decided: January 22, 1987.
DANIEL RHOADS AND MARY RHOADS, APPELLANTS
LANCASTER PARKING AUTHORITY AND CITY OF LANCASTER, APPELLEES
Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of Daniel Rhoads and Mary Rhoads v. Parking Authority of the City of Lancaster, No. 2 June Term, 1982.
William P. Murphy, with him, James E. Beasley and Scott A. Bennett, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, for appellants.
Allan C. Molotsky, with him, Albert J. Schell, Jr., Post & Schell, P.C., for appellees.
Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
[ 103 Pa. Commw. Page 304]
This is an appeal by Daniel Rhoads and Mary Rhoads from two orders of the Court of Common Pleas of Lancaster County granting summary judgment to Appellees, Lancaster Parking Authority and the City of Lancaster. We affirm.
In late 1966 and early 1967, the Lancaster Parking Authority (Authority) was organized pursuant to the Parking Authority Law.*fn1 The Authority owns the Prince Street Parking Garage in Lancaster, Pennsylvania, which it leases to the City of Lancaster (City) and in turn, staffs and operates the garage pursuant to a management contract with the City. It is alleged that on September 11, 1981 at around 2:30 in the afternoon, three shabbily dressed, intoxicated men walked up the driving ramp into the parking garage. They were noticed
[ 103 Pa. Commw. Page 305]
by James Bandy, one of the garage attendants. He yelled at them not to walk up the automobile ramp. The men responded with obscenities and continued on their way. Mr. Bandy informed James Painter, the garage manager, of the presence of the three men. Mr. Painter looked up the ramp for the men, saw nothing, and returned to the ticket booth at the garage's exit.
Shortly, thereafter, between 2:40 p.m. and 2:42 p.m., Mr. Rhoads drove his vehicle into the parking garage, received his parking ticket and proceeded to the fifth level of the garage. At about this time, a patron of the garage reported to Mr. Bandy and Mr. Painter that three men were on the fifth level of the garage causing a disturbance. As Mr. Rhoads parked his car, he was accosted by the three men who forced Mr. Rhoads into the back seat of his vehicle. Two of the assailants held him down, while the third occupied the driver's seat. Meanwhile, Mr. Painter proceeded by elevator to the fifth level to investigate the disturbance. He found nothing because the assailants were driving the Rhoads' car out of the garage.
While leaving the garage in Mr. Rhoads' automobile, the assailants hit a concrete barrier. They handed Mr. Rhoads' parking ticket to Mr. Bandy. At this time, Mr. Bandy noticed two people in the back of the Rhoads' vehicle wrestling and "carrying on." Mr. Rhoads' vehicle left the garage at 2:46, four minutes after it had entered. At no time did Mr. Bandy hit the "panic button" located in his ticket booth to summon the police. Subsequently, Mr. Rhoads was blindfolded, bound, and then repeatedly beaten and stabbed by the three assailants. Mr. Rhoads was eventually thrown down a 50-foot embankment and left for dead. His vehicle was later found in the Richmond, Virginia area. In the three years prior to the Rhoads incident, there had been some petty vandalism and car burglaries in the garage but no assaults or any other violent crimes on the premises.
[ 103 Pa. Commw. Page 306]
Appellants filed their complaint on June 1, 1982, alleging that the City and the Authority jointly or severally owned, possessed, maintained or controlled the Prince Street Garage; that Mr. Rhoads was a business invitee of the Appellees; that Appellees had notice of criminal activity in the garage and this assault in particular; and that Appellees negligently failed to provide adequate security for its patrons on its premises.
After extensive discovery, the trial court granted summary judgment on September 13, 1984 in favor of the City, on the ground that it had governmental immunity, and could not be sued under the "real property" exception of Section 8542(b)(3) of the Judicial Code (Code)*fn2 because it had relinquished the care, custody and control of the garage to the Authority. On September 24, 1984, the trial court granted summary judgment in favor of the Authority on the grounds that it was a local agency and the criminal assault upon Daniel Rhoads by third parties on the Authority's premises also did not fall within the "real property" exception to governmental immunity.
Appellants appealed both orders to the Superior Court of Pennsylvania, which transferred the cases to this Court. Appellants present three issues for our consideration on appeal: (1) whether the Authority is a local agency under Section 8541 of the Code*fn3 and therefore entitled to immunity, (2) whether the proprietary function exception to common law governmental immunity survived the statutory enactment of governmental immunity;*fn4 and (3) whether Appellants' action falls within the "real property" exception to governmental immunity.
