Blocker v. City of Philadelphia

• Decision Date: 04 May 1999
• Citation: 729 A.2d 187
• Parties: Wendy BLOCKER, Appellant, v. CITY OF PHILADELPHIA.
• Court: Pennsylvania Commonwealth Court

729 A.2d 187

Wendy BLOCKER, Appellant, v. CITY OF PHILADELPHIA.

Commonwealth Court of Pennsylvania.

Argued October 5, 1998.

Decided May 4, 1999.

As Amended May 5, 1999.

Patricia J. Conney, Philadelphia, for appellant.

Alan C. Ostrow, Philadelphia, for appellee.

Before SMITH, J., PELLEGRINI, J., and McCLOSKEY, Senior Judge.

McCLOSKEY, Senior Judge.

Wendy Blocker appeals an order of the Court of Common Pleas of Philadelphia County, First Judicial District, that granted the City of Philadelphia's (City) motion for summary judgment pursuant to what is popularly called the "Political Subdivision Tort Claims Act" (Tort Claims Act).¹ The common pleas court granted the City's motion for summary judgment because it determined that the City's conduct did not fall within any exception to governmental immunity (or, more specifically, within the "real property" exception).

According to her complaint, on August 10, 1994, Blocker was a business invitee of the Robin Hood Dell East, which facility is owned, possessed, controlled and maintained by the City, when she fell from defective and unsafe bleachers, which the City did not adequately maintain. Blocker sustained multiple injuries, including injuries to the head, neck and back. In its reply to Blocker's complaint, the City raised as new matter, inter alia, the affirmative defense of the Tort Claims Act and the local agency immunity provided thereby. The parties engaged in discovery and, on February 10, 1997, Blocker's attorney deposed Warren Haskins, the Robin Hood Dell East General Manager. Haskins testified that the bench upon which Blocker had been sitting broke because of "[d]eterioration" and that the wooden bleachers "were just a vestige that had never been removed." (Notes of Testimony, N.T., Deposition Testimony of Warren Haskins, February 10, 1997, pp. 14, 27).

Thereafter, the parties proceeded to arbitration on May 8, 1997. At that time, Haskins testified that the bleachers had been previously removed, although he had no documentation to bolster his statement. (See generally N.T., Arbitration Testimony of Warren Haskins, May 8, 1997, pp. 7-11). He further testified that the bleachers are not attached to the ground and that nothing would happen to either the bleachers or the ground if the bleachers were removed. (N.T., Haskins' Arbitration Testimony, 5/8/97, p. 31). The arbitrators found in Blocker's favor and awarded her a total of $33,218.80 for the payment of medical bills and for pain and suffering. The City then filed a notice of appeal with the common pleas court. As already set forth, the common pleas court eventually granted the City's motion for summary judgment, agreeing with the City that the defective bleacher was not a permanent fixture or condition of the real estate, but personalty, which did not fit within any immunity exceptions.

Blocker now appeals to this Court, raising four questions for our review.² Blocker asks: 1) whether the common pleas court erred in granting summary judgment, since the oral depositions of the moving party, without more, are insufficient to support a motion for summary judgment; 2) whether the common pleas court erred in dismissing the City as a party, since a genuine issue of material fact exists as to whether the bleacher from which Blocker fell constitutes a fixture; 3) whether the common pleas court erred in finding that the facts at issue do not involve a negligent act connected with the care, custody or control of real property in the City's possession; and 4) whether this case should be remanded to the common pleas court for further consideration in light of Martin v. City of Philadelphia, 696 A.2d 909 (Pa.Cmwlth.1997) and Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997).³ We first consider Blocker's argument that the trial court erred in granting the City's summary judgment motion where no documentation supported the testimonial evidence that the City submitted through its witness, Warren Haskins.

As our Supreme Court explained in Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989):

In determining the existence or non-existence of a genuine issue of a material fact, courts are bound to adhere to the rule of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony.

"`However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence': Reel v. Elder, 62 Pa. 308."

309 Pa at 238, 163 A. at 524. The Nanty-Glo rule means that:

"Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury."

