Canon-McMillan School Dist. v. Bioni

• Decision Date: 07 April 1989
• Docket Number: CANON-M
• Citation: 127 Pa.Cmwlth. 317,561 A.2d 853
• Parties: , 55 Ed. Law Rep. 185 cMILLAN SCHOOL DISTRICT, Appellant, v. Teddy S. BIONI, Appellee. 2298 C.D. 1986 . On Remand from the Supreme Court
• Court: Pennsylvania Commonwealth Court

Page 853

561 A.2d 853

127 Pa.Cmwlth. 317, 55 Ed. Law Rep. 185

CANON-McMILLAN SCHOOL DISTRICT, Appellant, v. Teddy S. BIONI, Appellee.

2298 C.D. 1986

Commonwealth Court of Pennsylvania.

On Remand from the Supreme Court April 7, 1989.

Decided July 13, 1989.

Reargument Denied Sept. 29, 1989.

John C. Pettit, W. Patric Boyer, Pettit & Johnson, Washington, for appellant.

Samuel Y. Stroh, Paul W. Stefano, Pittsburgh, for appellee.

Before CRUMLISH, Jr., President Judge, and DOYLE, BARRY, COLINS, PALLADINO, McGINLEY and SMITH, JJ.

PALLADINO, Judge.

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. ¹ Canon-McMillan School District v. Bioni (Canon-McMillan II ), --- Pa. ----, 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). ² 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 nonsuit and a directed 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 which they are annexed; these become part of the realty or remain personalty, depending on the intention of the parties at the time of annexation....

Clayton v. Lienhard, 312 Pa. 433, 436-37, 167 A. 321, 322 (1933). We concluded in Canon-McMillan I that the lathe falls into the third category noted by the supreme court. We have again reviewed the record in this case, ³ and, once again we conclude that the lathe falls into the third category. The record clearly establishes that the lathe is physically connected with the real estate, and that it can be removed without destroying or materially injuring the lathe or the property to which it is annexed. Thus, the lathe could be personalty or realty, depending on the intention of the parties at the time of annexation.

In determining intent, " 'it is not so much what a particular party intended his legal rights to be, as it is what intended use of the property was manifested by the conduct of the party.' " McCloskey v. Abington School District, 101 Pa. Commonwealth Ct. 110, 114, 515 A.2d 642, 644 (1986) ⁴ (quoting Clothier, The Law of Fixtures in Pennsylvania, 32 Pa.B.Q. 66, 66-67 (1960-61)). The conduct of the School District establishes that it did not intend to make the lathe part of the realty. The undisputed facts, as detailed in Canon-McMillan I, 110 Pa. Commonwealth Ct. at 594, 533 A.2d at 183, are as follows:

[T]he wood lathe (1) was cast iron and weighed approximately 800 pounds, (2) had holes in each of its four feet for attachment but had not been attached to the floor, (3) was connected with a flexible electric wire to an electrical duct on the wall at the time of the accident, (4) had been moved to a different room at least once, and (5) had been moved short distances within the classroom for cleaning, coursework and classroom redesign.

School District witnesses testified that the lathe had not been attached to the floor because the industrial arts department needed flexibility, N.T. at 178-181, 198; that the industrial arts program was modified at the direction of the Department of Education to accommodate an exploratory program, N.T. at 176, 184-85; that the lathe had been moved to...