*1 Robert DeBLASIO and Deborah
McFadden, Appellants
Joseph PIGNOLI, Mayor of West Con Borough
shohocken of West Borough
Conshohocken and of West Department
Conshohocken Joseph Clayborne, G. Chief of Joseph Pignoli,
Police and P. Jr. Pennsylvania.
Commonwealth Court of
Argued Nov.
Decided March *2 aver
ough’s Department. Plaintiffs Jo- Joseph Borough’s Mayor, the Pignoli, Borough’s Clayborne, the Chief seph G. Jr., Police, Joseph Borough Pignoli, and Defendants) (collectively, Council Member per- privacy by negligently invaded their police the de- monitoring of mitting the mayor’s the holding from partment’s cells home. affirm the trial court’s dismiss- We complaint. al of Plaintiffs’ police detained November cam- in its cells. Video later the cells. Plaintiffs eras monitored mayor uses the cameras to discovered the his home. monitor detainees from filed Consequently, Plaintiffs a second averring: complaint,1 amended acknowledge Plaintiffs’ 9. The [sic] surveillance with purpose of video facility the safe- police [sic] to insure duty ty and the of those incarcerated carry out such police personnel manner. professional in a tasks Hill, Lafayette Philip Berg, appel- J. for 13. violated [Defendants] lants. [Plaintiffs], establishing, maintaining Taylor, Springs, Michael T. Chester sur- to disconnect the neglecting and/or appellees. personal home veillance monitors at the mayor]. of [the SIMPSON, and Judge, BEFORE: of privacy, In such violation KELLEY, LEAVITT, and Judge, Senior humiliation, injuries suffered [Plaintiffs] Judge. and damages. Judge BY SIMPSON. OPINION conspired to in- jointly McFad- Defendants
Robert DeBlasio and Deborah permit the detainees, (Plaintiffs), stall maintain appeal former den and/or and/or monitoring system, abusing County home Montgomery an order Court (trial court) perpetrate positions they official held Pleas that dis- of Common at the incarcerated the invasion those complaint against Bor- missed their facility. Bor- ough of Conshohocken West order, filed second complaint with federal court original filed their 1. Plaintiffs complaint. Because amended averring the trial court violation process alleged due longer process no substantive due and of federal substantive violations, re- the federal court rights civil rights protections. the case civil As a case to the trial court. manded the Pursuant to a was removed to federal court. least, very 18. At the conspiracy some of the De- claim because Plaintiffs negligent perform- plead alleged fendants were failed to unlawful act of privacy. ance of their duties in invasion of The trial court fur- having discov- ther borough police ered concluded the and the up having the set been made it, department were immune negligence from aware of not having reported the *3 liability under the Act. same. Court,2 appeal On to this Plain acted in faith in [Defendants] bad argue tiffs mayor’s monitoring the consti establishing maintaining surveil- tutes an invasion of privacy publicized that
lance
cameras
the cells of [Plaintiffs]. private facts of a type highly
to a
offensive
conspired to dispar-
[Defendants]
person.
reasonable
Without citation to au
age and
by
humiliate [Plaintiffs]
invad-
thority,
argue
monitoring
the
is
ing their privacy
[Mayor].
at the home of
offensive
it
because
is conducted from out
police
side the
department, specifically, the
Reproduced Record at 14a-16a.
mayor’s home. Plaintiffs further aver De
In response,
borough
police
and the
conspired
privacy.
fendants
to
their
invade
department
preliminary objections
filed
They
nature of
demurrer.
argued
An
privacy
action for invasion of
Plaintiffs’
complaint
second amended
failed
(1)
comprised
is
of four distinct
torts:
to state a
any privacy
cause of action for
(2)
seclusion,
intrusion upon
appropriation
addition,
tort or a claim for
conspiracy.
(3)
likeness,
of name or
publicity given to
they asserted
complaint
Plaintiffs’
was
(4)
life,
private
publicity placing the
by
commonly
barred
what
is
called the
person
light.
in a false
Marks v. Bell Tel.
(Act),
Political Subdivision Tort
Act
Claims
Pa.,
(1975).
Co.
