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Home My WebLink About2012-4518 LIBERTY MUTUAL INSURANCE CO. : IN THE COURT OF COMMON PLEAS a/s/o LOWELL LATSHAW, : OF CUMBERLAND COUNTY, Plaintiff, : PENNSYLVANIA : v. : : CIVIL ACTION - LAW R.E.H. MECHANICAL; RONALD : HOWARD; PENTAIR INC. d/b/a PENTAIR : WATER, INC. a/k/a FLECK CO.; : No. 12-4518 Civil Term QUALITY WATER TREATMENT, : Defendants. : IN RE: PENTAIR, INC.’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, P.J., MASLAND, J. and PLACEY, J. OPINION and ORDER Before the court are the preliminary objections of Defendant Pentair, Inc. d/b/a Pentair Water, Inc. a/k/a Fleck Co. (hereinafter “Pentair”) to an Amended Complaint filed by Plaintiff Liberty Mutual Insurance Co. (hereinafter “Liberty”) as subrogee of Lowell Latshaw. (Prelim. Objs. to Pl.’s Am. Compl., filed Mar. 6, 2013). Plaintiff’s Amended Complaint contains two counts: at Count I, a negligence claim against Defendant R.E.H. Mechanical (hereinafter “R.E.H.”) and Ronald Howard and at Count II, a products liability claim against Quality Water Treatment (hereinafter “QWT”) and Pentair. (Pl.’s Am. Compl., filed Feb. 27, 2013). Pentair objects to Count II’s strict products liability claim as factually and legally insufficient. (Prelim. Objs. to Pl.’s First Am. Compl., filed Mar. 6, 2013). Pentair also preliminary objects to a purported negligence claim in Count II as factually insufficient, legally insufficient, and for failure to conform to law or rule of court. (Prelim. Objs. to Pl.’s First Am. Compl., filed Mar. 6, 2013). This case was initiated by a Praecipe for Writ of Summons on July 20, 2012. (Praec. Writ Summs., filed July 20, 2012). The Praecipe for Writ of Summons was followed by the Plaintiff’s initial Complaint. (Compl., filed Dec. 21, 2012). Pentair preliminary objected to that initial Complaint. (Prelim. Objs. to Pl.’s Compl., filed Feb. 8, 2013). As result, Liberty filed an Amended Complaint. (Am. Compl., filed Feb. 27, 2013). Before us now are Pentair’s Preliminary Objections to the Plaintiff’s Amended Complaint. (Prelim. Objs. to Pl.’s Am. Compl., filed Mar. 6, 2013). Plaintiff’s Amended Complaint may be summarized as follows: Liberty is an insurance company with its principal place of business at 5050 Tilghman Street, Suite 200, Allentown, Pennsylvania 18104. (Am. Compl., ¶ 1). At all times relevant, Lowell Latshaw owned a condominium at Devonshire Square Condominiums, 13 Devonshire Square, Mechanicsburg, Pennsylvania 17050. (Am. Compl., ¶ 6). Liberty provided insurance to Mr. Latshaw at all times relevant, and Liberty is acting as subrogee in the proceedings before us. (Am. Compl., ¶ ¶ 22, 24). Defendant QWT, located at 15431 Wilkshire Court, Houston, Texas 77069, is a company in the water softener business and regularly conducts business in Cumberland County. (Am. Compl., ¶ 2). In September of 2010, Mr. Latshaw purchased a water softener from Defendant QWT. (Am. Compl., ¶ ¶ 7, 11). The water softener contained a control valve and drain line, “both designed, constructed, assembled and/ or sold by” Defendant Pentair, located at 5500 Wayzata Boulevard, Suite 800, Minneapolis, Minnesota 55416. (Am. Compl., ¶ ¶ 3, 13). R.E.H., located at 647 Alexander Spring Road, Carlisle, Pennsylvania 17015, is a company which provides plumbing services. (Am. Compl., ¶ 5). Defendant Ronald Howard is an adult individual who does business as R.E.H. Mechanical at the business address of 647 Alexander Spring Road, Carlisle, Pennsylvania 17015. (Am. Compl., ¶ 4). Defendant Howard, on behalf 2 of R.E.H., was hired to install the water softener system at Mr. Latshaw’s condominium, and the water softener was installed on December 10, 2010. (Am. Compl., ¶ ¶ 8, 14). On December 24, 2010, the water softener failed and discharged water. (Am. Compl., ¶ 15). As a result, floors, walls, rugs, and other property were damaged. (Am. Compl., ¶ 15). Plaintiff avers that it has been determined that the control valve that Pentair provided “was, or became, damaged and/or faulty when it was assembled” by Pentair. (Am. Compl., ¶ 16). Likewise, Plaintiff contends that the drain line was “unreliable and/or faulty,” thus, causing the loss. (Am. Compl., 18). Plaintiff further avers that poor quality control by QWT allowed the faulty control valve and drain line to be incorporated into the water softener. (Am. Compl., ¶ ¶ 17, 19). Additionally, it is alleged that Defendants Howard and R.E.H. jointly caused the loss by improperly installing the water softener since: (i) they failed to install the water softener’s retaining ring or failed to notice its absence, and (ii) they failed to properly test the water softener. (Am. Compl., ¶ 20). Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be filed by any party to any pleading on several limited 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 3 96, 101 (2008) (internal citations omitted). In considering preliminary objections, “all well- pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 136 Pa. Cmwlth. 