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MOLLIE DASH & HARRY DASH H/W v. WILAP CORPORATION AND JOHN RIGHTLY (07/05/85)

filed: July 5, 1985.

MOLLIE DASH & HARRY DASH H/W, APPELLANTS,
v.
WILAP CORPORATION AND JOHN RIGHTLY



No. 02484 Philadelphia 1984, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 1051 May Term 1982.

COUNSEL

Gary Tilles, Philadelphia, for appellants.

Leslie A. Miller, Philadelphia, for appellees.

Beck, Popovich and Trommer, JJ.*fn*

Author: Popovich

[ 343 Pa. Super. Page 586]

This is an appeal by the plaintiffs (Harry Dash and Mollie Dash, Husband/Wife) from the order of the Court of Common Pleas of Philadelphia County (per Judge DiBona) granting the defendant's (Wilap Corp.'s) petition to discontinue its joinder of and cause of action against John Rightly, the additional defendant. We affirm and modify.

On May 7, 1982, the plaintiffs filed a praecipe with the prothonotary for the issuance of a summons in trespass against the defendant. Service by the sheriff was made on May 14, and was followed by the filing of a praecipe by the defendant for a rule to file a complaint upon the plaintiffs on June 17. Thereafter, on July 2, a 3-count complaint in trespass was filed in which the plaintiffs averred that the defendant owned ninety (90) acres of undeveloped land, a

[ 343 Pa. Super. Page 587]

    portion of which abutted the plaintiffs' property and was not maintained for a period of at least four (4) years prior to May of 1980 "to the peril, danger, harm, disgust and annoyance of the plaintiffs in the habitation of their home." In particular, the plaintiffs alleged that the "unkept" acreage resulted in the creation of an unreasonably dangerous condition ("nuisance") utilized by criminals "for purposes of concealment, safe cover, refuge and as a haven in the commission of crimes against persons and properties in proximity to the . . . Wilap Tract, one of which is the Dash property." The plaintiffs went on to aver:

7. Directly as a result of the conditions heretofore described, on May 22, 1980, one John Rightly, wearing blue jeans, t-shirt and a stocking mask over his face, and illegally carrying a Browning 9 millimeter revolver was dropped off from an automobile near the Wilap Tract, entered and walked through the Wilap Tract under concealment, and undetected and reached the Dash property abutting same.

8. Thereupon, John Rightly forcibly entered the Dash residence wherein plaintiff, Mollie Dash, was home alone. When Mrs. Dash sought to flee the residence she was brutally attacked and beaten by John Rightly, who repeatedly struck Mrs. Dash with the aforementioned firearm on the head and upper body, inflicting severe and serious injuries.

9. After beating Mollie Dash, John Rightly seized valuable personal belongings of the plaintiffs and left their residence. John Rightly stealthy returned to his auto through the Wilap Tract which because of the conditions above described [, i.e., debris, high grass, unkept and untrimmed weeds and hedges, and other objectionable vegetation . . . remain[ed] on the Wilap Tract, so as to] conceal[], hid[e] and protect[] the assailment [sic] as he made his get-away.

The remaining portions of the complaint recounted the injuries sustained, the cost incurred and the pain endured by the plaintiff Mollie Dash. Also, each plaintiff asked for

[ 343 Pa. Super. Page 588]

    monies attributable to compensatory ($20,000.00) and punitive ($500,000.00) damages, in addition to a claimed loss of personal property (in the amount of $32,000.00) by virtue of the theft by John Rightly.

On September 7, 1982, the defendant filed a complaint against John Rightly, who by that time had been incarcerated for the Dash burglary and assault. Defendant averred that the additional defendant was the sole cause of the injuries and damages claimed by the plaintiffs. Thus, it prayed that the court find the additional defendant solely liable or jointly and severally liable to the plaintiffs with the defendant, or liable over to the defendant by way of indemnification.

Also, on the date just stated, the defendant filed an answer denying all of the plaintiffs' allegations, as well as new matter asserting the additional defendant's sole liability to the plaintiffs and the barring or limiting effect of 42 Pa.C.S.A. ยง 7102 on the plaintiffs' cause of action.

On September 15, 1982, the plaintiffs filed a reply to defendant's new matter denying that John Rightly was the "sole cause" of the injuries and damages or that Mollie Dash ...


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