing to properly label the motorcycle with warnings and operating instructions.7 In addition to the above claim for relief asserted under a negligence theory, the Plaintiff asserts a claim for relief under a theory of strict products liability in tort, alleging defects in the motorcycle arising from the absence of adequate warnings.8 In Amended Complaint, paragraph 13. Amended Complaint, paragraph 13. Amended Complaint, paragraphs 13-14. Amended Complaint, paragraphs 62(a)-(f). Amended Complaint, paragraph 62(g), (h). Amended Complaint, paragraphs 70-78. 2 · NO. 1157 CIVIL 1990 the alternative, the Plaintiff asserts that the motorcycle in question was defectively designed and that Kawasaki Heavy Industries, Ltd., as a supplier of the motorcycle, is liable for damages resulting from the defect.9 In addition to these claims, the Plaintiff's Amended Complaint alleges that Kawasaki Heavy Industries, Ltd., "expressly and impliedly warranted" that the motorcycle in question was "reasonably safe and fit for the purpose for which it was being used ... as well as warranting, impliedly and expressly, that [the motorcycle] was merchantable..~0 The Plaintiff also alleges that Kawasaki Heavy Industries, Ltd., breached these warranties and is liable for such breaches.~ Finally, the Plaintiff alleges that Kawasaki Heavy Industries, Ltd., represented "by conduct and literature that the subject motorcycle was safe for use.,,~2 The Plaintiff asserts that these representations were not true and that the Plaintiff relied on the misrepresentations in making his decision to purchase the motorcycle.~3 In response to the Amended Complaint, on June 27, 1991, 9 Amended Complaint, paragraph 86. Amended Complaint, paragraphs 86. Amended Complaint, paragraphs 87-88. Amended Complaint, paragraph 91. Amended Complaint, paragraph 92. 3 NO. 1157 CIVIL 1990 Defendant Kawasaki Heavy Industries, Ltd., filed preliminary objections. These preliminary objections consisted of a motion to dismiss for lack of personal jurisdiction and motions to strike various paragraphs of the complaint for failure to conform to the Pennsylvania Rules of Civil Procedure.TM With regard to the motion to dismiss for lack of personal jurisdiction, Kawasaki's preliminary objections allege that service of process was defective because the Plaintiff improperly mailed the complaint and notice via "U.S. First Class Certified Mail" to Kawasaki Heavy Industries (U.S.A.) in New York.~5 The preliminary objections assert that proper service of process upon a foreign corporation is governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter Hague Convention) 20 U.S.T. 361, et seq., TIAS 6638, and that the terms of the Hague Convention required the Plaintiff to send a translated copy of the Complaint and Notice to the Japanese Minister for Foreign Affairs.~6 The preliminary objections allege that service of process upon Kawasaki Heavy Industries, U.S.A., was not sufficient to satisfy the mandates of the Hague convention. In making this assertion, the Defendant states that Kawasaki Heavy Industries, U.S.A., and Preliminary Objections, paragraphs 14-18. Preliminary Objections, paragraph 4. Preliminary Objections, paragraphs 1, 9-10. 4 NO. 1157 CIVIL 1990 Kawasaki Heavy Industries, Ltd. (Japan), are separate and distinct corporations.~7 In addition, the preliminary objections allege that Kawasaki Heavy Industries, U.S.A., is not an agent authorized to accept service of process on behalf of Kawasaki Heavy Industries, Ltd., (Japan).~8 Finally, the preliminary objections allege that this improper service of process precludes this court from exercising personal jurisdiction over Kawasaki Heavy Industries, Ltd.TM With regard to the motions to strike, the preliminary objections allege that the averments of paragraphs 86-88 are violative of Pa. R.C.P. 1019(h) because these paragraphs refer to express warranties, but do not set forth the substance of the alleged warranties.20 Additionally, the preliminary objections allege that paragraphs 91-96 of the Amended Complaint fail to describe with sufficient specificity the misrepresentations allegedly made by Defendant Kawasaki Heavy Industries, Ltd., in violation of the particularity requirements of Pa. R.C.P. 1019(a).2~ These June 27, 1991, preliminary objections remained pending Preliminary Objections, paragraph 8. Preliminary Objections, paragraph 7. Preliminary Objections, paragraph 14. Preliminary Objections, paragraphs 15-16. Preliminary Objections, paragraphs 17-18. 