No. 2800 October Term, 1978, Appeal from Order dated October 12, 1978 of the Court of Common Please of Delaware County, at No. 10283 of 1978
Thomas H. Tropp, Media, for appellant.
Peter A. Dunn, Media, for appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 277 Pa. Super. Page 481]
The matter before the court results from a preliminary objection in the nature of a demurrer being sustained by the lower court which in effect put the plaintiff out of court and is therefore appealable.*fn1 Hudock v. Donegal Mutual Insurance Company, 438 Pa. 272, 264 A.2d 668 (1970).
The facts as gathered from the plaintiff's complaint are that the defendant conducted a business known as Jones Electronic Service Company. On December 5, 1977, the plaintiff was raped in her home by Kehoe who gained entrance to plaintiff's home by representing he was there at defendant's direction and on defendant's business.
Kehoe was, on various prior occasions, sent by the defendant to plaintiff's home on defendant's business and on those various occasions Kehoe gained entrance to plaintiff's home solely because he was there at defendant's direction on defendant's business.
On December 5, 1977, the plaintiff believed that Kehoe was an employee of the defendant for she had no notice or knowledge that would lead her to believe otherwise.
There is no allegation in the complaint that a master-servant relationship existed between the defendant and Kehoe at the time of the assault. Therefore, it must be
[ 277 Pa. Super. Page 482]
concluded that this relationship had terminated prior to December 5, 1977.
The allegations of negligence in the complaint are:
(a) Defendant failed to exercise reasonable care in his hiring procedure when he or his agent, ...