Hughes v. Badaracco-Apolito
| Decision Date | 17 February 2015 |
| Docket Number | CIVIL ACTION NO. 3:CV-14-1839 |
| Court | U.S. District Court — Middle District of Pennsylvania |
| Parties | ALBERT HUGHES, III, Plaintiff, v. MARIE BADARACCO-APOLITO and HENDRICK BARNER, Defendants. |
(JUDGE CAPUTO)
Presently before me are three motions: Defendant Marie Badaracco-Apolito's ("Badaracco-Apolito") Motion to Dismiss Counts II and III and Strike Impertinent and Scandalous Averments from Plaintiff Albert Hughes' ("Hughes") Amended Complaint (Doc. 16); Defendant Hendrick Barner's ("Barner") Motion to Dismiss Count III of Hughes' Amended Complaint (Doc. 22); and Hughes' Motion for Leave to File Amended Pleading/Second Amended Complaint. (Doc. 26.) For the reasons that follow, Badaracco-Apolito's motion will be granted in part and denied in part, Barner's motion will be granted, and Hughes' motion will be denied.
Hughes commenced this action against Badaracco-Apolito and Barner (collectively, "Defendants") by complaint docketed on September 22, 2014. (Doc. 1.) In the complaint, Hughes asserted a strict liability claim against Badaracco-Apolitio, as well as claims for negligence and punitive damages against both Defendants for injuries he allegedly sustained after he was attacked by two dogs they owned and/or controlled. Badaracco-Apolito moved to dismiss the strict liability and punitive damages claims and to strike impertinent and scandalous averments on October 23, 2014. (Doc. 9.)
The next day, Hughes filed an Amended Complaint as a matter of course. (Doc. 14.)The Amended Complaint again asserted claims against Defendants for negligence and punitive damages, and, in addition, Hughes set forth a negligence per se claim against Badaracco-Apolito in place of the strict liability claim raised in the initial complaint.
The facts as set forth in the Amended Complaint are as follows:
On or about February 17, 2013, Hughes was with his family, a guest, and his own dog at or near Pioneer Trail, Pocono Pines in Monroe County, Pennsylvania. (Am. Compl., ¶ 8.) There, Hughes was suddenly attacked and mauled by two unleashed German Shepherds. (Id.) The dogs are owned by Badaracco-Apolito and had been let out of her house by Barner with her knowledge, permission, and consent. (Id. at ¶ 9.) Prior to the attack, Defendants failed to leash and properly control the dogs. (Id. at ¶ 10.) Barner is a senior citizen with "difficulty hearing and walking, and is frail, and was not in a condition and position to safely control the German Shepherd dogs," (Id. at ¶ 22), and under those circumstances, Badaracco-Apolito should not have allowed Barner to handle and secure the dogs outside of her house. (Id. at ¶ 24.) The night before the attack Barner let the dogs out of Badaracco-Apolito's house without a leash. (Id. at ¶ 23.)
As a result of the incident, Badaracco-Apolito was charged with two counts of violating Pennsylvania's Dog Law: Failure to Confine Dogs and Harboring Dangerous Dogs. (Id. at ¶ 11.) Badaracco-Apolito proceeded to trial on the charges and was found guilty of violating §§ 502-A and 305 of the Dog Law by a magisterial district judge. (Id. at ¶ 12.) Badaracco-Apolito filed an appeal, but the appeal was later withdrawn. (Id. at ¶ 13.)
On October 31, 2014, Badaracco-Apolito filed a motion to dismiss the negligence per se and punitive damages claims and to strike impertinent and scandalous averments from the Amended Complaint. (Doc. 16.) Barner also moved to dismiss Hughes' claim for punitive damages. (Doc. 22.)
15(a)(2), filed a motion for leave to file a second amended complaint. (Doc. 26.) Hughes requested leave to amend his pleading to set forth claims for negligence and punitive damages against Defendants, as well as negligence per se and strict liability claims against Badaracco-Apolito. After briefing on the motion for leave to amend was closed, Hughes requested oral argument on his motion. (Doc. 29.) The request was granted, and oral argument was held on January 22, 2015. The parties' motions are now ripe for disposition.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The statement required by Rule 8(a)(2) must "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaintmust "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). As such, "[t]he touchstone of the pleading standard is plausibility." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is "normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Twombly, 550 U.S. at 570, 127 S. Ct. 1955, meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S. Ct. 1937.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant hasattached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998 F.2d at 1196. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions.'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
As noted, Badaracco-Apolito moves to dismiss Hughes' negligence per se claim and to strike scandalous and impertinent averments from the Amended Complaint. Additionally, both Defendants seeks dismissal of the punitive damages claim in Count III of the Amended Complaint.
In order to state a claim based on negligence per se, four requirements must be met:
Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-59 (Pa. Super. 2003) (citations and quotations omitted); see also Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476, 488 (M.D. Pa. 2013). "The concept of 'negligence per se' establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm." Mahan, 841 A.2d at 1058 (citing J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582, 585 (Pa. Super. Ct. 1997)).
Based on the allegations in the Amended Complaint, Hughes sufficiently alleges therequirements to proceed on a negligence per se theory of liability. First, Hughes adequately alleges a statute applicable to Badaracco-Apolito's conduct, the Pennsylvania Dog Law. See 3 P.S. § 459-101. (Am. Compl., ¶ 16-19.) This statute was enacted "to protect the public from personal injury, property damage, and other hazards created by roving dogs."...
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