filed: August 8, 1986.
SETH JAMISON, APPELLANT,
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.
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.
[ 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. 296, 154 A.2d 588 (1959). A demurrer does not, however, admit the pleader's conclusions of law. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204
[ 355 Pa. Super. Page 380]
A.2d 465 (1964); Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Of course, where the complaint shows on its face that the claim is devoid of merit, the demurrer should be sustained. Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576, cert. denied Scarselletti v. Aetna Cas. & Sur. Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1967). But if there is any doubt as to whether the demurrer should be sustained, such doubt should be resolved in favor of refusing to enter it. Sun Ray Drug Co. v. Lawler, supra; Moran v. Bair, 304 Pa. 471, 156 A. 81 (1931).
Hoffman v. Misericordia Hospital of Philadelphia, supra, 439 Pa. at 503-504, 267 A.2d at 868. See also: Cummins v. Firestone Tire & Rubber Co., 344 Pa. Super. 9, 16, 495 A.2d 963, 967 (1985).
Whether the owner of a parking lot can be held legally liable to an innocent person who is injured by the careless operation of a motor vehicle which has been stolen from the parking lot has previously been before the appellate courts of this Commonwealth. In Farley v. Sley System Garages, Inc., 187 Pa. Super. 243, 144 A.2d 600 (1958), this Court affirmed the opinion of the trial court which held that a parking lot operator who had carelessly allowed a vehicle in its possession to be stolen could not be required to foresee that the thief would negligently injure a third person. Therefore, the operator of the parking lot could not be held liable for injuries sustained by a plaintiff who had been injured because of the negligent manner in which the vehicle had been driven by the thief. The trial court explained:
It is fundamental that one is not to be held liable for all possible consequences, but only for the probable consequences. Fairbanks v. Kerr & Smith, 70 Pa. 86 . It is conceded as indeed it must be that the injury herein complained of was a possible consequence of the theft. But, it was no more probable than the consequence that the thief would drive carefully so as not to attract attention.
[ 355 Pa. Super. Page 381]
decisions were based. On the contrary, the purpose of the ordinance was "to prevent parking lot operators from contracting [away] liability for the negligence of their employees or themselves. The language of the ordinance presupposes the existence of a duty of care, and this language cannot be read as creating a duty of care where such duty did not exist prior thereto." Sparrow v. Airport Parking Co. of America, 221 Pa. Super. 32, 43 n. 5, 289 A.2d 87, 93 n. 5 (1972).
OLSZEWSKI, Judge, dissenting:
I respectfully dissent from the majority's decision to affirm the demurrer. The majority correctly stated that the demurrer can only be sustained if the law says with certainty that no recovery is possible and if there are any doubts, they should be resolved in favor of refusing it. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). That is precisely what must be done here. The law does not clearly preclude recovery in this situation and the demurrer should therefore have been refused.
My decision is based upon the Supreme Court opinion in Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961). The Anderson Court extensively quoted from the Restatement, Torts (1934) concerning the liability of one as the result of some other's actions. The key element, however, is forseeability. The Court then went on to hold that it is foreseeable to a parking garage owner that a car in its charge could be stolen, resulting in injury to an innocent person.
Finally, the question of proximate cause of an accident is almost always one of fact for the jury As stated in Nelson v. Duquesne L. Co., supra., [338 Pa. 37] at pp. 54, 55 [12 A.2d 299]: "In section 453 of Pennsylvania Annotations to the Restatement of Torts, the following appears
[ 355 Pa. Super. Page 384]
"It is not uncommon to have a situation where there may be a reasonable difference of opinion as to whether the actor's conduct was a substantial factor in bringing about the harm, and it frequently occurs that where intervening forces have come into operation there may be a reasonable difference of opinion as to whether they were extraordinary or normal. If there is room for such a reasonable difference of opinion, the question of legal cause is for the determination of the jury (citing 14 Pennsylvania cases.)"
Anderson, supra, 404 Pa. at 391, 171 A.2d at 775.
The law, then, does not allow for a sustaining of a demurrer in this case, but rather supports the right of a jury to determine the cause and ensuing liability.