Buhner v. Neshaminy School District

50 Pa. D. & C.3d 43, 1988 Pa. Dist. & Cnty. Dec. LEXIS 143
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedJuly 22, 1988
Docketno. 86-02349-15-1
StatusPublished

This text of 50 Pa. D. & C.3d 43 (Buhner v. Neshaminy School District) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buhner v. Neshaminy School District, 50 Pa. D. & C.3d 43, 1988 Pa. Dist. & Cnty. Dec. LEXIS 143 (Pa. Super. Ct. 1988).

Opinion

SOKOLOVE, J.,

Plaintiff Henry R. Buhner has appealed to the Commonwealth Court of Pennsylvania from our order of February 24, 1988 granting summary judgment in favor of defendant Neshaminy School District. We write this opinion pursuant to Pa. R.A.P. 1925 to explain the reasons for our order.

In reaching our decision we were cognizant of the strict requirements which must be. met to enter [44]*44summary judgment. Summary judgment should not be entered unless the case is free from doubt. Hower v. Whitmak Associates, 371 Pa. Super. 443, 538 A.2d 524 (1988); Weiss v. Keystone Mack Sales Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b). In considering a motion for summary judgment, the record must be examined in a light most favorable to the non-moving party. All well-pleaded facts in the non-moving party’s pleadings are accepted as true, and that party is given the benefit of all reasonable inferences to be drawn therefrom. Hower v. Whitmak Associates, supra; Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983). We applied these legal standards to the case before us and concluded without hesitation that summary judgment in favor of the school district was appropriate.

Our examination of the record in the light most favorable to plaintiff reveals that plaintiff was seriously injured on April 5, 1984 while participating in gym class on school district premises. The teacher, a school district employee, asked for volunteers to move volleyball nets and poles into position on the gym floor. Plaintiff and three other students volunteered. Each volleyball pole rested in a socket in a circular, heavily weighted base, which was supposed to be attached to the pole by at least three bolts or pins. The pole could be moved by tilting it at an angle to enable wheels on the base to roll along the ground. The pole and base constituted a freestanding unit, unattached to the gymnasium. While plaintiff and another student were attempt[45]*45ing to move a pole, the pole slipped from its base because there were no bolts or pins securing it, and the heavy base crushed plaintiffs right foot.

In his complaint, plaintiff alleged that the school district was negligent or reckless, in essence, for failing to adequately supervise the moving of the pole, for failing to properly inspect the pole, for failing to warn of the dangers in moving the pole, for failing to warn plaintiff to stand clear of the base and for maintaining the pole in a dangerous and defective condition.

The school district moved for summary judgment on the basis that it is immune from liability under the Political Subdivision Tort Claims Act, 42 Pa. C.S. §8541 et seq. and that plaintiff had failed to give proper notice of his injury under 42 Pa. C.S. §5522. We rejected the latter argument and made our decision only on the issue of immunity.

The act establishes general governmental immunity:

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any of the local agency or an employee thereof or any other person.” 42 Pa. C.S. §8541. A local agency is defined as a government unit other than the commonwealth government. 42 Pa. C.S. §8501. There is no doubt that the school district is a local agency protected by the act. See Vince v. Ringgold School District, 92 Pa. Commw. 598, 499 A.2d 1148 (1985). The act waives general sovereign immunity for negligent acts in eight specific areas. 42 Pa. C.S. §8542. Only the personal property and real-property exceptions are possibly applicable to the instant facts.

The personal property exception provides for liability for the “care, custody or control of personal [46]*46property of others in the possession or control of the local agency.” 42 Pa. C.S. §8542(b)(2). Plaintiff concedes that the volleyball pole was owned by the district and was, therefore, not the “personal property of others” so as to fall within this exception. See Zelenevich v. New Hope-Solebury School District, 30 D. & C. 3d 252, (1984).

