Jamison v. City of Philadelphia

place. as the took merely watched crime participate, but more, from the missing something need We case. present of a con argued existence Commonwealth In accomplice liability. proving theory and

spiracy however, agreement of an this, there was no overt evidence along he with go assented to included Johnson which While it is true that a of the crime. commission alone, it circumstantial may be based on evidence conviction inference, suspicion conjec on solely not be based may supra. precisely That is Frey, ture. Commonwealth We, therefore, obligat are done this instance. what was appellant’s conviction.1 ed to reverse relin- reversed. Judgment of sentence Jurisdiction quished. A.2d 479 JAMISON, Appellant,

Seth Parking Corp., Blara PHILADELPHIA and d/b/a CITY OF Appellees. Garage, Crown Pennsylvania. Superior Court 6,May 1986. Argued Aug. Filed attorney considered question should have whether the district 1. We with consistent charging appellant with other crimes possibility of there. his actions appellant. Wolf, Philadelphia, L. Ronald Parsells, appellees. Philadelphia, David J. CIRILLO, Judge, and WIEAND President Before OLSZEWSKI, JJ.

WIEAND, Judge: opera- negligent injured because was

Seth Jamison attempting the thief was a stolen vehicle while tion of against filed an action Jamison pursuing police. elude (Blara), posses- had had Corporation Parking Blara stolen. The time it was at the when of the automobile sion the nature objections preliminary trial court sustained in favor judgment entered complaint and demurrer to the We affirm. appealed. Jamison operator. lot parking of the Mazda automo- 10, 1984, Heimann’s Terry September On operat- a garage level of upper on an parked valet bile was in Philadelphia. and Clinton Streets Blara at Eleventh by ed 1984, 12, the Mazda was midnight September on Before police subsequently When Reginald Lambert. by stolen During this car, it. they pursued the stolen observed high speed; rate of at a operated stolen car was pursuit, the Streets, it collided with and, and Lombard at Fifteenth as a Jami- riding passenger. in'which Jamison was vehicle injury. serious son sustained trial initially that the contends appeal, Jamison On objections preliminary Blara’s have stricken court should after ser twenty days not filed within they were because however, filed, before They were complaint.1 vice taken. had been judgment default any 4, The defendant’s complaint on June had been served 1. The 8, August 1985. The trial court objections filed on preliminary were objections. preliminary plaintiff's to strike defendant’s motion denied “Pa.R.C.P. 1026 provides pleading that a shall filed within 20 days after service of a preceding pleading. This rule is not mandatory permissive. but We held have pleadings that late ‘if may be filed the opposing is party prejudiced not and justice requires. Much must be left to Hill, Fisher v. the discretion court.’ 368 Pa. [trial] 53, (1951).” 81 A.2d 860 Merris,

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

The standard to applied deciding preliminary objec tions the nature of a demurrer was established Supreme Court in Hospital Misericordia Hoffman Philadelphia, (1970), 267 A.2d 867 as follows: In determining a demurrer whether should be sustained dismissed, and the complaint question presented is whether, averred, on the facts says certainty law with possible. King v. U.S. Steel Corp., that no recovery 140, (1968); 432 Pa. Ray Drug Sun Co. v. 247 A.2d 563 Lawler, 571, (1951). 366 Pa. 79 A.2d 262 In considering demurrer, the every well-pleaded material fact set forth complaint, the as well as all inferences reasonably be admitted. Ya therefrom, must taken to deducible nia v. 316, (1959); Bigan, Mistick v. 397 Pa. 155 A.2d 343 Cammack, 397 Pa. 296, (1959). 154 A.2d 588 A demurrer not, however, pleader’s does admit the conclusions of law. Mullhauser, Eden Roc v. 61, Country Club 416 Pa. 204 380 555, 413 Pa. 198 (1964); Rudolph, v.

