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JOSEPH P. OTTO AND STELLA P. OTTO v. AMERICAN MUTUAL INSURANCE COMPANY (06/18/76)

decided: June 18, 1976.

JOSEPH P. OTTO AND STELLA P. OTTO, HIS WIFE, APPELLANTS,
v.
AMERICAN MUTUAL INSURANCE COMPANY



Appeal from the Order dated June 27, 1975, of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, at No. 5046 February Term, 1975. No. 1751 October Term, 1975.

COUNSEL

Richard A. Weisbord, Philadelphia, for appellants.

Daniel J. Ryan, K. McDonald, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 241 Pa. Super. Page 424]

Stella P. Otto, wife-plaintiff, was employed by Lithographic Publications, Inc., which is located at 146 North 13th Street, Philadelphia, Pennsylvania. The building

[ 241 Pa. Super. Page 425]

    at 146 North 13th Street is owned by Baltic Development Company, Inc. On March 9, 1973, the wife-plaintiff was alighting from an elevator housed in this building when the doors of the elevator allegedly closed upon her left knee, as a result of which she has allegedly suffered serious injury. By complaint filed in February, 1974, plaintiffs-appellants commenced action against both the owner of the building, Baltic Development Company, Inc., and the installer of the elevator, The Charles Palmer Elevator Company. One year later, on February 26, 1975, plaintiffs filed a praecipe for a writ of summons against appellee, American Mutual Insurance Company (American Mutual). Pursuant to a rule to file a complaint, plaintiffs filed a complaint in trespass on April 30, 1975. American Mutual, on May 7, 1975, filed preliminary objections in the nature of a demurrer, and by order of June 27, 1975 the lower court granted American Mutual's preliminary objections and dismissed plaintiffs' complaint. This appeal followed.

Plaintiffs' Complaint in Trespass averred, inter alia :

"3. At all times material hereto, the defendant [American Mutual] was under a contractual and legal obligation to inspect, maintain, and insure the building and elevators owned by Baltic Development Company, Inc., located at 146 North 13th Street, Philadelphia, Pennsylvania.

"4. On or about March 9, 1973, wife-plaintiff, while in the employ of Lithographic Publications, Inc., in the premises owned by Baltic Development Company, Inc., was alighting from an elevator in the said premises when because of the carelessness and negligence*fn1 of the defendant, by its respective agents, servants,

[ 241 Pa. Super. Page 426]

    workmen and employees, the doors were caused to close upon her, and she was caused to sustain serious injuries and damages hereinafter set forth.

"5. Defendant, American Mutual Insurance Company, by its respective agents, servants, workmen and employees, was careless and negligent in:

(a) failing to provide plaintiff with a safe place to perform her duties;

(b) failing to properly and adequately inspect, repair and maintain the said elevator;

(c) operating, permitting to be operated and causing to be operated said elevator in violation of local ordinances and the laws of the Commonwealth of Pennsylvania and the Department of Labor and Industry Regulations promulgated pursuant thereto (35 ...


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