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GEORGE ZICCARDI AND JOHN J. ZICCARDI AND ANNA ZICCARDI v. SCHOOL DISTRICT PHILADELPHIA (09/12/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 12, 1985.

GEORGE ZICCARDI AND JOHN J. ZICCARDI AND ANNA ZICCARDI, H/W, APPELLANTS
v.
SCHOOL DISTRICT OF PHILADELPHIA, CITY OF PHILADELPHIA AND CLARENCE EVERETT, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of George Ziccardi and John J. Ziccardi and Anna Ziccardi, h/w v. School District of Philadelphia, City of Philadelphia and Clarence Everett, No. 2530 August Term, 1982.

COUNSEL

Lawrence W. Richman, for appellants.

Andrew M. Rosen, Assistant Counsel, with him, Eugene F. Brazil, General Counsel, for appellee, School District of Philadelphia.

Barbara R. Axelrod, Deputy City Solicitor, with her, Mark A. Aronchick, Acting City Solicitor, Gabriel L. I. Bevilacqua, Chairman of Litigation, Gilda Kramer and Sandra Mazer Moss, for appellee, City of Philadelphia and Clarence Everett.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 91 Pa. Commw. Page 596]

This appeal follows an order of the Court of Common Pleas of Philadelphia County which sustained preliminary objections filed by the City of Philadelphia (City) and the School District of Philadelphia (School District) and dismissed, with prejudice, the complaint filed by plaintiffs, appellants herein.*fn1

On October 17, 1980, George Ziccardi, a student at Bok Vocational High School, a public school in Philadelphia, was attacked on the sidewalk immediately adjacent to the school by persons other than the defendant and then was shot by defendant, Clarence Everett, while on the steps leading into and from the school building. He suffered serious and permanent personal injuries and his parents sustained extensive financial expenses and losses due to his injuries. He filed a complaint against the City and School District to which they filed preliminary objections in the nature of a demurrer asserting, essentially, immunity from suit under Section 8542 of the Judicial Code, 42 Pa. C.S. ยง 8542. On October 26, 1982, the trial court sustained the preliminary objections holding that the appellants' claims did not fall within the eight exceptions to immunity set forth in this section.

[ 91 Pa. Commw. Page 597]

Initially, appellants argue that the City's and School District's preliminary objections should not have been sustained because immunity from this suit under Section 8541 should properly have been raised as an affirmative defense in new matter and should not have been raised by means of preliminary objections.

In numerous cases we have addressed the question of whether the defense of immunity from suit raised by preliminary objection should be stricken. Swartz v. Masloff, 62 Pa. Commonwealth Ct. 522, 437 A.2d 472 (1981); Iudicello v. Department of Transportation, 34 Pa. Commonwealth Ct. 361, 383 A.2d 1294 (1978); Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commonwealth Ct. 313, 379 A.2d 330 (1977); Harris v. Rundle, 27 Pa. Commonwealth Ct. 445, 366 A.2d 970 (1976); Schuman's Village Square Drugs, Inc. v. Stern, 14 Pa. Commonwealth Ct. 559, 322 A.2d 431 (1974). In each case we held that preliminary objections are a proper vehicle for raising immunity where the defense is apparent on the face of the pleading under attack. A review of the preliminary objections filed by the City and School District reveals that, in each case, the defense of immunity from suit is apparent on the face of the pleadings.*fn2

Appellants next contend that they have stated a legal cause of action against both the City and the School District under Section 8542(b)(3) and (7).*fn3 We disagree with this argument.

[ 91 Pa. Commw. Page 598]

We believe that the School District is immune from liability under Section 8542. On several occasions, we have held that the alleged negligent conduct on the part of a school district was not directly related to the care, custody or control of real property. Usher v. Upper St. Clair School District, 87 Pa. Commonwealth Ct. 461, 487 A.2d 1022 (1985); Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983); Close v. Voorhees, 67 Pa. Commonwealth Ct. 205, 446 A.2d 728 (1982); Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273 (1981); Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620,

[ 91 Pa. Commw. Page 599430]

A.2d 710 (1981). Section 8542(b)(3) has been construed to impose liability where there is an allegation of a flaw in the real estate. Usher. Appellants have failed to allege a defect in the real estate and, therefore, absent this allegation, the School District cannot be held responsible under Section 8542(b)(3).*fn4

For the same reason, we do not believe the School District can be held liable under Section 8542(b)(7) since the appellants have failed to allege a physical defect in the sidewalk. The property is not a cause of injuries sustained.

We, furthermore, cannot assess liability against the City. Again, appellants have not alleged a physical defect in the real property necessary under Section 8542(b)(3) and, moreover, had such an allegation been proved, the City would not be liable since this property was in possession of the School District and not it. The sidewalk exception under Section 8542(b)(7) also does not apply because appellants did not allege any physical defect directly related to the sidewalk. Essentially, they have alleged a general failure to prevent criminal misconduct. In Chapman v. City of Philadelphia, 290 Pa. Superior Ct. 281, 434 A.2d 753 (1981), the court held that, absent a special relationship between the City of Philadelphia and an individual, the City of Philadelphia could not be held liable at common law for an alleged failure to protect the public from criminal acts by third parties. No special

[ 91 Pa. Commw. Page 600]

    relationship existed here and thus the City cannot be held responsible.

Finally, Section 8542(a)(1) permits the imposition of liability against a local agency if damages would be recoverable under common law. We do not believe that appellants had a cause of action under the common law which would impose liability against either the School District or the City.

For the reasons set forth above, we affirm the order of the trial court.

Order

Now, September 12, 1985, the order of the Court of Common Pleas of Philadelphia County, entered October 26, 1982, at No. 2530 of the August Term, 1982, is affirmed.

Disposition

Affirmed.


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