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ROBERT MCNEILL v. CITY PHILADELPHIA (03/11/87)

decided: March 11, 1987.

ROBERT MCNEILL, A MINOR, BY HIS PARENT AND GUARDIAN, DONALD MCNEILL, DONALD MCNEILL IN HIS OWN RIGHT, APPELLANTS
v.
CITY OF PHILADELPHIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Robert McNeill, a minor, by his parent and natural guardian, Donald McNeill, and Donald McNeill v. City of Philadelphia, No. 737 April Term, 1985.

COUNSEL

Michael F. Eichert, with him, Herbert K. Fisher, Bloom, Ocks and Fisher, for appellants.

Claudia M. Tesoro, Chief Assistant City Solicitor, with her, Handsel B. Minyard, City Solicitor, and Barbara R. Axelrod, Divisional Deputy in Charge of Appeals.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 104 Pa. Commw. Page 495]

Robert McNeill, a ten year old child, and his father, Donald McNeill (appellants) appeal an order of the Court of Common Pleas of Philadelphia County sustaining preliminary objections filed by the City of Philadelphia

[ 104 Pa. Commw. Page 496]

(City) and dismissing appellant's Complaint as barred by the grant of immunity defined by Sections 8541-8564 of the Judicial Code (Code), 42 Pa. C.S. §§ 8541-8564, and commonly referred to as the Political Subdivision Tort Claims Act.

On appeal from the upholding of preliminary objections in the nature of a demurrer, we must accept as true all well-pleaded allegations and material facts averred in the Complaint, as well as all reasonable inferences deducible therefrom. Nicholson v. M & S Detective Agency, Inc., 94 Pa. Commonwealth Ct. 521, 503 A.2d 1106 (1986). We determine from the Complaint that the minor appellant was injured when he struck a wire supporting a tennis net as he was riding his bike on a tennis court which was part of a playground owned by the City. Appellants also averred the following:

4. At all times pertinent hereto, the [City] operated and maintained . . . a playground and recreational area, including a tennis court for the use and enjoyment to the residents of the City of Philadelphia, including minor children, and in addition, invited and encouraged children to use the recreational facilities provided on the aforesaid playground.

5. On or about November 24, 1984, the minor [appellant] and others were riding their bicycles on the tennis courts on the [playground] when, by reason of the negligence of the [City], the minor [appellant] struck a wire supporting the tennis net, causing him the severe and permanent personal injuries hereinafter set forth.

6. The negligence of the [City], and/or its servants, agents or employees acting within the scope of their employment, consisted in:

[ 104 Pa. Commw. Page 497]

    a. Failing to have due regard for the rights, safety and position of the [minor appellant], as well as ...


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