Combs v. Borough of Ellsworth

12 Pa. D. & C.4th 73, 1991 Pa. Dist. & Cnty. Dec. LEXIS 132
CourtPennsylvania Court of Common Pleas, Washington County
DecidedAugust 5, 1991
Docketno. 91-1561
StatusPublished

This text of 12 Pa. D. & C.4th 73 (Combs v. Borough of Ellsworth) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Washington County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Combs v. Borough of Ellsworth, 12 Pa. D. & C.4th 73, 1991 Pa. Dist. & Cnty. Dec. LEXIS 132 (Pa. Super. Ct. 1991).

Opinion

RODGERS, S.J.,

— Plaintiffs, Joseph Combs, Donna Combs, and Casey Combs, a minor, having appealed this court’s order of July 8, 1991, sustaining the preliminary objections of defendant, Bentworth School District, in the nature of a demurrer to plaintiffs’ amended complaint. This opinion is written in support of the court’s order.

This action was initiated by plaintiffs, Joseph and Donna Combs, and their minor son Casey Combs, [74]*74against defendants, Bentworth School District, the Borough of Ellsworth and the Commonwealth of Pennsylvania, Department of Transportation, to recover damages for personal injuries sustained by the minor plaintiff, Casey Combs, as a result of an accident that occurred on March 6, 1990, in which the minor plaintiff, while crossing State Highway 917 at its intersection with Walnut Street toward his school bus stop designated by the Bentworth School District, was struck by an automobile being operated by the additional defendant, Rita C. Morrow, in a northerly direction on Route 917 in the Borough of Ellsworth.

Plaintiffs, in their amended complaint, allege that the selection and designation of the land at the intersection of Walnut Street and Route 917 as a school bus stop created a dangerous condition for the minor plaintiff, because the view of the intersection of an approaching motorist, traveling on highway 917, was restricted or blocked by the presence of large two-story buildings on both sides of the intersection, and that such dangerous location of the school bus stop, established by the defendant School District, was a proximate cause of the injuries suffered by the minor plaintiff..

Defendant, Bentworth School District, has renewed its preliminary objections in the nature of a demurrer to the amended complaint on the ground that it is immune from liability, unless otherwise provided by statute, and that the plaintiffs have failed to set forth any facts showing that their cause of action falls within any exception to governmental immunity as set forth in 42 Pa.C.S. §8542.

Preliminarily it should be noted plaintiffs have failed to challenge the propriety of the school district raising the issue of immunity by way of preliminary objections and therefore, this court may prop[75]*75erly rule on the demurrer. Paz v. Commonwealth, Dept. of Corrections, 135 Pa. Commw. 162, 580 A.2d 452 (1990).

In the case of Aetna Electroplating Co. v. Jenkins, 335 Pa. Super. 283, 484 A.2d 134 (1984), the court said this:

‘"A preliminary objection in the nature of a demurrer "admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences.’ DeSantis v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770, 772 (1982). Preliminary objections can properly be sustained and a complaint dismissed only in cases that are clear and free from doubt. Any doubt must be resolved against the moving party. Only where it appears with certainty that, upon the facts averred, the law will not permit recovery can the complaint be dismissed and summary judgment entered for the defendant. ...”

Plaintiffs claim that their cause of action falls within the “real estate exception” to governmental immunity which says this:

"‘(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

""(3) Real property — The care, custody or control of real property in the possession of the local agency____” 42 Pa.C.S. §8542(b)(3).

Plaintiffs have alleged that defendant school district had the care, custody or control of the land at the intersection of Route 917 and Walnut Street which it negligently designated as a school bus stop, and that as a result of such negligent designation or selection, the minor plaintiff suffered personal injuries.

[76]*76However, plaintiffs have also alleged that the injuries suffered by plaintiff Casey Combs were caused while he was in the act of crossing Route 917 to go to his bus stop, at the corner of Route 917 and Walnut Street, when he was struck by an automobile being operated in a northerly direction on 917 by the additional defendant, Rita C. Morrow.

Plaintiffs have failed to allege in their complaint as amended, any dangerous condition of the land at the intersection of 917 and Walnut Street designated as a bus stop by the Bentworth School District as a proximate cause of the plaintiff’s injuries.

In the case of Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), the Supreme Court of Pennsylvania held that the Pennsylvania Department of Transportation was not liable for injuries which occurred when plaintiffs fell into a strip mine that adjoined a state highway because the statutory exception to sovereign immunity applied only to Commonwealth real estate itself and the strip mine highwall where the plaintiffs fell was some distance from the department’s right-of-way.

In the course of its opinion, the Supreme Court said this:

“The parties have misperceived the duty that is owed by the Commonwealth in this specific situation. In order to ascertain that duty, it is necessaiy to first examine section 8522(b)(4), the exception to sovereign immunity which appellees contend their claims come within. Because the General Assembly intended to exempt the Commonwealth from immunity only in specific clearly defined situations, we must strictly construe this real property exception. Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988); Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). See also, Davidow v. Anderson, 83 Pa. Commw. 86, 476 A.2d 998 (1984). [77]*77We also are not free to change the clear meaning of the words to reach a desired result if the statutory language is unambiguous. 1 Pa.C.S. §1921(b). The unambiguous language of section 8522(b)(4) in relevant part provides ‘A dangerous condition of Commonwealth agency real estate. . . .’ These key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty.

“It is instructive to turn to the real property exception of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542(b)(3) and its accompanying case law for guidance as to the scope of liability imposed for negligent care of real property. As is true for sovereign immunity, exceptions to the rule of governmental immunity are narrowly interpreted, given the express legislative intent to insulate political subdivisions from tort liability. Mascaro v. Youth Study Center, supra.

“For the limited waiver of 42 Pa.C.S.

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Related

AETNA ELECTRO. CO., INC. v. Jenkins
484 A.2d 134 (Supreme Court of Pennsylvania, 1984)
Cestari v. School District of Cheltenham Township
520 A.2d 110 (Commonwealth Court of Pennsylvania, 1987)
Paz v. Com., Dept. of Corrections
580 A.2d 452 (Commonwealth Court of Pennsylvania, 1990)
Love v. City of Philadelphia
543 A.2d 531 (Supreme Court of Pennsylvania, 1988)
Bersani v. School District of Philadelphia
456 A.2d 151 (Superior Court of Pennsylvania, 1982)
DeSantis v. Swigart
442 A.2d 770 (Superior Court of Pennsylvania, 1982)
Mascaro v. Youth Study Center
523 A.2d 1118 (Supreme Court of Pennsylvania, 1987)
Snyder v. Harmon
562 A.2d 307 (Supreme Court of Pennsylvania, 1989)
Wilson Et Vir v. Miladin
553 A.2d 535 (Commonwealth Court of Pennsylvania, 1989)
Gratkie v. Air Wisconsin, Inc.
528 A.2d 1032 (Commonwealth Court of Pennsylvania, 1987)
Davidow v. Anderson
476 A.2d 998 (Commonwealth Court of Pennsylvania, 1984)
Vince v. Ringgold School District
499 A.2d 1148 (Commonwealth Court of Pennsylvania, 1985)

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Bluebook (online)
12 Pa. D. & C.4th 73, 1991 Pa. Dist. & Cnty. Dec. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/combs-v-borough-of-ellsworth-pactcomplwashin-1991.