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SUPLER v. NORTH FRANKLIN TOWNSHIP SCHOOL DISTRICT. (06/28/62)

June 28, 1962

SUPLER, APPELLANT,
v.
NORTH FRANKLIN TOWNSHIP SCHOOL DISTRICT.



Appeal, Nos. 200 and 203, March T., 1961, from judgment of Court of Common Pleas of Washington County, May T., 1960, No. 489, in case of Jean Supler and Joseph W. Supler, by Jean Supler, his mother and natural guardian v. School District of North Franklin Township and W.A. Burson. Judgment affirmed.

COUNSEL

Adolgh L. Zeman, with him Robert L. Zeman, and Zeman & Zeman, for appellants.

Francis H. Patrono, with him Patrono and Edwards, for school district, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Bell

[ 407 Pa. Page 657]

OPINION BY MR. CHIEF JUSTICE BELL

Plaintiffs seek damages for personal injuries suffered by minor plaintiff, Joseph W. Supler, as a result of alleged negligence on the part of defendant, W.A. Burson, an employee of defendant School District of

[ 407 Pa. Page 658]

North Franklin Township. Defendant School District filed an answer to plaintiffs' complaint alleging under New Matter, that it is immune from suit for the negligence of its employees while engaged in the governmental functions of the School District, and praying that the suit be dismissed. Plaintiffs then filed an Answer to New Matter averring that at the time of the occurrence of the injury the School District was fully insured against the risk involved in this case. Plaintiffs further averred that the insurance constituted a waiver of the defense of governmental immunity from suit and that in any event, by reason of such insurance, plaintiffs are entitled to maintain this action and recover a judgment against the School District to the extent of the insurance coverage. Defendant School District thereupon filed a motion for judgment on the pleadings. The Court en banc directed the entry of judgment in favor of defendant School District. From that judgment, plaintiffs took these appeals.

Since Ford v. Kendall Borough School District, 121 Pa. 543, 15 A. 812, was decided in 1888, this Court has always applied the rule that a School District is not liable in trespass for the negligence of its officers and employees while engaged in governmental functions:*fn* Michael v. Lancaster School District, 391 Pa. 209, 137 A.2d 456; Kesman v. Fallowfield Township School District, 345 Pa. 457, 29 A.2d 17; Devlin v. Philadelphia School Destrict, 337 Pa. 209, 215, 10 A.2d 408; Goldstein v. Philadelphia School District, 329 Pa. 71, 196 A. 863; Carlo v. Scranton School District, 319 Pa. 417, 179 A. 561.

[ 407 Pa. Page 659]

While plaintiffs recognize that these cases express the long and well settled law of Pennsylvania, they ask us (1) to overrule them, which once again we refuse to do, or (2) if not, to modify the law and hold it inapplicable where the School District is covered by liability insurance. Practically the same arguments were presented to this Court and rejected by us in Michael v. Lancaster School District, 391 Pa., supra, and in Kesman v. Fallowfield Township School District, 345 Pa., supra. In the Kesman case, this Court, in summarily dismissing appellants' contentions, said (page 458): "It has been repeatedly held that school districts are not liable for such negligence: Devlin v. Phila. School District, 337 Pa. 209, 10 A.2d 408; Goldstein v. Phila. School District, 329 Pa. 71, 196 A. 863; Carlo v. Scranton School District, 319 Pa. 417, 179 A. 561; Ford v. Kendall Borough School District, 121 Pa. 543, 15 A. 812. The same rule prevails in many other jurisdictions.

"In appellants' argument, it is suggested that as the defendant protected itself by liability insurance, it waived the immunity otherwise conceded to exist. No principle was suggested that would support a judgment against the ...


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