[ 103 Pa. Commw. Page 307]
This conclusion is in accord with E-Z Parks, Inc. v. Larson, 91 Pa. Commonwealth Ct. 600, 498 A.2d 1364 (1985), aff'd per curiam, 509 Pa. 496, 503 A.2d 931 (1986), where the issue was the alleged tortious interference with a lease, and wherein we stated that parking authorities are local agencies for the purposes of Section 8541 of the Code. In E-Z Parks, we wrote that parking authorities, which are public bodies, corporate and politic that exercise public power as an agent of the Commonwealth, clearly meet the definition of a local agency in Section 8501. Id. at 609, 498 A.2d at 1369.
Appellants strongly urge that parking authorities do not come within the definition of "local agency" set forth in Section 8501 of the Code, that is, "[a] government unit other than the Commonwealth government," and present two arguments in support of this contention. First, they argue that when the Code was enacted in 1980, which enactment included the definition of "local agency," the legislature intended to exclude municipal authorities from the definition. Their argument is that the previous statutory governmental immunity law, viz, the Political Subdivision Tort Claims Act,*fn8 specifically listed municipal authorities as a governmental body; more specifically, a political subdivision entitled to immunity, whereas the definition of "local agency" in Section 8501 of the Code specifically lists only intermediate units as immune. Therefore, they argue, the legislature intended to exclude municipal authorities from the definition of "local agency," and assert that the failure to specify municipal authorities in the present statute means that such bodies should be excluded from the cloak of immunity. We cannot agree.
[ 103 Pa. Commw. Page 309]
To adopt Appellants' argument would give immunity only to intermediate units and to no other governmental unit, because all the other government units enumerated in the prior statute (except intermediate units) such as, e.g., a county, city, borough, township, and school district, would be excluded. Appellants' argument ignores the fact that when interpreting statutes, all of their terms must be given effect. See Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(a). The phrase "government unit other than the Commonwealth government" as used in the definition of "local agency" in Section 8501 of the Code has a broad meaning. The sentence which follows that phrase, "[t]his term shall include an intermediate unit" does not necessarily limit in any way or exclude in this instance any other governmental body from the terms of the previous sentence, but merely states for purposes of clarity and to avoid uncertainty that an intermediate unit is to be included within its terms. Since we do not believe that the legislature could have intended the irrational result which would occur were we to adopt Appellant's proffered reading of the statutes, we must reject their argument. Unionville-Chadds Ford School District v. Rotteveel, 87 Pa. Commonwealth Ct. 334, 487 A.2d 109 (1985).
Appellants in their second alternative argument stress that municipal authorities have a unique status in the Commonwealth's governmental scheme which justifies their non-inclusion in the definition of "local agency" in Section 8501. They contend that since municipal authorities are not part of the "Commonwealth government" by definition in Section 102 of the Code,*fn9 nor are
[ 103 Pa. Commw. Page 310]
they creatures, agents or instrumentalities of the municipalities which create them, Simon Appeal, 408 Pa. 464, 184 A.2d 695 (1962), they must be somewhere in between, and are neither the "Commonwealth government" nor a "local agency." We cannot agree; they have not "slipped between the cracks" as it were, although Appellants have presented a strong argument. Municipal authorities are independent corporate agents of the Commonwealth which exercise governmental, as well as private corporate power, in assisting the Commonwealth in meeting the needs of its citizens. Id. Additionally, such authorities must be separate and distinct entities from the municipalities which form them for reasons of public policy and convenience. Lighton v. Abington Township, 336 Pa. 345, 9 A.2d 609 (1939). But the reason for making municipal authorities distinct entities from the municipalities which form them is the legislature's intent not to violate Article 3, Section 3 of the Pennsylvania Constitution prohibiting the delegation of certain powers (such as the power to make and supervise municipal improvements, to levy taxes, or to perform municipal function) to any special commission, private corporation or association, and to allow municipalities to join together to reap the benefits of economics of scale in the financing, construction and operation of large scale public works projects. See Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289 (1934); Graffigna v. City of Philadelphia, 98 Pa. Commonwealth Ct. 624, 512 A.2d 91 (1986). There would be no
[ 103 Pa. Commw. Page 311]
such public policy reason, however, to exclude municipal authorities from the penumbra of immunity granted to local municipalities and hence, under the sovereign and governmental immunity scheme contained in Chapter 85 of the Code, they are to be considered local agencies.*fn10 To the contrary, the public policy of this Commonwealth is as enunciated by our Supreme Court in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) and Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). We thus decline to adopt Appellants' alternative second argument that the phrase "government unit other than the Commonwealth government" in Section
[ 103 Pa. Commw. Page 3128501]
of the Code is so limited as to include only municipalities and their agents.
