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DITEODORO v. J. G. DURAND INTL.

June 22, 1983

ROSEANN DiTEODORO
v.
J. G. DURAND INTERNATIONAL, AND VORNADO, INC., t/a TWO GUYS



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 Before this Court is defendant Vornado, Inc.'s motion to dismiss counts IV and V of the plaintiff's complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Defendant J.G. Durand International has joined in the motion. For the reasons stated below, the motion is denied.

 I.

 Under the notice pleading contemplated by the Federal Rules, the complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Such a statement need only be detailed to the extent necessary to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 45-6, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Geisler v. Petrocelli, 616 F.2d 636, 640 (2d Cir. 1980).

 In Conley, the Supreme Court reiterated the basis for evaluating 12(b)(6) motions to dismiss: "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 355 U.S. at 45-6. Applying this standard, the motion is denied as to both counts.

 II.

 A. Count IV: Punitive Damages

 Under Pennsylvania law, punitive damages are available "for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others." Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963), citing Restatement of Torts, § 908(1) comment b. Essentially, liability for punitive damages depends on the motives behind the defendant's conduct. These motives may be averred generally, since they are based on considerations involving "malice, intent, knowledge, and other condition of mind." Fed.R.Civ.P. 9(b).

 By including Count IV in the complaint, the plaintiff gave the defendants fair notice of her claim for punitive damages. The limitation of punitive damages liability to outrageous conduct, coupled with the complaint's recitation of the chain of events leading to the plaintiff's injury, explains the grounds upon which the plaintiff's claim rests, i.e., that the defendants acted outrageously concerning the manufacture and/or sale of the dishware which allegedly caused her injury.

 In applying the test stated in Conley, the available evidence is not considered; only the legal feasibility of the complaint is assessed. Geisler, 616 F.2d at 639. Since there are numerous sets of facts which could potentially be proven to establish the outrageousness of the defendants' behavior, the complaint is legally feasible.

 Strictly speaking, the general averment of motive required by Rule 9(b) may call for a more specific allegation of the outrageousness of the defendants' conduct than exists in this complaint. However, given the adequacy of the notice to the defendants, dismissing this count on such a technicality would be a triumph of form over substance. Such a result would be contrary to the intentions of the Rules drafters to "facilitate a proper decision on the merits." Conley, 355 U.S. at 48. In order to give the Rules their intended liberal construction, defendants' motion to dismiss Count IV is denied.

 B. Count V: Unfair Trade Practices


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