*2 McEWEN, HOFFMAN, Before TAMILIA and JJ. TAMILIA, Judge:
Appellants contend that the lower court erred in sustain- ing appellees’ preliminary objections in the nature of a demurrer to of appellants’ counts IV and V amended com- and in plaint dismissing complaint the amended and, appellees. disagree We affirm the accordingly, Order of the court below. 10, 1981, September appellants Bridget
On her Casey and *3 daughter, Lisa, complaint against filed a defendant James Geiger alleging imprisonment, false assault and battery, distress, and intentional against infliction of emotional appellees, Hill Borough Camp Janssen, and Andrew 23, Borough Manager, alleging negligence.1 On September appellees filed preliminary the nature of a objections V, counts, demurrer to negligence counts IV complaint. Appellees appellants claimed that failed to state a cause of action them in against accordance with the Act, Political Subdivision Tort Claims 42 Pa.C.S.A. 8541 et § seq. 53 P.S. et (formerly seq.) 5311.101 cited [hereinafter as the The court below sustained the on objections “Act”]2 November 2 and in support filed thereof a Memorandum Opinion 4, basing November its decision on Chapman v. Although complaint 1. the docket sheet indicates that the was filed on 10, August complaint stamped September this is error because the is 10. 26, 1978, 1399, amended,
2. Act of November P.L. as 53 P.S. 5311.101-.803, 5, 1980, 693, repealed by §§ the Act of October P.L. Code, now codified in sections 8541-64 of the Judicial 42 Pa.C.S.A. gave 8541-64. “Because the §§ incident which rise to the cause of prior repeal, action herein occurred to its the Political Subdivision controlling purposes Tort Claims Act is for the of this case.” Close v. 205, Voorhees, 5, 728, (1982). 67 Pa.Commw. 208 n. 446 A.2d 730 n. 5 281, 434 Pa.Super A.2d 753 City of court, however, appellants’ leave to file granted 12, April did on complaint, they an amended 16, the same April objections On filed The lower court sustained the amended counts IV and V. complaint dismissed the amended objections, opinion support and filed an thereof on June appellees, This relying primarily upon Chapman. appeal again followed. in the nature of a considering preliminary objections
demurrer, applied: standard is following pleading preliminary in the
It is axiomatic law in the nature a demurrer admit as true all objections material, factual averments and clearly pleaded well and therefrom____ Conclu- fairly all inferences deducible inferences are not admitted unjustified sions law from of reference Starting point this pleading. to determine it complaint must be examined whether which, if would entitle proved, sets forth a cause of action case, If sought. to the relief such is the party hand, the other demurrer not be sustained. On may action, forth a cause of complaint where the fails set in the nature of a demurrer preliminary objection sustained____ properly Weber, Pa.Super.
Abarbanel v. (1985) (citations omitted). appellants allege In their amended complaint, 19, 1979, Lisa then appellant Casey, On following: June old, participated swimming sponsored ten lessons years *4 Park, Memorial a recreation- by appellee Borough at Seibert Borough for use park facility operated by al owned and (2) Bridg- by Borough; appellant the residents of the solely mother, to appellee et Lisa’s an annual fee Casey, paid her children were entitled Borough for which consideration Park; (3) in at of the recreational facilities about to use 19, 1979, appellant, Lisa morning 10:40 on the of June lesson, proceeded her to Casey, completing swimming after Park; (4) 10:45 a.m. defendant through walk at about conversation, in then Geiger engaged appellant Casey Lisa her into up a ad carried the bushes forcibly picked Park he whereupon proceeded underbrush overgrown her; (5) the time of the and assault above-de- rape to incidents, Lisa an invitee of appellant Casey was scribed owed Lisa Borough; appellees appellant Casey, appellee invitee, protection care for her as an reasonable of care than that owed an adult greater duty and even a minor; (7) failed appellant appellees invitee because was (a) in failing care and were negligent to exercise reasonable in the or adequate police form provide protection against her as an invitee personnel protect security (b) by permitting criminal acts of third underbrush persons, thus overgrown facilitating the Park to become such acts, (c) nonresident, allowing Geig- criminal defendant er, Park gain entrance into the and remain there without there, (d) being as to his being questioned purpose reason of or should the fact that knew have type known that criminal act committed appellant likely, rape young girl as a of a had occurred appellant; the Park months before the attack on only (8) by daughter to attend the permitting swimming her lessons, relied rea- appellant justifiably upon appellees to sonably provide daughter’s safety. Accepting for her true, appellants above facts as find that have failed to we state a claim upon may granted. which relief begin noting
We our that 42 analysis by Pa.C.S.A. 8541 § provides: immunity generally 8541. Governmental
§ Except provided subchapter, otherwise this no local agency any damages shall be liable on account of any injury person by any or caused act of the local or an agency employee any thereof other person.3 Tort legislative Political Subdivision Claims Act was a
response to the claims proliferation liability against gov- ernmental following Ayala Philadelphia units Board of units, agencies government appellee Borough 3. Local are such as Hill, Camp government. other than the Commonwealth See 42 Pa.C. S.A. *5 284 Education,
Public (1973), Pa. which governmental law immu- abrogated the common doctrine The Political Subdivision generally Comment, nity. Response Prob- Pennsylvania’s Tort Claims Act: to the Liability, lems Tort Municipal 84 Dick L.Rev. provides immunity, Act generally While the which, forth if Pa.C.S.A. 8542 sets several conditions § fulfilled, liability Specifical- will on a local impose agency.4 ly, provides: section 8542 governmental immunity Exceptions 8542. to
§ Liability imposed. (a) agency local shall liable be —A or injury person on account of an a damages limits forth in this if subchapter the set property within are and the following both conditions satisfied as a result of one of acts set forth injury occurs (b): subsection
(1) common The would recoverable under damages creating a cause of action if the injury law or statute having a defense by person were caused available governmental immunity under (relating section of official generally) (relating or section 8546 defense immunity); and negligent acts of the by was caused injury thereof within acting
local or an agency employee respect to one of scope of his office or duties with (b). para- As used in this categories listed subsection not include acts or conduct graph, acts” shall “negligent fraud, crime, or actual actual malice which constitutes willful misconduct.