460 Pa.
Ultimately,
the trial court determined
their
complaint
second amended
is intru
generally
Plaintiffs too
pled an invasion of
explained
sion
seclusion.3 As
claim,
privacy
if properly pled,
and even
Pennsylvania
Jury
Standard
Instructions:
theory
failed because Plaintiffs did not
expectation
have an
intrudes,
while in the
intentionally
One who
physi
holding
otherwise,
cells. The trial
cally
court dismissed
or
on the solitude or
considering
appropriateness
2. When
argue
gave publicity
of a
3. Plaintiffs
Defendants
ruling
preliminary objections,
on
concerning
private
this Court
a matter
their
life. Pub-
apply
licity
must
the same
public
standard as the trial
means
that a matter is made
Sportsmen
court.
communicating
Pa. v. Pa.
public
large,
Game
it
or to
Unified
Comm’n,
(Pa.Cmwlth.2006).
many persons
so
that the matter must be
standard,
accepts
Under
regarded
this
substantially
Court
as true
as
certain
become
fo
well-pled
all
public
material facts
knowledge.
set forth in the
one of
Harris Harris v.
Co.,
complaint along
reasonably
all
Publ'g
Pa.Super.
with
deducible
Easton
Here,
(1984).
question
inferences from those facts. Id. The
A.2d
alleged-
Defendants
presented by
preliminary objection
ly
maintained video cameras in
cells.
whether,
nature
only
mayor visually
of demurrer is
on the facts
aver the
moni-
complaint,
provides
averred in the
the law
tored the cells. Plaintiffs fail to aver Defen-
certainty
recovery
with
possible.
any
that no
any-
dants communicated
information to
else; therefore,
preliminary objection
only
Id. A
publicity
must
be sus-
one
element is
prejudice
tained to dismiss a
complaint.
with
not met
the second amended
appear
any
if there does not
to be
question
We need not address the
of whether
possibility that amendment
"private
of it would be
an adult loses
life” status
arrest
Id.
successful.
and detention.
(Pa.Cmwlth.1998) (Pellegrini,
person,
per-
or the
seclusion
another
S.J.)
Narick,
concerns,
JJ.,
has
Kelley,
(prisoner
private
or
is re-
&
son’s
affairs
in his
expectation
harm no reasonable
sponsible
person
entitling
protection
him
prison
as a
suffered
result of
invasion of
cell
searches;
imprison-
if
against
intrusion
unreasonable
similar
many
it the
private
ment
with
loss
solitude
seclusion or
affairs
carries
necessary
person
rights
being
and concerns of a reasonable
to accommodate
objective
facili-
highly
would be
offensive to
reason-
the institutional
—
ties);
California,
U.S.
person.
able
see Samson
-,
2193, 2197,
-,
126 S.Ct.
(2006)
no rea-
(prisoners
L.Ed.2d
have
Conduct
to a
offensive
*4
v.
privacy);
of
Willis
expectation
sonable
person
conduct that a
reasonable
is
rea-
(2d Cir.2002) (an
Artuz,
in-
65
301 F.3d
circumstances,
person,
sonable
in similar
legitimate
a
expecta-
mate
not have
does
very objectionable
would find
or that a
cell);
prison
in
Booth v.
privacy
tion of
his
person in similar
circum-
(E.D.Pa.2004)
751
King,
F.Supp.2d
346
expected
stances could be
to take with
(same);
Rathfon,
v.
705
Commonwealth
serious offense.
(Pa.Super.1997);
A.2d 448
Commonwealth
(Civ. 13.12)
added).
Pa.
A
(emphasis
SSJI
468,
393
Boyd,
Pa.Super.
v.
580 A.2d
397
is
intrusion upon
defendant
liable for
se-
(1990)
Commonwealth,
(same);
Dep’t of
only
clusion
he intrudes
pri-
when
into a
Hosp. v.
Welfare,
Pub.
Fairview State
a
place,
private
vate
otherwise invades
Kallinger,
Pa.Cmwlth.
134
person
seclusion about a plaintiffs
or af-
J.) (same).
(1990)
Thus,
(Pellegrini,
887
Harris by
Publ’g
fairs.
Harris v. Easton
upon “cell
Plaintiffs’ intentional intrusion
Co.,
Pa.Super.
would be restrictions on the to en DISSENTING OPINION Senior ter, Judge KELLEY. to search and to seize items in context, mates from a cell. In this respectfully I dissent. Supreme “society Court’s admonition that is not prepared recognize legitimate notes, Majority correctly As the “[a]n any subjective expectation comprised of privacy action for invasion *5 a prisoner might prison have in his cell” is (1) four upon distinct torts: intrusion important an policy statement of to which (2) seclusion, appropriation of name or majority adheres. at 468 U.S. (3) likeness, publicity given private to life added). (emphasis S.Ct. 3194 (4) person in a publicity placing and Pa., light.
false
Marks v. Bell Tel. Co. of
conspiracy theory,
As to the
(1975).”
