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Anastasio v. Kahn

January 13, 2010

THERESA ANASTASIO AND VERNON ANASTASIO, PLAINTIFFS,
v.
HARVEY KAHN, JR., ACME MARKETS, SANFORD M. SANDELMAN C/O KIN PROPERTIES, INC., SULYSE TRUSTS BY AND THROUGH SANFORD M. SANDELMAN C/O KIN PROPERTIES, INC., AND SUSTEVE TRUSTS BY AND THROUGH SANFORD M. SANDELMAN C/O KIN PROPERTIES, INC., DEFENDANTS.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

This is an action asserted under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq., and Pennsylvania common law of tort. Plaintiffs' claims arise out of an alleged motorized scooter accident which occurred in a parking lot adjacent to an Acme supermarket located in Philadelphia, Pennsylvania. This Court has jurisdiction over the ADA claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367. Presently before the Court is defendants' motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), Counts III, VI, X, and XIV of plaintiffs' Complaint, alleging strict liability tort claims against Acme Markets ("Acme") and several entities allegedly responsible for leasing the parking lot property to Acme. For the reasons set forth below, the Court grants the motion and dismisses Counts III, VI, X, and XIV of the Complaint.

II. BACKGROUND*fn1

On February 16, 2008, at approximately 12:02 pm, plaintiff Theresa Anastasio was operating a battery-powered scooter, exiting the Acme supermarket located at 1400 East Passyunk Avenue, Philadelphia, Pennsylvania. (Compl. ¶ 3.) Anastasio exited onto the sidewalk, which was at the same level as the parking area. (Compl. ¶ 5.) There were "no marked crossings, crosswalks, skywalks, tunnels or any other sort of pathway, markings or stripings on the premises to mark off where a pedestrian... could go to be sure they were safe from motor traffic." (Compl. ¶ 7.) Defendant Harvey Kahn, Jr., who was operating a vehicle within the parking area at the same time, struck Anastasio's scooter and knocked Anastasio to the ground. (Compl. ¶¶ 6, 19.) As a result of the incident, Anastasio sustained several wrist fractures and "other bodily injuries," which necessitated the surgical implantation of screws and plates in her wrist and physical therapy. (Compl. ¶ 8.)

Defendant Sanford M. Sandelman owned the above-described property, and "leased and/or provided" the property to defendant Acme for use as a parking lot for the supermarket. (Compl. ¶¶ 32, 53-54.) Defendants Sulyse Trusts and Susteve Trusts are "fiduciary relationships regarding property, enforceable solely in equity, and charging the person with title to the [parking lot] property, defendant [Sandelman], with equitable duties to deal with it for another's benefit." (Compl. ¶¶ 16-17.)

III. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff...." Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted).

"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level....'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court utilized a "two-pronged approach" which it later formalized in Iqbal. Iqbal, 129 S.Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations which constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S.Ct. at 1950. The court then assesses "the 'nub' of the plaintiff['s] complaint -- the well- pleaded, nonconclusory factual allegation[s]... to determine" whether it states a plausible claim for relief. Id.

IV. DISCUSSION

Defendants Acme Markets, Sandelman, Sulyse Trusts, and Susteve Trusts move to dismiss all strict liability counts asserted by plaintiffs in the Complaint. Defendants argue that they cannot be held strictly liable for alleged "defects" in the parking lot because a parking lot is not a "product" within the meaning of Pennsylvania law and because defendants are not "sellers" as defined by state law.

A. Second Restatement of Torts -- Section 402A

Pennsylvania has adopted the doctrine of strict liability as set out in Section 402A of the Second Restatement of Torts. Estate of Hicks v. Dana Cos., LLC, Nos. 3088 EDA 2006, 3089 EDA 2006, 2009 WL 3855179, at *25 (Pa. Super. Ct. Nov. 18, 2009) (citing Webb v. ...


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