Opinion
Civil No. 3:19-cv-2124
11-04-2020
CYNTHIA HARVELL, et al., Plaintiffs, v. MARCUS J. BRUMBERGER, et al., Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This case arises out of an automobile accident that occurred on July 15, 2019. The circumstances surrounding this accident are described in a 56-page, 90-paragraph complaint filed by the plaintiffs, Cynthia Harvell as administratrix of the estate of Thurinton Harvell, Sr., deceased, and Thurinton Harvell, Jr. This complaint asserts wrongful death and survival claims pursuant to 42 Pa. Const. Stat. §§ 8301 and 8302, as well as claims for punitive damages. (Doc. 1).
The complaint alleges that on July 15, 2019, Marcus Brumberger, who was employed by Bur-Trans, Inc., was driving a tractor trailer in the right lane southbound on Interstate 81 in Susquehanna County, Pennsylvania. (Id., ¶ 20). According to the plaintiffs: "he [the defendant] traveled outside of his lane of travel onto the shoulder where Plaintiffs were lawfully parked and violently struck Plaintiff Thurinton Harvell, Jr., and Plaintiff's decedent, Thurinton Harvell, Sr., both of whom were on the shoulder of said roadway when struck by Defendant Brumberger." (Id.)
Prior to the accident both plaintiffs, Cynthia Harvell and Thurinton Harvell Jr., and plaintiff's decedent, Thurinton Harvell Sr., were traveling southbound on I-81 when their vehicle ran out of gas. (Id., ¶ 16). Consequently, they "legally parked their disabled vehicle with flashers on, on the shoulder of Interstate-81 southbound." (Id., ¶ 17). Thurinton Harvell, Jr. and Cynthia Harvell walked to a gas station off of Exit 223 in New Milford Township, Susquehanna County, Pennsylvania. Thurinton Harvell Sr. remained with the vehicle. Thurinton Harvell, Jr. walked back to the parked vehicle with the gas while Cynthia Harvell remained at the gas station. (Id., ¶ 18). "At approximately 3:01 P.M., Plaintiff's decedent, Thurinton Harvell, Sr., was standing on the shoulder of the roadway along the left side of the aforementioned vehicle putting gas in the vehicle and plaintiff Thurinton Harvell, Jr. was standing behind the vehicle while it was legally parked on the shoulder of Interstate-81 southbound" when both men were struck by defendant Brumberger's tractor trailer. (Id., ¶ 19). Allegedly, the tractor trailer traveled outside of the lane of travel onto the shoulder of the interstate. The collision resulted in the death of Thurinton Harvell, Sr., and Thurinton Harvell, Jr. sustained serious injuries. (Id., ¶¶ 20-23).
The complaint filed in this matter contains a fairly specific and detailed description of the ways in which Bur-Trans and Brumberger acted in what is alleged to have been a negligent, careless, gross, wanton, and reckless fashion. (Doc. 1). Indeed, the complaint cites more than two dozen aggravating circumstances in this case. In particular, the complaint alleges that Brumberger's conduct consisted of the following:
a. Failure to keep a proper lookout;
b. Failure to properly observe the roadway;
c. Failure to brake his vehicle;
d. Failure to properly control his vehicle;
e. Failure to take proper and evasive action;
f. Failure to keep his eyes on the roadway;
g. Failure to maneuver his vehicle so as to avoid a collision;
h. Failure to drive within a single lane in violation of 75 Pa.C.S.A. § 3309(1);
i. Falling asleep while driving;
j. Utilizing his cell phone while driving in violation of state and federal regulations;
k. Failure to exercise a degree of care which an ordinary and prudent person would have done under the circumstances;
l. Failure to remain attentive and to maintain a sharp lookout for the conditions of travel;
m. Failure to slow or bring his vehicle to a stop to avoid the impact with the Plaintiffs' decedent Thurinton Harvell, Sr. and Plaintiff Thurinton Harvell, Jr.;
