IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHY LEHMAN and WILLIAM :

LEHMAN (her husband), :

: Civil Action No. 4:10-CV-0197

Plaintiffs, :

: (Judge McClure)

v. :

:

DIAMOND DEVELOPMENT CO., :

INC., PATRICIA GUARNA, and :

VINCENT GUARNA, (husband and :

wife), and BOTTLING GROUP LLC :

D/B/A PEPSI BOTTLING GROUP, :

:

Defendants. :

MEMORANDUM

June 24, 2010

I. BACKGROUND

On January 26, 2010, plaintiffs Kathy Lehman and her husband, William

Lehman, both citizens of Florida, instituted this civil action against defendants,

and Pennsylvania citizens, Diamond Development Co., Inc. (“Diamond

Development”) and Patricia Guarna and Vincent Guarna, employees and

principals of Diamond Development Co. (Rec. Doc. No. 1). Plaintiffs’ claims

arise out of an alleged incident, occurring on June 11, 2008, in which Mrs.

Lehman claims to have slipped and fallen on property owned and managed by

Diamond Development, Patricia Guarna, and Vincent Guarna (“Diamond

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 The property at issue (“The Premises”) is located at 528 W. Saylor Street,

Atlas, Pennsylvania.

2

Development Defendants”).1

 Id. at 2. In their original complaint, plaintiffs

alleged that Mrs. Lehman slipped and fell on a clear liquid near vending machines

on premises owned and managed by the Diamond Development defendants. Id. at

2-3. Plaintiffs allege that the defendants breached their duty of care as owed to

Mrs. Lehman and that such a breach caused her to incur medical expenses, pain

and suffering, lost wages, an impaired earning capacity, scarring, disfigurement, a

loss of life’s pleasures, and other damages. Id. at 4-5. Mr. Lehman also claims to

have lost the companionship, services, advice, and consortium of his wife. Id. at

5.

II. PROCEDURAL HISTORY

The Diamond Development defendants filed an answer to the plaintiffs’

original complaint on February 19, 2010. (Rec. Doc. No. 5 at 2-5). In their

response, the Diamond Development defendants also included a third-party

complaint against Community Services Group, Inc. (“Community Services

Group”), Mrs. Lehman’s employer and the lessee of the premises, and Pepsi-Cola

Metropolitan Bottling Company (“Pepsi-Cola Bottling Company”), which

installed the vending machine near the location of the alleged June 11, 2008

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2 On June 9, 2010, counsel for the plaintiffs and defendant Bottling Group

LLC d/b/a Pepsi Bottling Group and defendants Diamond Development Co. and

Vincent and Patricia Guarna filed with this court a stipulation to amend the

caption of the case. (Rec. Doc. No. 19). The court issued an order on June 10,

2010, approving the stipulation. (Rec. Doc. No. 20). The effect of the stipulation

3

incident. Id. at 5-11. The Diamond Development defendants contend that, “[i]f

the plaintiff was injured on the Premises, the injury and damage sustained by the

plaintiff result[ed] solely from a breach by the [Community Services] Group of the

duty to maintain the [P]remises.” Id. at 7. In addition, the Diamond Development

defendants claim that Pepsi-Cola Bottling Company “breached the duty to

maintain the soda vending machine and may have caused injury to the plaintiff.” 

Id. at 9.

On March 2, 2010, plaintiffs filed an amended complaint, as of right and

pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), adding claims against

Pepsi-Cola Bottling Company. (Rec. Doc. No. 8). As an attachment to the

amended complaint, plaintiffs and the Diamond Development defendants included

a stipulation of counsel, in which defense counsel consented to the filing of the

amended complaint against Pepsi-Cola Bottling Company. Id. at 8. In addition,

both counsel agreed that the answer filed by the Diamond Development

defendants on February 19, 2010 would be deemed as applying to the amended

complaint and that any further answer need not be filed. Id.

2

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was to name the only entity responsible for the vending machines at issue:

Bottling Group LLC d/b/a Pepsi Bottling Group. (Rec. Doc. No. 19 at 1).

3 Our jurisdiction is based on diversity of citizenship. See 28 U.S.C. §

1332. Under the facts in this case, Pennsylvania substantive law and federal

procedural law apply. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir.

2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). 

4

On May 28, 2010, third party defendant Community Services Group filed a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Rec. Doc. No. 15). On

that same day, Community Services Group filed a brief in support. (Rec. Doc. No.

16). Community Services Group alleges that the original defendants’ third party

complaint should be dismissed as against Community Services Group, as it may

not be held liable to a third party under 77 P.S. § 481(b). Id. at 3-7.3

 No

opposition briefs have been filed.

III. STANDARD OF REVIEW

When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the

court must view all allegations stated in the complaint as true and construe all

inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding,

467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). 

“The tenet that a court must accept as true all of the [factual] allegations contained

in the complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S.Ct.

1937, 1949 (2009) (internal citations omitted). In ruling on such a motion, the

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court primarily considers the allegations of the pleading, but is not required to

consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. 

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. At the motion to

dismiss stage, the court considers whether a plaintiff is entitled to offer evidence

to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482

(3d Cir. 2000). 

A complaint should be dismissed only if, accepting as true all of the

allegations in the complaint, the plaintiff has not pled enough facts to state a claim

to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct.

1955, 1960 (2007). “Determining whether a complaint states a plausible claim for

relief will . . . be a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. In

considering a Rule 12(b)(6) motion, we must be mindful that federal courts require

notice pleading, as opposed to the heightened standard of fact pleading. Hellmann

v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D. Pa. 2008). Federal Rule of

Civil Procedure 8 “‘requires only a short and plain statement of the claim showing

that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

what the . . . claim is and the grounds on which it rests,’” Bell Atlantic Corp. v.

Case 4:10-cv-00197-YK Document 21 Filed 06/24/10 Page 5 of 12
6

Twombly, 127 S.Ct. 1955, 1964, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47,

78 S. Ct. 99, (1957)). However, even under this lower notice pleading standard, a

plaintiff must do more than recite the elements of a cause of action and then make

a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist.

LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement

to relief by alleging sufficient facts that, when taken as true, suggest the required

elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged - - but it has not ‘shown’ - - that the

pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 (citing Fed. R. Civ. P. 8(a)).

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the

non-moving party can prove no set of facts in support of its allegations, then a

claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

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IV. DISCUSSION

Based upon this court’s review of the docket sheet, it is clear that no briefs

in opposition to the instant motion to dismiss have been filed. As such, and

pursuant to Middle District Local Rule 7.6, the failure to oppose Community

Services Group’s brief in support of its motion to dismiss (Rec. Doc. No. 15)

within the required time renders the motion unopposed.

Although the motion is deemed unopposed, we have reviewed the motion

on the merits and conclude that it should be granted. As noted above,

Pennsylvania substantive law applies in this case. Pursuant to the Pennsylvania

Workers’ Compensation Act (“PWCA”):

(b) In the event injury or death to an employe is caused by a third

party, then such employe, his legal representative, husband or wife,

parents, dependents, next of kin, and anyone otherwise entitled to

receive damages by reason thereof, may bring their action at law

against such third party, but the employer, his insurance carrier, their

servants and agents, employes, representatives acting on their behalf

or at their request shall not be liable to a third party for damages,

contribution, or indemnity in any action at law, or otherwise, unless

liability for such damages, contributions or indemnity shall be

expressly provided for in a written contract entered into by the party

alleged to be liable prior to the date of the occurrence which gave rise

to the action.

77 P.S. § 481(b) (emphasis added). Based upon this provision, state and federal

courts have granted employers statutory immunity from suits by third parties that

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4

 The Court of Appeals for the Third Circuit has noted that an amendment to

the PWCA in 1974 “changed third party practice by providing that the employer

could not be held liable for ‘damages, contribution, or indemnity,’ unless

otherwise agreed in a written contract.” Erie Castings Co. v. Grinding Supply,

Inc., 736 F.2d 99, 101 (3d Cir. 1984) (quoting 77 P.S. § 481, Purdon Supp. 1983)

(emphasis added). Therefore, the court concluded that “an employer may no

longer be joined as an additional defendant by the third party in a suit by an

employee.” Id. (citing Heckendorn v. Consolidated Rail Corp., 502 Pa. 101

(1983).

8

is broad in scope. See Clark v. Williamette Indus., 918 F. Supp. 139, 141 (W.D.

Pa. 1996) (noting that “[n]ot only does [the PWCA] provide an employer with

immunity from suit for accidents within the scope of employment, it also bars an

employer from being joined in a suit against a third party arising from such an

accident”); see also Snare v. Ebensburg Power Co. (Appeal of UE & C Catalytic),

637 A.2d 296, 298 (Pa. Super. Ct. 1993) (stating that the “exclusivity provision of

the Workers' Compensation Act essentially ‘bars tort actions flowing from any

work-related injury’”) (quoting Kline v. Arden H. Verner Co., 503 Pa. 251, 256

(1983)). In addition, “Pennsylvania courts have been emphatic in affirming that

the PWCA reflected a clear legislative intent to immunize employers from

involuntary joinder in an employee's suit against a third party tortfeasor for any

purpose.” Holbrook v. Woodham, 2009 U.S. Dist. LEXIS 11138, at *18 (W.D.

Pa. Feb. 13, 2009) (citing Heckendorn v. Consol. Rail Corp., 465 A.2d 609, 613

(Pa. 1983)).4

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5

 A copy of the lease was attached to the original defendants’ Answer,

Affirmative Defenses, and Third Party Complaint. (See Rec. Doc. No. 5, Exhibit

A).

9

Therefore, so long as Community Services Group has not entered into a

written contract that provides for its assumption of liability for indemnity or

contributions, Community Services Group cannot be held liable to the third party

plaintiffs. Although Community Services Group did enter into a written lease5

concerning the Premises, there is no provision within the lease whereby

Community Services Group expressly assumes liability for indemnity or

contributions. Notably, the original defendants make no claim that Community

Services Group has expressly assumed such liability. Therefore, we conclude that,

in their third party complaint, the original defendants have failed to plead facts

sufficient to state a claim for relief that is plausible on its face. As such, dismissal

of the third party complaint as to third party defendant Community Services Group

is appropriate.

V. CONCLUSION

In light of the above, we will grant Community Services Group’s motion to

dismiss the original defendants’ third party complaint as against Community

Services Group. The motion is unopposed, and we conclude on the merits that

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Community Services Group’s motion should be granted.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:10-cv-00197-YK Document 21 Filed 06/24/10 Page 10 of 12
11

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHY LEHMAN and WILLIAM :

LEHMAN (her husband), :

: Civil Action No. 4:10-CV-0197

Plaintiffs, :

: (Judge McClure)

v. :

:

DIAMOND DEVELOPMENT CO., :

INC., PATRICIA GUARNA, and :

VINCENT GUARNA, (husband and :

wife), and BOTTLING GROUP LLC :

D/B/A PEPSI BOTTLING GROUP, :

:

Defendants. :

ORDER

June 24, 2010

In accordance with the accompanying memorandum, IT IS HEREBY

ORDERED THAT:

1. The Motion to Dismiss (Rec. Doc. No. 15) filed by Third Party

Defendant Community Services Group, pursuant to Fed. R. Civ. P. 12(b)(6), is

GRANTED.

2. The Original Defendants’ Third Party Complaint (Rec. Doc. No. 5) is

Case 4:10-cv-00197-YK Document 21 Filed 06/24/10 Page 11 of 12
12

DISMISSED as to Third Party Defendant Community Services Group.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:10-cv-00197-YK Document 21 Filed 06/24/10 Page 12 of 12