460 Pa.
seclusion Here, concerns, fail a plead subject liability Plaintiffs to to fairs or cause of action for invasion of privacy. privacy, As the other for invasion of his if a underly highly Plaintiffs fail to state the the intrusion would be offensive ing unlawful act a a required conspiracy person. to reasonable Moreover, preserve easily dispose vague We did in their also of Plaintiffs’ not negligence. averments with au- Consistent Complained of Concise Statement of Matters cited, thority previously upon both intrusion relating negligence Appeal any on issue conspiracy seclusion and are intentional torts. Reproduced Record at 71a-72a. averments. (Civ. 13.12); Pappert Pa. SSJI v. TAPPharm. holdings, Inc., we need not (Pa.Cmwlth.2005). As a result of our Prods. Negligent immunity acts are for these torts. discuss the issues. insufficient (Second) maintained contrary, a of Torts 652B To the Restatement (1977). expectation of seclusion while Borough’s detained being addition, In 652B Comment to Section v. National Broadcast cells. provides: F.Supp. ing Company, invasion covered The form of (N.D.Ill.1986), employed crew camera depend upon Section does an in plaintiff, the defendant filmed the any publicity given person whose mate, visiting while the federal It interest is invaded to his affairs. Marion, filmed Illinois. The crew solely of an interfer- consists intentional prison’s he exer plaintiff while was in the his interest in or se- ence with solitude wearing only cage, and while he was cise clusion, as to or as to person either his his distinctive gym exposing shorts concerns, a kind private his affairs or plaintiff The the defendant tattoos. sued be to a rea- that would offensive alia, alleging, inter that the defendant was man. sonable on a common-law invasion of liable Id., a. cmt. responded, inter claim. The defendant Moreover, Pennsylvania as noted by the alia, depiction person its of a Superior Court: serve visible area” could not “publicly intrusion the basis for action for liability subject
The defendant seclusion, sought the action to have only under this section when he has plaintiffs failure dismissed based private place, intruded into or has a cause of which relief to state action for invaded a private otherwise seclusion granted Fed.R.Civ.P. could be under has plaintiff that the thrown about his 12(b)(6). Id., c; person or affairs. comment Fo *6 Forbes, gel F.Supp. [500 in rejecting In the defendant’s assertion (E.D.Pa.1980)]. There is also no regard, the federal court stated the this liability unless the with the interference following, pertinent part: in plaintiff’s seclusion substantial and is by course could be seen Of highly would be to the ordi offensive inmates, personnel guards, prison nary person. reasonable Restatement obviously by he in fact seen was (Second) 652B, § of Torts d. comment operator. But the mere NBC’s camera Harris,
Harris A.2d at 1383-1384. can others person fact a be seen does legally affirming person the trial order not mean that cannot court’s Indeed, paradigm ob- one granting preliminary Defendants’ be “secluded”. case, upon seclu- jections Majority in con- of the tort intrusion [of this case (see upon Tom Restate- Peeping cludes that the Plaintiffs’ intrusion is sion] 2). b, § illustration holding claim fails ment 625B comment seclusion because Further, Huskey’s visibility peo- to some non-private where a place “[a] cells are strip right him of the does not concerns. does private ple detainee seclude otherwise, Persons place cell is a remain secluded from others. Stated Thus, and in- exposed family members where a detainee’s is lost. are homes, but guests intentional ‘cell vited their own Plaintiffs’ intrusion fails, they opened have claim the trial court that does not mean seclusion’ cameras. Prisons the door television properly dismissed invasion (citations which largely systems, claim.” closed within Majority Opinion at 5-6 are omitted). may understandably become prisoners 18, 2002, gaze
inured to the of staff and other 8. On or about November prisoners, feeling prisoners custody while at the same time were [Plaintiffs] justifiably Borough [Borough, secluded from the outside of Defendants Police (at Department world least certain areas not nor- and Chief of ... Police] outsiders).... mally they respective visited when discovered in their positioned to cells cameras observe No case has been cited to this Court them. (or research) by independent discovered holding that no area of seclusion exists acknowledge 9. The Plaintiffs’ within a a matter of law. purpose of video surveillance within the cage Whether or not the exercise could facility police safety to insure the be considered such an area is a factual duty those incarcerated and the question. Huskey’s complaint says he police personnel carry out such tasks in public expressly was not and he view professional in a manner. disapproved film him. of the effort to discovery 10. Plaintiffs’ 12(b)(6) enough pur- That is for Rule at monitors were also active the home poses. [Mayor] the Defendant was a violation of But goes argue NBC on to it cannot surveillance, an inva- the intent of the be held liable for intrusion Hus- Plaintiffs’, sion of the key’s liability seclusion such ex- because had abuse of office those who knowl- (Restatement 652B): only ists negligence on edge of the same or if the intrusion would be offen- have known part of those who should sive to a person. reasonable impropriety and failed to correct the actions, says And NBC its as a matter same. law, “highly cannot be deemed offen- Defendants, [Mayor and Borough sive to a person”.... Council were instrumental Member] [H]owever, there for the view support maintaining said cam- establishing and merely photographing person at monitors, eras and the Defendant permission home without his or her and at [Borough Department], objectionable enough to state a claim [Mayor], all in home of the Defendant (see Time, Inc., Dietemann v. 449 F.2d *7 rights violation of the of the Plaintiffs’ (9th Cir.1971)). Indeed, right and an abuse of office degree to which NBC’s actions were ob- duty and of of those who either had
