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HomeMy WebLinkAbout2004-6083 Civil JENNIFER SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MIDDLESEX TOWNSHIP; COUNTRY MANOR WEST; COUNTRY MANOR, a Pennsylvania Corporation; : GSP MANAGEMENT CO., a Pennsylvania Corporation; YORK COMMUNITY MANAGEMENT, a Pennsylvania Corporation; : FRANK T. PERANO; THAIWIN REID; and TANGI STEWART, Defendants NO. 04-6083 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT MIDDLESEX TOWNSHIP TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., May 23,2005. For disposition in this civil case are preliminary objections of Defendant Middlesex Township to Plaintiffs Complaint. Plaintiffs action, in tort, arises out of an incident in which she was allegedly intentionally injured by one Thaiwin Reid. The claims against Defendant Middlesex Township are premised upon the alleged existence of a "special relationship" between Plaintiff and the municipality, whereby the latter had promised her protection against such an eventuality. The preliminary objections of Defendant Middlesex Township (hereinafter Defendant) are in the form of (a) a motion to dismiss the complaint on the basis of a failure to pursue proper service of original process prior to the expiration of the applicable statute of limitations and (b) a demurrer based upon governmental immunity under the Political Subdivision Tort Claims Act. This matter was argued on May 4, 2005. For the reasons stated in this opinion, Defendant's demurrer based upon governmental immunity under the Political Subdivision Tort Claims Act will be granted, and Plaintiffs Complaint will be dismissed as it relates to Defendant. STATEMENT OF FACTS The pertinent facts as alleged in Plaintiff s Complaint may be summarized as follows. On Sunday, November 10, 2002, a man named Thaiwin Reid, with whom Plaintiff was not acquainted, broke into Plaintiff s Middlesex Township residence, was confronted by her, and eventually left without harming her. 1 A Middlesex Township detective investigating the case attempted to reassure Plaintiff as to her safety and as to the police department's ability to find the perpetrator? With this reassurance, Plaintiff continued to reside in her residence? On Friday, December 6, 2002, Reid again broke into Plaintiff s residence, and this time stabbed and beat her.4 He is presently incarcerated in the state correctional institution at Graterford.5 According to Plaintiff s Complaint, "a special relationship" with Plaintiff was created on behalf of Defendant by its detective through his reassurance of Plaintiff as to her safety and the ability of the police to apprehend the perpetrator. 6 1 Plaintiffs Complaint, paras. 16-19. 2 Plaintiffs Complaint, paras. 24-30. 3 Plaintiffs Complaint, para. 32. 4 Plaintiffs Complaint, paras. 33-35. 5 Plaintiffs Complaint, para. 12. 6 See Plaintiffs Complaint, para. 57; Plaintiffs Brief in Support of Her Response to Defendant Middlesex Township's Preliminary Objections at 10. 2 DISCUSSION Under the Political Subdivision Tort Claims Act, as a general rule "no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." Act of October 5, 1980, P.L. 693, 9221(1), 42 Pa. C.S.A. 98541. Exceptions to this general rule involve the following enumerated areas: (1) Vehicle liability.-The operation of any motor vehicle in the possession or control of the local agency, provided that the local agency shall not be liable to any plaintiff that claims liability under this subsection if the plaintiff was, during the course of the alleged negligence, in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight or fleeing apprehension or resisting arrest by a police officer. As used in this paragraph, "motor vehicle" means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air. (2) Care, custody or control of personal property.- The care, custody or control of personal property of others in the possession or control of the legal agency. The only losses for which damages shall be recoverable under this paragraph are those property losses suffered with respect to the personal property in the possession or control of the local agency. (3) Real property. The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, "real property" shall not include: (i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems; (ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of- way; (iii) streets; or (iv) sidewalks. (4) Trees, traffic controls and street lighting.-A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the 3 dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. (5) Utility service facilities.-A dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights-of-way, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. (6) Streets.- (i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. (ii) A dangerous condition of streets owned or under the jurisdiction of Commonwealth agencies, if all of the following conditions are met: (A) The local agency has entered into a written contract with a Commonwealth agency for the maintenance and repair by the local agency of such streets and the contract either: (i) had not expired or been otherwise terminated prior to the occurrence of the injury; or (ii) if expired, contained a provision that expressly established local agency responsibility beyond the term of the contract for injuries arising out of the local agency's work. (B) The injury and dangerous condition were directly caused by the negligent performance of its duties under such contract. (C) The claimant must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. (7) Sidewalks.-A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a 4 reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonable be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of the other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable. (8) Care, custody or control of animals.- The care, custody or control of animals in the possession or control of a local agency, including but not limited to police dogs and horses. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer, except as otherwise provided by statute.7 The issue of governmental immunity may be raised by preliminary objection where its applicability is apparent on the face of the pleading in question. Tiedeman v. City of Philadelphia, 732 A.2d 696, 677 n.4 (Pa. Commw. Ct. 1999). "Our Courts have been reluctant to impose a general duty of care upon government employees to specific persons where the alleged duty is simply the protection of the public at large-i.e., society-from third-party criminal acts." Moore v. Dep't of Justice, 114 Pa. Commw. 56, 66, 538 A.2d 111, 116 (1988). "There is generally 'no duty resting on a municipality or other governmental body to provide police protection to any particular person. ", Thomas v. City of Philadelphia, 133 Pa. Commw. 121, 124, 574 A.2d 1205, 1206 (1990). "A very narrow exception to this no-duty rule exists, but only where there are circumstances establishing a special relationship between the police and the victim." Idat 125, 574 A.2d at 1206. Thus, "the special relationship doctrine creates a common law cause of action [in favor of a crime victim and against a municipality] that, otherwise, would not exist." Johnson v. City of Philadelphia, 657 A.2d 87,89 (Pa. Commw. Ct. 1995). To establish a "special relationship" of this type, a plaintiff: 7 Act of October 5, 1980, P.L. 693, ~221(l), as amended, 42 Pa. C.S.A. ~8542(b). 5 must demonstrate that the police were: 1) aware of the individual's particular situation or unique status, 2) had knowledge of the potential for the particular harm which the individual suffered, and 3) voluntarily assumed, in light of that knowledge, to protect the individual from the precise harm which was occasioned. Melendez v. City of Philadelphia, 320 Pa. Super. 59, 65, 466 A.2d 1060, 1064 (1983) (italics omitted). "The two situations that provide exceptions to the no-duty rule are (1) to protect individuals who have aided law enforcement as informers or witnesses; or (2) where the police have expressly promised to protect specific individuals from precise harm." Thomas v. City of Philadelphia, 133 Pa. Commw. 121, 125, 574 A.2d 1205, 1206 (1990). However, even where a special relationship (and thereby a common law cause of action) is established, a claim against a municipality can not proceed unless it is within the purview of one of the eight exceptions to liability enumerated above. As concisely stated by the Commonwealth Court: The existence of a special relationship between a crime victim and the police provides a narrow exception to the rule that the police have no duty to provide protection to specific individuals. Thus, the special relationship doctrine creates a common law cause of action that, otherwise, would not exist. It does not eliminate the requirement that the plaintiff show that the alleged negligence falls within an enumerated exception to immunity. Johnson v. City of Philadelphia, 657 A.2d 87, 89 (Pa. Commw. Ct. 1995) (emphasis added) (citations omitted). Thus, in a case of the type sub judice, in addition to demonstrating a "special relationship," a plaintiff "must [also] show that the alleged negligent conduct of the police officer falls within an exception to immunity. . . ." Id In the present case, it does not appear to the court that Plaintiff has pled the type of special relationship which would support a common law cause of action against Defendant. Moreover, it is abundantly clear that Plaintiff has not pled 6 conduct on the part of Defendant or its employee within the scope of one of the eight exceptions to the general rule of governmental immunity. Accordingly, the following order will be entered. 8 ORDER OF COURT AND NOW, this 23rd day of May, 2005, upon consideration of the preliminary objections of Defendant Middlesex Township to Plaintiffs Complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiff s Complaint is dismissed as to Defendant Middlesex Township. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. John A. Abom, Esq. 36 South Hanover Street Carlisle, P A 17013 Attorney for Plaintiff Robert G. Hanna, Jr., Esq. James D. Young, Esq. 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, P A 17108-1245 Attorneys for Defendant Middlesex Township Jeffrey B. Rettig, Esq. 126-128 Walnut Street Harrisburg, P A 17101 Attorney for Defendants Frank T. Perano, York Community Management 8 Because of the court's disposition of Defendant's preliminary objections on this ground, it is unnecessary to consider Defendant's other preliminary objection based upon service and the statute of limitations. 7 and GSP Management Co. Thaiwin Reid, FQ-0304 SCI Graterford P.O. Box 546, RT 29 Graterford, P A 19426 Country Manor West (Kathy Treble) 2 Apple Alley Carlisle, P A 17013 T angi Stewart 86 Cherry Lane Carlisle, P A 17013 8 9 JENNIFER SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW MIDDLESEX TOWNSHIP; COUNTRY MANOR WEST; COUNTRY MANOR, a Pennsylvania Corporation; : GSP MANAGEMENT CO., a Pennsylvania Corporation; YORK COMMUNITY MANAGEMENT, a Pennsylvania Corporation; : FRANK T. PERANO; THAIWIN REID; and TANGI STEWART, Defendants NO. 04-6083 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT MIDDLESEX TOWNSHIP TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this 23rd day of May, 2005, upon consideration of the preliminary objections of Defendant Middlesex Township to Plaintiffs Complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiff s Complaint is dismissed as to Defendant Middlesex Township. BY THE COURT, 1. Wesley Oler, Jr., 1. John A. Abom, Esq. 36 South Hanover Street Carlisle, P A 17013 Attorney for Plaintiff Robert G. Hanna, Jr., Esq. James D. Young, Esq. 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, P A 17108-1245 Attorneys for Defendant Middlesex Township Jeffrey B. Rettig, Esq. 126-128 Walnut Street Harrisburg, P A 17101 Attorney for Defendants Frank T. Perano, York Community Management and GSP Management Co. Thaiwin Reid, FQ-0304 SCI Graterford P.O. Box 546, RT 29 Graterford, P A 19426 Country Manor West (Kathy Treble) 2 Apple Alley Carlisle, P A 17013 T angi Stewart 86 Cherry Lane Carlisle, P A 17013