5 NO. 1157 CIVIL 1990 through the disposition of a motion for summary judgment filed by Kawasaki Heavy Industries, Ltd., on Nov. 1, 1993. The motion for summary judgment again asserted a lack of personal jurisdiction arising from improper service of process.22 This motion for summary judgment was denied by an Order of the Court dated May 12, 1994.23 No opinion was issued upon the denial of the motion. Following this denial, on June 20, 1994, Kawasaki Heavy Industries, Ltd., listed the June 27, 1991, preliminary objections for oral argument. These objections have been argued and are now before the court for disposition.24 Motion for Summary Judgment, paragraph 10. Order of Court May 12, 1994. ~4 The Plaintiff's brief in opposition to these preliminary objections asserts that Kawasaki Heavy Industries, Ltd., may not seek to have decided on preliminary objections issues that have previously been decided in a motion for summary judgment. In support of this conclusion, the Plaintiff argues that under Pa. R.C.P. 1035 a motion for summary judgment is filed at the close of the pleadings. The Plaintiff contends that the Defendant's filing of a motion for summary judgment closed the pleadings and precluded further pleading in the form of preliminary objections. In addition, the Plaintiff argues that relitigation of previously decided issues is barred by the doctrine of res judicata. We are unable to read Pa. R.C.P. 1035 as prohibiting this court from addressing preliminary objections filed prior to a motion for summary judgment. In addition, we may not employ the doctrine of res judicata to preclude consideration of an is wh~re ~o opinion has been issued in re~ard to ~ ..... ~-- ~ue · . ~ ~,~= ~=v~ous oraer aha monzon and where zt can not be said that the prior order turned upon the zssue. See Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 345 A.2d 664 (1975). 6 NO. 1157 CIVIL 1990 Statement of Law Motion to Dismiss for Lack of Personal Jurisdictioj.. A motion to dismiss for lack of personal jurisdiction involves an inquiry into a court's authority over the person of the defendant. 2 Goodrich Amram S1017(b):3 at 247 (1991). The issue under such circumstances is "whether a defendant has been properly served with process so as to come within the jurisdiction of a court." Id. In making a determination on the issue of personal jurisdiction a reviewing court is required to consider evidence in the light most favorable to the non-moving party. Richard T. Byrnes Co. v. Buss Automation, Inc., 415 Pa. Super. 549, 609 A.2d 1360 (1992). The requirements for service of process upon foreign corporations are outlined in the Hague Convention. 20 U.S.T. 361 et seq., TIAS 6638; Gallagher v. Mazda Motor of Am., Inc., 781 F. Supp. 1079 (E.D. Pa. 1992), criticized on other grounds, Borschaw Hosp. & Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472 (D.P.R. 1992). With regard to the Defendant's allegation that the Plaintiff improperly served Kawasaki Heavy Industries, Ltd. (Japan), by mailing an untranslated copy of the complaint to Kawasaki Heavy Industries USA, we note that, under certain circumstances, the Hague Convention permits service on process of foreign corporations to be made upon American subsidiaries. Schlunk v. Volkswagenwerk Aktiengesellschaft, 503 N.E.2d 1045 (Ill. Ct. App. 1986), aff'd, 486 U.S. 694 (1988). In NO. 1157 CIVIL 1990 addressing this issue, the Appellate Court of Illinois held that the language of Article I of the Hague Convention does not preclude service of process upon an American subsidiary.25 Id. at 1048. Service of process upon a wholly owned domestic subsidiary may be deficient, however, if the subsidiary is not authorized to act as an agent of the foreign corporation. Cintron v. W & D Mach. Co., 440 A.2d 76 (N.J. Super. Ct. Law Div. 1981). In addressing the factual allegations set forth in the preliminary objections with regard to the status of Kawasaki Heavy Industries, U.S.A., as an authorized agent for service of process upon Kawasaki Heavy Industries, Ltd. (Japan), we note that where a preliminary objection is not accompanied by a notice to plead, newly-raised averments of fact contained in the preliminary objection are deemed denied. Greene v. Liebegrott, 235 Pa. Super. 475, 344 A.2d 501 (1975). With regard to issues of fact arising from the denial of averments contained in a preliminary objection we note that, where issues of fact are raised in a preliminary objection, the reviewing court may be required to take evidence. Del Valley Underwriting v. Williams & Sapp, Inc., 359 Pa. Super. 368, 518 A.2d 1280 (1986). Under such circumstances, it is not 25 Article I of the Hague Convention provides in pertinent part, "[t]he ... Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extra-judicial document for service abroad." Schlunk v. VolkswagenwerkAktiengesellschaft, 503 N.E.2d 1045, 1046 (Ill. App. Ct. 1986). 