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KELLIE BOLLINGER v. THEODORE OBRECHT ET AL. THEODORE OBRECHT AND LEHIGH COUNTY VOCATIONAL TECHNICAL SCHOOL (01/11/89)

decided: January 11, 1989.

KELLIE BOLLINGER, A MINOR BY ELSIE CARRAGHAN, HER GUARDIAN AND ELSIE CARRAGHAN, IN HER OWN RIGHT
v.
THEODORE OBRECHT ET AL. THEODORE OBRECHT AND LEHIGH COUNTY VOCATIONAL TECHNICAL SCHOOL, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Kellie Bollinger, a minor, by Elsie Carraghan, her guardian, and Elsie Carraghan v. Theodore Obrecht, East Penn School District and Lehigh County Vocational Technical School, No. 86-C-1115.

COUNSEL

Charles W. Craven, with him, Robert G. Hanna, Jr., Marshall, Dennehey, Warner, Coleman and Goggin, for appellants.

Patrick J. Reilly, with him, Malcolm J. Gross, Gross, McGinley, LaBarre & Eaton, for appellees.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, Palladino and McGinley. Opinion by President Judge Crumlish, Jr. Judge MacPhail did not participate in the decision in this case. Judge Barry concurs in the result only.

Author: Crumlish

[ 122 Pa. Commw. Page 564]

The Lehigh County Vocational Technical School (School) and schoolteacher Theodore Obrecht, defendants in a personal injury action initiated by Kellie Bollinger,*fn1 seek to appeal a Lehigh County Common Pleas Court order denying their summary judgment motion. Bollinger moves to quash the appeal. We quash this appeal for the reasons set forth herein.

Bollinger injured two fingers in the rollers of a school-owned printing press during Obrecht's graphic arts class. The complaint alleges that Bollinger sustained permanent injuries as a result of Obrecht and the School's negligence and willful misconduct in removing safety devices normally covering the rollers. Defendants Obrecht and the School asserted, by way of new matter, governmental immunity as affirmative defenses, 42 Pa. C.S. §§ 8541-8564.

Obrecht and the School moved for summary judgment, contending that Bollinger's entire claim was barred because it was not within a statutory immunity exception, 42 Pa. C.S. § 8542(b); that there was no willful misconduct supporting her punitive damages claim, 42 Pa. C.S. §§ 8549, 8550, 8553, and no "permanent disfigurement" supporting her claim for pain and suffering losses, 42 Pa. C.S. § 8553(a). The trial court denied the motion because there remained factual issues of whether the printing press was a fixture within the real property immunity exception, McCloskey v. Abington School District, 101 Pa. Commonwealth Ct. 110, 515 A.2d 642 (1986), rev'd on other grounds, 517 Pa. 347, 537 A.2d 329 (1988), and whether the evidence would show willful misconduct and permanent disfigurement.

[ 122 Pa. Commw. Page 565]

APPEALABILITY

Of course, we may not address the merits of this appeal unless we have jurisdiction. The Judicial Code vests this Court with appellate jurisdiction of "final" orders from the courts of common pleas. 42 Pa. C.S. § 762.*fn2

In determining appealability of orders, Pennsylvania courts adhere to the "final judgment rule," which holds that an appeal will lie only from a final order unless otherwise permitted by statute or rule. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Pa. R.A.P. 341(a).

Additionally, the Pennsylvania Rules of Appellate Procedure allow an appeal as of right from a non-final order if it falls within one of ...


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