
    Allen v. Lipson
    
      Clifford Rieders, for plaintiffs.
    
      Joseph Hafer and David R. Bahl, for defendants.
    
      November 29, 1990
   SMITH, J.,

The issue before the court is whether defendants must plead in their new matter the material facts on which an affirmative defense is based. We find in the affirmative. There are no recorded appellate decisions addressing this issue and the common pleas’ decisions, both recorded and unrecorded, are divided in their holdings.

In response to the complaint, defendants Lipson and Susquehanna Urologic Associates, Ltd., filed an answer with new matter. The new matter sets forth the affirmative defense of contributoiy negligence in general terms that are totally unsupported by factual allegations. Plaintiffs filed preliminary objections to this portion of the new matter in the nature of a demurrer and a motion to strike.

In support of their preliminary objections, plaintiffs argue (a) the applicability of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983); (b) Pa.R.C.P. 1019(a), which requires that the material facts on which a defense is based be stated in a concise and summary form; and (c) fairness under the circumstances. The defendants retort with the assertions (a) of fairness under the circumstances; (b) that Pa.R.C.P. 1030 requires that contributory negligence be raised as an affirmative defense and that this rule does not require factual averments; and (c) the non-applicability of Connor, supra.

In Connor, supra, our Supreme Court held that a general allegation of negligence in the complaint allowed plaintiffs, even after the passing of the statute of limitations, to amend the complaint to specify additional acts of negligence which were not specifically pled in the original complaint. In the trenchant footnote 3, the court explained:

“If appellee did not know how it ‘otherwise failfed] to use due care and caution under the circumstances,’ it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants’ complaint.” Connor v. Allegheny General Hospital, 501 Pa. 306, 311 n.3, 461 A.2d 600, 602 n.3 (1983).

Connor has been used by the Pennsylvania courts, including this one, to preclude general allegations in complaints. Plaintiffs now ask us to apply the Connor holding to defendants’ factually void allegation of an affirmative defense in the new matter. Defendants assert that Connor is distinguishable because Connor deals with a general averment of fact that must be answered and the instant case involves an averment of an affirmative defense which is a conclusion of law that does not require an answer under Pa.R.C.P. 1029(a)(d). Defendants further argue that the holding in Connor was necessary because the statute of limitations had run and we do not have such an issue in the case sub judice. A careful reading of Connor will reveal that while in that factual situation the statute of limitations had run on the claim in the proposed amendment, this fact was not a basis of the decision. The issue of the statute of limitations was raised by the plaintiffs in Connor in arguing that there was prejudice that should preclude the amendment. Under the holding in Connor, the amendment of the complaint would have been allowed if the statute had-not run.

As to defendants’ first contention, it is true that an averment of a conclusion of law does not require an answer, Pa.R.C.P. 1029(a)(d), and that an averment of fact does. Prior to Connor it was assumed that a general averment of negligence in a complaint would not support a later specific claim of negligence that was not initially factually supported, and defendants were routinely denying the general averment of fact and relying on the discovery process. Connor made this an extremely dangerous and unacceptable practice. Defendants now have two choices: first, they may file a preliminary objection as suggested by the Supreme Court in footnote 3, Connor, supra, and have the general averment stricken or, second, they can embark upon a course of thorough and extended discovery that will hopefully assure them that there are no unpled facts that would support a new claim under a general averment of negligence or other cause of action. One does not have to be an experienced practitioner to determine which of the choices is easier and most likely to guarantee the desired result of eliminating surprise at the time of or on the eve of trial. Connor guarantees the first choice to defendants. Plaintiffs should have the same choice in dealing with factually unsupported allegations of defendants contained in new matter to minimize the chance that they will have to defend a surprise claim at trial. To hold otherwise would put the onus on plaintiffs to conduct extensive discovery to disprove a factually unsupported allegation rather than requiring the defendants who asserted the allegation to marshal the facts to support it. We find that this burden should be on the party asserting the allegation.

Pa.R.C.P. 1030, that requires all affirmative defenses to be pled in the new matter, is not in conflict with rule 1019(a), that requires the pleading of material facts on which a defense is based. Material facts are those facts essential to support the claim raised in the matter. Baker v. Rangos, 229 Pa. Super. 333, 325 A.2d 498 (1974). While it is true that Rule 1030 does not require factual averments, it does not relieve the pleading party from complying with Rule 1019(a). Rule 1019(a) specifically and clearly provides:

“The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” (emphasis supplied)

Affirmative defenses are not excluded from this mandate. Rule 1030 must be read in pari materia with Rule 1019(a). In support of this finding, consider Pa.R.C.P. 1031. Rule 1031 allows the defendant to set forth any cause of action in assumpsit Or trespass in a counterclaim. This rule does not require factual averments, yet any court would consider as specious an argument that Rule 1019(a) does not mandate the pleading of material facts in a counterclaim. Goodrich-Amram 2d §1030:2 (1976) provides:

“The new matter, like the complaint, must be stated in separately numbered paragraphs, and the averments must be as detailed and specific as the averments in a complaint.”

Defendants also argue that since the affirmative defense is a conclusion of law to which no responsive pleading is required, Pa.R.C.P. 1029(a)(d), the same specificity required in a complaint or counterclaim is not required when affirmative defenses are raised in new matter. This assertion ignores the requirements of Pa.R.C.P. 1019(a) and would result in unpalatable unfairness under the Connor rule, both of which are discussed above.

Both parties have argued fairness under the circumstances. Defendants contend, first, that they must file a responsive pleading within 20 days; that an affirmative defense is waived if not pled, Pa.R.C.P. 1032; and that to require specificity in pleading affirmative defenses within such a brief period places an undue burden on the defendants. As a second argument, they assert that discovery rules are (a) self-executing, (b) would eliminate delay, (c) involve less judicial intervention, and (d) give plaintiffs a sufficient vehicle with which to ascertain the details of defendants’ affirmative defenses.

As we have seen above, while discovery may ascertain the facts behind defendants’ affirmative defenses, it is unfair to require this as plaintiffs’ only option when the holding in Connor gives defendants the choice of having the general allegations stricken or utilizing discovery. As far as defendants’ second fairness contention, we are at a loss to understand how a preliminary objection that results in an affirmative defense being stricken and perhaps specifically repled would result in more delay and less judicial intervention than discovery which would result in a motion for a summary judgment or a motion for a judgment on the pleadings. This argument simply has no merit. Defendants’ strongest argument on fairness is the fact that they must file a responsive pleading within 20 days. Fairness is achieved by giving defendants a reasonable time to amend their general allegations in the new matter with specificity.

Plaintiffs also argue fairness and presciently claim that in any jurisdiction where defendants do not have to plead supporting facts to their affirmative defenses, any self-respecting defense counsel would routinely place in every new matter every affirmative defense, including the 24 that are listed in Pa.R.C.P. 1030. While this assertion may be exaggerated, there is no doubt that boilerplate affirmative defenses could become commonplace and this would greatly increase the plaintiffs’ burden in discovery and the possibility of plaintiffs having to defend a surprise claim at the time of trial.

ORDER

And now, November 29, 1990, plaintiffs’ preliminary objection in the nature of a motion to strike is granted and it is ordered and directed that paragraphs 43 and 44 of defendants’ new matter are stricken. Defendants are granted leave to amend the allegations with specificity. Any such amendment shall be made within 60 days from the date of this order or 30 days before the pretrial conference, whichever shall first occur, unless the above period is shortened or extended by order of court for good cause shown. Plaintiffs’ preliminary objection in the nature of a demurrer is moot and is, therefore, denied.

