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DONNA LYNN FAVINGER, COURT OF COMMON PLEAS
DELAWARE COUNTY
PLAINTIFF,
JURY TRIAL DEMANDED
Vv.
No. CV-2019-008576
LOUIS BRUNI, INDIVIDUALLY, AS HEIR
OF ALFRED BRUNI, DECEASED, AND AS
EXECUTOR OF THE ESTATE OF ALFRED
BRUNI, DECEASED,
DEFENDANT,
PAUL COLUCCI,
ADDITIONAL DEFENDANT.
ORDER
AND NOW on this day of , 2020, upon
consideration of the Preliminary Objections to Defendant Bruni’s Joinder Complaint and
supporting Brief of Additional Defendant, Paul Colucci, and any response thereto, it is hereby
ORDERED and DECREED that said Objections are SUSTAINED. It is further ORDERED
that as to Moving Defendant:
1 The Joinder Complaint is stricken with prejudice for failure to state a claim and
Defendant Colucci is dismissed with prejudice from this case.
Alternatively:
1 Count I is Stricken with prejudice for failure to state a claim;
2 Paragraphs §9(b), (c), and (g) are stricken for lack of specificity;
Count III is stricken with prejudice for failure to state a claim;
All requests from Defendant Bruni for attorney’s fees and costs are stricken from
the Joinder Complaint with prejudice;
The Joinder Complaint is dismissed without prejudice for failure to include the
proper verification.
Defendant Bruni has twenty (20) days from the date of this order to amend the
joinder complaint for any count not permanently stricken.
BY THE COURT:
To the Plaintiff:
You are hereby notified to plead to the
Preliminary Objections enclosed herewith
within twenty (20) days of service hereof, or
default judgment may be entered against you.
BY
Gu
Robert J. Balch, Esquire
POST & SCHELL, P.C.
BY: ROBERT J. BALCH, ESQUIRE
E-MAIL: RBALCH@POSTSCHELL.COM
I.D. #202990
BY: ANTHONY M. KNAPP, ESQUIRE
E-MAIL: AKNAPP@POSTSCHELL.COM
I.D. #318554
TOWER 6, SUITE 200 ATTORNEYS FOR ADDITIONAL
600 HAMILTON STREET DEFENDANT, PAUL COLUCCI
ALLENTOWN, PA 18101
610-774-0317
DONNA LYNN FAVINGER, COURT OF COMMON PLEAS
DELAWARE COUNTY
PLAINTIFF,
JURY TRIAL DEMANDED
Vv
No. CV-2019-008576
LOUIS BRUNI, INDIVIDUALLY, AS.HEIR
OF ALFRED BRUNI, DECEASED, AND AS
EXECUTOR OF THE ESTATE OF ALFRED
BRUNI, DECEASED,
DEFENDANT,
PAUL COLUCCI,
ADDITIONAL DEFENDANT.
PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT, PAUL COLUCCI, TO
DEFENDANT LOUIS BRUNI, INDIVIDUALLY, AS HEIR OF ALREFD BRUNI,
DECASED AND AS EXECUTOR OF THE ESTATE OF ALREFED BRUIN’S JOINDER
COMPLAINT
Additional Defendant, Paul Colucci, (hereinafter “Moving Defendant”) by and through
his counsel, Post & Schell, P.C., hereby submits these Preliminary Objections to Defendants
Louis Bruni, individually, as heir of Alfred Bruni, deceased, and as Executor of the Estate of
Alfred Bruni, Deceased’s (“Bruni”) Joinder Complaint, as follows:
I FACTUAL AND PROCEDURAL HISTORY
1 Plaintiff initiated the above-captioned matter by filing a Complaint on or around
October 15, 2019.
2 On June 4, 2020 Plaintiff filed an Amended Complaint alleging that she fell in an
obscured hole while she was walking at 3900 Mount Road, Aston, Pennsylvania. See a copy of
the amended complaint.
3 Plaintiff further alleges that Defendant Bruni “owned and/or operated the subject
property”, was “in possession” of the subject property”, and “the Property where Plaintiff fell
was not possessed by anyone other than Defendant” Bruni. Id. at $18, 19, 21.
4 In its Answer to Plaintiffs Amended Complaint, Defendant Bruni admitted
ownership of the subject property. See a copy of Bruni’s Answer to Plaintiff's Amended
Complaint, 46.
5 On August 28, 2020, Defendant Bruni filed a Joinder Complaint against Moving
Defendant. See a copy of the Joinder Complaint.
Moving Defendant has requested from Defendant Bruni copies of all pleadings filed prior to be joined to
this case but have not received a response. Therefore, Moving Defendant has downloaded copies of the pleadings
from the court docket which are marked “copying prohibited.” Thus Moving Defendant is able to view said
documents, but not able to attach them to its Preliminary Objections.
6. In it, Defendant Bruni alleges the area where Plaintiff fell, despite the admissions
made by Plaintiff regarding exclusive possession of the property, was leased by Moving
Defendant. Id. at 47.
7
Defendant Bruni alleges breach of contract, contractual indemnification, and
common law indemnification against Moving Defendant.
8 Defendant Bruni seeks reimbursement of attorney’s fees, and other consequential
and incidental damages. See, ad damnum clause at the end of Counts II and III.
9 Defendant Bruni’s Joinder Complaint is defective in several respects necessitating
the filing of the instant Preliminary Objections.
Il. LEGAL ARGUMENT
10. Preliminary objections may be filed by any party to any pleading and include the
following grounds:
(3) failure of a pleading to conform to law or rule of court or
inclusion of scandalous or impertinent matter; [and]
(4) legal insufficiency of a pleading (demurrer).
Pa. R. C)P. 1028(a)(3) & (4).
11. “All preliminary objections shall be raised at one time. They shall state
specifically the grounds relied upon and may be inconsistent. Two or more preliminary
objections may be raised in one pleading.” Pa. R. C. P. 1028(1)(b).
12. It is well-established that the role of a trial court in ruling on preliminary
objections is to determine whether the facts, as pled, are legally sufficient to permit the claim to
continue. Firing v. Kephart, 353 A.2d 833, 835 (Pa. 1976).
13. Pa.R.C.P. 1028(a)(4) allows for preliminary objections based on legal sufficiency
of a pleading or a demurrer.
14. When reviewing preliminary objections in the form of a demurrer, “all well-
pleaded material, factual averments and all inference fairly deducible therefrom” are presumed to
be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000).
15. That said, mere conclusions of law, unwarranted inferences from the facts,
argumentative allegations, or expressions of opinions are not considered to be admitted as true.
Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999).
16. A demurrer should be sustained when, based on the well-pleaded facts, no
recovery is possible, Willet v. Pa. Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997);
Cianfrani vy. Comm. State Employees Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp,
364 A.2d 691 (Pa. 1976).
17. Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure permits the filing of
a preliminary objection in the nature of a demurrer when a plaintiff's allegations, even if taken to
be true, do not state a cause of action. Pa. R.Civ.P. 1028(a)(4).
A DEFENDANT’S JOINDER COMPLAINT FAILS TO STATE A CAUSE
OF ACTION AGAINST MOVING DEFENDANT.
18. Plaintiff's Amended Complaint states quite clearly she was a resident of Lot 12 at
the Subject Property. See Amended Complaint at 1.
19. The Amended Complaint then goes on to state specifically the area wherein
Plaintiff fell was located on the part of the property owned, possessed, and controlled by
Defendant Bruni. Id. at §9]14,15,21,22.
20. The Amended Complaint does not state that she fell in the area controlled by
other private owners.
21. Notably, Plaintiff filed two (2) complaints in this case and never sued Moving
Defendant.
22. Further, Defendant Bruni admitted in their Answer to the Amended Complaint he
owns “the Subject Property” wherein Plaintiff alleges she fell. See Exhibit “B” 46.
23. Defendant Bruni also stated they lacked sufficient knowledge and information as
to the allegations someone other than Bruni controlled the subject area. Id. at 421-22.
24. Despite claiming they lack sufficient knowledge to make this determination in
their Answer, Bruni alleges in the Joinder Complaint the area is controlled by Moving
Defendant, who resides on a different Lot Number than Plaintiff.
25. There is not a single averment in Plaintiff's complaint that she fell in Lot 11. —the
area purportedly leased by Answering Defendant.
26. The only purported factual support Defendant Bruni produced for these claims
was the lease agreement between Bruni and Moving Defendant. See the copy of the lease
agreement attached to the Joinder Complaint, attached hereto as Exhibit “A.”
27. Assuming for the sake of argument only the lease agreement from 1990 is
accurate, and actually in effect in 2018 when Plaintiff alleges she fell, the lease fails to provide
any well pleaded facts supporting the-alleged duties and obligations of Moving Defendant in
relation to the area where Plaintiff fell.
28. Indeed, the lease itself is vague and ambiguous as it leases to Moving Defendant,
Lot #11 (not Lot #12 where Plaintiff resided), an area defined by the phrase “35’ x 75’ more or
less.” (emphasis added).
29. It is well-established that the role of a trial court in ruling on preliminary
objections is to determine whether the facts, as pled, are legally sufficient to permit the claim to
continue. Firing v. Kephart, 353 A.2d 833, 835 (Pa. 1976).
30. However, mere conclusions of law, unwarranted inferences from the facts,
argumentative allegations, or expressions of opinions are not considered to be admitted as true.
Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999).
31. Here, Bruni skips over the sworn fact that the accident occurred on property he
admits to owning and his own admitted lack of knowledge as to anyone else being in control of
the area of the fall, and claims without support that Answering Defendant owed legal duties with
respect to the area of the fall.
