Graupman v. Kichar et al
MEMORANDUM re 8 MOTION to Dismiss Plaintiff''s Complaint Seeking Punitive Damages filed by Cerminaro Construction Company, Inc., Wayne Kichar (order to follow).Signed by Honorable Malachy E Mannion on 2/19/13. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
as Administratrix of the Estate of
LYNN M. McKERNAN,
CIVIL ACTION NO. 3:12-1438
WAYNE S. KICHAR, and
MELISSA R. McKERNAN,
as Administratrix of the Estate of
WILLIAM R. McKERNAN,
WAYNE S. KICHAR, and
Pending before the court is the defendants’ partial motion to dismiss the
plaintiffs’ amended complaint. (Doc. No. 8)2. Upon review of the motion and
The instant consolidated actions were originally assigned to the
Honorable A. Richard Caputo. By verbal order, on January 7, 2013, the
actions were reassigned to the undersigned.
The plaintiffs, through the same counsel, had originally filed separate
related materials, the motion will be granted in part and denied in part.
By way of relevant background, on July 25, 2012, the above-named
plaintiffs filed separate diversity actions docketed to Civil Action No. 3:121438 and Civil Action No. 3:12-1439. In each action, the plaintiff was directed
to file an amended complaint which properly pleaded the citizenship of the
plaintiff and the individual defendant, Wayne S. Kichar, in order to establish
the court’s subject matter jurisdiction. The amended complaints were filed on
August 2, 2012.
On August 24, 2012, the defendants filed a partial motion to dismiss in
each of the actions, along with a supporting brief. Opposing briefs were filed
by the plaintiffs on September 7, 2012. The defendants filed a reply brief in
each action on September 21, 2012.
As noted herein, by verbal order, on January 7, 2013, the actions were
reassigned to the undersigned. Upon review, the court determined that the
civil actions docketed to Civil Action No. 3:12-1438 and Civil Action No. 3:121439. Amended complaints were filed in the actions and partial motions to
dismiss followed. Upon transfer to the undersigned, the court reviewed the
actions and found that the pleadings and filings were nearly identical. As
such, by order dated February 11, 2013, the court directed that the matters
be consolidated into Civil Action No. 3:12-1438, as captioned above. Given
this, the partial motion to dismiss filed in Civil Action No. 3:12-1439 is
considered consolidated as well and will not be considered separately herein.
actions involved identical factual allegations, as well as identical causes of
action brought against identical defendants. Only the named plaintiffs differed.
As a result, pursuant to the provisions of Fed. R. Civ. P. 42(a), by order dated
February 11, 2013, the matters were consolidated into one civil action, that
being the above-captioned Civil Action No. 3:12-1348.
The defendants’ motion to dismiss is brought pursuant to the provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
satisfy federal pleading requirements, the plaintiff must “provide the grounds
of his entitlement to relief,” which “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets
and quotations marks omitted) (quoting Twombly, 550 U.S. 544, 127 S. Ct.
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 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches 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). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d
In the amended complaint, the plaintiffs allege that William R. McKernan
and Lynn M. McKernan were fraternal twins born on September 22, 1971. On
October 6, 2011, Lynn M. McKernan was the operator of, and William R.
McKernan was the passenger in, a 2009 Nissan automobile and were
traveling together to New York City to celebrate their 40th birthday. While
passing through Pennsylvania on Interstate 84 near the interchange of
Interstates 81 and 84 and State Route 6 in the Borough of Dunmore,
defendant Wayne S. Kichar, who was operating a 1994 Chevrolet dump truck
belonging to defendant Cerminaro Construction Company, Inc., (“Cerminaro”),
entered onto a ramp connecting northbound Interstate 81 with State Route 6.
When doing so, defendant Kichar drove off of the ramp, traveled more than
500 feet across a vegetated median and entered onto Interstate 84 at or
about a perpendicular angle with Interstate 84, became airborne, and collided
with the automobile being driven by Lynn M. McKernan and occupied by
William R. McKernan, shearing off the roof in the process. As a result of the
collision, both Lynn M. McKernan and William R. McKernan suffered fatal and
severe injuries resulting in their deaths at the scene of the accident. The
plaintiffs allege that the collision and the injuries resulting in the deaths of
Lynn M. McKernan and William R. McKernan were caused solely by the
carelessness, negligence and recklessness of defendants Kichar and
The plaintiffs allege that, at the time of the accident, defendant Kichar
was operating the dump truck owned by defendant Cerminaro under the
influence of one or more illegal controlled substances, including, but not
limited to, marijuana and synthetic marijuana, a/k/a “spice.” The plaintiffs
allege that defendant Kichar had a criminal history, including a conviction for
driving under the influence, a conviction for simple assault, and a contempt
violation of a protection from abuse order3.
Plaintiffs further allege that, at the time of the accident, defendant
Kichar was an employee, servant and/or agent of defendant Cerminaro and
was operating the dump truck within the course and scope of his agency
and/or employment and under the direction and control of defendant
Cerminaro with the express and/or implied consent of defendant Cerminaro.
Plaintiffs allege that defendant Cerminaro was aware of defendant Kichar’s
The court notes that, in their 12(b)(6) motion, “[i]n order not to
overburden the Court with abundant paperwork,” the defendants, without
more, argue in a footnote that the plaintiffs’ allegations regarding defendant
Kichar’s prior convictions for contempt and assault should be stricken as
impertinent, immaterial and needlessly scandalous pursuant to Fed. R. Civ.
