Judges Opinions Public Notices, — April 6, 2022 9:06 — 0 Comments

Public Notices, April 6, 2022

Volume 59, No. 36

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF TRUST ADMINISTRATION

CHANGE OF NAME

 

TABLE OF CONTENTS

Dwayne Heisler, v. John Harvey and Curtis Electric & Refrigeration, Inc.

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF ELLIS CHARLES BARNETT a/k/a ELLIS C. BARNETT, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael A. Barnett, Executor

 

Megan C. Huff, Esquire

Nestico Druby, P.C.

1135 East Chocolate Avenue, Suite 300

Hershey, PA 17033

 

ESTATE OF MARY L. WENTZEL, late of Newmanstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Julie A. Huber, Executrix

42 N. Sheridan Road

Newmanstown, PA 17073

 

David R. Warner Jr., Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JAMES G. O’SHEA a/k/a JAMES GERARD O’SHEA, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

James G. O’Shea, Jr., Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF SCOTT W. GARLOFF, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Co-Administrators.

 

Tyler D. Garloff, Administrator

 

Marq R. Garloff, Administrator

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF WENDY K. ADAMS, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Wayne K. Katzaman, Executor

 

Keith D. Wagner, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF DEBORAH A. ZIPP a/k/a DEBORAH ARLENE ZIPP, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John Schick, Executor

 

Estate of Deborah A. Zipp

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF EDITH L. GRESS, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Dawn L. Koch, Executrix

 

  1. Richard Young, Jr., Esquire

1248 West Main Street

Ephrata, PA 17522

 

ESTATE OF JOHN H. BOWMAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fred Bowman, Executor

 

Marci S. Miller, Attorney

Gibbel Kraybill & Hess LLP

P.O. Box 5349

Lancaster, PA 17606

 

ESTATE OF JOAN M. MILLER, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Daniel L. Miller and David M. Miller, Co-Executors

 

Estate of Joan M. Miller

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF MURIEL C. MCDONALD, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Erin M. Hamrick, Executor

 

Estate of Muriel C. McDonald

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF JEFFREY L. SMITH a/k/a JEFFERY LYNN SMITH a/k/a JEFFREY LYNN SMITH, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF JEANNE B. DAUBERT, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Suzanne Daubert Fox, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BETTY LOU WHITE a/k/a BETTY L. WHITE, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Cynthia Lou Templin, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF RUTH E. OLIVER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Steven N. Oliver, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF DONNA E. LONG, a/k/a DONNA ELAINE LONG, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Richard L. Ober, Executor

 

Keith D. Wagner, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF KENNETH A. PATRICK, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Cynthia A. Patrick, Executrix

410 South Goodwill Street

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF PATRICIA MARTIN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased 9/4/11. Letters of Administration have been granted to the undersigned Administratrix.

 

Renee Roloff-Stroud, Administratrix

 

Kristen L. Behrens, Esquire

Dilworth Paxson LLP

457 Haddonfield Rd., Ste. 700

Cherry Hill, NJ 08002

 

ESTATE OF RAY M. FUNCK a/k/a RAY MARLIN FUNCK, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Ruth Ann Funck, Executrix

425 Gravel Hill Road

Palmyra, PA 17078

 

Butler Law Firm

1007 Mumma Road, Suite 101

Lemoyne, PA 17043

 

ESTATE OF RONALD L. WILLIAMS, a/k/a RONALD LEE WILLIAMS, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Mary L. Miller, Administratrix

 

John M. Zimmerman, Esquire, Attorney for the Estate

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF DONALD R. BLAUCH, late of North Annville Township, Lebanon County, Pennsylvania, deceased February 16, 2022. Letters Testamentary have been granted to the undersigned Executrix.

 

Jacquelyn R. Buffenmeyer, Executrix

725 Steelstown Road

Annville, PA  17003

 

Neil W. Yahn, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA  17033

(717) 533-3280

 

ESTATE OF JOHN D. MILLER a/k/a JOHN D. MILLER, JR., late of Richland Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John D. Miller, III, Executor

  1. O. Box 136

Newmanstown, PA 17073

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

THIRD PUBLICATION

 

ESTATE OF HAROLD E. HOSTETTER, late of East Hanover Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David E. Hostetter, Executor

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF LUCILLE E. MILLER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Chris Heffelfinger, Co-Executor

 

Barry Scaringi, Co-Executor

 

  1. Richard Young, Jr., Esquire

1248 West Main Street

Ephrata, PA 17522

 

ESTATE OF EVELYN L. LONGENECKER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Joshua Haulman, Executor

52 Tiffany Lane

Lebanon, PA 17046

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JEANNE E. GARRETT, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Thomas G. Garrett, Executor

6033 Colebrook Rd.

Palmyra, PA 17078

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LILLIE R. SPURLOCK a/k/a LILLIAN ROMAINE SPURLOCK, late of Palmyra Brough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

James S. Spurlock, Administrator

 

Keith D. Wagner, Esquire

  1. O. Box 323

Palmyra, PA 17078

Attorney.