32. A demurrer should be sustained when, based on the well-pleaded facts; no
recovery is possible, Willet v. Pa. Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997);
Cianfrani v. Comm. State Employees Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp,
364 A.2d 691 (Pa. 1976).
33. Here, having failed to provide any well-pleaded facts that anyone other than
Defendant Bruni could reasonably have owned or controlled the subject area, this Court should
sustain Defendant’s Preliminary Objections.
WHEREFORE, Moving Defendants respectfully request that this Honorable Court
sustain its Preliminary Objections and enter the attached proposed Order.
B DEFENDANT BRUNI’S CLAIM FOR NEGLIGENC IN COUNT I FAILS
AS A MATTER OF LAW AS IT IS BARRED BY THE GIST OF ACTION
DOCTRINE
34. Bruni’s negligence claim fails as a matter of law as it is a tort action which arises
from the obligations of the parties as defined by the specific terms of the subject contract which
Bruni alleges is applicable.
The following motion is only necessary if the Court does not grant Moving Defendant's first motion
seeking dismissal of the entire complaint.
35. “Whether the gist of the action doctrine applies in any particular setting is a
question of law.” Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 620 (E.D. Pa. 2010).
36. The Gist of the Action doctrine “precludes plaintiffs from re-casting ordinary
breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Advertising, Inc., 811
A.2d 10, 14 (Pa. Super. 2002)(emphasis added).
37. The gist of action doctrine bars tort claims: (1) arising solely from a contract
between the parties; (2) where the duties allegedly breached were created and grounded in the
contract itself where the liability stems from a contract; (3) where the liability stems from a
contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the
success of which is wholly dependent on the terms of a contract. Mirizio v. Joseph, 4 A.3d 1073
(Pa. Super. 2010)(citing eToll, Inc., 811 A.2d at 19).
38. In reviewing Bruni’s Count I claim for indemnification and contribution, it is
apparent the negligence claim is based upon alleged duties Bruni alleges arise from the aged
lease and purported contract between the parties. See Joinder Complaint, Count I.
39. No additional facts are alleged in the Joinder Complaint which are separate and
distinct from facts supporting, arguendo, breach of the terms and duties set forth in the contract
between the parties.
40. Indeed, the duty to perform work at all (and the scope of duties owed) arise
allegedly from the attached contract and contractual relationship between the parties. See
Exhibit “A.”
Al. Bruni’ negligence count is a mere “catch all’ cause of action that is duplicative of
the breach of contract claim. To prove negligence, Bruni must also prove the existence of a
contractual duty and breach of that duty. In other words, if Moving Defendant complied with
the terms of the lease, Moving Defendant could not have breached a duty of reasonable care in
performance of its contractual duties.
42. Based on the foregoing, Bruni’s negligence claims are barred by the gist of action
doctrine as they arise solely from the alleged breach of contract between the parties, are
established based from obligations created by the contract, and are essentially duplicates of its
breach of contract claim.
43. Accordingly, Count I must be stricken with prejudice.
WHEREFORE, Moving Defendants respectfully requests that this Honorable Court
sustain its Preliminary Objections and enter the attached proposed Order.
C. A MOTION TO STRIKE BRUNI’S CAUSE OF ACTION FOR LACK OF
CONFORMITY TO LAW AND/OR RULE OF COURT PURSUANT TO
PA. R.C.P. 1028(A)(2) OR MOTION FOR MORE SPECIFIC PLEADING
PURSUANT TO PA. R.C.P. 1028(A)(3)
44. Under Pennsylvania pleading rules, it is well-settled that the material facts on
which a cause of action or defense is based shall be stated in a concise and summary form. Pa.
R.C.P. 1019.
45. In fact, a plaintiff's allegations may be stricken for lack of specificity to support
his or her claims of negligence against a defendant. Pa.R.C.P. 1028(a)(3).
46. Pennsylvania is a fact-pleading state, and a complaint “must not only apprise the
defendant of what the plaintiff's claim is and the grounds upon which it rests but must also
formulate issues by summarizing those facts essential to support the claim.” Cassell v.
Shellenberger, 514 A.2d 163, 165 (Pa. Super. 1986) appeal denied, 529 A.2d 1078 (1987); Alpha
Tau Omega Fraternity v. University of Pennsylvania, 464 A.2d 1349, 1352 (Pa. 1983). The
Only pleaded in the alternative should this Honorable Court not grant Subsections A or B seeking
dismissal of the joinder complaint entirely, or dismissal of Count I, respectively.
defendant in a civil action is entitled to be apprised of facts with specificity so that he or she may
reasonably prepare an appropriate response. See Id.
47. A preliminary objection in the nature of a request to strike is appropriate where a
plaintiff asserts boilerplate allegations without sufficient factual specificity. See Connor v.
Allegheny General Hospital, 461 A.2d 600 (Pa. 1983) See also Harry v. Brown, 1991 Pa. Dist. &
Cnty. Dec. LEXIS 413, 3-4 (Pa. C.P. 1991).
48. Defendant Bruni has asserted the following overly broad, non-specific allegations
of negligence:
failing to maintain the leased premises in accordance with applicable
ordinances, rules, regulations and/or requirements of federal, state and/or local
governmental authorities;
failing to comply with applicable federal, state and/or local codes;
violated relevant sections of the restatement (Second) of torts.
See Exhibit “C” at 49.
49. These paragraphs include broad, catch-all allegations of negligence and are
nearly identical to the allegation of “otherwise fail[ed] to use due care and caution under the
circumstances” discussed in Connor, supra.
50. There is no requirement under the lease agreement Bruni alleges controls,
addressing any specific standards, codes or regulations which Moving Defendant must follow.
S51. Finally, as phrased, these paragraphs could be used to insert new theories of
negligence after the statute of limitations has expired because the paragraphs are so broad and
vague.
§2. Indeed, the paragraphs appear to be designed to allow Bruni the ability to plead
negligence theories that are not yet contemplated when Bruni seeks the forgoing, undefined
violations. This is plainly improper. See Lerner v. Lerner, 954 A.2d 1229, 1235-36 (Pa. Super.
2008)
53. The material facts on which a cause of action or defense is based shall be stated in
a concise and summary form. Pa. R. C. P. 1019. Where a plaintiff generally alleges that a
defendant has violated a statute his or her claim may be stricken as insufficiently specific. See
Feingold v. McNulty, 2009 Phila. Ct. Com. PI. LEXIS 167 (Pa. C.P. 2009) See also Green.v.
Klein, 2010 Pa. Dist. & Cnty. Dec. LEXIS 444, 4 (Monroe Cnty. 2010).
54. As such, it is appropriate for this Honorable Court to strike Count I due to lack of
specificity.
55. For all of the above reasons, Bruni’s claim in Count I of the Joinder Complaint
must be stricken.
WHEREFORE, Moving Defendants respectfully request that this Honorable Court
sustain its Preliminary Objections and enter the attached proposed Order.
D. PRELIMINARY OBJECTION TO COUNT III IN THE NATURE OF A
DEMURRER PURSUANT TO PA.R.CIV.P. 1028(A)(4)
56. Preliminary Objections in the nature of a demurrer are proper when the law is
clear that a plaintiffis not entitled to recovery based on the facts alleged in the complaint. See
HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 652 A.2d 1278, 1279 (1995).
57. When considering preliminary objection in the nature of a demurrer, the court
must accept as true “all well-pleaded material facts set forth in the complaint and all inferences
fairly deducible from those facts.” Small v. Horn, 554 Pa. 600, 722 A.2d 664, 668 (1998)
(emphasis added). The Court need not accept as true conclusory statements that are unsupported
by factual averments. Dorfman v. Pennsylvania Social Servs. Union B Local 668, 752 A.2d 933,
937 (Pa. Commw. Ct. 2000).
58. In Count III of Bruni’s Joinder Complaint, Bruni alleges Moving Defendant owns
Bruni contractual indemnification. For the following reasons, this claim is legally insufficient on
its face.
59. Pennsylvania Courts have made clear that regardless of whether the
indemnification claim is based on common law or contract, the duty to indemnify another party
is a conditional obligation and could not reasonably be determined until the underlying claim has
concluded. See McClure v. Deerland Corp., 401 Pa. Super. 226, 585 A.2d 19 (1991)(emphasis
added), (holding that claim for contractual indemnification was premature before underlying
claim was resolved by settlement or judgment, and that, “the mere expenditure of counsel fees
does not constitute the accrual of a cause of action for indemnification”); F.J. Schindler
Equipment Co. v. Raymond Co., 274 Pa.Super. 530, 418 A.2d 533 (1980), (holding that a claim
for indemnification before actual payment is made is premature).
60. Additionally, the language of the alleged clause is so vague and ambiguous such
that it is rendered unenforceable under the law.
61. The entirety of the indemnification agreement states:
“Indemnify and save Lessor harmless from any and all loss occasioned by
Lessee’s breach of any of the covenants, terms and conditions of this lease, or
caused by his family, guests”,... etc.
See Exhibit “A” §8(i).
62. This language, as drafted by Bruni, appears to attempt to indemnify his own
negligent actions that occur concurrently or separate from the actions of Moving
Defendant/Lessee.
63. Agreements to indemnify another party for liability stemming from its own acts of
negligence are disfavored and are strictly construed against the party which drafted them.
Hershey Foods Corp. v. General Electric Service Co., 619 A.2d 285 (Pa.Super. 1992).
64. For a party to obtain indemnification for its own negligent conduct, the
Pennsylvania courts have held that the contract must contain clear and unequivocal language to
that effect. Perry v. Payne, 217 Pa. 252, 66 A. 553 (Pa. 1907); Ruzzi v. Butler Petroleum Co.,
527 Pa. 1, 588 A.2d 1 (Pa. 1991). See also, Greer v. City of Philadelphia, 568 Pa. 244, 795 A.2d
376 (Pa. 2002), (recently reaffirming those principles).