629, 638, 584 A.2d 403, 407 (1990). However, 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. Cmwlth. 1995). Initially, Pentair seeks the dismissal of Count II’s products liability claim based on two grounds: (i) insufficient specificity, and (ii) legal insufficiency (demurrer). Pennsylvania is a fact pleading jurisdiction. Foster v. UPMC South Side Hosp., 2 A.3d 655, 666 (Pa. Super. 2010) (quoting Lerner v. Lerner, 2008 Pa. Super 183, ¶ 12, 954 A.2d 1229, 1235). The plaintiff must state the material facts on which a cause of action is based “in a concise and summary form.” Pa.R.C.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, ¶11, 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 opposing party will know how to prepare his defense. Commonwealth ex rel. Pappert v. Pharmaceutical Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth. 2005). “Rule 1019(a) is satisfied if allegations in a pleading . . . contain averments of all facts the plaintiff will eventually have to prove in order to recover . . . .” Com., Dept. of Transp. v. Shipley Humble Oil Co., 29 Pa. Cmwlth. 171, 173, 370 A.2d 438, 439 (1977). However, preliminary objections relating to the 4 sufficiency of a pleading are not available as a tool to compel an opposing party to plead evidence and should be denied when items pleaded generally are readily available in discovery. Commonwealth. ex rel Milk Marketing Bd. v. Sunnybrook Dairies, Inc., 29 Pa. Cmwlth. 210, 214, 370 A.2d 765, 768 (1977). Lastly, our Supreme Court has held that “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). Comparably, a demurrer is “an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted.” Lerner, 2008 Pa. Super. at ¶ 11, 954 A.2d at 1234 (internal citations omitted). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh v. Newman, 330 Pa. Super. 216, 220, 479 A.2d 517, 519 (1984). Our Supreme Court has adopted § 402A of the Restatement (Second) of Torts as the law of Pennsylvania. Webb v. Zern., 422 Pa. 424, 427, 220 A.2d 853, 854 (1966). Section 402A states: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. 5 Restatement (Second) of Torts § 402A (1965). Accordingly, success on a strict liability claim requires the plaintiff to prove that (1) the product was defective, and (2) the defect was the proximate cause of the harm. French v. Commonwealth. Assocs., Inc., 2009 Pa. Super. 152, ¶12, 980 A.2d 623, 632. (citing Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 696 A.2d 1169 (1997)). “There are three types of defective conditions which may give rise to strict liability: manufacturing defect, design defect, and failure to warn defect.” Id. The Superior Court has provided direction on preliminary objections regarding products liability claims in D’Antona v. Hampton Grinding and Wheel Company, Inc., et al., 225 Pa. Super. 120, 310 A.2d 307 (1973). In D’Antona, the plaintiff was injured when a grinding wheel, a component of a grinding wheel machine, exploded. Id. at 121, 310 A.2d 308. On a theory of strict liability, the plaintiff filed suit against the manufacturer of the grinding wheel and the manufacturer of the grinding wheel machine. Id. at 122, 310 A.2d 308. Both defendants demurred to the complaint. Id. at 123, 310 A.2d 309. A demurrer was sustained as to the machine manufacturer and overruled as to the wheel manufacturer; that is to say, the trial court determined the complaint sufficiently set forth a cause of action against the wheel manufacturer but not the machine manufacturer. Id. Before ultimately holding that the plaintiff’s complaint was sufficient to sustain a claim against machine manufacturer, the Superior Court found that the trial court was correct in holding that the complaint was sufficient as to the wheel manufacturer. Id. In doing so, the Superior Court affirmed the trial courts reliance on MacDougall v. Ford Motor Co., 214 Pa. Super. 384, 257 A.2d 676 (1968) (overruled on other grounds in REM Coal Co., v. Clark Equipment Co., 386 Pa. Super. 401, 563 A.2d 128 (1989)). MacDougall stated, “the occurrence of a malfunction of machinery in the absence of abnormal use and reasonable secondary causes is evidence of a ‘defective condition’ within the meaning of § 402A. . . .” Id. 6 at 391, 257 A.2d 680. Furthermore, courts have been consistent in recognizing a malfunction itself as circumstantial evidence of a defective condition. See Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 329, 319 A.2d 914, 920 (1974) (a plaintiff’s hand in strict liability case will be strengthened by evidence of a specific defect but such evidence is not necessary to take the case to a jury); Ducko v. Chrysler Motors Corp., 433 Pa. Super. 