Loading...
HomeMy WebLinkAbout2013-6350 ALICE GOLDEN, : IN THE COURT OF COMMON PLEAS Plaintiff, : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION - LAW GRANGE INSURANCE COMPANY, : Defendant. : No. 13-6350 Civil Term IN RE: PLAINTIFF’S PRELIMINARY OBJECTIONS TO DEFENDANT’S NEW MATTER BEFORE HESS, P.J., MASLAND, J. and PLACEY, J. OPINION and ORDER Before the court are the preliminary objections of the Plaintiff, Alice Golden (hereinafter “Golden”), in response to affirmative defenses that the Defendant, Grange Insurance Company (hereinafter “Grange”), raised in the Defendant' s Answer with New Matter to Plaintiff's Complaint. (Pl.’s Prelim. Objections to Def.’s New Matter, filed Dec. 16, 2013). Plaintiff’s Complaint contains a single count for breach of contract. (Compl. Submitted by Pl., filed Oct. 29, 2013). In response, the Defendant has raised numerous affirmative defenses. (Def.’s Answer with New Matter to Pl.’s Compl., filed Feb. 20, 2014). Plaintiff contends that the Defendant has not asserted any factual allegations supporting those defenses and, therefore, preliminarily objects pursuant to Pa.R.C.P. 1028(a)(2) and Pa.R.C.P. 1028(a)(3). (Pl.’s Prelim. Objections to Def.’s New Matter, filed Dec. 16, 2013). A brief summary of the underlying facts is as follows: Golden is an adult individual residing at 15 Briar Lane, Camp Hill, Cumberland County, Pennsylvania. (Compl. Submitted by Pl., ¶ 1). Grange is foreign corporation, with an address of P.O. Box 18229, Columbus, Ohio, that regularly writes and sells automobile insurance policies in Cumberland County, Pennsylvania. (Compl. Submitted by Pl., ¶ 2). On June 1, 2011, Golden was involved in an automobile accident on the Carlisle Pike in Hampden Township, Cumberland County, Pennsylvania. (Compl. Submitted by Pl., ¶ 6). At the time of the accident, Golden was a passenger in an automobile owned and operated by her husband. (Compl. Submitted by Pl., ¶ 3). Golden’s vehicle was the penultimate vehicle in a sequence of five. (Compl. Submitted by Pl., ¶ 7). The first vehicle began to slow; the second vehicle did not react in time and struck the first vehicle from behind. (Compl. Submitted by Pl., ¶ 8). The third vehicle was able to stop but was struck from behind by Golden’s vehicle. (Compl. Submitted by Pl., ¶ 8). It is averred that the fifth vehicle, which Golden has identified as the tortfeasor, hit Golden’s vehicle with enough force that Golden’s vehicle was thrust into the third vehicle, causing the third vehicle to hit the back of the second vehicle. (Compl. Submitted by Pl., ¶ 9). It is averred that Golden sustained multiple injuries as a direct and proximate cause of this incident. (Compl. Submitted by Pl., ¶ 10). At the time of the collision, the tortfeasor was insured with a policy that provided bodily injury liability protection up to $50,000. (Compl. Submitted by Pl., ¶ 3). Golden avers that the $50,000 limit is inadequate to compensate her for the damages she sustained as a result of the collision. (Compl. Submitted by Pl., ¶ 17). Additionally, Golden had an insurance policy with Grange that provided for underinsured motorist coverage in the amount of $50,000. (Compl. Submitted by Pl., ¶ ¶ 18, 19). Golden and Grange have not been able to come to an agreement as to the amount of benefits due under the underinsured motorist policy. The instant action has resulted, with the Golden filing a sole count for breach of contract. (Compl. Submitted by Pl., ¶ 25). In response, Grange has filed new matter raising numerous affirmative defenses and theories as to why Golden’s claim should be limited, including res judicata, statute of limitations, estoppel, and unjust enrichment. Before the Court now are Plaintiff’s Preliminary Objections 2 under Pa.R.C.P. 1028(a)(2) and Pa.R.C.P. 1028(a)(3). (Pl.’s Prelim. Objections to Def.’s New Matter, filed Dec. 16, 2013). Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including the “(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous and impertinent matter; (3) insufficient specificity in a pleading….” Pa.R.C.P. 1028(a)(2), (3). In considering preliminary objections, “all well-pleaded allegations and material facts averred…, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Phila., 584 A.2d 403, 407 (Pa. Cmwlth. 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 Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995). An appellate court will only reverse a trial court’s ruling on a preliminary objection when “there has been an error of law or abuse of discretion.” Excavation Technologies, Inc. v. Columbia Gas Co. of Pa., 936 A.2d 111, 113 (Pa. Super. 2007). With these principles in mind, we first consider Golden’s assertion that paragraphs 39, 41, 43, 44, 47, 49, 50, 51, 57, and 59 of Grange' s New Matter should be stricken 1 for failure to aver any supporting factual allegations. 1 The subject paragraphs read as follows: 38. Plaintiff's Complaint fails to meet the required specificity in pleading by citing a particular statutory section that Defendant is alleged to have violated. 39. Plaintiff’s Complaint is barred by the doctrine of res judicata. 