n. Operating his commercial motor vehicle without due regard for the rights, safety, and position of Plaintiffs' decedent Thurinton Harvell, Sr. and Plaintiff Thurinton Harvell, Jr. lawfully on the roadway;
o. Operating his vehicle at a speed greater than that which was reasonable and prudent under the circumstances in violation of 75 Pa. C.S.A. §3361;
p. Driving recklessly and with willful and wanton disregard for the safety of persons or property in violation of 75 Pa. C.S.A. §3736;
q. Operating his vehicle so recklessly that he placed Plaintiffs' decedent Thurinton Harvell, Sr. and Plaintiff Thurinton Harvell, Jr.in danger of death and serious bodily injury in violation of 18 Pa. C.S.A. §2705;
r. Operating his vehicle in a careless manner in violation of 75 Pa.C.S.A. §3714;
s. Failure to obey the rules of the road, the statutes of the Commonwealth of Pennsylvania; and the ordinances of New Milford Township, Pennsylvania while operating his vehicle on the highways and roadways of the Commonwealth of Pennsylvania;
t. Failure to adequately inspect the Tractor Trailer prior to operating the vehicle in that the brakes were out of adjustment;
u. Failure to inspect the vehicle prior to operating the vehicle;
v. Failure to give warning of his approach;
w. Failure to bring his vehicle to a stop within the assured clear distance ahead in violation of 75 Pa.C.S.A. §3361;
x. Failure to slow down in light of the conditions then and there existing in violation of 75 Pa. C.S.A. §3361;
y. Incorrectly using his brakes so that he caused his brakes to fail;
z. Operating his vehicle while being distracted and/or fatigued in violation of 49 C.F.R. §392.3;
aa. Operating his vehicle in violation of the rules and regulations of the Federal Motor Carrier Safety Regulations;(Id., ¶¶ 38 a-kk.)
bb. Failure to operate, maintain, inspect and repair his vehicle in accordance with the applicable Federal Motor Carrier Safety Regulations 49 C.F.R. §390 et seq., which have been adopted in this Commonwealth pursuant to 67 Pa. Code §229.14;
cc. Failure to properly inspect his vehicle in accordance with 49 C.F.R. §392.7;
dd. Operating his vehicle in excess of the applicable hours of service rules in violation of 49 C.F.R. §395.3;
ee. Operating his vehicle when he was so fatigued as to make it unsafe for him to operate the vehicle in violation of 49 CFR §392.3;
ff. Operating his vehicle in such a condition as to likely cause an accident or a breakdown of the vehicle in violation of 49 C.F.R. §396.7;
gg. Failing to properly inspect his vehicle prior to driving to ensure it was in safe operating condition in violation of 49 C.F.R. §396.13;
hh. Operating his vehicle in violation of the laws, ordinances and regulations of Pennsylvania and New Milford Township in violation of 49 C.F.R. §392.2;
ii. Operating his vehicle when he knew or should have known that he was unfit to do so;
jj. Failure to record his duty status properly in violation of 49 CFR §395.8; and
kk. Such other and further acts or omissions which shall be discovered during the course of discovery under the Federal Rules of Civil Procedure.
The complaint further alleges that "despite such knowledge, Defendant Bur-Trans nevertheless, by and through the acts and/or omissions of its agents, servants, workmen, and/or employees, including but not limited to Defendant Brumberger" is responsible for the negligent, careless, gross, wanton, and reckless conduct enumerated above. (Id., ¶ 68).
On the basis of this lengthy factual recital, the plaintiffs then brought claims against Brumberger and Bur-Trans, which are grounded in negligence (Count VII and IX), as well as survival and wrongful death claims (Counts I, II, IV and V). (Doc. 1). Based upon these well-pleaded averments, characterizing the conduct of the defendants as negligent, careless, gross, wanton, and reckless, the complaint also seeks punitive damages (Counts III VI, VIII and X). (Doc. 1).