 

ESTATE OF GEORGE A. LOEPER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Lawrence J. Loeper, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ROBERTA J. LANDER a/k/a ROBERTA JEAN LANDER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia L. Ressler, Executrix

 

Jeffrey C. Goss, Esquire

Brubaker Connaughton Goss & Lucarelli LLC

480 New Holland Avenue, Suite 6205

Lancaster, PA 17602

Attorneys

 

ESTATE OF GERALD J. EDRIS, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Victoria Ann Hubbard, Executrix

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

Attorney for the Estate

 

ESTATE OF KATHARINA BOYER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Charles M. Boyer, II, Executor

627 Texter Mountain Road

Robesonia, PA 19551

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF KAREN MARIE MASSER a/k/a KAREN M. HARTMAN MASSER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Aaron Hartman, Executor

3780 Seabiscuit Way

Harrisburg, PA 17110

 

Scott L Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF BRIAN KISCADDEN a/k/a BRIAN S. KISCADDEN, late of East Hanover Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Colleen Delong, Administratrix

536 Picasso Ave

Palm Bay, FL 32907

 

Bret Wiest, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF FERN M. YINGST, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Tracy L. Yingst, Executor

 

Kevin M. Dugan, Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

Attorney

 

ESTATE OF JANE A. SHUEY, late of Annville Township, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Edward J. Hostetter, Co-Executor

 

Jay Robert Shuey, Co-Executor

 

Gerald J. Brinser, Esquire

  1. O. Box 323

Palmyra, PA 17078

Attorney

 

ESTATE OF EVELYN V. KAYLOR, late of City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Sherry L. Kaylor, Executor

 

Estate of Evelyn V. Kaylor

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ANGELA CALI, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Salvatore Cali, Co-Executor

 

Paolina Cali, Co-Executor

 

Jeffrey F. Arnold, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, Pa. 17042

 

ESTATE OF DOROTHY F. SMITH, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Co-Administrators.

 

Kelly R. Shenk, Co-Administrator

 

Dale R. Smith, Co-Administrator

 

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MILTON MARINKOV, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Aundrea Marinkov, Executrix

 

Loreen M. Burkett, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF BETTY J. PARSON, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kim M. Backenstoes, Executor

 

Estate of Betty J. Parson

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF MARIAN F. BROMMER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Kathleen Wenrich, Executor

470 Donna Drive

Jonestown, PA 17038

 

Walter B. Gress, IV, Executor

220 Mountville Drive

Lebanon, PA 17046

 

Patrick M. Reb, Esquire

547 South 10th Street

Lebanon, PA 17042

 

ESTATE OF PAULINE G. ZELLERS, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Marlene J. Dechert, Executor

644 Mountain Drive

Fredericksburg, PA 17026

 

Amanda Jo Dechert Pedersen, Executor

652 Mountain Drive

Fredericksburg, PA 17026

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

NOTICE OF TRUST ADMINISTRATION of the Helen D. Beard a/k/a Helen Dorothy Beard Living Trust dated November 30, 1995 (the “Trust”), following the death of Helen D. Beard a/k/a Helen Dorothy Beard, late of Lebanon Township, Lebanon County, Pennsylvania on February 4, 2022 (the “Decedent”), is hereby given.

 

All persons having claims against the Decedent or Trust are requested to present them for settlement and all persons indebted to the Decedent or Trust are requested to make immediate payment to:

 

Richard Keith Myhren, Trustee

8 Cove Point Road

Toms River, NJ 08753

Or to:

Christa M. Aplin, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA 17033

(717) 533-3280

 

CHANGE OF NAME

 

NOTICE IS HEREBY GIVEN that a Petition has been filed in the Court of Common Pleas of

Lebanon County, Pennsylvania, seeking to change the name of Emelia Ayele Amma-Tagoe to

Emelia Ayele Armah Nettey. A hearing on the Petition will be held on April 12, 2022 at 3:30

o’clock pm, in Courtroom No. 2, at the Lebanon County Courthouse, 400 S. 8th St.,

Lebanon, Pennsylvania, at which time any persons interested may attend and show cause, if

any, why the Petition should not be granted.

 

Emelia Avele Amma-Taeoe

Petitioner

1729 Summit St.

Address

Lebanon. PA 17042

Address

717-769-9376

Telephone number

 

Gerald S. Robinson, Esquire

P.O.Box 5320

Harrisburg, PA 17110

 

 

 

JUDGE’S OPINION

Dwayne Heisler, v. John Harvey and Curtis Electric & Refrigeration, Inc.

 

Civil Action-Law-Motor Vehicle Accident-Negligence-Discovery-Subpoena of Nonparty-Documentation-Insurance Carrier of Defendant-Relevancy-Burden upon Deponent-Trade Secrets

 

Dwayne Heisler (“Plaintiff”) brought an action in negligence based upon a motor vehicle accident that occurred on March 18, 2019 involving a vehicle operated by John Harvey (“Harvey”) in the capacity of his employment with Curtis Electric & Refrigeration, Inc. (“Curtis Electric”).  Harvey filed a Motion to Quash a Subpoena that Plaintiff gave notice of intent to serve upon Donegal Insurance Group, which is Harvey’s automobile insurance carrier, on the basis that it is overbroad, unreasonably burdensome, not reasonably calculated to lead to the discovery of relevant evidence and duplicative of prior discovery requests.

 

  1. Pa.R.C.P. Rule 4003.1(a) permits discovery regarding any matter not privileged that is relevant to the subject matter of the pending litigation.

 

  1. Any party may serve a subpoena upon a nonparty to produce and to permit the requesting party to inspect and to copy any designated documents that constitute or contain discoverable material that are in the possession, control or custody of the nonparty.

 

  1. The trial court is responsible for overseeing discovery and has broad discretion in determining the appropriate measures necessary to ensure adequate and prompt discovery.

 

  1. A trial court may limit discovery when it is sought in bad faith, it would cause unreasonable annoyance, embarrassment, oppression, burden or expense, it is beyond the score of discovery, it is prohibited by any law barring disclosure of mediation communications and documents or it would require the undertaking of unreasonable investigation by the party upon whom the subpoena is issued.

 

  1. The question raised by a party’s objection to a discovery request, including a subpoena, is whether the information sought is relevant, reasonable and not privileged.

