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REGINA MCHALE v. LARRY COLE ET AL. (09/08/88)

decided: September 8, 1988.

REGINA MCHALE, APPELLANT
v.
LARRY COLE ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Regina McHale v. Montgomery County Emergency Service, Inc., Doctor Naomi Dank, Ken Courage, and George Kapler, James Harris, M.D., The Borough of Norristown, and Larry Cole, No. 80-18538.

COUNSEL

Edward C. Mintzer, Jr., with him, Anthony F. Zabicki, Jr., McWilliams & Mintzer, P.C., for appellant.

John O'Rourke, with him, Cheryl L. Young, McTighe, Weiss, Stewart, Bacine & O'Rourke, P.C., for appellees.

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

Author: Barry

[ 119 Pa. Commw. Page 320]

Regina McHale (appellant) appeals an order of the Court of Common Pleas of Montgomery County which granted the motion of the Borough of Norristown (Borough) for summary judgment.

Appellant was raped and severely beaten by Larry Cole in a ladies' restroom in Elmwood Park located in the Borough. Appellant brought a trespass suit against the Borough and others.*fn1 The trial court granted the

[ 119 Pa. Commw. Page 321]

Borough's motion for summary judgment opining that the Borough was immune from suit under Section 8541 of the Judicial Code, 42 Pa. C.S. § 8541 (Code), since the actual injury was caused by the criminal acts of a third party and cannot be attributable to the Borough.

Appellant alleges that the Borough is not immune from suit as this action falls into the real estate exception to governmental immunity under Section 8542(b)(3) of the Code, 42 Pa. C.S. § 8542(b)(3). Appellant contends that the Borough failed to provide a safe restroom area by failing to install adequate and effective locks on the restroom doors. She also contends that the Borough knew that this restroom area was not safe and that other incidents of assaults, rapes and drug dealings had occurred in the restroom.

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides a summary method for the determination of legal disputes where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa. R.C.P. No. 1035(b). Entry of summary judgment may be granted only in cases where the right is clear and free of doubt. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party. Miller v. Leljedal, 71 Pa. Commonwealth Ct. 372, 455 A.2d 256 (1983). In this case the Borough alleges that it is immune from this suit and that as a matter of law summary judgment is proper. We must determine that the Borough has met the burden of establishing

[ 119 Pa. Commw. Page 322]

    that it is entitled to summary judgment ...


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