Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

RICK L. MULL AND DIANNE L. MULL v. ABRAHAM F. KERSTETTER (04/20/88)

filed: April 20, 1988.

RICK L. MULL AND DIANNE L. MULL, HIS WIFE, APPELLANTS,
v.
ABRAHAM F. KERSTETTER



Appeal from the Order of the Court of Common Pleas, Civil Division, of Snyder County at No. 70, 1987.

COUNSEL

Andrew H. Dowling, Harrisburg, for appellee.

Cavanaugh, Olszewski and Popovich, JJ.

Author: Popovich

[ 373 Pa. Super. Page 229]

This is an appeal from the order of the Court of Common Pleas of Snyder County sustaining the preliminary objections in the nature of a demurrer of the defendant/appellee/Abraham F. Kerstetter and dismissing the complaint of the plaintiffs/appellants/Rick L. and Dianne L. Mull, his wife. We reverse.

In assessing the propriety of the actions of the court below, we must keep the following in mind; namely:

The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). In order to sustain the demurrer, it is essential that the plaintiff's complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Papieves v. Lawrence, supra. If there is any doubt, this

[ 373 Pa. Super. Page 230]

    should be resolved in favor of overruling the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976).

In light of the aforementioned, we start our review with an examination of the plaintiffs' complaint. It is alleged therein that, at approximately 12:30 a.m. on the 14th day of May, 1985, Rick L. Mull, a volunteer fireman, responded to a fire alarm called in by the defendant at his premises. Once at the scene, "the Plaintiff was hosing the fire when he stepped into an open window well, which was unguarded, unmarked and unprotected causing serious bodily injuries to the Plaintiff." (Paragraph 7)

Further, the plaintiff avers that, as a business invitee on the defendant's premises, he was owed "a higher degree of care than the social invitee or trespasser." (Paragraph 11) Thus, it is the plaintiff's contention that the defendant's failure to illuminate the yard, to warn about the holes or to keep the plaintiff from "falling into the dangerous pit or well" imputed negligence to the defendant and held him accountable for the injuries sustained and the damages incurred now and in the future for allowing a dangerous condition to subsist on his premises and taking no steps to remedy the hazard. (Paragraph 10) In particular, the plaintiff seeks recovery for the loss of his present and future income because of his inability to use the fingers on his right hand. He asks also for damages stemming from his pain and suffering and reimbursement for his medical treatment.

In count II of the complaint, the plaintiff/wife seeks compensation for the loss of consortium, companionship and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.