 

  1. Relevancy depends upon the nature and the facts of each individual case with any doubts to be resolved in favor of relevancy.

 

  1. The sought documentation is relevant where the subpoena requests documentation pertaining only to the accident involving Harvey and the associated claim and not all documents related to Harvey and his policy.

 

  1. The subpoena is not overbroad where information about the nature of the injuries and damages sustained by Harvey may assist in reconstruction of the accident even if Harvey has not counterclaimed against Plaintiff.

 

  1. The burden of producing the requested documentation that is relevant to Plaintiff’s causes of action is not unreasonable in light of the fact that Donegal Insurance Group has a right to request reimbursement for the reasonable costs of complying with the subpoena, Harvey failed to establish the existence of a threatened trade secret protected from disclosure and any duplication of documents through a request for production of documents filed by Plaintiff and the subpoena upon Donegal Insurance Group may be resolved through the cooperation of the parties.

 

L.C.C.C.P. No. 2021-00273, Opinion by Charles T. Jones, Jr., Judge, August 25, 2021.

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

DWAYNE HEISLER                             :

Plaintiff,                                                 :

:

  1. :    Docket No.: 2021-00273

:

JOHN HARVEY                                    :

and                                               :

CURTIS ELECTRIC &                           :

REFRIGERATION, INC.,                      :

Defendants.                                            :

 

ORDER OF COURT

AND NOW, to wit, this 25th day of August, 2021, upon Defendant John Harvey’s Motion to Quash Subpoena, Briefs of the Parties, and careful consideration of the record, Defendant’s Motion to Quash the Subpoena intended to be served upon Donegal Insurance Group is hereby DENIED.

Plaintiff is hereby directed that he may serve on Donegal Insurance Group the proposed subpoena attached to the Notice of Intent to Serve previously served on the Defendants, or he may serve Notice of Intent to Serve a new subpoena in light of the Court’s June 7, 2021 Order granting Plaintiff’s Motion to Compel Plaintiff’s requests for documents and things from Defendant Harvey and the Court’s August 25, 2021 Order overruling Defendant Harvey’s Preliminary Objections.

BY THE COURT:

 

____________________________, J.

          CHARLES T. JONES, JR.

CTJ/cbm

cc:  Michael F. Socha, Esq. // 1860 Charter Lane, Suite 201, Lancaster, PA 17601-2604

Kevin P. Foley, Esq. // 538 Spruce Street, PO Box 1108, Scranton, PA 18501-1108

Curtis Electric & Refrigeration, Inc. // 239 East Kercher Ave., Lebanon, PA 17046

Caitlin Mininger, Esq./Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

DWAYNE HEISLER                             :

Plaintiff,                                                 :

:

  1. :    Docket No.: 2021-00273

:

JOHN HARVEY                                    :

and                                               :

CURTIS ELECTRIC &                           :

REFRIGERATION, INC.,                      :

Defendants.                                            :

 

APPEARANCES:

 

Kevin P. Foley, Esquire                                                  For Plaintiff

 

Michael F. Socha, Esquire                                              For Defendant

 

OPINION BY JONES, JR., J. (August 25, 2021):

Before the Court is Defendant John Harvey’s Motion to Quash Subpoena targeted at the subpoena Dwayne Heisler(“Plaintiff”) served a notice of intent to serve upon Donegal Insurance Group. Because there are no objections to the subpoena required by Pa. R.C.P. 4009.21(c) to be filed of record, the Court will treat the Motion to Quash Subpoena as constituting the objections of John Harvey (“Defendant”) under Rule 4009.21(c) and a motion for a ruling and entry of an appropriate order pursuant to Rule 4009.21(d)(1).

Factual and Procedural History

Plaintiff initiated this action against Defendants John Harvey and Curtis Electric & Refrigeration, Inc. by Writ of Summons on March 15, 2021. According to the Complaint filed on March 22, 2015, the action arises out of an alleged motor vehicle accident that occurred on March 18, 2019 on Mt. Zion Road in Lebanon County, near the intersection with St. Jacobs Drive. (Complaint ¶¶ 4–6.) The Complaint alleges that while Plaintiff drove southward on Mt. Zion Road Defendant Harvey was driving northward, and that Defendant Harvey, apparently attempting a left-hand turn onto St. Jacobs Drive, crossed into the southbound lane and struck Plaintiff’s car head-on. (Complaint ¶¶ 4–6). Plaintiff alleges Defendant Harvey negligently caused the collision and is liable for Plaintiff’s injuries as a result, and that Defendant Curtis Electric & Refrigeration is vicariously liable for Plaintiff’s injuries as Defendant Harvey’s employer.

On April 16, 2021, Defendant John Harvey filed Preliminary Objections to Count I and a Brief in Support thereof. That matter was listed for the June 2021 Term of Argument Court. Plaintiff filed a Brief in Opposition to Defendant’s Preliminary Objections on May 14, 2021. The disposition of Defendant’s Preliminary Objections is the subject of a separate Order and Opinion of this Court.

