Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Dannie F. Hawkins and Juanita Hawkins, his wife v. City of Harrisburg, Redevelopment Authority of the City of Harrisburg, and One-Thirty Company, No. 4404 A 1987.
Anthony Stefanon, Stefanon & Lappas, for appellants.
Daniel J. Gallagher, with him, Alexander J. Palutis, Post & Schell, P.C., for appellees.
Judges Palladino and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail did not participate in the decision in this case.
[ 120 Pa. Commw. Page 370]
Dannie F. and Juanita Hawkins (Appellants) appeal from an order of the Court of Common Pleas of Dauphin County sustaining the preliminary objections in the nature of a demurrer of the City of Harrisburg (City) and the Redevelopment Authority of the City of Harrisburg (Authority) and dismissing Appellants' complaint against the City and the Authority. The basis of the order was the trial court's determination that the City and the Authority were immune to suit pursuant to 42 Pa. C.S. § 8541 because Appellants' complaint failed to state a cause of action which fell within the exceptions to local government immunity in 42 Pa. C.S. § 8542. We affirm.
Dannie Hawkins was injured on December 17, 1985 when he fell from a scaffolding while working for Adams County Asphalt Company as a laborer on a construction project at the Old Waterworks on Front Street in Harrisburg. The Old Waterworks was owned by the City. The City had leased the Old Waterworks to the Authority, which had in turn leased it to One-Thirty Company. One-Thirty employed Adams County Asphalt to perform construction work on the Old Waterworks premises.
Appellants filed suit against the City, the Authority and One-Thirty on November 13, 1987. Appellants alleged that the scaffolding was erected in a dangerous, hazardous and unsafe manner by Adams County Asphalt "acting pursuant to orders and directions negligently given by the Defendant City, Authority, and One-Thirty Company, through their authorized servants, agents, employees or representatives." Appellants' Complaint paragraph 16. On December 12, 1987 the City filed
[ 120 Pa. Commw. Page 371]
preliminary objections in the nature of a demurrer; the Authority filed the same on January 7, 1988.
The City and the Authority in their preliminary objections asserted immunity pursuant to 42 Pa. C.S. § 8541.*fn1 A hearing was held on March 7, 1988. On March 30, 1988 the trial court issued its opinion and order sustaining the City's and the Authority's preliminary objections and dismissing Appellants' complaint against them.
On appeal to this court, Appellants contend that their complaint contains averments sufficient to state a cause of action against the City and the Authority for failure to exercise care, custody, or control of real property pursuant to the exception to governmental immunity stated in 42 Pa. C.S. § 8542(b)(3). Preliminary objections in the form of a demurrer will not be sustained unless it is clear on the face of the pleadings that the law will not permit the recovery sought. E-Z Parks Inc. v. Larson, 91 Pa. Commonwealth Ct. 600, 498 A.2d 1364 (1985), aff'd, 509 Pa. 496, 503 A.2d 931 (1986).
Local agencies, such as the City and the Authority,*fn2 are not "liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person" except as provided in 42 Pa. C.S. § 8542. 42 Pa. C.S. § 8541. Eight exceptions to local government immunity are set out in 42 Pa. ...