Motion to Amend in TRAVAGLINI et al v. LEMONIUS et al| Trellis.Law

On February 12, 2021 a Complaint,Petition was filed involving a dispute between Plaintiff, N A, Travaglini, James, Travaglini, James Richard, Travaglini, Tara, and Doe, John, Lemonius, Greg, for Civil - Tort - Motor Vehicle in the District Court of Delaware County.

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TARA TRAVAGLINI AND JAMES COURT OF COMMON PLEAS
TRAVAGLINI AS PNG OF J.R.T. DELAWARE COUNTY, PA

GREG LEMONIUS
NO.: CV-2021-001651

ORDER

AND NOW, this day of , 2021, upon consideration of the

Preliminary Objections of Defendant, Greg Lemonius, and any response thereto, it is hereby

ORDERED and DECREED that Defendant’s Preliminary Objections are SUSTAINED: and

paragraphs 11(h)(1) and 11(h)(2) are hereby STRICKEN from Plaintiff's Amended Complaint,

with prejudice.

BY THE COURT:
BENNETT, BRICKLIN & SALTZBURG LLC Attorney for Defendant
By: Thomas F. Klosinski/Meghan M. Bissell
Attorney I.D. No. 82427/307797
960 Harvest Drive
Building B-Suite 100
Blue Bell, PA 19422
(267) 654-1100
klosinski@bbs-law.com
bissell@bbs-law.com

TARA TRAVAGLINI AND JAMES COURT OF COMMON PLEAS
TRAVAGLINI AS PNG OF J.R.T. DELAWARE COUNTY, PA

GREG LEMONIUS
NO.: CV-2021-001651

DEFENDANT, GREG LEMONIUS’S PRELIMINARY OBJECTIONS TO
PLAINTIFFS’ AMENDED COMPLAINT

Defendant, Greg Lemonius, by. and through his counsel, Bennett, Bricklin &

Saltzburg LLC, hereby moves this Honorable Court to sustain Defendant’s Preliminary Objections

to Plaintiffs’ Amended Complaint pursuant to Pa. R.C.P. 1028, and in support thereof avers as

follows:

I BACKGROUND

1 Plaintiffs’ claims arises out of an alleged motor vehicle accident that occurred on

or about May 10, 2020, at or near the intersection of West Chester Pike and Woodbine Avenue in

Haverford Township, Pennsylvania. A true and correct copy of Plaintiff's Amended Complaint

is attached hereto as Exhibit “A”.

2 Plaintiffs allege personal injury as a result of the May 10, 2020 accident. See

Exhibit “A”.
3 In paragraph 11 of their complaint, plaintiffs allege that “[t]he carelessness and

negligence of Defendant includes, but is not limited to:

h. Violating the following provisions of the Pennsylvania Motor Vehicle
Code:

1 Section 3316 Texting while driving;

11. Section 3736 Reckless driving;

See Exhibit “A”, J11(h)(1) and 11(h)(11).
4 Defendant, Greg Lemonius, now files the instant preliminary objections seeking to

dismiss the above subparagraphs from plaintiffs’ amended complaint.

IL. LEGAL ARGUMENT

5 Pursuant to Pa. R.C.P 1028(a), Preliminary Objections can be filed on the following

grounds:

(1) lack of jurisdiction over the subject matter of the action or the person of the
defendant, improper venue or improper form or service of a writ of
summons or a complaint;

(2) failure of a pleading to conform to law or rule of court or inclusion of
scandalous or impertinent matter;

(3) insufficient specificity in a pleading;

(4) legal insufficiency of a pleading (demurrer);

(5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a
cause of action;

(6) pendency of a prior action or agreement for alternative dispute resolution;

(7) failure to exercise or exhaust a statutory remedy; and

(8) full, complete and adequate non-statutory remedy at law.

Pa. R.C.P. 1028 (a).
6. Under Pennsylvania law, preliminary objections in the form of a demurrer
,”...admits every well-pleaded material fact set forth in the pleadings to which it is addressed as

well as all inferences reasonably deducible there from, but not conclusions of law. In order to

sustain the demurrer, it is essential that the plaintiff's amended complaint indicate on its face that

his claims cannot be sustained, and the law will not permit recovery. If there is any doubt, this

should be resolved in favor of overruling the demurrer.” National Recovery Systems v. Frebraro,

430 A.2d 686 (Pa. Super. 1981).
7
Where reasons for dismissal of allegations contained within a complaint are clearly

established, a Court may strike a complaint or strike allegations by way of preliminary objection.

See Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001); Bower v. Bower, 611 A.2d

181 (Pa. 1992); Interstate Traveler Services, Inc. V. Com. Dept. of Environmental Resources, 406

A.2d 1020 (Pa. 1979). In the instant matter and, as will be more particularly set forth, Defendant

has clearly established reasons to sustain the within Preliminary Objections.

