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HomeMy WebLinkAbout92-1746 CivilROBERT H. CULLEY, Executor of the Estate of Elizabeth Ann Culley, deceased; and ROBERT H. CULLEY, in his own right and as Trustee ad litem for Jessica L. Culley and Katrina M. Culley, minors also entitled to share in the damages resulting from the wrongful death of said Elizabeth Ann Culley, Plaintiffs V. NORTH MIDDLETON TOWNSHIP, and : COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, : Defendants IN THE COURT OF OMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION - NO. 1746 CIVIL V992 IN RE: PRELIMINARY OBJECTIONS OF BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this 2[5.tday of October, 1992, upon the Preliminary Objections of Defendant Pennsylvan Transportation, in the nature of a demurrer, ani submitted on the matter, the Preliminary Objection The said Defendant is given 20 days within which tc BY THE COURT, WC4X� J� Wesley Oler C. Roy Weidner, Jr., Esq. Attorney for Plaintiffs James M. Sheehan, Esq. Attorney for Defendant North Middleton Township nsideration of Department of of the briefs are DISMISSED. file an Answer. . L 'J James R. Moyles, Esq. Senior Deputy Attorney General Attorney for Commonwealth of Pennsylvania :rc ROBERT H. CULLEY, Executor of the Estate of Elizabeth Ann Culley, deceased; and ROBERT H. CULLEY, in his own right and as Trustee ad litem for Jessica L. Culley and Katrina M. Culley, minors also entitled to share in the damages resulting from the wrongful death of said Elizabeth Ann Culley, . Plaintiffs . V. NORTH MIDDLETON TOWNSHIP, and : COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, : Defendants Oler, J. IN THE COURT OF gOMMON PLEAS OF CUMBERLAND COUNTT, PENNSYLVANIA CIVIL ACTION - NO. 1746 CIVIL 1992 IN RE: PRELIMINARY OBJECTIONS OF BEFORE BAYLEY and OLER, JJ. OPINION AND ORDER OF COURT At issue in the present case are a defe objections in the nature of a demurrer to a c ,'s preliminary aint. For the reasons stated in this Opinion, the preliminary objlections will be dismissed. Factual background. This case is a wron ful death and survival action based upon negligence, arising out of a 1990 automobile accident in North Middleton Township, Cumberland County, Pennsylvania, in which Plaintiffs' decedent was fatally injured. Named as defendants in the 1992 action are North Middleton Township and the Pennsylvania Department of Transportation, t being alleged that the accident resulted from a dangerous roadway. The Preliminary Objections at issue have been filed b the Department No. 1746 Civil 1992 of Transportation. Liability of the Department with respect to dangerous roadway is predicated upon the alle the allegedly tion that "at relevant times PennDot exercised jurisdiction over said road"' -- a road presently owned by the Township.' Acts of negligence alleged in the Complaint include failure to provide''a safe roadway for drivers, failure to maintain sufficient sig t distance to enable drivers to exit their driveways, posting of speed limit in excess of that which was safe for the available ight distance, failure to construct and maintain sufficient berm, construction and maintenance of the highway with dangerous cu'ves and width, failure to maintain proper highway grades and elev tions, failure to properly post for speed limits and driveways, and failure to notice and remedy public risks from the highway co'dition.3 Defendant's Preliminary Objections in the f assert that the road in question "was turned bac} Middleton Township in 1985,i4 that no current duty the road on the part of the Department thus exis 1 Plaintiffs' Complaint, paragraph 8. ' id. 3 Id. 4 Defendant's Preliminary Objections, paragr 5 Id., 7. 