Sesco v. Norfolk and Western Ry. Co., 20661

• Decision Date: 11 February 1993
• Docket Number: No. 20661,20661
• Citation: 189 W.Va. 24,427 S.E.2d 458
• Court: West Virginia Supreme Court
• Parties: Hence SESCO, Jr. and Emma Sesco, Plaintiffs Below, Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant Below, Appellee.

Page 458

427 S.E.2d 458

189 W.Va. 24

Hence SESCO, Jr. and Emma Sesco, Plaintiffs Below, Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant Below, Appellee.

No. 20661.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1993.

Decided Feb. 11, 1993.

Syllabus by the Court

1. "The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)." Syllabus Point 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

2. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Guy Bucci, William S. Steele, Ted M. Kanner, Charleston, for appellants.

Thomas W. Pettit, Vinson, Meek, Lewis & Pettit, Huntington, David J. Laurent, J. Michael Klutch, Polito & Smock, Pittsburgh, PA, for appellee.

PER CURIAM:

Hence Sesco, Jr. and Emma Sesco appeal a final order of the Circuit Court of Mingo County granting a judgment on the pleadings in favor of the Norfolk and Western Railway Company. ¹ Mr. and Mrs. Sesco contend that the circuit court's order granting judgment on the pleadings deprived them of the opportunity to develop a record showing that Norfolk's breach of a duty it owed to Mr. Sesco caused his injury. Because we agree that the judgment on the pleadings was improper, we reverse the decision of the circuit court.

In his complaint Mr. Sesco alleges that, on October 15, 1987, he was injured when he fell while attempting to repair a railroad car belonging to Norfolk that was located on Norfolk's tracks. No details of the circumstances of Mr. Sesco's accident were pled. At the time of the accident, Mr. Sesco was employed by the Old Ben Coal Company which leased both the railroad car and the tracks from Norfolk. Mr. Sesco's complaint alleges that (1) Norfolk was negligent by failing to provide him with training to repair railroad cars, especially safety training and appropriate safety equipment ² and (2) Norfolk breached its "duty to maintain the work place in a reasonably safe condition."

In its February 6, 1990 answer, Norfolk denied that it failed to provide a reasonably safe place to work by not providing Mr. Sesco, an employee of Old Ben, with training and safety equipment. No discovery occurred before September 13, 1990, when Norfolk moved for a judgment on the pleadings under Rule 12(c) of the West Virginia Rules of Civil Procedure [1978] ³. Norfolk's motion for a judgment on the pleadings essentially raises a motion for a failure to state a claim, a Rule 12(b)(6) motion. After a hearing on April 5, 1991, the circuit court granted Norfolk's motion and dismissed the complaint. Mr. and Mrs. Sesco, then, appealed to this Court.

Because pleadings under our Rules of Civil Procedure are designed to give notice and do not necessarily formulate the trial's issues, the pleadings generally contain insufficient data to provide a sufficient basis for a judgment on the merits. In Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977) (a negligence action brought by a shipper's employee against a carrier), we held that the rule for testing the sufficiency of a complaint, under Rule 12(b)(6), W.Va.R.C.P., was defined in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), which said:

... In appraising the sufficiency of a complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Chapman, supra, 160 W.Va. at 538, 236 S.E.2d at 212, quoting Conley. In Chapman, we noted that when a motion to dismiss is sought the complaint is to be "construed in the light most favorable to plaintiff." Chapman, id. We also held that "[a] motion to dismiss for failure to state a claim is viewed with disfavor, particularly in actions to recover for personal injuries." Chapman, id. See also Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418 (1991).

In Calvert Fire Ins. v. Bauer, 175 W.Va. 286, 332 S.E.2d 586 (1985) (per curiam) (an action brought to recover the unpaid balance allegedly remaining on a promissory note), we reversed the judgment on the pleadings because the defendant had "pled at least one affirmative defense, namely, that the promissory note was not based on valid consideration. (Footnote omitted)." Calvert, id. at 288, 332 S.E.2d at 588-89. In Calvert, we noted that a motion for judgment on the pleadings will not be granted "unless the movant clearly establishes that no material issue of fact remains for resolution and that he is entitled to judgment as a matter of law," essentially the same test for granting a Rule 56 summary judgment motion. Calvert, id. at 287, 332 S.E.2d at 588. See Gunn v. Hope Gas Inc., 184 W.Va. 600, 402 S.E.2d 505 (1991) (per curiam); Institute for Scientific Information, Inc. v. Gordon and Breach Science Publishers, Inc., 931 F.2d 1002 (3rd Cir.1991), cert. denied, 502 U.S. 909, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991) (holding that in order to grant a Rule 12(c) motion the court must determine beyond doubt that no facts support the plaintiff's claim); Trevino v. Union Pacific R. Co., 916 F.2d 1230 (7th Cir.1990) (holding the federal rules do not require a complaint to allege sufficient facts to establish a right to judgment); Thomason v. Nachtrieb, 888 F.2d 1202 (7th Cir.1989) (holding the grant of a Rule 12(c) motion was proper because the plaintiff chose not to amend the complaint when given the opportunity and allowed the time for amendment to pass); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1368 (1990).

Our standard for reviewing a Rule 56 motion was stated in Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963):

A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.

In accord, Syllabus Point 2, Pasquale v. Ohio Power Co., 186 W.Va. 501, 413 S.E.2d 156 (1991); Thompson Development, Inc. v. Kroger Co., 186 W.Va. 482, 413 S.E.2d 137 (1991).

In the present case, Mr. and Mrs. Sesco argue that the dismissal of their suit deprived them of the...