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filed: October 4, 1985.


Appeal from the Order entered in the Court of Common Pleas of Cumberland County, Civil Division, No. 2535 Civil 1981.


Howard M. Newstadt, Harrisburg, for appellants.

Thomas J. Williams, Carlisle, for appellees.

McEwen, Tamilia and Hoffman, JJ. Hoffman, J., files a dissenting opinion.

Author: Tamilia

[ 346 Pa. Super. Page 281]

Appellants contend that the lower court erred in sustaining appellees' preliminary objections in the nature of a demurrer to counts IV and V of appellants' amended complaint and in dismissing the amended complaint as against appellees. We disagree and, accordingly, affirm the Order of the court below.

[ 346 Pa. Super. Page 282]

On September 10, 1981, appellants Bridget Casey and her daughter, Lisa, filed a complaint against defendant James Geiger alleging false imprisonment, assault and battery, and intentional infliction of emotional distress, and against appellees, Borough of Camp Hill and Andrew Janssen, Borough Manager, alleging negligence.*fn1 On September 23, appellees filed preliminary objections in the nature of a demurrer to counts IV and V, the negligence counts, of the complaint. Appellees claimed that appellants failed to state a cause of action against them in accordance with the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq. (formerly 53 P.S. § 5311.101 et seq.) [hereinafter cited as the "Act"]*fn2 The court below sustained the objections on November 2 and filed in support thereof a Memorandum Opinion on November 4, basing its decision on Chapman v. Page 282} City of Philadelphia, 290 Pa. Super 281, 434 A.2d 753 (1981). The court, however, granted appellants' leave to file an amended complaint, which they did on April 12, 1982. On April 16, appellees filed the same objections to the amended counts IV and V. The lower court sustained the objections, dismissed the amended complaint as against appellees, and filed an opinion in support thereof on June 18, again relying primarily upon Chapman. This appeal followed.

In considering preliminary objections in the nature of a demurrer, the following standard is applied:

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom . . . . Conclusions of law and unjustified inferences are not admitted by the pleading. Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained . . . .

Abarbanel v. Weber, 340 Pa. Super. 473, 479, 490 A.2d 877, 880 (1985) (citations omitted).

In their amended complaint, the appellants allege the following: (1) On June 19, 1979, appellant Lisa Casey, then ten years old, participated in swimming lessons sponsored by appellee Borough at Seibert Memorial Park, a recreational park facility owned and operated by the Borough for use solely by the residents of the Borough; (2) appellant Bridget Casey, Lisa's mother, paid an annual fee to appellee Borough for which consideration her children were entitled to use of the recreational facilities in the Park; (3) at about 10:40 on the morning of June 19, 1979, appellant, Lisa Casey, after completing her swimming lesson, proceeded to walk through the Park; (4) at about 10:45 a.m. defendant Geiger engaged appellant Lisa Casey in conversation, then

[ 346 Pa. Super. Page 283]

    forcibly picked up and carried her into the bushes and overgrown underbrush in the Park whereupon he proceeded to rape and assault her; (5) at the time of the above-described incidents, appellant Lisa Casey was an invitee of appellee Borough; (6) appellees owed appellant Lisa Casey, as an invitee, a duty of reasonable care for her protection and even a greater duty of care than that owed an adult invitee because appellant was a minor; (7) appellees failed to exercise reasonable care and were negligent (a) in failing to provide adequate protection in the form of police or security personnel to protect her as an invitee against the criminal acts of third persons, (b) by permitting underbrush in the Park to become overgrown thus facilitating such criminal acts, (c) by allowing a nonresident, defendant Geiger, to gain entrance into the Park and remain there without being questioned as to his purpose for being there, and (d) by reason of the fact that appellees knew or should have known that the type of criminal act committed against appellant was likely, as a rape of a young girl had occurred in the Park only months before the attack on appellant; and (8) by permitting her daughter to attend the swimming lessons, appellant justifiably relied upon appellees to reasonably provide for her daughter's safety. Accepting the above facts as true, we find that appellants have failed to state a claim upon which relief may be granted.

We begin our analysis by noting that 42 Pa.C.S.A. § 8541 provides:

§ 8541. Governmental immunity generally

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.*fn3

[ 346 Pa. Super. Page 284]

The Political Subdivision Tort Claims Act was a legislative response to the proliferation of liability claims against governmental units following Ayala v. Philadelphia Board of Page 284} Public Education, 453 Pa. 584, 305 A.2d 877 (1973), which abrogated the common law doctrine of governmental immunity. See generally Comment, The Political Subdivision Tort Claims Act: Pennsylvania's Response to the Problems of Municipal Tort Liability, 84 Dick L.Rev. 717 (1980). While the Act generally provides for immunity, 42 Pa.C.S.A. § 8542 sets forth several conditions which, if fulfilled, will impose liability on a local agency.*fn4 Specifically, section 8542 provides:

§ 8542. Exceptions to governmental immunity

(a) Liability imposed. -- A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and

(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts" shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

(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:

[ 346 Pa. Super. Page 285]

. . . .

