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William C. Perez and Fonda Perez v. George Bardo

March 17, 2011

WILLIAM C. PEREZ AND FONDA PEREZ,
PLAINTIFFS,
v.
GEORGE BARDO, ET AL.,
DEFENDANTS.



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

MEMORANDUM

A truck hit Plaintiff William Perez's vehicle as he drove down a Lehigh County highway in January of 2009. He and his wife, Fonda Perez, bring tort claims against the truck's driver, its owner, and two corporate entities which may also have employed the driver or operated the truck. Defendants' motion to dismiss is presently before the Court. The Court will grant this motion in part and deny it in part for the reasons stated below.

I. BACKGROUND

On January 28, 2009, George Bardo was driving a truck northbound on MacArthur Road in Lehigh County, Pennsylvania. (Compl. ¶ 10-11.) Bardo strayed into the southbound lane and collided with William Perez's truck. (Id. ¶ 12.) Bardo was driving too fast, did not have his truck under control, and failed to give sufficient notice of his approach. (Id. ¶ 13.) Bardo had also not received adequate training, disregarded traffic signals, and violated various local, state and federal regulations "pertaining to the operation of trucks and/or tractor trailers." (Id.)

Bardo was working either for Richard Durgin, O'Connors Express, Inc., or Southern Tier Custom Fabricators at the time of the accident. (Id. ¶ 10.) Plaintiffs also allege in the alternative that any of these Defendants may have owned, maintained or serviced the truck. (Id. ¶ 9.) Allegations that apply to Defendants other than Bardo include Perez's claims that Defendants:

(1) negligently entrusted the truck to Bardo; (2) failed to maintain and service the truck; and (3) were otherwise negligent, careless or reckless. (Id. ¶ 13.)

As a result of the accident, Perez suffered numerous muscle sprains and strains, in addition to lumbar spondylosis and facet arthropathy. (Id. ¶ 14.) He seeks damages for medical expenses and lost income. (Id. ¶¶ 17-18.) Fonda Perez seeks damages for the loss of her husband's society, assistance and support. (Id. ¶ 22.)

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure mandate dismissal of complaints which fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court accepts "as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom," viewing them in the light most favorable to the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

This Court applies a two-part analysis to determine whether claims should survive a Rule 12(b)(6) motion to dismiss. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The Court must first separate the factual and legal elements of each claim, accepting well-pleaded facts as true but disregarding legal conclusions. See id. Second, the Court must determine whether the facts alleged in the complaint are sufficient to show a plausible claim for relief. See id. at 211 (citing Phillips, 515 F.3d at 234-35). If the well-pleaded facts "do not permit the court to infer more than the mere possibility of misconduct," the Court should dismiss the complaint for failure to state a claim. See Jones v. ABN Amro Mortg. Grp., 606 F.3d 119, 123 (3d Cir. 2010).

III. DISCUSSION

Defendants contend that Plaintiffs: (1) have not alleged sufficient facts to support their allegations of recklessness; (2) have failed to state a claim against Durgin; and (3) made open-ended allegations of negligence that do not specifically identify each Defendant's wrongdoing. Defendants seek dismissal or, in the alternative, an order that Plaintiffs file an amended complaint "setting forth specific acts attributable to each individual Defendant and/or striking insufficiently pled allegations." (Mem. in Supp. of Defs.' Mot. to Dismiss [Mot. to Dismiss] 2.)

A. Defendants' ...


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