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KENNETH CESTARI v. SCHOOL DISTRICT CHELTENHAM TOWNSHIP (01/20/87)

decided: January 20, 1987.

KENNETH CESTARI, APPELLANT
v.
SCHOOL DISTRICT OF CHELTENHAM TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Kenneth Cestari v. School District of Cheltenham Township, No. 83-06362.

COUNSEL

Francis X. Kelly, with him, Faustino Mattioni, Mattioni, Mattioni & Mattioni, Ltd., for appellant.

Joanne S. Faul, with her, James W. Hennessey, Sherr, Moses & Zuckerman, P.C., for appellee.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 103 Pa. Commw. Page 275]

Student Kenneth Cestari appeals from an order of the Court of Common Pleas of Montgomery County granting summary judgment for the School District of Cheltenham Township on the ground of governmental immunity, as codified in 42 Pa. C.S. ยงยง 8541-8542. We reverse and remand.

While competing in a track meeting at Cheltenham High School on April 28, 1981, the student, a pole vaulter, sustained injuries when he failed to clear the pole and landed with one foot on and one foot off the landing mat.

On April 26, 1983, the student filed a suit against the school district alleging that the district was negligent because, among other things, it had failed to conform to applicable guidelines relative to the placement and number of mats and cushions in and about the pole vault pit, and that it had failed to use, install and maintain the pole vault pit properly.

The governing principle is that the trial court may grant a motion for summary judgment only in cases where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law." Pa. R.C.P. No. 1035(b).

The trial court must determine whether a genuine dispute as to a material fact exists after an examination of the record in a light most favorable to the non-moving party. McCloskey v. Abington School District, 101 Pa. Commonwealth Ct. 110, 515 A.2d 642 (1986).

The student contends that the facts averred in his complaint come within the real property exception to

[ 103 Pa. Commw. Page 276]

    governmental immunity,*fn1 section 8542(b)(3) of the Judicial Code, because (1) the pole vault unit which held the standards was affixed to the district's property, thus becoming realty, and (2) the district was negligent in ...


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