(b) liability. following may impose Acts which —The result employees may or of its by agency any acts local a local imposition agency: in the on liability by Liability governed appellee Janssen Pa.C.S.A. 8545: 4. damages employee agency is liable for civil An of a local person any injury account of to a caused acts only employee scope office are within of his or duties agency employing subject same his local extent as imposed subchapter. this limitations Further, employees also have the benefit of defenses enumerated §in *6 care, (3) or control of property. custody Real —The in of the local property possession agency, except real agency damages that the local shall be liable for any injury by person intentionally account of sustained a in trespassing possession on real of the local in paragraph, property” As used this “real shall agency. not include: trees, controls,
(i) other signs, lights traffic and traffic and street lights lighting systems: street steam, water, (ii) sewer, of electric gas facilities systems agency owned the local and located within rights-of-way;
(iii) streets; or
(iv) sidewalks.5 section, one construing keep above must govern mind is of exception general that it an rule Therefore, immunity mental that is stated section 8541. a of the rules of construction proper application statutory eight dictates of the interpretation a strict and narrow 8542(b). categories liability of enumerated section (Purdon Supp.1984-85). Pa.C.S.A. See Borenstein (waiv- (Ed.Pa.1984) F.Supp. Philadelphia, of Moreover, construed). ers of are to immunity narrowly be reading eight categories liability a narrow of the of is also upon legislative mandated intent to consideration insúltate ex- political liability, subdivisions from tort pressed preamble of the Act. Pa.C.S.A. § (Purdon Supp.1984-85). 8542(b)(3) contend from
Appellants
strips
that section
appellees the cloak of
under sec-
immunity afforded them
care,
tion 8541 since the acts of
fall within “[t]he
eight
may impose liability
agency
5. The
acts which
on the local
are:
care,
(1)
(2)
liability;
personal
custody
motor vehicle
or control of
care,
(3)
(4)
danger-
property;
custody
property;
or control of real
trees,
(5)
lighting;
ous condition of
traffic
controls
street
facilities;
(6)
dangerous
utility
dangerous
of
condition
service
condi-
streets;
sidewalks;
care,
(8)
dangerous
tion of
condition
8542(b).
custody or control of animals.
42 Pa.C.S.A. §
property” exception.
of real
We dis-
custody,
control
v. Board
Vann
instructive case of
agree and refer to the
District
Pa.
Education
the School
(1983),
distinguished
wherein the
Id.
at
We out addition governmental to 8542 of the Code waive Section Judicial negligence for the con- liability immunity impose we do not read public property, maintenance of trol and in cases liability to a standard impose statute than that to immunity greater this to involving exception a dis- are held. While school private landowners in maintenance and negligence held for may trict liable invitee, injury public results to property control when District 310 Pa. see Bersani v. School (1983), A.2d 151 the School District Superior Ct. public or to the duty no to Javelle Vann here owed for criminal property to the use of its large prevent Surely, such as occurred in this case. had attacks private property, occurred on attack on Javelle Vann landowner would not be held liable private failure use, or to to secure his such for failure from property. on his areas unlighted illuminate therefore, held landowner, cannot be District School here. liable added). (emphasis n. 5 A.2d at 686 608 n.
Id. at decision has been language Vann The above Merriam, 506 recent case of Feld v. strengthened by Court (1984). Feld, Supreme In our 485 A.2d Pa. to tenant for liable landlord private held that a pre-exist- absent a persons third acts of unknown criminal or gratuitously landlord either such as where ing duty, negligently then duty, assumes compensation conclusion, the Feld Court reaching this it. performs stated: any a landlord has is whether question
The threshold
so,
if
under
persons,
of third
acts
duty
protect
holds landlords
Well settled law
circumstances.
what
of their
arising
from
out
injury
tenants
protect
safe
in a
premises
maintain their
failure to
negligent
Inc., 423 Pa.
Co.
Realty
v. M.P. W.
condition. See Smith
Gukenback, 391 Pa.
Lopez
(1958). That rule of law is addressed
359,
As noted in the Opinion Court, weakness Appellees’ argument demonstrated their failure to recognize a crucial distinction between the risks of injury from a condition of from criminal acts of person. a third In failing to maintain the condition of the common areas of the premises, leased the landlord’s conduct, has created risk of to a injury tenant. It is the responsibility of the landlord to abate the risk which his conduct has created. Liability may then imposed upon a landlord where injury results because of his conduct or failure to remove the risk of harm created by his conduct. The risk of from injury criminal acts arises not from landlord, the conduct of the but from the con- duct person. third
Id.,
506 Pa. at
J.,
In Cooper
v. City
390 Pa.
Pittsburgh,
(1957),
Court,
our Supreme
in reversing a judgment
the city, noted that while a city must exercise
reasonable care in maintaining its parks, playgrounds, etc.,
it is not an insurer of the
of children
safety
playing on its
public playgrounds. The Cooper Court stated that a munic-
ipality need only “supervise children to the same degree
that a reasonably prudent parent would do under the cir-
cumstances—in this
supervising
case
children over a 25 acre
playground.” Id.,
The effect of plaintiff’s contention would be to require the city to have sufficient supervisors (a) to supervise sixty minutes of every hour of every day the use by children swings, slides, sand boxes and other amuse- ment facilities common to playgrounds, (b) orga- nize and supervise hard and soft games ball and other sports, (c) to prevent fighting (d) and rowdyism, and to carefully safeguard watch and all the children playground entire he, virtually every minute she or they are there. Such a standard advocated by this plaintiff,
289 so so high it impose because would adopted cannot be city, make the as to degree of care unreasonable of child every effect, safety insurer of the an practical playground. enters the who Voorhees, 465. See Close
Id.,
Pa.C.S.A. § 8542(a)(1) them requires of section preliminary hurdle against municipal cause action to establish that their if case standards as would be the must meet the same ity Vann, being That being supra. sued. private party were so, a cause of action founded we note the elements of basic negligence are: upon law, requir- recognized by
1. A duty, obligation, certain to conform to a standard ing actor conduct, of others unreason- protection for the able risks. conform to the standard part
2. A his failure on required.
3. A reasonably close causal connection between the
conduct and the resulting injury____ 4. Actual loss or damage resulting to the interests of
another. Prosser, Torts, Law of (4th 30 ed.1971). at 143 § McAdams, Macina v. 115, 120, 280 Pa.Super. (1980). is a “[D]uty question of whether a defendant is
under any obligation for the
particular
benefit of the
plain-
tiffs,
negligence cases, the duty is always
same,
to conform to
legal
standard of reasonable conduct in
the light of apparent
Prosser,
risk.”
