Estate of Dawn M. Bortner and Estate of Ralph V. Chevalier v. Andre D. Kennedy and May Furniture, Inc. No. 2016-01227

Civil Action-Law-Motor Vehicle Accident-Wrongful Death-Survival Action-Negligence-Preliminary Objections-Specificity of Pleading-“Catch All” Allegations-Fitness of Driver-Fitness of Vehicle-Violation of Statute
Plaintiffs filed a Complaint alleging that Dawn M. Bortner and Ralph Chevalier died in a motor vehicle accident on November 20, 2015 when their vehicle was rear-ended by a tractor trailer operated by Defendant Andre D. Kennedy (“Kennedy”) acting within the scope of his employment with Defendant May Furniture, Inc. (“May Furniture”). May Furniture filed Preliminary Objections to Plaintiffs’ Complaint on the basis that it lacked of specificity, asserting that the allegations of negligence were overly broad and failed to set forth factual allegations in support of allegations that Kennedy was inexperienced or unfit to drive and the tractor and/or trailer involved in the accident was unsafe and/or mechanically unfit and Kennedy violated various unspecified laws and regulations.
1.  A complaint must apprise the defendant of the plaintiff’s claim and the grounds upon which it rests and formulate the issues by summarizing those facts essential to support the claim.
2.  It is the responsibility of plaintiffs to use all reasonable diligence properly to inform themselves of the facts and circumstances upon which their right to recovery is based and concisely to state in their complaint the material facts and the basis for the cause of action.
3.  General and “catch all” allegations in a complaint are unacceptable.
4.  The averments of Kennedy’s inexperience or lack of fitness to drive and the unsafe and/or mechanical unfitness of the tractor and/or trailer are insufficiently specific, as they fail to set forth any facts as to Kennedy’s inexperience or unfitness to drive or any specific mechanical defect that caused or contributed to the accident.
5.  In a civil action, where the facts pled constitute the cause of action, the plaintiff need not specify a statute that the plaintiff contends the defendant violated.  Rather, the plaintiff must allege only the material facts that form the basis of the cause of action that raise a violation of the statute.
6.  The portion of the Complaint indicating that Kennedy violated the “Rules of the Road” in Chapter 33 of the Vehicle Code and stating numerous facts raising violations of traffic laws including allegations suggesting careless driving, driving at an excessive speed, following too closely and using a cellphone while driving are sufficient to set forth set forth a claim with regard to May Furniture’s vicarious liability for Kennedy’s negligence.
L.C.C.C.P. No. 2016-01227, Opinion by John C. Tylwalk, President Judge, June 28, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA CIVIL DIVISION No. 2016-01227
J
ODIE L. BORTNER, as Administratrix of  The Estate of Dawn M. Bortner, deceased,
And DAVID M. HOLLAR, ESQUIRE as Administrator of the Estate of Ralph V.
Chevalier, deceased
v.
ANDRE D. KENNEDY and MAY FURNITURE, INC.

ORDER OF COURT
AND NOW, this 28th day of June, 2017, upon consideration of the Preliminary Objections of Defendant May Furniture, Inc., Plaintiff’s response thereto, the Briefs submitted by the parties, and after Oral Argument, it is hereby Ordered that the Preliminary Objections are SUSTAINED, in part, and OVERRULED, in part.  In accordance with the accompanying Opinion, Paragraphs 33(a), (b), (c), (d), (e), and (f) are stricken from the Complaint.  The Preliminary Objections to Paragraphs 33(g) are OVERRULED.  Plaintiffs are granted twenty days to file an amended pleading setting forth specific facts to sufficiently support these claims.
BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

BRIAN WRIGHT, ESQUIRE    FOR PLAINTIFF
VILLARI, BRANDES & GIANNONE, P.C.

