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

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 ...


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