Torts,
Law
53 at
(4th ed.1971).
inquiry
Our
thus becomes whether the
appellees had
duty
to protect Lisa R. Casey from the
intentional criminal acts of a
party.
third
While a munici-
is
pality
under a duty to exercise reasonable care under all
circumstances,
we reiterate that it is not an insurer of
the safety of children
public parks.
Cooper, supra. See
also Zeman v. Borough
Canonsburg,
423 Pa.
(1966).
instance,
For
had Lisa R. Casey been
injured while swimming at a public pool because the Bor-
ough provided no lifeguard at the pool, the Borough would
be liable because it had a
duty
exercise reasonable care.
DeSimone v.
380 Pa.
Philadelphia,
Like the lower
we find the case of Chapman v.
City
Pa.Super. 281,
Id., at 434 A.2d Pa.Superior 290 Ct. 320 Pa.Su- City Philadelphia, Melendez v. Melendez by (1983) failing 59, A.2d 1060 not liable per. (city 466 neighborhood; no troubled protect injured racially minor existed); Musser, 84 Pa. special relationship Morris v. 170, complaint (plaintiffs’ Commw. to set forth inadequate police protection failed alleging relationship with necessary special facts establish police). on to state: Court went Chapman to
In her memorandum of law filed with her answer indicated that her preliminary objections, plaintiff city’s on Philadelphia predicated action Wayne that Junction city fact that the was aware area but particularly dangerous Railroad Station was proof It is clear that such nothing it did about it. sufficient to a cause of action because would not be state relationship existed special not establish that a it does In their plaintiff’s and the decedent. city between brief, special us to find that a appellants urge appellate city any exists individual relationship between We particularly dangerous in a area. injured who to do so. decline urge sweeping duty this court to
Appellants proclaim tort, anything any the law far protection beyond court or indeed our own State legislatures has been willing to recognize. 290 Pa.Super.
Id.
Appellants rely several cases where municipalities were found for injuries liable to children in public parks. Our careful review of these cases discloses that none of them dealt injuries with caused the criminal acts of third persons. See Cooper v. Pittsburgh, supra, DeSimone v. supra; Styer v. City Reading, supra; Hill v. Allentown Housing 373 Pa. Authority, (1953).8
Courts
recognized
have
that where there is a special
relationship between the victim and
police,
there may
follow some
provide police protection. See Miller v.
States,
United
530 F.Supp.
(E.D.Pa.1982)
(police agreed
to protect
informant).
an
A leading case
special
on the
relationship is
DeLong
Erie
County,
N.Y.2d
N.E.2d
(1983),
N.Y.S.2d 611
in which the New York
Court of Appeals held that the
actions
city
county
in holding out a 911 telephone
number
be called by
someone in need of emergency assistance constitutes a
*12
duty. Emphasizing
plaintiffs
reliance on the actions of
the city and
in
county
holding out the
as
number well as the
plaintiffs further reliance on the assurance that help was
Appellants argue
7.
Casey
public
that Lisa R.
proper-
was an invitee on
ty
Borough
However,
and therefore the
special duty.
owed her a
in
Chapman,
plaintiff
station;
public
was also an invitee at the
train
nevertheless,
special duty
this Court
part
found no
on the
municipality.
jurisdictions
8. Other
liability
have refused to find
under similar cir-
See,
Hillsboro,
e.g.,
235,
cumstances.
IlI.App.
Prickett v.
55 N.E.2d
(1944) (no liability
municipality
on behalf of
young
for death of
boy
party
shot
a
swimming
third
while
municipal
in a lake on
property despite
police
dangerous
fact that
propensities
knew of
of
party); Trujillo
564,
third
City
v.
Albuquerque, 93 N.M.
Appellants prior rape nevertheless contend that because attack,9 had occurred some months before the instant superseding appellees’ criminal act was not a cause of result, negligence, proximate they rather its cite but (Second) 44810in there support the Restatement of Torts § rape Appellees dispute appellants’ previous characterization of the occurring "only (Appellants’ Complaint Amended months before.” 11). Appellees' “alleged reported aver that the assault was June Appellants’ Interrogatories, Interrog- (Appellees’ 1976.” Answer to noted, however, demurrer, 15). upon atory ruling As we have we *13 accept appellants’ allegations must as true of fact. (Second) provides: The Restatement of Torts However, of. we find section appellants’ reliance on 448 to misplaced be since that section is only relevant to the question of causation in negligence and does action determine whether owed a of care to duty R. appellant, Lisa Casey. decision, wish to
Finally, point we out that our like this Court’s decision in is supported Chapman, sound policy If supervision considerations. the standard of and care implemented, questiona- the dissent were is it adopted by long any ble municipality how could its parks, maintain playgrounds pools. and swimming Due to the cost of premiums increased insurance police protection, added municipalities necessary will lack the funds provide recre- ational The end services. result that the welfare We, public large therefore, will suffer. decline to stretch concept its beyond limits to reach such an and illogical unreasonable result. While sympathize we with the appellant, Casey, Lisa R. who no doubt was sub- jected to a horrible we experience, must refrain from judi- cial innovation which would allocate the limited resources of municipalities a manner contrary public interest. Accordingly, Order sustaining appellees’ preliminary in the objections nature of a demurrer dismissing appellants’ complaint amended is affirmed.11
Order affirmed.
HOFFMAN, J., files dissenting opinion. person committing The act third of a an tort or intentional crime therefrom, superseding resulting is a cause of harm another although negligent the actor’s conduct created a situation which opportunity person afforded an to the third to commit such a tort or crime, negligent the actor unless at the time his conduct realized might or should have realized the likelihood that such a situation created, person might opportu- and that a third avail himself
nity to commit such a tort or crime.
case,
jurisdiction
11. There is no issue of Commonwealth Court
in this
762(a)(7),
applicable
as the law
is that under 42 Pa.C.S.A. §
"Immuni-
ty
immunity
waiver matters. —Matters
has been waived
pursuant
Subchapter
Chapter
(relating
C of
actions
P.L.1409,
parties)”, which
local
was amended
Dec.