On May 17, 2021, Defendant John Harvey filed a Motion to Quash Subpoena (“Def.’s Mot. Quash”) of the subpoena Plaintiff intends to serve on Donegal Insurance Group (“Donegal”), arguing that the subpoena should be quashed because it is not reasonably calculated to lead to discovery of relevant evidence, is overbroad, unreasonably burdensome, and is duplicative of prior discovery requests served on Defendant. (Def.’s Mot. Quash ¶ 12.) Donegal is Defendant’s automobile insurance provider. (Id. at ¶ 5.) The proposed subpoena requests Donegal produce:

True, correct and complete copies of any and all records in your possession regarding Donegal Insurance Group (herein after Donegal) Policy number PAG3241378 claim number PAG-PA-01-19-0826659 and/or for a motor vehicle collision which occurred on March 18, 2019 involving policy holder John Harvey 239 East Kercher Ave, Lebanon, PA 17046. This request includes, but is not limited to, all first party benefit files, copies of any and all declaration pages, insurance policies for the time period of March 18, 2019, claims notes, transcripts of recorded statement, recording statements, investigative reports, accident/collision reconstruction reports, photographs, cell phone records, correspondences, memorandums, claims adjuster’s activity logs, declaration pages, property damage files, first party benefit files or any other documents in your possession pertaining to or referring to the aforesaid claim number, parties and/or collision which is the subject matter of this litigation with the exception that all the aforementioned documents which are requested to be produced which include Donegal and/or their agents, employees, and/or service, mental impressions, conclusions or opinions respecting the value or merit of the claim or defense or respecting strategy or tactics may be redacted to the extent, and only to the extent, that they include mental impressions, conclusions or opinions respecting the value or merit of the claim or defense or respecting strategy and tactics, and only to the extent that if there are any redactions made by deponent, that the deponent provides an itemized log in accordance with Pa. R.C.P. 4009.12(b) identifying with reasonable particularity the document not being produced or being redacted together with the basis of non-production and/or redaction.

(Def.’s Mot. Quash, Exhibit A.) Exhibit A shows that Plaintiff intended to serve the subpoena on Donegal on May 20, 2021, twenty days after April 30, 2021. The Motion to Quash Subpoena was listed for the July 2021 Term of Argument Court. Defendant filed Brief in Support of the Motion to Quash Subpoena of Defendant John Harvey (“Def.’s Supp. Brief”) on June 4, 2021.

On June 4, 2021, Plaintiff filed Motion to Compel Discovery Against the Defendant John Harvey (“Pl.’s Mot. Compel”) that requested enforcement of a Request for Documents or Things served on Defendant on April 3, 2021. (Pl.’s Mot. Compel, Exhibit A: Request for Documents and Things; Exhibit B: Receipt of Service by Certified Mail.) Per the Motion to Compel, Counsel had agreed on April 20, 2021 to extend the time for a response until May 30, 2021, but Plaintiff had yet to receive the requested documents. (Pl.’s Mot. Compel ¶¶ 9–11.) Plaintiff argued he was prejudiced by the failure to respond to the Request for Documents because these documents included those the Motion to Quash claimed were duplicated by the proposed subpoena of Donegal Insurance Company. (Pl.’s Mot. to Compel ¶¶ 12–13.) The Court (Honorable Samuel A. Kline, J.) granted Plaintiff’s Motion to Compel Discovery on June 7, 2021, ordering Defendant to provide full and complete answers to Plaintiff’s request for production of documents and all documents and things requested within twenty days.

On June 17, 2021, Plaintiff filed Plaintiff’s Brief in Opposition to Defendant John Harvey’s Motion to Quash Subpoena to Defendant’s Insurance Company, Donegal Mutual Insurance Company (“Pl.’s Opp. Brief”). The matter is ready for disposition.

Legal Standard

The Pennsylvania Rules of Civil Procedure permit discovery regarding “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Pa. R.C.P. 4003.1(a). “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Pa. R.C.P. 4003.1(b). Under the privilege of work product doctrine, discovery may include material prepared in anticipation of litigation or trial by a party’s representatives, including its insurer, but may not include disclosure of the insurer’s mental impressions, conclusions, or opinions about the value or merit of a claim or defense, or about strategy or tactics. Pa. R.C.P. 4003.3. Any party may serve a subpoena upon a nonparty, pursuant to Rules 4009.21 through 4009.27, to produce and permit the requesting party to inspect and copy any designated documents that constitute or contain discoverable material under the Rules of Civil Procedure and that are in the possession, custody, or control of that nonparty. Pa. R.C.P. 4009.1. Upon motion for a protective order by a party, and for good cause shown, a court may order that “a trade secret or other confidential research, development or commercial information shall not be disclosed or be disclosed only in a designated way. Pa. R.C.P. No. 4012(9).

Under Pa. R.C.P. 4009.21(a), a party must serve every other party written notice on its intent to serve on a nonparty a subpoena for documents or things at least twenty days before date of service on the nonparty. Any party may object to the subpoena by filing the objections of record and serving a copy on every other party. Pa. R.C.P. 4009.21(c). If the party seeking to serve the subpoena receives objections before the expiration of the twenty days, the subpoena shall not be served, and upon motion the court shall rule on the objections and enter an appropriate order. Pa. R.C.P. 4009.21(d). Ultimately, the trial court is responsible for overseeing discovery and has broad discretion to determine the appropriate measures necessary to ensure adequate and prompt discovery. PECO Energy Co. v. Insurance Co. of North America, 852 A.2d 1230, 1233 (Pa. Super. Ct. 2004); Iron Worker’s Sav. & Loan Ass’n v. IWS, Inc., 622 A.2d 367, 377 (Pa. Super. Ct. 1993). A subpoena’s power is therefore not unlimited and a trial court can limit discovery when: (1) it is sought in bad faith; (2) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party; (3) is beyond the scope of discovery as set forth in Rule 4003.1 through 4003.6; (4) is prohibited by any law barring disclosure of mediation communications and mediation documents; or (5) would require the making of an unreasonable investigation by the deponent of any party or witness. Pa. R.C.P. 4011. Put simply, the question raised by a party’s objection to a discovery request, including a subpoena, is whether “the information sought is relevant, reasonable, and not privileged.” Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1025 (Pa. Commw. Ct. 2006).

