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WILFREDO MELENDEZ v. CITY PHILADELPHIA (10/07/83)

filed: October 7, 1983.

WILFREDO MELENDEZ, A MINOR BY HIS PARENTS AND NATURAL GUARDIANS, JUSTINO MELENDEZ AND GEORGINA MELENDEZ, AND JUSTINO MELENDEZ AND GEORGINA MELENDEZ IN THEIR OWN RIGHT, APPELLANTS,
v.
CITY OF PHILADELPHIA



No. 3214 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Civil Section, of Philadelphia County, October Term, 1977, No. 4977.

COUNSEL

Mark Brownstein, Philadelphia, for appellants.

Jill A. Douthett, Assistant City Solicitor, Philadelphia, for appellee.

Cavanaugh, Rowley and Hoffman, JJ. Cavanaugh, J., concurs in the result.

Author: Rowley

[ 320 Pa. Super. Page 61]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County which granted summary judgment in favor of the appellee, City of Philadelphia, and against the appellants, Wilfredo Melendez and his parents Justino and Georgina Melendez.

On September 12, 1976, fifteen year old Wilfredo Melendez was shot in the left eye by his neighbor, Edward Dietzel, during a racial confrontation between the residents of the neighborhood where he and Dietzel both lived in the 2600 block of North Waterloo Street, Philadelphia. A complaint in trespass was filed on October 25, 1977, by the minor appellant and his parents against the City of Philadelphia on the theory that the minor appellant's injuries were caused by the nonfeasance of the City's police department and human relations commission, both of which were alleged

[ 320 Pa. Super. Page 62]

    to have failed to take sufficient and adequate measures to safeguard the lives of the citizens of the neighborhood after having been apprised of racial problems in the community and dangers occasioned thereby to the residents.*fn1 On January 6, 1978, the City filed a motion for summary judgment on the ground that it owed no special duty to minor appellant or his neighbors to provide them with police protection beyond that which is owed to the public in general, and that, consequently, it could not be held liable for minor appellant's injuries. The City's motion was denied on March 31, 1978, per Judge SILVERSTEIN. Minor appellant and his parents were subsequently deposed, and reports prepared by the human relations commission about the time of the incident regarding the racial situation in the neighborhood were made part of the record. In the summer of 1981, the City once again moved for summary judgment arguing anew that the facts viewed in the light most favorable to appellants failed to establish a special duty of protection owed by the City to minor appellant. After review, the trial court per Judge BRAIG entered an order on November 19, 1981, granting the City's request for summary judgment.*fn2 This appeal followed. We affirm.

[ 320 Pa. Super. Page 63]

Our scope of review when considering a grant of summary judgment was recently reiterated by this Court in Juarbe v. City of Philadelphia, 288 Pa. Super. 330, 431 A.2d 1073 (1981):

In our review of this appeal from the grant of summary judgment, our judicial role has been clearly defined. It was well-stated by Judge Jacobs in Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Super. 341, 350, 361 A.2d 676, 680 (1976):

It is well established that we can sustain a summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The record must be examined in the light most favorable to the nonmoving party. The court must accept as true all well-pleaded facts in the plaintiff's . . . pleadings, giving the plaintiff . . . the benefit of all reasonable inferences to be drawn therefrom. Finally, a summary judgment should be granted only when the case is clear and free from doubt. Moreover, in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is ...


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