No. 326
*14
HOFFMAN,
dissenting:
Judge,
of
interpretation
majority’s
The
restrictive
I dissent.
doctrine,
Chapman
City
see
relationship”
“special
(1981),
281,
On James Lisa, against defendant complaint filed a daughter, battery, and assault imprisonment, false Geiger alleging distress, against infliction of emotional intentional Janssen, Andrew Camp Hill and Borough appellees, 23, September On alleging negligence.2 Borough Manager, of de- in the nature preliminary objections filed amendment, (a)(7) II, 201, days substi- which effective in 60 art. § immunity been waived.” The which has "conducted” for "in tuted amendment, date of the before the effective incident here occurred waived, retroactive, immunity appeal since is not which Court did not lie. to Commonwealth 101-803, 330, 26, 1978, 1399, repealed §§ P.L. No. November 1. Act of 142, 333, id., 5, 1980, 693, replaced No. § P.L. Act of October (“actions (codified against 221(1) local 42 Pa.C.S.A. 8541-64 §§ 4, "[bjecause 1980). Technically, the incident parties”); Dec. effective prior occurred to its gave the cause of action herein which rise to controlling for the Tort Claims Act is repeal, the Political Subdivision Voorhees, case,” Ct. 67 Pa.Commonwealth purposes 205, Close v. of this 5, 728, (1982); see also Wimbish v. School A.2d 730 n. 5 208 n. 2, 710, District, 711 n. Ct. 622 n. 59 Pa.Commonwealth will, identical, However, nearly I two Acts are because the applicable Judicial Code. majority, sections of the cite to the does the complaint was filed on Although indicates that the 2. the docket sheet September complaint stamped August is error because the this 10. V, negligence counts, IV and
murrers counts failed complaint. Appellees appellants to state claimed accordance with the a cause action them supra. Act, Tort Political Subdivision Claims The court objections on 2 and filed in below sustained November support opinion thereof a memorandum of November Chapman its decision on basing supra. however, court, appellants file granted leave to did complaint, they April an amended *15 16, On filed the same April objections counts IV and V. The lower court sustained the amended objections, complaint against dismissed amended opinion support thereof appellees, filed an on June Chapman. 18, primarily appeal This again relying upon followed. demurrer, upon
In this Court looks these ruling principles: well-established pleaded
A
admits all relevant
facts
in the
demurrér
therefrom,
fairly
deducible
complaint
all inferences
v.
Shapp,
Gekas
1, 5,
469
not conclusions of law.
Pa.
but
Buchanan v. Brentwood Fed-
691,
(1976);
364 A.2d
693
Association,
Savings
eral
and Loan
135, 139,
457 Pa.
Baldwin,
v.
Borden
117,
(1974);
444 Pa.
320 A.2d
120
Sears,
Tanenbaum v.
892,
577, 582,
(1971);
281 A.2d
895
Co.,
Roebuck
78, 81,
809,
265
401 A.2d
810
Pa.Super.
(1979). A
may
demurrer
not be sustained unless
on its
the claim cannot be
complaint evidences
face
Ge-
permit
the law
recovery.
sustained because
will
Shapp, supra
5,
kas v.
693;
A.2d
297
Co.,
220, 223,
Linesville
457
Construction
Pa.
322 A.2d
353,
(1974);
356
Fazzini,
377,
Muia v.
Pa.
416
205 A.2d
(1965).....If
856
any doubt,
there
doubt should
____
be resolved
favor of overruling
demurrer;
Shapp, supra
693;
Gekas v.
(1977) (emphasis original).
In their complaint, amended appellants allege the follow- *16 ing: (1) On June appellant Lisa then ten Casey, old, years participated in swimming sponsored by lessons appellee Borough Park, at Seibert Memorial a recreational park facility operated owned and by Borough use for by the solely residents of Borough; (2) appellant Bridg- et Casey, mother, Lisa’s paid an annual fee to appellee for Borough which consideration her children were entitled Park; to use of the (3) recreational facilities in the at about morning 10:40 on the 19th, appellant Lisa Casey, after her completing swimming lesson, walk proceeded to Park; (4) through the at about 10:45 Geiger a.m. defendant engaged appellant conversation, Lisa Casey in forcibly then picked up and carried her into the bushes and overgrown underbrush the Park whereupon proceeded rape he her; (5) and assault at the time of the above-described incidents, appellant Lisa Casey was an invitee of appellee (6) Borough; appellees appellant owed Lisa as an Casey her protection care for duty reasonable invitee an adult invitee of care than that owed a greater even (7) failed to minor; appellees awas appellant because (a) in failing negligent care and were exercise reasonable security or police in the form of adequate protection provide the criminal against her as an invitee personnel protect in the (b) underbrush by permitting persons, acts of third facilitating thus such criminal overgrown Park to become nonresident, Geiger, defendant acts, (c) allowing by being Park and remain there without entrance into the gain (d) there, and being his purpose as to questioned or should have fact that knew appellees reason of criminal act committed type that known occurred girl of a had likely, rape young appellant on appellant; months before the attack only in the Park swimming her to attend the daughter by permitting to rea- lessons, justifiably upon relied appellant Accepting daughter’s safety. for her provide sonably true, have failed say appellants I cannot that facts as above may granted. which relief upon to state a claim dam- any shall be liable agency “no local Generally, or person to a any injury account of ages on employee or an agency act of the local by any caused 8541.3 How- person.” other Pa.C.S.A. any thereof or § ironclad; forth 8542 sets ever, rule is not general § which, fulfilled, on impose liability if will several conditions condition, requires The first agency.4 a local “[t]he or a under common law be recoverable damages would units, Borough, appellee government agencies such as Local are 3. government. 8501. § Pa.C.S.A. the Commonwealth other than governed 42 Pa.C.S.A. 8545: Liability appellee Janssen is damages agency employee is liable for civil of a local An by acts of the any injury person property caused to a account of only to scope or duties employee are within the of his office *17 subject employing agency to the local extent as his the same imposed by subchapter. this limitations enumerated Employees have the benefit of the defenses also agency); (legal provided by local also 8547 assistance § 8546. See § (limitation damages agency); (indemnity by 8549 § local 8548 § (employee’s against employee); willful miscon- 8550 § recoverable duct). if creating cause of the injury statute action were caused not person having available a defense under section (relating governmental to immunity generally) or sec- ____” (relating tion to immunity); defense official Thus, 8542(a)(1). put Id. if way, another were § private, governmental, to opposed parties, could cause against of action be stated them?
