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SETH JAMISON v. CITY PHILADELPHIA AND BLARA PARKING CORP. (08/08/86)

filed: August 8, 1986.

SETH JAMISON, APPELLANT,
v.
CITY OF PHILADELPHIA AND BLARA PARKING CORP., D/B/A CROWN GARAGE, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 5502 May Term, 1985.

COUNSEL

Ronald L. Wolf, Philadelphia, for appellant.

David J. Parsells, Philadelphia, for appellees.

Cirillo, President Judge, and Wieand and Olszewski, JJ. Olszewski, J., files a dissenting opinion.

Author: Wieand

[ 355 Pa. Super. Page 378]

Seth Jamison was injured because of the negligent operation of a stolen vehicle while the thief was attempting to elude pursuing police. Jamison filed an action against Blara Parking Corporation (Blara), which had had possession of the automobile at the time when it was stolen. The trial court sustained preliminary objections in the nature of a demurrer to the complaint and entered judgment in favor of the parking lot operator. Jamison appealed. We affirm.

On September 10, 1984, Terry Heimann's Mazda automobile was valet parked on an upper level of a garage operated by Blara at Eleventh and Clinton Streets in Philadelphia. Before midnight on September 12, 1984, the Mazda was stolen by Reginald Lambert. When police subsequently observed the stolen car, they pursued it. During this pursuit, the stolen car was operated at a high rate of speed; and, at Fifteenth and Lombard Streets, it collided with a vehicle in which Jamison was riding as a passenger. Jamison sustained serious injury.

On appeal, Jamison contends initially that the trial court should have stricken Blara's preliminary objections because they were not filed within twenty days after service of the complaint.*fn1 They were filed, however, before any default judgment had been taken.

[ 355 Pa. Super. Page 379]

"Pa.R.C.P. 1026 provides that a pleading shall be filed within 20 days after service of a preceding pleading. This rule is not mandatory but permissive. We have held that late pleadings may be filed 'if the opposing party is not prejudiced and justice requires. Much must be left to the discretion of the [trial] court.' Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951)."

Allison v. Merris, 342 Pa. Super. 571, 574, 493 A.2d 738, 739-740 (1985), quoting Paulish v. Bakaitis, 442 Pa. 434, 441, 275 A.2d 318, 321-322 (1971). See: Boarts v. McCord, 354 Pa. Super. 96, 100-103, 511 A.2d 204, 206-07 (1986). Appellant has alleged no prejudice as a result of the delayed filing of preliminary objections, and our own review of the record has disclosed none. Moreover, whether a recognizable cause of action existed against the owner of the garage at which the vehicle had been parked was an issue which, in any event, would sooner or later have to be decided by the court as a matter of law. See: Boarts v. McCord, supra. The trial court did not abuse its discretion when it refused to strike Blara's preliminary objections in the nature of a demurrer.

The standard to be applied in deciding preliminary objections in the nature of a demurrer was established by the Supreme Court in Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970), as follows:

In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. King v. U.S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). In considering the demurrer, every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. ...


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