A.2d 465 Lerman course, complaint the shows (1964). Of where A.2d 532 merit, of the demurrer that the claim is devoid on its face Co., Greenberg sustained. v. Aetna Insurance should be 576, 511, A.2d v. 235 cert. denied Scarselletti 427 Pa. 907, 2063, 20 Co., 392 U.S. 88 S.Ct. & Sur. Aetna Cas. to if as (1967). 1366 But there doubt L.Ed.2d sustained, such doubt should be the demurrer whether refusing enter it. of to Sun resolved favor should be Bair, 304 Pa. Lawler, Moran v. supra; Co. v. Ray Drug 471, 81 156 A. Philadelphia, supra, Hospital v. Misericordia of

Hoffman 503-504, at 868. See also: Cummins Pa. 267 A.2d 439 A.2d Co., Pa.Super. 495 Tire & Rubber Firestone can of a lot be held parking Whether the owner by the person injured to innocent who is legally liable has been stolen of a motor vehicle which operation careless appel the has been parking previously the lot before from Sys In Farley Sley courts of this Commonwealth. late (1958), Inc., 187 144 A.2d 600 Pa.Super. Garages, tem held opinion the the trial court which Court affirmed this allowed a carelessly who had parking operator lot that to required to stolen could not be possession in its vehicle a third negligently injure that thief would foresee Therefore, lot could operator parking person. plaintiff sustained who injuries by liable for not be held manner in which negligent injured had been because thief. The trial court had driven vehicle been explained: liable for all that is not to be held

It is one fundamental conse- only probable for the but possible consequences, Smith, [1872], & v. Kerr quences. Fairbanks must herein injury indeed it be that the is conceded as It of the theft. possible consequence complained was consequence than the But, probable it no more was atten- carefully so as not attract thief would drive tion.

381 Inc., Farley Sley System Garages, 13 680, Pa.D. & C.2d (1958), reprinted 688-689 187 Pa.Superior Ct. A.2d

The Supreme Court was faced a with similar issue for the first time in Anderson v. Bushong Co., Pontiac 404 Pa. (1961). There, 171 A.2d 771 plaintiff alleged that the defendant, a used car lot operator, had negligently allowed a car on its lot to be stolen unlicensed, fourteen year operated old boy, who the car in such a negligent manner it sidewalk, that mounted a where it struck and injured the The plaintiff. complaint alleged specifically that the de- fendant knew that young boys frequently had playing been in and around the cars on the lot and that a set of keys had been stolen two days before the vehicle was taken. The trial court determined that the complaint failed to state a cause of action and dismissed the action. Supreme reversed, holding Court that it was for the jury to decide whether the defendant had negligent. been The Court said:

After the keys had been stolen known, and such fact was it did not require much imagination to realize that the car list____ might itself well be next on the That might it well fall into the possession and control of an incompetent teenager was not difficult to visualize. But no safety precautions ensued. Whether or not this constituted the exercise of reasonable prudence, under all of the circum- presented, stances cannot be decided as a matter of law. Id., 404 385-386, Pa. at 171 A.2d at 772-773. later,

Five years the Supreme again Court was faced with type same Motors, Inc., issue Liney v. Chestnut 218 A.2d 336 defendant, There the garage operator, had negligently a vehicle allowed left repairs to parked on the street with keys ignition. The car was stolen by stranger an adult who drove it in such a careless manner that it mounted a sidewalk and struck the plaintiff. The trial court sustained the defend- ant’s preliminary objections and dismissed the complaint failure to state a cause of appeal, action. On the Supreme affirmed, Court holding that the defendant had violated no duty owed plaintiff. to the distinguished The Court Co., on the basis that Bushong supra, Pontiac Anderson case to present put in the “nothing existed [the defendant] an incompetent would be or careless that the thief on notice circumstances, the thief’s careless Under' driver. [these] a of superseding cause the of the automobile was operation existed, if suffered, negligence, defendant’s such and injury which no action would lie.” upon remote cause ... [was] Liney Motors, Inc., supra, 421 v. Chestnut A.2d at case, not complaint did contain appellant’s