65. Known as the “Perry-Ruzzi Rule”, words of “general import” such as broad
contract language calling for indemnification with respect to “all claims” ‘any and all
liability”, or even language calling for indemnity “to the fullest extent permitted by law” are
considered legally insufficient to shift liability to the indemnitor for the indemnitee’s negligence.
Id
66. There.can be no presumption that one party intended to assume responsibility for
the negligent acts of another unless the agreement expresses that intent beyond doubt and by
express stipulation. City of Wilkes-Barre v. Kaminski Brothers, Inc., 804 A.2d 89 (Pa.Cmwlth.
2002).
67. Here the bare bones, boilerplate language drafted by Defendant Bruni specifically
lack clear and unequivocal language to support Bruni’s claim.
68. Indeed, the language of “any and all loss” as used in the lease is specifically used
as an example of a violation of the Perry-Ruzzi Rule, and is thus enforceable. Id.
69. Additionally, Plaintiff's complaint makes clear at least Plaintiff has averred
Defendant Bruni is the negligent actor, thus Bruni cannot shield himself from his own negligence
via a contractual indemnification clause that is insufficient under the law.
70. Thus, Count III of Bruni’s Joinder Complaint must be dismissed with prejudice.
WHEREFORE, Moving Defendant respectfully request that this Honorable Court
sustain its Preliminary Objections and enter the attached proposed Order.
E PRELIMINARY OBJECTION TO ATTORNEY’S FEES REQUEST IN
THE NATURE OF A DEMURRER PURSUANT TO PA.R.CIV.P.
1028(A)(4).
71. There is no language in the lease that requires or allows for Bruni to recover
attorney’s fees pursuant to the language of the lease arising from Moving Defendant’s alleged
actions or inactions in this case. See Exhibit “A.”
72. Courts in Pennsylvania have consistently followed the "American rule" that a
Plaintiff is not entitled to recover attorney fees absent express statutory authority, a clear
agreement of the parties or some other established exception to the American rule. Merlino v.
Delaware County, 728 A.2d 949 (Pa. 1999).
73. The Joinder Complaint requests attorney’s fees in the “Wherefore” clause at the
end of each count, but fails to cite to any statutory, or contractual basis for this request. See
Joinder Complaint.
74. Bruni’s Joinder Complaint fails to provide a basis for the claim of attorney fees,
and it should be stricken with prejudice as a measure of damages in this case.
WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its
Preliminary Objections and enter the attached proposed Order.
F. MOTION TO DISMISS DEFENDANT BRUNI’S JOINDER COMPLAINT
FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT
88. Under Pennsylvania Rule of Civil Procedure 1028(a)(2), preliminary objections
may be filed for failure of a pleading to conform to law or rule of court. Pa. R.C.P. 1028(a)(2).
89. Under Rule 1024, “[e]very pleading containing an averment of fact not appearing
of record in the action or containing a denial of fact shall state that the averment or denial is true
upon the signer’s personal knowledge or information and belief and shall be verified.” Pa.
R.C.P. 1024. Additionally, “[t]he verification shall be made by one . . . of the parties filing the
pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the
jurisdiction of the court and the verification of none of them can be obtained within the time
allowed for filing the pleading. In such cases, the verification may be made by any person
having sufficient knowledge or information.and belief and shall set forth the source of the
person’s information as to matters not stated upon his or her own knowledge and the reason why
the verification is not made by.a party.” Pa. R.C.P. 1024(c).
90. Bruni’s Joinder Complaint contains no verification signed by him. Rather, it is
verified by his attorney. See End of Joinder Complaint.
91. While the verification states that Defendant is outside the jurisdiction of this court
for an unspecified period of time, this does not comport with Defendant’s admission in his
answer he resides in Chadds Ford. See Bruni Answer, 42.
92. Further, Bruni had months to obtain the verification and substitute it for that of his
counsel, who cannot possibly attest to the factual averments made in the Complaint. This
includes the factual averment that Plaintiff fell somewhere other than where Plaintiff claims she
fell.
93. This appears to be the entire basis for the joinder complaint itself, so it is very
concerning this salient fact has not been verified by the party.
94. Accordingly, the Joinder Complaint should be dismissed in its entirety, without
prejudice, for failure to conform to law or rule of court.
WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its
Preliminary Objections and enter the attached proposed Order.
POST & SCHELL, P.C.
DATED: September 18, 2020 ROBERT J. BALCH, ESQUIRE
ANTHONY M. KNAPP, ESQUIRE
ATTORNEYS FOR ADDITIONAL
DEFENDANT, PAUL COLUCCI
POST & SCHELL, P.C.
BY: ROBERT J. BALCH, ESQUIRE
E-MAIL: RBALCH@POSTSCHELL.COM
I.D. #202990
BY: ANTHONY M. KNAPP, ESQUIRE
E-MAIL: AKNAPP@POSTSCHELL.COM
I.D. #318554
TOWER 6, SUITE 200
600 HAMILTON STREET ATTORNEYS FOR ADDITIONAL
ALLENTOWN, PA 18101 DEFENDANT, PAUL COLUCCI
610-774-0317
DONNA LYNN FAVINGER, COURT OF COMMON PLEAS
DELAWARE COUNTY
PLAINTIFF,
JURY TRIAL DEMANDED
Vv.
No. CV-2019-008576
LOUIS BRUNI, INDIVIDUALLY, AS HEIR
OF ALFRED BRUNI, DECEASED, AND AS
EXECUTOR OF THE ESTATE OF ALFRED
BRUNI, DECEASED,
DEFENDANT,
V.
PAUL COLUCCI,
ADDITIONAL DEFENDANT.
CERTIFICATE OF SERVICE
I, ROBERT J. BALCH, ESQUIRE hereby states that a true and correct copy of the
foregoing Preliminary Objections to Joinder Complaint, has been served via electronic
filing and first-class mail, postage prepared and addressed as follows upon:
COUNSEL FOR PLAINTIFF:
The Law Offices of Stone and Stone, LLC
Matthew C. Stone, Esquire
4126 Edgmont Avenue
Brookhaven, PA 19015
20864370V1
COUNSEL FOR BRUNI:
Law Office of Terkowitz & Hermesmann
Lisa A. Green, Esquire
309 Fellowship Road, Suite 200
Mt. Laurel, NJ 08054
POST & SCHELL, P.C.
DATED: September 18, 2020 ROBERT J. BALCH, ESQUIRE
ANTHONY M: KNAPP, ESQUIRE
ATTORNEYS FOR ADDITIONAL
DEFENDANT, PAUL COLUCCI
20864370v1
POST & SCHELL, P.C.
BY: ROBERT J. BALCH, ESQUIRE
E-MAIL: RBALCH@POSTSCHELL.COM
I.D. #202990
BY: ANTHONY M. KNAPP, ESQUIRE
E-MAIL: AKNAPP@POSTSCHELL.COM
I.D. #318554
TOWER 6, SUITE 200 ATTORNEYS FOR ADDITIONAL
600 HAMILTON STREET DEFENDANT, PAUL COLUCCI
ALLENTOWN, PA 18101
610-774-0317
DONNA LYNN FAVINGER, COURT OF COMMON PLEAS
DELAWARE COUNTY
PLAINTIFF,
JURY TRIAL DEMANDED
Vv.
No. CV-2019-008576
LOUIS BRUNI, INDIVIDUALLY, AS HEIR
OF ALFRED BRUNI, DECEASED, AND AS
EXECUTOR OF THE ESTATE OF ALFRED
BRUNI, DECEASED,
DEFENDANT,
PAUL COLUCCI,
ADDITIONAL DEFENDANT.
MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS OF
ADDITIONAL DEFENDANT, PAUL COLUCCI, TO DEFENDANT LOUIS BRUNI,
INDIVIDUALLY, AS HEIR OF ALREFD BRUNI, DECASED AND AS EXECUTOR OF
THE ESTATE OF ALREFED BRUIN’S JOINDER COMPLAINT
I MATTER BEFORE THE COURT
Additional Defendant, Paul Colucci, (hereinafter “Moving Defendant”) by and through
his counsel, Post & Schell, P.C., hereby submits this Memorandum of Law in support of his
Preliminary Objections to Defendants Louis Bruni, individually, as heir of Alfred Bruni,
20815746v1
deceased, and as Executor of the Estate of Alfred Bruni, Deceased’s (“Bruni”) Joinder
Complaint.
Il. STATEMENT OF THE CASE
Moving Defendant incorporates its support motion for preliminary objections to
Defendant Bruni’s Joinder Complaint as if set forth herein at length.
lil. STATEMENT OF QUESTIONS PRESENTED
WHETHER THE JOINDER COMPLAINT FAILS AS
A MATTER OF LAW?
Suggested Response: YES
WHETHER COUNT I FAILS AS A MATTER OF
LAW?
Suggested Response: YES
WHETHER COUNT I LACKS SUFFICENT
SPECIFICITY AND CERTIN SUBPARAGRAPGHS
SHOULD BE DISMISSED
Suggested Response: YES
WHETHER COUNT III FAILS AS A MATTER OF
LAW?
Suggested Response: YES
WHETHER PLAINTIFFS’ CLAIMS FOR
ATTORNEY’S FEES SHOULD BE DISMISSED?
Suggested Response: YES
WHETHER THE JOINDER COMPLAINT SHOULD
BE DISMISSED WITHOUT PREJUDICE FOR
FAILURE TO CONFORM TO RULE OR LAW OF
COURT?
Suggested Response: YES
20815746v1
Iv. LEGAL ARGUMENT
Preliminary Objections may be filed by any party to any pleading and include the
following grounds:
(3) failure of a pleading to conform to law or rule of court or
inclusion of scandalous or impertinent matter; [and]
(4) legal insufficiency of a pleading (demurrer).
