Appeal, No. 331, Jan. T., 1954, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1950, No. 5062, in case of Floyd Anderson, a minor, by Ina Anderson, his guardian v. City of Philadelphia. Judgment affirmed.
John Edward Sheridan, for appellant.
I. Jerome Stern, Assistant City Solicitor, with him Jerome J. Shestack, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
This action of trespass was instituted against the City of Philadelphia for personal injuries inflicted upon minor plaintiff by fellow-inmates of Pennypack House, a section of the House of Correction created by the city and under the supervision and control of its Department of Public Welfare. Plaintiff appeals from the refusal of his motion for removal of compulsory non-suit entered by the court below. The non-suit was granted on the basis that the operation of the institution is a governmental function, thus making the city immune from liability for torts.
In this appeal plaintiff concedes that the city was engaged in a governmental function, - which could render the city immune from liability; but insists that the testimony established the existence of a nuisance, - for which the city is liable. The contention is that the
nuisance consisted in the city permitting "over a long period of time, ... a condition to exist on its property, by failure to have proper and adequate supervision of its use."
It is well established that, as a general rule, municipalities are immune from liability for torts committed by their employes in the course of performance of a governmental function, unless a right of recovery is expressly granted by statute: Scibilia v. Philadelphia, 279 Pa. 549, 556, 124 A. 273. And "it is true that municipalities are not clothed with immunity in certain cases, such as those involving highway construction, the building of public works, or the maintenance of a nuisance; these are well established exceptions to the rule ...": Boorse v. Springfield Township, 377 Pa. 109, 112, 103 A.2d 708.
The facts in the instant case are as follows: On May 3, 1950, minor plaintiff was committed to Pennypack House as a delinquent. He remained there until May 31, 1950, when released upon a complaint filed by his mother that he had been subject to illegal conditions. Specifically, the testimony established that he was "beaten up" by other inmates because he refused to submit to acts of sodomy. It appears that as soon as the matter came to the attention of the authorities, the two inmates principally responsible were tried and sentenced thereon to a term in an Industrial School.
It was further testified that for a period of at least eight months, there was in existence in the institution a "kangaroo court" consisting of inmates, before which inmates were brought for trial and punishment on charges filed by other inmates. The charges consisted variously of stealing cigarettes, or refusing to honor requests of an inmate, such as was the case of this minor ...