A. Preliminary Objections in the Form of a Motion to Strike any and all Allegations
Reckless Conduct Pursuant to Pa.R.C.P. No. 1028(a)(2)-(4).

8 Paragraph 11(h)(11) alleged that the negligent and carelessness of defendant

included violating Section 3736 of the Motor Vehicle Code, titled Reckless Driving. See Exhibit

“A", G11 (h)(11).
9 Pursuant to § 3736 of the motor Vehicle Code (Reckless driving):

(a) General rule.—Any person who drives any vehicle in willful or
wanton disregard for the safety of persons or property is guilty of
reckless driving.

(b) Penalty.. —Any person who violates this section commits a summary
offense and shall, upon conviction, be sentenced to pay a fine of $200.

3
75 Pa.C.S.A. § 3736.

10. The Pennsylvania Superior Court has explained:

Reckless indifference to the interests of others”, or as it is sometimes
referred to, “wanton misconduct”, means that “the actor has intentionally
done an act of an unreasonable character, in disregard to a risk known to
him or so obvious that he must be taken to have been aware of it, and so
great as to make it highly probable that harm would follow.

McClellan v. HMO, 604 A.2d 1053, 1061 (Pa. Super. Ct. 1992) (citations omitted).

11. Under Pennsylvania law, a claim of recklessness must be supported by a showing

that the actor knew or had reason to know of facts which created a high degree of risk of physical

harm to another and that the actor deliberately proceeded to act, or failed to act, in conscious

disregard of, or indifference to, that risk. SHV Coal, Inc. v..Cont’l Grain Co., 587 A.2d 702, 704

(Pa. 1991) (discussing the type of recklessness that must be shown for a finding of punitive

damages under Pennsylvania law).

12. The Pennsylvania Supreme Court has explained:

Our case law makes it-clear that punitive damages are an “extreme
remedy” available in only the most exceptional matters. Punitive
damages may be appropriately awarded only when the plaintiff has
established that the defendant has acted in an outrageous fashion due to
either “the defendant’s evil motive or his reckless indifference to the
rights of others. ” 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.” Thus, a showing of mere negligence, or even gross
negligence, will not suffice to establish that punitive damages should be
imposed. Rather, the plaintiff must adduce evidence which goes beyond
a showing of negligence, evidence sufficient to establish that the
defendant’s acts amounted to “intentional, willful, wanton or reckless
conduct...”

Phillips v. Cricket Lighters, 883 A.2d 439, 445-46 (Pa. 2005).

4
13. Thus, in determining whether punitive damages should be awarded, “[t]he state of

mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.”

Feld v. Merriam, 485 A.2d 742, 748 (Pa. 1984). See also Chambers v. Montgomery, 192 A.2d

355, 358 (Pa. 1963) (“In determining whether punitive damages should be awarded, the act itself

together with all the circumstances including the motive of the wrongdoer and the relations

between the parties should be considered”).

14. A plaintiff must also prove that a defendant acted with an “indication of an evil

motive” to state a cause of action for reckless conduct and seek punitive damages. Martin v.

Johns-Manville Corp., 494 A.2d 1088, 1096 (Pa. 1985) (quoting Restatement (Second) of Torts §

908(2)).
15. In the instant case, Plaintiffs’ Amended Complaint is completely devoid of any

material facts demonstrating that Objecting Defendant knew or had reason to know that his

conduct created an unreasonable risk of physical harm to another or that such risk was substantially

greater than that which is necessary to make his conduct negligent.

16. Plaintiffs have not pled any facts to demonstrate that Objecting Defendant has

engaged in conduct with a malicious or reckless state of mind. Plaintiffs have merely alleged that

defendant, Greg Lemonius, turned right from West Chester Pike to Woodbine Avenue and struck

plaintiff who was on a bicycle at the time. See Exhibit “A” at 94-8.

17. Further, Plaintiffs have failed to aver any facts tending to show that the Objecting

Defendant had the state of mind required for a finding of recklessness in that Plaintiffs have failed

to aver any facts tending to show that Objecting Defendant, acted deliberately, or failed to act in

conscious disregard of a known high degree of risk of physical harm to the Plaintiffs.

5
18. Thus, even when read in the light most favorable to the Plaintiffs, the factual

allegations set forth in Plaintiffs’ Amended Complaint as against Objecting Defendants support no

more than a claim for ordinary negligence.

19. As Plaintiffs have failed to plead any facts which would support their allegations

that Objecting Defendant’s conduct constituted “reckless” conduct in violation of 75 Pa.C.S.A.

§3736, Plaintiff's allegations reckless conduct in violation of section 3736 of the Motor Vehicle

Code should be stricken from Plaintiffs Amended Complaint, with prejudice.