In the instant permit finding to that Blara of fact sufficient averments known that or have the vehicle was either knew should driver or that the thief incompetent stolen to be likely negligent in a or reckless manner. drive the vehicle would therefore, for of is, distinguishing taking no basis the There in in case from the facts Farley automobile this Mazda supra, Liney and v. Chestnut System Garages, v. Sley Inc., If in fact Blara was careless Motors, supra. stolen, be to the vehicle to be it cannot said have allowing was not a negligent appellant, injury toward whose been the theft. thief’s careless consequence foreseeable of of superseding of vehicle was a cause operation the stolen held appellee cannot liable. appellant’s injuries, which be however, even if Blara argues, owed Appellant him, can liability of care toward duty no common law of upon Philadelphia 9-601 Code. premised Section 9-601, Lots, “Garages, Parking entitled Sales Lots Section Showrooms,” provides, part: and Sales Liability of Each licensee shall liable for Licensee. damage any accepted to or theft of motor vehicle any individual, which parking, bodily injury any and for the negligence occur as the result of of the licensee shall contract, agreement, or employees, of his no or regulation exempt any rule shall licensee his receipt, or such employer liability. from 9-601(2)(k). Code Philadelphia § of fore- legal principles This ordinance did not alter upon prior Pennsylvania and causation seeability contrary, decisions were based. On the purpose prevent “to parking operators ordinance was lot from con- tracting for the their [away] liability negligence of employ- or of language ees themselves. The presup- ordinance care, poses duty existence of a and this language creating cannot be read as duty care such duty where not prior did exist thereto.” Sparrow Airport Parking America, 221 Pa.Super. 32, Co. 43 n. A.2d 93 n. affirmed. Order

OLSZEWSKI, J., a dissenting opinion. files OLSZEWSKI, Judge, dissenting: respectfully I from dissent the majority’s decision to affirm the demurrer. The stated the majority correctly that only demurrer can be if says sustained the law with certain recovery doubts, that no is if ty possible and there are they should be resolved in favor of refusing it. Hoffman Hospital Misericordia Philadelphia, 439 Pa. 267 of A.2d 867 That is be done precisely what must here. preclude The law does not clearly recovery in this situation the and demurrer should therefore have been refused. My upon decision based the in Supreme opinion Court Co., Anderson v. Pontiac 404 Bushong Pa. 171 A.2d 771 The quoted Anderson Court from extensively Restatement, (1934) the concerning Torts liability the of one as of element, the result some key other’s actions. The however, is The forseeability. Court then on to hold went it is that parking garage foreseeable to a that car owner a stolen, in its charge could resulting injury be in to an person. innocent

Finally, question proximate the of cause of accident always is almost of one fact for the As jury stated Duquesne Co., Nelson v. supra., L. Pa. at pp. [338 37] 55 A.2d “In section Pennsylvania 453 of Annota- [12 299]: Torts, tions to the of following Restatement appears may to a there have situation where uncommon “It is not of to whether opinion difference as a reasonable bringing a factor in about was substantial conduct actor’s intervening harm, frequently occurs where and it a reason- may into there operation come forces have ex- they as opinion of to whether were difference able for a or If there is room such normal. traordinary legal of opinion, question of difference reasonable the jury (citing determination cause is cases.)” Pennsylvanlia

Anderson, supra, at 775. 171 A.2d then, sustaining law, does not allow case, right supports but rather this demurrer ensuing liability. the cause determine jury A.2d 483 DOYLE, Appellant, Mona DOYLE, Appellee. Patrick Pennsylvania. Superior Court of 17, 1985. Argued Dec. Aug.

Filed

Case Details

Case Name: Jamison v. City of Philadelphia

Court Name: Supreme Court of Pennsylvania

Date Published: Aug 8, 1986

Citation: 513 A.2d 479

Docket Number: 2717

Court Abbreviation: Pa.