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decided: December 17, 1987.


Appeal from the Order of the Court of Common Pleas of Lancaster County, in case of Doris A. Stahl, Administratrix of the Estate of Michael J. Wilson, Deceased v. Cocalico School District, No. 1-1986.


Alan M. Feldman, Raynes, McCarty, Binder, Ross & Mundy, with him, Ezra Wohlgelernter, Law firm of Allen Rothenberg, for appellant.

J. Michael Flanagan, Flanagan and Smith, for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 112 Pa. Commw. Page 52]

Further consideration having been granted by Order of this Court dated October 28, 1987, our previous Opinion and Order filed August 24, 1987, is amended as follows.

Doris Stahl, Administratrix of Michael Wilson's estate, appeals the Lancaster County Common Pleas Court order sustaining Cocalico School District's (District) preliminary objections in the nature of a demurrer and dismissing her complaint. We reverse and remand.

Wilson, a twelve-year-old, was killed when he fell through a skylight at the Cocalico School. He climbed onto a trash dumpster located next to the school, and then onto the roof, in order to retrieve a ball.

In ruling upon preliminary objections in the nature of a demurrer, all well-pleaded facts and any inferences deducible therefrom must be accepted as true. Bahian v. Department of Public Welfare, 89 Pa. Commonwealth Ct. 644, 493 A.2d 803 (1985). A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). Since sustaining a demurrer results in a denial of the pleader's claim, a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted. If facts, as pleaded, state a claim for which relief may be granted under any theory of law, then there is sufficient doubt so as to require preliminary objections to be rejected. Id.

[ 112 Pa. Commw. Page 53]

Stahl contends that the facts averred in the complaint come within the real property exception to governmental immunity, Section 8542(b)(3) of the Judicial Code.*fn1 Stahl alleges that (1) the District had actual knowledge of the dangerous condition giving rise to this incident,*fn2 (2) the heavy trash dumpster can be classified

[ 112 Pa. Commw. Page 54]

    as real property, and (3) the complaint states a cognizable cause of action.*fn3 We agree.

The dangerous condition to which Stahl refers in her complaint is the school's low roof and defective skylight. The complaint further alleged that, notwithstanding the District's awareness of the potential for serious injury to children, no remedial measures were taken.

Accepting all averments in Stahl's complaint as true, we hold that the common pleas court erred in concluding that, because the incident took place on Easter Sunday,

[ 112 Pa. Commw. Page 55]

Wilson was an intentional trespasser*fn4 and the accident was unforeseeable as a matter of law. The fact that the incident took place on a Sunday is immaterial if the general use of the school yard was for recreational purposes and it was open to neighborhood children before or after school or on weekends. The complaint averred that the District knew that children were playing in the school yard and on the dumpster and, under the theory of liability which Stahl advances, the child's status as a trespasser does not preclude potential liability.*fn5

Moreover, for the purposes of the real property exception, the conduct alleged in the complaint was directly related to the condition of the property.*fn6

[ 112 Pa. Commw. Page 56]

Fizzano v. Borough of Ridley Park, 94 Pa. Commonwealth Ct. 179, 503 A.2d 57 (1986). This exception imposes liability for negligence which makes government-owned real property unsafe for activities for which it is regularly used, intended to be used or reasonably foreseen to be used. Vann v. Board of Education, School District of Philadelphia, 76 Pa. Commonwealth Ct. 604, 464 A.2d 684 (1983). Since Stahl pleaded factual allegations relating to a physical defect in the skylight, the contribution the low roof made to the accident, and the District's actual knowledge thereof, the complaint states a cause of action which fits within the ambit of the real property exception to governmental immunity.*fn7

Furthermore, the heavy trash dumpster which had remained in the same location for an indefinite period of time can be classified as real property for exception purposes. See Singer v. School District of Philadelphia, 99 Pa. Commonwealth Ct. 553, 513 A.2d 1108 (1986).*fn8

Accordingly, we reverse the common pleas court order sustaining the District's preliminary objections. This matter is remanded for further proceedings.


The Lancaster County Common Pleas Court order, No. 1-1986 dated July 11, 1986, is reversed, and the case is remanded for further proceedings.

Jurisdiction relinquished.


Reversed and remanded.

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