Here, I alleged, appellants under facts believe that cause of could state a action under 344 of the Restate- (Second) ment of Torts Restatement], [hereinafter which that: provides
A possessor land it open public who holds to the for for his business entry purposes is to subject liability public of the they members while are the land upon for such a for harm purpose, physical caused the acciden- tal, or negligent, intentionally per- harmful acts of third animals, sons or failure by the possessor exercise reasonable care to
(a) that such discover acts are done are being likely or done, to be or
(b) give a warning adequate enable the visitors to harm, avoid the or protect against otherwise them it. Section is followed in Pennsylvania. Moran Valley Forge Theatre, Inc., Drive-In 431 Pa. A.2d (1968); Co., Murphy Superior Penn Fruit 274 Pa. Ct. 480 (1980); Carswell v. Southeastern Penn- sylvania Transportation Authority, Superior 259 Pa. Ct. It
requires that of land who hold their [owners open public purposes] business take reasonable precaution that might reasonably antici- reason pated. clear; places general to which the public are invited might anticipate, indeed from either experience fact, common places general known that public are do, resort also places where what men can they might. One who may expect invites all reasonably all might behave, responsibility injury bears *18 300 precaution
that follows the absence reasonable expectation. that common 383, 391, 742, 506 485 A.2d 745 Merriam, v. Pa.
Feld Bridget alleged paid that she a appellant Casey Because use the recreation- Borough fee to appellee recreation Park, daughter I that her would al facilities at the believe Borough.5 considered a business invitee of therefore be are “Invitees” defined as follows: a (1) public is either a invitee or business An invitee visitor.
(2) A is is to enter or person invitee who invited public public purpose as a of the for a remain on land member open the land is held to the public. for which who invited to enter (3) person A visitor is is business purpose indirectly directly or remain land possessor with the dealings connected with business the land. not “[a]ny Lisa was Appellant Casey
Restatement § Park, public who see id. member of enter[ed]” d., paid one mother a fee to use the comment but whose for a facilities there and who was at Park recreational is, lessons, organized and activity, swimming specific then, case, This similar Borough officials. supervised by cases, it stated that public where was transportation public not subway “ordinary are patrons member[s] Philadelphia, business walking down the streets but [are] city care majority "that while a must exercise reasonable *19 and of Philadelphia SEPTA the City alleged jointly were to the operate system, and the subway therefore courts held that, as business invitees of the City, plaintiffs the were duty owed the of care set forth in 344 Restate- § Thus, Casey ment. Lisa appellant Borough entered land “business,” for purpose a connected with the the provision lessons, of swimming possessor of the the And of land. while the benefit to the pecuniary Borough may negligi- all, at nothing ble or even the community provid- benefits ing goals activities its children with the of keeping them pursuits from less desirable as well as more making them productive, of well-rounded members the “The community. possessor benefit may be indirect and the future.” Thus, f. I difficulty Restatement comment little have § in concluding that appellant here Lisa was a business Casey of Borough invitee the a therefore could have stated appellees cause of action had they private, been opposed governmental, the parties, fulfilling thus 8542(a)(1) condition. § contend, however, held, and the lower
Appellees
court
Chapman
City
supra, compels
that
of
Chapman,
result.
In
this
held
contrary
Court
duty
provide police protection
of
“to
is a
one
public
an individual unless a special
may
which
not be claimed
”
exists between
relationship
city
and the individual.
Id. added),
Pa.Super.
(emphasis
Instead hand, contend, that, tion, on the other because appellants instant occurred some months before the prior rape had attack,6 Geiger’s supersed- act was not a defendant criminal more negligence, proximate of a ing appellees’ cause but result, support cite Restatement7 they § is how- misplaced, reliance Appellants’ thereof. ever, only question that section relevant because negligence action and does not determine causation Lisa appellant owed a of care whether of a conten- Chapman disposed court similar Casey. tion: her
In her of law filed with answer memorandum *20 that her plaintiff indicated city’s preliminary objections, was against City Philadelphia predicated the of action aware that the Junction city Wayne fact that the was the dangerous area but particularly Railroad was a Station It such proof is clear that nothing it. that it did about to a action would be state cause not sufficient special relationship it not because does establish that the and the decedent. city plaintiffs existed between brief, us to find that a appellate appellants urge their rape appellants’ previous as Appellees dispute characterization of the Complaint occurring (Appellants’ “only Amended at months before.” 11). "alleged reported Appellees that was June aver the assault Interrogatories, Interrog- (Appellees’ Appellants’ to 1976." Answer however, demurrer, noted, 15). ruling upon atory we As we have in allegations accept appellants’ fact. true must is as 7. Section of the Restatement follows: person committing tort or act of third an intentional crime therefrom, resulting superseding cause harm to another is a although negligent actor’s conduct created a situation person opportunity or to the third to commit such tort afforded an crime, negligent actor the time of conduct realized unless the at his might such a should have realized the likelihood that situation or created, opportu- person might that a third avail himself of and nity such a or crime. to commit tort relationship exists special city between and indi- any injured vidual who is a particularly dangerous area. decline to do so. We
Chapman Philadelphia, supra Pa.Super. added); at 755 (emphasis see also Lower Nevertheless, Opinion Court at 5-6. I do not believe that Chapman deprives appellants of their cause of action for following reasons.
First, appellants only alleged inadequate police pro- tection, overgrown but also that the underbrush facilitated attack, that a nonresident permitted gain was to en- remain in Park, trance appellees and that knew or known an should have that attack such as the one which place likely took I reoccur. note that of these any that, allegations support additional could a jury’s finding contrary requirement, “to appellants failed (a) exercise reasonable care to discover that such [intention- harmful acts third are ally persons] being done or are done, or likely give to be a warning adequate to enable harm, the visitors to avoid the or otherwise to protect them it.” Next, if appellants even had alleged breached their duty of care provide failure solely adequate police protection I supervision, would hold that appellant Casey’s Lisa status as a invitee business created special her relationship between “A appellees. special relationship is generally found to only exist cases exposed which an individual is special danger to a authorities have undertaken the responsibility provide him.” adequate protection for Chapman v. City Phila- *21 delphia, supra, Pa.Superior 283, 754, 290 Ct. at 434 A.2d at Berlin v. citing supra. Drexel Me- University, See also 59, lendez v. City Philadelphia, 320 Pa. Superior Ct. of 64-66, 1060, (1983); 466 A.2d Musser, 1063-64 Morris v. 84 170, 173-75, 937, Pa. Ct. Commonwealth 939-40 (1984). The Berlin court cited three cases which found such a special relationship: States, Swanner v. 309 United (M.D.Ala.1970)(undercover 1183 F.Supp. agent held to abe 304 government to whom the a of
“special
duty
owed
employee”
Chicago
711
protection);
Village
Ridge,
v.