Despite these detailed factual averments, the defendants have filed a partial motion to dismiss this complaint, arguing that the plaintiffs' punitive damages claims should be dismissed. (Doc. 4). The defendants also assert that in addition to the punitive damages claims being dismissed, the allegations of gross, wanton and/or reckless conduct should be stricken from the complaint. (Doc. 4, ¶ 20). The defendants also seek a more definite statement of numerous allegations pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. "Specifically, (1) those allegations that allege that Defendants were negligent in violating unspecified statutes, regulations, and ordinances and (2) other open-ended allegations of negligence - are so vague and ambiguous that they do not meet Federal Court pleading requirements and, thus, must either be re-pleaded or stricken from the Complaint." (Doc. 9, at 9).
After a review of the pleadings in this case, and for the reasons that follow, we conclude that the plaintiffs have set forth sufficient factual averments to support a claim for punitive damages with respect to the negligence and survival claims. However, the claim for punitive damages as it relates to the wrongful death claim fails as a matter of law. Accordingly, we will recommend that the motion to dismiss the punitive damages claims be granted in part and denied in part. Moreover, we conclude that there are several allegations in the complaint that the plaintiffs should be required to plead with more specificity. Thus, we will further recommend that the motion for a more definite statement be granted in part and denied in part.
II. Discussion
A. Motion to Dismiss-Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, -U.S.-, 129 S. Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id., at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.' "Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S. Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment"). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. Motion for More Definite Statement-Standard of Review
Federal Rule of Civil Procedure 12(e) often serves as a corollary to pleading standards under Rule 8(a). Rule 8(a) provides that a complaint must include "a short and plain statement of the grounds for the court's jurisdiction[;] ... the claim showing that the pleader is entitled to relief; and ... a demand for the relief sought, which may include ... different types of relief." Fed. R. Civ. P. 8(a). Where the complaint is lacking in this regard:
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.Fed. R. Civ. P. 12(e).
We note that "[a] motion for a more definite statement is not a substitute for the discovery process[,]" and that such motions are not favored. Wheeler v. United States Postal Service, 120 F.R.D. 487, 488 (M.D. Pa. 1987). Such motions are typically only granted where pleadings are "unintelligible or if it is virtually impossible for the opposing party to craft a responsive pleading." Maya v. Chertok, 2015 WL 5254377, at *2 (M.D. Pa. Sept. 9, 2015) (quoting Morris v. Kesserling, 2010 WL 4362630, at *1 (M.D. Pa. Oct. 27, 2010) (quotations omitted)); see Schaedler v. Reading Eagle Publ'n, 370 F.2d 795, 798 (3d Cir. 1966) (such motions are "directed to the rare case where because of the vagueness or ambiguity of the pleading the answering party will not be able to frame a responsive pleading"). The opposing party must be unable to respond "even with a simple denial[ ] in good faith or without prejudice to himself." Brueggman v. Fayette County, 1995 WL 606796, *4 (W.D. Pa. Aug. 17, 1995); see Kimberton Healthcare Consulting, Inc. v. Primary PhysicianCare, Inc., 2011 WL 6046923, *3 (E.D. Pa. Dec. 6, 2011) ("a motion for a more definitive statement is generally ... used to provide a remedy for an unintelligible pleading rather than as a correction for a lack of detail").
The Third Circuit has, however, "highlighted the usefulness of a motion for a more definite statement when a complaint does not disclose the facts underlying a plaintiff's claim for relief such that the defendant cannot reasonably be expected to frame a proper, fact-specific defense." Miller v. Alt. Freight Sys., 2013 WL 1308235, *3 (M.D. Pa. Jan. 29, 2013) (citing Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006)). In this circumstance, "the Rule 12(e) motion for a more definite statement is perhaps the best procedural tool available to obtain the factual basis underlying a plaintiff's claim for relief." Id. (quoting Thomas, 463 F.3d at 301). At base, these motions are largely committed to the discretion of the trial court. Maya, 2015 WL 5254377, at *2.
It is against these legal standards that we assess the defendants' motion to dismiss and motion for a more definite statement.
