Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Lois A. Adams, Administratrix of the Estate of Terrance L. Adams, deceased; Lois A. Adams and Julius B. Adams, individually and as Parents and Natural Guardians of Bernard Adams, a Minor v. City of Harrisburg and Harrisburg Police Department, No. 6041 S 1980.
Joseph M. Melillo, Benjamin & Angino, P.C., for appellants.
Timothy I. Mark, Goldberg, Evans & Katzman, P.C., with him Roger T. Shoop, Thomas and Thomas, for appellees.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Rogers dissents.
[ 78 Pa. Commw. Page 388]
The appellants herein seek to reverse an order of the Court of Common Pleas of Dauphin County dismissing their complaint in trespass against the City of Harrisburg and the Harrisburg Police Department.
The action below was commenced by Lois A. Adams, as Administratrix of the Estate of Terrance L. Adams, deceased; and by Lois A. Adams and Julius
[ 78 Pa. Commw. Page 389]
B. Adams, individually and as the parents and natural guardians of Bernard Adams, a minor. The plaintiffs' complaint, which was filed on October 31, 1980, alleged as follows: In the evening of May 24, 1979, a Mrs. Peterson, who resided at 1848 North Street in the City of Harrisburg, heard an object strike her front door. In the morning or afternoon of the next day, May 25th, some unidentified person discovered that the object was a hand-grenade, and carried it to the other side of the street, where the plaintiffs resided with their children. About 12:30 p.m. that day, the grenade was picked up by Terrance Adams, the four-year old son of the plaintiffs. The grenade exploded, killing Terrance and severely injuring his brother, Bernard.
The plaintiffs' complaint further alleged that Mrs. Peterson's daughter had been shot during the early morning of May 25th; and that Mrs. Peterson, while visiting her daughter in the hospital that same morning, had told Harrisburg police that "something had been thrown up against her door earlier in the evening."
The complaint asserted that, given the shooting of Mrs. Peterson's daughter, the Harrisburg Police Department had been negligent, reckless and wanton in not responding to Mrs. Peterson's report that "something had been thrown up against her door." According to the complaint, the alleged failure of the police, to respond to Mrs. Peterson's report, was the direct and proximate cause of the death of Terrance Adams and the injury to Bernard Adams.
The defendants, City of Harrisburg and the Harrisburg Police Department, filed preliminary objections by which they demurred to the legal sufficiency of the complaint. They asserted that the plaintiffs had failed to set forth a cause of action for ...