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STANLEY KASAVAGE v. CITY PHILADELPHIA (05/01/87)

decided: May 1, 1987.

STANLEY KASAVAGE, A MINOR BY HIS PARENT AND NATURAL GUARDIAN, AGNES KASAVAGE, INDIVIDUALLY AND IN HER OWN RIGHT, APPELLANTS
v.
CITY OF PHILADELPHIA, APPELLEE



Appeal from the Court of Common Pleas of Philadelphia County, in case of Stanley Kasavage, a minor by his Parent and Natural Guardian, Agnes Kasavage, individually and in her own right v. City of Philadelphia, No. 0022, March Term, 1985.

COUNSEL

Susan I. Schulman, Marion, Satzberg & Associates, P.A., for appellant.

Handsel B. Minyard, City Solicitor, with him, Armando A. Pandola, Jr., Chief Deputy in Charge of Claims, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, Claudia M. Tesoro, Chief Assistant City Solicitor, for appellee.

Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 105 Pa. Commw. Page 556]

Appellants Stanley and Agnes Kasavage appeal an order of the Court of Common Pleas of Philadelphia County granting preliminary objections of Appellee City of Philadelphia (City) and dismissing Appellants' action. We affirm.

Appellants instituted an action against the City for injuries sustained by Stanley Kasavage at the City's Cione Playground and Pool. The complaint alleged that on July 6, 1984, Stanley was injured at the pool, suffering a lacerated and fractured nose, by a group of rowdy juveniles the City failed to control. Appellants complain that the City knew or should have known of the dangerous activities at the pool and that it was negligent in failing to supervise the area, in permitting a dangerous condition to develop and in failing to warn pool patrons of the dangerous conditions.

Appellee responded with preliminary objections to the complaint, asserting that it was immune from suit under Section 8541 of the Judicial Code (Code), 42 Pa. C.S. § 8541. The trial court granted the preliminary objections in part and Appellants were allowed to file an amended complaint. An amended complaint was filed, to which the City again objected on the grounds of governmental immunity. By order entered December 18, 1985, the City's preliminary objections were granted and Appellants' action dismissed.

Appellants raise two issues on appeal: 1) whether the City should be immune from suit when it had actual, written notice of prior continuing violent and criminal activity at the park; and 2) whether the City improperly raised the defense of governmental immunity by

[ 105 Pa. Commw. Page 557]

    way of preliminary objections. We note that our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law in sustaining the City's preliminary objections. Pennsylvania Department of Environmental Resources Appeal, 91 Pa. Commonwealth Ct. 381, 497 A.2d 284 (1985).

Initially, we reject Appellants' argument that the City waived its right to assert the defense of governmental immunity because the defense was raised in preliminary objections and not in an answer and new matter, pursuant to Pa. R.C.P. No. 1030. While it is true that the defense of immunity from suit is required to be pleaded in new matter and not preliminary objections, this Court has held that immunity may be raised in preliminary objections where the defense is apparent on the face of the pleading being challenged. McCreary v. City of Philadelphia, 95 Pa. Commonwealth Ct. 285, 505 A.2d 385 (1986). Regardless, the proper method of challenging the pleading of such a defense is by filing preliminary objections to the preliminary objections. Id. Appellants did not object to the City's method of pleading until the instant appeal.

The general rule of Section 8541 of the Code, 42 Pa. C.S. § 8541, is that local agencies (here, the City) are not liable for any damages for injuries caused by any act of the agency or an employee thereof. There are eight exceptions enumerated in Section 8542 of the Code, 42 Pa. C.S. § 8542, and Appellants claim that in this instance the City should ...


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