C. The Partial Motion to Dismiss Should be Granted in Part and Denied in Part.
The defendants move to dismiss the punitive damages claims in Counts III, VI, VIII and X of the plaintiffs' complaint. As a result, defendants assert the allegations of gross, wanton, and reckless conduct should also be stricken. (Doc. 4). This motion is based on the defendants' view that the complaint fails to state sufficient facts necessary to give rise to the claims alleged, and instead asserts mere legal conclusions that are insufficient to satisfy the federal pleading requirements. However, after review of the complaint, we find that the allegations set forth in the complaint relating to the negligence and survival claims are sufficient at this stage of the litigation to allow the punitive damages claims to proceed. However, as a matter of law, the motion to dismiss the claim for punitive damages brought pursuant to the wrongful death act should be granted.
The defendants are charged in a multi-count complaint with negligent, careless, gross wanton, and reckless conduct. Thus, this tort case comes before us pursuant to our diversity jurisdiction. As a federal court exercising diversity jurisdiction in this case, we are obliged to apply the substantive law of Pennsylvania to this dispute when assessing whether the plaintiff's amended complaint states a plausible claim for punitive damages. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d. Cir. 2000). On this score,
Pennsylvania has adopted Section 908 of the Restatement (Second) of Torts, which provides that punitive damages may be "awarded to punish a defendant for outrageous conduct, which is defined as an act which, in addition to creating 'actual damages, also imports insult or outrage, and is committed with a view to oppress or is done in contempt of plaintiffs' rights.' ... Both intent and reckless indifference will constitute a sufficient mental state." Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 235 (3d Cir. 1997) (quoting Delahanty v. First Pa. Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243, 1263 (1983)).W.V. Realty, Inc. v. N. Ins. Co., 334 F.3d 306, 318 (3d Cir. 2003).
As the Pennsylvania Supreme Court has observed:
The standard governing the award of punitive damages in Pennsylvania is settled. "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." Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting Restatement (Second) of Torts § 908(2) (1979)); see also Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 (1963). As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct. See SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at 747-48; Chambers, 192 A.2d at 358. See also Restatement (Second) of Torts § 908, comment b. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989); Restatement (Second) of Torts § 908 (1) ("Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future."). Additionally, this Court has stressed that, when assessing the propriety of the imposition of punitive damages, "[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or
malicious." See Feld, 485 A.2d at 748; see also Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 n. 12 (1985) (plurality opinion).Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 121-22, 870 A.2d 766, 770-71 (2005). In Hutchinson the Pennsylvania Supreme Court also:
[S]et forth the standard the courts are to apply when called upon to determine whether the evidence supports a punitive damages award on such a basis. Noting that Comment b to Section 908(2) of the Restatement refers to Section 500 as defining the requisite state of mind for punitive damages based on reckless indifference, this Court turned to Section 500, which states:Id. at 771. While this section "sets forth two very different types of state of mind as to reckless indifference," the Pennsylvania Supreme Court adopted the narrower reading of this state of mind requirement when addressing punitive damage claims. Id. Thus, the court concluded that "in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk." Id. at 772.
§ 500 Reckless Disregard of Safety Defined: The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Restatement (Second) of Torts § 500.
In motor vehicle accident cases where claims for punitive damages are pleaded by plaintiffs, defendants often invite courts to dismiss these punitive damage claims. Yet, such invitations, while frequently made by defendants, are rarely embraced by the courts. Instead, courts routinely deny requests to dismiss punitive damages claims in motor vehicle accident cases at the outset of litigation. See e.g., Kerlin v. Howard, No. 4:18-CV-00481, 2018 WL 4051702, at *1 (M.D. Pa. Aug. 24, 2018); Wydra v. Bah, No. 3:15-CV-1513, 2016 WL 297709, at *2 (M.D. Pa. Jan. 22, 2016); Cobb v. Nye, No. 4:14-CV-0865, 2014 WL 7067578, at *4 (M.D. Pa. Dec. 12, 2014) (citing Young v. Westfall, No. 4:06-CV-2325, 2007 WL 675182, at *2 (M.D. Pa. Mar. 1, 2007) (denying motion to dismiss punitive damages in negligence accident involving a tractor-trailer)); Ferranti v. Martin, No. 3:06-CV-1694, 2007 WL 111272, at *2 (M.D. Pa. Jan. 19, 2007) (Munley, J.) (finding, in a claim relating to a tractor-trailer accident, that the plaintiff had pled sufficient allegations to require discovery).
