decided: June 18, 1976.
JOSEPH P. OTTO AND STELLA P. OTTO, HIS WIFE, APPELLANTS,
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.
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.
[ 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 Purdons, § 1341 et seq. and regulations promulgated thereunder);
(d) failing to use due care for wife-plaintiff's safety under the circumstances in performing such acts of negligence and/or omissions to act in accordance with accepted safety standards;
(e) failing to comply with responsibilities imposed upon them by law and contract under the circumstances;
(f) causing and/or permitting the illegal operation of the said elevator." Printed Record at 2a-3a (emphasis added) (footnote added).
American Mutual filed preliminary objections in the nature of a demurrer, and in a memorandum of law*fn2
[ 241 Pa. Super. Page 427]
in support thereof (Printed Record at 7a-8a) argued, relying upon DeJesus v. Liberty Mutual Insurance Co.,*fn3 423 Pa. 198, 223 A.2d 849 (1966) (per curiam), (1) that the allegations in the Complaint in Trespass failed to establish a duty on the part of the insurance company toward the plaintiffs; and (2) that even assuming a legal duty to the plaintiffs existed, the plaintiffs failed to establish, again relying on DeJesus v. Liberty Mutual Insurance Co., supra, that the performance or non-performance of that duty increased the risk of harm and that the plaintiffs relied upon American Mutual's performance of the duty.
The plaintiffs filed an answer*fn4 to American Mutual's preliminary objections in which they denied the appropriateness of any reliance upon the holding in DeJesus v. Liberty Mutual Insurance Co., supra, and argued that the issue of duty is controlled by Evans v. Otis Elevator Co.,*fn5 403 Pa. 13, 168 A.2d 573 (1961). The lower court sustained the preliminary objections and dismissed the complaint holding: "The complaint herein fails to set forth sufficient facts to establish a duty imposed either by the contract insurance or by the nature of the undertaking for a determination of tort liability. The Plaintiffs in this case were content to plead conclusory averment of a contractual obligation given [sic] rise to a duty to Plaintiffs, without specifying either the provision creating the duty or the assumption by Defendant of an undertaking that would give rise to any Common Law liability." (Emphasis added.) The order of June
[ 241 Pa. Super. Page 42827]
, 1975 dismissing the plaintiffs' complaint was entered after the statute of limitations had expired, and the plaintiffs did not seek leave to amend.
We agree with the lower court's conclusion that the averments in the plaintiffs' complaint fail to state a cause upon which relief can be granted, and because the plaintiffs did not seek, from the court below, leave to amend their complaint we have no other alternative but to affirm the order of the lower court dismissing plaintiffs' complaint.
Before considering the plaintiffs-appellants' arguments on appeal an overview of the standards to be applied when ruling upon a demurrer is appropriate. "'The question raised by the demurrer is whether upon the facts averred in the pleading being attacked the law says with certainty that the claim or defense is no good, and if there is any doubt as to whether the demurrer should be sustained it should be resolved against the objecting party.'" King v. United States Steel Corp., 432 Pa. 140, 144, 247 A.2d 563, 565 (1968) (footnote omitted) (citations omitted) (emphasis original). "[E]very material and relevant fact well pleaded in the complaint and every inference fairly deducible therefrom are to be taken as true: Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 209, 146 A.2d 714; Byers v. Ward, 368 Pa. 416, 420, 84 A.2d 307." Yania v. Bigan, 397 Pa. 316, 318, 155 A.2d 343, 344 (1959). "Preliminary objections admit all facts which are well pleaded, but not the pleader's conclusions or averments of law : Ross v. Metropolitan Life Insurance Co., 403 Pa. 135, 169 A.2d 74; Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Narehood v. Pearson, 374 Pa. 299, 96 A.2d 895." Bogash v. Elkins, 405 Pa. 437, 439, 176 A.2d 677, 678 (1962) (emphasis added). With these standards before us we consider the plaintiffs-appellants' three arguments on appeal.
[ 241 Pa. Super. Page 429]
The plaintiffs-appellants submit that their complaint does set forth a valid cause of action against American Mutual. The shortcoming of the plaintiffs' submission is chiefly in their failure to appreciate the necessity of "fact pleading." It is incumbent upon the plaintiffs to state all "material facts on which a cause of action or defense is based . . . in a concise and summary form." Pa.R.C.P. No. 1019(a). Moreover, in the context of a negligence action, it is fundamental that the plaintiffs establish the duty owed by American Mutual, the breach of which might give rise to injuries alleged to be suffered by the plaintiffs. "Obviously, no negligence claim can be based upon a state of facts on which the law does not impose a duty upon the defendant in favor of the plaintiff[s]. See Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Neyman v. Soutter, 205 Pa. Super. 8, 205 A.2d 685 (1964)." Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459, 461 (1971) (emphasis added). The plaintiffs contend that the duty owed to them by American Mutual is imposed by contract*fn6 and by law.*fn7
[ 241 Pa. Super. Page 430]
In support of its preliminary objection in the nature of a demurrer, American Mutual submitted DeJesus v. Liberty Mutual Insurance Co., supra as dispositive of this case. In DeJesus v. Liberty Mutual Insurance Co., supra the plaintiff suffered personal injuries during the course of his employment. He instituted an action in trespass naming as a defendant his employer's workmen's compensation carrier, Liberty Mutual Insurance Company (Liberty). He claimed that by virtue of advertising material sent by Liberty representing that Liberty provided loss prevention service and safety counsel to its policyholders there was a duty on the part of Liberty to provide a safe employment environment. The lower court sustained Liberty's preliminary objections in the nature of a demurrer and our Supreme Court affirmed holding: "None of the allegations of the complaint creates a duty in appellee toward appellant because there is no averment that the advertisements were part of any contract or other legal obligation undertaken by appellee or that they adversely affected appellant.