2 of a demurrer over to North ith respect to , 5 and that a aph 6. No. 1746 Civil 1992 statute of repose contained in Section 5536 of the Judicial Code6 excludes the possibility of liability for acts or omissions prior to 1985.' Attached to Defendant's brief are documents purporting to show a transfer of control of the road to the ownship as of December 31, 1984.8 Statement of Law. With respect to a preliminary objection in the nature of a demurrer, it has been said that "[t]he question presented by a demurrer is whether, on the facts averred in the complaint, the law says with certainty that n recovery is possible." Vattimo v. Lower Bucks Hospital, Inc. 502 Pa. 241, 244, 465 A.2d 1231, 1232 (1983). "Any doubts a to whether a demurrer should be sustained should be resolved against the moving party." David v. Commonwealth, 143 Pa. Commw. 161 169, 598 A.2d 642, 647 (1991). Thus, in ruling on a preliminary o jection in the form of a demurrer, the court must sustain the demu rer only if it finds that "a cause of action [has not been] prope ly made out in the complaint ... and ... the plaintiff would be unable to state a proper claim even on a different statement of facts." Nagy v. The 6 Act of July 9, 1976, P.L. 586, §2, as amend d, 42 Pa. C.S. §5536. ' Defendants' Preliminary Objections, paragraph 7. 8 Memorandum of Law in Support of PrelimilLary Objections Filed on Behalf of Defendant, Pennsylvania Department of Transportation, attachments. Plaintiff has not conceded the efficacy of these attachments for purposes of the instant motion. Brief in Opposition to Defendant Commonwealth o Pennsylvania, Department of Transportation's Preliminary Objectins 2-3. 3 No. 1746 Civil 1992 Bell Telephone Company of Pennsylvania, 292 Pa. Su A.2d 701, 703 (1989). r. 24, 27, 436 In ruling on a demurrer, a court may consider "[o]nly such matters as arise out of [the challenged] pleading itself ..., and the decision must be on the pleading alone. Therefore, collateral matters may not be considered in ruling on a demurrer." 2 Goodrich Amram 2d §1017(b):29, at 276 (1991); see Pa. R.C.P. 1028, committee note. "A demurrer which supplies facts not in the record is known as a 'speaking demurrer,' which is condemned." Id., at 275 (1991). With respect to Section 5536 of the Judicial Code, the provision states that, subject to certain except ons, "a civil action ... brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for ... [a]n deficiency in the design, planning, supervision or observation of onstruction or construction of the improvement [,or] ... [i]njury to the person or for wrongful death arising out of any such def icieno: y . . . . " Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5536(a). The statute further provides that "[i]f an injury or wrongful death shall occur more than ten and within 12 years afte completion of the improvement a civil action ... may be commenced otherwise limited by [the subchapter of the 4 _thin the time (Judicial Code No. 1746 Civil 1992 applicable to civil actions and proceedings], but n later than 14 years after completion of such improvement." Id , 42 Pa. C.S. §5536(b)(1). Application of law to facts. In view of the fact that the attachments to the Defendant's brief regarding a transfer of ownership of the road in question to the Township as of 1985 can not be considered by the Court in ruling upon Defendant's demurrer, and of the fact that the statute of repose relied up n by Defendant refers to time periods in excess of those which ran from 1985 to the accident and from 1985 to commencement of the action, it can not be said that the Defendant has shown the Plaint#f incapable of maintaining a proper claim. For this reason, the ollowing Order will be entered: ORDER OF COURT AND NOW, this 21st day of October, 1992, upon consideration of the Preliminary Objections of Defendant Pennsylvani Department of Transportation, in the nature of a demurrer, and of the briefs submitted on the matter, the Preliminary Objections are DISMISSED. The said Defendant is given 20 days within which to file an Answer. BY THE COURT, C. Roy Weidner, Jr., Esq. Attorney for Plaintiffs J. Wesley Oler, Jr. J. Wesley Oler, Jr., 5 J. No. 1746 Civil 1992 James M. Sheehan, Esq. Attorney for Defendant North Middleton Township James R. Moyles, Esq. Senior Deputy Attorney General Attorney for Commonwealth of Pennsylvania :rc 0