MICHAEL SOCHA, ESQUIRE    FOR MAY FURNITURE, INC.
FOWLER HIRTZEL MCNULTY AND SPAULDING, LLP

DEAN F. MURTAUGH, ESQUIRE   FOR ANDRE D. KENNEDY

OPINION, TYLWALK, P.J., JUNE 28, 2017.
The Complaint in this wrongful death/survival action alleges that Decedents Dawn Bortner and Ralph Chevalier lost their lives in a motor vehicle accident on November 20, 2015 on Route 78 near the Route 72 exit in Union Township when their vehicle was rear-ended by a tractor-trailer operated by Defendant Andre D. Kennedy (“Kennedy”) who was acting within the scope of his employment/agency with Defendant May Furniture, Inc.  (“May Furniture”).  It is alleged that the tractor was owned or leased by Kennedy and that the trailer was owned or leased by May Furniture.  This action was originally filed in Dauphin County.  After May Furniture filed Preliminary Objections alleging improper venue and complaining of lack of specificity of the Complaint, Plaintiffs consented to the transfer of the case to Lebanon County.  The remaining Preliminary Objections are now before us for resolution.
Plaintiffs set forth numerous allegations of negligence on the part of Kennedy in Paragraph 30 of Court 1 and against May Furniture in Paragraph 33 of Count 2 of the Complaint.   May Furniture objects to the allegations of Paragraph 33 charging negligence on the part of May Furniture for the following:
a.  Failing to establish procedures or programs to determine whether their employees, agents and/or servants were and/or are fit and capable of properly performing the requirements of their respective employment, agency and/or duties;
b.  Failing to properly maintain their Trailer in a safe and/or mechanically fit condition;
c.  Allowing defendant, Andre D. Kennedy, to operate their Trailer when they knew or reasonably should have known it was unsafe, mechanically unfit and/or hazardous;
d. Allowing defendant, Andre D. Kennedy, to operate the Tractor/Trailer when they knew or reasonably should have known he was an unsafe, unfit, inexperienced and/or hazardous driver;
e.  Entrusting the Tractor/Trailer to defendant, Andre D. Kennedy, even though they knew or reasonably should have known that he was an unsafe, unfit, inexperienced and/or hazardous driver;
f.  Allowing defendant, Andre D. Kennedy, to operate the
Tractor/Trailer when they knew or reasonably should have known that the Tractor/Trailer was not equipped with proper and/or properly operating signals, safety devices, warning devices, tires and/or brake systems.
g.  Being vicariously liable for the acts and omissions of defendant, Andre F. Kennedy, who at all times material hereto, was acting as their employee, agent and/or servant and/or was otherwise acting on their behalf, at their direction and/or under their control, and in that regard, Plaintiffs incorporate by reference paragraph 30 and its subparts as if set forth fully herein.
May Furniture complains that these are “general” or “catchall” allegations which are overly broad and violate the holding of Connor v. Allegheny Hospital, 461 A.2d 600 (Pa. 1983)1  and the Rules of Civil Procedure and should be stricken.    In particular, May Furniture argues that the Complaint sets forth no factual allegations to support the allegations of Paragraphs (a), (d), and (e) that Kennedy was inexperienced and/or unfit to drive and that the truck involved in the accident was unsafe/mechanically unfit to drive as alleged in Paragraphs 33(b), (c), and (f).  In addition, May Furniture notes that Paragraph 33(g) alleges May Furniture’s vicarious liability for Kennedy’s negligence and incorporates by reference Kennedy’s violation of various unspecified laws and regulations.  It argues that this allegation, without citation to any specific law or regulation, is also impermissibly vague.
Plaintiffs counter that they have pled the material facts upon which their cause of action is based.  They argue that it is not necessary to plead every precise detail since the defendant may use discovery proceedings to prepare his defense and that each paragraph must be read in context with the remainder of the Complaint.  Plaintiffs claim that when taken in their entirety, all the allegations of negligence sufficiently inform Defendants of the claims against them.  Plaintiffs argue that they are not required to set forth the specific statutes alleged to have been violated and that, with regard to the allegations in Paragraphs 33 (a)(d)and (e), the allegation in Paragraph 22 that Kennedy was negligent in the care, control and/or operation of the truck supports these averments.
In Pennsylvania, a complaint must apprise the defendant of the plaintiff’s claim, the grounds upon which it rests, and must formulate the issues by summarizing those facts essential to support the claim.  Cassell v. Shellenberger, 514 A.2d 163 (Pa. Super. 1986), appeal denied 529 A.2d 1078 (Pa. 1987).  It is the responsibility of the plaintiff to use all reasonable diligence to properly inform themselves of the facts and circumstances upon which their right to recovery is based, and to concisely state in their complaint the material facts and the basis for their cause of action.  Shaffer v. Larzelere,  189 A.2d 267, 269 (Pa. 1963).  As per Connor, “general” and “Catchall” allegations in a complain are unacceptable.
In civil actions, where the facts pled constitute the cause of action, the plaintiff need not specify a statute the plaintiff contends the defendant violated. City of New Castle v. Uzamere, 829 A.2d 763 (Pa. Commw. 2003).  Rather, the plaintiff must only allege the material facts which form the basis of the cause of action which raise a violation of the statute. Id.   “Although a party need not specifically plead the Act of Assembly ostensibly violated, sufficient facts must be pleaded to bring the case within the appropriate statute.”  Dept. of Transportation v. Shipley Humble Oil Co., 370 A.2d 438, 440 (Pa. Commw. 1977)
Paragraph 30(e) specifically refers to Kennedy being in violation of the “Rules of the Road” in Chapter 33 of the Vehicle Code 2  and states numerous facts to raise violations of the traffic laws which are applicable.  For example, the allegations suggest careless driving, driving at an excessive speed, following too closely, and use of a cellphone while driving.   We believe that Plaintiffs’ allegations of Kennedy’s traffic violations are sufficient and will overrule the Preliminary Objections to those allegations.
We will sustain the remainder of May Furniture’s Preliminary Objections.  With regard to averments of Kennedy’s driving unfitness and/or inexperience in Paragraphs (a), (d), and (e), it is at least incumbent upon Plaintiffs to plead facts to support those assertions, e.g., that Kennedy was overly tired, had driven in excess of the allowable time for truck drivers, and/or had not had experience driving loads of this weight and to specify what investigative procedures May Furniture might have used to obtain knowledge of such facts.   As the Complaint stands, there is simply nothing factual of this nature.  Paragraphs 33(b), (c), and (f) allege that May Furniture failed to maintain the trailer and/or that the trailer was somehow mechanically unfit.  Plaintiffs are also required to plead supporting facts to support these allegations, e.g., that the brakes were inadequate, the tires were worn, or the horn did not work. However, there is simply nothing in the Complaint to suggest any specific mechanical defect which caused or contributed to the accident.
For these reasons, we will strike Paragraphs 33(a), (b), (c), (d), (e), and (f) of the Complaint and grant Plaintiffs twenty days to file an amended pleading setting forth specific factual support for their causes of action.

1  In Connor v. Allegheny General Hospital,  461 A.2d 600, 602 (Pa. 1983), the plaintiff claimed the trial court erred in refusing to allow her to amend her complaint to allege the hospital defendant was negligent in its undue delay in providing care, when her original pleading alleged only affirmative acts of negligence. The Supreme Court found that a plaintiff’s amendment should have been allowed because it amplified the original general complaint which alleged the defendant hospital was negligent in “otherwise failing to use due care and caution under the circumstances.” Id. at 602.

2 75 Pa.C.S.A. §3301 et seq.