Opinion
No. 1405 C.D. 2008.
Argued: June 8, 2009.
Filed: July 9, 2009.
BEFORE: HONORABLE JUBELIRER, Judge; HONORABLE FLAHERTY, Senior Judge; HONORABLE McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Before this Court is the appeal of Cheryl Watson (Administrator) acting as administrator of her mother, Ollillian Watson's (Watson) estate, from the order of the Court of Common Pleas of Philadelphia County (trial court). The trial court entered a directed verdict for the City of Philadelphia (City) and dismissed Watson's negligence claim on the grounds that the claim was barred by the sections of the Judicial Code that are popularly known as the "Political Subdivision Tort Claims Act" (the Judicial Code). Administrator's claim is based on the damage sustained by Watson's home due to the collapse of a neighboring building (the Property), which had been deemed "imminently dangerous" by the City. Administrator argues that, because the City deemed the Property imminently dangerous, the City had a duty to enter and repair or demolish the Property and, therefore, since the City was in possession of the Property, her claim falls within the real property exception of the Judicial Code.
The record is not consistent as to the spelling of Watson's first name. The caption of the notice of appeal spells her name "Ollian," while in the body of the appeal it is spelled as "Ollilian." (Notice of Appeal, March 17, 2008). Administrator's Brief spells Watson's first name "Ollillian" in its caption and "Olillian" in its Statement of the Case.
42 Pa. C.S. §§ 8541 — 8542.
The parties stipulated to the following facts before the trial court:
1. Plaintiff, Cheryl Watson, is the daughter and the Administrator of the Estate of Ollillian Watson, the record owner of 3603 Fairmount Avenue, Philadelphia, Pennsylvania 19103 who passed away on July 20, 2006. The property at 3603 Fairmount Avenue is Ms. Cheryl Watson's residence. . . . .
2. The adjacent property at 3605 Fairmount Avenue [(the Property)] is titled to Nathan and Zettie Gay who are both deceased.
3. On or about July 3, 2006, the front porch of 3605 Fairmount Avenue partially collapsed.
4. On July 3, 2006, an inspector from the Department of Licenses and Inspections placed caution tape around the front entrance, affixed a sign at the entrance stating "DANGER" and "KEEP OUT" and designated the property as "I.D" or Imminently Dangerous" condition. . . .
5. As demonstrated in the Case Data Information Notice, on July 3, 2006, the east wall of the structure was bulged and identified as in imminent danger of collapse. See Exhibit P-2.
6. On July 3, 2006, the City inspector found that the floor/ceiling between floors and the floor below the structure was partially collapsed and in imminent danger of further collapse. . . .
. . . .
10. The City issued a "Violation Notice" dated July 8, 2006 indicating that the property was declared IMMINENTLY DANGEROUS and that if the homeowner failed to comply with the order, the City may demolish the structure and stucco the party walls exposed by the demolition . . ." The Violation Notice granted a 5 day appeal. See Violation Notice, dated July 8, 2006 attached hereto as Exhibit P-10.
. . . .
12. The Violation Notice of July 8, 2006 was not appealed. . . .
13. On July 8, 2006, Inspector Bartlett Clark inspected the 3605 Fairmount Avenue Property and issued violations stating that the property was unsafe and not [sic ] imminently dangerous. See D-1.
The "not" in this case appears to be erroneous. The City, in its Counter-Statement of the Case in its brief, admits that the City issued a Violation Notice finding the Property to be "imminently dangerous." (City's Br. at 2.) Additionally, the Violation Notice, itself, states that the Property was "imminently dangerous." (Violation Notice at 1.)
14. Between July 3, 2006 and September 1, 2006, the City of Philadelphia was notified that an individual believed to be family of the owner had returned to the premises and thereafter the City was notified on a weekly basis of the neighbors' concerns regarding the premises. . . .
With regard to the family member residing at the Property, Administrator testified that the son of the deceased owners of record of the Property was living at the Property during the period at issue, between July 3, 2006 and September 1, 2006, and had been living at the Property for at least 20 years prior. (Administrator's Dep. at 8, 11.)
15. Between July 3, 2006 and September 1, 2006, the family of the owner who had returned to the premises was routing electrical power to the premises via an extension cord hooked up to a neighbor's home and the City was notified of that situation. . . .
16. City Councilwoman Blackwell communicated with the Department of License [sic] and Inspections who advised that inspection would be conducted by August 28, 2006.
17. On September 1, 2006, the front porch of the premises completely fell down, the City was notified and the Philadelphia Fire Department as well as the Department of Licenses and Inspections appeared at the premises.
18. On September 1, 2006 no steps were taken by the City to repair or demolish the premises.
19. On September 2, 2006, the property collapsed and damaged plaintiff's property.
20. Prior to the full collapse of September 2, 2006, the City had engaged in no activities with respect to any repair or demolition of the structure.