(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 trespassing on real property in the possession of the local agency. As used in this paragraph, "real property" shall not include:

(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems:

(ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way;

(iii) streets; or

(iv) sidewalks.*fn5

In construing the above section, one must keep in mind that it is an exception to the general rule of governmental immunity that is stated in section 8541. Therefore, a proper application of the rules of statutory construction dictates a strict and narrow interpretation of the eight categories of liability enumerated in section 8542(b). 1 Pa.C.S.A. § 1924 (Purdon Supp. 1984-85). See Borenstein v. City of Philadelphia, 595 F.Supp. 853 (Ed.Pa. 1984) (waivers of immunity are to be narrowly construed). Moreover, a narrow reading of the eight categories of liability is also mandated upon consideration of the legislative intent to insultate political subdivisions from tort liability, as expressed in the preamble of the Act. 1 Pa.C.S.A. § 1921 (Purdon Supp. 1984-85).

Appellants contend that section 8542(b)(3) strips from appellees the cloak of immunity afforded them under section 8541 since the acts of appellees fall within "[t]he care,

[ 346 Pa. Super. Page 286]

    custody, or control of real property" exception. We disagree and refer to the instructive case of Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Commw. 604, 464 A.2d 684 (1983), wherein the distinguished Commonwealth Court Judge Joseph P. Doyle stated:

We have held that Section 8542(b)(3) does not waive immunity as to any unfortunate incident solely because it occurs on government-owned premises. Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620, 430 A.2d 710 (1981). We believe the Section must be read as a narrow exception to a general legislative grant of immunity and we construe it to impose liability only for negligence which makes government-owned property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used. Violent criminal acts such as occurred here are not a reasonably foreseeable use of school property such that the exception will be applied.

Id. at 606, 464 A.2d at 686 (footnotes omitted).

Further expounding on this rationale, the Vann Court noted:

[ 346 Pa. Super. Page 287]

We point out in addition that while it is the clear intent of Section 8542 of the Judicial Code to waive governmental immunity and impose liability for negligence in the control and maintenance of public property, we do not read the statute to impose a standard of liability in cases involving this exception to immunity greater than that to which private landowners are held. While a school district may be held liable for negligence in maintenance and control of property when injury results to a public invitee, see Bersani v. School District of Philadelphia, 310 Pa. Superior Ct. 1, 456 A.2d 151 (1983), the School District here owed no duty to Javelle Vann or to the public at large to prevent the use of its property for criminal attacks such as occurred in this case. Surely, had the attack on Javelle Vann occurred on private property, the private landowner would not be held liable for failure to secure his property from such use, or for failure to Page 287} illuminate the unlighted areas on his property. The School District as landowner, therefore, cannot be held liable here.

Id. at 608 n. 5, 464 A.2d at 686 n. 5 (emphasis added).

The above language of the Vann decision has been strengthened by the recent case of Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). In Feld, our Supreme Court held that a private landlord is not liable to a tenant for the criminal acts of unknown third persons absent a pre-existing duty, such as where the landlord either gratuitously or for compensation assumes a duty, and then negligently performs it. In reaching this conclusion, the Feld Court stated:

The threshold question is whether a landlord has any duty to protect acts of third persons, and if so, under what circumstances. Well settled law holds landlords to a duty to protect tenants from injury arising out of their negligent failure to maintain their premises in a safe condition. See Smith v. M.P.W. Realty Co. Inc., 423 Pa. 536, 225 A.2d 227 (1967). Lopez v. Gukenback, 391 Pa. 359, 137 A.2d 771 (1958). That rule of law is addressed to their failure of reasonable care, a failure of care caused by their own negligence, a condition, the cause of which was either known or knowable by reasonable precaution. The criminal acts of a third person belong to a different category and can bear no analogy to the unfixed radiator, unlighted steps, falling ceiling, or the other myriad possibilities of one's personal negligence. To render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances.

The criminal can be expected anywhere, any time, and has been a risk of life for a long time. He can be expected in the village, monastery and the castle keep.

Id., 506 Pa. at 390-91, 485 A.2d at 745-46 (emphasis added).

Justice Zappala's Concurring Opinion in Feld v. Merriam adds:

[ 346 Pa. Super. Page 288]

As noted in the Opinion of the Court, the weakness of Appellees' argument is demonstrated by their failure to recognize a crucial distinction between the risks of injury from a condition of the property and from criminal acts of a third person. In failing to maintain the condition of the common areas of the leased premises, the landlord's conduct, has created the risk of injury to a tenant. It is the responsibility of the landlord to abate the risk which his conduct has created. Liability may then be imposed upon a landlord where injury results because of his conduct or failure to remove the risk of harm created by his conduct. The risk of injury from criminal acts arises not from the conduct of the landlord, but from the conduct of a third person.

Id., 506 Pa. at 402, 485 A.2d at 751 (Zappala, J., Concurring) (footnote ommitted).

In Cooper v. City of Pittsburgh, 390 Pa. 534, 136 A.2d 463 (1957), our Supreme Court, in reversing a judgment against the city, noted that while a city must exercise reasonable care in maintaining its parks, playgrounds, etc., it is not an insurer of the safety of children playing on its public playgrounds. The Cooper Court stated that a municipality need only "supervise children to the same degree that a reasonably prudent parent would do under the circumstances -- in this case supervising children over a 25 acre playground." Id., ...

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