41. Plaintiff is under a common law and contractual duty to act in good faith with respect to the underinsured motorist benefits claim and in meeting contractual obligations under the applicable Policy, and any breach of that duty, including non-cooperation and delays in providing information, may restrict or eliminate Plaintiffs rights to recover damages as alleged 43. Plaintiff’s claims are barred to the extent that they are unconstitutional and/ or violates the due process protection codified in either the Pennsylvania or United States Constitutions, particularly in view of: a) the absence of any standards for those person or entities purportedly subject to it; b) the absence of any standards for trial or appellate courts to exercise judicial review of awards entered pursuant it; c) insofar as Plaintiff' s claims for damages there under is based upon alleged acts and/ or omissions which involve non-parties to this action and/ or which have no nexus to the insurance claim involved herein; 3 Pennsylvania is a fact pleading jurisdiction. Foster v. UPMC South Side Hosp., 2 A.3d 655, 666 (Pa. Super. 2010) (quoting Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008)). “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a) (emphasis added). “[A] pleading must not only apprise the opposing party of the asserted claim, ‘it must also formulate the issues by summarizing those facts essential to support the claim.’” CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1057 (Pa. Super. 1999) (quoting Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992). 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 incapable of precise measurement.” United Refrigerator Co. v. Appplebaum, 189 A.2d 253, 255 (Pa. 1963). Relating to defenses as have been raised in this case: The term “New Matter” (under which heading Rule 1030 requires affirmative defenses to be pled) embraces matters of confession and avoidance as understood at common law, and has been defined as matter which, taking all the allegations of the complaint to be true, is nevertheless a defense to the action. New matter d) insofar as any award of extra-contractual and/or damages is based upon alleged act and/ or omission which involved non-parties to this action and/ or which have not nexus to the insurance claim involved herein; and/ or e) insofar as any award of extra-contractual and/ or damages is excessive and violative of the United States and/ or Pennsylvania constitutions. 44. Plaintiff’s claims may be barred and/ or limited by the applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law 75 Pa.C. S. A. § 1701, et seq. and any amendments thereto (" MVFRL"). 47. Plaintiff’s claims may be barred and/or limited by the applicable statute of limitations. 49. Plaintiff’s claims may be barred and/ or limited by the doctrines of waiver and/ or estoppel. 50. Plaintiff’s claims may be barred and/ or limited by the doctrine of unjust enrichment. 51. Plaintiff’s claims may be barred and/ or limited by virtue of the terms of any release entered into by Plaintiff. 57. To the extent that discovery reveals that Plaintiff has failed to obtain suitable employment within her physical limitations and/ or to follow medical advice, and/ or fail to heed follow-up medical advice on care, and/ or to attend recommended follow-up treatment care, Grange Insurance company asserts that Plaintiff has failed to mitigate her damages and that Plaintiff’s failure to mitigate damages is a complete or partial bar to Plaintiff's claim for damages. 59. Grange Insurance Company claims all benefits, protections, thresholds, requirements and immunities afforded by the MVFRL, 75 Pa. C. S. A. § 1701 et seq. any and all amendments thereto. (Def.’s Answer with New Matter to Pl.’s Compl., ¶ ¶ 38, 39, 41, 43, 44, 47, 49, 50, 51, 57, 59). 4 ignores what the adverse party has averred and adds new facts to the legal dispute on the theory that such new facts dispose of any claim or claims which the adverse party had asserted in his pleading. Coldren v. Peterman, 763 A.2d 905, 908 (Pa. Super. 2000) (quotations and citations omitted). In Coldren, the Superior Court further provided, “(a)n affirmative defense is distinguished from a denial of facts which make up the plaintiff's cause of action in that a defense will require the averment of facts extrinsic to the plaintiff's claim for relief.” Id. As a final point, we note that, except for assumption of the risk, comparative negligence and contributory negligence, affirmative defenses not raised in new matter in accordance with Pa.R.C.P. 1030 are waived pursuant to Pa.R.C.P. 1032. Iorfida v. Mary Robert Realty Co., Inc., 539 A.2d 383, 386 (Pa. Super. 