Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Denise Joner v. Board of Education of the School District of Philadelphia, No. 4760 March Term, 1983.
James B. Crummett, with him, William L. Bowe, Crummett & Bowe, P.C., for appellant.
Andrew M. Rosen, Assistant Counsel, with him, Michael Churchill, General Counsel, for appellee.
President Judge Crumlish, Jr., and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Doyle. Judge Williams, Jr. did not participate in the decision in this case. Judge Rogers concurs in the result only. Dissenting Opinion by President Judge Crumlish, Jr. Judge Barry joins in this dissent.
[ 91 Pa. Commw. Page 146]
Denise Joner (Appellant) appeals from the order of the Philadelphia County Court of Common Pleas which granted the School District of Philadelphia's motion for judgment on the pleadings, and dismissed Appellant's complaint. We affirm.
[ 91 Pa. Commw. Page 147]
The facts as pleaded in this case indicate that on April 13, 1981, Appellant was assaulted while she was walking on the sidewalk adjacent to the Fell School at 9th Street and Oregon Avenue in Philadelphia. Appellant was forceably taken through an unsecured gate in the fence around the school to an unlighted area of the school grounds where she was beaten and sexually assaulted. A complaint in trespass was filed against the School District, alleging negligence in failing to properly secure the school gate, and in failing to maintain adequate lighting for the school property, thereby allowing the property to be used for criminal activity directed against passersby. The School District filed a motion for judgment on the pleadings claiming governmental immunity under Section 8541 of the Judicial Code, 42 Pa. C.S. § 8541. The court of common pleas granted the School District's motion, citing as controlling authority the case of Vann v. Board of Education, School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983).
The doctrine of governmental immunity had its origin in common law, and, unlike sovereign immunity, was based not on constitutional principles, but on policy considerations which favored public convenience over the rights of individuals. See Ford v. School District, 121 Pa. 543, 15 A. 812 (1888). Finding such policy considerations outdated and unjustified, the Supreme Court of Pennsylvania overruled Ford and abolished the judicially-created doctrine of governmental immunity in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). Soon thereafter the legislature responded by enacting the Political Subdivision Tort Claims Act,*fn1
[ 91 Pa. Commw. Page 148]
which created a statutory basis for governmental immunity, subject to certain limited exceptions. The exception to immunity relevant in the present case is now found in Section 8542 of the Judicial Code which states, in pertinent part:
(b) Acts which may impose liability. -- The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
(3) Real Property. -- The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally ...