Document 102a18wY85kJaB1JK94yNKb6o

IHS^ ^303 (a) TMIN THE COURT OT COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA MARY ANN M3NAG1AN, Inc. and as Exec. - VS - ALLIED-SIGNAL, INC., ET AL. : : : NO. 93-02928 COVER SHEET OF MOVING PARTY Date of Filing Nov. 15, 1993 Allied-Signal, Inc., The B.F. Goodrich Conpany Moving Party Ethyl Qorp. and Shell Chemical Ocnpanv Counsel for Moving Party Richard c. BiedrzyckiJ.D. No. 30604 Counsel for Other Parties Peter T. Paladino l.D. No. 36596 (If Known"] I.D. No. ' (if KnownT Document Filed (Specify) Preliminary objections of defendants Allied-Signal, Inc., "The B.F. Goodrich Gonpany, Ethyl Cbrp. and-Sfiell Chemical Conpany to plaintiff's amended ocnplaint Matter Is (Check One) __________________ AppealablexxInterlocutory Moving Party Requires (Specify Reason if Interlocutory): DISCOVERY ORAL ARGUMENT If Interlocutory, Is Memorandum of law Attached? YesNo x Check ONE ONLY of the Choices Listed Below: Respondent Is Directed to Show Cause Why the Attached Motion or Petition Should Not be Granted.__Rule_Returnable the____ day of, 198__________ ?t_9_a jn._Ct;Rm._ x Respondent Is Directed to File a Response Within Twenty (20) Days in ConformitywithPennsylyaniaRules of Civil Procedure. Respondent Is Requested to File Respondent's Cover Sheet Only Within Twenty (20)_Days._____________________ NOTE: Cover Sheet is NOT to be Used'for Matters Requiring Hearings. Service of Cover Sheet is Responsibility of Moving Party. ASI 000021450 RICHARD C. BIEDR3YCKI, ESQUIRE ATTORNEY I.D. NO. 30604 PHILLIPS AND PHELAN SUITE 1600 121 SOUTH BROAD STREET PHILADELPHIA/ PA 19107 (215) 546-0500 ATTORNEY FORx DEFENDANTS ALLIED-8I6NAL, INC. / THE B.F. GOODRICH COMPANY, ETHYL CORP. AND SHELL CHEMICAL COMPANY MARY ANN MONAGHAN, Executrix of the Estate of ROBERT F. MONAGHAN, Deceased, and MARY ANN MONAGHAN, in her own right. Plaintiff v. ALLIED-SIGNAL, INC. successorin-interest to Allied Corp., et al., Defendants COMMONWEALTH OF PENNSYLVANIA COUNTY OF MONTGOMERY CIVIL ACTION - LAW TRIAL DIVISION JURY TRIAL DEMANDED NO. 93-02928 OR D B R AND NOW, to wit, this day of , 199 , upon consideration of the preliminary objections of defendants Allied-Signal, Inc., The B.F. Goodrich Company, Ethyl Corp. and Shell Chemical Company, it is hereby ORDERED and DECREED that: 1. Preliminary Objection "A" in the nature of a motion to strike off the claims of plaintiff Mary Ann Monaghan in her own right for lack of conformity to law or rule of court pursuant to Pa.R.Civ.P. No. 1028(a)(2) is GRANTED, whereby all AS I 000021451 claims brought by plaintiff Mary Ann Monaghan on her own behalf are STRICKEN; 2. Preliminary Objection "B" in the nature of a motion to strike off strict liability claim under the Wrongful Death Act pursuant to Pa.R.Civ.P. 1028(a)(2) is GRANTED, whereby all claims for strict liability under the Wrongful Death Act are STRICKEN; 3. Preliminary Objection "C" in the nature of a motion to strike claims for damages on behalf of children under the Wrongful Death Act pursuant to Pa.R.Civ.P. No. 1028(a)(2) is GRANTED, wherby all claims for damages on behalf of decedent's children are STRICKEN; 4. Preliminary Objection "D" in the nature of a demurrer to plaintiff's claims under the Wrongful Death Act pursuant to Pa.R.Civ.P. No. 1028(a)(4) is GRANTED, whereby all claims brought by plaintiff under the Wrongful Death Act are STRICKEN; 5. Preliminary Objection "E" in the nature of a demurrer to plaintiff's claim for punitive damages pursuant to Pa.R.Civ.P. No. 1028(a)(4) is GRANTED, whereby all claims for punitive damages are STRICKEN; 6. Preliminary Objection "F" in the nature of a motion for a more specific pleading pursuant to Pa.R.Civ.P. No. 1028(a)(3) is GRANTED, whereby plaintiff is directed to file a second amended complaint within twenty (20) days from the date of -2 - ASI 000021452 this Order setting forth her claims with more specificity as follows: (a) Plaintiff shall specifically aver the dates on which plaintiff's decedent was exposed to each of the moving defendants' vinyl chloride products; (b) Plaintiff shall specifically set forth the "applicable state and federal safety regulations and safety codes for use of and exposure to