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LAWRENCE C. BABJACK v. MT. LEBANON PARKING AUTHORITY AND MEDICAL RESCUE TEAM SOUTH (12/18/86)

decided: December 18, 1986.

LAWRENCE C. BABJACK
v.
MT. LEBANON PARKING AUTHORITY AND MEDICAL RESCUE TEAM SOUTH, INC. MT. LEBANON PARKING AUTHORITY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Lawrence C. Babjack v. Mt. Lebanon Parking Authority v. Medical Rescue Team South, Inc., No. GD 84-19219.

COUNSEL

Thomas R. Doyle, for appellant.

John W. Jordan, IV, Grigsby, Gaca & Davies, P.C., for appellee, Medical Rescue Team South, Inc.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 102 Pa. Commw. Page 500]

The Mt. Lebanon Parking Authority (Appellant) appeals an order of the Court of Common Pleas of Allegheny County which sustained preliminary objections of the Appellee Medical Team South, Inc. and dismissed the Appellant's complaint to join Appellee as an additional defendant in a suit for personal injuries brought against Appellant by Lawrence C. Babjack,an employee of Appellee. We agree with the trial court that Appellee was immune from suit under The Pennsylvania Workmen's Compensation Act (Act)*fn1 and therefore affirm that court's order.

[ 102 Pa. Commw. Page 501]

Mr. Babjack suffered lacerations to his right arm when a glass door he was attempting to exit shattered. The door was located on premises owned by Appellant but leased to Babjack's employer, the Appellee herein. Alleging that Appellant was negligent in failing to provide safety glass in the door, Babjack filed an action against Appellant in the court of common pleas.

After filing an answer and new matter to Babjack's complaint, Appellant filed a complaint to join Appellee as an additional defendant on the grounds that a lease allegedly entered into by Appellant and Appellee contained a provision whereby Appellee agreed to hold harmless and indemnify Appellant for injuries sustained by Appellee's employees caused by any condition of the premises. Appellee filed preliminary objections in the nature of a demurrer asserting that it was immune from suit under the Act. The trial court, in an order dated September 27, 1985, sustained the objections and dismissed the complaint to join. Appellant's appeal from that order is now before us.

Appellant's initial contention is that Appellee's preliminary objections in the nature of a demurrer improperly raised the affirmative defense of the Act which Appellant says should have been raised in new matter pursuant to Pa. R.C.P. No. 1030. We reject this argument based on the recent decision of our Supreme Court in LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 515 A.2d 875 (1986), wherein the Court held that the employer's liability under the Act is not an affirmative defense but goes to the subject matter jurisdiction of the Court.

Appellant also argues that Appellee's demurrer to the complaint, in effect, admits the existence of a written indemnity contract between Appellant and Appellee by which Appellee agreed to indemnify Appellant. We do not agree.

[ 102 Pa. Commw. Page 502]

We recognize that preliminary objections in the nature of a demurrer admit as true all well-pleaded, material facts contained in a complaint and every inference fairly deducible therefrom. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). Conclusions of law, however, are not admitted by way of demurrer. Id.; Brown v. Taylor, 90 Pa. Commonwealth Ct. 23, 494 A.2d 29 (1985). Because the construction and interpretation of the terms of a lease agreement are questions of law, and not fact, Kardibin v. Associated Hardware, 284 Pa. Superior Ct. 586, 426 A.2d 649 (1981), we conclude that Appellee's demurrer did not admit that Appellee agreed to indemnify Appellant under the provisions of the ...


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