Purdy v. Romeo

10 Pa. D. & C.4th 242, 1991 Pa. Dist. & Cnty. Dec. LEXIS 266
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedJuly 15, 1991
Docketno. 178 Civil of 1991
StatusPublished
Cited by1 cases

This text of 10 Pa. D. & C.4th 242 (Purdy v. Romeo) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Purdy v. Romeo, 10 Pa. D. & C.4th 242, 1991 Pa. Dist. & Cnty. Dec. LEXIS 266 (Pa. Super. Ct. 1991).

Opinion

O’BRIEN, J.,

On April 22, 1991, plaintiff Marilyn Dolores Purdy, who as a member of the Colonial Northampton Intermediate Unit no. 20 performed professional services at both the Delaware Valley School District and Stroudsburg School District, and her husband filed their amended complaint. The amended complaint sought damages from defendants Mark Romeo, a student who allegedly assaulted her; Joelyne Pohutsky and Richard Agretto, who supervised her employment; and her employers. On July 2, 1991, this court entered an order upon agreement of all parties dismissing Stroudsburg School District as a defendant for factual reasons. All defendants, except the student Mark Romeo, have filed preliminary objections raising several issues including governmental immunity pursuant to the Political Subdivision Tort Claims Act. Following submission of briefs and oral [243]*243argument on July 1, 1991, these preliminary objections are now before the court for disposition.

Our Commonwealth Court has held that a preliminary objection is a proper means of raising the issue of sovereign immunity. See Finkelstein v. Shippensburg, 29 Pa. Commw. 373, 370 A.2d 1259 (1977). The role of courts in ruling on preliminary objections is to determine whether or not the facts as pleaded are legally sufficient to permit the action to continue. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). In ruling on a demurrer, courts may only consider such matters as arise out of the complaint itself; they cannot supply a fact missing in the complaint. Linda Coal & Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964). In reviewing a defendant’s demurrer, we must regard as true all well-pled facts, and reasonable inferences from those facts, advanced in the complaint. Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983). It is well-settled that the real estate exception to governmental immunity is unavailable to those whose claim of negligence is predicated upon a failure to adequately supervise the conduct of students. Davies v. Barnes, 94 Pa. Commw. 145, 503 A.2d 93 (1986); Messina v. Blairsville-Saltsburg School District, 94 Pa. Commw. 100, 503 A.2d 89 (1986).

The Political Subdivision Tort Claims Act provides in pertinent part as follows:

“(a) Liability imposed. A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

“(1) The damages would be recoverable under common law or statute creating a cause of action if the injury were caused by a person not having [244]*244available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

“(2) The injury was caused by negligent acts of a local agency or any employee thereof acting within the scope of his offices or duties with respect to one of the categories listed in subsection (b). As used in this paragraph ‘negligent acts’ shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful, misconduct.

“(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:

“(1) Vehicle liability. . .
“(2) Care, custody or control of personal property. . .
“(3) Real property. . .
“(4) Trees, traffic controls and street lighting. . .
“(5) Utility service facilities. . .
“(6) Streets. .
“(7) Sidewalks. . .
“(8) Care, custody or control of animals. . .” 42 Pa.C.S. §8542.

In the case at bar, to impose liability upon defendants Colonial Northampton Intermediate Unit no. 20 and Delaware Valley School District, the burden of proof facing plaintiffs is thus two-tiered: Plaintiffs must prove that (1) their injuries occurred as the result of an act or acts for which damages would be recoverable under common law or a statute creating a cause of action and (2) that their injuries were caused by the negligent acts of the agency or its employees acting within the scope of their duties with respect to one of the categories of waiver. Chevalier v. City of Philadelphia, 91 Pa. Commw. 36, 496 A.2d 900 (1985). In the case at bar, plaintiffs’ [245]*245complaint contains averments couched in terms of negligence on the part of employees of defendants Colonial Northampton Unit no. 20 and Delaware Valley School District, yet fails to allege injury with respect to one of the categories of waiver. Plaintiffs rely upon the Commonwealth Court’s interpretation of the real estate exception in Johnson v. SEPTA and City of Philadelphia, 91 Pa. Commw. 587, 498 A.2d 22 (1985). However, our Supreme Court in Johnson v. SEPTA and City of Philadelphia, 516 Pa. 312, 532 A.2d 1109 (1987), reversed the Commonwealth Court and rejected pláintiffs’ extension of the real estate exception to injuries which result from inadequate supervision of persons who cause injuries to the public on municipal premises. The court held the real estate exception canybe applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). See also, City of Philadelphia v. Buck, 138 Pa. Super. 250, 587 A.2d 875 (1991).

There is no allegation in plaintiffs’ complaint that a defect in the land itself caused injury to plaintiff. Neither can we construe the allegations of intentional infliction of emotional distress, interference with contractual relationship, or civil conspiracy as fitting within one of the categories of waiver. Therefore, no cause of action is authorized by the act against defendants Colonial Northampton Unit no. 20 and Delaware Valley School District for the facts alleged in plaintiffs’ amended complaint.

Having concluded all of the tort allegations of plaintiffs’ amended complaint against Colonial Northampton Unit no. 20 and Delaware Valley School [246]

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Cite This Page — Counsel Stack

Bluebook (online)
10 Pa. D. & C.4th 242, 1991 Pa. Dist. & Cnty. Dec. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/purdy-v-romeo-pactcomplmonroe-1991.