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.
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.
[ 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 ...