1988). Here, mindful of the potential for waiver, Grange sought to preserve several possible defenses by raising them in the new matter. However, Grange has not elaborated on how or why those defenses may be applicable. We are considerate of the tension created between the limited amount of time defendants have to respond to a complaint and the risk of waiving affirmative defenses that are not raised. However, given the broad discretion that trial courts are given in determining the required amount of detail for an averment under Pa.R.C.P. 1019(a), courts are able to contend with such concerns—as many trial courts already have. In Connor v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983), the Pennsylvania Supreme Court allowed a complaint to be modified after the statute of limitations had run since, instead of changing the original cause of action, the amendment amplified it. Id. at 602. In an often cited footnote, the Supreme Court quoted the original paragraph of the complaint that was allowed to be elaborated upon and stated that the defendant “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 5 appellants' complaint.” Id. 602, n.3. Since the suggestion that vague allegations should be met with a preliminary objection, several common pleas cases have cited Connor in ultimately deciding that defendants must plead the material facts upon which their affirmative defense is based. See Donegal Mut. Ins. Co. v. Stroker, 15 Pa. D. & C.5th 245 (2010), Lee v. Deener, 76 Pa. D. & C.4th 181 (2005), Fitzgerald v. Kaguyutan, 18 Pa. D. & C.4th 1 (1993), Allen v. Lipson, 8 Pa. D. & C.4th 390 (1990), Rivera v. Arbor Place Inc., 4 Pa. D. & C.4th 44 (1989). We are in agreement with those courts. The language of Pa.R.C.P. 1019 is clear that material facts which are the basis for a defense shall be stated in a concise and summary form. While the rule does not require great detail be provided, it seems obvious that one must do more than list possible defenses by name. Moreover, requiring that defendants aver the material facts that give rise to an affirmative defense is consistent with the Superior Court’s position in Coldren that an affirmative defense “adds new facts…” and “will require the averment of facts extrinsic to the plaintiff’s claim for relief.” Coldren, 763 A.2d at 908. Here, Grange has not provided a single fact that is the basis for any of the supposed defenses. Accordingly, paragraphs 39, 41, 43, 44, 47, 49, 50, 51, 57, and 59 of Grange's New Matter will be stricken. However, because there may be a factual basis for one or more affirmative defenses, we will grant leave to amend. See Harley Davidson Motor Co., Inc. v. Hartman, 442 A.2d 284 (Pa. Super. 1982). Golden also argues that paragraphs 38, 39, 43, 47, 49, and 50 should be stricken as impertinent. In light of the foregoing, only the challenge to paragraph 38 remains relevant. If a plaintiff files a preliminary objection in the nature of a motion to strike the new matter for impertinence the lower court must “determine whether the facts averred in the new 6 matter [are] legally relevant to [the plaintiffs] cause or whether they could have any influence in leading to the result.” Jeffries v. Hoffman, 207 A.2d 774, 775 (Pa. 1965). Here, paragraph 38 states, “Plaintiff’s Complaint fails to meet the required specificity in pleadings by citing a particular statutory section that the Defendant is alleged to have violated.” (Def.’s Answer with New Matter to Pl.’s Compl., ¶ 38). Aside from the irony of raising a specificity argument, paragraph 38 is irrelevant since the Plaintiff seeks no statutory cause of action, only one for breach of contract. Therefore, paragraph 38 is stricken as impertinent. ORDER st AND NOW, this 21 day of March, 2014, upon consideration of Plaintiff’s Preliminary Objections to Defendant’s New Matter, and after oral argument, heard February 14, 2014, the preliminary objections of Plaintiff are SUSTAINED. For reasons contained in the opinion filed of even date herewith, Paragraphs 38, 39, 41, 43, 44, 47, 49, 50, 51, 57, and 59 of Defendant’s Answer with New Matter to Plaintiff’s Complaint are stricken. The Defendant is given 20 days to file an amended pleading, if so desired, to plead any applicable defenses consistent with the accompanying opinion. BY THE COURT, ___________________________ Kevin A. Hess, P.J. David H. Rosenburg, Esq. 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Attorney for the Plaintiff Thomas S. Lee, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for the Defendant 7 ALICE GOLDEN, : IN THE COURT OF COMMON PLEAS Plaintiff, : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION - LAW GRANGE INSURANCE COMPANY, : Defendant. : No. 13-6350 Civil Term IN RE: PLAINTIFF’S PRELIMINARY OBJECTIONS TO DEFENDANT’S NEW MATTER BEFORE HESS, P.J., MASLAND, J. and PLACEY, J. ORDER st AND NOW, this 21 day of March, 2014, upon consideration of Plaintiff’s Preliminary Objections to Defendant’s New Matter, and after oral argument, heard February 14, 2014, the preliminary objections of Plaintiff are SUSTAINED. For reasons contained in the opinion filed of even date herewith, Paragraphs 38, 39, 41, 43, 44, 47, 49, 50, 51, 57, and 59 of Defendant’s Answer with New Matter to Plaintiff’s Complaint are stricken. The Defendant is given 20 days to file an amended pleading, if so desired, to plead any applicable defenses consistent with the accompanying opinion. BY THE COURT, ___________________________ Kevin A. Hess, P.J. David H. Rosenburg, Esq. 1300 Linglestown Road, Suite 2 Harrisburg, PA 17110 Attorney for the Plaintiff Thomas S. Lee, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for the Defendant