20. Therefore, it is respectfully requested that this Honorable Court enter the attached

Order striking paragraph 11(h)(11) from Plaintiff's Amended Complaint, with prejudice.

B. Preliminary Objections to Plaintiffs’ Amended Complaint in the form of a Motion to
Strike Allegation that Defendant, Greg Lemonius, was Using a Cell Phone at the Time
of the Accident Pursuant to Pa.R.C.P. 1028(a)(2)

21. Without any foundation in» fact, paragraph 11(h)(1) of plaintiffs amended

complaint alleges that the negligence and carelessness of defendant included violating Section

3316 of the Motor Vehicle Code, “Prohibiting Text-Based Communications”. See Exhibit “A”,

qii(h)(11).
22: Pursuant to § 3316 of the motor Vehicle Code (Prohibiting text-based

communications):

(a) Prohibition. — No driver shall operate a motor vehicle on a highway or
trafficway in this commonwealth while using an interactive wireless
communications device to send, read or write a text-based communication
while the vehicle is in motion. A person does not send, read or write a text-
based communication when the person reads, selects or enters a telephone
number or name in an interactive wireless communications device for the
purpose of activating or deactivating a voice communication or a telephone
call.
(b) (Reserved).

(c) Seizure. — The provisions of this section shall not be construed as
authorizing the seizure or forfeiture of an interactive wireless
communications device, unless otherwise provided by law.

(d) Penalty. — A person who violates subsection (a) commits a summary
offense and shall, upon conviction, be sentenced to pay a fine of $ 50.

(e) Preemption of local ordinances. — In accordance with section 6101
(relating to applicability and uniformity of title), this section supersedes and
preempts all ordinances of any municipality with regard to the use of an
interactive wireless communications device by the driver of a motor
vehicle.

( Definition. — As used in this section, the term “text-based communication”
means a text mi ge, instant message, electronic mail or other «written
communication composed or received on an interactive \ wireless
communications device.

75 Pa.C.S.A. § 3316.

23. It is believed and therefore averred by defendant that the allegation that defendant

was on his cell phone at the time of the accident is included in plaintiffs’ amended complaint in

order to either enflame the jury or allow plaintiffs to later amend their complaint to seek punitive

damages. !

1 Pennsylvania courts have already addressed this issue and have found that mere allegations of
“looking at” or “using” a cellular telephone immediately preceding an accident does not support a request
for punitive damages. See Piester v. Hickey, No. 11-cv-04720 (E.D. Pa., March 20, 2012)(finding that
even accepting all of plaintiff's allegations as true that the Defendant looked at and used his cellular phone
immediately prior to the accident did not constitute outrageous conduct enough to warrant awarding
punitive damages under Pennsylvania law); see also Xander v. Kiss, 2012 WL 168326 (Lehigh Cnty., 2012)
(dismissing plaintiffs request for punitive damages and finding plaintiff's allegations that defendant was
talking on his cellular telephone causing him to veer out of his traffic lane did not establish the defendant’s
“evil motive or reckless indifference to the plaintiffs rights”); see also Rockwell v. Knott, 32 Pa. D. & C.
5 157 (finding that punitive damages are not warranted based on alleges that defendant was involved in
an accident while looking at the display screen of a global positioning device (GPS) application on a cell
phone, rather than at the roadway at the time of the accident); see also Platikus v. Pocono Seaway Tours,
LLC, No. 6941 CV 2012 (Monroe Co. April 8, 2013) (holding that cell phone usage alone does not give
rise to a claim for punitive damages); see also Peitrulewicz v. Gil, 39 Pa. D.& C. 5" 332 (finding that
7
24. Plaintiffs have included no basis for such allegations in their amended complaint.

25. There is no indication that defendant, Greg Lemonius, was on his phone at the time

of the accident.

26. In this matter, plaintiffs have not provided any basis for their allegations. that

defendant violated 75 Pa.C.S.A. § 3316 or that he was texting at the time of the accident.

27. As the allegation that defendant was on his cell phone is not substantiated,

defendant requests that this allegation be stricken from plaintiff's amended complaint pursuant to

Pa.R.CP. 1028(a)(2).
28. Therefore, defendant, Greg Lemonius, respectfully request that paragraph 11(h)(1)

be stricken from Plaintiff's Amended Complaint, with prejudice.

WHEREFORE, it is respectfully requested that this Honorable Court strike enter the

attached order striking paragraphs 11(h)(1) and 11(h)(11) from Plaintiff's Amended Complaint,

with prejudice.