47, 50, 639 A.2d 1204, 1204 (1994) (when party relies on malfunction of product to prove that it was defective, testimony identifying exact nature of defect is not essential). Applying the foregoing, Plaintiff has sufficiently plead a cause of action for strict products liability. Plaintiff avers that the water softener failed, discharged water, and that property was damaged. Plaintiff contends that the loss was due to the control valve which was damaged and/or faulty when it was assembled by Pentair and that the loss was caused by an unreliable and/or faulty drain line. No other components have been alleged as defective. Plaintiff avers what components of the water softener malfunctioned even though they do not make allegations as to the exact nature of the defect. However, at least at this initial stage, when all reasonable inferences must be accepted, the Plaintiff need only allege that the product malfunctioned. Further evidence will be available in discovery, and, when formulating a defense, Pentair is, in any event, in a superior position of expertise concerning the control valve and drain line. Pentair further objects to a purported negligence claim in Count II as factually and legally insufficient. Additionally, Pentair preliminary objects to any such claim for failure to conform to law or rule of court. This additional preliminary objection is based on Pennsylvania Rule of Civil Procedure 1020(a), which states: “The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and 7 any special damage related thereto shall be stated in a separate count containing a demand for relief.” Pa.R.C.P. 1020(a). To the extent that Count II contains a cause of action for negligence, Pentair’s preliminary objections are sustained. Paragraph 47 of Plaintiff’s original complaint stated, “[t]he Defendant’s defective design, manufacturing defects and inadequate warnings relating to the water softener and its components were acts that amount to willful, wanton, and/or reckless conduct by the Defendants.” (Compl., filed Dec. 21, 2012 ) (emphasis added). Pentair preliminary objected to that original complaint, including the language used in paragraph 47. As a result, in their Amended Complaint, Plaintiff modified paragraph 47 to state, “[t]he Defendant’s defective design, manufacturing defects and inadequate warnings relating to the water softener and its components were acts that amount to negligent conduct by the Defendants.” (Am. Compl., ¶ 47) (emphasis added). However, in Plaintiff’s Response in Opposition to Preliminary Objections of Defendant Pentair, Inc., the Plaintiff denies any intention to make such a claim. (Pl.’s Resp. Opp’n. Prelim. Objs., ¶ ¶ 21, 26, 28). Furthermore, at oral argument on June 21, 2013, Plaintiff represented that Count II is only meant to contain a claim for strict products liability. ORDER th AND NOW, this 26 day of July, 2013, upon consideration of Defendant’s Preliminary Objections to Plaintiff’s Amended Complaint, and after oral argument, heard June 21, 2013, the Preliminary Objections of Defendant are SUSTAINED in part and OVERRULED in part. For reasons contained in the opinion filed of even date herewith, Defendant’s preliminary objections to Plaintiff’s Count II, purported negligence claim, are hereby SUSTAINED. 8 AND FURTHER, Defendant’s preliminary objections to Plaintiff’s Count II, strict products liability claim, are hereby OVERRULED. BY THE COURT, ___________________________ Kevin A. Hess, P.J. Paul J. Hennessy, Esquire 142 West Market Street West Chester, PA 19382 For the Plaintiff Mark E. Gebauer, Esquire th 213 Market Street, 8 Floor P.O. Box 1248 Harrisburg, PA 17108-1248 For Defendant Pentair, Inc. 9 LIBERTY MUTUAL INSURANCE CO. : IN THE COURT OF COMMON PLEAS a/s/o LOWELL LATSHAW, : OF CUMBERLAND COUNTY, Plaintiff, : PENNSYLVANIA : v. : : CIVIL ACTION – LAW R.E.H. MECHANICAL; RONALD : HOWARD; PENTAIR INC. d/b/a PENTAIR : WATER, INC. a/k/a FLECK CO.; : No. 12-4518 Civil Term QUALITY WATER TREATMENT, : Defendants. : IN RE: PENTAIR, INC.’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, P.J., MASLAND, J. and PLACEY, J. ORDER th AND NOW, this 26 day of July, 2013, upon consideration of Defendant’s Preliminary Objections to Plaintiff’s Amended Complaint, and after oral argument, heard June 21, 2013, the Preliminary Objections of Defendant are SUSTAINED in part and OVERRULED in part. For reasons contained in the opinion filed of even date herewith, Defendant’s preliminary objections to Plaintiff’s Count II, purported negligence claim, are hereby SUSTAINED. AND FURTHER, Defendant’s preliminary objections to Plaintiff’s Count II, strict products liability claim, are hereby OVERRULED. BY THE COURT, ___________________________ Kevin A. Hess, P.J. Paul J. Hennessy, Esquire 142 West Market Street West Chester, PA 19382 For the Plaintiff Mark E. Gebauer, Esquire th 213 Market Street, 8 Floor P.O. Box 1248 Harrisburg, PA 17108-1248 For Defendant Pentair, Inc. 11