jectionable in large part depend must on have had knowl- knowledge or should degree to which was seclud- system. edge monitoring of the in home cage. ed in And that while the exercise pleading also cannot be decided * * * stage. the pri- 13. The Defendants violated Huskey, F.Supp. (empha- at 1287-1289 ... in vacy establishing, of the Plaintiffs omitted).1 in original sis and footnotes maintaining neglecting to discon- and/or filed monitors at the complaint the second amended nect the surveillance case, [May- in Defendant alleged personal Plaintiffs the follow- home in ing, pertinent part: or]. LeFebvre, Jones/Seymour walking inmate down a corridor does
1. But cf. (E.D.Pa.1991), F.Supp. aff'd, support under 42 U.S.C. 961 F.2d a cause of action (1992) (The 1983.). filming § nonconsensual and he public not in view says he was privacy, a violation of In such filmto of the effort disapproved humiliation, expressly inju- ... suffered 12(b)(6) enough for Rule That him. damages. ries and [Further, degree to t]he purposes.... (RR) at 13a-15a. Reproduced Record objectionable actions were which NBC’s Thus, in by Plaintiffs acknowledged degree on the part depend in large must they a reasonable ex complaint, their had while in the Huskey was secluded which would be that video surveillance pectation that also cannot be cage. And exercise in Police Department conducted at stage.”). See also pleading at the decided they housed insure “[t]o which were Marshals, U.S. Lattany v. Four Unknown duty safety incarcerated and the of those (E.D.Pa.1994) (“[T]he 262, 266 F.Supp. carry out such police personnel violat- that the Marshals plaintiff contends RR at professional in manner....” tasks right ed his constitutional Indeed, above, “[pjrisons 14a. as noted permission him without photographing systems, which largely are closed within justification. without a law enforcement understandably in prisoners may become Columbia, 743 In Best v. District of gaze prison to the of staff and other ured (D.D.C.1990), court denied F.Supp. 44 ers, justifi feeling while at the same time to dismiss or for sum- defendants’ motion (at ably secluded from the outside world against mary judgment normally areas not visited least certain while they videotaped were prisoners that outsiders)...” F.Supp. at Huskey, 632 during transporta- chained and handcuffed found The court prisons. tion between However, contrary Majority’s to the de- were vio- prisoners’ privacy rights that the case2, in this I believe that termination whether the film was regardless of lated sufficiently alleged have that De- As the disclosed. Id. at 48. publicly ever intruded their reasonable fendants ‘[ijnmates recognized, Supreme Court has expectation of solitude cells institutions re- jails, prisons or mental by maintaining video monitor outside rights privacy: fundamental tain certain Department, and confines of the Police in a zoo to be they are not like animals highly that such intrusion was offensive to at will photographed filmed and (Second) See, e.g., them. Restatement reporters, “ed- byor media however public (“One intentionally in- Torts 652B who others.’ process may be for ucational” the trudes ... the solitude or seclusion KQED, 5 n. 438 U.S. Houchins v. [(1978)]. subject liability to the of another ... 57 L.Ed.2d 98 S.Ct. if the privacy, other for invasion of his instant allegations I find that the be offensive to to the facts substantially intrusion would similar case are mini- Huskey. plaintiffs At a person.”); allegations Best. The *8 mum, for indi- I that the intrusion the same concern complaint am convinced raise Supreme Court dignity claim raised Plaintiffs’ sec- which the upon seclusion vidual recognized. plaintiff The not have Best court complaint ond amended should and photographed were objection. prisoners and other by preliminary been dismissed handcuffed opposition while (“[Hjuskey’s complaint against their at Id. 1288-1289 in the outside world distinguish ably feel secluded from Majority’s attempt Hus- 2. The normally visited not prisoner was all areas of key that the therein on the basis outsiders, "ex- both the which would include cage”, and not his taped in an “exercise while prisoners' cell, cage” the individual Clearly, sophistry. the court in ercise mere is may justifi- recognized prisoner cells. that a 830 nothing alleged actions were custody. any in Absent law enforce- Marshals’ frolic, personal falling more than a within photographs, for the which
ment rationale
Houchins.”) (footnote
of
omit-
the ambit
none,
I
allegations
from the
can infer
ted).3
(citation
F.Supp.
