Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Esther P. Johnson and William D. Johnson v. Southeastern Pennsylvania Transportation Authority and City of Philadelphia, No. 1349 December Term, 1980.
Elliot M. Winer, with him, Thomas A. Winkelspecht, Co-Counsel, for appellants.
Barbara R. Axelrod, Deputy City Solicitor, with her, Barbara W. Mather, City Solicitor, Ralph L. Luongo, Assistant City Solicitor, and Leonard R. Parks, for appellees.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Rogers. Judge Williams, Jr. did not participate in the decision in this case. Concurring Opinion by Judge Doyle. Dissenting Opinion by Judge Craig.
[ 91 Pa. Commw. Page 588]
The appellants, Esther Powell Johnson and William D. Johnson, sued the City of Philadelphia and the Southeastern Pennsylvania Transportation Authority (SEPTA) in trespass for damages on account of injuries to Mrs. Johnson. The Court of Common Pleas of Philadelphia County granted the city's Motion for Judgment on the ground that the Johnsons' claim was barred by the city's governmental immunity conferred by the Political Subdivision Tort Claims Act (Act).*fn1 SEPTA is not involved in this appeal.
While leaving the Broad Street subway concourse at the Tasker-Morris Station on July 11, 1980, Mrs.
[ 91 Pa. Commw. Page 589]
Johnson was assaulted, thrown against a subway wall and injured by a person bent on stealing her purse.
The appellants averred that the city and SEPTA owned, possessed, maintained and controlled jointly or severally the place where she was injured; that Mrs. Johnson was a business invitee of the defendants; that the defendants were on notice of the prevalence in the concourse of criminal activity, including molestation and assault of passengers; and that the defendants negligently failed to provide protection for passengers.
Section 201 of the Act provided political subdivisions with immunity from damages on account of any injury to persons or property caused by acts or omissions of the political subdivision or its employes. Section 202 of the Act created exceptions to the provision of immunity on the condition, inter alia, that the damages would be such as "would be recoverable at common law." Section 202(a). The appellants contend that they have stated a cause of action which brings them within an exception to the rule of immunity created by Section 202(b)(3) of the Act which provides as follows:
Section 202. Exceptions to governmental immunity.
(b) Actions or activities which may impose liability. -- The following acts or activities by a political subdivision or any of its employees may result in the ...