Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tucker v. Bernzomatic

May 4, 2010


The opinion of the court was delivered by: O'neill, J.


Presently before me are defendants' motion to dismiss plaintiff's claim for punitive damages, plaintiff's response and defendants' reply. For the following reasons, I will grant defendants' motion.


The complaint alleges that on July 6, 2007, plaintiff Thomas Tucker was operating a Bernzomatic Mapp Gas Dispenser Torch to fix a broken pipe. The torch exploded, causing severe burns to plaintiff's face.

On November 16, 2009, plaintiff filed suit against defendants Bernzomatic, Worthington Industries, Inc. and Chilton Products in the Philadelphia Court of Common Pleas. His three count complaint alleged that defendants were liable for his injuries.*fn1 On December 10, 2009, defendants removed the case to this Court and on December 17, 2009 filed this motion to dismiss plaintiff's punitive damages claim. The parties stipulated that plaintiff would have until January 15, 2010 to respond to the motion. On January 21, 2010, plaintiff filed an untimely response.*fn2

Defendants replied on February 2, 2010. The motion is fully briefed and presently ripe for disposition.*fn3


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955, 173 L.Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949). The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11 (quoting Iqbal, 129 S.Ct. at 1950). The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.


Defendants argue that the allegations in plaintiff's complaint cannot support a claim for punitive damages and, therefore, such demand should be dismissed. Plaintiff argues in response that defendants' conduct, as alleged in the complaint, was sufficiently outrageous to warrant punitive damages. This disagreement raises two issues: first, whether defendants' conduct was outrageous; and second, whether, under Twombley and Iqbal, plaintiff has alleged sufficient facts in his complaint to show that his claim of outrageous conduct is facially plausible.

I. Defendant's Alleged Conduct Was Outrageous

Pennsylvania law provides that "punitive damages are an 'extreme remedy' available only in the most exceptional circumstances." See Doe v. Wyoming Valley Health Care Sys., Inc., 987 A.2d 758, 768 (Pa. Super. Ct. 2009) (citing Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005)). An award of punitive damages is justified only where the plaintiff has established that the defendant acted "in an outrageous fashion due to either the defendant's evil motive or his reckless indifference to the rights of others." See Phillips, 883 A.2d at 445-46. "A defendant acts recklessly when his conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent." See id.

Plaintiff argues in its brief not only that the torch was unsafe but also that defendants knew that it was unsafe and sold it nonetheless. Manufacturing and selling a product despite knowing that it is unsafe is clearly the type of conduct that would support a demand for punitive damages. The question, then, is whether the complaint contains ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.