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HomeMy WebLinkAbout2001-4485 Civil (2) SUSAN MEASE, Individually, and as Guardian and Administratrix of the Estate ofDA VID COLEBAUGH, a Minor, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW KENNETH BORWEGEN : and CAROLYN BORWEGEN, Individually, and as Parents, Guardians and Guardians ad Litem of JAMES BORWEGEN, a Minor, UNITED BEHA VORIAL HEALTH, BRUCE (last name unknown), c/o UNITED BEHA VORIAL HEALTH, ALl AHMED, M.D., ALAN ROSENTHAL, M.D., SCHERING-PLOUGH HEALTHCARE PRODUCTS, RITE AID OF PENNSYLVANIA, INC., (incorrectly captioned as RITE AID PHARMACY) and ITHACA GUN COMP ANY, Defendants NO. 01-4485 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF KENNETH BORWEGEN AND CAROLYN BORWEGEN TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., May 19,2006. In this civil case, the mother of a boy who was fatally shot by another boy has, in her individual capacity and as administratrix of her son's estate, sued numerous defendants. If the allegations of the complaint are credited, Defendants include the shooter's HMO, 1 an employee of the HMO with a first name of Bruce,2 a physician named Ahmed who treated the shooter for a mental problem,3 a second physician, named Rosenthal, who also treated the shooter for a mental problem,4 the manufacturer of an over-the-counter cold medication which the shooter allegedly used,5 the pharmacy chain which sold the medication,6 the manufacturer of the gun used in the shooting,7 and the parents of the shooter, Kenneth Borwegen and Carolyn Borwegen.8 For disposition at this time are preliminary objections filed by Defendants Kenneth Borwegen and Carolyn Borwegen to Plaintiff s complaint. The preliminary objections are in the nature of a demurrer to the extent that Plaintiff s claim is based upon a theory of respondeat superior or vicarious liability,9 a demurrer to the extent that Plaintiff s claim is based upon a theory that Defendants personally shot Plaintiff s decedent,lO a demurrer to the extent that Plaintiff s claim is based upon a theory of negligent infliction of emotional distress, 11 and a motion to strike or require more specificity with respect to certain general allegations of negligence and negligence per se 1 Plaintiffs Complaint, Ct. IV, filed January 23,2002 (hereinafter Plaintiffs Complaint). 2 Plaintiffs Complaint, Ct. V. 3 Plaintiffs Complaint, Ct. VI. 4 Plaintiffs Complaint, Ct. VII. 5 Plaintiffs Complaint, Cts. VIII-IX, XI, XIII. 6 Plaintiffs Complaint, Cts. X, XII. 7 Plaintiffs Complaint, XIV-XVII. 8 Plaintiffs Complaint, Cts. I-III. 9 Preliminary Objections of Kenneth Borwegen and Carolyn Borwegen to Plaintiffs' Complaint, paras. 14-19, filed February 25,2002 (hereinafter Defendants' preliminary objections, para. ~. 10 Defendants' preliminary objections, paras. 20-21. 11 Defendants' preliminary objections, paras. 22-24. 2 pursuant to Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).12 Oral argument on the preliminary objections was held on March 29,2006. For the reasons stated in this opinion the preliminary objections will be sustained. STATEMENT OF FACTS Plaintiff s complaint with respect to Defendants Kenneth Borwegen and Carolyn Borwegen may be summarized as follows: Plaintiff is the mother and administratrix of the estate of David 1. Colebaugh, who died at the age of 14 on January 23, 2000, after being shot by l6-year-old James Borwegen.13 Defendants Kenneth Borwegen and Carolyn Borwegen were the parents of the shooter, James Borwegen.14 Defendants Kenneth Borwegen and Carolyn Borwegen were negligent in terms of their a. Fail[ure] to properly supervise and control James Borwegen, their son; b. Fail[ure] to properly supervise, inspect and control their son James Borwegen and other under age individuals present in their home and on their premises at the time of this incident; c. Fail[ure] to instruct James Borwegen in the safe operation of the weapon in question; d. Negligently storing the weapon in question under circumstances where they knew or reasonably should have known that their minor child, James Borwegen, was likely to obtain same and to negligently use same and thereby cause an unreasonable risk of harm to others; e. Failure to store the weapon with an appropriate trigger lock which would have prevented the negligent use of said weapon by their minor son which they knew or reasonably should have known their minor son was likely to negligently use and thereby create an unreasonable risk of harm to others; f. Negligently and trusting constructively a dangerous instrumentality to James Borwegen, their son under certain circumstances were (sic) they knew or should have reasonably known that their minor child James Borwegen was likely to negligently use the same and thereby create an unreasonable risk of harm to others; g. Respondeat Superior; h. Negligently discharging a firearm capable afflicting (sic) serious bodily injury and death in the direction of a human person, i.e. David 1. Colebaugh; 12 Defendants' preliminary objections, paras. 25-27. 13 Plaintiffs Complaint, paras. 1-3, 6, 17. 14 Plaintiffs Complaint, para. 6. 