Appeal from Common Pleas Court, Philadelphia County, Honorable Nicholas M. D'Alessandro, Judge.
Robert F. Fortin, Allentown, for appellants.
Barbara A. Axelrod, Seymour Kurland, City Sol., Norma A. Weaver, Chief Deputy City Sol., Miriam B. Brenaman, and Alan Ostrow, Asst. City Solicitors, Philadelphia, for appellee, City of Philadelphia.
Doyle and McGinley, JJ., and Narick, Senior Judge.
[ 129 Pa. Commw. Page 598]
George W. Jackson, Jr. (Husband) and Elva S. Jackson (Wife), (together, Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County (trial court) dated November 21, 1988, granting the City of Philadelphia's (City) preliminary objections and dismissing the City as a party in an action by Appellants to recover for bodily injuries and other losses sustained by Appellants after
[ 129 Pa. Commw. Page 599]
Husband was struck by a Southeastern Pennsylvania Transportation Authority (SEPTA), trolley car while crossing Island Avenue on May 5, 1986. We affirm.
The City sought dismissal from the action filed against SEPTA, Karl A. Beck (Beck), the driver of the trolley car, the City, the Department of Transportation (PennDOT), and the Commonwealth of Pennsylvania (Commonwealth), averring lack of ownership or control of the state-owned highway, and that SEPTA owned and controlled the trolley tracks and trolley and was liable for the negligence of its employee, Beck. The City filed preliminary objections seeking dismissal. Appellants responded with preliminary objections of their own, requesting that the City's preliminary objections be stricken on the basis that the City's objections inaccurately depicted Appellants' Complaint and that immunity may only be asserted via New Matter. Appellants also alleged the City's preliminary objections incorporated facts not of record.
The trial court denied and dismissed the City's preliminary objections on October 28, 1988, concluding that the record was unclear as to whether the City or the Commonwealth designed the street in a negligent manner. Subsequently, citing Swank v. Bensalem Township, 504 Pa. 291, 472 A.2d 1065 (1984) wherein our State Supreme Court held that a township may not be held liable for a negligent design once the road has been adopted by the state highway system, the City requested reconsideration. In Swank, the Court held that summary judgment in favor of the township was proper where "negligent design" of a highway was at issue. On November 21, 1988, the trial court vacated the October 28, 1988, order, granted the City's preliminary objections and dismissed the City as a party to the action. Appellants filed a timely appeal.
[ 129 Pa. Commw. Page 600]
When examining a decision of a trial court, our scope of review is limited to a determination of whether constitutional rights have been violated or whether the trial court abused its discretion or committed an error of law. Jenkins Page 600} v. McDonald, 92 Pa. Commonwealth Ct. 140, 498 A.2d 487 (1985).
Appellants argue that the City's preliminary objections in the nature of a demurrer should have been stricken under Pa.R.C.P. No. 1017(b)(2) because the City should have asserted its affirmative defense in New Matter;*fn1 that the City through its preliminary objections improperly supplied facts not contained in Appellants' Complaint; and that ...