Discussion

Defendant filed the Motion to Quash Subpoena within the twenty days the Rules of Procedure allow for filing objections to a proposed subpoena of a third party, so the Court will treat the Motion to Quash as objections and a motion for a ruling thereon pursuant to Rule 4009.21. Defendant first argues that the subpoena should be quashed because it is overbroad in that “the vast majority of responsive information has no apparent relevance to this matter.” (Def.’s Mot. Quash ¶ 20.) In making this argument, Defendant appears to read the request for any and all records regarding “Policy number PAG3241378 claim number PAG-PA-01-19-0826659 and/or for a motor vehicle collision which occurred on March 18, 2019 involving policy holder John Harvey” as requesting documents related to a series of things rather than to one thing described two different ways. Apparently interpreting the request to be for documents regarding the Policy, the Claim, and/or the collision, Defendant argues that apart from the proof of insurance that would be relevant to Plaintiff’s case, the majority of the documents “regarding the Donegal Policy,” such as the policy application, policy change requests, underwriting materials, and others, are not relevant. Plaintiff on the other hand argues that the subpoena is not “overly broad and burdensome in that it is specifically limited to the records in the possession of Donegal Insurance Company which pertain to the parties to the action.” (Pl.’s Opp. Brief 11.)

The plain language of the subpoena indicates that it is requesting the documents in Donegal’s possession that pertain to the accident involving Defendant and the associated claim, and not all documents related to Defendant and his policy which Donegal may possess. For instance, in the list of possible documents the subpoena seeks, Plaintiff has specifically listed “insurance policies for the time period of March 18, 2019,” the date of the collision. Thus, the request is for documents relevant to Plaintiff’s claim and any defenses Defendant may raise because it is requesting those documents related to the collision, Donegal’s investigation thereof, and the insurance coverage Defendant had at the relevant time. Just as the Court cannot dismiss, as requested by Defendant’s Preliminary Objections, a claim for punitive damages Plaintiff has not yet made, the Court cannot quash a request for irrelevant policy applications, change requests, or underwriting materials that Plaintiff has not made.

Additionally, Defendant argues that the subpoena is overbroad in its request for all first party benefit files and property damage files. Defendant argues that because he has not counterclaimed against Plaintiff and liability is irrelevant for the no-fault coverage of the first party medical benefits and collision coverage, the information about Defendant’s medical treatment and payment for repairing Defendant’s car within these files is not relevant or calculated to lead to the discovery of relevant evidence. (Def.’s Mot. Quash ¶¶ 25–27.) The party seeking discovery need not justify complete relevance in advance. Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1025 (Pa. Commw. Ct. 2006). Because Defendant has not yet filed an Answer, it remains to be seen whether the evidence of Defendant’s medical treatment and repair to his car following the collision is in itself relevant to the case. However, information about the nature of the injuries and damage can assist in reconstructing the accident during the preparation of an expert witness’s report, so it is relevant in the discovery of evidence that will be admissible at trial. Therefore, the first party benefit files and property damage files are within the scope of discovery.

Finally, Defendant argues the subpoena is overbroad because it requests all claims notes, memorandums, claims adjuster daily activity logs, and cell phone records, which Defendant claims have no relevance in this action. (Def.’s Mot. Quash ¶ 41–42.) Again, while these documents may not be relevant or admissible at trial in themselves, their contents may direct Plaintiff to the existence of relevant evidence, such as the identity of witnesses interviewed by claims adjusters, or statements about the collision made by Defendant. Cell phone records, if in Donegal’s possession, would be extremely relevant to the question of negligence if such documents showed Defendant was using his cell phone at the time of the accident. Whether or not the requested documents do contain such information as we speculate here cannot be known to Plaintiff until he has obtained these documents. As the Commonwealth Court has observed, “[r]elevancy depends upon the nature and the facts of the individual case, and any doubts are to be resolved in favor of relevancy.” Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1025 (Pa. Commw. Ct. 2006). In the instant case, the requested documents, which concern Defendant’s automobile insurance claim for the collision with Plaintiff’s car and the insurer’s investigation thereto, are relevant to Plaintiff’s claim that Defendant was negligent when his car collided with Plaintiff’s.

For the foregoing reasons, the Court finds the information sought by the proposed subpoena requesting documents from Donegal to be reasonably calculated to lead to the discovery of admissible evidence relevant to the claim of negligence and the possible defenses. See Pa. R.C.P. 4003.1. Therefore, Defendant’s Motion to Quash Subpoena on the basis of overbroadness for seeking vast amounts of irrelevant material is denied.

Defendant next argues that the subpoena should be quashed because it presents Donegal with an unreasonable burden in producing the requested documents. The argument for unreasonable burden is linked to the argument for overbroadness because both hinge on an analysis of the relevance of the requested discovery. The burden of producing requested documents is unreasonable if it outweighs the relevance or value of the discovery. First, Defendant argues that Donegal will be unreasonably burdened because the proposed subpoena’s request for documents duplicates documents included in the Request for Documents and Things served on Defendant. (Def.’s Mot to Quash ¶ 9–11; 55–57.) In relevant part, this request of Defendant asks for copies of:

  1. All documents constituting the entire contents of any investigatory file of any insurance company, investigating agency or any other representative of the defendant which pertains to the accident or subject matter of this lawsuit, excluding mental impressions, conclusions or opinions of the investigator or representative to liability
  2. All documents of any nature pertaining to any statements, written or oral, signed or unsigned, submitted to or obtained by you, or anyone acting on your behalf or on behalf of any other person, from or on behalf of any party, witness or other person having or claiming to knowledge of any nature relevant whatsoever to this lawsuit.

. . . .