3 i. Violating the statute rules and ordinances of the Commonwealth of Pennsylvania, County of Cumberland, Municipality of Mechanicsburg pertaining to storage and discharge of firearms, curfews for minors, and any other applicable law under the circumstances; j. Failure to exercise due care and caution under the circumstances; k. Being otherwise negligent and careless in fact and at law; I. And such other negligent, reckless and careless acts and/or omissions as may be discovered during the pendency of this case.1S The complaint alleges further that as a result of Defendants' negligence Plaintiff s decedent was shot by James Borwegen, resulting in various compensable damages, 16 including emotional distress suffered by third parties such as Plaintiff Susan Mease.17 The complaint does not suggest that Ms. Mease or any other third party received any physical impact in the incident, or was a bystander to it. Paragraphs 2l(i), (j), (k), and (l) and 33(i), (j), (k), and (l) are the subjects of Defendants' Connor objections. DISCUSSION Respondeat superior; vicarious liability. "The mere relation of parent and child imposes no liability upon the parent for the torts of the child." JH. ex rei. Hoffman v. Pellak, 764 A.2d 64, 66 (Pa. Super. Ct. 2000) (citations omitted). As Plaintiffs counsel acknowledged at oral argument, a claim of vicarious liability, represented in the complaint by reference to the doctrine of respondeat superior, could not be sustained against Defendant's Kenneth Borwegen and Carolyn Borwegen on the basis of their parental status. Accordingly, Defendants' demurrer to this aspect of Plaintiff s claim will be sustained. Reference in complaint to shooting by Defendants Kenneth Borwegen and Carolyn Borwegen. The allegation in Plaintiff s complaint that Defendants Kenneth Borwegen and Carolyn Borwegen had personally shot Plaintiff s decedent was factually incompatible with the balance of the complaint and, as acknowledged by Plaintiff s 15 Plaintiffs Complaint, paras. 21, 33. 16 Plaintiffs Complaint, paras. 22-29, 34-41, 44. 17 Plaintiffs Complaint, paras. 42-44. 4 counsel at oral argument, was obviously an inadvertence. Accordingly, this averment will be stricken. Negligent infliction of emotional distress. To the extent that an independent tort of negligent infliction of emotional distress exists in Pennsylvania, its utilization by third parties to an incident is generally dependent upon their being encompassed by the physical impact rule or the bystander rule. Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa. Super. 667, 678-9, 674 A.2d 1130, 1135 (1996). As conceded by Plaintiff s counsel at oral argument, the facts in the present case will not support such a claim, and the count of Plaintiff s complaint purporting to state a cause of action in this regard against Defendants Kenneth Borwegen and Carolyn Borwegen will be dismissed. Connor-type objections. Under Pennsylvania Rule of Civil Procedure 1028(a)(3), a preliminary objection may be filed on the ground of "insufficient specificity in a pleading. " In Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the Pennsylvania Supreme Court held that the use of the language "otherwise failing to use due care and caution under the circumstances" enabled the plaintiff to ultimately amend the complaint to specify "the other ways in which [Defendant] was negligent in [that] case." Id at 310, 461 A.2d at 602. The court elaborated upon this holding by noting that "[i]f [defendant] did not know how it 'otherwise fail[ed] to use due care and caution under the circumstances,' 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 [Plaintiffs] complaint." Id at 311 n.3, 461 A.2d at 602 n.3. In the present case, as conceded by Plaintiff s counsel at oral argument, the allegations that Defendants were negligent in terms of their "[f]ailure to exercise due care and caution under the circumstances," their "[b ]eing otherwise negligent and careless in fact and at law," and their committing "such other negligent, reckless and careless acts and/or omissions as may be discovered during the pendency of this case,,,18 were properly 18 Plaintiffs Complaint, paras. 21 G), (k), and (1),33 G), (k), and (1). 5 subject to Connor objections. Accordingly, these allegations will be stricken from Plaintiff s complaint as they relate to Defendants Kenneth Borwegen and Carolyn Borwegen. In addition, in the court's view, the allegation that Defendants "violat[ ed] the statute rules and ordinances of the Commonwealth of Pennsylvania, County of Cumberland, Municipality of Mechanicsburg pertaining to storage and discharge of firearms, curfews for minors, and any other applicable law under the circumstances"19 is so general as to warrant a direction that the statutes, rules and ordinances being relied upon by Plaintiff as bases for her causes of action be more particularly identified. F or the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 19th day of May, 2006, upon consideration of the preliminary objections filed by Defendants Kenneth Borwegen and Carolyn Borwegen to Plaintiff s complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff s claim against Defendants is dismissed to the extent that it is based upon a theory of vicarious liability for the actions of their son, James Borwegen; 2. To the extent that paragraphs 2l(h) and 33(h) of Plaintiffs complaint aver that Defendants Kenneth Borwegen and Carolyn Borwegen personally shot Plaintiff s decedent they are stricken; 3. Count III of Plaintiff s complaint, relating to negligent infliction of emotional distress, is dismissed; 4. Paragraphs 2l(j), (k), and (l), and 33(j), (k), and (l) are stricken as being overly general allegations of negligence; and 5. Defendants' motion for a more specific pleading with respect to paragraphs 2l(i) and 33(i), relating to alleged violations of statutes, 19 Plaintiffs Complaint, paras. 