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RUTH ANN WILSON AND SHERIDAN WILSON v. CRAIG MILADIN (02/10/89)

decided: February 10, 1989.

RUTH ANN WILSON AND SHERIDAN WILSON, JR., HER HUSBAND, APPELLANTS
v.
CRAIG MILADIN, THE MIDLAND AREA SCHOOL DISTRICT, DALE STUBY AND ROCHESTER AREA SCHOOL DISTRICT, APPELLEES



Appeal from the Order of the Court of Common Pleas of Beaver County, in the case of Ruth Ann Wilson and Sheridan Wilson, Jr., her husband v. Craig Miladin, The Midland Area School District, Dale Stuby and Rochester Area School District, No. 981 of 1986.

COUNSEL

John A. Clay, for appellants.

James A. McGregor, Jr., for appellee, Rochester Area School District.

Scott D. Glassmith, with him, Charles A. Buchel, Jr., Rosenberg, Kirschner, P.A., for appellee Craig Miladin.

Judges Barry and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 123 Pa. Commw. Page 406]

Ruth and Sheridan Wilson appeal a Beaver County Common Pleas Court order granting the summary judgment motions of Craig Miladin (Miladin) and Rochester Area School District (Rochester). We affirm.

Ruth Wilson was injured attending the 1984 Midland Area at Rochester high school football game. As she waited in the refreshment line, Wilson was knocked to the ground by Miladin, a Midland player leading his team from the visitor's locker room after halftime.

[ 123 Pa. Commw. Page 407]

The pleadings alleged that Miladin negligently struck Wilson, causing her injuries. Against Rochester, it was further alleged that the placement of the concession stand in close proximity to the locker room constituted a defect in the real property in the care, custody and control of that school district.

Both Miladin and Rochester's subsequent summary judgment motions were granted. The common pleas court concluded that Miladin was an "employee" of Midland Area School District as defined in Section 8501 of the Judicial Code, 42 Pa. C.S. ยง 8501, and was, therefore, entitled to governmental immunity.*fn1 The court also concluded that the real property exception to immunity*fn2 did not apply. Thus, it held that Rochester was not liable.

In reviewing a grant of summary judgment, our scope of review is limited to determining whether the common pleas court committed an error of law or an abuse of discretion. Farley v. Township of Upper Darby, 100 Pa. Commonwealth Ct. 535, 514 A.2d 1023 (1986). Summary judgment is appropriate only when, examining the record in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the movant clearly establishes that he or she is entitled to judgment as a matter of law. Ellis v. SEPTA, 116 Pa. Commonwealth Ct. 299, 541 A.2d 843 (1988).

The Wilsons initially contend that the common pleas court erred in concluding that Rochester was immune. They maintain that the real property exception applies, because the location of the concession stand near the locker room ...


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