Respectfully submitted,

BENNETT, BRICKLIN & SALTZBURG LLC

defendant’s use of her cell phone at the time of the accident, absent additional allegations of erratic driving,
does not give rise to an evil motive or a conscious indifference to plaintiff's rights, and do not constitute
recklessness conduct sufficient to support a claim for punitive damages).
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BENNETT, BRICKLIN & SALTZBURG LLC Attorney for Defendant
By: Thomas F. Klosinski/Meghan M. Bissell
Attorney I.D. No. 82427/307797
960 Harvest Drive
Building B-Suite 100
Blue Bell, PA 19422
(267) 654-1100
klosinski@bbs-law.com
bissell@bbs-law.com

TARA TRAVAGLINI AND JAMES COURT OF COMMON PLEAS
TRAVAGLINI AS PNG OF J.R.T. DELAWARE COUNTY, PA

GREG LEMONIUS
NO.: CV-2021-001651

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT, GREG LEMONIUS’
PRELIMINARY OBJECTIONS TO PLAINTIFFS’ AMENDED COMPLAINT

MATTER BEFORE THE COURT

Defendant’s Preliminary Objections to Plaintiff's Amended Complaint.

Il STATEMENT OF ISSUES INVOLVED

1 Whether paragraph 11(h)(11) of Plaintiff's Amended Complaint alleging that the

negligent and carelessness of defendant included violating Section 3736 of the Motor Vehicle

Code, titled Reckless Driving, should be stricken and dismissed from the plaintiff's Amended

Complaint, with prejudice, where plaintiff pleads no facts to support this claim?

SUGGESTED ANSWER: YES

Til. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs’ claims arises out of an alleged motor vehicle accident that occurred on

or about May 10, 2020, at or near the intersection of West Chester Pike and Woodbine Avenue in

Haverford Township, Pennsylvania. A true and correct copy of Plaintiff's Amended Complaint

is attached hereto as Exhibit “A”. Plaintiffs allege personal injury as a result of the May 10,2020

accident. See Exhibit “A”.

In paragraph 1 of their complaint, plaintiffs allege that “[t]he carelessness and negligence

of Defendant includes, but is not limited to:

h. Violating the following provisions of the Pennsylvania Motor Vehicle
Code:

1 Section 3316 Texting while driving;

11. Section 3736 Reckless driving;

See Exhibit “A”) 41 1(h)(1) and 11(h)(11).
Defendant, Greg Lemonius, now files the instant preliminary objections seeking to dismiss

the above subparagraphs from plaintiffs’ amended complaint.

Iv. LEGAL ARGUMENT

Pursuant to Pa. R.C.P 1028(a), Preliminary Objections can be filed on the following

grounds:
(1) lack of jurisdiction over the subject matter of the action or the person of
the defendant, improper venue or improper form or service of a writ of
summons or a complaint;

(2) failure of a pleading to conform to law or rule of court or inclusion of
scandalous or impertinent matter;

(3) insufficient specificity in a pleading;

(4) legal insufficiency of a pleading (demurrer);

(5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of
a cause of action;

(6) pendency of a prior action or agreement for alternative dispute
resolution;

(7) failure to exercise or exhaust a statutory remedy; and

(8) full, complete and adequate non-statutory remedy at law.

Pa. R.C.P. 1028 (a).
Under Pennsylvania law, preliminary objections in the form of a demurrer,”...admits

every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all

inferences reasonably deducible there from, but not conclusions of law. In order to sustain the

demurrer, it.is essential that the plaintiff's amended complaint indicate on its face that his claims

cannot be sustained, and the law will not permit recovery. If there is any doubt, this should be

resolved in favor of overruling the demurrer.” National Recovery Systems v. Frebraro, 430 A.2d

686 (Pa. Super. 1981).
Where reasons for dismissal of allegations contained within a complaint are

clearly established, a Court may strike a complaint or strike allegations by way of preliminary

objection. See Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001); Bower v. Bower,

611 A.2d 181 (Pa. 1992); Interstate Traveler Services, Inc. V. Com. Dept. of Environmental

3
Resources, 406 A.2d 1020 (Pa. 1979). In the instant matter, Defendant has clearly established

reasons to sustain the within Preliminary Objections.

A. Preliminary Objections in the Form of a Motion to Strike any and _all Allegations
Reckless Conduct Pursuant to Pa.R.C.P. No. 1028(a)(2)-(4).

Paragraph 11(h)(11) alleged that the negligent and carelessness of defendant included

violating Section 3736 of the Motor Vehicle Code, titled Reckless Driving. See Exhibit “A”,

41 1(h)(11). Pursuant to § 3736 of the motor Vehicle Code (Reckless driving):

(c) General rule.—Any person who drives any vehicle in willful or wanton
disregard for the safety of persons or property is guilty of reckless
driving.

(d) Penalty—Any person who violates this section commits a summary
offense and shall, upon conviction, be sentenced to pay a fine of $200.

