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NATHAN DIMINO v. BOROUGH POTTSTOWN (09/25/89)

decided: September 25, 1989.

NATHAN DIMINO, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, JOHN DIMINO AND ELEANOR DIMINO, AND JOHN DIMINO AND ELEANOR DIMINO, HUSBAND AND WIFE, IN THEIR OWN RIGHT
v.
BOROUGH OF POTTSTOWN, SCHOOL DISTRICT OF POTTSTOWN, RECREATION CONSULTANTS AND FLOYD G. HERSH, INC. APPEAL OF BOROUGH OF POTTSTOWN, APPELLANT. NATHAN DIMINO, ET AL. V. BOROUGH OF POTTSTOWN AND RECREATIONAL CONSULTANTS, INC., ET AL. APPEAL OF SCHOOL DISTRICT OF POTTSTOWN, APPELLANT



PETITION FOR PERMISSION TO APPEAL AN INTERLOCUTORY ORDER Common Pleas Montgomery Honorable Anita B. Brody, Honorable Richard S. Lowe, Judge.

COUNSEL

Joseph T. Bodell, Jr., with him, Louis A. Bove, Swartz, Campbell & Detweiler, Philadelphia, for appellant, Borough of Pottstown.

David J. Otis, Media, with him, Craig S. Hudson, Liebert, Short & Hirshland, Philadelphia, for appellant, School Dist. of Pottstown.

Mark A. Lublin, with him, Ruth R. Wessel and Nicholas Poduslenko, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, for appellees.

Crumlish, Jr., President Judge, McGinley, J., and Narick, Senior Judge.

Author: Mcginley

[ 129 Pa. Commw. Page 157]

Before us are the consolidated interlocutory appeals of the Borough of Pottstown (Borough) and the School District of Pottstown (School District) filed pursuant to respective orders of the Court of Common Pleas of Montgomery County (common pleas court) which pursuant to Section 702(b) of the Judicial Code, 42 Pa.C.S. § 702(b) certified for appellate review*fn1 its denial of motions for summary judgment filed on behalf of the Borough and School District to a civil action brought by Nathan DiMino (Nathan), a minor,

[ 129 Pa. Commw. Page 158]

    and his parents, John and Eleanor DiMino (DiMinos) to recover damages for injuries Nathan sustained as a result of a bicycle accident.

On September 9, 1981, Nathan, then fourteen years old, sustained severe injuries including a shattered kidney which was surgically removed, permanent brain damage and permanent disfigurement when he lost control of his bicycle in a gravel storm sewer ditch or ravine (storm ditch) and struck a concrete cylinder drain capped by a manhole cover. The storm ditch was surrounded on both sides by the Borough's Maple Street Playground (playground) which contains tennis courts, two baseball fields, basketball courts and various playground equipment. Although the playground, jointly operated by the Borough and School District, was fenced in, the storm ditch was not.

On May 25, 1983, Nathan and his parents, filed a civil action for damages alleging the Borough and School District were negligent in knowingly allowing a dangerous condition to exist on the playground and failing to take any measures to protect children from possible injury.

After the close of the pleadings, the Borough and School District filed motions for judgment on the pleadings asserting they were immune from suit under Section 8541 of the Judicial Code, 42 Pa.C.S. § 8541 and the Recreation Use of Land and Water Act (Recreation Act), Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P.S. §§ 477-1 to 477-8. The motions were denied and the Borough and School District subsequently filed motions for summary judgment, again claiming immunity. The common pleas court denied the motions without prejudice, granting the Borough and School District leave to refile their motions for summary judgment based upon this Court's decision in Farley v. Township of Upper Darby, 100 Pa. Commonwealth Ct. 535, 514 A.2d 1023 (1986). The Borough and School District refiled the motions for summary judgment. The motions were again denied, but the common pleas court subsequently certified for review the Borough and School District's interlocutory appeals under Section 702(b) of the

[ 129 Pa. Commw. Page 159]

Judicial Code, 42 Pa.C.S. § 702(b). This Court subsequently ...


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