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CATHERINE WELLS v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND CITY PHILADELPHIA AND COMMONWEALTH PENNSYLVANIA. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (03/31/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 31, 1987.

CATHERINE WELLS
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND CITY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLANT

Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Catherine Wells v. Southeastern pennsylvania Transportation Authority and City of Philadelphia and Commonwealth of Pennsylvania, No. 4022 November Term, 1985.

COUNSEL

Stephen Dittmann, with him, Norman Hegge, Jr., for appellant.

Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, Norma S. Weaver, Deputy in Charge of Claims and Handsel B. Minyard, City Solicitor, for appellee, City of Philadelphia.

J. Matthew Wolfe, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellee, Commonwealth of Pennsylvania.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge MacPhail.

Author: Macphail

[ 105 Pa. Commw. Page 116]

Southeastern Pennsylvania Transportation Authority (SEPTA) appeals here from an order of the Court of

[ 105 Pa. Commw. Page 117]

Common Pleas of Philadelphia County which sustained the preliminary objections of the City of Philadelphia (City) to the third party complaint filed by SEPTA against the City and dismissed that complaint. We reverse and remand.

The genesis of this case is a complaint for personal injuries filed by Catherine Wells (Plaintiff) who states that on May 28, 1984, she fell on trolley tracks located on the 4900 block of Baltimore Avenue in the City by reason of a dangerous and defective condition, "to wit: the tracks had an excessive and abnormal rise, defect, irregularity and/or incline."*fn1

A copy of the Plaintiff's complaint was attached to SEPTA's complaint against the City. In addition, SEPTA averred that the City was in possession and control of the location of the hazardous condition and permitted the hazardous and dangerous condition at that location to exist.

The City's preliminary objections are quite extensive but fail to state into what category they fall under Pa. R.C.P. No. 1017(b). The trial court treated them simply as "objections" and dismissed SEPTA's complaint "since liability rests squarely on SEPTA's shoulders for defective rails pursuant to the 1968 Agreement and Lease between itself and the City of Philadelphia."*fn2 We believe the City intended its preliminary objections to be in the nature of a demurrer and that the trial court so treated them.

It is fundamental in our law that a demurrer cannot be sustained unless it is clear on the face of the pleading

[ 105 Pa. Commw. Page 118]

    that the claimant cannot prevail and that the law will not permit the recovery sought therein; further, a demurrer, of course, admits all the well-pleaded facts in the challenged pleading and the reasonable inferences deducible therefrom. John Doe Corp. v. Pennsylvania Crime Commission, 84 Pa. Commonwealth Ct. 234, 479 A.2d 655 (1984). Clearly, both we and the trial court are limited here to a consideration of the allegations in the Plaintiff's complaint against SEPTA and the allegations in SEPTA's complaint against the City.

There is no reference in either of those pleadings to the "Agreement and Lease" allegedly entered into between SEPTA and the City in 1968 and relied upon by the trial court in reaching its decision. That document first surfaces in the City's preliminary objections. Our law is to the effect that a demurrer cannot aver the existence of any facts not apparent from the face of the challenged pleading. Hall v. Goodman Co., 310 Pa. Superior Ct. 465, 456 A.2d 1029 (1983). For many years, Pennsylvania courts have not countenanced "speaking demurrers." Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964).

Restricting ourselves then, as we must, to a consideration of the allegations in the complaint now before us,*fn3 we observe again that the cause of the Plaintiff's fall

[ 105 Pa. Commw. Page 119]

    is alleged to be the abnormal rise, defect, irregularity and/or incline of the trolley tracks. SEPTA avers not only that the City was in possession of the location (a public street) where the accident occurred but that the City was or should have been aware of the hazardous condition and nevertheless permitted that condition to exist.

We conclude that accepting all of the factual allegations set forth in the complaint as true, solely for the purpose of determining whether a cause of action has been stated, the trial court erred in dismissing the complaint against the City at this stage of the pleadings.

As we have previously noted, the trial court did not address the issue of the City's immunity, also raised in the City's preliminary objections. Governmental immunity should be raised in a responsive pleading under new matter. Pa. R.C.P. No. 1030. This Court, however, has recognized that where the immunity defense is apparent on the face of the pleading being challenged, the trial court may rule on preliminary objections which raise the defense unless additional preliminary objections are filed by an opposing party challenging such procedure. McCreary v. City of Philadelphia, 95 Pa. Commonwealth Ct. 285, 505 A.2d 385 (1986); see also Pa. R.C.P. No. 1032. Here, SEPTA did not object to the City's improper pleading of the defense. Our examination of the averments in the only pleadings now before us reveals that the defense of governmental immunity is apparent from the face of SEPTA's third party complaint.

[ 105 Pa. Commw. Page 120]

Its applicability to the facts of this case, therefore, must be determined.

We, accordingly, must remand this case to the trial court for its decision on the issue of governmental immunity.*fn4 See Gordon v. Pulakos, 48 Pa. Commonwealth Ct. 442, 410 A.2d 899 (1980).

Order

The order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of the City of Philadelphia is reversed and the case is remanded to the trial court for further proceedings.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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