As a general rule, the courts have deemed such motions to dismiss punitive damages claims to be premature and inappropriate where, as here, the complaint alleges reckless conduct. Moreover, because the question of whether punitive damages are proper often turns on the defendants' state of mind, this question frequently cannot be resolved on the pleadings alone but must await the development of a full factual record at trial. See generally In re Lemington Home for the Aged, 777 F.3d 620, 631 (3d Cir. 2015). Therefore, where a plaintiff's right to punitive damages may turn on the significance afforded to disputed factual questions, defendants are not entitled to a judgment in their favor on the plaintiff's punitive damages claims as a matter of law at the outset of the litigation. See Burke v. TransAm Trucking, Inc., 605 F.Supp.2d 647, 649 (M.D. Pa. 2009); Garden State Tire Realty Corp. v. R.K.R. Hess Assocs., Inc., 762 F. Supp. 92, 93 (M.D. Pa. 1990).
In the instant case, Cynthia Harvell seeks punitive damages against Marcus Brumberger and Bur-Trans in Counts III and VI, respectively. Both counts incorporate the allegations set forth to support the wrongful death action against Brumberger and Bur-Trans. However, "[i]t is well-settled that punitive damages are not recoverable in wrongful death actions under Pennsylvania law." Ortiz v. Porte Reve Transp., Inc., 2015 WL 4078873, at *6 (M.D. Pa. July 6, 2015) (citing Burke v. Glanton, 2012 WL 6052020, *2 (M.D. Pa. Dec. 5, 2012)); Harvey v. Hassinger, 461 A.2d 814, 817 (Pa. Super. Ct. 1983)). As a matter of law, Cynthia Harvell is not entitled to recovery of punitive damages under the Wrongful Death Act. Accordingly, the claims for punitive damages in Counts III and VI should be dismissed.
The defendants have also moved to dismiss the remaining punitive damages claims in Counts III and VI as well as the punitive damages claims in Counts VIII and X. (Doc. 4). The defendants allege that the well-pleaded facts described in this 56-page, 90-paragraph complaint are insufficient to state a claim upon which relief may be granted.
We disagree. Recognizing that federal pleading requirements set a plausibility standard for civil complaints, we acknowledge that "[a] complaint satisfies the plausibility standard when the factual pleadings 'allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955)." Burch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012). In the instant case, fairly construed, this civil complaint meets the pleading requirements prescribed by federal law in that it states a plausible claim of negligent and outrageous conduct by Brumberger and Bur-trans and states a legally sufficient claim for punitive damages.
Thus, accepting the well-pleaded facts set forth in the complaint, as we must when examining a motion to dismiss, it is alleged that the defendants acted in a reckless fashion in a series of ways that violated the duty of care they owed to others, state traffic laws, and federal motor vehicle regulations—a fashion that resulted in the tractor trailer traveling outside of the lane of travel onto the shoulder where the plaintiffs were lawfully parked and violently striking plaintiff Thurinton Harvell, Jr. and Thurinton Harvell, Sr., resulting in Harvell Sr.'s death. As we have noted, Pennsylvania law sets a high and exacting standard for the award of punitive damages. "[I]n Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk." Hutchison, 870 A.2d at 772.