75 Pa.C.S.A. § 3736.

The Pennsylvania Superior Court has explained:

McClellan v. HMO, 604 A.2d 1053, 1061 (Pa. Super. Ct. 1992) (citations omitted).

Under Pennsylvania law, a claim of recklessness must be supported by a showing that the

actor knew or had reason to know of facts which created a high degree of risk of physical harm to

another and that the actor deliberately proceeded to act, or failed to act, in conscious disregard of,

or indifference to, that risk. SHV Coal, Inc. v. Cont’l Grain Co., 587 A.2d 702, 704 (Pa. 1991)

(discussing the type of recklessness that must be shown for a finding of punitive damages under
Pennsylvania law). The Pennsylvania Supreme Court has explained:

Our case law makes it clear that punitive damages are an “extreme
remedy” available in only the most exceptional matters. Punitive
damages may be appropriately awarded only when the plaintiff has
established that the defendant has acted in an outrageous fashion due to
either “the defendant’s evil motive or his reckless indifference to the
rights of others.” 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.” Thus, a showing of mere negligence, or even gross
negligence, will not suffice to establish that punitive damages should be
imposed. Rather, the plaintiff must adduce evidence which goes beyond
a showing of negligence, evidence sufficient to establish that the
defendant’s acts amounted to “intentional, willful, wanton or reckless
conduct...”

Phillips v. Cricket Lighters, 883 A.2d 439, 445-46 (Pa. 2005).

Thus, in determining whether punitive damages should be awarded, “[t]he state of mind of

the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” Feld

v. Merriam, 485 A.2d 742, 748 (Pa. 1984). See also Chambers v. Montgomery, 192 A.2d 355,

358 (Pa. 1963) (“In determining whether punitive damages should be awarded, the act itself

together with all the circumstances»including the motive of the wrongdoer and the relations

between the.parties should be considered”). A plaintiff must also prove that a defendant acted

with an “indication of an evil motive” to state a cause of action for reckless conduct and seek

punitive damages. Martin v. Johns-Manville Corp., 494 A.2d 1088, 1096 (Pa. 1985) (quoting

Restatement (Second) of Torts § 908(2)).

In the instant case, Plaintiffs’ Amended Complaint is completely devoid of any material

facts demonstrating that Objecting Defendant knew or had reason to know that his conduct created

an unreasonable risk of physical harm to another or that such risk was substantially greater than

that which is necessary to make his conduct negligent. Plaintiffs have not pled any facts to

5
demonstrate that Objecting Defendant has engaged in conduct with a malicious or reckless state

of mind. Plaintiffs have merely alleged that defendant, Greg Lemonius, turned right from West

Chester Pike to Woodbine Avenue and struck plaintiff who was on a bicycle at the time. See

Exhibit “A” at 4-8.

Further, Plaintiffs have failed to aver any facts tending to show that the Objecting

Defendant had the state of mind required for a finding of recklessness in that Plaintiffs have failed

to aver any facts tending to show that Objecting Defendant, acted deliberately, or failed to act in

conscious disregard of a known high degree of risk of physical harm to the Plaintiffs. Thus,even

when read in the light most favorable to the Plaintiffs, the factual allegations set forth in Plaintiffs’

Amended Complaint as against Objecting Defendants support no more than a claim for ordinary

negligence.

As Plaintiffs have failed to plead any facts which would support their allegations that

Objecting Defendant’s conduct constituted “reckless” conduct in violation of 75 Pa.C.S.A. §3736,

Plaintiff's allegations reckless conduct in violation of section 3736 of the Motor Vehicle Code

should be stricken from Plaintiff's Amended Complaint, with prejudice. Therefore, it is

respectfully requested that this Honorable Court enter the attached Order striking paragraph

11(h)(11) from Plaintiff's Amended Complaint, with prejudice.

B. Preliminary Objections to Plaintiffs’ Amended Complaint in the form of a Motion to
Strike Allegation that Defendant, Greg Lemonius was Using a Cell Phone at the Time
of the Accident Pursuant to Pa.R.C.P. 1028(a)(2)

Without any foundation in fact, paragraph 11(h)(1) of plaintiff's amended complaint

alleges that the negligence and carelessness of defendant included violating Section 3316 of the

Motor Vehicle Code, “Texting while Driving”. See Exhibit “A”, §11(h)(11). Pursuant to § 3316
of the Motor Vehicle Code (Prohibiting text-based communications):

(g) Prohibition. — No driver shall operate a motor vehicle on a highway or
trafficway in this commonwealth while using an interactive wireless
communications device to send, read or write a text-based communication
while the vehicle is in motion. A person does not send, read or write a text-
based communication when the person reads, selects or enters a telephone
number or name in an interactive wireless communications device for the
purpose of activating or deactivating a voice communication or a telephone
call.