Gardner
(1966)
witness);
373,
(prosecution
I and Ber- Chapman, that the believe special relationship distinguishable lin cases are the narrow in light emerging test enunciated therein too plaintiffs alleged the in those cases caselaw.8 None of municipality, invitees the defendant were business they plaintiff in Philadelphia. the Melendez was City neighbor during racial confron- eye by shot in the left his raped in at tation, Chapman the decedent was attacked at station, plaintiffs the Morris were attacked railroad station, plaintiff and the was shot gasoline their Berlin house at walking fraternity left from his thigh the while University. City Harrisburg, Drexel See also Adams v. 1982), (Ct.C.P. Dauphin County affd, D. & C.3d 288 (1983) (no special Pa. Ct. Commonwealth plaintiff alleged police failure relationship where an had thrown object information that been investigate Moreover, street). against the door of house across lower decisions this Commonwealth have several court that, to render municipality held undertakes where another, requisite special relationship services SEPTA, SEPTA, v. v. supra; See Fedullo created. Hamm SEPTA, supra; supra.9 Shick v. that, liability, Pennsylvania area of "[i]n
8. has been said tort It States, Miller United Supreme Court been a forerunner." has E.S., 12, citing Intelligencer, Levy, Legal October supra at n. 1982. (E.D.Pa.1983), Duffy F.Supp. 164 plaintiffs status as a business invitee Veterans court held that
305 begun of jurisdictions expand scope Other have the the exception. relationship” “special Lopez Southern 1135, Rapid District, Cal.App.3d Transit 153 California — —, 200 P.2d 779 Cal.Rptr. (carrier/passenger; fellow plaintiffs by passengers); assaulted bus Comastro v. 405, 32, Village of Rosemont, Ill.App.3d 78 Ill.Dec. (1984) (business invitee; N.E.2d 616 plain owner/business arena); tiff assaulted after a in Village rock concert Sis- v. Port Trans Authority Corp., man Hudson Misc.2d 678, (common 409 N.Y.S.2d (Sup.Ct.1978) carri plaintiff er/passenger; raped assaulted and at publicly op station). realize, course, erated commuter railroad I of that may distinguished these cases respective based on their jurisdictions’ peculiar governmental immunity statutes, statutes, of duty believe, however, care and caselaw. I the underlying rationale for finding special relationships in those cases applicable is to the instant case.10
In Lopez, example, the court noted that the duty to in protect that case was not owed to the citizenry as a whole rather specific but “to a group: its passengers. These passengers accepted have offer transporta- [the carrier’s] tion and have themselves in placed care custody.” [its] Lopez Rapid District, Southern Transit California — supra Cal.App.3d —, P.2d at 200 Cal.Rptr. at 783. Similarly, protect here the duty to is limited to Stadium, property by City, owned and controlled did create However, special relationship. special relationship Duffy decision was based on the Berlin; Chapman test in stated no mention Furthermore,
was made of SEPTA City cases. "the had leased the thus, Philadelphia Eagles Stadium to the said to have [football can be club] care, relinquished custody duty its exclusive or control security over the in evidenced fact that additional game And, provided by private companies.” Id. n. 2. at 167 event, any by Duffy interpretation we are not bound court’s Pennsylvania law. York, 461, 469, 10. See also Sorichetti v. New 65 N.Y.2d (1985): key N.E.2d 492 N.Y.S.2d “A element ... special those [New York] cases that have found a reasonable performance governmental care other functions [citations agents is municipality omitted] some direct contact between the Here, injured party.” amply and the such contact direct demon- alleged appellants’ complaint. strated the facts invitees, e.g., participating those appellees’ business stated, court Lopez lessons. As the swimming *23 a line it is required a decides to run bus government once private the that a judgments to make same business bus line also government must make. The is bus company expenses privately the operational to the same as subject including security line the cost of providing owned bus passengers. for the — —, (footnote 1149,
Id. Cal.Rptr. at P.2d at 200 at 787 omitted). Likewise, government-op- I do not believe that a run different set of swimming should be pool erated By accepting Borough’s the offer private rules one. than daughter, Bridget for her swimming appellant lessons her in the Casey expect daughter that Lisa would be could the Eisman custody.” “care Additionally, Borough’s law,” court, calling rapidly developing “a area the this Authority Corp., supra Port Trans Hudson 96 Eisman v. v. 581; see also Melendez 682, N.Y.S.2d at Misc.2d at 409 64, Philadelphia, supra 320 Pa.Superior Ct. at 466 City of 1063; plaintiff’s A.2d “hesitant” to dismiss at was relationship’ complaint ‘special that case because “[a] also authority plaintiff may and a governmental between a proprietary performing authority, arise when func- tions, Id. 96 role of a common carrier.” performs added). 580 (emphasis 409 N.Y.S.2d at Misc.2d at Here, complaint appellants’ I also hesitate to dismiss would hearing of a full affording opportunity them without their claims.11 City Trujillo Albuquerque, N.M. 603 P.2d Appellees cite Hillsboro, (1979), City Ill.App. N.E.2d Priclcett v. (1944), jurisdictions find examples of which have "refused to 8). (Appellees’ are liability Brief at Both these circumstances.” under however, allegation an of a distinguishable, in that neither involved relationship. Trujillo, dece- invitee In business owner/business city park concert was held there. dent to a a rock went after that, Prickett, though charged even a fee for the use court was held governmental swimming pool, operation municipal its of a one, function, bringing that proprietary within not a thus longer immunity adheres to the This Commonwealth no state’s rule. Indeed, under governmental/proprietary distinction. functions 8542(a)(1), a cause of action we determine if there would be must that,
