Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Robert F. McCloskey, Jr., a minor, by his parents and natural guardians, Robert F. McCloskey and Juliette McCloskey and Robert McCloskey and Juliette McCloskey, in their own right v. Abington School District v. Sportmaster and UCS, Inc., c/o United Canvas and Sling, No. 82-18120.
Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, with him, James R. Melinson, James R. Melinson, P.C., for appellants.
Joseph W. McGuire, with him, Catherine N. Jasons, Krusen, Evans and Byre, for appellee, Abington School District.
Harry A. Short, Jr., with him, Henry M. Slinton, Liebert, Short, Fitzpatrick & Hirshland, for appellee, Sportmaster.
President Judge Crumlish, Jr., Judges Craig, MacPhail, Barry and Colins. Opinion by Judge Barry. Judge Craig concurs in the result. Judge Colins dissents.
[ 115 Pa. Commw. Page 290]
In this trespass case filed in the Court of Common Pleas of Montgomery County, the trial judge granted a motion for summary judgment on behalf of the Abington School District. This Court reversed the trial court and remanded the case for further proceedings. McCloskey v. Abington School District, 101 Pa. Commonwealth Ct. 110, 515 A.2d 642 (1986). In this case, Robert McCloskey, Jr., then a tenth grade student aged sixteen and a half, was rendered a quadraplegic when he fell from a set of gymnastic rings during a regularly scheduled gym class at Abington High School -- North Campus. Mr. McCloskey and his parents and natural guardians contended that the facts averred in their complaint were within the real property exception to governmental immunity, Section 8542(b)(3) of the Judicial Code.*fn1
[ 115 Pa. Commw. Page 291]
We held that whether the gymnastic equipment owned by the school district was real estate involved a question of the intent of the parties which was a matter for a factfinder rather than a matter for summary judgment.
In an order of the Pennsylvania Supreme Court filed per curiam on February 1, 1988, the following disposition of an appeal to the Supreme Court in this case was made: "The petition for allowance of appeal is granted. The order of the Commonwealth Court is vacated and the case remanded to that court for reconsideration in light of our decision in Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). Mr. Justice Larsen dissents." McCloskey v. Abington School District, 517 Pa. 347, 537 A.2d 329 (1988).
In accordance with the mandate of the Supreme Court, this Court has reconsidered its decision in light of Mascaro. Instructive is the following language from Mascaro :
We agree that the real estate exception to governmental immunity is a narrow exception and, by its own terms, refers only to injuries arising out of the care, custody or control of the real property in the possession of the political subdivision or its employees. Acts of the local agency or its employees which make the property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may reasonably be foreseen to be used, are acts ...