  1. All declaration sheets or pages, certificates of coverage, premium notices, written waivers/elections/acknowledgments or other documents of any nature whatsoever indicating or relating to the coverages and policy limits afforded by the insurance policies identified by you in response to the preceding request for production of documents.
  2. All estimates, bills, invoices, receipts, or other documents relating to any repairs performed following this accident on the vehicle that you were operating at the time of the accident.
  3. All documents relating in any manner to any oral or written report, notice, communication or correspondence made by you to your insurance company, agent, claims representative, adjuster, investigator or to any other person or entity regarding this accident or this lawsuit.

(Pl. Mot. Compel, Exhibit A.) Plaintiff argues that precluding him from subpoenaing documents directly from the insurer would subject him to undue prejudice: he would be forced to rely on Defendant and Defense Counsel affirming that the documents produced are the entirety of the insurer’s records, something not directly within their knowledge. (Pl.’s Opp. Brief 5–6.) By requesting the documents from Donegal, Plaintiff may be more certain that all documents in Donegal’s possession are being provided, as opposed to Defendant or Defense Counsel representing that all documents provided to him by Donegal are being provided to Plaintiff. (Id.) Additionally, Plaintiff argues that Donegal’s documents for the claim may provide information into Defendant Curtis Electric and Refrigeration, Inc., which Plaintiff believes was an active corporation at the time of the collision and Defendant Harvey’s Counsel has represented is now inactive. (Id. at 4.)

Unfortunately, a party obscuring relevant documents by such gamesmanship is not an outlandish possibility. Thus, it appears to the Court there are two options for Donegal in relation to the issue of duplication: either check its file against what, if anything, Defendant has provided pursuant to this Court’s June 7, 2021 Order compelling a response to Plaintiff’s request for documents and add those documents covered by the subpoena that have not been provided to Plaintiff, or provide all the requested documents and let Plaintiff sort through the duplicates.

Next, Defendant argues that Donegal will be unreasonably burdened by the expenses and time it will take to review the requested documents to redact privileged information related to the insurer’s mental impressions about the value of a claim or strategy and tactics. (Def.’s Mot. Quash ¶58–59.) This is a perplexing and unpersuasive argument given that 1) in accordance with the form required by Rule 4009.26, the proposed subpoena advises Donegal it has the right to seek in advance the reasonable cost of preparing copies or producing documents or things, and 2) providing documents in discovery with redactions of privileged information is a regular part of litigation of this type, and is an expected consequence of being an automobile insurer that investigates the claims of its policyholders. For the same reason, Defendant’s claim that Donegal will be unreasonably burdened because its documents and methods used to investigate and handle liability claims are trade secrets is perplexing, given that part of the analysis for what constitutes a trade secret is the extent to which the information is known outside the business and the ease with which the information could be properly obtained by others. See MarkWest Liberty Midstream & Res., LLC v. Clean Air Council, 71 A.3d 337, 344 (Pa. Commw. Ct. 2013).

Moreover, Defendant claims that Donegal’s documents and methods are trade secrets without offering any evidence to support such a finding. “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” Crum v. Bridgestone/Firestone N. Am. Tire, LLC, 907 A.2d 578, 585 (2006). There are six factors courts consider when determining whether information constitutes a trade secret, and it is only after a person establishes that the information is a trade secret that the burden shifts to the requesting party to prove that there is a compelling need for the information that outweighs the harm of the disclosure. MarkWest, 71 A.3d at 344. While nothing in this Opinion should be taken as preventing Donegal from seeking a protective order pursuant to Pa. R.C.P. 4012 if it believes its methods are indeed trade secrets, Defendant’s unsubstantiated claim of a trade secret in its Motion to Quash Subpoena does not meet the threshold for the Court to proceed to the balancing test of the analysis at this point in the proceedings.

The documents Plaintiff requests in the proposed subpoena are relevant to his claim of negligence and the possible defenses. The burden of producing these documents to Donegal will not be unreasonable given that it has a right to reimbursement for the reasonable costs of complying with the subpoena, Defendant has not established the existence of a threatened trade secret, and any duplication of documents can be resolved by cooperation of the parties. Therefore, Defendant’s Motion to Quash Subpoena on the basis of unreasonable burden is denied.

Conclusion

The subpoena Plaintiff intends to serve on Defendant’s automobile insurer seeks production of documents relevant to his claim of negligence against Defendant and may be served on Donegal. However, in light of the Court’s previous Order compelling Defendant to comply with Plaintiff’s request for documents and the Order ruling on Defendant’s Preliminary Objections, the landscape of what Plaintiff knows and needs to know will have changed by the time of the issuance of this Opinion and the accompanying Order. Should the original subpoena now be obsolete, or become so after Defendant Harvey has filed an Answer pursuant to the Court’s ruling on his Preliminary Objections, nothing in this Opinion should be read as preventing Plaintiff from instead serving on Defendant an intent to serve a revised subpoena on Donegal. The principles analyzed herein would also apply to a new proposed subpoena.

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

DWAYNE HEISLER                             :

Plaintiff,                                                 :

:

  1. :    Docket No.: 2021-00273

:

JOHN HARVEY                                    :

and                                               :

CURTIS ELECTRIC &                           :

REFRIGERATION, INC.,                      :

Defendants.                                            :

 

ORDER OF COURT

AND NOW, to wit, this 25th day of August, 2021, after careful consideration of Defendant’s Preliminary Objections, Plaintiff’s Response thereto, and Briefs of the Parties, Defendant’s Preliminary Objections are hereby OVERRULED.

Defendant is directed to file an Answer to the Complaint within thirty days of this Order.

BY THE COURT:

 

____________________________, J.

          CHARLES T. JONES, JR.