Pa. R. C. P. 1028(a)(3) & (4).
“All preliminary objections shall be raised at one time. They shall state specifically the
grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised
in one pleading.” Pa. R. C. P. 1028(1)(b). It is well-established that the role ofa trial court in
ruling on preliminary objections is to determine whether the facts, as pled, are legally sufficient
to permit the claim to continue. Firing v. Kephart, 353 A.2d 833, 835 (Pa. 1976).
Pa.R.C.P. 1028(a)(4) allows for preliminary objections based on legal sufficiency of a
pleading or a demurrer. When reviewing preliminary objections in the form of a demurrer, “all
well-pleaded material, factual averments and all inference fairly deducible therefrom” are
presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super.
2000). That said, mere conclusions of law, unwarranted inferences from the facts, argumentative
allegations, or expressions of opinions are not considered to be admitted as true. Giordano v.
Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999).
A demurrer should be sustained when, based on the well-pleaded facts, no recovery is
possible, Willet v. Pa. Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997); Cianfrani v.
Comm. State Employees Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp, 364 A.2d
691 (Pa. 1976). Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure permits the filing
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of a preliminary objection in the nature of a demurrer when a plaintiff's allegations, even if taken
to be true, do not state a cause of action. Pa. R.Civ.P. 1028(a)(4).
A DEFENDANT’S JOINDER COMPLAINT FAILS TO STATE A CAUSE OF
ACTION AGAINST MOVING DEFENDANT.
Plaintiff's Amended Complaint states quite clearly, she was a resident of Lot 12 at the
Subject Property. See Amended Complaint at 41. The Amended Complaint then goes on to state
specifically the area wherein Plaintiff fell was located on the part of the property owned,
possessed, and controlled by Defendant Bruni. Id. at §914,15,21,22. The Amended Complaint
does not state that she fell in the area controlled by private owners. Notably, Plaintiff filed two
complaints in this case and never sued Moving Defendant.
Further, Defendant Bruni admitted in their Answer to the Amended Complaint they own
“the Subject Property” wherein Plaintiff alleges she fell. See Answer 6. However, Defendant
Bruni also stated they lacked sufficient knowledge and information as to the allegations no one
other than Bruni controlled the subject area. Id. at §{[21-22. Despite claiming they lacked
sufficient knowledge to make this determination in their Answer, they then alleged in the Joinder
Complaint the area is controlled by Moving Defendant, who they allege resides on a different
Lot Number than Plaintiff. There is not a single averment in Plaintiff's complaint that she fell in
Lot 11. The only purported factual support Defendant Bruni produced for these claims was the
lease agreement between Bruni and Moving Defendant. See the copy of the lease agreement
attached to the Joinder Complaint, attached hereto as Exhibit “A.”
Assuming for the sake of argument only the lease agreement from 1990 is accurate, and
actually in effect in 2018 when Plaintiff alleges she fell, fails to provide any well pleaded facts
supporting the lease even addresses the duties and obligations of Moving Defendant in relation to
the area where Plaintiff fell. Indeed, the lease itself is vague and ambiguous as it leases to
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Moving Defendant, Lot #11 (not Lot #12 where Plaintiff resided), an area defined by the phrase
“35° x75’ more or less.” (emphasis added). “More or less” cannot possibly be sufficient, without
more, for Defendant Bruni to survive a Motion to Dismiss for Failure to State a claim. It is well-
established that the role of a trial court in ruling on preliminary objections is to determine
whether the facts, as pled, are legally sufficient to permit the claim to continue. Firing v.
Kephart, 353 A.2d 833, 835 (Pa. 1976). That said, mere conclusions of law, unwarranted
inferences from the facts, argumentative allegations, or expressions of opinions are not
considered to be admitted as true. Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999),
Here, Bruni skips over the allegations that the accident occurred on property he admitted
to owning, then alleges the fell occurred someplace other than where Plaintiff averred it
occurred, while at the same time stating it “lacked sufficient knowledge and information”
address the same issue in its Answer. Further, assuming arguendo, “more or less” was sufficient,
the lease itself is entirely silent as to any duty of Moving Defendant to surveyor the area for
natural or man-made-holes and warn others of them. See p. 2 of Exhibit “D.” A demurrer should
be sustained when, based on the well-pleaded facts, no recovery is possible, Willet v. Pa.
Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997); Cianfrani v. Comm. State Employees
Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp, 364 A.2d 691 (Pa. 1976).
Here, having failed to provide any well-pleaded facts that anyone other than Defendant
Bruni could reasonably have controlled the subject area, this Court must grant Moving
Defendant’s Motion to Dismiss the Joinder Complaint against Moving Defendant, with
prejudice.
WHEREFORE, Moving Defendants respectfully request that this Honorable Court
sustain its Preliminary Objections and enter the attached proposed Order.
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B DEFENDANT BRUNI’S CLAIM FOR NEGLIGENC IN COUNT I FAILS
AS A MATTER OF LAW AS IT IS BARRED BY THE GIST OF ACTION
DOCTRINE
Bruni’s negligence claim fails as a matter of law as it is a tort action which arises from
the obligations of the parties as defined by the specific terms of the subject contract which Bruni
alleges is applicable. “Whether the gist of the action doctrine applies in any particular setting is a
question of law.” Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 620 (E.D. Pa. 2010). The
Gist of the Action doctrine “precludes plaintiffs from re-casting ordinary breach of contract
claims into tort claims.” eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14(Pa.
Super. 2002)(emphasis added).
The gist of action doctrine bars tort claims: (1) arising solely from a contract between the
parties; (2) where the duties allegedly breached were created and grounded in the contract itself
where the liability stems from a contract; (3) where the liability stems from a contract; or (4)
where the tort claim essentially duplicates a breach of contract claim or the success of which is
wholly dependent on the terms of a contract. Mirizio v. Joseph, 4 A.3d 1073 (Pa. Super.
2010)(citing eToll, Inc., 811 A.2d at 19). In reviewing Bruni’s Count I claim for indemnification
and contribution, it is apparent the negligence claim is based upon alleged duties Bruni alleges
arise from the contract between the parties. See Joinder Complaint, Count I.
No additional facts are alleged in the Joinder Complaint which are separate and distinct
from facts supporting, arguendo, breach of the terms and duties set forth in the contract between
the parties. Indeed, the duty to perform work at all (and the scope of duties owed) arise allegedly
from the attached contract and contractual relationship between the parties. See Exhibit “A.”
Bruni’ negligence count is a mere “catch all’ cause of action that is duplicative of the breach of
contract claim. To prove negligence, Bruni must also prove the existence of a contractual duty
20815746v1
and breach of that duty. In other words, if Moving Defendant complied with the terms of the
lease, Moving Defendant could not have breached a duty of reasonable care in performance of its
contractual duties.
Based on the foregoing, Bruni’ negligence claims are barred by the gist of action doctrine
as they arise solely from the alleged breach of contract between the parties, are established based
from obligations created by the contract, and are essentially duplicates of its breach of contract
claim. Accordingly, Count I must be stricken with prejudice.
WHEREFORE, Moving Defendants respectfully requests that this Honorable Court
sustain its Preliminary Objections and enter the attached proposed Order.
C. A MOTION TO STRIKE PLAINTIFFS’ CAUSE OF ACTION FOR
VIOLATION OF THE UTPCPL FOR LACK OF CONFORMITY TO LAW
AND/OR RULE OF COURT PURSUANT TO PA, R.C.P. 1028(A)(2) OR
MOTION FOR MORE SPECIFIC PLEADING PURSUANT TO PA. R.C.P.
1028(A)(3)
Under Pennsylvania pleading rules, it is well-settled that the material facts on which a
cause of action or defense is based shall be stated in a concise and summary form. Pa. R.C.P.
1019. In fact, a plaintiffs allegations may be stricken for lack of specificity to support his or her
claims of negligence against a defendant. Pa.R.C.P. 1028(a)(3). Pennsylvania is a fact-pleading
state, and a complaint “must not only apprise the defendant of what the plaintiff's claim is and
the grounds upon which it rests but must also formulate issues by summarizing those facts
essential to support the claim.” Cassell v. Shellenberger, 514 A.2d 163, 165 (Pa. Super. 1986)
appeal denied, 529 A.2d 1078 (1987); Alpha Tau Omega Fraternity v. University of
Pennsylvania, 464 A.2d 1349, 1352 (Pa. 1983). The defendant in a civil action is entitled to be
apprised of facts with specificity so that he or she may reasonably prepare an appropriate
response. See Id. A preliminary objection in the nature of a request to strike is appropriate where
20815746v1
a plaintiff asserts boilerplate allegations without sufficient factual specificity. See Connor v.
Allegheny General Hospital, 461 A.2d 600 (Pa. 1983) See also Harry v. Brown, 1991 Pa. Dist. &
Cnty. Dec. LEXIS 413, 3-4 (Pa. C.P. 1991).
Defendant Bruni has asserted the following overly broad, non-specific allegations of
negligence:
failing to maintain the leased premises in accordance with applicable
ordinances, rules, regulations and/or requirements of federal, state and/or local
governmental authorities;
failing to comply with applicable federal, state and/or local codes;
violated relevant sections of the restatement (Second) of torts.
See Joinder Complaint at 99.