The real property exception imposes liability upon the school district for the care, custody or control of real property in its possession'. 42 Pa. C.S. § 8542(b)(3). Plaintiff’s claims of negligence for inadequate supervision and failure to warn must fail under this section. As the Commonwealth Court stated in Messina v. Blairsville-Saltsburg School District, 94 Pa. Commw. 100, 503 A.2d 89, (1986):

“It would be a total distortion of the language of section 202(b)(3) (now 42 Pa. C.S. §8542(b)(3)) to allow the supervision, or lack of supervision, of school children to fall within the scope of care, custody and control of real property. Robson v. Penn Hills School District, 63 Pa. Commw. 250, 253, 437 A.2d 1273, 1275 (1981).” Messina at 102, 503 A.2d at 90.

Plaintiff argues that the real property exception should include the , school district’s negligence in maintaining the vollyball pole in an unsafe and defective condition. First, he contends that the volleyball pole was a fixture and, therefore, part of the real estate. Second, he asserts that even if the volleyball pole is not considered real property, its defective condition rendered the gymnasium, or real property, unsafe for its intended use. We will address these arguments seriatim.

In our consideration of the pole as a fixture, we are guided by long-standing common law in Pennsylvania.

[47]*47“Chattels' used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty. . . . Second, those which are so annexed to the property, that they cannot be removed without material injury to the real estate or to themselves; these are realty. . . . Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending on the intention of the parties at the time of annexation. ...” Canon—McMillan School District v. Dioni, 110 Pa. Commw, 584, 533 A.2d 179 (1987), quoting Beardell v. Western Wayne School District, 91 Pa. Commw. 348, 353-4, 496 A.2d 1373, 1376 (1985), which quoted Clayton v. Lienhard, 312 Pa. 433, 436-7, 167 Atl. 321, 322 (1933). The volleyball pole clearly fits within the first category.

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Related

Weiss v. Keystone MacK Sales, Inc.
456 A.2d 1009 (Superior Court of Pennsylvania, 1983)
Hower v. Whitmak Associates
538 A.2d 524 (Supreme Court of Pennsylvania, 1988)
Gore v. Bethlehem Area School District
537 A.2d 913 (Commonwealth Court of Pennsylvania, 1988)
Gottus v. Allegheny County Redevelopment Authority
229 A.2d 869 (Supreme Court of Pennsylvania, 1967)
Faiella v. Bartoles
517 A.2d 1019 (Commonwealth Court of Pennsylvania, 1986)
York Redevelopment Authority v. Keener
516 A.2d 832 (Commonwealth Court of Pennsylvania, 1986)
Singer v. School District of Philadelphia
513 A.2d 1108 (Commonwealth Court of Pennsylvania, 1986)
Spain v. Vicente
461 A.2d 833 (Supreme Court of Pennsylvania, 1983)
Clayton v. Lienhard
167 A. 321 (Supreme Court of Pennsylvania, 1933)
Singer v. Oil City Redevelopment Authority
261 A.2d 594 (Supreme Court of Pennsylvania, 1970)
Robson v. Penn Hills School District
437 A.2d 1273 (Commonwealth Court of Pennsylvania, 1981)
Vann v. Board of Education
464 A.2d 684 (Commonwealth Court of Pennsylvania, 1983)
Davidow v. Anderson
476 A.2d 998 (Commonwealth Court of Pennsylvania, 1984)
Brown v. Quaker Valley School District
486 A.2d 526 (Commonwealth Court of Pennsylvania, 1984)
Beardell v. Western Wayne School District
496 A.2d 1373 (Commonwealth Court of Pennsylvania, 1985)
Vince v. Ringgold School District
499 A.2d 1148 (Commonwealth Court of Pennsylvania, 1985)
Messina v. Blairsville-Saltsburg School District
503 A.2d 89 (Commonwealth Court of Pennsylvania, 1986)

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Bluebook (online)
50 Pa. D. & C.3d 43, 1988 Pa. Dist. & Cnty. Dec. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buhner-v-neshaminy-school-district-pactcomplbucks-1988.