Appeal from Common Pleas Court, Washington County, Honorable Samuel L. Rodgers, Judge.
John C. Pettit, W. Patric Boyer, Pettit & Johnson, Washington, for appellant.
Samuel Y. Stroh, Paul W. Stefano, Pittsburgh, for appellee.
Crumlish, Jr., President Judge, and Doyle, Barry, Colins, Palladino, McGinley and Smith, JJ. Craig, J., did not participate in this case. Smith, J., dissents. Crumlish, Jr., President Judge, dissenting. Doyle, J., joins in this dissent.
[ 127 Pa. Commw. Page 319]
This case is before us on remand from the supreme court. In Canon-McMillan School District v. Bioni (Canon-McMillan I), 110 Pa. Commonwealth Ct. 584, 533 A.2d 179 (1987), we reversed the order of the Washington County Court of Common Pleas (trial court) denying Canon-McMillan School District's (School District) motion for post-trial relief, and ordered a new trial. The School District appealed to the supreme court. The matter was remanded to this court for a determination of the legal question of whether the wood lathe involved in this case is realty or personalty.*fn1 Canon-McMillan School District v. Bioni (Canon-McMillan II), 521 Pa. 299, 555 A.2d 901 (1989). If the lathe is real property, then Bioni's cause of action falls within the real property exception to immunity found in section 202 of the Political Subdivision Tort Claims Act (Act).*fn2 If the lathe is personalty, then the legislature has not waived the immunity of the School District, and, accordingly, the School District is immune from suit.
The background facts are as follows. In March of 1979, Teddy S. Bioni suffered an injury to his left eye when a wooden bowl, which Bioni was sanding on a wood lathe, broke apart. At the time, Bioni was performing an in-class assignment for his "Industrial Materials" course at Canon-McMillan High School. In 1981, Bioni filed a trespass action against the School District. In its answer and new matter, the School District pleaded the affirmative defense of governmental immunity under the Act.
In November of 1983, the School District filed a motion for summary judgment, which was denied by the trial court. Thereafter, in October of 1985, a jury trial was held. At the appropriate stages of the proceedings, the School District made motions for a compulsory non-suit and a directed
[ 127 Pa. Commw. Page 320]
verdict; the trial court denied both motions. The jury returned a verdict in favor of Bioni, and awarded damages of $150,000. The School District filed a motion for post-trial relief, requesting, alternatively, judgment notwithstanding the verdict (JNOV) or a new trial. The trial court, en banc, denied the School District's motion for post-trial relief and directed judgment on the verdict. The School District appealed to this court.
Upon appeal, the School District argued, inter alia, that the uncontroverted facts of the case established that the lathe was personalty; accordingly, the School District argued, Bioni's cause of action could not fall within the real property exception to immunity. Additionally, the School District argued that the question of whether the lathe is personalty or realty is one of law, and, therefore, the question should not have been submitted to the jury. We concluded that because a determination of intent was necessary, the trial court did not err in submitting to the jury the question of whether the lathe is realty or personalty. The supreme court has ordered that we determine, as a matter of law, whether the lathe is realty or personalty.
We note here, as we did in Canon-McMillan I, the supreme court's seminal language on questions of the legal status of property:
Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty. . . . Second, those which are so annexed to the property, that they cannot be removed without material injury to the real estate or to themselves; these are realty. . . . Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to ...