These paragraphs include broad, catch-all allegations of negligence and are nearly
identical to the allegation of “otherwise fail[ed] to use due care and caution under the
circumstances” discussed inConnor, supra. There is no requirement under the lease agreement
Bruni alleges controls, addressing any specific standards, codes or regulations which Moving
Defendant must follow. Finally, as phrased, these paragraphs could be used to insert new
theories of negligence after the statute of limitations has expired because the paragraphs are so
broad and vague. Indeed, the paragraphs appear to be designed to allow Bruni the ability to
plead negligence theories that are not yet contemplated when Bruni seeks the forgoing,
undefined violations. This is plainly improper. See Lerner v. Lerner, 954 A.2d 1229, 1235-36
(Pa. Super. 2008). The material facts on which a cause of action or defense is based shall be
stated in a concise and summary form. Pa. R. C. P. 1019. Where a plaintiff generally alleges that
a defendant has violated a statute his or her claim may be stricken as insufficiently specific. See
20815746v1
Feingold v. McNulty, 2009 Phila. Ct. Com. Pl. LEXIS 167 (Pa. C.P. 2009) See also Green v.
Klein, 2010 Pa. Dist. & Cnty. Dec. LEXIS 444, 4 (Monroe Cnty. 2010).
As such, it is appropriate for this Honorable Court to strike Count I due to lack of
specificity. For all of the above reasons, Bruni’s claim in Count I of the Joinder Complaint must
be stricken.
WHEREFORE, Moving Defendants respectfully request that this Honorable Court
sustain its Preliminary Objections and enter the attached proposed Order.
D. PRELIMINARY OBJECTION TO COUNT II IN THE NATURE OF A
DEMURRER PURSUANT TO PA.R.CIV.P. 1028(A)(4)
Preliminary Objections in the nature of a demurrer are proper when the law is clear that a
plaintiff is not entitled to recovery based on the facts alleged in the complaint. See HCB
Contractors v. Liberty Place Hotel Associates, 539 Pa..395, 652 A.2d 1278, 1279 (1995).
When considering preliminary objection in the nature of a demurrer, the court must accept as
true “all well-pleaded material facts set forth in the complaint and all inferences fairly deducible
from those facts.” Small v. Horn, 554 Pa. 600, 722 A.2d 664, 668 (1998) (emphasis added). The
Court need not accept as true conclusory statements that are unsupported by factual averments.
Dorfman v. Pennsylvania Social Servs. Union B Local 668, 752 A.2d 933, 937 (Pa. Commw. Ct.
2000).
In Count III of Bruni’s Joinder Complaint, Bruni alleges Moving Defendant owns Bruni
contract
Preview
DONNA LYNN FAVINGER, COURT OF COMMON PLEAS DELAWARE COUNTY PLAINTIFF, JURY TRIAL DEMANDED Vv. No. CV-2019-008576 LOUIS BRUNI, INDIVIDUALLY, AS HEIR OF ALFRED BRUNI, DECEASED, AND AS EXECUTOR OF THE ESTATE OF ALFRED BRUNI, DECEASED, DEFENDANT, PAUL COLUCCI, ADDITIONAL DEFENDANT. ORDER AND NOW on this day of , 2020, upon consideration of the Preliminary Objections to Defendant Bruni’s Joinder Complaint and supporting Brief of Additional Defendant, Paul Colucci, and any response thereto, it is hereby ORDERED and DECREED that said Objections are SUSTAINED. It is further ORDERED that as to Moving Defendant: 1 The Joinder Complaint is stricken with prejudice for failure to state a claim and Defendant Colucci is dismissed with prejudice from this case. Alternatively: 1 Count I is Stricken with prejudice for failure to state a claim; 2 Paragraphs §9(b), (c), and (g) are stricken for lack of specificity; Count III is stricken with prejudice for failure to state a claim; All requests from Defendant Bruni for attorney’s fees and costs are stricken from the Joinder Complaint with prejudice; The Joinder Complaint is dismissed without prejudice for failure to include the proper verification. Defendant Bruni has twenty (20) days from the date of this order to amend the joinder complaint for any count not permanently stricken. BY THE COURT: To the Plaintiff: You are hereby notified to plead to the Preliminary Objections enclosed herewith within twenty (20) days of service hereof, or default judgment may be entered against you. BY Gu Robert J. Balch, Esquire POST & SCHELL, P.C. BY: ROBERT J. BALCH, ESQUIRE E-MAIL: RBALCH@POSTSCHELL.COM I.D. #202990 BY: ANTHONY M. KNAPP, ESQUIRE E-MAIL: AKNAPP@POSTSCHELL.COM I.D. #318554 TOWER 6, SUITE 200 ATTORNEYS FOR ADDITIONAL 600 HAMILTON STREET DEFENDANT, PAUL COLUCCI ALLENTOWN, PA 18101 610-774-0317 DONNA LYNN FAVINGER, COURT OF COMMON PLEAS DELAWARE COUNTY PLAINTIFF, JURY TRIAL DEMANDED Vv No. CV-2019-008576 LOUIS BRUNI, INDIVIDUALLY, AS.HEIR OF ALFRED BRUNI, DECEASED, AND AS EXECUTOR OF THE ESTATE OF ALFRED BRUNI, DECEASED, DEFENDANT, PAUL COLUCCI, ADDITIONAL DEFENDANT. PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT, PAUL COLUCCI, TO DEFENDANT LOUIS BRUNI, INDIVIDUALLY, AS HEIR OF ALREFD BRUNI, DECASED AND AS EXECUTOR OF THE ESTATE OF ALREFED BRUIN’S JOINDER COMPLAINT Additional Defendant, Paul Colucci, (hereinafter “Moving Defendant”) by and through his counsel, Post & Schell, P.C., hereby submits these Preliminary Objections to Defendants Louis Bruni, individually, as heir of Alfred Bruni, deceased, and as Executor of the Estate of Alfred Bruni, Deceased’s (“Bruni”) Joinder Complaint, as follows: I FACTUAL AND PROCEDURAL HISTORY 1 Plaintiff initiated the above-captioned matter by filing a Complaint on or around October 15, 2019. 2 On June 4, 2020 Plaintiff filed an Amended Complaint alleging that she fell in an obscured hole while she was walking at 3900 Mount Road, Aston, Pennsylvania. See a copy of the amended complaint. 3 Plaintiff further alleges that Defendant Bruni “owned and/or operated the subject property”, was “in possession” of the subject property”, and “the Property where Plaintiff fell was not possessed by anyone other than Defendant” Bruni. Id. at $18, 19, 21. 4 In its Answer to Plaintiffs Amended Complaint, Defendant Bruni admitted ownership of the subject property. See a copy of Bruni’s Answer to Plaintiff's Amended Complaint, 46. 5 On August 28, 2020, Defendant Bruni filed a Joinder Complaint against Moving Defendant. See a copy of the Joinder Complaint. Moving Defendant has requested from Defendant Bruni copies of all pleadings filed prior to be joined to this case but have not received a response. Therefore, Moving Defendant has downloaded copies of the pleadings from the court docket which are marked “copying prohibited.” Thus Moving Defendant is able to view said documents, but not able to attach them to its Preliminary Objections. 6. In it, Defendant Bruni alleges the area where Plaintiff fell, despite the admissions made by Plaintiff regarding exclusive possession of the property, was leased by Moving Defendant. Id. at 47. 7 Defendant Bruni alleges breach of contract, contractual indemnification, and common law indemnification against Moving Defendant. 8 Defendant Bruni seeks reimbursement of attorney’s fees, and other consequential and incidental damages. See, ad damnum clause at the end of Counts II and III. 9 Defendant Bruni’s Joinder Complaint is defective in several respects necessitating the filing of the instant Preliminary Objections. Il. LEGAL ARGUMENT 10. Preliminary objections may be filed by any party to any pleading and include the following grounds: (3) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; [and] (4) legal insufficiency of a pleading (demurrer). Pa. R. C)P. 1028(a)(3) & (4). 11. “All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading.” Pa. R. C. P. 1028(1)(b). 12. It is well-established that the role of a trial court in ruling on preliminary objections is to determine whether the facts, as pled, are legally sufficient to permit the claim to continue. Firing v. Kephart, 353 A.2d 833, 835 (Pa. 1976). 13. Pa.R.C.P. 1028(a)(4) allows for preliminary objections based on legal sufficiency of a pleading or a demurrer. 14. When reviewing preliminary objections in the form of a demurrer, “all well- pleaded material, factual averments and all inference fairly deducible therefrom” are presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000). 15. That said, mere conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinions are not considered to be admitted as true. Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999). 16. A demurrer should be sustained when, based on the well-pleaded facts, no recovery is possible, Willet v. Pa. Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997); Cianfrani vy. Comm. State Employees Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp, 364 A.2d 691 (Pa. 1976). 17. Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure permits the filing of a preliminary objection in the nature of a demurrer when a plaintiff's allegations, even if taken to be true, do not state a cause of action. Pa. R.Civ.P. 1028(a)(4). A DEFENDANT’S JOINDER COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST MOVING DEFENDANT. 18. Plaintiff's Amended Complaint states quite clearly she was a resident of Lot 12 at the Subject Property. See Amended Complaint at 1. 19. The Amended Complaint then goes on to state specifically the area wherein Plaintiff fell was located on the part of the property owned, possessed, and controlled by Defendant Bruni. Id. at §9]14,15,21,22. 20. The Amended Complaint does not state that she fell in the area controlled by other private owners. 21. Notably, Plaintiff filed two (2) complaints in this case and never sued Moving Defendant. 22. Further, Defendant Bruni admitted in their Answer to the Amended Complaint he owns “the Subject Property” wherein Plaintiff alleges she fell. See Exhibit “B” 46. 23. Defendant Bruni also stated they lacked sufficient knowledge and information as to the allegations someone other than Bruni controlled the subject area. Id. at 421-22. 24. Despite claiming they lack sufficient knowledge to make this determination in their Answer, Bruni alleges in the Joinder Complaint the area is controlled by Moving Defendant, who resides on a different Lot Number than Plaintiff. 25. There is not a single averment in Plaintiff's complaint that she fell in Lot 11. —the area purportedly leased by Answering Defendant. 