Scott vs. Schaefer Fireworks, Inc., et al No. 2012-01301

Civil Action – Fireworks – Negligence – Recklessness – Punitive Damages – Statute of Limitations – Alleged Violation of State or Local Law – Preliminary Objections.

Pursuant to Pa.R.C.P. No. 1028(a)(4), Preliminary Objections may be filed on the ground of legal insufficiency of a pleading (demurrer). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. The Court must accept as true all well-pleaded facts set forth in the Complaint and all inferences to be reasonably drawn from them. A Preliminary Objection in the nature of a demurrer should be sustained only where it appears with certainty that, upon the facts averred, the law will not allow the plaintiff to recover.

Pa.R.C.P. No. 1019(a) provides for fact pleading and requires that a plaintiff disclose the material facts of each cause of action with sufficient specificity to enable the adverse party to prepare his defense. The complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim.

Pa.R.C.P. No. 1028(a)(3) provides that Preliminary Objections may also be filed on the ground of insufficient specificity in a pleading.

Punitive damages may not be awarded in a cause of action alleging mere negligence. Punitive damages may be awarded for conduct that is outrageous because of the defendant’s evil motive or his reckless indifference to the rights of others. A claim for punitive damages is not a cause of action in and of itself, but is merely incidental to a cause of action.

Recklessness differs from mere negligence as it requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. The recklessness must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent and that it aligns closely with intentional conduct.

The applicable statutory limitation period for these types of claims is the two-hear period set forth at 42 Pa.C.S.a.§5524(2) for an action to recover damages for injuries to a person caused by the wrongful act or neglect of another.

In order to properly plead and support a claim of reckless conduct to recover for injuries sustained as the result of a fireworks display, a plaintiff must plead facts in addition to the mere act of detonating fireworks in a public display.

The Court was unable to discern any facts pled in Plaintiff’s Complaint which, if proven, would support a finding of reckless conduct on the part of Defendant. More specifically, there were no allegations alluding to an evil motive or conscious disregard for the safety of the spectators; the allegation of recklessness was merely a conclusion unsupported by well-pled facts. Consequently, the Court held that any reference to Defendant’s recklessness must be stricken from the Complaint.

The Court did not grant Plaintiff leave to amend her Complaint to aver additional facts in support of her claims due to the expiration of the two-year limitation period.

The allegations that Defendant failed to take other proper safety precautions at the launch site without identifying what other safety precautions it should have taken is impermissibly vague and leaves open the possibility of Plaintiff subsequently asserting additional claims which are already time-barred by the expiration of the limitation period. The Court found this merely a generalized catch-all, boilerplate allegation of negligence and held it should be stricken from the Complaint.

Since a plaintiff may not simply plead a global violation of some unidentified state or local law or ordinance, the Court held that Defendant was entitled to know which standards and laws Plaintiff referred to in her Complaint so that it could prepare a defense to such allegations. Although it sustained this Preliminary Objection, the Court granted Plaintiff twenty (20) days to amend her Complaint to identify these items.

Preliminary Objections of Defendant and Plaintiff’s Response. C.P. of Lebanon County, Civil Action-Law, No. 2012-01301.

Jennifer L. Ruth, Esquire, for Plaintiff

Athenio O. Pappas, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY,

PENNSYLVANIA CIVIL ACTION – LAW No. 2012-01301

VICKIE SCOTT, Plaintiff

v.

SCHAEFER FIREWORKS, INC.; SCHAEFER FIREWORKS, INC., d/b/a SCHAEFER FIREWORKS; SCHAEFER PYROTECHNICS, INC.; SCHAEFER PYROTECHNICS, INC., d/b/a SCHAEFER PYROTECHNICS; PYROTECHNICS BY SCHAEFER, INC.;

KIMMEL SCHAEFER, LLC; KIMMEL SCHAEFER, JR., Individually and in his official capacity, and CAROLINE SCHAEFER, individually and in her official capacity, Defendants

ORDER OF COURT

AND NOW, this 27th day of January, 2014, upon consideration of the Preliminary Objections of Defendant Schaefer Pyrotechnics, Inc., Plaintiff’s Response thereto, the Briefs submitted by the parties, and Oral Argument, it is hereby Ordered that said Preliminary Objections are SUSTAINED, in part, and DISMISSED, in part, as follows:

(1.) The Preliminary Objections to Paragraph 10 are SUSTAINED. The averment of “recklessness” in Paragraph 10 is stricken with prejudice with regard to Schaefer Pyrotechnics.

