Becchetti v. PennDOT

51 Pa. D. & C.4th 300, 2001 Pa. Dist. & Cnty. Dec. LEXIS 292
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJanuary 19, 2001
Docketno. 99 CV 4185
StatusPublished

This text of 51 Pa. D. & C.4th 300 (Becchetti v. PennDOT) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becchetti v. PennDOT, 51 Pa. D. & C.4th 300, 2001 Pa. Dist. & Cnty. Dec. LEXIS 292 (Pa. Super. Ct. 2001).

Opinion

MINORA, J.,

I. INTRODUCTION

Currently before the court are the preliminary objections of the defendants, DKA Inc., t/a The Dugout and Lisa M. Alberico, t/a The Dugout.1

By way of procedural background, this liquor liability and wrongful death and survival action was instituted on August 23, 1999 by a writ of summons. On December 3, 1999, The Dugout defendants obtained a rule to file a complaint. On December 22, 1999, plaintiffs filed a complaint against all of the above-named defendants. Plaintiffs’ complaint was served on The Dugout defendants on December 23, 1999.

Specifically, the plaintiffs have directed five causes of action against The Dugout defendants, each under the title “third cause of action.” While the general thrust of plaintiffs’ complaint appears to be that of wrongful death and survival, we can characterize the counts as follows: Count I — negligence; Count II— reckless indifference; Count III — wrongful death; Count IV — survival; and Count V — punitive damages.

On January 12, 2000, the current objecting Dugout defendants filed their numerous preliminary objections [302]*302to the complaint. As indicated in their brief, The Dugonf s preliminary objections are directed to Counts I through V as set forth in the third cause of action of plaintiffs’ complaint, pages 21 through 31. A brief in support of those preliminary objections was filed on January 26, 2000. A memorandum of law in opposition to the preliminary objections was filed on May 8, 2000 by the plaintiffs.

The court entertained oral argument on May 8, 2000, thus rendering this matter ripe for disposition.

Additionally, and by way of factual background, this action arises out of a series of events which transpired on or about August 22, 1997 and other circumstances leading up to that evening.

According to plaintiffs’ complaint, the events leading up to that evening involved primarily PennDOT and actions and/or inactions they engaged in up until that time. On that particular date, the defendant, Ronald Gress, went to a bar known as The Dugout after work and while at The Dugout, began consuming alcoholic beverages. The plaintiffs allege that The Dugout was operated by the defendant DKA Inc., and/or the defendant Lisa M. Alberico. Mr. Gress remained at The Dugout for a period of time and it is the plaintiffs’ contention that during this period of time, Mr. Gress became visibly intoxicated as his blood alcohol reading at the time of his subsequent arrest was about three times the legal limit. Despite his condition, The Dugout allegedly continued to serve Mr. Gress alcoholic beverages in violation of the Pennsylvania Liquor Control Code. Mr. Gress then left The Dugout and attempted to drive his motor vehicle home to Moscow. On the way home, [303]*303and due to his intoxicated condition, Mr. Gress lost control of his vehicle, went off the roadway and struck the guardrails in the vicinity of a bridge on a narrowing roadway called Route 690 which is owned and under the control of defendant PennDOT.

Allegedly, the vehicle of Mr. Gress came into contact with the guardrail, shot back across the roadway, crossed the centerline, and struck head-on the vehicle operated by the decedent Linda McClain, resulting in her death.

H. ISSUES

With that background set forth, we must now examine the ten issues and/or preliminary objections set forth by the remaining Dugout defendants. Those issues are as follows:

(A) Whether the plaintiffs’ complaint should be stricken for failure to conform to law pursuant to Pa.R.C.P. 1028(a)(2) and Pa.R.C.P. 2204?

(B) Whether the plaintiffs’ complaint should be stricken for failure to conform to law pursuant to Pa.R.C.P. 1028(a)(2) and Pa.R.C.P. 1019(a)?

(C) Whether Counts I and II, negligence and reckless indifference, respectively, of the third cause of action of the plaintiffs’ complaint should be dismissed in that they fail to state a claim upon which relief may be granted in accordance with Pa.R.C.P. 1028(a)(4)?

(D) Whether plaintiffs’ request for damages as set forth in Count III of the third cause of action should be dismissed for failure to state a claim upon which relief may be granted in accordance with Pa.R.C.P. 1028(a)(4)?

[304]*304(E) Whether Count III of the third cause of action should be stricken for failure to conform to law as per Pa.R.C.P. 1028(a)(2) in that plaintiffs, other than the administratrix, have been named as individual parties to said cause of action?

(F) Whether Count III of the third cause of action should be stricken for failure to conform to law as per Pa.R.C.P. 1028(a)(2) in that plaintiffs have failed to abide by Pa.R.C.P. 1019(f)?

(G) Whether Count II of the third cause of action should be stricken for failure to conform to law as per Pa.R.C.P. 1028(a)(2) in that the same is duplicative of Count V?

(H) Whether Count IV of the third cause of action should be dismissed for failing to state a claim upon which relief may be granted as per Pa.R.C.P. 1028(a) (4)?

(I) Whether paragraph 77 of Count IV of the third cause of action and the plaintiffs’ request for damages contained therein should be dismissed for failure to state a claim upon which relief may be granted as per Pa.R.C.P. 1028(a)(4)?

(J) Whether Count V of the third cause of action and the plaintiffs’ complaint, seeking punitive damages should be dismissed for failure to state a claim upon which relief may be granted as per Pa.R.C.P. 1028(a) (4)?

HI. DISCUSSION

We will now address each of the defendant Dugout’s preliminary objections in corresponding order as set forth in section II above.

[305]*305(A) Pa.R.C.P. 2204 requires that:

“In addition to all other facts required to be pleaded, the initial pleading of the plaintiff is an action for wrongful death shall state the plaintiff’s relationship to the decedent, the plaintiff’s right to bring the action, the names and last known residence addresses of all persons entitled by law to recover damages, their relationship to the decedent and that the action was brought in their behalf.”

In determining if this rule is met, the complaint must be read with common sense to carry out the purposes for which the rule was adopted. Usner v. Duersmith, 346 Pa. 494, 31 A.2d 149 (1943).

Upon review of the complaint, the court concludes there is compliance with the substance Pa.R.C.P. 2204. The complaint lists Lorraine Becchetti as the “natural sister” of the decedent and also identifies her as the administratrix of the estate of Linda McClain. The complaint identifies all other plaintiffs as “siblings” of the decedent. Without question, the complaint fully identifies, the plaintiffs’ relationship to the decedent, their alleged right to bring the cause of action, and their names and addresses as required by Pa.R.C.P. 2204.

Therefore, the defendant Dugout’s preliminary objections based on Pa.R.C.P. 1028(a)(2) and Pa.R.C.P. 2204 are overruled and dismissed at this juncture. Substantive “standing” issues will be addressed later in this memorandum. (See sections B through J, infra.)

(B) The gist of the next preliminary objection is that paragraphs 62(g)(l)(m) and (n) violate Pa.R.C.P.

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51 Pa. D. & C.4th 300, 2001 Pa. Dist. & Cnty. Dec. LEXIS 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becchetti-v-penndot-pactcompllackaw-2001.