Proprietary Function Exception to Governmental Immunity
Appellants further maintain that the proprietary function exception to common law governmental immunity survived the passage of the current statutory governmental immunity act, thereby stripping the Authority of its immunity in this case. We need not decide this issue as this particular theory was neither briefed nor argued before the trial court, and consequently it has been waived. Richardson v. LaBuz, 81 Pa. Commonwealth Ct. 436, 446 n. 5, 474 A.2d 1181, 1190 n. 5 (1984); Kemp v. Qualls, 326 Pa. Superior Ct. 319, 473 A.2d 1369 (1984); Pa. R.A.P. 302(a). We do note in passing, however, that our recent decision in Davies v. Barnes, 94 Pa. Commonwealth Ct. 145, 503 A.2d 93 (1986) would be dispositive of the issue.
The Real Property Exception to Governmental Immunity
We next turn to the pivotal issue of whether Appellants' claim is barred by Section 8541 of the Code, which pertinently provides:
Except 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.
This immunity does not apply if Appellants' cause of action falls within the exception found in Section 8542(b)(3), which states:
(b) Acts which may impose liability. -- The following acts by a local agency or any of its employees
[ 103 Pa. Commw. Page 313]
may result in the imposition of liability on a local agency:
(3) Real Property. -- The care, custody or control of real property in the possession of the local agency. . . .
Appellants seem to contend that the mere possession of real property by a local agency when the person injured is a business invitee of the local agency is sufficient to hold the local agency liable. We do not agree. In order to recover Appellants must meet two distinct requirements. First, they must show that they possess a cause of action cognizable at common law; a requirement they seem to have clearly met because they have throughout maintained that their suit is based on Section 344 of the Restatement (Second) of Torts (1965). Section 344 provides that:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
Restatement (Second) of Torts § 344 (1965). This Section was adopted as part of the common law of this state in Moran v. Valley Forge Drive-In Theater, 431 Pa. 432, 246 A.2d 875 (1968). See also Murphy v. Penn Fruit Co., 274 Pa. Superior Ct. 427, 418 A.2d 480 (1980).
We then pass to the second, distinct, and more difficult requirement: whether Appellants' cause of action
[ 103 Pa. Commw. Page 314]
falls within the exception to immunity found in Section 8542(b)(3) of the Code, where the cause of plaintiff's injury was the governmental body's negligence in the care, custody or control of real estate. Lewis v. Hatboro-Horsham School District, 77 Pa. Commonwealth Ct. 287, 465 A.2d 1090 (1983). Succinctly, in order to defeat the immunity bar a plaintiff must show that his injury was caused in some manner by some unsafe condition of the governmental body's real estate. Mooney v. North Penn School District, 90 Pa. Commonwealth Ct. 7, 493 A.2d 795 (1985).
Our appellate courts have found the exception to apply in different circumstances illustrated by the following cases: Singer v. School District of Philadelphia, 99 Pa. Commonwealth Ct. 553, 513 A.2d 1108 (1986) (failure of school district to provide proper matting for gym floor when vaulting horse was used in gym); Mascaro v. Youth Study Center, 89 Pa. Commonwealth Ct. 388, 492 A.2d 786 (1985) (alleged failure to maintain adequate lighting and negligent maintenance of fence and locks at juvenile detention facility); Bersani v. School District of Philadelphia, 310 Pa. Superior Ct. 1, 456 A.2d 151 (1982) (design or creation of dangerous condition by placing backstop too close to home plate to play softball safely); see also Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977) where our Supreme Court held that when a property owner allows the condition of his property itself to deteriorate to such an extent that it affords a third person an opportunity to commit a crime or tort, the property owner may be held liable.*fn11
[ 103 Pa. Commw. Page 315]
Appellants have not shown such circumstances in the instant case. Appellants argue that the Authority has a duty to control persons on the premises. Their claim in this regard, however, is basically one alleging negligent supervision of persons on the property of the governmental body, and while this principle of law is germane to Section 344 of the Restatement and relevant in establishing a common law cause of action, on numerous occasions we have held that negligent control or supervision of persons or activities on a governmental unit's real estate does not come within the real property exception to governmental immunity. Johnson v. City of Philadelphia, 93 Pa. Commonwealth Ct. 87, 500 A.2d 520 (1985) (failure of city to supervise persons who entered indoor basketball facility and assaulted plaintiff); Auerback v. Council Rock School District, 74 Pa. Commonwealth Ct. 507, 459 A.2d 1376 (1983) (failure of school district to monitor and keep separate two students involved in a series of past altercations); Close v. Voorhees, 67 Pa. Commonwealth Ct. 205, 446 A.2d 728 (1982) (student injured during altercation between students when teacher was absent); Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273 (1981) (student injured by pencil thrown by classmate while teacher was out of room). The situation here is similar to that in Johnson, Auerbach, Close, and Robson, and the result here is no different.*fn12 Therefore, judgment was properly entered against Appellants.
