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CANON-MCMILLAN SCHOOL DISTRICT v. TEDDY S. BIONI (10/30/87)

decided: October 30, 1987.

CANON-MCMILLAN SCHOOL DISTRICT, APPELLANT
v.
TEDDY S. BIONI, APPELLEE



Appeal from the Order of the Court of Common Pleas of Washington County, in case of Teddy S. Bioni v. Canon-McMillan School District, No. 395 March Term, 1981.

COUNSEL

W. Patrick Boyer, with him, John C. Pettit, Pettit and Johnson, for appellant.

Paul W. Stefano, with him, Samuel Y. Stroh, for appellee.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Palladino. Judge Colins dissents. Dissenting Opinion by President Judge Crumlish, Jr. Judge Doyle joins in this dissent.

Author: Palladino

[ 110 Pa. Commw. Page 586]

Canon-McMillan School District (Appellant) appeals an order of the Court of Common Pleas of Washington County denying its motion for post trial relief.

In March, 1979, Teddy S. Bioni sustained an injury to his left eye while performing an in-class assignment, which involved the use of a wood lathe, for his "Industrial Materials" course at Canon-McMillan High School. The injury occurred when a laminated wooden bowl Bioni was sanding on the lathe broke apart. Bioni filed a trespass action against Appellant in 1981, alleging his eye injury was the result of Appellant's negligence in respect to the wood lathe. Appellant, in its answer and new matter, pleaded the affirmative defense of governmental immunity under the Political Subdivision Tort Claims Act (Act).*fn1 Bioni answered, denying Appellant was protected by the Act but did not specify under what exception his action fell.

In November, 1983, Appellant filed a motion for summary judgment in which it contended that, as a matter of law, Bioni's action against it was barred by section

[ 110 Pa. Commw. Page 587201]

of the Act*fn2 because the action did not fall within any of the eight exceptions to governmental immunity contained in section 202(b) of the Act.*fn3 The hearing on this motion was continued until discovery was completed. On October 4, 1985, the trial court denied the summary judgment motion.

A jury trial was held from October 15 to 18, 1985. At the end of Bioni's presentation of evidence, Appellant made a motion for a compulsory non-suit which was denied. Appellant also moved for a directed verdict at the conclusion of the trial, which was denied. Appellant's basis for both motions was that the lathe was personal property rather than realty, and, therefore, Appellant was immune from suit. The jury returned a verdict for

[ 110 Pa. Commw. Page 588]

Bioni against Appellant in the amount of $150,000. Appellant filed a motion for post trial relief, requesting the trial court to enter judgment notwithstanding the verdict (JNOV) for it because, as a matter of law, it was immune from suit. Alternatively, Appellant sought a new trial.

Subsequently, Bioni filed a motion, pursuant to Pa. R.C.P. No. 238,*fn4 to have delay damages of $66,495 added to the verdict. The trial court granted this motion. Appellant then filed a supplement to its post trial relief motion, contending the delay damages were prejudgment interest and, therefore, barred pursuant to section 404 of the Act.*fn5

Argument on Appellant's post trial relief motion was held before an en banc court on June 5, 1986. On June 27, 1986, the en banc court denied Appellant's motion and directed judgment on the verdict, as molded by the trial court, be entered in the amount of $216,495. Appellant filed a timely notice of appeal to this court.

Our scope of review of appeals from the refusal to enter JNOV or grant a new trial is limited to determining if the trial court committed an abuse of discretion. Beechwoods Flying Service v. Hamilton Contracting Corp., 317 Pa. Superior Ct. 513, 464 A.2d 440 (1983) aff'd. 504 Pa. 618, 476 A.2d 350 (1984). JNOV is an extreme remedy and should be entered only in a clear

[ 110 Pa. Commw. Page 589]

    case after the evidence and all reasonable inferences therefrom have been evaluated in a light most favorable to the verdict winner. Id. In reviewing the refusal to grant a new trial, the appellate court considers all the evidence and is not required to consider it in the light most favorable to the verdict winner. Ditz v. Marshall, 259 Pa. Superior Ct. 31, 393 A.2d 701 (1978). If the verdict is clearly against the weight of the evidence, a new trial is compelled. Id.

Appellant makes the following contentions before us: (1) the governmental immunity provided by section 201 of the Act bars this action because the facts of the case do not bring the action within any of the eight exceptions to immunity provided by section 202 of the Act; (2) prejudicial error was committed by the trial judge in admitting evidence and in charging the jury; and (3) the delay damages provided for in Pa. R.C.P. No. 238 may not be assessed against it pursuant to section 404 of the Act. For the reasons which follow, we conclude that the weight of the evidence does not support a finding that Appellant's actions fell within an exception to government immunity and a new trial is required. Accordingly, we will not consider Appellant's second and third contentions.

[ 110 Pa. Commw. Page 590]

The incident which gave rise to this action occurred while the Act was in effect and, therefore, the Appellant's immunity claim must be considered under its terms. Wimbish v. School District of Penn Hills, 59 Pa. Commonwealth Ct. 620, 622, n. 2, 430 A.2d 710, 711 n. 2 (1981). Since the sections of the Act we are concerned with, sections 201 and 202, are substantially indistinguishable from those which are currently in effect, 42 Pa. C.S. §§ 8541 and 8542, cases dealing with 42 Pa. C.S. §§ 8541 and 8542 will be referenced in the determination of this case. See Vann v. Board of Education, Page 590} School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983).

Section 201 of the Act states: "Except as otherwise provided in this act, no political subdivision shall be liable for any damages on account of any injury to a person or property caused by any act or omission of the political subdivision or an employee thereof or any other person." In section 202 of the Act, the General Assembly set forth eight activities which may impose liability on a political subdivision if undertaken by a political subdivision or its employees.*fn6

While Bioni did not plead the exception to immunity under which he was pursuing his action,*fn7 he argues in his brief that the facts place the action within the "real property" exception, section 202(b)(3) of the Act. This subsection provides for the possible imposition of liability for acts concerning:

[t]he care, custody or control of real property in the possession of the political subdivision, except that the political subdivision shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the political subdivision. As used in this paragraph, 'real property' shall not include trees, streets, sidewalks, traffic signs, lights and other traffic ...


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