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 arguing that the plaintiff was a willing and “mutual combatant.”
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
On June 2, counsel for Smith filed an answer to the complaint which denied its contents in their entirety and asserted affirmative defenses in its new matter.
“Plaintiff’s complaint fails to set forth a cause of action upon which relief may be granted against defendant. All of plaintiff’s claims and causes of action against defendant are or may be barred by the Pennsylvania Dead Man’s Statute 42 Pa. C.S.A. Section 5930,” the answer’s new matter stated, in part.
“Defendant believes that prior to the events alleged in plaintiff’s complaint, for reasons set forth in two separate petitions for Protection from Abuse plaintiff filed against decedent, which petitions are incorporated herein by reference as though fully set forth at length, without admitting the truth of the allegations set forth therein.”
According to the defense’s answer, if Deltondo did meet up with Smith on Sept. 24, 2020, which is specifically denied, then she did so at her own peril and the two were mutually fighting.
“Plaintiff’s complaint and all of plaintiff’s claims and causes of action are barred by plaintiff’s voluntary assumption of a known risk. Plaintiff’s complaint and all of plaintiff’s claims and causes of action are barred and/or diminished by plaintiff’s own comparative negligence as prescribed by the Pennsylvania Comparative Negligence Act. Defendant believes that at the time of the events alleged in plaintiff’s complaint, plaintiff and decedent were mutual combatants,” the answer continued.
“Plaintiff’s claim for punitive damages is barred because an award of punitive damages under Pennsylvania Law is subject to no pre-determined limit, such as a maximum multiplier of compensatory damages or a maximum amount of punitive damages that may be imposed and, as such, would violate defendant’s due process rights as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, would violate the right not to be subjected to an excess award in violation of the Eighth Amendment to the U.S. Constitution and the Pennsylvania Constitution, and would be improper under the common law and public policy of Pennsylvania.”
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