While this is a precise burden of pleading and proof, the well-pleaded facts set forth in the complaint plausibly state a claim for punitive damages under Pennsylvania law because, fairly construed, this complaint alleges that reckless behavior caused this fatal accident. Such averments, as a matter of pleading, are sufficient to state a claim for punitive damages in this factual setting. See e.g., Kerlin, 2018 WL 4051702, at *1; Wydra, 2016 WL 297709, at *2; Cobb, 2014 WL 7067578, at *4 (citing Young, 2007 WL 675182, at *2) (denying motion to dismiss punitive damages in negligence accident involving a tractor-trailer)); Ferranti, 2007 WL 111272, at *2 (finding, in a claim relating to a tractor-trailer accident, that the plaintiff had pled sufficient allegations to require discovery). When viewed in the light of these well-pleaded facts set forth in the complaint, a basis lies in this case for a claim of punitive damages against the defendants with respect to the negligence and survival claims. See Burke, 605 F.Supp.2d at 649 (denying summary judgment on punitive damages claim); Garden State Tire Realty Corp., 762 F. Supp. at 93 (denying motion to dismiss punitive damages claim). Therefore, at the outset of this litigation, the defendants are only entitled to the dismissal of the punitive damages claims pursuant to the wrongful death act.
Accordingly, we recommend that this motion to dismiss be granted in part, as punitive damages are not recoverable for a wrongful death claim as a matter of law. However, the motion should be denied as to the punitive damages claims as they pertain to the plaintiffs' negligence and survival claims, as we have concluded the plaintiffs have sufficiently pleaded facts at this stage to support such punitive damages claims.
D. The Motion for a More Definite Statement Should be Granted in Part and Denied in Part.
Turning to the defendants' motion for a more definite statement, the defendants first contend that paragraphs 67, 68, and 87 of the complaint "do not meet the Federal Rules' specificity requirements" because of the use of the phrase "including but not limited to...." The defendants argue that the allegations containing that phrase "suggest[ ] that Defendants' negligent conduct was comprised not only of the specifically enumerated actions set forth in the paragraphs and subparagraphs but also of any other innumerable and undefined actions." (Doc. 9, at 19). They assert that this language causes these paragraphs of the complaint to deviate from the required pleading standards in Rule 8 and should accordingly be stricken.
We note that striking the complained-of portions of the plaintiffs' complaint is a remedy which can be obtained through a Rule 12(f) motion to strike, rather than a 12(e) motion for a more definite statement. The corresponding remedy for a 12(e) motion is a court order for the plaintiff to provide more clarity to an otherwise ambiguous or deficient pleading. Fed. R. Civ. P. 12(e).
The disputed paragraphs in the plaintiffs' complaint read as follows:
67. The conduct of Defendant Bur-Trans was outrageous and/or done willfully, wantonly and/or with reckless indifference to the rights of the public including, decedent Thurinton Harvell, Sr., by and through the acts and/or omissions of its agents, servants, workmen, and/or employees, including but not limited to Defendant Brumberger. Defendant Bur-Trans and Defendant Brumberger knew or should have known that...(Doc. 1, ¶¶ 67, 68, 87) (emphasis added).
68. Despite such knowledge, Defendant Bur-Trans nevertheless, by and through the acts and/or omissions of its agents, servants, workmen, and/or employees, including but not limited to Defendant Brumberger failed to...
87. Despite such knowledge, Defendant Bur-Trans nevertheless, by and through the acts and/or omissions of its agents, servants, workmen, and/or employees, including but not limited to Defendant Brumberger failed to...
The defendants appear to read the above language to state that the allegations of reckless conduct in these paragraphs include "any other unnumerable and undefined actions." Rather, we read this language as support for the "negligence, carelessness, and recklessness" which the plaintiffs have alleged. We read the "not limited to" language as the plaintiffs' way of preserving the possibility that they may uncover more items which support their contention that the defendants were negligent, careless, or reckless during discovery. We reiterate that "[a] motion for a more definite statement is not a substitute for the discovery process[,]" and that the plaintiffs are not required to plead every single instance of negligence, carelessness, or recklessness which may have occurred in this case. Wheeler v. United States Postal Service, 120 F.R.D. 487, 488 (M.D. Pa. 1987). We do not believe that the language in these paragraphs of the complaint is so "vague or ambiguous that the [defendants] cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). As such, we recommend that the district court exercise its discretion to deny the defendants' motion for a more definite statement as to paragraphs 67, 68, and 87.
