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JOSEPHINE J. ROACH AND THOMAS ROACH v. PORT AUTHORITY ALLEGHENY COUNTY AND STATE FARM INSURANCE COMPANIES (11/29/88)

November 29, 1988

JOSEPHINE J. ROACH AND THOMAS ROACH, HER HUSBAND, APPELLANTS,
v.
PORT AUTHORITY OF ALLEGHENY COUNTY AND STATE FARM INSURANCE COMPANIES



Appeal from the Order entered by The Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division September 4, 1987, at No. GD 87-8961

COUNSEL

John M. Silvestri, Pittsburgh, for appellants.

Frank M. Gianola, Pittsburgh, for appellees.

Brosky, Johnson and Melinson, JJ.

Author: Melinson

[ 380 Pa. Super. Page 29]

This is an appeal from an Order of the Court of Common Pleas of Allegheny County granting, without Leave to Appellant to Amend, the Appellee's (State Farm Insurance Companies') preliminary objection in the nature of a demurrer.

Appellants, Josephine J. Roach and Thomas Roach, her husband, filed a two-count Complaint which named the Port Authority of Allegheny County (hereinafter "PAT") and State Farm Insurance Companies (hereinafter "State Farm") as Defendants.

[ 380 Pa. Super. Page 30]

To determine whether a preliminary objection in the nature of a demurrer was properly granted, this Court must accept as true all properly pleaded material facts, and reasonable inferences therefrom, set forth by the opposing party. Stein v. Richardson, 302 Pa. Super. 124, 448 A.2d 558 (1982); Sun Oil Co. Of Pennsylvania v. Bellone, 292 Pa. Super. 341, 437 A.2d 415 (1981), citing Trost v. Clover, 234 Pa. Super. 255, 338 A.2d 630 (1975). We must confine our analysis to the complaint and decide whether there have been pleaded sufficient facts to permit recovery if said facts are ultimately proven. Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa. Super. 253, 489 A.2d 1364 (1985).

In addition, leave to amend a complaint lies within the discretion of the trial court unless the amended pleading has been filed within ten days of the filing of the preliminary objections. Pa.R.Civ.P. 1028(c), 42 Pa.Cons.Stat.Ann. Division 85 of Amalgamated Transit Union v. Port Authority of Allegheny County, 71 Pa. Commw. 600, 455 A.2d 1265 (1983). Also, the right to amend the pleadings should not be withheld where some reasonable possibility exists that the amendment can be accomplished successfully. Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986); Otto v. American Mutual Insurance Co., 482 Pa. 202, 205, 393 A.2d 450, 451 (1978); Division 85 of Amalgamated Transit Union, 455 A.2d at 1267. However, "the decision to grant or deny leave to amend is within the sound discretion of the trial court, and will not be reversed absent a clear abuse of discretion." Feingold v. Hill, 360 Pa. Super. 539, 550, 521 A.2d 33, 39 (1987), citing Junk v. East End Fire Department, 262 Pa. Super. 473, 490, 396 A.2d 1269, 1277 (1978). Leave to amend will be withheld where the initial pleadings reveal that the prima facie elements of the claim cannot be established and that the complaint's defects are so substantial that amendment is not likely to cure them. Feingold, 360 Pa. Super. at 550, 521 A.2d at 39, citing Spain v. Vicente, 315 Pa. Super. 135, 142-43, 461 A.2d 833, 837 (1983).

[ 380 Pa. Super. Page 31]

The pleadings reveal the following facts: On March 18, 1987, Josephine Roach (hereinafter "Mrs. Roach"), was a passenger on a bus owned and operated by PAT. While she was riding on the bus, Roach was injured as a result of a fight which took place between two other PAT bus passengers. The Roaches alleged in the first count that PAT was negligent in allowing the two people who were fighting to enter the bus, and in not preventing the fight which caused Mrs. Roach's injuries. In this appeal, we are not asked to determine the rights of the Roaches against PAT with respect to the liability of PAT for their alleged negligence; therefore, we shall not address this issue.

In the second count, the Roaches alleged that State Farm was unreasonable in denying an insurance claim for reimbursement of medical bills incurred by the Roaches due to the injuries sustained by Mrs. Roach. Mrs. Roach was insured under an automobile insurance policy issued by State Farm. As a result of her injuries, Mrs. Roach filed a claim with State Farm under her policy. State Farm denied her claim contending that the injuries sustained by her did not arise out of "the maintenance or use of a motor vehicle" as is required for payment of first ...


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