Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Nancy Frank, in her own right and as Administratrix of the Estate of Ronald A. Frank, Deceased v. SEPTA & City of Philadelphia, No. 3474 August Term, 1984.
Sol H. Weiss, with him, Gail P. Roth, Anapol, Schwartz, Weiss & Schwartz, for appellant.
Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, Barbara W. Mather, City Solicitor, and Armando A. Pandola, Jr., Chief Deputy in Charge of Claims, for appellees.
President Judge Crumlish, Jr., Judge Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 96 Pa. Commw. Page 222]
Nancy Frank (appellant) appeals here an order of the Court of Common Pleas of Philadelphia County which sustained preliminary objections in the nature of a demurrer raised by the City of Philadelphia (City) to a complaint the appellant filed against the City on behalf of herself and Ronald Frank (decedent).
The complaint alleges in pertinent part that the Southeastern Pennsylvania Transportation Authority (SEPTA) and the City owned, operated, maintained and controlled the Market-Frankford Elevated train system
[ 96 Pa. Commw. Page 223]
(El), as well as the property located adjacent to each station along the El, at all times relevant to the complaint. It further alleges that, prior to and including the date in question, SEPTA had eliminated cashiers and security guards at the Somerset station after 11:00 P.M., after which time fares would be collected on the train itself; that the station platform had a roof purported to be in a hazardous condition because it extended over the train tracks, thus providing access to the top of trains; and that SEPTA had previously engaged private police to deter persons from gaining access to the tops of the trains by way of this platform roof. After 11:00 P.M. on the date in question, the decedent allegedly proceeded to the Somerset platform, climbed on top of the roof, jumped therefrom onto a southbound train which had arrived at the station, and subsequently died while riding on top of the train when he struck a bridge trestle. The appellant alleged that the City was negligent, inter alia, in failing to warn of the risk of climbing on top of the train and in failing to use barriers to prevent minors from gaining access to the roof and thence onto the train.
The trial court determined that the appellant's action was precluded pursuant to the terms of Section 8541 of the Judicial Code, 42 Pa. C.S. § 8541, which grants immunity to local agencies*fn1 from damages on account of any injury to a person caused by the action of the agency, any of its employees, or any other person. The trial court specifically rejected the appellant's assertion that the action fell within one of the eight enumerated exceptions to the grant of immunity listed in Section 8542 of the Judicial Code, 42 Pa. C.S. § 8542.
[ 96 Pa. Commw. Page 224]
The appellant contends here that the facts alleged place this action within the "real property exception" established by Section 8542(b)(3) of the Judicial Code, which pertinently provides:
(b) Acts which may impose liability. -- The following acts by a local agency or any of its employees may result in the ...