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August 4, 1994


Francis X. Caiazza, U. S. Magistrate Judge. JUDGE STANDISH

The opinion of the court was delivered by: FRANCIS X. CAIAZZA



 It is recommended that defendants' Motion to Dismiss Count II of Amended Complaint as to Amy E. Lindsay and to Strike Plaintiffs' Punitive Damages Claim (Doc. #12) be denied.


 The parties will no doubt be surprised that a simple motion to dismiss an amended complaint has resulted in the excursion into the unplumbed depths of civil procedure that follows. Nevertheless, the issues that have been raised (explicitly and implicitly) touch the fundamental concern of the subject matter jurisdiction of the federal courts. Therefore, the die has been cast, and the Court is not free to ignore it.

 The issues will be addressed in the following sequence:

I. Procedural history.
II. Defendants' motion to strike the punitive damages claims.
III. Original jurisdiction over Count II of the Amended Complaint.
IV. Supplemental jurisdiction over Count II of the Amended Complaint.

 I. Procedural History

 On December 18, 1991, plaintiffs Judy Darlene Lindsay and Amy E. Lindsay were involved in an automobile accident with defendant Charles J. Kvortek on Interstate 79 in Cussewago Township, Crawford County, Pennsylvania. Plaintiff Rodney Lindsay Sr. was in a separate vehicle in front of his wife (Judy Lindsay) and daughter (Amy Lindsay) and was not involved in the accident. On December 13, 1993, plaintiffs filed the instant action against defendant Kvortek and Kasto Service, Inc., (together, the defendants), the owner of the vehicle driven by Kvortek. On January 7, 1994, defendants filed a motion to dismiss Count II of the Complaint as to Amy E. Lindsay, on the grounds that Count II failed to allege an amount in controversy in excess of $ 50,000 as required to sustain diversity jurisdiction pursuant to 28 U.S.C. § 1332 (a) (1). On February 11, 1994, plaintiffs filed an Amended Complaint. The Amended Complaint contained the following changes to the original Complaint:

1. Paragraph 10, which had alleged that defendant Kvortek "drove negligently or with reckless indifference" was amended to state that Kvortek "drove with gross negligence or with reckless indifference."
2. Paragraph 11, which had asserted that jurisdiction "is founded upon 28 U.S.C. 1332, diversity and pendent jurisdiction" was amended to allege only diversity jurisdiction.
3. The "wherefore" clauses of each of the three counts were amended to request punitive damages.

 Concurrently, plaintiffs filed a reply to defendants' motion to dismiss, asserting that the Amended Complaint which alleged punitive damages had mooted defendants' argument that Count II failed to allege the requisite amount in controversy.

 On March 4, 1994, Magistrate Judge Benson issued a Report and Recommendation, in which he recommended that defendants' motion to dismiss Count II of the Complaint be denied. On March 7, 1994, defendants filed the instant motion, in which they made the same arguments concerning lack of subject matter jurisdiction over Count II of the Amended Complaint as they had presented in their motion to dismiss the original complaint. In addition, defendants included a motion to strike all of the requests for punitive damages in the Amended Complaint. *fn1" Plaintiffs, who were given until June 14, 1994 to file a response, have failed to reply. Because the motion to strike plaintiffs' requests for punitive damages would, if granted, affect plaintiffs' ability to allege $ 50,000 in Count II of the Amended Complaint, the Court should first address the motion to strike. *fn2"

 II. Motion to Strike Punitive Damages Claim

 Defendants move the Court to strike plaintiffs' requests for punitive damages, asserting that plaintiffs cannot meet the standard necessary to maintain such claims. Defendants argue that: 1. the plaintiffs have not alleged outrageous conduct as required but only gross negligence, which will not support a claim for punitive damages; and 2. the averments of plaintiffs' Amended Complaint "do not demonstrate the culpable mental state of the defendants necessary, under existing Pennsylvania law, to prove the type and kind of recklessly indifferent conduct which is necessary to make out a claim for punitive damages." (Defs.' Br. Supp. Mot. Dismiss at 10.)

 With respect to defendants' second argument, it does not reflect an accurate picture of Pennsylvania law. The cases cited by the defendants do hold that the kind of situation presented in this case was not sufficient to set forth a claim for punitive damages under the applicable section of Pennsylvania's No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.301 (repealed) (the NMVIA). Harvey v. Hassinger, 315 Pa. Super. 97, 461 A.2d 814, 817 (Pa. Super. Ct. 1983); Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743, 745 (Pa. Super. Ct. 1980) Teagle v. Hart, 279 Pa. Super. 487, 421 A.2d 304, 306 (Pa. Super. Ct. 1980). This was because the NMVIA specifically provided certain exceptions to no-fault liability, and gross negligence and reckless disregard were determined not to fall within any of the statutory exceptions. Reimer v. Delisio, 296 Pa. Super. 205, 442 A.2d 731, 733 (Pa. Super. Ct. 1982), aff'd without opinion, 501 Pa. 662, 462 A.2d 1308 (Pa. 1983).

 However, the NMVIA has been repealed, and its successor, the Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. § 1701, does not contain a provision equivalent to § 301 of the NMVIA. The Court cannot rely on case law interpreting a repealed statute to determine whether punitive damages may be asserted in this action. Therefore, the Court must turn to general principles of Pennsylvania law to decide this issue.

 As a general guide in assessing punitive damages, Pennsylvania recognizes the principles set forth in § 908(2) of the Restatement (Second) of Torts. This section provides that:

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. 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.

 Restatement (Second) of Torts § 908 (2). See Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747-48 (Pa. 1984). The Court ...

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