J-S50017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN J. LYNCH                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

STEWART SMITH AND PETER SMITH

                                                       No. 3511 EDA 2016


                   Appeal from the Order February 18, 2016
            In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): November Term 2015, No. 4081


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY MOULTON, J.:                         FILED OCTOBER 02, 2017

      John J. Lynch appeals, pro se, from the February 18, 2016 order

entered in the Philadelphia County Court of Common Pleas granting

preliminary objections filed by Stewart and Peter Smith (“the Smiths”). We

affirm.

      The trial court set forth the following factual history:

          [Lynch] alleges that [the Smiths] are liable for the actions
          of [] Andrew Gittelmacher. Mr. Gittelmacher is not named
          as a defendant in this case. [Lynch’s c]omplaint alleges
          that [he] settled an unrelated premises liability case
          against [the Smiths] filed in the Philadelphia Municipal
          Court. In that case, [Lynch] asserted that his car had
          been ruined by sugar while being parked at the same
          property at issue in this case, 9351 Old Bustleton Avenue[,
          Philadelphia County.] Mr. Gittelmacher was named as a
          [d]efendant in that case.

             In this case, [Lynch] alleges that . . . Peter Smith
          “failed to control” Gittelmacher after Gittelmacher offered
          money to a Mr. Rasheed Reid, also not a defendant in this
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           case, to “assault and eject” [Lynch]. [Lynch]’s [c]omplaint
           further alleges that Gittelmacher sprayed [Lynch] with
           WD40 [lubricant spray] and “verbally assaulted” him on
           June 13, 2015. [Lynch] also asserts that Gittelmacher
           “would harass and annoy” [Lynch] and that [the Smiths]
           did not “stand up and speak out or stop” Gittelmacher.
           The [c]omplaint alleges [Lynch]’s income has been
           severely impacted by Gittelmacher. Nowhere does the
           [c]omplaint assert that Gittelmacher was acting on behalf
           of or as an agent or employee of [the Smiths]. Indeed no
           relationship whatsoever is alleged between Gittelmacher
           and the [Smiths].

Opinion, 4/6/16, at 2.

       On December 1, 2015, Lynch filed the above-referenced complaint.

On December 29, 2015, the Smiths filed preliminary objections, based on

insufficient specificity and in the nature of a demurrer for failure to state a

cause of action upon which relief could be granted. On January 14, 2016,

Lynch responded to the preliminary objections1 and, on January 20, 2016,

filed a supplement to that response. On February 18, 2016, the trial court

sustained both of the Smiths’ preliminary objections.2       On February 26,


____________________________________________


       1
         Lynch attached an “amended complaint” to his response. However,
the docket reveals that Lynch never filed an amended complaint with the
trial court.

       2
        The trial court’s order did not indicate whether it dismissed Lynch’s
complaint with or without prejudice, see Order, 2/18/16, which raises an
issue as to whether the trial court’s order was final under Pennsylvania Rule
of Appellate Procedure 341 and therefore appealable under section 742 of
the Judicial Code. However, because the trial court sustained the Smiths’
preliminary objection in the nature of a demurrer, we conclude that the trial
court dismissed Lynch’s complaint with prejudice because “an order granting
preliminary objections in the nature of a demurrer is a final order and is,
(Footnote Continued Next Page)


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2016, Lynch filed a notice of appeal with the Commonwealth Court. Upon

Lynch’s application, on October 25, 2016, the Commonwealth Court

transferred the appeal to this Court.

      Lynch’s sole issue on appeal is as follows:

           Should the matter be reversed, and remanded because the
           complaint although made in [l]ong hand did comply with
           Pa. Rule of Civil Procedure 1019(c) in pleading the
           performance or occurrence of conditions precedent, it is
           sufficient to aver generally that all conditions precedent
           have been p[er]formed or have occur[r]ed, which [Lynch]
           did do concerning the assaults, and batteries of his person
           while working on the premises.

Lynch’s Br. at 6 (unpaginated) (suggested answer omitted).

      Lynch argues that the trial court improperly sustained the Smiths’

preliminary objections.        Our standard of review on such matters is well

settled:

           [O]ur standard of review of an order of the trial court
           overruling or granting preliminary objections is to
           determine whether the trial court committed an error of
           law. When considering the appropriateness of a ruling on
           preliminary objections, the appellate court must apply the
           same standard as the trial court.

              Preliminary objections in the nature of a demurrer test
           the legal sufficiency of the complaint. When considering
           preliminary objections, all material facts set forth in the
           challenged pleadings are admitted as true, as well as all
           inferences reasonably deducible therefrom. Preliminary
           objections which seek the dismissal of a cause of action
           should be sustained only in cases in which it is clear and
                       _______________________
(Footnote Continued)

therefore, appealable to this Court immediately.”       D’Elia v. Folino, 933
A.2d 117, 121 (Pa.Super. 2007).



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           free from doubt that the pleader will be unable to prove
           facts legally sufficient to establish the right to relief. If any
           doubt exists as to whether a demurrer should be
           sustained, it should be resolved in favor of overruling the
           preliminary objections.

Haun v. Community Health Sys., Inc., 14 A.3d 120, 123 (Pa.Super.

2011) (internal citations and quotations omitted).                With respect to

preliminary objections for insufficient specificity in a pleading, this Court has

stated that:

           [t]he pertinent question under [Pennsylvania] Rule [of Civil
           Procedure] 1028(a)(3) is whether the complaint is
           sufficiently clear to enable the defendant to prepare his
           defense, or whether the plaintiff’s complaint informs the
           defendant with accuracy and completeness of the specific
           basis on which recovery is sought so that he may know
           without question upon what grounds to make his defense.

Rambo v. Greene, 906 A.2d 1232, 1236 (Pa.Super. 2006) (internal

quotations omitted).

       Lynch asserts that the Smiths “are liable to [him] for failure to take

action to prevent their silent partner[,] Andrew Gittelmacher[,] from

assaulting[] and battering [Lynch].” Lynch’s Br. at 11 (unpaginated). Lynch

asserts that the Smiths, to whom he refers in his brief as business owners, 3

are “duty bound, obligated, and absolutely responsible for the safety and

security of all other persons on the premises.” Id. In short, Lynch argues

that the Smiths had a duty to control Gittelmacher, who Lynch refers to as

____________________________________________


       In his complaint, Lynch did not refer to the Smiths as “business
       3

owners,” nor did he refer to Gittelmacher as a “silent partner” of the Smiths.



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the Smiths’ “silent partner,” and who Lynch further alleges the Smiths knew

to have violent tendencies. We disagree.

     A review of Lynch’s complaint shows that not only did Lynch fail to

plead when (or in some instances, where) these alleged assaults occurred,

he also failed to allege that Gittelmacher was acting as an agent or

employee on behalf of the Smiths.      Rather, the complaint merely asserts

that Lynch brought causes of action for “termination of [his] part time

mechanical work at 9351 Old Bustleton Avenue . . . [and for the Smiths’]

failure to provide a safe environment at the times [he] was on location doing

mechanical work.”      Compl. at 1.     Further, Lynch’s incoherent factual

averments lend no support to these claims, instead listing a series of

incidents between Lynch, Gittelmacher, and Rasheed Reid. See id. at 2-5.

We agree with the trial court’s conclusions that Lynch’s complaint “provides

no specific assertions as to what occurred or why there was a duty to

defend” and “does not state any cognizable legal claim.” Opinion, 4/6/16, at

3. Accordingly, we also conclude that the trial court appropriately sustained

the Smiths’ preliminary objections.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/2/2017


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