(h) (Reserved).

(i) Seizure. — The provisions of this section shall not be construed as
authorizing the seizure or forfeiture of an interactive “wireless
communications device, unless otherwise provided by law.

(j) Penalty. — A person who violates subsection (a) commits a summary
offense and shall, upon conviction, be sentenced to pay. a fine of $ 50.

(k) Preemption of local ordinances. —.In accordance with section 6101
(relating to applicability and uniformity of title), this section supersedes and
preempts all ordinances of any municipality with regard to the use of an
interactive wireless communications device by the driver of a motor
vehicle.

QO Definition. — As usedin this section, the term “text-based communication”
means a text message,.instant message, electronic mail or other written
communication composed or received on an interactive wireless
communications device.

75 Pa.C.S.A. § 3316.
It is believed and therefore averred by defendant that the allegation that defendant was on

his cell phone at the time of the accident is included in plaintiffs’ amended complaint in order to

either enflame the jury or allow plaintiffs to later amend their complaint to seek punitive damages.”

Plaintiffs have included no basis for such allegations in their complaint. There is no indication that

defendant, Greg Lemonius, was on his phone at the time of the accident.

In this matter, plaintiffs have not provided any basis for their allegations that defendant

violated 75 Pa.C.S.A. § 3316 or that he was texting at the time of the accident. As the allegation

that defendant was on his cell phone is not substantiated, defendant requests that this allegation be

stricken from plaintiff's amended complaint pursuant to Pa.R.C.P. 1028(a)(2). Therefore,

defendant, Greg Lemonius, respectfully request that paragraph | 1(h)(1) be stricken from Plaintiff's

Amended Complaint, with prejudice.

2 Pennsylvania courts have already addressed this issue and have found that mere allegations of
“looking at” or “using” a cellular telephone immediately preceding an accident does not support a request
for punitive damages. See Piester v. Hickey, No. 11-cv-04720 (E.D. Pa., March 20, 2012)(finding that
even accepting all of plaintiff's allegations as true that the Defendant looked at and used his cellular phone
immediately prior to the accident did not constitute outrageous conduct enough to warrant awarding
punitive damages under Pennsylvania law); see also Xander v. Kiss, 2012 WL 168326 (Lehigh Cnty., 2012)
(dismissing plaintiffs request for punitive damages and finding plaintiff's allegations that defendant was
talking on his cellular telephone causing him to veer out of his traffic lane did not establish the defendant’s
“evil motive or reckless indifference to the plaintiffs rights”); see also Rockwell v. Knott, 32 Pa. D. & C.
5 157 (finding that punitive damages are not warranted based on alleges that defendant was involved in
an accident while looking at the display screen of a global positioning device (GPS) application on a cell
phone, rather than at the roadway at the time of the accident); see also Platikus v. Pocono Seaway Tours,
LLC, No. 6941 CV 2012 (Monroe Co. April 8, 2013) (holding that cell phone usage alone does not give
rise to a claim for punitive damages); see also Peitrulewicz v. Gil, 39 Pa. D.& C. 5" 332 (finding that
defendant’s use of her cell phone at the time of the accident, absent additional allegations of erratic driving,
does not give rise to an evil motive or a conscious indifference to plaintiff's rights, and do not constitute
recklessness conduct sufficient to support a claim for punitive damages).
V. RELIEF REQUESTED

It is respectfully requested that this Honorable Court strike enter the attached order striking

paragraphs 11(h)(1) and 11(h)(11) from Plaintiffs Amended Complaint, with prejudice.

Respectfully submitted,
BENNETT, BRICKLIN & SALTZBURG LLC

Vom I Fluke
BY:
Thomas F. Klosinski
Attorney for Defendant
Greg Lemonious
VERIFICATION

I, Thomas F. Klosinski, Esquire, do hereby verify that I am an authorized representative of

the within named defendant in the above-captioned action and that the facts set forth in the

foregoing Defendant’s Preliminary Objections to Plaintiffs’ Amended Complaint are true and

correct to the best of my knowledge, information and belief. I understand that false statements

made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification

to authorities.

?
7.
Cite EF isc mgh.

THOMAS F. KLOSINSKI

DATE: April 7, 2021
EXHIBIT “A”
McCANN & WALL, LLC
BY: Patrick C. Lamb, Esquire ATTORNEY FOR PLAINTIFFS
Identification Number: 70817
Two Penn Center Plaza, Suite 1110
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 569
(215) 569 8288 (fax)
TARA TRAVAGLINI and DELAWARE COUNTY
JAMES TRAVAGLINI as arentsand COURT OF COMMON PLEAS
atural uardians
JAMES RICHARDTRAVAGLINI CIVIL DIVISION
116 Sycamore Road
Havertown, PA

Plaintiffs
NO

GREG LEMONI
309 Avon Road
Upper Darby, PA 19082

JOHN DOE, owner of 2001 Ford F100
that struck plaintiff on May 10, 2020

Defendant

AMENDED COMPLAINT

NOTICE

You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take
action within twenty (20) days after this complaint and notice are served, by entering a written appearance
personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be
entered against you by the court without further notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER
OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT
WHERE YOU CAN GET LEGAL HELP.

