Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Lackawanna County at No. 83-CIV-1379
Frank J. Muraca, Scranton, for appellants.
Paul J. Gelman, Philadelphia, for appellees.
Montemuro, Popovich and Watkins, JJ.
[ 345 Pa. Super. Page 139]
This is a consolidated appeal from the January 10, 1985 judgment entered following the granting of the preliminary objections in the nature of a demurrer and the motion for judgment on the pleadings of the defendants-appellees, County of Lackawanna and William Murray, Court Administrator
[ 345 Pa. Super. Page 140]
of Lackawanna County, respectively. We vacate and remand.
As is our function upon an appeal from a decision of the lower court sustaining the preliminary objections in the nature of a demurrer to the plaintiff's complaint, the appellate court must accept as true every relevant fact sufficiently averred in the plaintiff's complaint together with every inference favorable to the plaintiff which is fairly deducible therefrom. 16 Standard Pennsylvania Practice 2d, § 91:61 at 484-86 (1983).
In passing on the propriety of the entry by the lower court of the judgment on the pleadings, we, as an appellate court, must accept as true, for purposes of review, the factual allegations in the plaintiff's complaint, and from such an inquiry determine whether or not the action of the court below was based on a clear error of law, or whether there were facts disclosed by the pleadings which ought to be passed on by a jury. 16 Standard Pennsylvania Practice 2d, § 91:63 at 489, 490 (1983).
In compliance with the aforesaid, we see that in Helen and Charles Wojciechowskis' complaint in trespass, filed February 22, 1984, the plaintiffs alleged that Helen had filled out a jury service questionnaire mailed to her by William Murray. Therein, Helen had written that "she could not serve on the jury panel for medical reasons . . . ." (Paragraph 5) Her doctor attested to the same. However, despite the return of the questionnaire with the excuse by her doctor that she had an "unstable cardiac condition", Helen was called for jury service. A second attempt by Helen's doctor to have his patient excused also proved unsuccessful. In this communique the doctor informed the Court Administrator's Office that a nurse should be made available in the courtroom and that arrangements should be made for a possible emergency transfer to a hospital should Helen "suffer one of her unpredictable cardiac spells in court." (See Exhibit "B")
[ 345 Pa. Super. Page 141]
On March 23, 1981, Helen appeared for jury duty and was selected to hear a criminal case. She goes on to aver that "[o]n March 25, 1981, as a result of jury service aforesaid, . . . [she] suffered a heart attack and was immediately hospitalized at the Community Medical Center, Scranton, Pennsylvania." (Paragraph 10) Helen attributed her heart attack to the "negligence and carelessness of the Defendant, County of Lackawanna, by ...