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Home My WebLink About91-1559 CivilJOHN R. FENSTERMACHER, Plaintiff V. ROLLAND C. EBY, SR. and ROLLAND C. EBY, JR., Defendants . nVVWMnAMM0 3-3 IN THE COURT OFCOMMON PLEAS OF CUMBERLAND COUNTPENNSYLVANIA CIVIL ACTION - LAW NO. 1559 CIVIL 1 91 BEFORE HOFFER, BAYLEY and OLER, JJ ORDER OF COURT AND NOW, this 2�fM day of December, 1992, upon c isideration of defendants' preliminary objections, and of the briefs submitted thereon, the motion to strike paragraph 19(A) of the complaint and the demurrer to count II of the complaint are DENIED. Defendants' remaining preliminary objections are considered resolved as indicated in footnote 1 of the accompanying Opinion. Defendants are granted.twenty days within which to file an ans�7er. BY THE COURT, i J. i Richard E. Freeburn, Esq. 600 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff Michael D. Rentschler, Esq. 3211 North Front Street P.O. BOX 188 Harrisburg, PA 17108 Attorney for Defendants :rc JOHN R. FENSTERMACHER, IN THE COURT OFbMMON PLEAS OF Plaintiff CUMBERLAND COUNT, PENNSYLVANIA V. CIVIL ACTION - 4W ROLLAND C. EBY, SR. and ROLLAND C. EBY, JR., Defendants NO. 1559 CIVIL 1 91 G BEFORE HOFFER, BAYLEY and OLER, JJ. OPINION AND ORDER OF COURT OLER, J. At issue in this negligence action are pre objections to a complaint. The objections to be resolved' consist of a motion to strike and a demurrer. For the reasons stated in this Opinion, both the motion to strike and the demurrer.will be denied. This case arises out of a two -car accident at an! intersection. Plaintiff alleges that he was injured and his car 4amaged when a ' Several preliminary objections have been re parties, according to their briefs. Thus, a mot paragraph 19(F) of the complaint is mooted b, withdrawal of the paragraph [Plaintiff's Brief in' Preliminary Objections of Defendant to Complaint Brief in Support of Preliminary Objections to Plainti 21, and a motion to strike paragraph 19(1) of the mooted by plaintiff's withdrawal of the offending phr but not limited to,, [Plaintiff's Brief in Opposition Objections of Defendant to Complaint 2]; A motic specific pleading as to a second paragraph 19 of the withdrawn by defendants [Defendant's Brief in Preliminary Objections to Plaintiff's Complaint 2], as to count III of the complaint is withdrawn [Plaintiff's Brief in Opposition to Preliminary Defendant to Complaint 2; Defendant's Brief ii Preliminary Objections to Plaintiff's Complaint 2]. solved by the Lon to strike plaintiff's Opposition to ; Defendant's Ef's Complaint complaint is ise "including :o Preliminary in for a more complaint is Support of ind a demurrer :)y defendants )bjections of � Support of In addition, a preliminary objection argued n defendants' brief as to paragraph 19(L) of the complaint is not contained among the preliminary objections filed and must be disregarded. No. 1559 Civil 1991 car driven by defendant Rolland C. Eby, Jr., and entrusted to him by defendant Rolland C. Eby, Sr., failed to yield at a stop sign. Plaintiff avers further that at the time of the accident the defendant driver was under the influence of alcoho , which was a substantial contributing factor in causing the collision. In a count against the driver,' the complaint alleges in paragraph 19(A) that plaintiff's losses resulted fro the driver's negligence in that, inter alia: He was operating a motor vehicle in a reckless, careless and negligence [sic ] manner, in violation of the rules of the road and the laws of Pennsylvania .... i Various particulars of negligence are alleged in th� remainder of paragraph 19, including failure to yield the night of way, traveling too fast for conditions, violation of theliassured clear distance rule, failure to obey a stop sign, and opera ing under the influence. In a second count against the driver,' the com�laint alleges that the collision was caused by the "outrageous c�nduct" of the driver. Punitive damages are sought in the claim !for relief on this count. The defendants' motion to strike is directedl to paragraph 19(A). It is argued that in failing to specify thelj"rules of the ill ' Plaintiff's complaint, count I. 3 Plaintiff's complaint, count II. 2 No. 1559 Civil 1991 road and the laws of Pennsylvania" allegedly violated by the driver, the averment lacks the specificity required under Pennsylvania Rule of Civil Procedure 1019(a)° and comes within the scope of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).5 The defendants' demurrer is directed to count II. It is argued that the complaint fails to allege facts sufficient to show outrageous conduct, in the natute of reckless indifference, warranting punitive damages.' With respect to the lack of specificity as to alleged violations of "rules of the road and the laws of Pennsylvania," plaintiff responds that paragraph 19(A) "merely �ef ers to the allegations already contained in the Complaint ...i'.' At worst, Paragraph 19[A] constitutes repetition of what is otherwise stated in the Complaint Accepting this construction o� the pleading as binding upon plaintiff, the Court believes that t�e phrase need not be stricken. i "[I]f the quoted phrase had been the only statement of a The material facts on which a cause of action ... is based shall be stated in a concise and summary form."I Pa. R.C.P. 1019(a). i 5 Defendant's Brief in Support of PreliminarylObjections to Plaintiff's Complaint 5-7. ' Defendant's Brief in Support of PreliminarylObjections to Plaintiff's Complaint 7-12. ' Plaintiff's Brief in Opposition to Preliminary Objections to Complaint 4-5. 3 i No. 1559 Civil 1991 negligence alleged in plaintiff's complaint, ...I there would perhaps be some merit in defendant's position. However, a study of the complaint shows that these are (several] very specific acts of negligence alleged to have been committed by defendant and that actually the [challenged] statement is merely a summary of the [others] and would certainly be considered as surpl4sage. We do not believe that defendant is justified in askinO for a more specific complaint under these facts. It is also c]ear, however, that the allegations [challenged] will at the trial 0� this case be considered surplusage and cannot be taken advantage of by plaintiff as a catch-all in any attempt to introduce evidence 4ot covered by a proper allegation in the complaint." Ramsey v. Har�ett, 7 Pa. D. & C.2d 693, 695 (Mercer Co. 1956) (denial of motion for more specific pleading where complaint alleged negligence by defendant "in failing to abide by the proper rules of the road as set up by the legislature of Pennsylvania"). With respect to the sufficiency of factual laverments to support a claim for punitive damages, it has been said that "an allegation of DUI as a causal factor in bringing about a plaintiff's injuries entitles a plaintiff to a claim for punitive damages and overcomes the demurrer stage. The application of this reasoning in any case depends, of course, on the evidence and, if sufficient, is ultimately a question for the jury.!" Estate of Reigel v. Givler, 110 Dauphin Co. 193, 206 (1990). 4 No. 1559 Civil 1991 Based upon the foregoing, the following Orderi s entered: ORDER OF COURT AND NOW, this ;989 -,day of December, 1992, upon c nsideration of defendants' preliminary objections, and of the briefs submitted thereon, the motion to strike paragraph 19(A) of th� complaint and the demurrer to count II of the complaint are DENIED. Defendants' remaining preliminary objections are considered resolved as indicated in footnote 1 of the accompanying Opinio�. Defendants are granted twenty days within which to file an answer. Richard E. Freeburn, Esq. 600 North Second Street Harrisburg, PA 17101 Attorney for Plaintiff Michael D. Rentschler, Esq. 3211 North Front Street P.O. Box 188 Harrisburg, PA 17108 Attorney for Defendants : rc BY THE COURT, 5