26. The only purported factual support Defendant Bruni produced for these claims was the lease agreement between Bruni and Moving Defendant. See the copy of the lease agreement attached to the Joinder Complaint, attached hereto as Exhibit “A.” 27. Assuming for the sake of argument only the lease agreement from 1990 is accurate, and actually in effect in 2018 when Plaintiff alleges she fell, the lease fails to provide any well pleaded facts supporting the-alleged duties and obligations of Moving Defendant in relation to the area where Plaintiff fell. 28. Indeed, the lease itself is vague and ambiguous as it leases to Moving Defendant, Lot #11 (not Lot #12 where Plaintiff resided), an area defined by the phrase “35’ x 75’ more or less.” (emphasis added). 29. It is well-established that the role of a trial court in ruling on preliminary objections is to determine whether the facts, as pled, are legally sufficient to permit the claim to continue. Firing v. Kephart, 353 A.2d 833, 835 (Pa. 1976). 30. However, mere conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinions are not considered to be admitted as true. Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999). 31. Here, Bruni skips over the sworn fact that the accident occurred on property he admits to owning and his own admitted lack of knowledge as to anyone else being in control of the area of the fall, and claims without support that Answering Defendant owed legal duties with respect to the area of the fall. 32. A demurrer should be sustained when, based on the well-pleaded facts; no recovery is possible, Willet v. Pa. Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997); Cianfrani v. Comm. State Employees Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp, 364 A.2d 691 (Pa. 1976). 33. Here, having failed to provide any well-pleaded facts that anyone other than Defendant Bruni could reasonably have owned or controlled the subject area, this Court should sustain Defendant’s Preliminary Objections. WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. B DEFENDANT BRUNI’S CLAIM FOR NEGLIGENC IN COUNT I FAILS AS A MATTER OF LAW AS IT IS BARRED BY THE GIST OF ACTION DOCTRINE 34. Bruni’s negligence claim fails as a matter of law as it is a tort action which arises from the obligations of the parties as defined by the specific terms of the subject contract which Bruni alleges is applicable. The following motion is only necessary if the Court does not grant Moving Defendant's first motion seeking dismissal of the entire complaint. 35. “Whether the gist of the action doctrine applies in any particular setting is a question of law.” Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 620 (E.D. Pa. 2010). 36. The Gist of the Action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002)(emphasis added). 37. The gist of action doctrine bars tort claims: (1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself where the liability stems from a contract; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract. Mirizio v. Joseph, 4 A.3d 1073 (Pa. Super. 2010)(citing eToll, Inc., 811 A.2d at 19). 38. In reviewing Bruni’s Count I claim for indemnification and contribution, it is apparent the negligence claim is based upon alleged duties Bruni alleges arise from the aged lease and purported contract between the parties. See Joinder Complaint, Count I. 39. No additional facts are alleged in the Joinder Complaint which are separate and distinct from facts supporting, arguendo, breach of the terms and duties set forth in the contract between the parties. 40. Indeed, the duty to perform work at all (and the scope of duties owed) arise allegedly from the attached contract and contractual relationship between the parties. See Exhibit “A.” Al. Bruni’ negligence count is a mere “catch all’ cause of action that is duplicative of the breach of contract claim. To prove negligence, Bruni must also prove the existence of a contractual duty and breach of that duty. In other words, if Moving Defendant complied with the terms of the lease, Moving Defendant could not have breached a duty of reasonable care in performance of its contractual duties. 42. Based on the foregoing, Bruni’s negligence claims are barred by the gist of action doctrine as they arise solely from the alleged breach of contract between the parties, are established based from obligations created by the contract, and are essentially duplicates of its breach of contract claim. 43. Accordingly, Count I must be stricken with prejudice. WHEREFORE, Moving Defendants respectfully requests that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. C. A MOTION TO STRIKE BRUNI’S CAUSE OF ACTION FOR LACK OF CONFORMITY TO LAW AND/OR RULE OF COURT PURSUANT TO PA. R.C.P. 1028(A)(2) OR MOTION FOR MORE SPECIFIC PLEADING PURSUANT TO PA. R.C.P. 1028(A)(3) 44. Under Pennsylvania pleading rules, it is well-settled that the material facts on which a cause of action or defense is based shall be stated in a concise and summary form. Pa. R.C.P. 1019. 45. In fact, a plaintiff's allegations may be stricken for lack of specificity to support his or her claims of negligence against a defendant. Pa.R.C.P. 1028(a)(3). 46. Pennsylvania is a fact-pleading state, and a complaint “must not only apprise the defendant of what the plaintiff's claim is and the grounds upon which it rests but must also formulate issues by summarizing those facts essential to support the claim.” Cassell v. Shellenberger, 514 A.2d 163, 165 (Pa. Super. 1986) appeal denied, 529 A.2d 1078 (1987); Alpha Tau Omega Fraternity v. University of Pennsylvania, 464 A.2d 1349, 1352 (Pa. 1983). The Only pleaded in the alternative should this Honorable Court not grant Subsections A or B seeking dismissal of the joinder complaint entirely, or dismissal of Count I, respectively. defendant in a civil action is entitled to be apprised of facts with specificity so that he or she may reasonably prepare an appropriate response. See Id. 47. A preliminary objection in the nature of a request to strike is appropriate where a plaintiff asserts boilerplate allegations without sufficient factual specificity. See Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983) See also Harry v. Brown, 1991 Pa. Dist. & Cnty. Dec. LEXIS 413, 3-4 (Pa. C.P. 1991). 48. Defendant Bruni has asserted the following overly broad, non-specific allegations of negligence: failing to maintain the leased premises in accordance with applicable ordinances, rules, regulations and/or requirements of federal, state and/or local governmental authorities; failing to comply with applicable federal, state and/or local codes; violated relevant sections of the restatement (Second) of torts. See Exhibit “C” at 49. 49. These paragraphs include broad, catch-all allegations of negligence and are nearly identical to the allegation of “otherwise fail[ed] to use due care and caution under the circumstances” discussed in Connor, supra. 50. There is no requirement under the lease agreement Bruni alleges controls, addressing any specific standards, codes or regulations which Moving Defendant must follow. S51. Finally, as phrased, these paragraphs could be used to insert new theories of negligence after the statute of limitations has expired because the paragraphs are so broad and vague. §2. Indeed, the paragraphs appear to be designed to allow Bruni the ability to plead negligence theories that are not yet contemplated when Bruni seeks the forgoing, undefined violations. This is plainly improper. See Lerner v. Lerner, 954 A.2d 1229, 1235-36 (Pa. Super. 2008) 53. The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. Pa. R. C. P. 1019. Where a plaintiff generally alleges that a defendant has violated a statute his or her claim may be stricken as insufficiently specific. See Feingold v. McNulty, 2009 Phila. Ct. Com. PI. LEXIS 167 (Pa. C.P. 2009) See also Green.v. Klein, 2010 Pa. Dist. & Cnty. Dec. LEXIS 444, 4 (Monroe Cnty. 2010). 54. As such, it is appropriate for this Honorable Court to strike Count I due to lack of specificity. 55. For all of the above reasons, Bruni’s claim in Count I of the Joinder Complaint must be stricken. WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. D. PRELIMINARY OBJECTION TO COUNT III IN THE NATURE OF A DEMURRER PURSUANT TO PA.R.CIV.P. 1028(A)(4) 56. Preliminary Objections in the nature of a demurrer are proper when the law is clear that a plaintiffis not entitled to recovery based on the facts alleged in the complaint. See HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 652 A.2d 1278, 1279 (1995). 57. When considering preliminary objection in the nature of a demurrer, the court must accept as true “all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Small v. Horn, 554 Pa. 600, 722 A.2d 664, 668 (1998) (emphasis added). The Court need not accept as true conclusory statements that are unsupported by factual averments. Dorfman v. Pennsylvania Social Servs. Union B Local 668, 752 A.2d 933, 937 (Pa. Commw. Ct. 2000). 58. In Count III of Bruni’s Joinder Complaint, Bruni alleges Moving Defendant owns Bruni contractual indemnification. For the following reasons, this claim is legally insufficient on its face. 59. Pennsylvania Courts have made clear that regardless of whether the indemnification claim is based on common law or contract, the duty to indemnify another party is a conditional obligation and could not reasonably be determined until the underlying claim has concluded. See McClure v. Deerland Corp., 401 Pa. Super. 226, 585 A.2d 19 (1991)(emphasis added), (holding that claim for contractual indemnification was premature before underlying claim was resolved by settlement or judgment, and that, “the mere expenditure of counsel fees does not constitute the accrual of a cause of action for indemnification”); F.J. Schindler Equipment Co. v. Raymond Co., 274 Pa.Super. 530, 418 A.2d 533 (1980), (holding that a claim for indemnification before actual payment is made is premature). 60. Additionally, the language of the alleged clause is so vague and ambiguous such that it is rendered unenforceable under the law. 61. The entirety of the indemnification agreement states: “Indemnify and save Lessor harmless from any and all loss occasioned by Lessee’s breach of any of the covenants, terms and conditions of this lease, or caused by his family, guests”,... etc. See Exhibit “A” §8(i). 