Appeals from the Orders of the Court of Common Pleas of Delaware County in cases of Kathleen Knudsen and Richard W. Knudsen, as parents and natural guardians of Susan Knudsen, a minor, and Kathleen Knudsen, in her own right v. Delaware County Regional Water Quality Control Authority and Percy Jones, The Borough of Upland, Chester-Upland School District, No. 82-9246, and in the case of Kathleen Knudsen, Administratrix of the Estate of David E. Knudsen, Deceased v. Delaware County Regional Water Quality Control Authority and Percy Jones, Borough of Upland and Chester-Upland School District, No. 82-9247.
Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, for appellants.
John M. Toscano, with him, John J. Tinaglia, Ballard, Spahr, Andrews & Ingersoll, for appellee, The Chester-Upland School District.
Judges Rogers, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.
On December 2, 1981, David E. Knudsen, the five-year-old son of Richard W. and Kathleen Knudsen, was fatally injured when he was struck by a truck while crossing the street near his school during a luncheon recess. This resulted in two actions brought in the Court of Common Pleas of Delaware County against the driver of the truck and his employer. Kathleen and Richard W. Knudsen as parents and natural guardians of Susan Knudsen, a minor, and Kathleen in her own right, sued for damages for mental distress and emotional injury allegedly suffered as a result of seeing David lying in the road bleeding from the head. Kathleen, as administratrix of the Estate of David, brought a survival and wrongful death action.
In each action the defendants joined the Borough of Upland and the Chester-Upland School District as additional defendants. The Borough of Upland filed an answer to the defendants' third party complaint and is not involved in this appeal.
The negligence charged to the school district in the third party complaint was, pertinently, that it:
fail[ed] to notify the Pennsylvania Department of Transportation and/or the Borough of Upland that the 15 mph school speed limit sign was not working and/or that it was not set to go prior to this school's first lunch break.
In each action the school district filed a preliminary objection in the nature of a demurrer to the third party complaint asserting that no cause had been stated because the school district was immune
from suit by virtue of Sections 8541 and 8542 of the Judicial Code, 42 Pa. C.S. §§ 8541 and 8542.*fn1 These provisions render political subdivisions immune from suit for personal injury or property damage caused by them or their employees unless the conduct complained of falls within certain described exceptions.
The plaintiffs filed what they called responses to the preliminary objections*fn2 and a memorandum of law in which they contended that 42 Pa. C.S. §§ 8541 and 8542 are unconstitutional and, in addition, that the school district's alleged failure to notify the Pennsylvania Department of Transportation or the Borough of Upland that the traffic sign limiting the speed to fifteen miles per hour was not functioning during David's lunch recess was within the exception to immunity ...