Jon Campisi Nov. 20, 2013, 7:23am


A three-judge state Superior Court panel has reversed a decision by the

Philadelphia Court of Common Pleas to dismiss a negligence action filed against Rite Aid by a customer who was assaulted and robbed at the business.

The appeals panel determined that a Philadelphia judge was wrong to toss the lawsuit because the plaintiff, Joseph Martin, failed to include his assailants as indispensable parties to the litigation.

Martin filed suit against Rite Aid of Pennsylvania Inc. and North Broad Development Co. on July 11, 2012, two years after he was robbed and assaulted by three men at the Rite Aid store at 2131 N. Broad St., where the plaintiff had gone to fill a prescription.

In his complaint, Martin alleges that he sought help from security personnel and other employees at the store at the time of the robbery, but that his efforts were rebuffed.

Following the filing of the suit, attorneys for Rite Aid and North Broad Development, which owns the property at which the store is located, filed preliminary objections asserting failure to include the mandatory notice to defend, failure to plead with sufficient specificity, and failure to join indispensable parties.

The trial judge in Philadelphia ended up sustaining the objections, asserting that the three assailants were indispensable.

The jurist subsequently dismissed the complaint with prejudice.

The sole issue on appeal was whether the assailants are indispensable to the plaintiff’s claims against Rite Aid and NBDC.

The defendants argued that the assailants’ actions created the dangerous condition that resulted in the plaintiff’s injuries, and that there would have been no injury without the actions of the three men, the record shows.

The Superior Court panel wrote that this argument is not persuasive because it misconstrues Martin’s theory of liability.

“[Martin] makes no claim against the assailants, and should he prevail, their assets are not subject to judgment,” the appellate ruling states.

Martin has alleged negligence against Rite Aid and the property owner for failing to maintain and operate safe premises for business patrons, the appeals judges noted.

“As possessors of land who hold it open to the public, they owe a duty to any business invitee, including [Martin], to ‘take reasonable precaution against harmful third party conduct that might be reasonably anticipated,’” the panel wrote, citing the 2007 case of Paliometros v. Loyola. “Thus, the wrongful act contemplated by [Martin’s] allegation is not the assault on him but rather [the defendants’] failure to take reasonable precautions to prevent it from occurring.”

The panel refused to analyze the case further, writing that under Martin’s theory of liability, “we discern no right or interest attributable to the assailants relevant to his complaint.”

The panel reversed the trial court’s decision and remanded the case to Philadelphia for consideration of the remaining preliminary objections.

The decision was written by Superior Court President Judge John T. Bender.

The other participating judges were Christine L. Donohue and John L. Musmanno.

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