Majority’s
upon authority
Jones/Seymour, 781
at 359
3. The
reliance
in
omitted).
Philadelphia
See also Mimms v.
volving
application
of the Fourth Amend
(E.D.Pa.
F.Supp.
Newspapers,
sup
ment to the United States Constitution to
(Unwanted
1972)
nonegregious publicity
but
arising
port
under the
the dismissal of a claim
privacy
seclusion,
may
invasion of
un
be an actionable
upon
common law tort of intrusion
though
Pennsylvania law even
it does not
der
Palmer,
517,
notably
most
Hudson v.
468 U.S.
1983).
§
support
under 42 U.S.C.
a claim
3194,
(1984),
is
104 S.Ct.
82 L.Ed.2d
Thus,
may
fact that Plaintiffs
not be able
misplaced.
arising
It is true that claims
un
upon
an action based
a Fourth or
to maintain
der either the Fourth Amendment or the tort
violation does not
Fourteenth Amendment
upon
of intrusion
seclusion involve a violation
they may
compel
not
the conclusion
See,
right
privacy.
e.g.,
re Asia
of one's
In
law
maintain an action based on the common
Ltd.,
(Bankr.
Crossing,
831
addition,
by
In
act
unlawful means or for an unlawful
alleged
Plaintiffs
the follow-
(2)
ing
pursuance
in Counts II and III of their second
act
purpose;
overt
done
(3)
complaint:
legal
amended
actual
purpose;
of common
Bank,
v.
damage. McKeeman
Corestates
jointly conspired
17. Defendants
N.A.,
In
(Pa.Super.2000).
permit
install
maintain
and/or
and/or
affirming
grant
prelimi-
the trial court’s
monitoring system, abusing
home
nary objections dismissing
conspiracy
positions they
perpetrate
official
held to
Plaintiffs,
Majority
the invasion of those incarcerated in the
claims raised
“[h]ere,
facility.
plead
that
Plaintiffs fail to
stated
privacy.
for
As
cause of action
invasion
least,
very
At
18.
some
result,
underly-
fail
Plaintiffs
to state the
negligent
per-
Defendants were
in the
ing
required
conspiracy
unlawful
for a
act
having
formance of their duties in not
”
See,
Majority Opinion
claim....
at 826.
up
having
the set
or
discovered
been
McKeeman,
(“[A]b-
e.g.,
A.2d at
it,
660
having reported
made aware of
not
particular
for a
sent a civil cause of action
the same.
act,
civil
there can be no cause of action for
act.”).
conspiracy to commit that
Defendants, [Borough], [Mayor],
22.
[Borough
Department],
[Chief
However,
above,
as outlined
Plaintiffs
Police],
Member],
and [Borough Council
for
sufficiently
did
state
cause of action
conspired
disparage
and humiliate the
seclusion. As a
tort
intrusion
by invading
their
at
Majority
I
that
also believe
[Mayor].
the home of the Defendant
the trial court’s order in
affirming
erred
15a,
RR at
16a.
regard
forego
as well. Based on the
notes,
Majority correctly
ing,
As the
I
trial
order
state
would reverse the
court’s
objections
civil
for
conspiracy,
complaint granting
preliminary
action
(1)
allege:
must
Plain
dismissing
combination of two or nature of a demurrer and
persons acting
pur-
prejud
more
with a common
tiffs’ second amended
with
ice.4,5
pose to do an unlawful act or to do a lawful
it,
See, e.g.,
up
having
Apelt,
the initial search.
v.
been made aware of
State
set
349,
634,
(1993);
reported
at
having
176 Ariz.
861 P.2d
the same ....” RR
Davis,
510,
claims,
People
disposing
negligence
v.
