Vause v. Middletown Township

35 Pa. D. & C.4th 507, 1996 Pa. Dist. & Cnty. Dec. LEXIS 96
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedOctober 25, 1996
Docketno. 96-03163-19
StatusPublished

This text of 35 Pa. D. & C.4th 507 (Vause v. Middletown Township) 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
Vause v. Middletown Township, 35 Pa. D. & C.4th 507, 1996 Pa. Dist. & Cnty. Dec. LEXIS 96 (Pa. Super. Ct. 1996).

Opinion

SCOTT, J.,

Plaintiffs, Jeffrey Vause and his mother, Caroline Clark, have appealed our order of August 30, 1996, dismissing their second amended complaint with prejudice. We offer this opinion in support of that order.

Procedurally, this case can be described as one of repeated meager attempts by plaintiffs to plead a viable [508]*508cause of action before the court had an opportunity to rule on the merits of defendants’ preliminary objections. Plaintiffs filed a complaint in this matter on April 26,1996. Defendants filed preliminary objections raising the issue of governmental immunity, and then plaintiffs filed an amended complaint on May 24,1996, thereby rendering the preliminary objections moot. Defendants then filed similar preliminary objections to the amended complaint, and plaintiffs responded by filing a second amended complaint on June 7, 1996. Once again, defendants filed preliminary objections, and after oral argument on August 29, 1996, this court granted the preliminary objections and dismissed this action with prejudice. Plaintiffs have timely filed a notice of appeal.

This cause of action arises from an incident which occurred on June 29,1995, in which Jeffrey was injured on a playground located at Albert Schweitzer Elementary School. Jeffrey was enrolled at defendant Middletown Township’s day camp and was taken by the employees of the day camp to the playground on the date of the accident. The second amended complaint avers that the playground Jeffrey was to have originally used was under construction and in a defective condition, forcing him to be at another location and out of the view of responsible adults. (Paragraph 23 (i).) The second amended complaint also avers separate counts for breach of contract and failure to properly supervise.

In their concise statement of matters complained of, plaintiffs aver the following:

“(1) The court erred when it granted defendants’ preliminary objections when the law says with certainty that recovery is possible based on the well-pled facts of a defective condition existing on defendants’ property [509]*509which caused and/or contributed to the injuries and damages of plaintiff, which defective condition is an exception to the governmental immunity defense.

“(2) The court erred when it granted defendants’ preliminary objections despite the well-pled facts in plaintiffs’ second amended complaint of a defective condition existing on the defendants’ property which defective condition caused the damages and injuries alleged by plaintiffs.

“(3) The court erred when it failed to determine the plaintiff Caroline Clark’s well-pled breach of contract action is valid.

“(4) The court erred when it granted defendants’ preliminary objections prior to the completion of discovery to determine whether or not a defective condition existed on the defendants’ property which condition caused and/or contributed to the injuries and damages alleged by plaintiffs.

“(5) The court erred when it dismissed plaintiffs’ second amended complaint finally without considering the possibility that the second amended complaint was defective, it could be cured by amendment with more specific averments of defective conditions.

“(6) The court erred when it dismissed plaintiffs’ second amended complaint finally when material issues of fact exist for the finder of fact, whether a defective condition existed which caused and/or contributed to the injuries and damages of plaintiffs.”

We will address points 1 and 2 together, and 4, 5, and 6 together.

Initially, we note that for purposes of testing the legal sufficiency of a complaint in ruling upon preliminary objections, the court must accept as true all well-pled allegations of material fact as well as all rea[510]*510sonable inferences deducible therefrom. Rodgers v. Pennsylvania Department of Corrections, 659 A.2d 63 (Pa. Commw. 1995). Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Meinhart v. Heaster, 424 Pa. Super. 433, 622 A.2d 1380 (1993).

(1) and (2) The defective condition.

We find as a matter of law that plaintiffs’ second amended complaint fails to establish a defective condition sufficient to overcome governmental immunity.

In order to establish a cause of action against a municipality, the case must meet two requirements. First, damages must be recoverable under common law or a statute creating a cause of action. 42 Pa.C.S. §8542(a)(l). Second, the injury must fall within one of the eight enumerated exceptions to governmental immunity set forth in 42 Pa.C.S. §8542(b). All exceptions to governmental immunity are to be narrowly construed against the plaintiff given the express legislative intent to insulate political subdivisions from tort liability. Sims v. Silver Springs-Martin Luther School, 155 Pa. Commw. 619, 625 A.2d 1297 (1993).

Plaintiffs contend that a defective condition existed on defendants’ property which directly contributed to Jeffrey’s injuries, and that this case falls under the “real property” exception to governmental immunity set forth at 42 Pa.C.S. §8542(b)(3). That section provides that liability may be imposed on a local agency where the care, custody or control of real property is in the possession of the local agency. We find that the instant case does not fall within the real property exception.

Our courts have long held that for the real estate exception to apply, the dangerous condition must arise from a defect “of” the land itself, as opposed to a [511]*511condition or defect which merely facilitates injury to the plaintiff. McClosky v. Abington School District, 115 Pa. Commw. 289, 539 A.2d 946 (1988); Cotter v. School District of Philadelphia, 128 Pa. Commw. 159, 562 A.2d 1029 (1989). An actual defect of the real property itself must have caused the injury in order to fall within the real property exception to governmental immunity. DeLuca v. School District of Philadelphia, 654 A.2d 29 (Pa. Commw. 1994). It is not enough for plaintiffs merely to show that the municipality negligently permitted a condition to exist which facilitated the injury. See Harding v. Galyias, 117 Pa. Commw. 371, 544 A.2d 1060 (1988). Instantly, plaintiffs’ second amended complaint fails to allege that this accident occurred as a result of a defect of the property.

The only allegation of a defect of the property appears at paragraph 23 (i) of the second amended complaint, where it is stated that,

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Related

Sims v. Silver Springs-Martin Luther School
625 A.2d 1297 (Commonwealth Court of Pennsylvania, 1993)
Cotter v. School District of Philadelphia
562 A.2d 1029 (Commonwealth Court of Pennsylvania, 1989)
McCloskey v. Abington School District
539 A.2d 946 (Commonwealth Court of Pennsylvania, 1988)
Silkowski v. Hacker
504 A.2d 995 (Commonwealth Court of Pennsylvania, 1986)
DeLuca v. School District of Philadelphia
654 A.2d 29 (Commonwealth Court of Pennsylvania, 1994)
Rodgers v. Pennsylvania Department of Corrections
659 A.2d 63 (Commonwealth Court of Pennsylvania, 1995)
Meinhart v. Heaster
622 A.2d 1380 (Superior Court of Pennsylvania, 1993)
Harding v. Galyias
544 A.2d 1060 (Commonwealth Court of Pennsylvania, 1988)

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Bluebook (online)
35 Pa. D. & C.4th 507, 1996 Pa. Dist. & Cnty. Dec. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vause-v-middletown-township-pactcomplbucks-1996.