The defendants cite to Pozarlik v. Camelback Assocs., 2011 WL 6003841 (M.D. Pa. 2011) as support for this proposition. In Pozarlik, the disputed paragraph of the complaint stated that the defendant was "negligent in failing to exercise reasonable care ..., 'including but not limited to' twelve different theories, as well as 'such other negligence, if any, that will be ascertained during discovery.' " Id. at *2. The Pozarlik case is distinguishable from the present dispute since the plaintiffs' complaint, as we read it, does not set forth theories for liability, and does not include language that would expose the defendants to all possible forms of negligence as in Pozarlik. We read the present disputed language as more akin to that in Maya v. Chertok, 2015 WL 5254377 (M.D. Pa. 2015), in which the complaint "alleges [the plaintiff]'s injuries were caused by the 'negligence, carelessness and recklessness of Defendant' and her co-defendants.... Paragraph 7 also includes nine subparagraphs identifying the conduct that constitutes Defendant and her co-defendants' alleged 'negligence, carelessness and recklessness.' " Id. at *5. This language more closely aligns with that in the present dispute, and we accordingly find that it should control our review of the plaintiffs' complaint.
In addition, the defendants also move for the plaintiffs to replead certain portions of paragraphs 68 and 87. In their brief, defendants argue that the plaintiffs "include[d] numerous allegations that Defendants violated various statutes, regulations and ordinances without specifying the particular statutes, regulations and ordinances that were violated." (Doc. 9, at 22). Further, they assert that the plaintiffs' complaint contained "objectionable, open ended allegations of negligence" that failed to meet the Federal Court pleading requirements because they are so vague and ambiguous. (Id., at 24). In addition to paragraphs 68 and 87, the defendants take umbrage with the following paragraphs and subparagraphs: 38(k, p-q, s, aa-bb, hh, and kk), 49, 56(k, p-q, s, aa-bb, hh, and kk), 57(i-j, q-r, and u), 70, 74(k, p-q, s, aa-bb, hh, and kk), 78, 82(k, p-q, s, aa-bb, hh, and kk), 83(i-j, q-r, and u) and 88.
In applying the standard for a Rule 12(e) motion for a more definite statement, we recommend the motion for a more definite statement should, in the exercise of the court's discretion, be granted with respect to the following paragraphs and subparagraphs:
¶¶ 38(s), 49, 56(s), 68, 74(s), 78, 82(s), 87: Failure to obey the rules of the road, the statutes of the Commonwealth of Pennsylvania; and the ordinances of New Milford Township, Pennsylvania while operating his vehicle on the highways and roadways of the Commonwealth of Pennsylvania;
¶¶ 38(aa), 49, 56(aa), 68, 74(aa), 78, 82(aa), 87: Operating his vehicle in violation of the rules and regulations of the Federal Motor Carrier Safety Regulations;
¶¶ 57(r), 70, 83(r), 88: Operating its vehicle in violation of the Rules and Regulations of the Federal Motor Carrier Safety Regulations;
¶¶ 38(kk), 49, 56(kk), 68, 74(kk), 78, 82(mm) Such other and further acts or omissions which shall be discovered during the course of discovery under the Federal Rules of Civil Procedure.
¶¶ 57(u), 70, 83(u), 88: Such other negligence, recklessness, and/or willful and wanton conduct as shall be revealed in discovery under the Federal Rules of Civil Procedure.
We find Carson v. Tucker, No. 20-399, 2020 WL 1953655 (E.D. Pa. Apr. 23, 2020), particularly instructive in applying the Rule 12(e) standard to these disputed allegations. The allegations enumerated above are identical to the allegations the court held to be "impermissibly vague" in Carson. Carson, 2020 WL 1953655 at *6. The court further elaborated that the manner in which these allegations are pled "do[es] not allow for Defendants to answer or mount a defense." Id. Moreover, when analyzing language identical to the allegations in paragraphs 38(kk), 49, 56(kk), 57(u), 68, 70, 74(kk), 78, 82(mm), 83(u), and 88, the Carson court explained that, "if there are 'such other' acts, as Carson alleges, Carson must specifically allege such acts, and the supporting facts, in the complaint so Defendants can frame a responsive pleading pertaining to those allegations." Id. As the court reasoned, this type of vague pleading "highlights 'the usefulness of a motion for a more definite statement.'" Id. at *7 (quoting Miller v. Atlantic Freight Systems, Inc., 2013 WL 1308235, at *3 (M.D. Pa. Jan. 29, 2013)). Accordingly, we recommend that the motion for a more definite statement be granted as to these paragraphs.