Goodrich-Amram, 2d, supra, § 1035(b): 4 at pp. 434-35.

(Emphasis in original). See also Pennsylvania Rules of Court 1998, Note to Pa. R.C.P. No. 1035.2.

Here, Haskins' testimony raises a genuine issue of material fact with respect to whether the bleacher from which Blocker fell was meant to be removed from the Robin Hood Dell East grounds. As previously stated, Haskins testified before arbitration that the bleacher in question had not been removed, and he testified after arbitration that it had been removed, although he had no documentation to support his altered testimony. Because Haskins' testimony wavered on this salient point, and because it is the province of the jury to assess the credibility of his testimony, we hold that the common pleas court improperly entered summary judgment on this record.

Our holding to this effect is made the more reasonable when viewed in light of the development of the law of fixtures.⁴ For example, in In Re Appeal of Sheetz, Inc., 657 A.2d 1011 (Pa.Cmwlth.1995), appeal denied, 542 Pa. 653, 666 A.2d 1060 (1995), a case involving canopies that were mounted on pillars attached by bolts to the ground, we considered whether these canopies were part of the realty and therefore taxable as real estate. In doing so, we quoted from Gore v. Bethlehem Area School District, 113 Pa.Cmwlth. 394, 537 A.2d 913, 915 (1988), appeal denied, 519 Pa. 656, 546 A.2d 60 (1988), stating:

The considerations to be made in determining whether or not a chattel becomes a fixture include (1) the manner in which it is physically attached or installed, (2) the extent to which it is essential to the permanent use of the building or other improvement, and (3) the intention of the parties who attached or installed it.

Appeal of Sheetz, 657 A.2d at 1013. (Emphasis added). See also Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994).

Admittedly, on this record, there is no evidence that the bleacher from which Blocker fell was attached to the ground. However, since there is evidence, presented through Haskins' testimony, that the City never intended to remove the bleacher from the Robin Hood Dell East grounds, we consider it insufficient to dismiss Blocker's cause of action on the basis that the "vestigial" bleacher from which she fell may not have been bolted to the ground. This is true because, were the bleacher so attached, she would clearly be able to pursue her claim.

While in DeRitis v. City of Philadelphia, 136 Pa.Cmwlth. 244, 582 A.2d 738 (1990), we upheld a grant of summary judgment where the plaintiff, after being nudged by an unidentified spectator, fell from a bleacher erected on City property, there exist important distinctions between that case and the one herein. First, in DeRitis, we explained that no factual dispute existed as to whether the bleacher from which the plaintiff fell was a temporary structure. We further stated that, given the temporary nature of its placement, the bleacher was not an improvement and not intended by the City to become a part of the real estate. In the matter sub judice, however, a factual dispute, created by Haskins' inherently conflicting testimony, exists as to whether the City intended the bleacher from which Blocker fell to be removed for various City-related functions. Moreover, in DeRitis, the plaintiff suffered injury at the hands of an unidentified third party, while, here, Blocker allegedly fell due to the deteriorated condition of the wooden bleacher itself.

For us now to hold that the instant facts do not concern a negligent act connected with the care, custody or control of real property would be precipitous, particularly in light of two recent cases shedding light on the subject at bar. In Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997), a plurality of the Supreme Court held that a fire chief and a fire association were not immune from suit when a can of paint thinner used by the fire chief to remove paint from the fire house floor ignited, severely injuring a visitor to the station.

The Supreme Court stated in Grieff:

Here, Grieff's care of the Fire Association's property caused the fire that injured Reisinger. While he was removing paint from the floor, therein caring for the real property, it ignited causing the resultant injuries to Reisinger. Under the real property exception's plain language, Grieff and the Fire Association are not immune from suit.

This case is unlike cases where the Court held that the real property exception did not apply because the government's property only facilitated injuries caused by third parties. In Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), a juvenile escaped from a detention center and attacked a family. The municipality allegedly failed to maintain its property and allowed the juvenile to escape. We held that the municipality was immune from suit because under the

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