Jamison v. City of Philadelphia

513 A.2d 479, 355 Pa. Super. 376, 1986 Pa. Super. LEXIS 11671
CourtSupreme Court of Pennsylvania
DecidedAugust 8, 1986
Docket2717
StatusPublished
Cited by12 cases

This text of 513 A.2d 479 (Jamison v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jamison v. City of Philadelphia, 513 A.2d 479, 355 Pa. Super. 376, 1986 Pa. Super. LEXIS 11671 (Pa. 1986).

Opinions

WIEAND, Judge:

Seth Jamison was injured because of the negligent operation of a stolen vehicle while the thief was attempting to elude pursuing police. Jamison filed an action against Blara Parking Corporation (Blara), which had had possession of the automobile at the time when it was stolen. The trial court sustained preliminary objections in the nature of a demurrer to the complaint and entered judgment in favor of the parking lot operator. Jamison appealed. We affirm.

On September 10, 1984, Terry Heimann’s Mazda automobile was valet parked on an upper level of a garage operated by Blara at Eleventh and Clinton Streets in Philadelphia. Before midnight on September 12, 1984, the Mazda was stolen by Reginald Lambert. When police subsequently observed the stolen car, they pursued it. During this pursuit, the stolen car was operated at a high rate of speed; and, at Fifteenth and Lombard Streets, it collided with a vehicle in'which Jamison was riding as a passenger. Jami-son sustained serious injury.

On appeal, Jamison contends initially that the trial court should have stricken Blara’s preliminary objections because they were not filed within twenty days after service of the complaint.1 They were filed, however, before any default judgment had been taken.

[379]*379“Pa.R.C.P. 1026 provides that a pleading shall be filed within 20 days after service of a preceding pleading. This rule is not mandatory but permissive. We have held that late pleadings may be filed ‘if the opposing party is not prejudiced and justice requires. Much must be left to the discretion of the [trial] court.’ Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951).”

Allison v. Merris, 342 Pa.Super. 571, 574, 493 A.2d 738, 739-740 (1985), quoting Paulish v. Bakaitis, 442 Pa. 434, 441, 275 A.2d 318, 321-322 (1971). See: Boarts v. McCord, 354 Pa.Super. 96, 100-103, 511 A.2d 204, 206-07 (1986). Appellant has alleged no prejudice as a result of the delayed filing of preliminary objections, and our own review of the record has disclosed none. Moreover, whether a recognizable cause of action existed against the owner of the garage at which the vehicle had been parked was an issue which, in any event, would sooner or later have to be decided by the court as a matter of law. See: Boarts v. McCord, supra. The trial court did not abuse its discretion when it refused to strike Blara’s preliminary objections in the nature of a demurrer.

The standard to be applied in deciding preliminary objections in the nature of a demurrer was established by the Supreme Court in Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970), as follows:

In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. King v. U.S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). In considering the demurrer, every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959). A demurrer does not, however, admit the pleader’s conclusions of law. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 [380]*380A.2d 465 (1964); Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Of course, where the complaint shows on its face that the claim is devoid of merit, the demurrer should be sustained. Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576, cert. denied Scarselletti v. Aetna Cas. & Sur. Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1967). But if there is any doubt as to whether the demurrer should be sustained, such doubt should be resolved in favor of refusing to enter it. Sun Ray Drug Co. v. Lawler, supra; Moran v. Bair, 304 Pa. 471, 156 A. 81 (1931).

Hoffman v. Misericordia Hospital of Philadelphia, supra, 439 Pa. at 503-504, 267 A.2d at 868. See also: Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 16, 495 A.2d 963, 967 (1985).

Whether the owner of a parking lot can be held legally liable to an innocent person who is injured by the careless operation of a motor vehicle which has been stolen from the parking lot has previously been before the appellate courts of this Commonwealth. In Farley v. Sley System Garages, Inc., 187 Pa.Super. 243, 144 A.2d 600 (1958), this Court affirmed the opinion of the trial court which held that a parking lot operator who had carelessly allowed a vehicle in its possession to be stolen could not be required to foresee that the thief would negligently injure a third person. Therefore, the operator of the parking lot could not be held liable for injuries sustained by a plaintiff who had been injured because of the negligent manner in which the vehicle had been driven by the thief. The trial court explained:

It is fundamental that one is not to be held liable for all possible consequences, but only for the probable consequences. Fairbanks v. Kerr & Smith, 70 Pa. 86 [1872], It is conceded as indeed it must be that the injury herein complained of was a possible consequence of the theft. But, it was no more probable than the consequence that the thief would drive carefully so as not to attract attention.

[381]*381Farley v. Sley System Garages, Inc., 13 Pa.D. & C.2d 680, 688-689 (1958), reprinted at 187 Pa.Superior Ct. 243, 144 A.2d 600, 605 (1958).

The Supreme Court was faced with a similar issue for the first time in Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961). There, plaintiff alleged that the defendant, a used car lot operator, had negligently allowed a car on its lot to be stolen by an unlicensed, fourteen year old boy, who operated the car in such a negligent manner that it mounted a sidewalk, where it struck and injured the plaintiff. The complaint alleged specifically that the defendant knew that young boys frequently had been playing in and around the cars on the lot and that a set of keys had been stolen two days before the vehicle was taken.

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Jamison v. City of Philadelphia
513 A.2d 479 (Supreme Court of Pennsylvania, 1986)

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Bluebook (online)
513 A.2d 479, 355 Pa. Super. 376, 1986 Pa. Super. LEXIS 11671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamison-v-city-of-philadelphia-pa-1986.