P. 12(f). The plaintiffs did not address this footnote in their opposing brief. As
a result, in their reply brief, the defendants, again in a footnote, argue that the
plaintiffs failed to sufficiently oppose their “informal motion” and again claim
entitlement to relief under Fed. R. Civ. P. 12(f).
With respect to the above, the court will not entertain the defendants’
“informal” motion to strike. To this extent, the defendants are advised that
there are no “informal motions” in federal court. If a party seeks relief from the
court, that party should file a motion with an appropriate supporting brief in
accordance with the Federal Rules of Civil Procedure and the Local Rules of
Court for the Middle District of Pennsylvania. Relief is not to be sought by way
of an unsupported argument placed in a footnote. That being said, out of an
abundance of caution, the plaintiffs are advised that when an argument is
raised, even by way of footnote, some acknowledgment should be given, as
failure to address the argument may be construed as a concurrence in the
criminal history and, despite his history, continued to employ him. The
plaintiffs allege that defendant Cerminaro’s actions constituted negligence,
carelessness and/or recklessness.
Based upon the above factual allegations, the plaintiffs set forth three
causes of action in their amended complaint: (1) a wrongful death claim
against both defendants, (“Count I”); (2) a survival action against both
defendants, (“Count II”); and (3) a negligent entrustment claim against
defendant Cerminaro, (“Count III”). The defendants have moved to have the
requests for punitive damages in each of these counts dismissed.
As an initial matter, in their partial motion to dismiss, the defendants
argue that, although the plaintiffs have requested punitive damages in Count
I of their amended complaint, punitive damages are not permissible in a
wrongful death claim in Pennsylvania. In their opposing brief, plaintiffs
concede this point and agree to strike their request for punitive damages in
Count I of their amended complaint asserting a cause of action for wrongful
death. As a result, that portion of the defendants’ motion which seeks
dismissal of punitive damages request in Count I of the amended complaint
is granted as unopposed.
With respect to the plaintiffs’ requests for punitive damages in Counts
II and III of the amended complaint, the defendants argue that, while the
plaintiffs have alleged that defendant Kichar was under the influence of
marijuana and/or synthetic marijuana at the time of the accident, they have
not alleged that he was actually “impaired.” In addition, the defendants argue
that the plaintiffs’ amended complaint lacks “specifics” to support the plaintiffs’
claim that defendant Kichar acted in conscious disregard for the safety of
others or had a specific appreciation of a risk that he was allegedly taking.
The defendants further argue that the plaintiffs’ have alleged insufficient
“details” in the pleadings to assert a claim for punitive damages against
defendant Cerminaro for negligent entrustment.
In considering the defendants’ arguments, the Pennsylvania Supreme
Court has adopted the approach of the Second Restatement of Torts
regarding punitive damages. See Moore v. Vislosky, 240 Fed.Appx. 457 (3d
Cir. 2007) (citing Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984)). Under
the Second Restatement of Torts, 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.” Restatement (Second) of Torts
§908(2). Pennsylvania courts and federal courts applying Pennsylvania law
have also stated that “[p]unitive damages may not be awarded for misconduct
which constitutes ordinary negligence . . .” Wayne v. First Citizen’s Nat. Bank,
846 F.Supp. 310, 320-21 (M.D.Pa. 1994) (quoting McDaniel v. Merck, Sharp
& Dohme, 367 Pa.Super. 600, 533 A.2d 436 (1987)); see also ConsulNet
Computing, Inc. v. Moore, 2008 WL 2950783 (E.D.Pa. July 30, 2008) (citing
Hall v. Jackson, 788 A.2d 390, 403 (Pa.Super. 2001) and quoting McDaniel,
533 A.2d at 447). In assessing punitive damages, the trier of fact can properly
consider the character of the defendant’s act, the nature and extent of the
harm to the plaintiff that the defendant caused or intended to cause, and the
wealth of the defendant. Id.
Concerning the plaintiffs’ requests for punitive damages in Counts II and
III of the amended complaint, although the defendants disagree, the court
finds that, at this stage of the proceedings, it is premature to grant the
defendants’ motion to dismiss these requests. Although the defendants
correctly assert that the pleading standard set forth in Ashcroft v. Iqbal, 556
U.S. 662 (2009), requires that a complaint contain sufficient factual matter
which, if accepted as true, would render a claim plausible on its face, the
federal standard still does not provide for fact pleading in which the plaintiffs
must allege every detail of their claim in order to be entitled to relief. Viewing
the facts alleged in the amended complaint in a light most favorable to the
plaintiffs, as the court must do on a motion to dismiss, it cannot be said at this
stage that the plaintiffs can prove no set of facts that would prompt an award
of punitive damages. The plaintiffs have alleged enough such that it is
sufficient to allow discovery to proceed. As such, this portion of the
defendants’ partial motion to dismiss will be denied at this time.
Based upon the foregoing, the defendants’ partial motion to dismiss the
plaintiff’s amended complaint will be granted in part and denied in part. The
motion will be granted with respect to the request for punitive damages in
Count I of the complaint, as the plaintiffs have agreed to strike this request
from their amended complaint. In all other respects, the partial motion to
dismiss will be denied. An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: February 19, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-1438-01.wpd
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