A personal injury claim can be a landmine of issues that can cause an explosion of problems for a person filing a claim without an attorney. The complications start from the very beginning of filing a lawsuit. The Complaint must describe the claim with sufficient specificity or the other party may file what is called “preliminary objections.” This alone could result in the dismissal of the legal action. Even if one properly describes the claim itself, one must make seek a recovery for the proper damages. Depending on the wrongdoer’s status, certain injuries and damages can and/or can not be sought. These are just two examples of issues related to filing a lawsuit. For these reasons, you need an attorney to guide you to avoid the booby traps that exist throughout the journey of a lawsuit. This article will identify and outline the law as to just a few of the issues that one needs to get past to make a recovery against the entity that caused you harm.

          To initiate a lawsuit, one must ultimately file a Complaint alleging the wrongful conduct and the damages caused by the same. Preliminary Objections to a Complaint is a tool often used by defense counsel to dismiss a lawsuit before it even really starts. If the Preliminary Objections are granted, the injured party may be required to modify the Complaint or, even worse, the Complaint may even be dismissed, along with the claim. The law is complex and requires a well prepared Complaint Thus, it is crucial to make sure you have a competent, experienced attorney to initiate and handle your claim.

          When considering preliminary objections, all well pleaded material facts in the complaint as well as all inferences reasonably deductible therefrom are accepted as true.  L.S.C. Holdings, Inc. v. Insurance Commissioner of Pennsylvania, 151 Pa. Cmwlth. 377, 616 A.2d 118 (1992); and Del Turco v. Peoples Home Savings Association, 329 Pa. Super. 258, 478 A.2d 456 (1984).  When deciding whether to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and where any doubt exists as to whether preliminary objections should be sustained that doubt should be resolved by refusal to sustain the preliminary objections.  L.S.C. Holding, Inc., supra and Del Turco, supra.  Even in those cases which are clear and free from doubt from the facts averred, where the action is one that the pleading could be cured by an amendment the court must give the plaintiff an opportunity to file an amended complaint if there exists a possibility that cause of action may be sustained.  Del Turco, supra. It has long been held “Courts properly sustain preliminary objections: ’only in cases that clearly and without doubt fail to state a claim for which relief maybe granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law, then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.” (emphasis added). Wynkoop v Luke, 43 Pa. D&C 4th 16 (1999), quoting Shick v Shirey, 716 A.2d. 1231, 1233 (Pa 1998) quoting County of Allegheny County v Commonwealth of Pennsylvania, 490 A.2d. 402 (Pa 1985)

            In a lawsuit I filed on behalf of a client against the Pennsylvania Department of Transportation (PennDOT), the Department filed a Preliminary Objection alleging that a number of the allegations of the Complaint violates the principle cited in Connor v. Allegheny General Hospital, 501 P. 305, 461 A.2d 600 (1983), which requires specific allegations to give a Defendant notice of the claim. The portion of the Complaint questioned in Connor was a provision that the Defendant was negligent “[i] in otherwise failing to use due care and caution under the circumstances.”  However, in the claim against PennDOT was properly and sufficiently pled.

            PennDOT attempted to expand that holding in Connor to provisions in the Complaint against PennDOT were far more specific and placed the Defendant on far more notice of the conduct in question than the general language of “otherwise failing to use due care and caution under the circumstances.” The Connor case had no application in the instant matter because the provisions in question did not include the language “otherwise failing to use due care and caution under the circumstances” or any general language.  The provisions in Complaint against PennDOT included far more specific language, such as a “failure to properly design the roadway,” “failure to properly construct the roadway,” etc. The Court rejected this position and dismissed the Preliminary Objection as to the is issue.

PennDOT also took the position that certain damages the Plaintiff identified as a basis for the Wrongful Death claim did not exist and were not recoverable in the case. In effect, PennDOT’s claimed, in essence, that there are no recoverable damages for the decedents’ children under the Wrongful Death Action.  I argued their position was incorrect for a number of reasons. 

In short, the reasons were: (1) PennDOT failed to cite one case that indicates a decedent’s children are banned from recovering all of the available Wrongful Death damages from a Commonwealth entity, (2) Although Schultz, cited by the Defendant, clearly restricted a parent from making a loss of consortium claim against the Commonwealth for the death of their children, but Schultz’s limitations as to non-pecuniary claims were restricted to parent’s claims for their children’s death, (3) Schultz clearly didn’t restrict children from recovering pecuniary damages under the Wrongful death Act for the death of a parent. In fact, the law and Courts have held that a decedent’s children can recover their pecuniary damages under a Wrongful Death action against PennDOT and/or other Commonwealth entities, and (4) regardless, the recoverable damage of “earnings” under Section 8528 of the Sovereign Immunity Act was not limited to wage losses; rather, it is broader and includes various pecuniary damages allowed to be recovered by the children under the Wrongful Death statute.

            The Court agreed with me and dismissed the Preliminary Objections. The case proceeded forward, ultimately resulting in a substantial settlement for the family. Without the guidance of an attorney, the decedent’s family would have suffered a severe impact on their recoverable damages.