 

 

 

 

 

 

 

CTJ/cbm

cc:  Michael F. Socha, Esq. // 1860 Charter Lane, Suite 201, Lancaster, PA 17601-2604

Kevin P. Foley, Esq. // 538 Spruce Street, PO Box 1108, Scranton, PA 18501-1108

Curtis Electric & Refrigeration, Inc. // 239 East Kercher Ave., Lebanon, PA 17046

Caitlin Mininger, Esq./Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

DWAYNE HEISLER                             :

Plaintiff,                                                 :

:

  1. :    Docket No.: 2021-00273

:

JOHN HARVEY                                    :

and                                               :

CURTIS ELECTRIC &                           :

REFRIGERATION, INC.,                      :

Defendants.                                            :

 

APPEARANCES:

 

Kevin P. Foley, Esquire                                                  For Plaintiff

 

Michael F. Socha, Esquire                                              For Defendant

 

OPINION BY JONES, JR., J. (August 25, 2021):

Before the Court are the Preliminary Objections of John Harvey (“Defendant”) to Dwayne Heisler’s (“Plaintiff”) Complaint.

Factual and Procedural History

Plaintiff initiated this action against Defendants John Harvey and Curtis Electric & Refrigeration, Inc. by Writ of Summons on March 15, 2021. According to the Complaint filed on March 22, 2021, the action arises out of an alleged motor vehicle accident that occurred on March 18, 2019 on Mt. Zion Road in North Lebanon Township, near the intersection with St. Jacobs Drive. (Complaint ¶¶ 4–6.) The Complaint alleges that while Plaintiff drove southward on Mt. Zion Road Defendant Harvey was driving northward, and that Defendant Harvey, apparently attempting a left-hand turn onto St. Jacobs Drive, crossed into the southbound lane and struck Plaintiff’s car head-on. (Complaint ¶¶ 4–6). Plaintiff alleges that he exercised due care and caution and that his injuries are the direct and proximate result of the collision caused by Defendant’s “careless, reckless, negligent, and unlawful conduct.” (Complaint ¶¶ 7–9.) The injuries resulting from the collision alleged by Plaintiff consist of injury to his left forehead and chest wall; fractures in his right anterior fifth rib cartilage, the base of his fifth metacarpal in his left hand, and right patella; and a possible fracture in his tailbone. (Complaint ¶ 9.) As a result of the collision and the injuries he sustained, Plaintiff alleges he is entitled to damages for medical bills, wage loss, pain and suffering, and loss of life’s pleasures. (Complaint ¶¶10–13.)

Count I of the Complaint is a claim against Defendant John Harvey and in addition to incorporating the previous allegations lists twenty-one acts or failures to act that Plaintiff alleges constitute “gross, reckless, careless, negligent, and indifferent conduct” by Defendant Harvey. (Complaint ¶¶ 20, 21(a)–(t).) Count I contains a prayer for relief demanding judgment against Defendant Harvey for damages and costs in excess of fifty-thousand dollars ($50,000). Count II of the Complaint is a claim against Defendant Curtis Electric & Refrigeration, Inc., and alleges that Defendant Harvey was employed by Curtis Electric & Refrigeration and acting within the scope of his employment when the collision occurred. (Complaint ¶ 27.) Count II alleges that Defendant Curtis Electric & Refrigeration had a duty to properly supervise Defendant Harvey and ensure that he was operating the vehicle in a lawful and proper manner, and that it violated that duty. (Complaint ¶28–29.) Count II alleges that as a result Defendant Curtis Electric & Refrigeration is vicariously liable for the conduct of Defendant Harvey “as it regards willful, wanton, gross, negligent, careless, and reckless operation of a Commercial Motor Vehicle” and therefore includes a prayer for relief demanding judgment against Defendant Curtis Electric & Refrigeration for damages and costs in excess of fifty-thousand dollars ($50,000). (Complaint ¶ 30.)

On April 16, 2021, Defendant John Harvey filed Preliminary Objections to Count I and a Brief in Support thereof, arguing that Plaintiff’s claim for punitive damages is legally insufficient and requesting that the Court therefore strike all references to “wanton, gross, and reckless” conduct and punitive damages from the Complaint. The matter was listed for the June 2021 Term of Argument Court. Plaintiff filed a Brief in Opposition to Defendant’s Preliminary Objections on May 14, 2021. The matter is ripe for disposition.

Legal Standard

In deciding on preliminary objections, the Court accepts as true all material facts set forth in the Complaint as well as all reasonably deducible inferences based on those facts. See Santiago v. Pennsylvania Nat’l Mutual Casualty Insurance Co., 613 A.2d 1235, 1238 (Pa. Super. 1992). A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001) (citing Pa.R.C.P. 1028(a)(4)). The question of legal sufficiency presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible under any theory of law. Bilt–Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005); Fewell v. Besner, 664 A.2d 577, 579 (Pa. Super 1995); Ham v. Sulek, 620 A.2d 5, 8 (Pa. Super. 1993). If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Bilt–Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005); Fewell v. Besner, 664 A.2d 577, 579 (Pa. Super 1995); Perelman v. Perelman, 125 A.3d 1259, 1263 (Pa. Super. 2015). While the sustaining of a preliminary objection in the nature of a demurrer may result in either the dismissal of a complaint or count, or direction to file an amended pleading, striking language from a complaint is an appropriate remedy for preliminary objections brought on the grounds of the inclusion of scandalous or impertinent matter under Rule 1028(a)(2). See Common Cause/Pennsylvania v. Com., 710 A.2d 108, 115 (Pa. Commw. Ct. 1998), aff’d, 757 A.2d 367 (Pa. 2000). To be scandalous and impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action. Id.

