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BRIAN WALSH v. CAMELOT BRISTOL COMPANY (11/13/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 13, 1986.

BRIAN WALSH, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, EDMUND M. WALSH AND MARION R. WALSH, AND IN THEIR OWN RIGHT EDMUND M. WALSH AND MARION R. WALSH
v.
CAMELOT BRISTOL COMPANY, INC., AND VIRGO CORPORATION ET AL. CAMELOT BRISTOL COMPANY, INC., AND VIRGO CORPORATION, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Brian Walsh, a minor, by his parents and natural guardians, Edmund M. Walsh and Marion R. Walsh, and Edmund M. Walsh and Marion R. Walsh, in their own right v. Camelot Bristol Co., Inc., Virgo Corporation, James Mulholland, Edgely Fire Company No. 1, Daniel Bogan and Levittown Fire Company No. 2, No. 82-2057-06-2.

COUNSEL

Robert B. Goss, LaBrum and Doak, for appellants.

Eugene D. McGurk, Jr., with him, John J. McCarty, Raynes, McCarty, Binder, Ross & Mundy, for appellees, Brian Walsh, Edmund M. Walsh and Marion R. Walsh.

Medford J. Brown, III, with him, Richard K. Masterson, Masterson, Braunfeld, Himsworth & Maguire, for appellees, James Mulholland and Edgely Fire Company No. 1.

Brian L. Lincicome, with him, James J. Donohue, White and Williams, for appellee, Levittown Fire Company No. 2.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Rogers, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 102 Pa. Commw. Page 78]

Camelot Bristol Company, Inc. (Camelot), and Virgo Corporation (Virgo) appeal a Bucks County Common Pleas Court order granting the Edgely No. 1 and Levittown No. 2 Volunteer Fire Companies' motions for summary judgment. We affirm.

Brian Walsh, a junior fireman member*fn1 of Levittown No. 2, sustained personal injuries while firefighting. Walsh alleges that the volunteer fire companies were negligent through their respective officers' conduct in ordering Walsh to enter and remain inside the burning building without proper safety equipment. Camelot, the building owner, and Virgo, the building maintenance supervisor, are co-defendants and filed cross claims against the volunteer fire companies.*fn2

[ 102 Pa. Commw. Page 79]

A trial court may grant summary judgment when, upon viewing the record most favorably to the non-moving party, it concludes that there is no issue of material fact and that the movant is entitled to judgment as a matter of law. Nordmann v. Commonwealth, 79 Pa. Commonwealth Ct. 187, 468 A.2d 1173 (1983).

The common pleas court granted summary judgment because it found that the volunteer fire companies were local agencies entitled to governmental immunity under 42 Pa. C.S. § 8541. Camelot and Virgo contend that this conclusion was erroneous. Alternatively, they contend that the activities of the volunteer fire companies are within the scope of the "real property" exception to governmental immunity. 42 Pa. C.S. § 8542(b)(3). We disagree with both contentions.

In Wilson v. Dravosburg Volunteer Fire Department No. 1, 101 Pa. Commonwealth Ct. 284, 516 A.2d 100 (1986), we recently held that volunteer fire companies are local agencies as defined in the 1980 Immunity Act*fn3 and entitled to the grant of governmental immunity contained therein.

Section 8542(b)(3)*fn4 provides that liability may be imposed if the acts of the local agency or its employees involve "[t]he care, custody or control of real property in the possession of the local agency."*fn5 A volunteer fire company's temporary occupancy of a privately owned building for the limited purpose of extinguishing a fire does not constitute "possession" of that property for the purposes of Section 8542(b)(3). We conclude that Section 8542(b)(3) is inapplicable.

[ 102 Pa. Commw. Page 80]

We therefore hold that the common pleas court properly granted the motions for summary judgment.

Affirmed.

Order

The Bucks County Common Pleas Court order, No. 80-12365 dated April 4, 1985, is affirmed.

Disposition

Affirmed.


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