36 Cal.4th
31 Cal.
of these
15a.
96,
417,
“[cjonsistent
(2005);
Rptr.3d
tersely
Majority
115 P.3d
State
states that
Bolin,
583,
cited,
(Fla.Dist.Ct.
authority previously
v.
693 So.2d
both intrusion
with
App.1997),
grounds,
conspiracy
rev’d
are intentional
on other
seclusion and
O’Rourke,
(Fla.2001);
Negligent
So.2d 894
State v.
acts are insufficient for these
torts.
262,
Moreover,
(Me.2001); People
preserve in
torts.
Plaintiffs did not
159,
Phillips,
Mich.App.
Com-
555 N.W.2d
their Concise Statement of Matters
Martin,
(1996);
relating
plained
Appeal any
743-44
State v.
of on
issue
(1988).
negligence
Reproduced Record
N.C.
367 S.E.2d
621-22
averments.
[(RR)]
agree
jurisdictions
Majority Opinion
We
with
at 71a-72a.”
those
any
interpret
to leave no room for
n.
Hudson
expectation
pre-
legitimate
However,
the concise statement filed
regardless
purpose
trial detainees
specifically
the “abuse of
references
motivating the search....
approved,
authority ...
those who had
Andujar,
(emphasis
origi-
832 Majority, I
Accordingly, unlike the Lynn McMASTERS, Appellant D. the trial court’s order would reverse v. case. FRANKLIN, City Council
The CITY OF City City Franklin, and The for the Board. of Franklin Police Pension Pennsylvania. Commonwealth Court 6, Argued Feb. 2007. 13, March Decided brought against district a student fell specifically application the discusses relating property exception governmen- provisions real to of the Judicial Code within Borough liability negligent immunity permanently for the acts of the tal as the saw was 74a, building, employees. through RR at 75a-76a. bolted to and its See hardwired relating negli- ground, As a the issues to the it was never removed from the classroom.). pur- gence have not been waived for shop claims appeal. poses of respect tort claims With to the intentional against Mayor, Chief of Police and Bor- Majority Finally, opinion, the also in its Member, ough Section 8550 of Council holdings, we a result of our “[a]s states pertinent part: provides, in Judicial Code immunity Ma need discuss the issues.” against agency any action a local Opinion respect jority n. 5. With employee damages on account thereof for negligence against Borough claims injury the em- caused the act of Borough Department, Police Section judicially ployee determined in which it is Code, 8542(b)(3) 42 of the Judicial Pa.C.S. employee act of the caused the that the 8542(b)(3) Borough may provides § that the injury act constituted a such relating claims to "[t]he be held liable for crime, or willful miscon- ... actual malice care, property custody or control of real duct, (relat- provisions of sections 8545 possession agency....” of the local As (re- ing liability generally), 8546 to official negligence relate to the video instant claims immunity), lating official to defense of Borough’s system surveillance installed (relating (relating indemnity) and 8549 fall Department, the instant claims apply. damages) shall not limitation on exception provided in Section within the for 8550. As the instant intentional Pa.C.S. See, 8542(b)(3) e.g., Cure of the Judicial Code. conduct of tort claims relate to the intentional Philadelphia v. School Dis ton ex rel. Cannon fall parties, the instant claims the named trict, (Pa.Cmwlth.2002), petition A.2d 279 exception provided denied, for in Section within appeal 573 Pa. allowance of See, e.g., the Judicial Code. (2003) (A 8550 of Kuzel that was A.2d scroll saw Krause, (Pa.Cmwlth.1995) A.2d 856 realty and that physically connected to the Act, ("[F]or purposes 'will of the Tort Claims destroying or mate be removed without could synonymous with the term ful misconduct’ is realty upon rially injuring the saw or the Breach, King v. Pa. [115 'intentional tort’. part realty it annexed was which was (1988)].”) Cmwlth. intended to make A.2d because the school district (footnote omitted). realty, negligence claim part its and the it