8 NO. 1157 CIVIL 1990 within the authority of the reviewing court to reach a determination based on its uninformed view of the facts in question. Id. at 374, 518 A.2d at 1283. Where a question of fact exists, the reviewing court must resolve the factual controversy "'by receiving evidence ... through interrogatories, depositions or an evidentiary hearing.,.' Id., quoting, Luitweiler v. Northchester Corp., 456 Pa. 530, 535, 319 A.2d 899, 902 (1974). "The failure of the parties to provide the evidence necessary for a proper determination of the issue does not excuse the court from further inquiry." Id. Motions to Strike. Pa. R.C.P. 1028(a)(2), provides that a motion to strike off a pleading is proper where the pleading fails to conform to a rule of court or where the pleading contains impertinent matter. With regard to a motion to strike for failure to conform to Pa. R.C.P. 1019(h), we note that Pa. R.C.P. 1019(h) provides: (1) that a pleading must state specifically whether any claim or defense set forth in the pleading is based upon a writing and, (2) where a claim or defense is based upon a writing, the writing must be attached. Pa. R.C.P. 1019(h). If a pleader remains silent as to whether an agreement is oral or in writing this silence gives rise to an inference that the agreement is oral. 2 Goodrich Am ram 2d ~1019(h): 3 at 357 (1991). With regard to a motion to strike for failure to comply with 9 NO. 1157 CIVIL 1990 the specificity requirements of Pa. R.C.P. 1019 we note that a motion to strike is not a substitute for a motion for a more specific pleading. "[F]ailure to conform to a rule of court contemplated by a preliminary objection in the nature of a motion to strike is not the mere failure adequately to plead sufficient facts .... .. Huguet v. Foodsales, Inc., 3 Pa. D. & C.3d 136, 138 (Chester Co. 1971). Additionally, a motion to strike must be overruled where it is substituted for a motion for a more specific pleading. McNally v. Eynoyer, 1 Pa. D. & C.4th 372, 375 (Lancaster Co. 1988); see also 2 Goodrich Am ram 2d 1017(b):12, at 256 (1991). ADDlication of Law to Facts With regard to the defendant's preliminary objection alleging lack of personal jurisdiction, the court finds that a ruling on this motion at this time would be improper. As the preliminary objections are not accompanied by a notice to plead, newly-raised factual allegations to the effect that Kawasaki Heavy Industries, U.S.A., was not an agent authorized to accept service of process on behalf of Kawasaki Heavy Industries, Ltd. (Japan), are deemed denied. As this denial creates a question of fact, it is not within the authority of this court to make a determination on the issue of personal jurisdiction without further fact finding. Accordingly, we will direct that the parties take depositions so that a proper determination may be made on this issue. With regard to the defendant's motion to strike paragraphs 86- 10 NO. 1157 CIVIL 1990 88 for failure to comply with the provisions of Pa. R.C.P. 1019(h), this court declines to strike these paragraphs. As the Plaintiff has remained silent as to whether the express warranty issuing from Kawasaki Heavy Industries, Ltd., was written or oral, a presumption arises that the agreement was oral. Proceeding from this presumption, we refuse to strike these paragraphs at this time. Finally, we address defendant's motion to strike paragraphs 91-96 of the Amended Complaint for failure to comply with the specificity requirements of Pa. R.C.P. 1019(a). With regard to this preliminary objection, we find that the Defendant has substituted a motion to strike for a motion for a more specific pleading. Accordingly, the defendant's motion to strike will be denied. ORDER OF COURT AND NOW, this ~day of December, 1994, after careful consideration of the parties' briefs and oral arguments, a ruling on the Defendant's preliminary objection in the nature of a motion to dismiss the Amended Complaint is deferred, the parties are directed to take depositions, and they are requested to relist the matter for argument at such time as an appropriate record has been made. The Defendant's motion to strike paragraphs 86-88 of the Amended Complaint is denied, and the Defendant's motion to strike paragraphs 91-96 of the Amended Complaint is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 11 NO. 1157 CIVIL 1990 John B. Dunn, Esq. 530 Main Street Stroudsburg, PA 18360 Attorney for Plaintiff Thomas Williams, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Defendants John Doe(s) and/or Mary Doe(s) t/a or d/b/a Starr's Honda and Yamaha and Starr's Honda Barry Kronthal, Esq. 101 Pine Street P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendant Roxy's Cycles, Inc. O. Daniel Ansa, Esq. Suite 1500, Two Penn Center Plaza Philadelphia, PA 19102 Attorney for Defendants Kawasaki Heavy Industries, Inc. and Kawasaki Motors Corp., U.S.A. : rc 12