The opinion of the court was delivered by: Judge McGINLEY
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
In this interlocutory appeal by permission,*fn1 the Philadelphia Housing Authority (PHA)*fn2 and the administratrix and personal representative (Plaintiff) of the estate of decedent Nance appeal the October 24, 2008, Order of the Court of Common Pleas of Philadelphia County (trial court) which denied the parties' cross-motions for summary judgment on the issue whether Plaintiff's claims are barred by sovereign immunity.*fn3
On October 7, 2004, a three-alarm fire occurred at Plymouth Hall, a four story, 70-unit apartment building for senior citizens with low to moderate income located in Philadelphia, Pennsylvania. Plymouth Hall is owned and operated by the PHA. The fire, smoke and soot contributed to injuries of many of the tenants and the deaths of three tenants: Nance, Henrietta Alston and Geraldine Thornton.
The common hallway of the premises contained an automatic four zone fire alarm system equipped with audible horns and strobe warning devices. According to the expert report of Sure Guard, NFPA [National Fire Protection Association] standards require "a minimum of 70 decibels at the pillow within a bedroom area." Report of Sure Guard, May 1, 2008 (SureGuard Expert Report), at 8; R.R. at 629a. Prior to the fire, Zone #1 of the fire alarm system was disconnected or bypassed by a PHA employee leaving 53 heat detectors, or 50% of the first floor heat detection system non- functional. As a result, the heat detector circuit in Nance's apartment failed, activation of the main fire alarm system was delayed, and the tenants were not timely warned.
Sure Guard Expert Report at 22; R.R. at 643a. Because Plymouth Hall did not have fire stops installed above the suspended ceilings nothing prevented the spread of fire and smoke between apartments. However, each individual apartment was equipped with a smoke detector.
Plaintiff's experts opined that if the heat detectors in Zone #1 were not disconnected, the building's main alarm system, which included the horns and strobe lights, would have been activated "within one minute 41 seconds to two minutes and 40 seconds." Report of Sure Guard, May 1, 2008, at 9; Reproduced Record (R.R.) at 630a.
According to eyewitness accounts produced by Plaintiff, by the time the alarms sounded, there was dark smoke in the hallways of the second and third floors and smoke was coming out of the second floor elevator shaft, which was located 100 feet from Nance's apartment.
The Philadelphia Fire Department and the Fire Marshall concluded that the fire originated in the "interior of apartment 104", Nance's apartment. Philadelphia Fire Department, Fire Marshal's Office, Report of Fire Alarm, (Fire Marshal Report), October 7, 2004, at 7; R.R. at 292a. The cause of the fire was "unattended cooking equipment" on a lit gas stove. Fire Marshal Report at 7; R.R. at 292a. A paramedic who attempted to rescue Nance through the first floor window of Apartment 104 testified that he saw Nance sitting on a bed which was fully engulfed in flames. Nance died from thermal burns and smoke inhalation. His body was discovered in the hallway outside his apartment.
On September 28, 2006, Plaintiff asserted wrongful death and survival claims against, among others, the PHA. Counts I and II of the ten-count Complaint addressed PHA's alleged negligence. Both Counts I and II are based upon theories of failure to inspect, failure to discover, failure to install and/or maintain, failure to warn and failure to comply with Philadelphia Fire and Building Codes. Both counts are identical in alleging that PHA was negligent in the following:
24. Defendant, the Philadelphia Housing Authority, breached its duties to decedent, Herman Nance, by being careless and negligent in:
(a) creating a dangerous condition of real property by failing to provide and maintain a safe and adequate fire/smoke protection system for the residents of the building . . . .
(b) creating a dangerous condition of real property by allowing the fire warning and/or suppression system to be disabled, either wholly and/or in part;
(c) failing to install and/or maintain an adequate fire/smoke detection system including, but not limited to, smoke detectors, fire hydrants and sprinklers in compliance with the applicable statutory regulations, including the Philadelphia Fire Code, the Philadelphia Building Code and all other relevant codes, rendering the premises unsafe as to invitees, licensees or others legally on the premises;
(d) failing to comply with applicable building codes, City laws, ordinances and regulations, relating to the maintenance of the aforementioned premises and specifically with requirements corresponding to the fire warning and suppression system and the number of entrances and exits to the premises;
(e) creating and maintaining a dangerous condition i.e., a building without a safe and adequate fire safety system, despite the appearance that there was such a system in operation at all times;
(f) failing to discover and correct the dangerous condition;
(g) failing to take reasonable care under the circumstances to avoid injury to residents . . . from fires in the building;
(h) failing to provide emergency lighting, fire extinguishing devices, or other safety devices which would have prevented or minimized injury to residents including the decedent;
(i) failing to act to remedy the aforesaid conditions, despite having been notified and issued citations corresponding to these defective conditions by the Philadelphia Department of Licenses and Inspections;
(j) failing to take effective action upon notice of defects and/or defective conditions relating to the premises, including defects and/or defective conditions in the fire protection and/or suppression systems and the manners in which residents and their guests entered or exited the property;
(k) failing to provide sufficient warnings as to the reasonable, foreseeable defects and/or dangerous nature of the premises to such invitees, licensees and others legally on the premises;
(l) failing to test and/or inspect the premises to determine whether said premises was dangerous to invitees, licensees and/or others legally on the premises;
(m) creating a dangerous condition by failing to install door closers to adequately contain a foreseeable fire;
(n) creating a dangerous condition by failing to have fire rated doors;
(o) creating a dangerous condition by failing to have fire rated locks on its doors;
(p) creating a dangerous condition by removing or permitting the removal of the original plaster and drywall ceiling thereby making the building more vulnerable to a fire;
(q) creating a dangerous condition by installing or permitting the installation of a drop ceiling which made the ...