21 (i), 33 (i). 6 rules and ordinances by Defendants Kenneth Borwegen and Carolyn Borwegen, is granted, and Plaintiff is afforded a period of twenty days from the date of this order to file a more specific pleading in that regard. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 1. Michael Farrell, Esq. 718 Arch Street Suite 402S Philadelphia, P A 19106 Attorney for Plaintiff Jefferson 1. Shipman, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants Kenneth Borwegen and Carolyn Borwegen, Individually and as Parents, Guardians and Guardians ad Litem of James Borwegen, a Minor Jeffrey A. Lutsky, Esq. Kimberly A. Hendrix, Esq. Stradley, Ronan, Stevens & Young, LLP 2600 One Commerce Square Philadelphia, P A 19103 Attorneys for Defendants United Behavioral Health and Bruce (Last Name Unknown) 7 Andrew H. Briggs, Esq. Post & Schell 1857 William Penn Way Lancaster, P A 17603 Attorneys for Defendant Ali Ahmed, M.D. B. Craig Black, Esq. Edwin A.D. Schwartz, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Attorneys for Defendant David Rosenthal, M.D. Thomas B. Schmidt, III, Esq. Alexandra Makosky, Esq. 200 One Keystone Plaza North Front and Market Streets P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Defendant Schering-Plough Health Care Products, Inc., and Defendant Rite Aid of Pennsylvania, Inc. Michael T. Hollister, Esq. The Belgravia 1811 Chestnut Street 6th Floor Philadelphia, P A 19103 Attorney for Defendant Ithaca Gun Company 8 9 SUSAN MEASE, Individually, and as Guardian and Administratrix of the Estate ofDA VID COLEBAUGH, a Minor, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW KENNETH BORWEGEN : and CAROLYN BORWEGEN, Individually, and as Parents, Guardians and Guardians ad Litem of JAMES BORWEGEN, a Minor, UNITED BEHA VORIAL HEALTH, BRUCE (last name unknown), c/o UNITED BEHA VORIAL HEALTH, ALl AHMED, M.D., ALAN ROSENTHAL, M.D., SCHERING-PLOUGH HEALTHCARE PRODUCTS, RITE AID OF PENNSYLVANIA, INC., (incorrectly captioned as RITE AID PHARMACY) and ITHACA GUN COMP ANY, Defendants NO. 01-4485 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF KENNETH BORWEGEN AND CAROLYN BORWEGEN TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 19th day of May, 2006, upon consideration of the preliminary objections filed by Defendants Kenneth Borwegen and Carolyn Borwegen to Plaintiff s complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff s claim against Defendants is dismissed to the extent that it is based upon a theory of vicarious liability for the actions of their son, James Borwegen; 2. To the extent that paragraphs 2l(h) and 33(h) of Plaintiffs complaint aver that Defendants Kenneth Borwegen and Carolyn Borwegen personally shot Plaintiff s decedent they are stricken; 3. Count III of Plaintiff s complaint, relating to negligent infliction of emotional distress, is dismissed; 4. Paragraphs 2l(j), (k), and (l), and 33(j), (k), and (l) are stricken as being overly general allegations of negligence; and 5. Defendants' motion for a more specific pleading with respect to paragraphs 2l(i) and 33(i), relating to alleged violations of statutes, rules and ordinances by Defendants Kenneth Borwegen and Carolyn Borwegen, is granted, and Plaintiff is afforded a period of twenty days from the date of this order to file a more specific pleading in that regard. BY THE COURT, 1. Wesley Oler, Jr., 1. 1. Michael Farrell, Esq. 718 Arch Street Suite 402S Philadelphia, P A 19106 Attorney for Plaintiff Jefferson 1. Shipman, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants Kenneth Borwegen and Carolyn Borwegen, Individually and as Parents, Guardians and Guardians ad Litem of James Borwegen, a Minor Jeffrey A. Lutsky, Esq. Kimberly A. Hendrix, Esq. Stradley, Ronan, Stevens & Young, LLP 2600 One Commerce Square Philadelphia, P A 19103 Attorneys for Defendants United Behavioral Health and Bruce (Last Name Unknown) Andrew H. Briggs, Esq. Post & Schell 1857 William Penn Way Lancaster, P A 17603 Attorneys for Defendant Ali Ahmed, M.D. B. Craig Black, Esq. Edwin A.D. Schwartz, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Attorneys for Defendant David Rosenthal, M.D. 13 Thomas B. Schmidt, III, Esq. Alexandra Makosky, Esq. 200 One Keystone Plaza North Front and Market Streets P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Defendant Schering-Plough Health Care Products, Inc., and Defendant Rite Aid of Pennsylvania, Inc. Michael T. Hollister, Esq. The Belgravia 1811 Chestnut Street 6th Floor Philadelphia, P A 19103 Attorney for Defendant Ithaca Gun Company