Chapman v. City of Philadelphia
| Decision Date | 04 September 1981 |
| Citation | 290 Pa.Super. 281,434 A.2d 753 |
| Parties | Edith L. CHAPMAN, Administratrix of the Estate of William F. Chapman, Deceased v. CITY OF PHILADELPHIA and Southeastern Pennsylvania Transportation Authority and Consolidated Rail Corporation. Appeal of SEPTA and Conrail. Appeal of Edith L. CHAPMAN, Administratrix of the Estate of William F. Chapman, Deceased. |
| Court | Pennsylvania Superior Court |
Argued May 27, 1981.
John R. Padova, Philadelphia, for Southeastern Pa. Transp. Authority and Consolidated Rail Corp.
Albert M. Hankin, Philadelphia, for Chapman.
Barbara R. Axelrod, Philadelphia, for City of Philadelphia appellee.
Before WICKERSHAM, McEWEN and WIEAND, JJ.
This appeal is from the lower court's order sustaining preliminary objections in the nature of a demurrer and dismissing the plaintiff's, Edith Chapman's, complaint in trespass against the City of Philadelphia. Plaintiff's complaint against the City of Philadelphia avers that plaintiff's decedent, William F. Chapman, died on August 14, 1978 as a result of injuries he sustained on August 11, 1978 when he was attacked and robbed by three men on the platform of the Wayne Junction Railroad Station. The complaint alleges that the City of Philadelphia negligently breached its duty to plaintiff's decedent by failing to maintain law and order, protect the citizens and prevent unsafe conditions from existing.
Appellants argue the the lower court erred in dismissing plaintiff's complaint without affording her an opportunity to file an amended complaint. We affirm the order of the lower court.
Speaking for The Supreme Court of Pennsylvania, Justice Nix recently stated that:
It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.
Sinn v. Burd, 486 Pa. 146, 149-50, 404 A.2d 672, 673-74 (1979).
The duty of the City of Philadelphia to provide police protection is a public one which may not be claimed by an individual unless a special relationship exists between the city and the individual. Berlin v. Drexel University, 10 Pa. D.&C.3d 319 (1979); 46 A.L.R.3d 1084. A special relationship is generally found to exist only in cases in which an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide adequate protection for him. Berlin v. Drexel, supra; 46 A.L.R.3d 1084.
Plaintiff's complaint fails to set forth any facts from which it would be possible to infer that a special relationship existed between William F. Chapman and the City of Philadelphia, and, consequently, the lower court properly sustained the city's preliminary objections. Appellant's argue, however, that the lower court erred in dismissing plaintiff's complaint without affording her an opportunity to file an amended complaint. We do not agree.
In Otto v. American Mutual Insurance Company, 482 Pa. 202, 205, 393 A.2d 450, 451 (1978), the Supreme Court of Pennsylvania stated that "(t)he right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully." The court added, however, that "(t)here may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile." Id. at 205, 393 A.2d at 451.
We believe that this is an appropriate case for entry of an order sustaining preliminary objections without leave to amend.
Summary judgment on the preliminary objections should be entered only in clear cases. If there is a possible theory under which the complaint might be self-sustaining, leave to amend should be granted to enable the plaintiff to conform his pleading to that theory. Where doubt exists as to whether or not summary judgment should be entered, it should be resolved in favor of refusing to enter such a judgment. This Rule applies equally to minor errors in the complaint, to the pleading of damages, and to errors attacked by demurrer.
The...
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