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ANTHONY FAIELLA v. EDWARD BARTOLES AND BOROUGH ALIQUIPPA AND BEAVER COUNTY HOUSING AUTHORITY AND WOODLAWN CEMETARY (11/17/86)

decided: November 17, 1986.

ANTHONY FAIELLA, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, LINDA FAIELLA AND EUGENE FAIELLA AND LINDA FAIELLA AND EUGENE B. FAIELLA IN THEIR OWN RIGHT, APPELLANTS
v.
EDWARD BARTOLES AND THE BOROUGH OF ALIQUIPPA AND BEAVER COUNTY HOUSING AUTHORITY AND WOODLAWN CEMETARY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Beaver County in the case of Anthony Faiella, a minor, by his parents and natural guardians, Linda Faiella and Eugene Faiella, and Linda Faiella and Eugene B. Faiella in their own right v. Edward Bartoles and The Borough of Aliquippa v. Beaver County Housing Authority and Woodlawn Cemetery, No. 910 of 1983.

COUNSEL

Kevin A. Norris, with him, Richard J. Schubert, Litman, Litman, Harris, Brown and Watzman, P.A., for appellants.

Peter J. Taylor, Arthur J. Murphy, Jr. & Associates, P.C., for appellees.

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

Author: Doyle

[ 102 Pa. Commw. Page 259]

This is an appeal from an order of the Court of Common Pleas of Beaver County which granted judgment

[ 102 Pa. Commw. Page 260]

    on the pleadings to the Borough of Aliquippa (Borough), and barred the recovery of Anthony Faiella (Appellant), a minor, who was allegedly injured on Borough property. The trial court found the Borough immune under Section 8541 of the Judicial Code (Code), 42 Pa. C.S. ยง 8541. We affirm.

Since a motion for judgment on the pleadings is essentially in the nature of a demurrer, all well-pleaded averments of the non-moving party are deemed to be true by the moving party, even though earlier denied. Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620, 430 A.2d 710 (1981). The Temple Hollow Woods (Woods) in Aliquippa are owned by the Borough.*fn1 Prior to and on June 12, 1982, this area was used by members of the public for target shooting and other recreational-type activities involving firearms, and the Borough had not attempted in any way to stop people from discharging firearms on the property, to warn users of the property that the use of firearms was allowed, or to supervise the use of firearms on the property. On the afternoon of June 12, 1982, Anthony Faiella was walking through the Woods. At the same time, defendant Edward Bartoles was target shooting in the Woods with his .44 magnum pistol. Due to the negligence of defendant Bartoles, Appellant was struck in the head by a bullet fired from Mr. Bartoles' gun and severely injured.*fn2

[ 102 Pa. Commw. Page 261]

Appellant filed suit alleging that the Borough was negligent in, inter alia, failing to prohibit people from discharging firearms on the property, failing to warn Appellant the the use of firearms was permitted on the property, or failing to supervise properly the use of firearms on the property. The Borough moved for judgment on the pleadings, and the trial court granted the motion on the basis that Appellant failed to show that his cause of action comes within the "real property" exception to governmental immunity.*fn3

Section 8541 of the Code*fn4 provides that "[e]xcept 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." The Borough clearly is a local agency entitled to immunity. This immunity may be overcome, however, if Appellant shows that he possesses a common law cause of action against the Borough as required by Section 8542(a) of the Code*fn5 and that his cause of action falls within one of the eight enumerated exceptions to immunity contained in Section 8542(b) of the Code.*fn6

Appellant asserts that his cause of action falls within the "real property" exception to the Code. This ...


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