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HomeMy WebLinkAbout91-701 CivilSANDRA CUTLER and HORACE P. CUTLER, Plaintiffs v. TEXACO REFINING and MARKETING EAST, INC., and SAUDI REFINING, INC., d/b/a STAR ENTERPRISE, Defendants IN RE: IN THE COURT CUMBERLAND C, ZOMMON PLEAS OF Y, PENNSYLVANIA CIVIL ACTION LAW NO. 701 CIVIL 1991 ORDER OF COURT AND NOW, thisSi6 day of August, 1992, upon donsideration of the Defendants' Preliminary Objections to the Plaintiffs' Amended Complaint, and for the reasons stated in the accom anying Opinion, the Defendants' Preliminary Objections are DISMISSED. Defendants are granted twenty days within which to file answers. BY THE COURT, J. George F. Douglas, Jr., Esq. DOUGLAS, DOUGLAS, & DOUGLAS 27 West High Street, P.O. Box 261 Carlisle, PA 17013 Counsel for Plaintiff Lloyd S. Markind, Esq. Byron R. Walker, Esq. ARNELLE & HASTIE One Penn Center, Suite 1550 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1823 Counsel for Defendant :rc SANDRA CUTLER and HORACE P. CUTLER, Plaintiffs M TEXACO REFINING and MARKETING EAST, INC., and SAUDI REFINING, INC., d/b/a STAR ENTERPRISE, Defendants Oler, J. IN THE COURT OF' COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 701 CIVIL 1991 ' PRELIMI a OPINION AND ORDER OF COURT At issue in the present case are preliminary i amended complaint alleging negligence filed by Sa Horace P. Cutler (Plaintiffs) against Texaco Refini East, Inc., and Saudi Refining, Inc., d/b/a ; (Defendants). The factual allegations as set Plaintiffs' Amended Complaint are as follows:' bjections to an idra Cutler and ig and Marketing tar Enterprise forth in the The Defendants operate a bulk fuel distribut on business for loading tank trucks with gasoline and fuel oil, a d this facility is located on Texaco Road, otherwise known as Township Route 583, in Mechanicsburg, Pennsylvania.' The Plaintiffs allege that the Defendants, as operators of this facility, knew that, if the loaded tank trucks were leaking gasoline or fuel oil upon leaving the distribution area, a dangerous condition would be c eated on Texaco ' In summarizing the facts based upon the Plaintiffs, Amended Complaint, the Court is not expressing any opinion as to the accuracy of the allegations. 2 Plaintiffs' Amended Complaint, paragraphs 2-4. No. 701 Civil 1991 Road. 3 Furthermore, the Plaintiffs allege that oa March 4, 1989, the employees of Texaco failed to inspect the loaded tank trucks for leaks before their departure from the distribution plant, resulting in large amounts of gasoline and fuel oil being spilled onto Texaco Road.° The Plaintiffs further aver that on March 4, 1989, while driving her Chevrolet sedan on Texaco Road, Plaintiff Sandra Cutler slid on an accumulation of gasoline and fuel oil located near the Defendants' distribution plant.' As a result of sliding on the deposit of gasoline and fuel oil, Ms. Cutler's dar veered off of the right side of Texaco Road and struck a util'ty pole, causing $2,300.00 in damage to the car, personal injuries to Ms. Cutler, and loss of consortium to Plaintiff Horace P. Cut er, her husband.' Plaintiffs' Amended Complaint further alle es that the said damages were due to the negligence of the Defendants, employees in failing to inspect the tank trucks before their departure from the distribution plant, which resulted in the deposi .' Compensatory 3 Plaintiffs' Amended Complaint, paragraph 4. ° Plaintiffs' Amended Complaint, paragraph 5. ' Plaintiffs' Amended Complaint, paragraphs 6, 7. 6 Plaintiffs' Amended Complaint, paragraph 8, 10-11, 15. ' Plaintiffs' Amended Complaint, paragraphs 4-5, 9-15. 2 No. 701 Civil 1991 damages in an amount in excess of $10,000.00 arerequested.' The Defendants have filed preliminary objections to the Plaintiffs' Amended Complaint. These preliminar objections are (a) a demurrer, or in the alternative, a motion to strike the complaint for failure to include a notice to defend,' and ( b ) a demurrer for failure to state a cause of action in negligence. For the reasons stated in this Opinion, the Defendants' preliminary objections must be dismissed. In determining whether to grant a preliminary objection in the form of a demurrer, "we accept as true all well -pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom." DeSantis v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770, 771 (1981).10 "To sustain a d murrey, we must find that (1) a cause of action [is] not properly made out in the complaint; and (2) the plaintiff[s] would be unable to state a proper claim even on a different statement of the acts." Nagy v. Bell Tel. Co. of Pennsylvania, 292 Pa. Super. 24, ], 436 A.2d 701, 8 Plaintiffs' Amended Complaint, ad damnum clause. 