Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Bettye Merritt and Hampton Merritt, Parents and natural Guardians of Bernita Merritt, a minor, and Bettye Merritt and Hampton Merritt, in their own right v. Board of Education of the School District of Philadelphia and Walter Scott, No. 2550 April Term, 1983.
Robert A. Rosin, for appellants.
Andrew M. Rosen, for appellees.
President Judge Crumlish Jr., Judge Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry. Dissenting Opinion by President Judge Crumlish, Jr.
[ 99 Pa. Commw. Page 179]
This is an appeal by Bettye and Hampton Merritt, parents and natural guardians of Bernita Merritt, a minor, and in their own right, from an order of the Philadelphia County Court of Common Pleas granting a motion for judgment on the pleadings filed by appellees, the Board of Education of the School District of Philadelphia and Walter Scott, the school principal. The order dismissed appellants' action in trespass on the ground that the complaint did not fall within any of the
[ 99 Pa. Commw. Page 180]
enumerated exceptions to 42 Pa. C.S. § 8542(b)(3).*fn1 Appellees' motion to strike a related criminal trial partial transcript under Pa. R.C.P. No. 1034 and Pa. R.A.P. 1926 was consolidated with the argument on the merits of the case.*fn2
On April 28, 1981, Bernita Merritt, a mentally retarded, minor student at West Philadelphia High School was raped in the school ladies room by Thomas Corbin, a trespasser who followed Miss Merritt to school that day, entered the building, and as she exited from the ladies room, dragged her back into the ladies room where he committed the rape. On December 11, 1981, he pled guilty to rape and corrupting the morals
[ 99 Pa. Commw. Page 181]
of a minor. He was sentenced to a term in prison. Appellants' complaint alleged that West Philadelphia High School officials knew of Mr. Corbin's presence in the neighborhood and had even made attempts to prevent him from entering into and loitering around the school prior to the rape. Hence, they contend, their failure to properly supervise the unlocked entranceways and school hallways constituted both negligence and willful misconduct and resulted in the rape and a series of accompanying psychological and physical problems of Miss Merritt.*fn3 Appellees' subsequent motion for judgment on the pleadings asserted that appellants' complaint failed to fit any of the statutorily enumerated exceptions to official immunity. This motion was granted on July 24, 1984, by the Philadelphia County Court of Common Pleas, the Honorable Alfred J. DiBona, Jr. On appeal, appellants claim that the entry of judgment on the pleadings was improper because their cause falls under both Section 8542(b)(3) and Section 8550 (relating to willful misconduct) of the Act. Specifically, appellants maintain that the school district and Mr. Scott's failure to prevent Mr. Corbin from entering the school and perpetrating the act was both negligence in the care, control or custody of the school ground and willful misconduct. In addition, appellant argues that a constitutional right to a remedy exists under Article I, Section 11 of the Pennsylvania Constitution.
A motion for judgment on the pleadings, like preliminary objections, is the equivalent of the old statutory demurrer. ...