“[T]here is a distinction between negligence and punitive damages claims, with a plaintiff being required to meet a far lesser burden to establish a negligence claim than that which is imposed in connection with a punitive damages claim.” Phillips v. Cricket Lighters, 584 Pa. 179, 189, 883 A.2d 439, 446 (2005). Damages awarded in negligence compensate a plaintiff for his or her losses, while punitive damages, are awarded “to heap an additional punishment on a defendant who is found to have acted in a fashion which is particularly egregious.” Phillips v. Cricket Lighters, 883 A.2d 439, 446 (2005) A plaintiff must produce “evidence which goes beyond a showing of negligence, evidence sufficient to establish that the defendant’s acts amounted to ‘intentional, willful, wanton or reckless conduct” to prevail on a claim for punitive damages. Phillips v. Cricket Lighters, 883 A.2d 439, 446 (Pa. 2005).

A complaint must allege the material facts that are the basis for a cause of action in a concise and summary form. Pa. R.C.P 1019(a). To establish a claim for negligence, a plaintiff must plead facts supporting the elements: 1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks; 2) breach of the duty by a failure to conform to the standard of conduct; 3) a reasonably close causal connection between the breaching conduct and the resulting injury; 4) actual loss or damage resulting to the interest of another. Reformed Church of Ascension v. Theodore Hooven & Sons, Inc., 764 A.2d 1106, 1109–10 (Pa. Super. 2000). In Pennsylvania, one party’s reckless disregard for another’s safety is an absolute defense to its claims of comparative negligence on the part of the other party. Krivijanski v. Union R.r. Co., 515 A.2d 933, 936–37 (Pa. Super. 1986). To establish a claim for punitive damages, a plaintiff must plead facts supporting the elements of willful, wanton, or reckless conduct: (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and (2) he acted, or failed to act, in conscious disregard of that risk. Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 772 (2005). Malice, intent, knowledge, and other conditions of mind may be averred generally. Pa. R.C.P.1019(b). A complaint may state more than one cause of against the same defendant, but each cause of action and any special damage related thereto must be stated in a separate count containing a demand for relief. Pa. R.C.P. 1020(a).

Discussion

Defendant’s claim in his Preliminary Objections that the Complaint fails to state a claim for punitive damages is correct. Nowhere in the Complaint does Plaintiff even mention the words “punitive damages.” Rather, by incorporating the factual allegations of the preceding paragraphs of the Complaint, the single count against Defendant Harvey alleges facts that would permit a recovery under the duty, breach, causation, and damages elements of negligence. The damages described by the Complaint consist of medical bills, lost wages, pain and suffering, and loss of life’s pleasures related to the injuries sustained in the alleged collision—all compensatory damages recoverable in negligence. The Complaint does include language characterizing Defendant’s conduct as “reckless.” This language would permit Plaintiff to either raise a defense to a possible counterclaim of negligence, or amend the Complaint if discovery revealed evidence of Defendant’s intent that would warrant a claim for punitive damages for reckless conduct. In a strict sense, a general averment of recklessness is “immaterial” to the proof of a cause of action of negligence, but such language is not “inappropriate” given the nature of the possible counterclaims and defenses the alleged facts of this vehicular negligence claim. See Common Cause/Pennsylvania, 710 A.2d at 115. Defendant has objected to the Complaint only on 1028(a)(4) legal insufficiency grounds, and not on the basis of scandalous or impertinent matter under 1028(a)(2). Under 1028(b), all preliminary objections must be raised at one time, so the issue of whether this language is immaterial and inappropriate to the cause of action has been waived and any analysis into it is beside the point.

The Court will not dismiss a complaint alleging negligence for failure to state a claim of punitive damages. Nor will we strike language from the complaint on an objection in the nature of a demurrer to foreclose a claim for punitive damages being made later in this case. As the Hutchinson Court observed, there is nothing “in law or logic to prevent the plaintiff in a case sounding in negligence from undertaking the additional burden” of proving a defendant’s conduct was not only negligent but outrageous enough to warrant punitive damages. 870 A2d at 772. Indeed, the Pennsylvania Rules of Civil Procedure permit a Plaintiff to amend a complaint, by consent of the adverse party or by leave of court, at any time precisely because evidence obtained through discovery may clarify the facts and the potential claims supported by those facts. Pa. R.C.P. 1033. Thus, the only thing to prevent Plaintiff from stating a claim for negligence now and filing to amend and add a claim for punitive damages later is the possibility that discovery evidence as to Defendant’s state of mind at the time of the incident indicates that the recklessness element for punitive damages is not supported by the facts. This is not a question that anyone can answer at this stage of the proceedings, and demurrer to a claim of punitive damages Plaintiff may make is not appropriate. Defendant’s Preliminary Objection in the nature of a demurrer to Count I is overruled.

 

Conclusion

In concluding, we note that even if the Complaint did include a count requesting punitive damages, this Court has previously ruled—as Plaintiff points out in his brief—that the preliminary objections stage is too early to rule out a claim for punitive damages when the question of whether conduct is reckless or outrageous is one better left for after the close of discovery. See Ehler v. Old Dominion Freight Line, No. 2018-00307, Charles, J., Aug. 30, 2018; see also Felty v. Lebanon Valley College, No. 2021-00038, Jones, Jr., J., Aug. 9, 2021. Here, Plaintiff has erred on the side of caution by alleging negligence in his Complaint and waiting to see discovery evidence before deciding to pursue a claim for punitive damages. Defendant’s attempt to rule out a punitive damages claim by requesting the Court strike language from the Complaint is premature at this stage of the proceedings. Defendant’s Preliminary Objections are overruled, and Defendant is directed to file an Answer within thirty days of entry of the Order accompanying this Opinion.

 

About the author

Lebanon County Legal Journal has written 770 articles for Lebanon County Legal Journal

Search