No. 3006 Philadelphia 1981, Appeal from the Order of October 26, 1981, Court of Common Pleas, Philadelphia County, Civil at No. 4570 November Term, 1980.
Jeffery L. Krain, Philadelphia, for appellants.
Jill A. Douthett, Assistant City Solicitor, Philadelphia, for appellee.
Brosky, Johnson and Montgomery, JJ.
[ 319 Pa. Super. Page 554]
On November 28, 1978, Joseph E. Williams, Jr., a minor, was walking home from school. While crossing an undeveloped parcel of land owned by one Mabel Lewis he fell and sustained injuries. Subsequently, Joseph E. Williams, Sr. filed a complaint in trespass on behalf of his son naming Lewis and the City of Philadelphia (City) as defendants. In the first count, it was alleged that Lewis was negligent in allowing her property to become a safety hazard. A second count averred that the City was negligent in knowingly allowing the Lewis property to fall into such a state of disrepair.
The City filed an answer and new matter to the complaint. It denied ownership, possession, and control of the
[ 319 Pa. Super. Page 555]
premises. The City moved for judgment on the pleadings which was granted in favor of the City.
Judgment on the pleadings is only appropriate where no material facts remain in dispute. Pennsylvania Ass'n of State Mental Hospital Physicians, Inc. v. State Emp. Retirement Bd., 484 Pa. 313, 399 A.2d 93 (1979). Only where the moving party's right to prevail is so clear that a trial would be a fruitless exercise should a judgment on the pleadings be entered. Nevling v. Natoli, 290 Pa. Super. 174, 434 A.2d 187 (1981).
In the current case the trial court found that the complaint was fatally defective in that it failed to aver facts that would show that the City owed a duty to the minor appellant. The Court refused to create such a duty. The court relied on Ricketts v. Allegheny County, 409 Pa. 300, 186 A.2d 249 (1962).
Ricketts is somewhat similar, factually, to the case at hand. There a child was injured while playing in a vacant house. The house had been vacated pursuant to an order of the county health department. The Supreme Court held that neither the city nor county could be liable for allowing a nuisance to be maintained within its jurisdiction, unless the governmental unit had acquired title to the property, or had contributed to or was otherwise responsible for the dangerous condition. There was no absolute duty of the city or county to abate the nuisance.*fn1 The court relied in part upon the doctrine of governmental immunity.
Governmental immunity from liability for negligent conduct of a governmental unit was judicially abolished in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). There the school board was found to be negligent in supplying a piece of equipment for a vocational class. The machine was without safety devices and the school failed to ...