Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Haywood Rice, a minor, by and through his parents and natural guardians, Leondra Rice and Martha Rice, and Leondra Rice and Martha Rice in their own right v. Philadelphia Electric Company and Alexander Giamalis and City of Philadelphia, No. 5960 February Term, 1984.
Kevin R. McNulty, with him, Joseph M. Donley, Kittredge, Kaufman & Donley, for appellants.
Ralph J. Luongo, Assistant City Solicitor, with him, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, and Barbara W. Mather, City Solicitor, for appellee, City of Philadelphia.
President Judge Crumlish, Jr., Judge Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge Blatt.
[ 100 Pa. Commw. Page 214]
Philadelphia Electric Company and Alexander Giamalis (PECO) appeal a Philadelphia County Common Pleas Court order sustaining preliminary objections of the City of Philadelphia (City), in the nature of a demurrer, and dismissing the third-party complaint of PECO and Giamalis. We reverse and remand.
Rice, a seventeen year old, sustained injuries when he was struck by a PECO vehicle driven by its employee, Giamalis. Rice had been playing in the spray of a City-owned fire hydrant directed toward a public street. The hydrant was opened without proper authorization.
In ruling upon preliminary objections in the nature of a demurrer, all well-pleaded facts and any inferences deducible therefrom must be accepted as true. Bahian v. Department of Public Welfare, 89 Pa. Commonwealth Ct. 644, 493 A.2d 803 (1985).
PECO and Giamalis contend that their complaint states a cause of action against the City because (1) it states a cause of action recoverable by common law and (2) comes within the utility service facilities exception to governmental immunity.*fn1 We agree.
[ 100 Pa. Commw. Page 215]
The complaint's averments state a cause of action at common law since they could sustain a jury finding that the dangerous condition of the hydrant and street created a reasonably foreseeable risk of injury of the type that Rice suffered.
Our review of this complaint reveals that it also states a claim within the utility services exception to governmental immunity.*fn2 We have recently held that this exception applies to "injuries or damages directly resulting from the negligent maintenance of the physical facilities and equipment within the municipality's control. . . ." Gall v. Allegheny County Health Department, 98 Pa. Commonwealth Ct. 175, 181, 510 A.2d 926, 929 (1986). The complaint avers that the City negligently failed to properly maintain the hydrant and that the City was on notice that the fire hydrant had been opened on prior occasions without prior ...