(2.) The Preliminary Objections to Paragraph 10(h) are SUSTAINED. Paragraph 10(h) is stricken from the Complaint with prejudice.

(3.) The Preliminary Objections to Paragraphs 10(i) and (j) are SUSTAINED. Plaintiff is granted leave to amend her Complaint in order to plead the allegations of these Paragraphs with more specificity within twenty (20) days of this Order.

(4.) The Preliminary Objections to the Verification are DISMISSED as moot.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

Jennifer L. Ruth, Esquire for Vickie Scott

Goldberg Katzman, P.C.

Atheno O. Pappas, Esquire for Schaefer Pyrotechnics, Inc.

Deasey, Mahoney, Valentini & North, LTD

OPINION, TYLWALK, P.J., JANUARY 27, 2014

On June 27, 2012, Plaintiff Vickie Scott (‘Scott”) initiated this suit by filing a Praecipe for Writ of Summons. Her Complaint, filed on August 14, 2013, alleged that Defendant Schaefer Pyrotechnics, Inc. (“Schaefer Pyrotechnics”) was hired to stage a fireworks display at the Palmyra Middle School grounds on July 4, 2010. Scott was present at that event as a spectator and was standing in the midst of a crowd of onlookers in close proximity to the staging area. She alleges that during the display, some fireworks misfired and caused an explosion which propelled ignited materials into the crowd. As a result, she sustained severe injuries.

In her Complaint, Scott includes the following allegations:

“10. The accident arose solely as the result of the negligence, carelessness, and recklessness of Defendants in that they:

(h) Failed to take other proper safety precautions at the launch site;

(i) Failed to comply with industry standards; and

(j.) Failed to comply with Federal, State and Local laws and guidelines regarding the launching, detonation, and/or initiation of an explosive device.

(Complaint, Para. 10(h)-(j)). The Verification to the Complaint provided as follows:

I, attorney, Jennifer L. Ruth, Esquire, hereby acknowledge that I have read and prepared the foregoing COMPLAINT, and that the facts stated therein are true and correct to the best of my knowledge and belief.

I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities.

The Verification is signed by Attorney Ruth.

Schaefer Pyrotechnics filed Preliminary Objections to the Complaint, asserting as follows:

(1.) The averments of “recklessness” in Paragraph 10 are not supported by the facts alleged in the Complaint and should be stricken;

(2.) The allegations of Schaefer Pyrotechnic’s “failure to take other proper safety precautions at the launch site” are insufficiently specific and should be stricken;

(3.) The allegations of violations of industry standards and federal, state, local laws and guidelines in Paragraphs 10(i) and (j) lack sufficient specificity and should be stricken; and

(4.) The Complaint should be dismissed due to the improper Attorney Verification.

Scott subsequently filed a Praecipe to Substitute Verification signed by Scott.

1. Allegations of “Recklessness”

Schaefer Pyrotechnics argues that the facts as set forth in the Complaint are insufficient to support the averment of “recklessness” in Paragraph 10 of the Complaint. It argues that, by including that language, Scott is attempting to preserve the ability to assert a claim for punitive damages at a later time and that the allegation should be stricken with prejudice due to the expiration of the applicable statutory limitation period to such a claim. We agree that the facts alleged do not support an allegation of reckless conduct on the part of Schaefer Pyrotechnics and we will sustain this Preliminary Objection.

Pursuant to Pa.R.C.P. No. 1028(a)(4), Preliminary Objections may be filed on the ground of legal insufficiency of a pleading (demurrer). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Bilt-Rite v. Architectural Studio, 866 A.2d 270 (Pa. 2002). The Court must accept as true all well-pleaded facts set forth in the Complaint and all inferences to be reasonably drawn from them. Buchanan v. Brentwood Federal Savings and Loan Association, 320 A.2d 117 (Pa. 1974). A Preliminary Objection in the nature of a demurrer should be sustained only where it appears with certainty that, upon the facts averred, the law will not allow the plaintiff to recover. Milliner v. Enck, 709 A.2d 417 (Pa. Super. 1998).