9 The Defendants' preliminary objection is based upon Pa. R.C.P. 1018.1(a), which requires that "[e]very co plaint filed by a plaintiff and every complaint filed by a defe 'dant against an additional defendant shall begin with a notice to defend in substantially the form in subdivision (b)." No iiotice to defend was included on Plaintiffs' initial Complaint. A'notice to plead in accordance with Pa. R.C.P. 1026 was included on the Amended Complaint. 10 See also Bickell v. Stein, 291 Pa. Super. X45, 435 A.2d 610 (1981). 3 No. 701 Civil 1991 703 (1981). Furthermore, "[a]ny doubt as to whether the demurrer should be sustained should be resolved in favor of refusing to enter it." Commonwealth v. Peggs Run Coal Co., 55 Pa. Commw. 312, 319, 423 A.2d 765, 769 (1980). Thus, in sustainilg a demurrer and dismissing a complaint, "it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff." DeSantis v. Swigart, 296 Pa. Supe'. 283, 286, 442 A.2d 770, 771 (1981). In their first preliminary objection, the De endants contend that because the Plaintiffs' Amended Complaint fa is to contain a notice to defend, pursuant to Pa. R.C.P. 1018-1(a), the pleading should be dismissed or stricken. The purpose of requiring a notice to defend is to protect an individual defendant's due process rights by informing "uneducated, uninformed and unsophisticated defendants" of their rights, the consequences of failure to act, and where legal services may be obtained. 2 G 'odrich Amram 2d §1018.1, at 296 (1991).11 Although the Defendant need not file a responsive pleading where the complaint fails to nclude a notice to defend," the lack of such notice does n t constitute a 11 The Attorney General proposed the Notice to Defend to cure the inadequacies of the "legalistic and uninformative nature of the 'Notice to Plead."' See 2 Goodrich Amram 2d, 51018.1, at 296 (1991). 12 Gerber v. Emes, 354 Pa. Super. 75, 511 41.2d 193 (1986). Pursuant to Pa. R.C.P. 1026, "no pleading need be iled unless the preceding pleading contains a notice to defend." 4 No. 701 Civil 1991 jurisdictional defect where the defendant is no "of the class intended to be protected by the rule," and the defendant has already made an appearance before the court. Wienckowski v. Widdoes, 3 D. & C.3d 435, 439 (Delaware Co. 977). Where a defendant has notice of the action filed agai'st him and has responded to the action, Pa. R.C.P. 1018.1 is 'not required to afford protection to the defendant's due process ights. Id. In the present case, by filing preliminary objection Defendants have indicated that they have received notice of the Plaintiffs, action, as well as the nature thereof; consequently, thE failure of the Plaintiffs' pleading to include a notice to defendis not a defect warranting a striking or dismissal of the Amende& Complaint. In their second preliminary objection, in the form of a demurrer for failure to state a cause of action in negligence, the Defendants contend that Count 1 of the Plaintiffs pleading fails to show a causal connection between the Defendants alleged acts or omission and the damages claimed by th Plaintiffs. 13 Additionally, the Defendants contend in their 'brief that the Plaintiffs' pleading fails to show a duty owed by the Defendants to the Plaintiffs." It is well established in this state that a cause of action in negligence consists of the following four elements: 13 Defendants' Preliminary Objections, at 3. 14 Defendants' Brief, at 4-6. 5 No. 701 Civil 1991 (1) a duty, or obligation, recognized y the law, requiring the actor to conform to a certain standard of conduct, fo the protection of others against unreasonable risks. (2) A failure on [the actor's] part to to the standard required. (3) A reasonably close causal co between the conduct and the resulting (4) Actual loss or damage resulting interests of another. Macina v. McAdams, 280 Pa. Super. 115, 120, 42 (1980) [citing Prosser, The Law of Torts §30, 1971)].15 We believe that the factual alle Plaintiffs' pleading, if assumed to be true fo demurrer, sufficiently set forth facts with f orm !ction Jury. o the A.2d 432, 434 t 143 (4th ed. ations of the purposes of a espect to the necessary elements of a cause of action in negligence to avoid a preemptive dismissal of the case. With respect to the element concerning duty, the Pennsylvania Supreme Court has stated that "one who is in possession of land adjacent or in close proximity to a public highw y must exercise reasonable care to avoid injury to the travelin public arising from unnecessarily dangerous conditions created by,him on the land, where the consequences of a failure to do so' are reasonably foreseeable." Hudson v. Grace, 348 Pa. 175, 180,'34 A.2d 498, 501 is See also Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Casey v. Geiger, 346 Pa. Super. 