"Furthermore, even if we assume that a legal duty were owed by appellee to appellant by reason of an undertaking to render services in developing safety techniques, there would still be no cause of action stated. Restatement
[ 241 Pa. Super. Page 4312]
d, Torts § 323 (1965) states: '§ 323. Negligent Performance of Undertaking to Render Services. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.' The import of that section is that negligent performance or nonperformance must increase the risk of harm and that there must be reliance by the injured plaintiff upon the defendant's performing the service he has undertaken to render. Appellant's complaint fails to aver or establish either element and sets forth no cause of action."*fn8 DeJesus v. Liberty Mutual Insurance Co., supra, 423 Pa. at 200-201, 223 A.2d at 850 (footnote added).
American Mutual concluded that (1) no contractual duty had been factually averred; and (2) even if a contractual obligation was established the plaintiffs failed to aver that they relied upon the undertaking and that the failure to perform the duty increased the risk of harm.*fn9 In response to American Mutual's reliance upon
[ 241 Pa. Super. Page 432]
of an undertaking.*fn11 This distinction still does not place the plaintiffs' Complaint in Trespass in any better light. Section 324A of the Restatement (Second) of Torts requires inter alia that the "failure to exercise reasonable care increase[s] the risk of . . . harm; or . . . (c) the harm is suffered because of reliance of the other or the third person upon the undertaking." See note 7 supra. None of these averments were set forth in the Complaint in Trespass.
Still on the issue of the contractual obligation the plaintiffs argue that Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961) is controlling. Even a cursory review of Evans v. Otis Elevator Co., supra reveals that it is not applicable to this case. The existence of a contractual obligation in Evans v. Otis Elevator Co., supra was well documented. The holding in Evans v. Otis Elevator Co., supra benefits the plaintiffs only to the extent they establish, by pleading facts, that a contractual obligation exists. This they have not done and reliance upon Evans v. Otis Elevator Co., supra is premature.
The plaintiffs aver, see paragraph 5(c) text supra, that American Mutual had a statutory duty to inspect the elevator. The averment is deficient in that it fails to set forth "sufficient facts to bring the case within
[ 241 Pa. Super. Page 434]
the statute: 25 R.C.L. 946, 955; 5 Wigmore on Evidence 585." Goldberg v. Friedrich, 279 Pa. 572, 574, 124 A. 186 (1924). Further, the statutory provision relied upon is in no way dispositive of the duty issue. The Act of May 2, 1929, P.L. 1518, § 4, as amended March 2, 1970, P.L. 68, No. 30, § 1, December 10, 1974, P.L. 862, No. 291, § 1, 35 P.S. § 1345 (Supp.1975-76) does not specifically require an insurer to assume a duty to inspect, for it permits the inspection to be done by either the insurer's licensed inspectors or Commonwealth inspectors.*fn12
Plaintiffs rely on Bollin v. Elevator Construction & Repair Co., Inc., 361 Pa. 7, 63 A.2d 19 (1949) to support their contention that American Mutual had a statutory duty to inspect the elevator. Again, any reliance on Bollin v. Elevator, supra is premature until it is factually averred that (1) a contractual obligation existed and (2) not only was there a contractual obligation to insure but a contractual obligation to inspect.
The plaintiffs, having failed to plead sufficient material facts to establish a duty owed by American Mutual to insure, maintain and inspect the elevator, the performance of such duty enuring to the benefit of the plaintiffs,
[ 241 Pa. Super. Page 435]
have failed to set forth a valid cause of action of negligence against American Mutual.*fn13
The plaintiffs argue that the lower court sustained the preliminary objection on the basis of an issue not before it. In the lower court opinion it was observed : "This matter would have been greatly simplified had Plaintiffs attached as exhibits those provisions of the contract of insurance detailing the Defendant's duty to third persons and whether in fact the Defendant undertook to inspect the elevators in the building at regular intervals and to repair the same, as required by Rule 1019(h) of the Pennsylvania Rules of Civil Procedure."
The plaintiffs are correct in submitting that American Mutual's preliminary objections do not raise a Pa.R.C.P. No. 1019(h) issue.*fn14 However, we do not read the lower court's opinion as using Pa.R.C.P. No. 1019
[ 241 Pa. Super. Page 436]
(h) as the basis for sustaining the preliminary objections. The lower court merely made an observation on what would have made this case easier to decide. The basis for the lower court's action is the failure to do any more than plead a duty, to-wit, a contractual obligation, in a "conclusory" averment.
The plaintiffs' last argument is that the lower court "abused its discretion in dismissing plaintiffs' complaint." Brief for Appellant at 12. The plaintiffs submit that "[a]n appropriate disposition would have been to permit the plaintiffs leave to amend."*fn15 Brief for Appellant at 13 (footnote added). "The court must grant leave to amend when the claim as stated does not exclude the possibility of recovery upon a better statement of facts. Garnack v. McNally, 315 Pa. 30, 172 A. 102 (1934)." Robinson v. Tool-O-Matic, Inc., 216 Pa. Super. 258, 261, 263 A.2d 914, 916, allocatur refused, 216 Pa. Super. 1 (1970) (footnote omitted). However, we have searched the record and we have been unable to find any attempt by the plaintiffs to amend their complaint with "leave of court or with filed consent of the adverse party." Pa.R.C.P. No. 1033.*fn16
[ 241 Pa. Super. Page 437]
Only on appeal do the plaintiffs seek leave to amend. When a party has "neither requested leave to amend his complaint below, nor raised the lack of opportunity to amend*fn17 on this appeal . . . [h]e has waived the right to amend." Robinson v. Tool-O-Matic, Inc., supra at 262, 263 A.2d at 916 (footnote added).
The Order of the court below is affirmed.