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JOHN F. CHEVALIER AND ANITA CHEVALIER v. CITY PHILADELPHIA AND FREDERIC R. MANN MUSIC CENTER (08/09/85)

decided: August 9, 1985.

JOHN F. CHEVALIER AND ANITA CHEVALIER, APPELLANTS
v.
CITY OF PHILADELPHIA AND FREDERIC R. MANN MUSIC CENTER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of John F. & Anita Chevalier v. City of Philadelphia and Frederic R. Mann Music Center, No. 6859 May Term, 1983.

COUNSEL

Anton H. Rosenthal, with him, Joseph S. Grossman and Allen L. Rothenberg, for appellants.

Ralph J. Luongo, Assistant City Solicitor, with him, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, and Barbara W. Mather, City Solicitor, for appellees.

Judges Rogers, Barry and Palladino, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Judge Palladino.

Author: Rogers

[ 91 Pa. Commw. Page 37]

John F. and Anita Chevalier, whom we will refer to as plaintiffs, sued the City of Philadelphia (city) and the Frederic R. Mann Music Center (center) in trespass for damages on account of injuries to Mr. Chevalier. The plaintiffs here appeal from a judgment on the pleadings entered by the Court of Common Pleas of Philadelphia County in favor of the city based upon the immunity conferred on the city as a local agency by 42 Pa. C.S. §§ 8541-8564 (Act).

In their complaint, the plaintiffs allege that while on the center's parking lot at 9:45 p.m. on July 19, 1982, Mr. Chevalier was the "victim of tortious acts by third persons" and that he "suffered serious and painful injuries" as a result of the "dangerous lack of security for his person and the dangerous condition present" at the center. They further allege that the city and the center owned, operated, maintained, possessed, and controlled the parking lot; that on July 19, 1982, "and for a long period of time prior thereto, there existed a dangerous condition in the parking lot" next to the center; that the plaintiffs were business

[ 91 Pa. Commw. Page 38]

    invitees; that the city and center negligently failed "to provide reasonably safe conditions for the security of plaintiff in the parking lot after they knew or had reason to know of the likelihood of dangerous conduct on the part of third persons"; and that the city and center negligently failed "to provide adequate illumination" of the parking lot.

By Answer, the city denies the plaintiffs' allegations of negligence and in New Matter invokes the affirmative defense of governmental immunity conferred by the Act.

By Reply to New Matter, the plaintiffs plead that the defense of governmental immunity states a conclusion of law requiring no reply.

The city filed a motion for judgment on the pleadings, contending that the plaintiffs' allegations that the city failed to protect Mr. Chevalier from a criminal assault by third persons did not fall within any of the eight exceptions to governmental immunity conferred by the Act. The common pleas court agreed and entered the judgment under appeal.

Section 8541 of the Act provides that, subject to exceptions, a local agency shall not be liable for damages on account of an injury to a person or property caused by an act of the agency or its employees. The eight exceptions to this grant of immunity are found in 42 Pa. C.S. § 8542(b). To surmount the bar to liability by recourse to the exceptions, the plaintiff must, pursuant to 42 Pa. C.S. § 8542(a)(1) and (2), satisfy the conditions that his injuries occurred as the result of an act or acts for which damages would be recoverable under common law or a statute creating a cause of action and that his injuries ...


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