DeRitis v. City of Philadelphia
| Decision Date | 20 November 1990 |
| Citation | 136 Pa.Cmwlth. 244,582 A.2d 738 |
| Parties | Nancy A. DERITIS, Appellant, v. CITY OF PHILADELPHIA, Appellee. |
| Court | Pennsylvania Commonwealth Court |
David M. Molnar, Gerson, Capek & Voron, Philadelphia, for appellant.
Charisse Lillie, City Solicitor, with her, Norma S. Weaver, Chief Deputy in charge of Claims, Miriam B. Brenaman, Deputy Solicitor for Appeals, Alan C. Ostrow, Asst. City Solicitor, Philadelphia, for appellee.
Before SMITH and KELLEY, JJ., and BARRY, Senior Judge.
Nancy A. DeRitis appeals from an order of the Court of Common Pleas of Philadelphia County granting the motion for summary judgment of the City of Philadelphia (City) and dismissing DeRitis' complaint. The order of the trial court is affirmed.
DeRitis filed a complaint against the City alleging injuries which occurred when she was caused to fall from a bleacher erected on City property. The complaint contained a number of averments of negligence against the City concerning the unsafe condition of the bleachers as well as general allegations of negligence. A deposition of DeRitis revealed that the alleged injuries occurred when DeRitis was attempting to take a seat on the top row of a bleacher to watch a parade and was nudged over the back of the bleacher by an unknown spectator, causing her to fall approximately four feet to the ground below. The bleacher had neither handrails nor guardrails. The City stated in answers to interrogatories that the bleachers were temporary structures erected by the City's Recreation Department and were eventually removed from the site.
The City moved for summary judgment on the grounds that DeRitis' action was barred by the governmental immunity provisions of Sections 8541-8542 of the Judicial Code (Code), 42 Pa.C.S. §§ 8541-8542. DeRitis answered the City's motion and attached "new matter" which alleged that City police were on duty during the parade but failed to supervise or monitor the spectators taking to the bleachers. Section 21- 701 of the Philadelphia Code precludes the City from pleading governmental immunity as a defense in a civil action alleging bodily injury caused by the negligence of any police officer while the officer is acting within the scope of his or her duty. The trial court granted the City's motion, finding that DeRitis' claim against the City did not fall within any of the eight exceptions to local governmental immunity and that DeRitis' allegations concerning the failure of the City's police to supervise the crowds were improperly raised. DeRitis has appealed to this Court arguing that the trial court erred in finding the City immune because (1) her claim falls within the real estate exception to local governmental immunity set forth in 42 Pa.C.S. § 8542(b)(3), and (2) her claim alleges that the City's police were negligent in their supervision of the crowd on the bleachers, thus precluding the City from invoking an immunity defense under Section 21-701 of the Philadelphia Code.
The standards for granting a motion for summary judgment are well known. The motion may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law." Pa.R.C.P. No. 1035(b). In making this determination, the court must view the record in a light most favorable to the nonmoving party and resolve all doubts against the moving party. El Concilio de los Trabajadores de la Industria de los Hongos v. Department of Environmental Resources, 86 Pa.Commonwealth Ct. 219, 484 A.2d 817 (1984). In reviewing an order granting a motion for summary judgment, this Court's scope of review is limited to determining whether the trial court committed an error of law or manifestly abused its discretion with regard to the above standards. Miller v. Emelson, 103 Pa.Commonwealth Ct. 437, 520 A.2d 913 (1987).
DeRitis' complaint alleges a defective condition not of land owned by the City but of a bleacher erected upon that land. Section 8542(b)(3) of the Code, which permits the imposition of liability on a local government agency for acts arising from the care, custody, and control of real property in its possession, would therefore apply only if the bleacher can be considered real property as opposed to personal property; that is, if the bleacher is a fixture upon the real property. See Canon-McMillan School Dist. v. Bioni, 127 Pa.Commonwealth Ct. 317, 561 A.2d 853 (1989); Maloney v. City of Philadelphia, 111 Pa.Commonwealth Ct. 634, 535 A.2d 209 (1987), appeal denied, 519 Pa. 669, 548 A.2d 258 (1988). This Court has noted that chattels placed upon real property fall into one of three categories:
First, those which are manifestly furniture, as distinguished from improvements, and not particularly 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...
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...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, ......
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