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KATHLEEN BRYSON v. MARTIN SOLOMON ET AL. (05/30/86)

decided: May 30, 1986.

KATHLEEN BRYSON, ADMINISTRATRIX OF THE ESTATE OF TIMOTHY BRYSON, DECEASED, APPELLANT
v.
MARTIN SOLOMON ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Kathleen Bryson, Administratrix of the Estate of Timothy Bryson, Deceased v. Martin Solomon and Southeastern Pennsylvania Transportation Authority and Board of Education of the School District of Philadelphia and City of Philadelphia, No. 4209 March Term, 1985.

COUNSEL

Kevin P. Kelly, with him, James P. Cousounis, Pechner, Dorfman, Wolffe, Rounick & Cabot, for appellant.

Andrew M. Rosen, with him, Martin Horowitz, for appellee, School District of Philadelphia.

Norman G. Prajzner, Chief Assistant City Solicitor, with him, Armando A. Pandola, Jr., Chief Deputy in Charge of Claims, and Barbara W. Mather, City Solicitor, for appellee, City of Philadelphia.

Judges Barry and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 97 Pa. Commw. Page 532]

On June 19, 1984, Timothy Bryson, a minor, was fatally injured by an automobile as he attempted to cross the intersection of State Road and Arendell Avenue in Philadelphia. Having just stepped from a bus operated by Southeastern Pennsylvania Transportation Authority (SEPTA), Timothy was crossing the intersection in order to board a school bus operated by SEPTA, pursuant to a contract with the Board of Education of the School District of Philadelphia (Board). Kathleen Bryson (appellant), as Administratrix of the Estate of the decedent, filed a Complaint for Wrongful Death and Survival in the Court of Common Pleas of Philadelphia County against Martin Solomon (the driver of the automobile), SEPTA, City of Philadelphia (City), and the Board. Both the City and the Board raised Preliminary Objections in the nature of a Demurrer to the Complaint, averring immunity to suit under the provisions of Section 8541 of the Judicial Code (Code), 42 Pa. C.S. § 8541. The Court of Common Pleas sustained the preliminary objections, and dismissed appellant's Complaint as to the City and the Board.*fn1 Appellant has appealed the dismissal to this Court.

The sole issue before this Court is whether the City and the Board are immune from suit under the Code. In ruling on a demurrer, all well-pled allegations in the Complaint and all inferences reasonably deduced therefrom, must be accepted as true. Judge v. Allentown and Sacred Heart Hospital, 90 Pa. Commonwealth Ct. 520, 496 A.2d 92 (1985). Our scope of review is limited to whether it appears with certainty that the law permits no recovery if the facts are as pled. Id.

[ 97 Pa. Commw. Page 533]

Section 8541 of the Code, 42 Pa. C.S. § 8541, provides: "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." A local agency is: "A government unit other than the Commonwealth government. The term includes an intermediate unit." Section 8501 of the Code, 42 Pa. C.S. § 8501. Both the City and the Board are local agencies. See Knudsen v. Delaware County Regional Water Quality Authority, 84 Pa. Commonwealth Ct. 36, 478 A.2d 533 (1984). Therefore, both the City and the Board are immune from suit unless one of the exceptions to immunity provided by Section 8542 of the Code, 42 Pa. C.S. § 8542, is applicable.

Section 8542 of the Code provides, in pertinent part:

(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 ...


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