NAME: Delaware County Bar Association
ADDRESS: Front and Lemon Streets, P.O. Box 466
CITY: Media, PA. 19063
TEL. NO.:
McCANN & WALL, LLC
BY: Patrick C. Lamb, Esquire ATTORNEY FOR PLAINTIFFS
Identification Number: 70817
Two Penn Center Plaza, Suite 1110
00 John F. Kennedy Boulevard
Philadelphia, PA 19102
(215) 569
(215) 569 8288 (fax)

TARA TRAVAGLINI and DELAWARE COUNTY
JAMES TRAVAGLINI as Parents and COURT OF COMMON PLEAS
Natural Guardians of
JAMES RICHARD TRAVAGLINI CIVIL DIVISION
116 Sycamore Road
Havertown, PA 19083

Plaintiffs

GREG LEMONIUS
309 Avon Road NO.
Upper Darby, PA 19082

JOHN DOE, owner of 2001 Ford F100
that struck plaintiff on May 10, 2020

Defendants

CIVIL ACTION AMENDED COMPLAINT

Plaintiff James Richard Travaglini, a or, individually and by his parents, Tara

Travaglini and James M. Travaglini, by and through their attorneys, McCann all, LLC,
hereby set forth this Civil Action Complaint and avers as follows:

GENERAL AVERMENTS

laintiff Tara Travaglini, James M. Travaglini and James Richard Travaglini

inorare individual residing at the above noted address.
Defendant Greg Lemoni , an adult individual residing at the above noted

address.

Defendant John Doe was the owner of a 2001 Ford F100 that struck plaintiff on

May 10, 2020 at the intersection of West Chester Pike and Woodbine Avenue.

On May 10, 2020 Minor Plaintiff was lawfully operating his bicycle in a

eastbound direction on the north sidewalk of West Chester Pike at the intersection with

WoodbineA venue.

At or about this same time Defendant Greg Lemoni was operating his vehicle

westWest Chester Pik approaching Woodbine Avenue

Defendant did not activate his turn signal as he approached the intersection with

Woodbine Avenue.

Minor Plaintiff stopped at the intersection and then proceeded into Woodbine

Avenue.

Defendant, without looking to h right to take note of the point and position of

Minor Plaintiff carelessly med onto Woodbine Avenue striking Minor Plaintiff's bike and

causing Minor Plaintiffto be thrown to the ground andcausing injuries as set out below.

The collision w_ caused solely by the negligence of efendant.

t all times material hereto, the Minor Plaintiff retained full tort rights as he was

not occupying a vehicle at the time of this collision.

The carelessness and negligence of efendant includesbut is not limited to:

Traveling at an excessive rate of speed;

Failing to keepa proper look out;
Failing to yield to the point and position of the bicycle operated by
Minor Plaintiff

Failing to maintain proper and adequate control of h_ vehicle;

Failing to properly signal his intention to turn onto Woodbine Avenue;

Failing to observe a clearly visible child on his bicycle in the crosswalk
area of Woodbine Avenue;

Failing to comply with the rules of the road in Pennsylvania;

Violating the following provisions of the Pennsylvania Motor Vehicle
Code

Section 3316 Texting while driving;

Section 3323 Stop Sign and Yield Sign;

Section 3324 Vehicle Crossing a Roadway

Section 3331 Required Position and Method of Turning

Section 3334 Turning Movementsand Required Signals;

Section 3361 Driving at safe speed;

Section 3362 Maximum Speed Limits;

Section 3112 Traffic Control Signals;

Section 3115 Lane Control Signals;

Section 3732.1 Assault by Vehicle;

Section 3736 Reckless driving;

Section 3501 Pedacycles;

Section 3331(e); and

Failing toobserve traffic conditions;

As a direct and proximate result of the collision caused by efendant Minor

Plaintiff sustained diverse personal injuries including but not limited to: fracture of his right
tibia, damage to his right leg and hip, injuries to his hands, cervical sprain and strain, internal

derangement and ligamentous injury and other injuries some or all of which entailed a

significant impairment of bodily function.

As the additional result of efendant’ negligence, Minor Plaintiff has endured

physical pain and suffering as well as emotional upset and worry.

As the further result of efendant’ negligence, the Minor Plaintiff sustained a

loss of hisability to engage inh usual and daily chores, oc cupations and pastimes.