Appellees, and the also if majority, assert protect imposed case, municipalities instant would become insurers of individuals’ facili- safety recreational ties with the consequence inevitable these that would no longer opened to the public. Our Supreme Court was previously unpersuaded argument on by this empirical, phil- and fairness osophical, grounds when it abolished the de- governmental immunity. fense of Ayala v. Philadel- phia Education, 584, 596-97, Board Public 453 Pa. (1973) (ROBERTS, J.). Thus, I agree cannot public the “welfare of the at large will suffer” where the Political Subdivision Tort Claims Act waives that immu- only nity specified Indeed, certain circumstances. anoth- er has correctly suggested court an argument that such is a herring.” “red Lopez Rapid Southern Tran- California *24 — District, sit supra —, Cal.App.3d at P.2d at Cal.Rptr. I agree. at 784. Appellees “expend need not to patrol so much its recreational areas as to make the cost of maintaining these areas prohibitive,” Opin- Lower Court ion only but (a) need “exercise reasonable to care that [intentionally discover harmful of persons] acts third being done, are done are (b) to be or likely give a warning adequate harm, to enable the visitors avoid to or otherwise protect them against it.” Restatement § added). (emphasis The term “reasonable care” en- could compass any variety of designed prevent measures to type of harm which occurred in the instant case. I would not hold that appellees have a duty “round-the-clock” supervise its or police business invitees its business premis- And, es. found having that appellant owe Lisa care, I Casey duty of point would out appellants must still satisfy the other elements their cause of action: causation, breach of the duty, damages.12 and general- See against agency employees they local and its if did not have the governmental immunity. defense regard, 12. In this I damages note that there is a limitation recover- agency employees. able from local or its See 42 Pa.C.S.A. §§ Additionally, by § 8553. 8564 sets forth the means which local agencies against any resulting can liability. insure supra, Keeton, Furthermore, ly W. Prosser W. & § local are ulti- damage agencies even if judgments for increased, expanded liability breach mately some beneficial results. Police actually can have (and improved prevention) crime be may hence efficiency essentially cost internalization what through increased suffered, doing to a business. Losses like amounts cost here, allege equitably could more appellants those which who receive the spread among those business invitees bene- fits, costs, services local provided not the but event, it unfair agencies. would be to allow victims any negligent agencies while local uncompensated remain Po- Note, their shielded from employees liability. are Crime, to Prevent Negligent lice Failure Liability for Harv.L.Rey. 821, 832-35 today to stretch con- majority
Finally, “decline[s] limits reach such an unreasonable cept duty beyond its stated, Supreme As our has illogical result.” Court cause of tort ... was once a “Every however: action claim, Pennsylvania authority novel the absence of issue____” end appellants’ proposition not an 376-77, 118, 120 Papieves v. Pa. Kelly, in the (1970) (order objections nature sustaining preliminary reversed; dismissing complaint plaintiffs’ of a demurrer and mental or emotional cause of action stated serious wanton acts directly caused the intentional and distress *25 mishandling body). a decedent’s Lisa appellant Casey found owe a Having appellees that Act care, Political Tort next the Subdivision Claims duty by negligent caused the acts requires injury that “[t]he acting or an thereof within the agency employee of the local respect to one of the of his office or duties with scope 8542(b) listed in Pa.C.S.A. Pa.C.S.A. categories ].” [42 § 8542(a)(2). I that the agree majority with the relevant § however, I here is the “real category property” exception; fail come the appellees' do that acts within not believe scope of the exception.13 Read literally, exception the in- cludes by those “acts a local agency or of its any employ- constituting care, ees” custody control of real “[t]he property possession agency” local which “may imposition liability agency.” result in the on a local Id. 8542(b)(3). §
Under this
interpretation
literal
I
exception, have
no difficulty in concluding
acts,
that appellees’
or rather
act,
omissions to
are contemplated within the phrase “the
care,
or control of
custody
real property.”
“Care” of the
Seibert Memorial Park would certainly
appellees’
include
alleged
prevent
failure to
the Park’s underbrush from be-
coming overgrown, thus possibly facilitating criminal acts
such as the one which took place
Indeed,
here.
if “care” of
public
park does not include such acts
maintenance,
what does it include? And appellees’
failures, (1)
alleged
nonresident,
prevent
effect,
invitee,
one
business
gain
entrance to
the Park and
to provide police
protection or supervision when appellees knew or should
have known that another criminal attack was likely to
occur, call into question their “control” of the Park.
I
believe
interpretation
of these words is
simply matter
of common sense.
1921(b)
(“When
Pa.C.S.A.
words of a statute are clear and free from all ambiguity,
the letter of it is not to
disregarded
under
pretext
pursuing
spirit.”).
its
For example, in
SEPTA,
Hamm v.
majority
13. The
“[a]ppellants
states
contend that
section
8542(b)(3) strips
from
immunity
the cloak of
afforded them
Majority
under section
Opinion
8541----”
at 610. This is incorrect.
Appellants
“unnecessary
found it
to address the other criteria set forth
in § 8542 of the Act"
only
because the
lower court
addressed the
question
(Brief
they
assumed that
“clearly
the other criteria were
met.”
19).
fact,
Appellants
brief,
at
appellees,
in their
con-
ceded that the real
exception
conceivably apply
“could
in this
injury
case since
allegedly
Camp
Borough
occurred in a
Hill
(Brief
5).
Appellees
can,
Park."
course,
While this Court
affirm the
upon
lower court
a basis other than that which the later
relied,
Protection, Inc.,
see
Property
Lobianco v.
Superior
292 Pa.
Ct.
346, 359,
(1981),
only
issue,
I
wish to note that this
scope
8542(b)(3)
exception
rule,
of the §
general immunity
fully
was neither
parties
briefed
nor addressed
the court
below.
*26
and
supra,
plaintiff
allegedly
where the
assaulted
concourse,
in a
the court noted
raped
Philadelphia subway
recognized that
should be
Legislature
liability
that “the
and possesses
controls
real
imposed
municipality
where the
SEPTA,
supra
at
203-04
property____”
{dic-
Hamm
Center,
v. Youth Study
is
tum
instructive Mascaro
). Also
388,
A.2d 684 do Vann, property exception. plaintiff real withiíí p.m. to a school at 11:00 when walking adjacent minor was assaulted, through taken an unlocked forceably she was unlit area of the school gate grounds, school to an 8542(b)(3) held that The court beaten. makes only negligence for which
imposefs]
liability
unsafe for the
activities
government-owned
used,
it
it is intended
be
regularly
which
used,
to be
may
reasonably
it
foreseen
for which
acts
here are
used. Violent criminal
such as occurred
*27
reasonably
foreseeable use of school property such that
exception
will be applied.
607-08,
(footnote
omitted).
Id. at
at 686
Vann is
distinguishable
and
factually
legally
from the instant case.
Here, as is clear from the above discussion of Restate-
344,
ment
criminal acts
a reasonably
are
foreseeable
§
occurrence at the Park such that
could be
liability
imposed
on appellees. Appellant Lisa
attended
Casey
swimming
Borough’s invitation,
lessons at the
Borough
and the
may
had
of a previous,
have
notice
similar criminal attack. Thus
appellant Lisa Casey was not
simply member
“the
public
large.”
