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SHIRLEY BASS SMITH v. JEANETTE BROWN (12/05/80)

filed: December 5, 1980.

SHIRLEY BASS SMITH, A MINOR, BY HER PARENT AND NATURAL GUARDIAN, MADELINE BASS AND MADELINE BASS, IN HER OWN RIGHT, APPELLANTS,
v.
JEANETTE BROWN



No. 2624 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 78-9995 entered on September 26, 1978.

COUNSEL

Allen L. Feingold, Philadelphia, for appellants.

Brian P. Sullivan, Norristown, for appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Stranahan

[ 283 Pa. Super. Page 119]

This appeal is from an Order of the Court of Common Pleas of Montgomery County striking Counts II and III from the appellant's complaint. We affirm the lower court's ruling.

The facts of the case are as follows: On August 27, 1977, the appellant, Shirley Bass Smith, was injured when she was struck by a car operated by the appellee, Jeanette Brown. The appellant was a minor at the time of the accident. The appellant's mother, Madeline Bass, filed a Complaint in Trespass against Ms. Brown in her daughter's name and in her own right.

Count II of that complaint was a demand for punitive damages. The appellant alleged that Ms. Brown drove her car in a "wanton and reckless manner." In paragraph 4 of the complaint, the appellant pleads the following facts in support of that allegation: (a) operation of said vehicle at a high and excessive rate of speed under the circumstances; (b) failure to have said motor vehicle under proper and adequate control; (c) failure to have due regard for the point and position of minor plaintiff who was a pedestrian; (d) violation of the ordinance of Montgomery County and the statutes of the Commonwealth of Pennsylvania; and (e) otherwise failing to exercise due care under the circumstances.

Count III of the complaint was a demand by the mother for compensatory damages for the losses she sustained because of the injuries to her daughter. The mother sought to recover the expenses she incurred in having her daughter's injuries treated and the losses she incurred as a result of being deprived of her daughter's services and income. The appellee filed preliminary objections, in the form of Motions to Strike, to Counts II and III.

[ 283 Pa. Super. Page 120]

After argument on the matter, the lower court granted appellee's Motions to Strike Counts II and III and ordered them stricken from the complaint.

The lower court based its decision upon two findings. First, the appellant failed to "plead any facts that could conceivably support a claim for punitive damages." Second, the mother's claim for damages was barred by section 301 of The No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L.489, No. 176, Section 101 et seq.

It is those two findings that are at issue in this appeal.

The appellant contends that she did plead sufficient facts to justify an award ...


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