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MARLENE R. ACKER AND WESLEY THEODORE ACKER v. EARL SPANGLER (11/12/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 12, 1985.

MARLENE R. ACKER AND WESLEY THEODORE ACKER, HER HUSBAND
v.
EARL SPANGLER, ROCKWOOD AREA SCHOOL DISTRICT AND ROCKWOOD WRESTLING BOOSTERS' ASSOCIATION. MARLENE R. ACKER AND WESLEY THEODORE ACKER, HER HUSBAND, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Somerset County in the case of Marlene Acker and Wesley Theodore Acker v. Earl Spangler, Rockwood Area School District and Rockwood Wrestling Boosters' Association, No. 550 Civil, 1982.

COUNSEL

Joseph B. Policicchio, Ogle, Metz & Policicchio, for appellants.

Stephen R. Mlinac, Dickie, McCamey & Chilcote, P.C., for appellees.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 92 Pa. Commw. Page 617]

Marlene R. Acker and Wesley Theodore Acker (appellants) appeal from an order of the Somerset County Court of Common Pleas granting summary judgment for defendants Earl Spangler (Spangler) and Rockwood Area School District (School District). Appellants allege that they were attending a wrestling tournament at Rockwood High School, located in defendant School District. During an intermission, appellants allege Mrs. Acker was sitting on a table in a hallway of the school when defendant Spangler intentionally and willfully pulled the table out from under her, causing her to fall and suffer injuries. The lower court cited the Political Subdivision Tort Claims Act (Act), now embodied in the Judicial Code at 42 Pa. C.S. §§ 8501-8564,*fn1 as a bar to action against both defendants. Because the Act does not bar a cause of action against Spangler in his individual capacity for willful tortious conduct, the lower court must be partially reversed.

Appellants argue initially that the School District is liable under the Act exemption concerning the "care, custody, and control of real property," 42 Pa. C.S. § 8542(b)(3), because the incident occurred on school grounds. The alleged negligence of the School District amounts to a negligent failure of supervision rather than a failure to correct a dangerous condition of the table itself. This does not fall within the real property exception of the Act. Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273

[ 92 Pa. Commw. Page 618]

(1981). Accord, Mooney v. North Penn School District, 90 Pa. Commonwealth Ct. 7, 493 A.2d 795 (1985); Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620, 430 A.2d 710 (1981); Lewis v. Hatboro-Horsham School District, 77 Pa. Commonwealth Ct. 287, 465 A.2d 1090 (1983).

Plaintiffs argue secondly that a school district or locality can be liable for willful tortious conduct of its employees. The Act creates no such exception to the general rule of immunity. Morris v. Musser, 84 Pa. Commonwealth Ct. 170, 478 A.2d 937 (1984).

Plaintiffs' argument that defendant Spangler can be liable in his own capacity for his willful tortious conduct occurring outside of the scope of employment is meritorious in light of 42 Pa. C.S. § 8550. See Swartz v. Masloff, 62 Pa. Commonwealth Ct. 522, 437 A.2d 472 (1981); Lynch v. Johnston, 76 Pa. Commonwealth Ct. 8, 463 A.2d 87 (1983); Lynch v. Pierotti, 76 Pa. Commonwealth Ct. 15, 463 A.2d 92 (1983). The trial court erred legally in granting summary judgment for Spangler based on the Act, since appellants' allegations and deposed testimony raise a genuine issue of fact as to whether Spangler acted willfully beyond the scope of his employment. This is a question to be determined by the trier of fact and cannot, as a matter of law, be resolved against plaintiffs based on the record before the Court.*fn2

[ 92 Pa. Commw. Page 619]

The order is reversed and remanded as to defendant Spangler; affirmed as to defendant School District.

Order

And Now, this 12th day of November, 1985, the order of the Court of Common Pleas of Somerset County, No. 550 Civil Docket 1982, dated September 28, 1984, is reversed to the extent that it granted summary judgment for defendant Earl Spangler and is remanded for further proceedings consistent with this opinion. The order is otherwise affirmed.

Jurisdiction relinquished.

Disposition

Affirmed in part, reversed in part, and remanded.


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