VCM" as described in para graph 23(h) of the amended complaint; and (c) (In the event that plaintiff's claims for punitive damages are not stricken in their entirety] Plaintiff shall specifically set forth the specific material facts upon which she bases her claim for punitive damages including, but not limited to, which, if any, of the moving defendants possessed knowledge of the alleged carcino genicity of VCM, whether any such knowledge included knowledge of a causal association between exposure to VCM and glioblastoma multiforme or other types of brain cancer and averments as to what each defendant did or failed to do in light of such knowledge which -3 - AS I 000021453 plaintiff avers entitles her to punitive damages. BY THE COURT: J. 4 AS I 000021454 RICHARD C. BIEDRZYCKI, ESQUIRE ATTORNEY I.D. NO. 30604 PHILLIPS AND PHELAN SUITE 1600 121 SOUTH BROAD STREET PHILADELPHIA, PA 19107 (215) 546-0500 ATTORNEY FOR: DEFENDANTS ALLIED-SIGNAL, INC., THE B.F. GOODRICH COMPANY, ETHYL CORP. AND SHELL CHEMICAL COMPANY MARY ANN MONAGHAN, Executrix of the Estate of ROBERT F. MONAGHAN, Deceased, and MARY ANN MONAGHAN, in her own right, Plaintiff v. ALLIED-SIGNAL, INC. successorin-interest to Allied Corp., et al., Defendants COMMONWEALTH OF PENNSYLVANIA COUNTY OF MONTGOMERY CIVIL ACTION - LAW TRIAL DIVISION JURY TRIAL DEMANDED NO. 93-02928 PRELIMINARY OBJECTIONS OF DEFENDANTS ALLIED-SIGNAL, INC., THE B.F. GOODRICH COMPANY, ETHYL CORP. AND SHELL CHEMICAL COMPANY TO PLAINTIFF'S AMENDED COMPLAINT Defendants Allied-Signal, Inc., The B.F. Goodrich Company, Ethyl Corp. and Shell chemical Company, by and through their attorneys, file the within preliminary objections to plaintiff's amended complaint in accordance with the Pennsylvania Rules of Civil Procedure. 1 AS I 000021455 1. This wrongful death and survival action was commenced on February 5, 1993 by the filing of a praecipe for a writ of summons. A complaint was subsequently filed by plaintiff and thereafter served on or about May 12, 1993. 2. This suit was brought under the Pennsylvania Wrongful Death Act, 42 Pa.C.S.A. S 8301 ("Wrongful Death Act"), and the Pennsylvania Survival Act, 42 Pa.C.S.A. S 8302 and 20 Pa.C.S.A. SS 3371-3373 ("Survival Act"), arising out of the alleged death of Robert Monaghan ("Decedent") from glioblastoma multiforme, a malignant brain tumor, allegedly contracted as a result of his occupational exposure to vinyl chloride monomer (hereinafter "VCM") manufactured, supplied and/or sold by the defendants, including moving defendants. 3. The original complaint, set forth in eight separate counts, purported to allege causes of action by plain tiff Mary Ann Monaghan acting in three separate capacities: (a) as executrix of the estate of Robert Monaghan for recovery under the Pennsylvania Survival Act (Count VI); (b) as personal representative of the decedent for recovery under the Wrongful Death Act and pursuant to Pa.R.C.P. No. 2202(a) (Count V); and (c) as reflected in the damnum clauses, in her own right as the surviving spouse of decedent (Counts I, II, III, VII and VIII). 4. The defendants filed preliminary objections to the original complaint on June 1, 1993. 2 ASI 000021456 5. In lieu of filing a response to defendants' preliminary objections, on or about October 25, 1993 plaintiff served on moving defendants an amended complaint pursuant to Pa.R.Civ.P. 1028(c)(1). 6. Defendants hereby preliminarily object to plain tiff's amended complaint as follows. A. Preliminary Objection In The Nature Of A Notion To Strike Off The claims Of Plaintiff Mary Ann Monaghan In Her Own Right For Lack Of conformity To Law Or Rule Of Court Pursuant To Pa.R.Civ.P. No. I028(aim. 7. In paragraph 29 of her amended complaint, plain tiff avers that she is bringing this action not only as the personal representative of the decedent and on behalf of all persons entitled to recover under the Wrongful Death Act, but on her own behalf. 8. Additionally, in paragraphs 36 and 37 of her amended complaint, plaintiff claims damages for her alleged loss of the decedent's services, society and companionship until his death. 