We note that the allegations in the complaint Carson were strikingly similar to the instant case, and plaintiff's counsel was identical in both cases, factors which make the reasoning of the Carson court all the more persuasive, as the allegations in Carson are in some respects almost identical to the allegations in the instant case.
As to the other subparagraphs and paragraphs enumerated above—38(s, aa), 49, 56(s, aa), 57(r), 68, 70, 74(s, aa), 78, 82(s, aa), 83(r), 87, 88)—the Carson court analyzed similar language and noted that as to these allegations, the plaintiff "must set forth which exact federal, state, or local statute or regulation was violated and the specific facts supporting the alleged violations. Defendant cannot be left to speculate what specific statute or regulation was violated." Id. at *6. Here, we conclude that these specific paragraphs, as currently pleaded, do not sufficiently put the defendants on notice of the statutes and/or rules it will be required to defend against. Accordingly, we recommend that the plaintiffs be ordered to replead the allegations in these paragraphs, setting forth the specific statutes or regulations that they allege the defendants have violated.
However, as to the remaining paragraphs and subparagraphs challenged by the defendants—38(k, p-q, bb, and hh), 56(k, p-q, bb and hh), 57(i-j and q) 74(k, p-q, bb and hh), 82(k, p-q, bb, hh, and kk), 83(i-j and q))—we find that the defendants can respond or "mount a defense" to the allegations set forth in these paragraphs. These paragraphs and subparagraphs set forth either a specific federal, state or local statute that was allegedly violated, or taken together with the facts and conduct alleged, put the defendants on notice of a negligence claim and the conduct supporting such a claim. Thus, the defendants are not left to "speculate what specific statute or regulation was violated." Carson, 2020 WL 1953655, at *6; see also Gregg v. LoneStar Transp., LLC, 2015 WL 1003911, at *5 (W.D. Pa. Mar. 6, 2015). Accordingly, we recommend that the motion for a more definite statement be denied as to the paragraphs and subparagraphs.
In sum, while the plaintiffs cannot proceed with punitive damages claims against the defendants as they relate to the wrongful death claim, we conclude that they have pleaded sufficient facts to set forth a claim for punitive damages as to their negligence and survival claims. Additionally, we conclude that several of the plaintiffs' allegations concerning the defendants' conduct are too vague, such that the defendant cannot respond or mount a defense to them. Accordingly, as set forth above, we will recommend that the plaintiffs be ordered to replead several of these allegations with more specificity.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion to dismiss and motion for a more definite statement (Doc. 4), be GRANTED, in part, and DENIED, in part as follows:
First, the motion to dismiss should be GRANTED to the extent that plaintiffs' punitive damages claims are brought pursuant to the wrongful death act but DENIED with respect to the punitive damages claims brought pursuant to the negligence and survival claims.
Second, the motion for a more definite statement should be GRANTED with respect to the following paragraphs and subparagraphs: (38(s, aa, kk), 49, 56(s, aa, kk), 57(r, u), 68, 70, 74(s, aa, kk), 78, 82(s, aa, mm), 83(r, u), 87, 88).
Finally, the motion for a more definite statement should be DENIED with respect to the following paragraphs and subparagraphs: (38(k, p-q, bb, and hh), 56(k, p-q, bb and hh), 57(i-j and q) 74(k, p-q, bb and hh), 82(k, p-q, bb, hh, and kk) and 83(i-j and q).
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge,
however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 4th day of November 2020.
S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge