PITTSBURGH – The estate of a man counters a lawsuit brought by a Western Pennsylvania woman who was allegedly assaulted and kidnapped by that same man, her now-deceased ex-boyfriend, by citing the Dead Man’s Statute and declaring certain counts in the complaint invalid.
Denise Deltondo of McKees Rocks initially filed suit in the Allegheny County Court of Common Pleas on Feb. 12 versus Jill Smith (Executrix of the Estate of Gabriel John Tamilia) of Riverside, Calif.
“Prior to Sept. 24, 2020, plaintiff and decedent [Gabriel John Tamilia] had a romantic relationship that plaintiff had terminated. On Sept. 24, 2020, plaintiff and decedent agreed to go out to dinner together at a restaurant. While at the restaurant, plaintiff and decedent got into a verbal altercation. The pair eventually left the restaurant and plaintiff drove decedent back to his house, intending to drop decedent off and return to her home,” the suit said.
“Once parked in the driveway, however, decedent became violent and threatening toward plaintiff, causing her serious bodily injury and fear for her life and health. At that time, decedent struck plaintiff in the face, put her in a headlock and threatened to kill her. Decedent also wrapped a seatbelt around plaintiff’s neck and began to choke her. During the attack, plaintiff attempted to signal for help by screaming and hitting the car horn. Decedent then dragged plaintiff by her hair from the car and into the house, resulting in injury to plaintiff’s hair and scalp.”
The suit added that once inside the house, the decedent dragged the plaintiff to a downstairs bathroom and kept her imprisoned there. After police arrived and located the parties, the decedent was arrested and the plaintiff was transported to the University of Pittsburgh Medical Center Passavant, for treatment of her severe injuries. The plaintiff says she later developed post-traumatic stress disorder.
Tamilia passed away on Dec. 27, 2020 and on Jan. 28, defendant Smith was appointed Executrix for the Estate of Gabriel Tamilia.
“Prior to his death, plaintiff and decedent had planned to renovate and sell decedent’s home. Decedent moved into plaintiff’s residence in July of 2019 while renovations were ongoing and until his departure in April of 2020. Plaintiff loaned a substantial sum of money to decedent in order to effect these renovations,” according the suit.
“In total, plaintiff loaned $75,500 to decedent. It was agreed and expected that the loan would be repaid in full. Decedent was aware of and acknowledged his obligation to repay the money loaned. To date, neither decedent nor his estate have repaid any amount of the loan. Decedent has breached the terms of the loan without legal excuse by failing and refusing to make any repayments. Such a breach without excuse is the direct and proximate cause of damages to plaintiff in the amount of the total amount of money loaned to decedent, plus interest that continues to accrue.”
UPDATE
Preliminary objections to some of Deltondo’s counts were filed on March 4, based on a supposed lack of specificity and foundation for those same counts against the defendant.
“In Count IV of her complaint, plaintiff purports to set forth a breach of contract claim based on her allegation that she loaned $75,500 to decedent. However, nowhere in her complaint does plaintiff indicate whether there are any writings or documents that memorialize the loans she allegedly made to decedent,” the objections stated.
“Moreover, nowhere in her complaint does plaintiff indicate the date or dates on which she allegedly made the loans, the amount of each loan or the specific terms and conditions of each loan.”
As a result, the defendant claims this lack of information invalidates the breach of contract claim. The defendant also believes that an alleged lack of supporting information should doom the punitive damages count.
“In plaintiff’s complaint, there are no sufficiently specific or otherwise actionable allegations that decedent acted with an evil or bad motive or with a conscious disregard of any risk to plaintiff. Rather, at best, the allegations in plaintiff’s complaint establish a mutual confrontation between plaintiff and decedent that amounts to nothing more than ordinary negligence or carelessness on the part of both parties.”
“Furthermore, the Dead Man’s Statute will bar plaintiff from providing testimony against decedent, generally and specifically that would be sufficient to support a claim for punitive damages. Accordingly, plaintiff’s claim for punitive damages should be dismissed with prejudice.”
For counts of assault, battery, false imprisonment, breach of contract and intentional infliction of emotional distress, the plaintiff is seeking judgment in her favor, plus costs of suit and other relief as this Court deems just or appropriate, plus a trial by jury.
The plaintiff is represented by Alan T. Silko of Silko & Associates, in Bridgeville.
The defendant is represented by George R. Farneth II of Farneth Law Group, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-001255
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com