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BARBARA GILBERT v. SCHOOL DISTRICT PHILADELPHIA AND CITY PHILADELPHIA (06/20/86)

decided: June 20, 1986.

BARBARA GILBERT, ADMX. OF THE ESTATE OF TIMOTHY SHERON GILBERT, DEC., APPELLANT
v.
SCHOOL DISTRICT OF PHILADELPHIA AND THE CITY OF PHILADELPHIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Barbara Gilbert, Admx. of the Estate of Timothy Sheron Gilbert, Dec. v. School District of Philadelphia and The City of Philadelphia, No. 116 January Term, 1984.

COUNSEL

Arnold P. Minicozzi, for appellant.

Andrew M. Rosen, for appellees.

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

Author: Barry

[ 98 Pa. Commw. Page 283]

This appeal results from an order of the Philadelphia County Court of Common Pleas which granted a motion for judgment on the pleadings filed by the defendant/appellee School District of Philadelphia (School District), and which denied the plaintiff/appellant's motion for amendment of the pleadings.

The appellant, Barbara Gilbert (appellant), filed a complaint in trespass for the wrongful death of her son, Timothy Gilbert, naming in the caption as defendants the School District and the City of Philadelphia. According to the complaint, the deceased was a student at Simon Gratz High School in Philadelphia and sustained a fatal knife wound in a hallway of the school on January 5, 1982. The complaint further alleges that "[s]aid decedent, thereafter[,] was caused to sustain an aggravation of said injury inflicted by the Defendants, their agents, servants, workmen and/or employees who acted in a negligent, reckless manner and such action constituted a crime, actual malice and willful misconduct." By way of such conduct, the complaint alleges, the defendants "negligently, recklessly and wantonly caused the [deceased] to sustain serious bodily injury thereby resulting

[ 98 Pa. Commw. Page 284]

    in death."*fn1 In its Answer and New Matter the School District denied that any of its agents committed any such acts within the scope of their employment, and asserted the defense of immunity under the applicable provisions of the Judicial Code, Act of October 5, 1980, P.L. 693, 42 Pa. C.S. §§ 8541-8564, formerly Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, as amended, 53 P.S. §§ 5311.101-5311.803, repealed by the Act of October 5, 1980, P.L. 693.

The trial court thereafter granted the School District's motion for judgment on the pleadings. At the same time, the court denied the appellant's motion to amend the pleadings; that motion averred that "[t]hrough inadvertence, . . . counsel for plaintiff failed to include the specific names of the agents and . . . employees of the Defendants," and requested permission to do so, providing the names of the allegedly involved employees. The trial court based its granting of the former motion on the grounds that the averred facts did not fall within the ambit of any of the Act's immunity exceptions. The denial of the appellant's motion, meanwhile, was based on the statute of limitation for wrongful death,*fn2 which had expired "as against the parties the plaintiff wants to join."*fn3 Appellant appeals both portions of the trial court's order.

[ 98 Pa. Commw. Page 2851]

. Motion for Judgment on the Pleadings

We first address the trial court's grant of the School District's motion for judgment on the pleadings.*fn4 Accepting as true all well-pleaded averments of fact of the appellant,*fn5 "[w]e will affirm the grant of such a motion only when the moving party's right to succeed is certain." West Penn Administration, Inc. v. Union National Bank of Pittsburgh, 289 Pa. Superior Ct. 460, 468, 433 A.2d 896, 900 (1981). See also Eagle Downs Racing Association, Inc. v. State Harness Racing Commission, 73 Pa. Commonwealth Ct. 155, 157 n.3, 457 A.2d 1008, 1009 n.3 (1983) ("moving party's right to prevail must be so clear that the trial would be a fruitless exercise."). As we agree with ...


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