No. 1118 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County at No. 3796 July Term 1977.
Joanne E. Kleiner, Philadelphia, for appellant.
James M. Marsh, Philadelphia, for appellee.
Wickersham, McEwen and Lipez, JJ. Lipez, J., filed a dissenting statement.
This is an appeal from a lower court order granting a motion for summary judgment in favor of appellee School District of Philadelphia (hereinafter the School District).*fn1 Appellants Anthony Bersani, Jr., and his father (hereinafter Bersani) filed a complaint in trespass on July 27, 1977. The School District answered on August 10, 1977. Discovery was then begun but not completed. On December 27, 1978, the School District filed a motion for summary judgment, which was denied on March 1, 1979.
On July 5, 1979, the lower court granted Bersani leave to amend his complaint. Two amended complaints were subsequently filed, one on July 12, 1979, and the other on August 22, 1979. More discovery and pleadings followed. On April 10, 1981, the lower court granted a second motion for summary judgment by the School District. This appeal followed.
The pertinent facts are as follows. On the evening of May 3, 1977, Anthony Bersani, Jr., age nine, was playing softball in the schoolyard of the Vare Junior High School in Philadelphia. The game was not an organized school activity; each player supplied his own equipment. Bersani
played the position of catcher during the game. At one point as Bersani crouched near home plate the batter swung at a pitch and accidentally struck him in the head with the bat. Bersani suffered a fractured skull, seizures, and other injuries as a result of the blow.
Bersani contends that the painted marking which served as home plate at the playground was positioned too closely to the fence of the schoolyard to allow enough room for a catcher to position himself safely behind home plate. The diamond and home plate were positioned for the game of pimpleball, which is played under rules similar to baseball except that no bats are used; the ball used is of a balloon type and it is struck by the offensive player's hand rather than by a bat. Because no bat is used in pimpleball, less room is needed behind home plate than in softball or baseball.
Bersani frames the first question involved as follows:
Was [the] lower court which granted Defendant's motion for summary judgment bound by principles of Res ...