CONCURRING OPINION

BROWN, J.,

November 29, 1990

I join in the opinion of the Honorable Clinton W. Smith. This concurring opinion is written only to express my belief in the importance of a factual pleading system as required by Rule 1019(a) of the Pa. Rules of Civil Procedure. Rule 1019(a) specifically mandates the pleading of material facts in defenses as well as in stating a cause of action. The rule states: “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Rule 1019(a) of the Pa. Rules of Civil Procedure.

To allow a party in defense to engage in nonfactual pleading by simply asserting a defense does not help define the real issues of a case or put the opposing party on notice of the claims (defenses) which will actually be litigated. Instead, as discussed by Judge Smith at page 395 of his opinion, a defense attorney will be tempted to engage in boilerplate listing of affirmative defenses. In this case, the factual basis asserted by the defendants at argument en banc for the contributory negligence claim could easily have been contained in new matter at an early stage. To the extent defendants could not fairly raise a factual basis in the time allotted to answer the complaint, the remedy fashioned by Judge Smith’s Order has provided them with an appropriate opportunity to amend their pleadings.

In conclusion, I believe that the decision of Judge Smith fosters , a more meaningful pleading process consistent with the Pa. Rules of Civil Procedure while preserving a fair opportunity for a defendant to amend his pleading upon discovery of new or additional facts.

Accordingly, I join in Judge Smith’s decision.

DISSENTING OPINION

RAUP, P.J.,

November 29, 1990 — It is more important that there be a single consistent ruling on the issue presented by the preliminary objections, than that either of the two conflicting viewpoints prevail. The majority opinion rendered today will provide litigants in our county with certainty as to the way the judges of this court will henceforth resolve the issue.

In the event the issue is ever presented to an appellate court or to the civil Procedural Rules Committee, I would like to record my dissent and reasoning.

The issues with respect to specificity in pleading negligence in a plaintiff’s complaint (or a defendant’s counterclaim) are distinct from those relating to the allegation of an affirmative defense of contributory negligence or assumption of risk. To our thinking, neither the Rules of Civil Procedure, the Supreme Court holding in Connor v. Allegheny Hospital, 501 Pa. 306, 461 A.2d 600 (1983), nor concerns about judicial efficiency support the conclusion reached by the majority.

The requirements of the Rules of Civil Procedure must be viewed in the context of the pertinent history and the general pleading scheme set forth in those rules.

A plaintiff is allowed literally years in which to gather the information necessary to fashion a complaint which contains specific allegations of the material facts on which the causes of action are based. A defendant is allowed only 20 days from the service of that complaint in which to file a responsive pleading upon risk of suffering a default judgment. Until 1984 the defenses of contributory negligence (with which we are presented in this case) and assumption of risk were not required to be pleaded at all, rather, the mere filing of an appearance was sufficient to allow the defendant to present such defenses at trial. The reasoning behind that old practice was two-fold: (1) It was considered unlikely that a defendant would have sufficient knowledge to file more than a “lack of knowledge” response; and (2) As a practical matter, the plaintiff gained little knowledge through a defendant’s pleading as he was already aware of the common defenses available in a negligence case. See Goodrich-Amram 2d, §1045(b) (1976). The rules were revised in 1984, primarily to consolidate the rules applying to actions in assump-sit and in trespass into a single form of civil action; there was no intent to revise in a substantive way the pleading of affirmative defenses in trespass claims. See Pa. Bulletin Vol. 13, no. 83 at 3999-4001.

The resulting rule, Rule 1030, contains the following language:

“Rule 1030. New Matter

“All affirmative defenses, including but not limited to the defenses of accord and satisfaction, arbitration and award, assumption of risk, consent, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of service, justification, laches, license, payment, privilege, release, res judicata, statute of fraud, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading ‘new matter.’ A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleadings.” (emphasis supplied)

The former rule, 1045(b), was rescinded.

The majority bases its opinion primarily on the language of Rule 1019(a):

“Rule 1019. Contents of Pleadings, General and Specific Averments

“(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. . .”

