No. 1268 October Term, 1979, No. 1314 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division -Civil, of Philadelphia County at No. 1327 November Term 1978.
John R. Padova, Philadelphia, for Southeastern Pa. Transp. Authority and Consolidated Rail Corp.
Albert M. Hankin, Philadelphia, for Chapman.
Barbara R. Axelrod, Philadelphia, for City of Philadelphia, appellee.
Wickersham, McEwen and Wieand, JJ. Wieand, J. concurs in the result.
[ 290 Pa. Super. Page 282]
This appeal is from the lower court's order sustaining preliminary objections in the nature of a demurrer and dismissing the plaintiff's, Edith Chapman's, complaint in trespass against the City of Philadelphia. Plaintiff's complaint against the City of Philadelphia avers that plaintiff's decedent, William F. Chapman, died on August 14, 1978 as a result of injuries he sustained on August 11, 1978 when he was attacked and robbed by three men on the platform of
[ 290 Pa. Super. Page 283]
the Wayne Junction Railroad Station. The complaint alleges that the City of Philadelphia negligently breached its duty to plaintiff's decedent by failing to maintain law and order, protect the citizens and prevent unsafe conditions from existing.
Appellants argue that the lower court erred in dismissing plaintiff's complaint without affording her an opportunity to file an amended complaint. We affirm the order of the lower court.
Speaking for The Supreme Court of Pennsylvania, Justice Nix recently stated that:
It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may ...