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CHRISTINE A. DORSCH v. BUTLER AREA SCHOOL DISTRICT AND JOHN CHIPREAN (04/29/87)

decided: April 29, 1987.

CHRISTINE A. DORSCH, A MINOR, BY CHARLES R. DORSCH AND LILLIAN M. DORSCH, HER GUARDIANS, AND CHARLES R. DORSCH AND LILLIAN M. DORSCH, HIS WIFE, ON BEHALF OF THEMSELVES, APPELLANTS
v.
BUTLER AREA SCHOOL DISTRICT AND JOHN CHIPREAN, AN INDIVIDUAL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Butler County, in case of Christine A. Dorsch, a minor, by Charles R. Dorsch and Lillian M. Dorsch, her guardians, and Charles R. Dorsch and Lillian M. Dorsch, his wife, on behalf of themselves v. Butler Area School District and John Chiprean, an individual, No. 85-592, Book 124, Page 69.

COUNSEL

Kevin P. Lucas, with him, James G. McLean, Manion, McDonough & Lucas, P.C., for appellants.

Dale K. Forsythe, with him, James A. Beinkemper, Wayman, Irvin & McAuley, for appellee, Butler Area School District.

Lee A. Montgomery, Kirkpatrick and Montgomery, for appellee, John Chiprean.

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

Author: Craig

[ 105 Pa. Commw. Page 520]

Student Christine A. Dorsch and her parents appeal from an order of the Court of Common Pleas of Butler County sustaining the preliminary objections of Butler Area School District on the ground of governmental immunity, as codified in 42 Pa. C.S. ยงยง 8541-8542. We reverse and remand.

Christine alleges that, on March 29, 1985, as she was attempting to cross a roadway on the high school

[ 105 Pa. Commw. Page 521]

    property, another student struck her with his automobile. On November 6, 1985, the Dorsches filed a complaint against the student driver and the Butler Area School District. The school district responded by filing preliminary objections in the nature of a demurrer, raising immunity from suit as a defense. The Dorsches then filed preliminary objections asserting that the school district had improperly raised immunity from suit by way of preliminary objections.

The trial court sustained the school district's preliminary objections, determining that the school district was immune from liability.

On appeal here, the Dorsches contend that the trial court erred in considering the school district's preliminary objections because, under Pa. R.C.P. No. 1030, the defense of immunity from suit must be raised as an affirmative defense in new matter and cannot be raised and decided on preliminary objections.

As recently stated in Ziccardi v. School District of Philadelphia, 91 Pa. Commonwealth Ct. 595, 498 A.2d 452 (1985), this court has addressed, in numerous cases, the question of whether the defense of immunity from suit raised by preliminary objections should be stricken, and we have consistently held that preliminary objections are a proper vehicle for raising immunity where the defense is apparent on the face of the pleading under attack.

Hence, the issue is whether there was, on the face of the Dorsches' complaint, averments sufficient to establish an immunity ...


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