9. A surviving spouse cannot maintain a separate cause of action on her own behalf not brought during the lifetime of her deceased spouse, including a cause of action for loss of consortium, since such damages are recoverable only in an action pursuant to the Wrongful Death Act and therefore the claims of plaintiff Mary Ann Monaghan are permitted only in her representa tive, not her individual, capacity. 3 AS I 000021457 WHEREFORE, moving defendants respectfully request this Honorable Court to strike any and all claims brought by plaintiff on her own behalf. B. Preliminary Objection Pursuant To Pa.R.Civ.P. Mo. 1028(a)(2) In The Nature Of A Motion To Strike off strict Liability Claim Under The Wrongful Death Act. 10. Moving defendants incorporate by reference the averments set forth in paragraphs 1 through 9 as though same were set forth herein at length. 11. In her amended complaint, plaintiff attempts to set forth causes of action against the defendants for negligence (55 22-25) and strict liability (55 26-27). 12. Under the Wrongful Death Act, recovery is permit ted only for the ''wrongful act or neglect or unlawful violence or negligence of another ..." and, therefore, those claims of plaintiff Mary Ann Monaghan seeking recovery pursuant to the Wrongful Death Act for strict liability must be stricken as such claims are not cognizable under said Act. WHEREFORE, moving defendants respectfully request this Honorable Court to strike plaintiff's claims for strict liability under the Wrongful Death Act. 4 ASI 000021458 D. Preliminary Objection Pursuant To Pa.R.civ.P. Ko. 1028(a)(4) In The Mature Of a Demurrer To Plaintiff's Claims Under The Wrongful Death Act. 17. Moving defendants incorporate by reference the averments set forth in paragraphs l through 16 as though same were set forth herein at length. 18. In her amended complaint, plaintiff avers that during his lifetime decedent filed no "valid" action to recover damages for the acts or omissions which alleged ultimately caused his death. 19. An action may be brought under the Wrongful Death Act, 42 Pa.C.S.A. S 8301(a), only if no action, valid or invalid, was brought by the injured individual during his lifetime, and therefore any action for recovery under the Wrongful Death Act would be barred if decedent had brought anv action, valid or otherwise, during his lifetime, for damages proximately resulting from another's wrongful act, neglect, unlawful violence or negli gence . 20. Plaintiff has failed to aver that decedent had commenced no action during his lifetime and therefore plaintiff has failed to plead all of the necessary elements of a cause of action under the Wrongful Death Act. WHEREFORE, moving defendants respectfully request that this Honorable Court dismiss all claims brought by plaintiff under the Wrongful Death Act. ASI 000021459 6 c. Preliminary Objection Pursuant To Pa.R.civ.P. N . 1028(a) (.) In The Mature Of A Motion To Strike claims For Damages On Behalf Of Children Under The Wrongful Death Act, 13. Moving defendants incorporate by reference the averments set forth in paragraphs l through 12 as though same were set forth herein at length. 14. In paragraph 31 of her amended complaint, plain tiff alleges that, in addition to herself, decedent's children, Michele M. Nicholas and Patrick Monaghan, "are entitled to proceed under the Wrongful Death Act." 15. Plaintiff's amended complaint fails to aver that said children suffered any pecuniary loss through any deprivation of the earnings of the decedent which said children would have received but for the death of the decedent, which loss is a necessary element to a right of recovery on behalf of children of a decedent under the Wrongful Death Act. 16. Since plaintiff's amended complaint does not aver the necessary element of such pecuniary loss to decedent's children, plaintiff has failed to set forth claims for recovery of damages on behalf of decedent's children for which relief can be granted and therefore said claims should be stricken* WHEREFORE, moving defendants respectfully request this Honorable Court to strike all claims for damages on behalf of decedent's children. 5- AS I 000021460 E. Preliminary Objection In The Nature Of A Demurrer pursuant To Pa.R.civ.P. No. 1028(a)(4) For Plaintiff's Failure To Plead Sufficient Facts Upon Which A Claim For Punitive pamaaag Mav Be Brought. 