[ 103 Pa. Commw. Page 316]
Appellants further argue that our decision in Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983) is controlling because in Vann we stated that:
Section  must be read as a narrow exception to a general legislative grant of immunity and we construe it to impose liability only for negligence which makes government-owned
[ 103 Pa. Commw. Page 317]
property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may be reasonably foreseen to be used.
Vann, 76 Pa. Commonwealth Ct. at 607-08, 464 A.2d at 686. In Vann a minor plaintiff while walking on the sidewalk adjacent to the defendant's school property was assaulted and forceably taken through an unsecured gate in the fence around the school and there further assaulted while on school property. We affirmed the decision of the trial court dismissing the complaint on the grounds of immunity, stating that "[v]iolent criminal acts such as occurred here are not a reasonably foreseeable use of school property such that the exception will be applied." Id. at 608, 464 A.2d at 686. (Emphasis added.) Appellants contend that since Mr. Rhoads was using the garage for its ordinary and regular purpose and that due to the Authority's negligence in controlling the three men who attacked Mr. Rhoads, the property was made unsafe for its intended uses, thereby coming within the real property exception to governmental immunity. Appellants misapprehend the meaning of the above quoted language in Vann, language attributable to this exception to immunity, with the concept of establishing a common law cause of action. We were very careful to point out in Vann that while the clear intent of Section 8542 of the Code was to waive governmental immunity, the statute did not impose a standard of liability greater than that which exists at common law.
In order to fall within the real property exception to governmental immunity (the second of the two requirements), Appellant must show that his injury was caused by, or attributable to, some unsafe condition or defect in the real property of the local agency. Mooney, 90 Pa. Commonwealth Ct. at 9, 493 A.2d at 797. The garage building's physical structure was not made unsafe
[ 103 Pa. Commw. Page 318]
by the Authority's negligence in controlling the three men. Even though Mr. Rhoads was using the garage for its regular and intended use when he was attacked, the property itself was not unsafe for the purposes intended. Absent here are the allegations of negligent maintenance and design of the real estate found in Vann, to which the statement quoted by Appellant is directed. See Merritt v. Board of Education of the School District of Philadelphia, 99 Pa. Commonwealth Ct. 178, 513 A.2d 504 (1986). Appellants' reliance on this argument is therefore misplaced.
Appellants suggest that the fact that Mr. Rhoads was a business invitee on the Authority's premises is sufficient to overcome the immunity bar. We do not agree. While the status of Mr. Rhoads on the Authority's property is certainly relevant to the questions of duty and the standard of care under the common law cause of action requirement of Section 8541(a) of the Code, it is not relevant to the question of whether Appellants' cause of action falls within the real property exception to governmental immunity.
Appellants further assert that the criminals "nested" in the garage.*fn13 See Johnson v. Southeastern Pennsylvania Transportation Authority, 91 Pa. Commonwealth Ct. 587, 591-93, 498 A.2d 22, 25-26 (1985) (Doyle, J., concurring), petition for allowance of appeal granted, 511 Pa. 295, 512 A.2d 1185 (1986); Ludwin v. Delaware River Port Authority, 102 Pa. Commonwealth Ct. 36, 43, 517 A.2d 1006, 1010 (1986). Appellants, however, have not shown factually that the criminals nested on or inhabited the property in this case, as could have been shown by the evidence in Johnson. See Ford.
[ 103 Pa. Commw. Page 319]
The orders of the Court of Common Pleas of Lancaster County are affirmed.
Now, January 22, 1987, the Orders dated September 13, 1984 and September 24, 1984 of the Court of Common Pleas of Lancaster County in the above-captioned matter, No. 2, June Term, 1982, are hereby affirmed.