279, 499 A.2d 606 (1987). C No. 701 Civil 1991 (1943).16 Thus, in Hudson the Court upheld j�ry verdicts in wrongful death and survival actions against a possessor of land responsible for an emission of steam which obscur�d visibility on a nearby bridge, resulting in a collision that killed the decedent. In an opinion by Mr. Justice Stern, later Chief JuEltice, the Court stated that "[t]he likelihood of such an occurrence was so obvious that it was negligence on the part of the [Defendant] Company to persist in the maintenance of a condition which co stituted a more or less constant menace to human life." Id. at 181, 34 A.2d at 501. The rule in this regard has been succinctly stated as follows: An occupier of land adjoining or in close proximity to a public highway must condu t his business activities thereon and so use his premises as to avoid the creation of a hazardous condition which produces, or contributes to the occurrence of a motor vehicle accident on the roadway. ais i required to exercise a reasonable deg ee of care in the use of his premises so as nt to 16 Pennsylvania has adopted the rule set forth in Section 371 of the Restatement (Second) of Torts (1965): A possessor of land is subjec.1t to liability for physical harm to others o'tside of the land caused by an activity, carr ed on by him thereon which he realizes or should realize will involve an unreasonable risk of physical harm to them under the same conditions as though the activity were carried on at a neutral place. Hudson v. Grace, 348 Pa. 175, 180, 34 A.2d X98, 501 (1943) (adopting identical language of First Restatementl. 7 No. 701 Civil 1991 endanger the safety of the traveling public on the highway.17 In the present case, the Plaintiffs' Amended Complaint alleges that Defendants were aware of the potential flor a dangerous condition on the roadway adjacent to their facility caused by a leak of gasoline or fuel oil from truck traffic exiting their premises.18 In view of the foregoing authority as to duties of possessors of land in connection with the trav'ling public on adjacent roadways, it can not be said with certainty that Defendants' lack of duty to the Plaintiffs is so clear as to preclude recovery, as a matter of law, under any circumstances. With respect to the element of causation, it has been held that when an occupier of land fails to use reasonable care to avoid endangering passing motorists with business activities conducted on the premises, "[the occupant] is liable in damage for any injury that proximately results from his failure to obs rve this duty." Volpe v. Nobel, 29 Fayette L.J. 3, 5 (1965). In this regard, Plaintiffs' Amended Complaint alleges that the accident at issue occurred when Ms. Cutler's car, which was traveling within the speed limit, slid on gasoline and oil deposited on the public roadway through Defendants' negligence; it alleges that as a result 17 Volpe v. Nobel, 29 Fayette L.J. 3, 4-5 (1965); see also Westerman v. Stout, 25 Bucks Co. L. Rep. 303 (1974) (facility adjacent to highway held liable for injuries s stained in car accident resulting from fog created by facility's d7ooling system). is Plaintiffs' Amended Complaint, paragraph 8 No. 701 Civil 1991 of such negligence, the Plaintiffs were damaged a! "Whether a particular negligent act was the pr aforesaid.19 to cause of a Plaintiff's injury and damages is most frequent y a question of fact for a jury's determination. ,21 As a general rule, the question of legal causation "is not properly determined on preliminary objections. ,21 In view of the av rments in the Plaintiffs' Amended Complaint as to causation, it does not appear that a deviation from this general rule would be warranted in the present case. For the foregoing reasons, the following or ORDER OF COURT AND NOW, this SHi day of August, 1992, upon the Defendants' Preliminary Objections to the P1 Complaint, and for the reasons stated in the accon the Defendants' Preliminary Objections are DISMIS are granted twenty days within which to file answ BY THE COURT, s is entered: onsideration of ntiffs' Amended ying Opinion, . Defendants rs. Jr J. 19 Plaintiffs' Amended Complaint, paragraphs 5, 7, 9-15. 20 Long v. Lesher, 10 Lebanon Co. L.J. 169, 72 (1964). 21 Id. �J No. 701 Civil 1991 George F. Douglas, Jr., Esq. DOUGLAS, DOUGLAS, & DOUGLAS 27 West High Street, P.O. Box 261 Carlisle, PA 17013 Counsel for Plaintiff Lloyd S. Markind, Esq. Byron R. Walker, Esq. ARNELLE & HASTIE One Penn Center, Suite 1550 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1823 Counsel for Defendant :rc 10