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CLEVENSTEIN v. RIZZUTO (07/02/70)

decided: July 2, 1970.

CLEVENSTEIN
v.
RIZZUTO, APPELLANT



Appeal from order of Court of Common Pleas of Montgomery County, No. 68-14456, in case of George L. Clevenstein v. John M. Rizzuto et al.

COUNSEL

Curtis Wright, with him Mason, Avrigian and Stefan, Timoney, Knox & Avrigian, for appellant.

No oral argument was made nor brief submitted for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones dissents.

Author: Eagen

[ 439 Pa. Page 399]

An automobile, operated by John M. Rizzuto, collided with a motor bike, operated by George L. Clevenstein, at the intersection of Haws Avenue and West Lafayette Street in the City of Norristown. Clevenstein was seriously injured in the accident, and he sued Rizzuto for damages. His complaint alleged, inter alia, that Rizzuto drove his automobile into the intersection from West Lafayette Street, which is controlled by a stop sign, without maintaining "a reasonable lookout" for the presence of other vehicles coming into the intersection

[ 439 Pa. Page 400]

    from Haws Avenue, a through street, and this negligence caused the collision.

Rizzuto filed a complaint to join Warren I. Williams as an additional defendant in the action. He alleged that an automobile owned by Williams was so "carelessly and negligently" parked on Haws Avenue "immediately north of the intersection" as to obstruct Rizzuto's view at the intersection; that as a result, Rizzuto was forced to proceed into the intersection to ascertain if any traffic were approaching; that the Williams automobile was parked in violation of the provisions of the Motor Vehicle Code of Pennsylvania; and, that the parking of the automobile in such a location was the "sole" cause of the collision between the Clevenstein and Rizzuto vehicles.

Williams filed preliminary objections to the Rizzuto complaint in the nature of a demurrer alleging that it did not state a valid cause of action. These objections were sustained in the court below, and Rizzuto filed this appeal. We reverse.

Preliminary objections to a complaint in the nature of a demurrer admit as true all well-pleaded material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not the pleader's conclusions of law: Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964); Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). And in determining whether or not a demurrer should be sustained, two standards must be borne in mind: (1) The question at issue is not whether the complaint is so clear in form and specification as to require no amendment before the plaintiff (here the original defendant) is entitled to proceed to trial,*fn1 but whether,

[ 439 Pa. Page 401]

    upon the facts averred, the law says with certainty that no recovery is permitted; and, (2) Where a doubt exists as to whether a demurrer should be sustained, this should be resolved in favor of overruling it: Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960); Adams v. Speckman, 385 Pa. ...


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