This is an appeal from an order of the Court of Common Pleas of Philadelphia County which granted summary judgment in favor of the appellee, City of Philadelphia, and against the appellants, Wilfredo Melendez and his parents Justino and Georgina Melendez.
On September 12, 1976, fifteen year old Wilfredo Melendez was shot in the left eye by his neighbor, Edward Dietzel, during a racial confrontation between the residents of the neighborhood where he and Dietzel both lived in the 2600 block of North Waterloo Street, Philadelphia. A complaint in trespass was filed on October 25, 1977, by the minor appellant and his parents against the City of Philadelphia on the theory that the minor appellant’s injuries were caused by the nonfeasance of the City’s police department and human relations commission, both of which were al
In our review of this appeal from the grant of summary judgment, our judicial role has been clearly defined. It was well-stated by Judge Jacobs in Bollinger v. Palmerton Area Communities Endeavor, Inc.,241 Pa.Super. 341 , 350,361 A.2d 676 , 680 (1976):
It is well established that we can sustain a summary judgment only if 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 fact and that the moving party is entitled to a judgment as a matter of law. The record must be examined in the light most favorable to the nonmoving party. The court must accept as true all well-pleaded facts in the plaintiffs ... pleadings, giving the plaintiff ... the benefit of all reasonable inferences to be drawn therefrom. Finally, a summary judgment should be granted only when the case is clear and free from doubt. Moreover, in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment, (emphasis in original; citations omitted)
See also Pennsylvania Rule of Civil Procedure 1035, 42 Pa.C.S.A., on the subject of summary judgments.
Id., 288 Pa.Superior Ct. at 334-5,431 A.2d at 1078 .
On appeal, appellants contend that material facts are in issue as to 1) whether the city is liable for acts of non feasance of its police officers where those officers were aware of the danger to minor appellant and failed to patrol
Before we can address the question of whether the City is liable for the acts of nonfeasance of its police officers, arguably an issue of first impression for this Court, we must first determine whether the police had a duty to act in this instance.
3
Generally, it is acknowledged that there is no duty resting on a municipality or other governmental body to provide police protection to any particular person.
Chapman v. City of Philadelphia,
The duty of the City of Philadelphia to provide police protection is a public one which may not be claimed by an individual unless a special relationship exists between the city and the individual. Berlin v. Drexel University, 10 Pa. D. & C.3d 319 (1979);46 A.L.R.3d 1084 . A special relationship is generally found to exist only in cases in which an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide adequate protection for him. Berlin v. Drexel, supra;46 A.L.R.3d 1084 . (Emphasis supplied) Id.,290 Pa.Super. at 283 ,434 A.2d at 754 .
Consequently, whether the City is liable in this case to minor appellant for the nonfeasance of its police force is
Appellants argue on appeal that the general duty owed the public was narrowed into a “special relationship” by the assurance of protection given the residents of the neighborhood by both the human relations commission and the police department, and that this “special relationship” was created between the City and each and every person who lived “in the area” of the 2600 block of North Waterloo Street, including minor appellant. We see little difference between this argument and the argument that was made in Chapman. In Chapman appellant argued that a special relationship existed between the City and all individuals who used the Wayne Junction Railroad Station, of which group appellant’s decedent was a member. This Court in Chapman rejected that argument as urging a duty of protection that was too broad in scope. Appellants attempt to distinguish Chapman on the basis that the group to which the City owed a duty in its case, i.e. the residents of the 2600 block of North Waterloo Street, was a smaller group of people than that found in Chapman, and, consequently, the duty imposed on the City was less “sweeping.” We do not agree.
Although this is an expanding area of the law,
see Williams v. State,
Minor appellant and his parents admitted in their depositions that none of them had ever contacted the city’s human relations commission about any racial problems in their neighborhood, nor had they ever expressed to the police any personal feelings of apprehension or fear for their safety. Minor appellant and his mother indicated in their depositions that prior to this incident they had no knowledge of any racial tensions in the community and never requested special police protection. Although neighbors, minor appellant did not know his assailant, and no evidence has been presented to indicate that anyone, including the police or the human relations commission, knew that Edward Dietzel had a gun or that he would use it. Indeed, the record indicates that John Dietzel, son of Edward Dietzel, was the only family member actively participating in the various confrontations prior to the incident which led to
The two common pleas court cases and the one New Jersey case cited by appellants are not persuasive. In
Santucci v. Windber Borough et al.,
Since the record does not disclose the existence of a factual issue that is material to the question of the City’s liability, the action of the trial court granting summary judgment was not error.
Order affirmed. .
Notes
. In 1973, our supreme court abrogated the judicially created doctrine of governmental immunity making it possible for governmental units, such as the City of Philadelphia, to be sued for the torts of their servants. In 1978, the legislature enacted the Political Subdivision Tort Claims Act, Act of November 26, 1978, § 101 et seq., formerly 53 P.S. § 5311.101 et seq. (Supp.1981), presently 42 Pa.C.S. § 8541 et seq., which reinstated the immunity of political subdivisions from suit, except in eight areas of activity. The case at hand arose during the five and a half year period between the supreme court’s abrogation of governmental immunity and the legislature’s reinstatement of the same. The fact that no governmental immunity exists does not, however, concede the justice of the tort claim. The basis of the city’s liability still rests upon a showing of fault.
. We note that, ordinarily, a trial judge should not place himself in the position of overruling a decision by another judge of the same court in the same case.
Duffy v. Gerst,
. ‘‘[F]or ‘nonfeasance’ it is necessary to find some definite relation between the parties ... of such a character that social policy justifies the imposition of a duty to act." W. PROSSER, THE LAW OF TORTS § 56 (4th ed. 1972).