As the additional result of efendant’ negligence, the Minor Plaintiff sustained a

loss ofh ability to enjoy life’s pleasures and a loss of the sense of well being.

As the additional result of efendant’ negligence, inor Plaintiff sustained an

impairment of h earning capacity.

HEREFORE Plaintiffs demand judgment against efendant for an amount

excess of Fifty Thousand ($50,000.00) Dollars.

COUNT Il NEGLIGENCE

PLAINTIFF,JAMES RICHARD TRAVAGLINI vy. DEFENDANT JOHN DOE

Plaintiff repeat the allegations contained in all paragraphs of the Complaint and

incorporates them by reference herein as if pleaded at length.

At the time of the aforesaid collision, the carelessness and negligence of the John

Doe fendantconsisted of the following:

Allowing Greg Lemonius to operate their vehicle at an excessive rate of
speed under the circumstances;
Allowing Greg Lemonius to drive their vehicle with knowledge that he
would likely fail to have their vehicle under proper and adequate control
under the circumstances;

Allowing Greg Lemonius to drive their vehicle with knowledge that he
would likely fail to give proper, sufficient notice of h approach;

Allowing Greg Lemonius to drive their vehicle with knowledge that he
would likely operate their vehicle with due regard to the rights, safety,
and position of the Plaintiff herein, in violation of the statutory Rules of
the Road and the laws of the Commonwealth of Pennsylvania, particularly
Pa. C.S.A § 3714 and 3361;

Allowing Greg Lemonius to drive their vehicle with knowledge that he
would likely fail to obey the Commonwealth of Pennsylvania statutory
Rules of the Road, particularly the following sections of 75 Pa. C:S.A.

Section 3316 Texting while driving;

Section 3323 Stop Sign and Yield Sign;

Section 3324 Vehicle Crossing a Roadway;

Section 3331 Required Position and Method of Turning;

Section 3334 Turning Movements and Required Signals;

Section 3361 Driving at safe speed;

Section 3362 Maximum Speed Limits;

Section 3112 Traffic Control Signals;

Section 3115 Lane Control Signals;

Section 3732.1 Assault by Vehicle;

Section 3736 Reckless driving;

Section 3501 Pedacycles; and

Section 3331(e)
Allowing Greg Lemonius to drive their vehicle with knowledge that he
would likely fail to maintain a sharp lookout of the road and surrounding
traffic conditions;

Allowing Greg Lemonius to drive their vehicle with knowledge that he
would likely operate their vehicle in a manner that he would fail to avoid
hitting Plaintiff, when Greg Lemonius saw, or in the exercise of
reasonable care should have seen that bicycle ridden by Plaintiff;and

Allowing Greg Lemonius to drive their vehicle with knowledge that he
would likely fail to exercise due care and caution under the circumstances,
particularly by disregarding Plaintiffs vehicle slowing or stopped for
traffic and travelling at such a high rate of speed that Greg Lemonius was
unable to bring his vehicle to a stop, causing an impact with Plaintiff and
personal injuries to the Plaintiff.

As a direct result of the negligence and carelessness of the Defendant , Plaintiff

sustained severe and permanent injuries including but not limited to fracture of his right tibia,

damage to his right leg and hip, injuries to his hands, cervical sprain and strain, internal

derangement and ligamentous injury, and other injuries, some or all of which entailed a

significant impairment of bodily function

As a direct result of the negligence and carelessness of the Defendant , Plaintiff

has in the past suffered and will in the future suffer great physical pain and anguish; he has

suffered a loss of the enjoyment of h usual and daily activities, and has been in the past and

may in the future be hindered from engaging in his usual and daily duties, occupations, pleasures

and activities.

As a direct result of the negligence and carelessness of the Defendant, Plaintiff

has been or will be obliged to receive and undergo medical attention and care and to incur

various expenses, and he may be obliged to continue to expend such sums or incur such

expenditures for an indefinite time in the future.
As a further direct and reasonable result of the aforesaid accident, Plaintiff has

suffered a loss of earnings and/or impairment of h earning capacity and power, all of which has

been and may continue to be to hisgreat financial damage and loss.

WHEREFORE, Plaintiff demands judgment against Defendant jointly and

severallyin a sum in excess of Fifty Thousand Dollars ($50,000.00) for compensatory damages.

McCANN & WALL, LLC

BY: 4 atriok
PATRICK C. LAMB
Counsel for Plaintiff

FILED
08-08-2021 04:05 PM
OFFICE OF JUDICIAL SUPPORT
DELAWARE COUNTY, PA

Case Info

Case No.

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Document Filed Date

April 07, 2021

Case Filing Date

February 12, 2021

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Complaint,Petition: TRAVAGLINI et al v. LEMONIUS et al

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