The language contained in that particular rule was adopted in 1946 and was in effect under prior Rule 1045(b). The language was never considered to require the mentioning of the defense of contributory negligence, much less a specific statement of the material facts underlying such a defense.

We have found nothing in the histoiy of the adoption of Rule 1030 in 1984 which would indicate an intent to require a party to aver the details of the defenses of contributory negligence and assumption of risk.

Likewise, we feel that the Connor decision cannot be construed to require the result reached by the majority. In that case, the plaintiff had made in its complaint specific allegations of negligence as well as a general allegation of “failure to use due care and caution.” Under the umbrella of that general allegation, the plaintiff was allowed to present at trial a theory of liability which had not been specifically articulated in the complaint. The statute of limitations would have expired as to that theory had the general allegation of negligence not been pleaded. In footnote 3 of the opinion, the court noted that the remedy for the defendant to avoid surprise, and to assure that the statute of limitations was a defense to theories of negligence which appear on the eve of trial, is to preliminarily object to the general allegation and thereby obtain a court order requiring that the general allegation either be stricken or amended to state any other specific assertion of negligence.

Distinct considerations are presented with regard to the allegation of an affirmative defense. There is no statute of limitations rationale which is applicable to an affirmative defense, and therefore the parties do not have to look to the pleadings to toll the running of a period of limitations. It is unwarranted, we believe, to read into that footnote in Connor a requirement that a defendant within 20 days of being served with a complaint, must plead the material facts upon which a defense of contributory negligence is based. The rules of discovery are available to provide plaintiff with such details.

To the extent that plaintiff in this case is arguing for the result reached by the majority on the basis that “what is sauce for the goose is sauce for the gander,” we can only respond that we are not dealing with goose and gander but rather with two distinct animals.

In order to analyze the effect on judicial efficiency of the two alternatives available to this court in ruling on the issue before us, it is helpful to view the scenario which I would ordinarily be presented by each alternative.

Under the majority’s approach, the defendant will ordinarily continue the pleading practice which has always existed under the civil rules in this state; i.e., under new matter in the answer, the defendant will include general language to the effect that the plaintiff was contributorily negligent. (The new matter may well contain a specific averment or two of contributory negligence, but it will certainly continue to contain a general allegation as well.) The majority seems to recognize this fact. The general allegation will be necessary because the defendant has only had a few days in which to fashion the answer and often will have had little time to investigate the complaint and to commit itself to a theory of defense. Potential specific defenses in the nature of contributory negligence will simply not be known to the defendant. After the new matter containing this general allegation of contributory negligence is filed, the plaintiff will, in knee-jerk fashion, file a preliminary objection seeking to have that allegation stricken. This objection will be listed for briefing and argument and the entire case will grind to a halt until the busy court system can find the time to address the issue. The majority proposes to resolve the preliminary objection by allowing an extension of time in which the defendant can file supplemental pleadings adding to any specific allegations of contributory negligence which had theretofore been pleaded. Presumably the court would oversee, through motion court, the compliance of the defendant with that requirement. It is our view that in a significant percentage of cases in which contributory negligence is a defense, this scenario will be followed.

Under the alternative which would allow a simple general allegation of contributory negligence or assumption of risk, the plaintiff would have no reason to file a preliminary objection to such an allegation. Accordingly, the expense and delay involved in consideration of such preliminary objections would be avoided. The plaintiff would avail itself of the discovery rules in due time in order to learn the specifics of the allegation of contributory negligence (unless the theory was so obvious that discovery would be unnecessary). In the overwhelming percentage of cases, the rules of discovery are self-executing, i.e., involve no intervention by the court. The concern expressed by the majority that motions filed by the plaintiff to compel discovery would merely be substituted for the preliminary objections of a plaintiff, is not realistic. The existence of sanctions which are available to the court in discovery proceedings reduces the amount of court involvement in those proceedings compared to the court energy and time which is expended when pleading motions are presented.

For the above reasons, we would reach a result contrary to the majority.  