Pa.R.C.P. No. 1019(a) provides for fact pleading and requires that a plaintiff disclose the material facts of each cause of action with sufficient specificity to enable the adverse party to prepare his defense. The complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. McShea v. City of Philadelphia, 995 A.2d 334 (Pa. 2010). Pa.R.C.P. No. 1028(a)(3) provides that Preliminary Objections may also be filed on the ground of insufficient specificity in a pleading. Punitive damages may not be awarded in a cause of action alleging mere negligence. Hutchinson v. Luddy, 870 A.2d 766 (Pa. 2005). Punitive damages may be awarded for conduct that is outrageous because of the defendant’s evil motive or his reckless indifference to the rights of others. Holl & Associates, P.C. v. 1515 Market Street Associates, P.C., 2000 WL 33711024 (C.C.P. Phila. Cnty. 2000), citing Feld v. Merriam, 485 A.2d 742 (Pa. 1984). A claim for punitive damages is not a cause of action in and of itself, but is merely incidental to a cause of action. Id., citing Hilbert v. Roth, 149 A. 2d 648 (Pa. 1959).

Scott’s Complaint does not specifically set forth a claim for punitive damages, yet she alleges that the conduct of Schaefer Pyrotechnics was “reckless.” “Recklessness” differs from mere negligence as it “requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.” Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012). The “recklessness” must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent and that it aligns closely with intentional conduct. Id. at 1202. Tayar has also been interpreted to permit a cause of action for recklessness in itself. See, Stout v. Loux, No. 2012-SU-2832-89 (C.C.P. York Cnty.), Slip Opinion, February 25, 2013, Cooke, J. The applicable statutory limitation period for these types of claims is the two-year period set forth at 42 Pa.C.S.A. §5524(2) for an action to recover damages for injuries to a person caused by the wrongful act or neglect of another. Romah v. Hygienic Sanitation Co., 705 A.2d 841 (Pa. Super. 1997), affirmed 737 A.2d. 249 (Pa. 1999).

The mere detonation of fireworks does not necessarily constitute reckless conduct, but may be viewed as negligent conduct depending on the circumstances involved. Debo v. Buckley, 44 Pa.D.&C.4^th 325 (C.C.P. Snyder Cnty. 1999), discussing Stewart v. Motts, 654 A.2d 535 (Pa. 1995), Howell v. Clyde, 620 A.2d 1107 (Pa. 1993), and Haddon v. Lotito, 161 A.2d 160 (Pa. 1960). Thus, in order to properly plead and support a claim of “reckless” conduct to recover for injuries sustained as the result of a fireworks display, a plaintiff must plead facts in addition to the mere act of detonating fireworks in a public display.

Here, we are unable to discern any facts pled in Scott’s Complaint which, if proven, would support a finding of reckless conduct on the part of Schaefer Pyrotechnics. There are no allegations alluding to an evil motive or conscious disregard for the safety of the spectators. The allegation of “recklessness” here is merely a conclusion that is unsupported by well-pled facts and the reference to Schaefer Pyrotechnic’s “recklessness” must be stricken from the Complaint. We will not grant Scott leave to amend her Complaint to aver additional facts in support of these claims due to the expiration of the two-year limitation period. The injury occurred on July 4, 2010, and, therefore, such claims should have been filed by July 4, 2012.

2. Allegations of Failure to Take “Other Proper Safety Precautions”

Schaefer Pyrotechnics also complains that the allegation that it “failed to take other proper safety precautions at the launch site” without identifying what “other” safety precautions it should have taken. This allegation is impermissibly vague and leaves open the possibility of Scott subsequently asserting additional claims which are already time-barred by the expiration of the limitation period. We agree that this averment does not comport with the pleading requirements of our procedural rules as it does not describe an act or omission to support a claim of negligence. Instead, this is merely a generalized catch-all, boilerplate allegation of negligence, see, Connor v. Allegheny Hospital, 461 A.2d 600 (Pa. 1983), and should be stricken from the Complaint.

3. Allegations of Violations of Industry Standards, and Federal, State, and Local

Laws

Schaefer Pyrotechnics next complains that Scott has failed to identify the various unnamed industry standards and federal, state and local laws it is alleged to have violated. A plaintiff may “not simply plead a global violation of some unidentified state and local law and ordinance.” Debo v. Buckley, supra. We agree that Schaefer Pyrotechnics is entitled to know which standards and laws Scott makes reference to so that it may prepare a defense to such allegations. Thus, we will sustain this Preliminary Objection and grant Scott twenty (20) days to amend her Complaint to identify these items.

4. Improper Verification

Subsequent to the filing of these Preliminary Objections, Scott filed a substitute Verification in which she herself verified the allegations of the Complaint with her signature. As this Verification is in compliance with Pa.R.C.P. No. 1024, this issue is moot and we will dismiss this Preliminary Objection.