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JAY GALLAGHER v. COMMONWEALTH PENNSYLVANIA (08/12/88)

decided: August 12, 1988.

JAY GALLAGHER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, BUREAU OF CORRECTION ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Centre County, in the case of Jay Gallagher v. Bureau of Correction; Glen R. Jeffes, Commissioner, Bureau of Correction; State Correctional Institution at Rockview; Joseph F. Mazurkiewicz, Superintendent, State Correctional Institution at Rockview; Janice Maloney, R.D.; Matt Horne, No. 85-100.

COUNSEL

Jeffrey W. Stover, Novak, Stover & McCarty, for appellant.

Gregory R. Neuhauser, Senior Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellees.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, McGinley and Smith. Opinion by Judge Barry. Dissenting Opinion by Judge Doyle. Judge McGinley joins.

Author: Barry

[ 118 Pa. Commw. Page 517]

Jay Gallagher appeals from an order of the Court of Common Pleas of Centre County which granted a motion for summary judgment filed by the Commonwealth's Bureau of Correction and the State Correctional Institution at Rockview (SCIR) and dismissed appellant's complaint.

Appellant is incarcerated at the SCIR. At the time in question, he shared a cell with another inmate. The cell had bunk beds, appellant occupying the upper

[ 118 Pa. Commw. Page 518]

    bunk. Because no ladder is in the cell, appellant could reach the upper bunk only by using the cell bars to climb to the upper bunk. Appellant was using the cell bars to get out of his bunk when his cellmate closed the cell door, severing appellant's left ring finger.

Appellant filed a complaint alleging negligence on the part of the defendants. The defendants filed a motion for summary judgment, alleging immunity under 42 Pa. C.S. § 8522(b). The trial court granted the motion and dismissed the complaint. This appeal followed.

Appellant makes three allegations of error. He first argues that this case falls within the real property exception contained in 42 Pa. C.S. § 8522(b)(4). He also argues that the case falls within the personal property exception of 42 Pa. C.S. § 8522(b)(3). Finally, he argues that the trial court erred in granting summary judgment because it was the cellmate who put the door in motion. We affirm.

We shall consider the first and third argument together. 42 Pa. C.S. § 8522(b)(4) waives sovereign immunity for a claim of damages caused by "[a] dangerous condition of Commonwealth agency real estate . . ., including Commonwealth owned real property. . . ." A number of recent cases establish that this section is inapplicable to this case.

The exceptions to the rules of immunity must be strictly construed and narrowly interpreted. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), reversing, 89 Pa. Commonwealth Ct. 388, 492 A.2d 786 (1985). In that case, the plaintiffs were severely injured by the criminal acts of a third party who had escaped from the defendant's detention facility. The plaintiffs alleged that the real property exception applied because defective locks at the detention facility had allowed the third party to escape. The trial ...


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