Blocker v. City of Philadelphia

729 A.2d 187
CourtCommonwealth Court of Pennsylvania
DecidedMay 5, 1999
StatusPublished
Cited by6 cases

This text of 729 A.2d 187 (Blocker v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blocker v. City of Philadelphia, 729 A.2d 187 (Pa. Ct. App. 1999).

Opinions

McCLOSKEY, Senior Judge.

Wendy Blocker appeals an order of the Court of Common Pleas of Philadelphia County, First Judicial District, that granted the City of Philadelphia’s (City) motion for summary judgment pursuant to what is popularly called the “Political Subdivision Tort Claims Act” (Tort Claims Act).1 The [188]*188common pleas court granted the City’s motion for summary judgment because it determined that the City’s conduct did not fall within any exception to governmental immunity (or, more specifically, within the “real property” exception).

According to her complaint, on August 10, 1994, Blocker was a business invitee of the Robin Hood Dell East, which facility is owned, possessed, controlled and maintained by the City, when she fell from defective and unsafe bleachers, which the City did not adequately maintain. Blocker sustained multiple injuries, including injuries to the head, neck and back. In its reply to Blocker’s complaint, the City raised as new matter, inter alia, the affirmative defense of the Tort Claims Act and the local agency immunity provided thereby. The parties engaged in discovery and, on February 10, 1997, Blocker’s attorney deposed Warren Haskins, the Robin Hood Dell East General Manager. Haskins testified that the bench upon which Blocker had been sitting broke because of “[d]ete-rioration” and that the wooden bleachers “were just a vestige that had never been removed.” (Notes of Testimony, N.T., Deposition Testimony of Warren Haskins, February 10,1997, pp. 14, 27).

Thereafter, the parties proceeded to arbitration on May 8, 1997. At that time, Haskins testified that the bleachers had been previously removed, although he had no documentation to bolster his statement. (See generally N.T., Arbitration Testimony of Warren Haskins, May 8,1997, pp. 7-11). He further testified that the bleachers are not attached to the ground and that nothing would happen to either the bleachers or the ground if the bleachers were removed. (N.T., Haskins’ Arbitration Testimony, 5/8/97, p. 31). The arbitrators found in Blocker’s favor and awarded her a total of $33,218.80 for the payment of medical bills and for pain and suffering. The City then filed a notice of appeal with the common pleas court. As already set forth, the common pleas court eventually granted the City’s motion for summary judgment, agreeing with the City that the defective bleacher was not a permanent fixture or condition of the real estate, but personalty, which did not fit within any immunity exceptions.

Blocker now appeals to this Court, raising four questions for our review.2 Blocker asks: 1) whether the common plea's court erred in granting summary judgment, since the oral depositions of the moving party, without more, are insufficient to support a motion for summary judgment; 2) whether the common pleas court erred in dismissing the City as a party, since a genuine issue of material fact exists as to whether the bleacher from which Blocker fell constitutes a fixture; 3) whether the common pleas court erred in finding that the facts at issue do not involve a negligent act connected with the care, custody or control of real property in the City’s possession; and 4) whether this ease should be remanded to the common pleas court for further consideration in light of Martin v. City of Philadelphia, 696 A.2d 909 (Pa.Cmwlth.1997) and Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997).3

[189]*189We first consider Blocker’s argument that the trial court erred in granting the City’s summary judgment motion where no documentation supported the testimonial evidence that the City submitted through its witness, Warren Haskins.

As our Supreme Court explained in Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989):

In determining the existence or nonexistence of a genuine issue of a material fact, courts are bound to adhere to the rule of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony.
“‘However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence ’: Reel v. Elder, 62 Pa. 308.”
309 Pa at 238, 163 A. at 524. The Nanty-Glo rule means that:
“Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, "will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.”
Goodrich-Amram, 2d, supra, § 1035(b): 4 at pp. 434-35.

(Emphasis in original). See also Pennsylvania Rules of Court 1998, Note to Pa. R.C.P. No. 1035.2.

Here, Haskins’ testimony raises a genuine issue of material fact with respect to whether the bleacher from which Blocker fell was meant to be removed from the Robin Hood Dell East grounds. As previously stated, Haskins testified before arbitration that the bleacher in question had not been removed, and he testified after arbitration that it had been removed, although he had no documentation to support his altered testimony. Because Has-kins’ testimony wavered on this salient point, and because it is the province of the jury to assess the credibility of his testimony, we hold that the common pleas court improperly entered summary judgment on this record.

Our holding to this effect is made the more reasonable when viewed in light of the development of the law of fixtures.4 For example, in In Re Appeal of Sheetz, Inc., 657 A.2d 1011 (Pa.Cmwlth.1995), appeal denied, 542 Pa. 653, 666 A.2d 1060 (1995), a case involving canopies that were mounted on pillars attached by bolts to the ground, we considered whether these canopies were part of the realty and therefore taxable as real estate. In doing so, we quoted from Gore v. Bethlehem Area School District, 113 Pa.Cmwlth. 394, 537 A.2d 913, 915 (1988), appeal denied, 519 Pa. 656, 546 A.2d 60 (1988), stating:

The considerations to be made in determining whether or not a chattel becomes a fixture include (1) the manner in which it is physically attached or installed, (2) the extent to which it is essential to the permanent use of the building or other improvement, and (3) the intention of the parties who attached or installed it.

Appeal of Sheetz, 657 A.2d at 1013. (Emphasis added). See also Noll by Noll v. [190]*190Harrisburg Area YMCA, 587 Pa. 274,

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101 A.3d 144 (Commonwealth Court of Pennsylvania, 2014)
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768 A.2d 912 (Commonwealth Court of Pennsylvania, 2001)
Blocker v. City of Philadelphia
763 A.2d 373 (Supreme Court of Pennsylvania, 2000)
Mellon v. City of Pittsburgh Zoo
760 A.2d 921 (Commonwealth Court of Pennsylvania, 2000)
A. Pickett Construction, Inc. v. Luzerne County Convention Center Authority
738 A.2d 20 (Commonwealth Court of Pennsylvania, 1999)
Blocker v. City of Philadelphia
729 A.2d 187 (Commonwealth Court of Pennsylvania, 1999)

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729 A.2d 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blocker-v-city-of-philadelphia-pacommwct-1999.