Id. at
n.
Furthermore, I believe that the real
in
issue
was
Vann
whether or not a
was
8542(a)(1)
owed the plaintiff, a §
question, and not whether the school district’s acts came
8542(b)(3)
within the
exception. Certainly
may
the school
have been
in
negligent
not securing
gate
or in not
lighting
grounds
(acts
the school
properly
going to the
maintenance or control of the property), but the district
owed
plaintiff
no duty
Id.,
care. Vann held so.
exception general rule of governmental immunity of construed, narrowly it must citing be Pa.C.S.A. § 1924 and v. City F.Supp. Borenstein § of (E.D.Pa.1984). are, with, These to begin authorities states, contradictory. pertinent Section part, that “[ejxceptions expressed shall statute be construed to others”; of exclude all it is no aid in construing scope the exceptions Borenstein, on hand, themselves. the other held that “it would purpose not inconsistent with the Tort Subdivision Claims for a particular [Political Act] that the community enlarged conclude fiscal burden of an immunity great outweigh waiver of would not be so as to interest in public compensation negligence of victims of classes certain of cases not in the eight included Act’s exceptions.” v. City Philadelphia, supra Borenstein (City Philadelphia’s respect waiver of immunity with claims certain asserted officers held valid police Indeed, and applicable). arguably supports Borenstein proposition a local can waive its agency immunity defense if alleged even acts it or negligent its do employees 8542(b) not come within one excep- tions agency local has specifically enacted *29 additional waivers:
Although
availability of the governmental immunity
defense and the need for
exceptions
certain
to that de-
fense are potentially
concern,
matters of statewide
it is
apparent
that
the question whether any individual
municipality
assert
should
that
in particular
defense
class
cases is a matter
peculiarly local concern.
added).15
Id. (emphasis
8563(a)(“A
See
also
Pa.C.S.A. §
agency
local
may promulgate
and regulations
rules
14. Of course
duty
there must be a
owing to the students to meet the
8542(a)(1) requirement.
That
there is
such
in the absence of
governmental
immunity
unquestioned.
is
See
v.
Simonetti
School
District,
Pa.Superior
Ct.
(1983)
(duty
A.2d 1038
to
properly supervise students); Cromley Loyalsock
Township School
District,
Pa.Superior
(1973) (same).
Ct.
inconsistent with intent of implement in to order agencies] local subchapter.”). this for the the extent that Borenstein stands event, to any strictly immunity are to be that waivers
proposition is rule of construction construed,16 I that better believe of the Court of Judge Coffroth as President stated discussing in his County opinion Pleas Somerset Common distinctions be- perspicuous” the “far from he calls what contained property exceptions and personal the real tween (3): 8542(b)(2) and in Pa.C.S.A. § the statute that no matter whether It seems to us to the prior state of the law in relation to the viewed immunity, created abolishing judicially decisions judicial in law, enumerated instances or to post-abolition major such a liberali- represent is waived immunity as immunity thinking respects governmental zation of Supreme consistent with purpose, to remedial be decisions..... rationale the abolition Court’s support irrationality remain of injustice facts [T]he in- here advocated which of construction principle is, liability, favor legislative ambiguities volves wrongdo- of governmental to the victim of justice favor ing. District, 29 D. & Township School Conemaugh
Garman also 1984). County (Ct.C.P. Somerset 493-94 C.3d statute are (remedial of a provisions 1 Pa.C.S.A. § The Political Subdivision Note, construed); liberally cf the Prob- Response Pennsylvania’s Act: Tort Claims 717, 731 Dick.L.Rev. Liability, Tort Municipal lems of not antithetical the Act were (“The objectives [supra] deci- in the Ayala expressed philosophy the social hold that omitted)). I would Accordingly, (footnote sion.” pertain- acts negligent includes exception the real property. of real ing policing court was the Borenstein waiver construed 16. Note that the *30 Philadelphia’s waiver. Borenstein additional supra at 859. conclusion, then, (1) I appellees believe that owed appellant Casey Lisa of care as set forth in 344 the Restatement virtue of her being a business invitee of (2) Borough; to the extent appellants allege negli- gence appellees of the only properly super- the failure to Park, police vise or her status as a business invitee requisite “special created the her relationship” between Borough; appellees’ alleged negligent acts were “care, scope within the of the or control of custody real property” exception because such acts concerned the main- Thus, and policing tenance I property.17 would reverse lower court’s order sustaining appellees’ demur- and dismissing appellants’ rers complaint amended would remand this case for further proceedings.
Superior Pennsylvania. Court of
Submitted June 1985.
Filed Oct. indignities appellant Casey 17. Besides the Lisa suffered at the hands Geiger of defendant possibly and the fact that could have attack, prevented appellants such majority are also scolded counterproductive” this litigation. Majority Opinion “wasteful and contrary, litigation To the I believe that this 290 n. 6. serves to aid in defining scope of the Political Subdivision Tort Claims Act and in highlighting inequities therein. 5. The notes etc., maintaining parks, playgrounds, its it is an insurer of the Majority Opin- safety public playgrounds.” playing on its of children This statement of the law. See Zeman v. ion at —. is a correct 450, (1966) (plaintiff Canonsburg Borough, A.2d 423 Pa. 223 728 swimming pushed injuries forehead after he was into a suffered to his 534, (1957) (plain- Pittsburgh, Pa. 463 pool); Cooper v. 390 amputated right to be arm between the elbow and shoulder had tiffs swing); 110 from a DeSimone v. 380 Pa. after fall swimming pool); (plaintiffs’ decedent drowned in A.2d 431 (1953) (plaintiff Druding Philadelphia, 374 Pa. v. swimming pool). cases are on the Those broke his neck bottom case, however, inju- plaintiffs’ inapplicable because the to the instant they (e.g., activity engaged in swim- were ries there related ming), liability not in issue. and therefore SEPTA, City.” Hamm of both SEPTA and the invitee[s] citing 1982), 203 (CtC.P.Phila.County Pa.D. & C.3d SEPTA, Fedullo see also (Ct.C.P.1979); Phila. SEPTA, 1 Phila Interlocutory Shick v. Opinions Civ. [PICO] (CtC.P.Phila.County 1977). triology, this SEPTA