21. Moving defendants incorporate by reference the averments set forth in paragraphs 1 through 20 above as though same were set forth herein at length. 22. In paragraph 35 (d) of her amended complaint, plaintiff seeks "punitive and exemplary damages" in her second cause of action under the Survival Act for the alleged "willful, wanton and gross negligence of the defendants as fully set forth in paragraphs 24 and 25." 23. However, all that plaintiff avers in paragraphs 24 and 25 is that beginning at some point prior to decedent's employment, vinyl chloride became known in the scientific and medical literature as a hazardous substance, including as a cause of cancer, which knowledge was allegedly known and available to the defendants, but that despite such knowledge, the defendants continued to supply vinyl chloride to decedent's employer. 24. Plaintiff's conclusory allegations of willful, wanton and gross negligence set forth in paragraphs 24 and 25 of plaintiff's amended complaint are insufficient to support a claim for punitive damages. WHEREFORE, moving defendants respectfully request this Honorable Court to dismiss all claims by plaintiff for punitive damages. 7 ASj 02i 46 j p. Preliminary Objection in Th Mature Of A Motion For More Specific Pleading Pursuant To pa.R.Civ.P. Mo. 1028(a) (3).________________ 25. Moving defendants incorporate by reference the averments set forth in paragraphs 1 through 24 above as though same were set forth herein at length. 26. Plaintiff's amended complaint fails to comply with Pa.R.Civ.P. No. 1019 regarding specificity of pleadings in the following respects: (a) Failing to aver the dates on which decedent was exposed to each of the moving defendants' vinyl chloride products; (b) Failing to set forth with specificity the alleged "applicable state and federal safety regulations and safety codes for use of and exposure to VCM", as described in paragraph 23(h) of the amended complaint; and (c) Failing to sufficiently set forth specific material facts upon which plaintiff's claim for punitive damages is based including, but not limited to, which, if any, of the moving defendants allegedly possessed knowledge of the alleged carcinogenicity of VCM, whether any such knowledge included knowledge of a causal association between exposure to VCM and glioblastoma multiforme or other types of brain cancer, along with averments as to what each defendant did or failed to do in light of such knowledge which constitutes "extreme and outrageous conduct" which would entitle plaintiff to punitive damages in her survival action. 8 ASI 000021462 WHEREFORE, moving defendants respectfully request this Honorable Court for an order, in the event that plaintiff's claims are not stricken or dismissed, requiring plaintiff to file a more specific complaint, upon default of which any remaining claims of plaintiff should be stricken. C:\UP51\RCB\1561\P0.PAC\Rose\11-11-93 RICttARD C. BIEDRZYCKl Attorney for Defendants Allied-Signal, Inc., The B.F. Goodrich Company, Ethyl Corp. and Shell Chemical Company 9 Asl 00002 1463 CERTIFICATE OF SERVICE The undersigned hereby certifies that he has this date caused true and correct copies of the attached preliminary objections of defendants Allied-Signal, Inc., The B.F. Goodrich Company, Ethyl Corp. and Shell Chemical Company to be served on all counsel of record by forwarding same first-class mail, postage prepaid, addressed as follows: (SEE ATTACHED SERVICE LIST) Dated: ASI 0000214G4 *1 f SERVICE T.TST Monaghan v. Allied Chemical Coro.. et al. Plaintiff Borden Chemicals and Plastics BCP Management, Inc. Monochem, Inc. Borden, Inc. Dow Chemical Corp. Dow chemical USA PPG Industries, Inc. PETER T. PALADINO, JR,, ESQUIRE HENDERSON & GOLDBERG, P.C. 1030 FIFTH AVENUE THIRD FLOOR PITTSBURGH, PA 15219 (412) 471-3890 FAX: (412) 471-8308 VICTORIA H. ROBERTS, ESQUIRE RAWLE & HENDERSON THE WIDENER BUILDING ONE SOUTH PENN SQUARE PHILADELPHIA, PA 19107 (215) 575-4358 FAX: (215) 563-2583 JOSEPH M. CINCOTTA, ESQUIRE MANTA AND WELGB ONE COMMERCE SQUARE 37TH FLOOR 2005 MARKET STREET PHILADELPHIA, PA 19103 (215) 851-6608 FAX: (215) 851-6644 AS I 000021465