62. This language, as drafted by Bruni, appears to attempt to indemnify his own negligent actions that occur concurrently or separate from the actions of Moving Defendant/Lessee. 63. Agreements to indemnify another party for liability stemming from its own acts of negligence are disfavored and are strictly construed against the party which drafted them. Hershey Foods Corp. v. General Electric Service Co., 619 A.2d 285 (Pa.Super. 1992). 64. For a party to obtain indemnification for its own negligent conduct, the Pennsylvania courts have held that the contract must contain clear and unequivocal language to that effect. Perry v. Payne, 217 Pa. 252, 66 A. 553 (Pa. 1907); Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (Pa. 1991). See also, Greer v. City of Philadelphia, 568 Pa. 244, 795 A.2d 376 (Pa. 2002), (recently reaffirming those principles). 65. Known as the “Perry-Ruzzi Rule”, words of “general import” such as broad contract language calling for indemnification with respect to “all claims” ‘any and all liability”, or even language calling for indemnity “to the fullest extent permitted by law” are considered legally insufficient to shift liability to the indemnitor for the indemnitee’s negligence. Id 66. There.can be no presumption that one party intended to assume responsibility for the negligent acts of another unless the agreement expresses that intent beyond doubt and by express stipulation. City of Wilkes-Barre v. Kaminski Brothers, Inc., 804 A.2d 89 (Pa.Cmwlth. 2002). 67. Here the bare bones, boilerplate language drafted by Defendant Bruni specifically lack clear and unequivocal language to support Bruni’s claim. 68. Indeed, the language of “any and all loss” as used in the lease is specifically used as an example of a violation of the Perry-Ruzzi Rule, and is thus enforceable. Id. 69. Additionally, Plaintiff's complaint makes clear at least Plaintiff has averred Defendant Bruni is the negligent actor, thus Bruni cannot shield himself from his own negligence via a contractual indemnification clause that is insufficient under the law. 70. Thus, Count III of Bruni’s Joinder Complaint must be dismissed with prejudice. WHEREFORE, Moving Defendant respectfully request that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. E PRELIMINARY OBJECTION TO ATTORNEY’S FEES REQUEST IN THE NATURE OF A DEMURRER PURSUANT TO PA.R.CIV.P. 1028(A)(4). 71. There is no language in the lease that requires or allows for Bruni to recover attorney’s fees pursuant to the language of the lease arising from Moving Defendant’s alleged actions or inactions in this case. See Exhibit “A.” 72. Courts in Pennsylvania have consistently followed the "American rule" that a Plaintiff is not entitled to recover attorney fees absent express statutory authority, a clear agreement of the parties or some other established exception to the American rule. Merlino v. Delaware County, 728 A.2d 949 (Pa. 1999). 73. The Joinder Complaint requests attorney’s fees in the “Wherefore” clause at the end of each count, but fails to cite to any statutory, or contractual basis for this request. See Joinder Complaint. 74. Bruni’s Joinder Complaint fails to provide a basis for the claim of attorney fees, and it should be stricken with prejudice as a measure of damages in this case. WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. F. MOTION TO DISMISS DEFENDANT BRUNI’S JOINDER COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 88. Under Pennsylvania Rule of Civil Procedure 1028(a)(2), preliminary objections may be filed for failure of a pleading to conform to law or rule of court. Pa. R.C.P. 1028(a)(2). 89. Under Rule 1024, “[e]very pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified.” Pa. R.C.P. 1024. Additionally, “[t]he verification shall be made by one . . . of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information.and belief and shall set forth the source of the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by.a party.” Pa. R.C.P. 1024(c). 90. Bruni’s Joinder Complaint contains no verification signed by him. Rather, it is verified by his attorney. See End of Joinder Complaint. 91. While the verification states that Defendant is outside the jurisdiction of this court for an unspecified period of time, this does not comport with Defendant’s admission in his answer he resides in Chadds Ford. See Bruni Answer, 42. 92. Further, Bruni had months to obtain the verification and substitute it for that of his counsel, who cannot possibly attest to the factual averments made in the Complaint. This includes the factual averment that Plaintiff fell somewhere other than where Plaintiff claims she fell. 93. This appears to be the entire basis for the joinder complaint itself, so it is very concerning this salient fact has not been verified by the party. 94. Accordingly, the Joinder Complaint should be dismissed in its entirety, without prejudice, for failure to conform to law or rule of court. WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. POST & SCHELL, P.C. DATED: September 18, 2020 ROBERT J. BALCH, ESQUIRE ANTHONY M. KNAPP, ESQUIRE ATTORNEYS FOR ADDITIONAL DEFENDANT, PAUL COLUCCI POST & SCHELL, P.C. BY: ROBERT J. BALCH, ESQUIRE E-MAIL: RBALCH@POSTSCHELL.COM I.D. #202990 BY: ANTHONY M. KNAPP, ESQUIRE E-MAIL: AKNAPP@POSTSCHELL.COM I.D. #318554 TOWER 6, SUITE 200 600 HAMILTON STREET ATTORNEYS FOR ADDITIONAL ALLENTOWN, PA 18101 DEFENDANT, PAUL COLUCCI 610-774-0317 DONNA LYNN FAVINGER, COURT OF COMMON PLEAS DELAWARE COUNTY PLAINTIFF, JURY TRIAL DEMANDED Vv. No. CV-2019-008576 LOUIS BRUNI, INDIVIDUALLY, AS HEIR OF ALFRED BRUNI, DECEASED, AND AS EXECUTOR OF THE ESTATE OF ALFRED BRUNI, DECEASED, DEFENDANT, V. PAUL COLUCCI, ADDITIONAL DEFENDANT. CERTIFICATE OF SERVICE I, ROBERT J. BALCH, ESQUIRE hereby states that a true and correct copy of the foregoing Preliminary Objections to Joinder Complaint, has been served via electronic filing and first-class mail, postage prepared and addressed as follows upon: COUNSEL FOR PLAINTIFF: The Law Offices of Stone and Stone, LLC Matthew C. Stone, Esquire 4126 Edgmont Avenue Brookhaven, PA 19015 20864370V1 COUNSEL FOR BRUNI: Law Office of Terkowitz & Hermesmann Lisa A. Green, Esquire 309 Fellowship Road, Suite 200 Mt. Laurel, NJ 08054 POST & SCHELL, P.C. DATED: September 18, 2020 ROBERT J. BALCH, ESQUIRE ANTHONY M: KNAPP, ESQUIRE ATTORNEYS FOR ADDITIONAL DEFENDANT, PAUL COLUCCI 20864370v1 POST & SCHELL, P.C. BY: ROBERT J. BALCH, ESQUIRE E-MAIL: RBALCH@POSTSCHELL.COM I.D. #202990 BY: ANTHONY M. KNAPP, ESQUIRE E-MAIL: AKNAPP@POSTSCHELL.COM I.D. #318554 TOWER 6, SUITE 200 ATTORNEYS FOR ADDITIONAL 600 HAMILTON STREET DEFENDANT, PAUL COLUCCI ALLENTOWN, PA 18101 610-774-0317 DONNA LYNN FAVINGER, COURT OF COMMON PLEAS DELAWARE COUNTY PLAINTIFF, JURY TRIAL DEMANDED Vv. No. CV-2019-008576 LOUIS BRUNI, INDIVIDUALLY, AS HEIR OF ALFRED BRUNI, DECEASED, AND AS EXECUTOR OF THE ESTATE OF ALFRED BRUNI, DECEASED, DEFENDANT, PAUL COLUCCI, ADDITIONAL DEFENDANT. MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT, PAUL COLUCCI, TO DEFENDANT LOUIS BRUNI, INDIVIDUALLY, AS HEIR OF ALREFD BRUNI, DECASED AND AS EXECUTOR OF THE ESTATE OF ALREFED BRUIN’S JOINDER COMPLAINT I MATTER BEFORE THE COURT Additional Defendant, Paul Colucci, (hereinafter “Moving Defendant”) by and through his counsel, Post & Schell, P.C., hereby submits this Memorandum of Law in support of his Preliminary Objections to Defendants Louis Bruni, individually, as heir of Alfred Bruni, 20815746v1 deceased, and as Executor of the Estate of Alfred Bruni, Deceased’s (“Bruni”) Joinder Complaint. Il. STATEMENT OF THE CASE Moving Defendant incorporates its support motion for preliminary objections to Defendant Bruni’s Joinder Complaint as if set forth herein at length. lil. STATEMENT OF QUESTIONS PRESENTED WHETHER THE JOINDER COMPLAINT FAILS AS A MATTER OF LAW? Suggested Response: YES WHETHER COUNT I FAILS AS A MATTER OF LAW? Suggested Response: YES WHETHER COUNT I LACKS SUFFICENT SPECIFICITY AND CERTIN SUBPARAGRAPGHS SHOULD BE DISMISSED Suggested Response: YES WHETHER COUNT III FAILS AS A MATTER OF LAW? Suggested Response: YES WHETHER PLAINTIFFS’ CLAIMS FOR ATTORNEY’S FEES SHOULD BE DISMISSED? Suggested Response: YES WHETHER THE JOINDER COMPLAINT SHOULD BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO CONFORM TO RULE OR LAW OF COURT? Suggested Response: YES 20815746v1 Iv. LEGAL ARGUMENT Preliminary Objections may be filed by any party to any pleading and include the following grounds: (3) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; [and] (4) legal insufficiency of a pleading (demurrer). Pa. R. C. P. 1028(a)(3) & (4). “All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading.” Pa. R. C. P. 1028(1)(b). It is well-established that the role ofa trial court in ruling on preliminary objections is to determine whether the facts, as pled, are legally sufficient to permit the claim to continue. Firing v. Kephart, 353 A.2d 833, 835 (Pa. 1976). Pa.R.C.P. 1028(a)(4) allows for preliminary objections based on legal sufficiency of a pleading or a demurrer. When reviewing preliminary objections in the form of a demurrer, “all well-pleaded material, factual averments and all inference fairly deducible therefrom” are presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000). That said, mere conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinions are not considered to be admitted as true. Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999). A demurrer should be sustained when, based on the well-pleaded facts, no recovery is possible, Willet v. Pa. Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997); Cianfrani v. Comm. State Employees Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp, 364 A.2d 691 (Pa. 1976). Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure permits the filing 20815746v1 of a preliminary objection in the nature of a demurrer when a plaintiff's allegations, even if taken to be true, do not state a cause of action. Pa. R.Civ.P. 1028(a)(4). A DEFENDANT’S JOINDER COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST MOVING DEFENDANT. Plaintiff's Amended Complaint states quite clearly, she was a resident of Lot 12 at the Subject Property. See Amended Complaint at 41. The Amended Complaint then goes on to state specifically the area wherein Plaintiff fell was located on the part of the property owned, possessed, and controlled by Defendant Bruni. Id. at §914,15,21,22. The Amended Complaint does not state that she fell in the area controlled by private owners. Notably, Plaintiff filed two complaints in this case and never sued Moving Defendant. Further, Defendant Bruni admitted in their Answer to the Amended Complaint they own “the Subject Property” wherein Plaintiff alleges she fell. See Answer 6. However, Defendant Bruni also stated they lacked sufficient knowledge and information as to the allegations no one other than Bruni controlled the subject area. Id. at §{[21-22. Despite claiming they lacked sufficient knowledge to make this determination in their Answer, they then alleged in the Joinder Complaint the area is controlled by Moving Defendant, who they allege resides on a different Lot Number than Plaintiff. There is not a single averment in Plaintiff's complaint that she fell in Lot 11. The only purported factual support Defendant Bruni produced for these claims was the lease agreement between Bruni and Moving Defendant. See the copy of the lease agreement attached to the Joinder Complaint, attached hereto as Exhibit “A.” Assuming for the sake of argument only the lease agreement from 1990 is accurate, and actually in effect in 2018 when Plaintiff alleges she fell, fails to provide any well pleaded facts supporting the lease even addresses the duties and obligations of Moving Defendant in relation to the area where Plaintiff fell. Indeed, the lease itself is vague and ambiguous as it leases to 20815746v1 Moving Defendant, Lot #11 (not Lot #12 where Plaintiff resided), an area defined by the phrase “35° x75’ more or less.” (emphasis added). “More or less” cannot possibly be sufficient, without more, for Defendant Bruni to survive a Motion to Dismiss for Failure to State a claim. It is well- established that the role of a trial court in ruling on preliminary objections is to determine whether the facts, as pled, are legally sufficient to permit the claim to continue. Firing v. Kephart, 353 A.2d 833, 835 (Pa. 1976). That said, mere conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinions are not considered to be admitted as true. Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999), Here, Bruni skips over the allegations that the accident occurred on property he admitted to owning, then alleges the fell occurred someplace other than where Plaintiff averred it occurred, while at the same time stating it “lacked sufficient knowledge and information” address the same issue in its Answer. Further, assuming arguendo, “more or less” was sufficient, the lease itself is entirely silent as to any duty of Moving Defendant to surveyor the area for natural or man-made-holes and warn others of them. See p. 2 of Exhibit “D.” A demurrer should be sustained when, based on the well-pleaded facts, no recovery is possible, Willet v. Pa. Medical Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997); Cianfrani v. Comm. State Employees Retirement Bd., 479 A.2d 468 (Pa. 1984); Gekas v. Shapp, 364 A.2d 691 (Pa. 1976). Here, having failed to provide any well-pleaded facts that anyone other than Defendant Bruni could reasonably have controlled the subject area, this Court must grant Moving Defendant’s Motion to Dismiss the Joinder Complaint against Moving Defendant, with prejudice. WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. 20815746v1 B DEFENDANT BRUNI’S CLAIM FOR NEGLIGENC IN COUNT I FAILS AS A MATTER OF LAW AS IT IS BARRED BY THE GIST OF ACTION DOCTRINE Bruni’s negligence claim fails as a matter of law as it is a tort action which arises from the obligations of the parties as defined by the specific terms of the subject contract which Bruni alleges is applicable. “Whether the gist of the action doctrine applies in any particular setting is a question of law.” Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 620 (E.D. Pa. 2010). The Gist of the Action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14(Pa. Super. 2002)(emphasis added). The gist of action doctrine bars tort claims: (1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself where the liability stems from a contract; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract. Mirizio v. Joseph, 4 A.3d 1073 (Pa. Super. 2010)(citing eToll, Inc., 811 A.2d at 19). In reviewing Bruni’s Count I claim for indemnification and contribution, it is apparent the negligence claim is based upon alleged duties Bruni alleges arise from the contract between the parties. See Joinder Complaint, Count I. No additional facts are alleged in the Joinder Complaint which are separate and distinct from facts supporting, arguendo, breach of the terms and duties set forth in the contract between the parties. Indeed, the duty to perform work at all (and the scope of duties owed) arise allegedly from the attached contract and contractual relationship between the parties. See Exhibit “A.” Bruni’ negligence count is a mere “catch all’ cause of action that is duplicative of the breach of contract claim. To prove negligence, Bruni must also prove the existence of a contractual duty 20815746v1 and breach of that duty. In other words, if Moving Defendant complied with the terms of the lease, Moving Defendant could not have breached a duty of reasonable care in performance of its contractual duties. Based on the foregoing, Bruni’ negligence claims are barred by the gist of action doctrine as they arise solely from the alleged breach of contract between the parties, are established based from obligations created by the contract, and are essentially duplicates of its breach of contract claim. Accordingly, Count I must be stricken with prejudice. WHEREFORE, Moving Defendants respectfully requests that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. C. A MOTION TO STRIKE PLAINTIFFS’ CAUSE OF ACTION FOR VIOLATION OF THE UTPCPL FOR LACK OF CONFORMITY TO LAW AND/OR RULE OF COURT PURSUANT TO PA, R.C.P. 1028(A)(2) OR MOTION FOR MORE SPECIFIC PLEADING PURSUANT TO PA. R.C.P. 1028(A)(3) Under Pennsylvania pleading rules, it is well-settled that the material facts on which a cause of action or defense is based shall be stated in a concise and summary form. Pa. R.C.P. 1019. In fact, a plaintiffs allegations may be stricken for lack of specificity to support his or her claims of negligence against a defendant. Pa.R.C.P. 1028(a)(3). Pennsylvania is a fact-pleading state, and a complaint “must not only apprise the defendant of what the plaintiff's claim is and the grounds upon which it rests but must also formulate issues by summarizing those facts essential to support the claim.” Cassell v. Shellenberger, 514 A.2d 163, 165 (Pa. Super. 1986) appeal denied, 529 A.2d 1078 (1987); Alpha Tau Omega Fraternity v. University of Pennsylvania, 464 A.2d 1349, 1352 (Pa. 1983). The defendant in a civil action is entitled to be apprised of facts with specificity so that he or she may reasonably prepare an appropriate response. See Id. A preliminary objection in the nature of a request to strike is appropriate where 20815746v1 a plaintiff asserts boilerplate allegations without sufficient factual specificity. See Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983) See also Harry v. Brown, 1991 Pa. Dist. & Cnty. Dec. LEXIS 413, 3-4 (Pa. C.P. 1991). Defendant Bruni has asserted the following overly broad, non-specific allegations of negligence: failing to maintain the leased premises in accordance with applicable ordinances, rules, regulations and/or requirements of federal, state and/or local governmental authorities; failing to comply with applicable federal, state and/or local codes; violated relevant sections of the restatement (Second) of torts. See Joinder Complaint at 99. These paragraphs include broad, catch-all allegations of negligence and are nearly identical to the allegation of “otherwise fail[ed] to use due care and caution under the circumstances” discussed inConnor, supra. There is no requirement under the lease agreement Bruni alleges controls, addressing any specific standards, codes or regulations which Moving Defendant must follow. Finally, as phrased, these paragraphs could be used to insert new theories of negligence after the statute of limitations has expired because the paragraphs are so broad and vague. Indeed, the paragraphs appear to be designed to allow Bruni the ability to plead negligence theories that are not yet contemplated when Bruni seeks the forgoing, undefined violations. This is plainly improper. See Lerner v. Lerner, 954 A.2d 1229, 1235-36 (Pa. Super. 2008). The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. Pa. R. C. P. 1019. Where a plaintiff generally alleges that a defendant has violated a statute his or her claim may be stricken as insufficiently specific. See 20815746v1 Feingold v. McNulty, 2009 Phila. Ct. Com. Pl. LEXIS 167 (Pa. C.P. 2009) See also Green v. Klein, 2010 Pa. Dist. & Cnty. Dec. LEXIS 444, 4 (Monroe Cnty. 2010). As such, it is appropriate for this Honorable Court to strike Count I due to lack of specificity. For all of the above reasons, Bruni’s claim in Count I of the Joinder Complaint must be stricken. WHEREFORE, Moving Defendants respectfully request that this Honorable Court sustain its Preliminary Objections and enter the attached proposed Order. D. PRELIMINARY OBJECTION TO COUNT II IN THE NATURE OF A DEMURRER PURSUANT TO PA.R.CIV.P. 1028(A)(4) Preliminary Objections in the nature of a demurrer are proper when the law is clear that a plaintiff is not entitled to recovery based on the facts alleged in the complaint. See HCB Contractors v. Liberty Place Hotel Associates, 539 Pa..395, 652 A.2d 1278, 1279 (1995). When considering preliminary objection in the nature of a demurrer, the court must accept as true “all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Small v. Horn, 554 Pa. 600, 722 A.2d 664, 668 (1998) (emphasis added). The Court need not accept as true conclusory statements that are unsupported by factual averments. Dorfman v. Pennsylvania Social Servs. Union B Local 668, 752 A.2d 933, 937 (Pa. Commw. Ct. 2000). In Count III of Bruni’s Joinder Complaint, Bruni alleges Moving Defendant owns Bruni contract