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.
[ 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 ...