21. Following the collapse, the City demolished and removed the collapsed remains of the premises. . . .
22. The stipulated amount of Plaintiff's damage is $45,000.00.
23. Notice of violation was returned as unable to forward on August 15, 2006.
(Plaintiff and Defendant's Statement of Uncontested Facts (Stipulated Facts).) On October 26, 2006, Administrator filed a Complaint with the trial court, naming the City, alone, as the Defendant. The Complaint alleges that the City was negligent for failing to secure or render safe the Property, resulting in the damage to Watson's home. On November 9, 2006, the City filed preliminary objections raising the defense of governmental immunity under the Judicial Code. The trial court denied the City's preliminary objections on December 12, 2006. On January 24, 2007, the City filed an answer with new matter to Administrator's Complaint, raising in the new matter the issue of governmental immunity pursuant to the Judicial Code. Administrator answered City's new matter on January 31, 2007. The City filed a Motion for Summary Judgment on July 27, 2007. The trial court denied this motion on October 2, 2007. The trial court held a bench trial on December 18, 2007, at which it took evidence from and heard evidence by the parties.
The Stipulated Facts appear in the Reproduced Record, but not in the Original Record. However, both parties cite to the Stipulated Facts in their briefs, and the Stipulated Facts appear to have been offered as an exhibit on behalf of each party before the trial court. We, therefore, accept them as conclusive for purposes of this opinion.
Administrator introduced Letters of Administration indicating that she was the Administrator of Watson's estate. Administrator also introduced the Plaintiff and Defendant's Statement of Uncontested Facts, a list of violations posted at the Property by the City, a Violation Notice mailed to the last known address of the owners of the Property by the City on July 8, 2006, photographs of the Property and Administrator's deposition. The trial court heard arguments from the parties regarding whether the real property exception to governmental immunity, found at Section 8542(b)(3) of the Judicial Code, 42 Pa. C.S. § 8542(b)(3), should apply to bar Administrator's claim. At the trial, the City moved for a directed verdict on this basis. By order dated December 24, 2007, the trial court granted the City's motion. Administrator filed a motion for post-trial relief, which the trial court denied. By order dated March 17, 2008, the trial court entered judgment in favor of the City. Administrator appealed to the Superior Court of Pennsylvania, which transferred the matter to this Court.
This address was the Property, where, as discussed above in footnote 3, a son of the deceased owners was residing.
"This Court's scope of review of the trial court's grant of directed verdict is limited to determining whether the court abused its discretion or committed an error of law which controlled the outcome of the case." Shedrick v. William Penn School District, 654 A.2d 163, 164 (Pa.Cmwlth. 1995).
Before this Court, Administrator argues that the trial court erred in determining that her claim was barred by governmental immunity under the Judicial Code. We are constrained to disagree. Section 8541 of the Judicial Code provides that, "[e]xcept as otherwise provided in this subchapter, 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." 42 Pa. C.S. § 8541. Section 8542 provides that the immunity granted by Section 8541 is waived under certain circumstances:
(a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts" shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
42 Pa. C.S. § 8542(a). One of the exceptions under subsection 8542(b) is the real property exception:
(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a 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. . . .
42 Pa. C.S. § 8542(b) (emphasis added). The Pennsylvania Supreme Court has held that, as an exception to the general rule of governmental immunity, the real property exception "must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability." Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d 1118, 1123 (1987). Accordingly, this Court has construed the term "possession" as used in Section 8542(b)(3) narrowly: "`[p]ossession' within the real property exception is total control over the premises, and limited control or mere occupation of the premises for a limited period is insufficient to impose liability." City of Pittsburgh v. Estate of Stahlman, 677 A.2d 384, 387 (Pa.Cmwlth. 1996). Administrator argues that the City took "possession" of the Property by operation of Section PM-308.4 of the Philadelphia Code, which provides:
Where the order to eliminate an imminent danger is rejected or not obeyed, or when, in the opinion of the code official, immediate action is required to protect the public safety, the code official shall cause the necessary work to be done to demolish the structure or to render the structure temporarily safe.
Philadelphia Code § PM-308.4 (emphasis added). Administrator argues that the City's inspector was aware of the collapse of the Property's porch on July 3, 2006, and was aware that the Property presented an imminently dangerous condition as provided by Section PM-308.1 of the Philadelphia Code. Additionally, Administrator argues that, in accordance with Sections PM-308.2 and PM-308.3 of the Philadelphia Code, the inspector issued a written notice regarding the imminently dangerous condition of the Property and posted the notice on the Property. Because the Property's owners, who were deceased, did not make the Property safe, Administrator argues that the City had a duty to do so, in accordance with Section PM-308.4.
Section PM-308.1 provides:
When, in the opinion of the code official, there is imminent danger of failure or collapse of a structure or any part thereof which endangers life, or when any structure or part of a structure has fallen and life is endangered by the occupation of the structure, the code official is hereby authorized and empowered to order and require the occupants to vacate the same forthwith in accordance with the cease operations provisions set forth in the administrative code. The code official shall cause to be posted at each entrance to such structure a notice stating the imminent danger and prohibiting occupancy. It shall be unlawful for any person to enter such structure except for the purpose of making the required repairs or demolishing the structure.
Philadelphia Code § PM-308.1.
Section PM-308.2 provides:
If an imminently dangerous condition is found, the code official shall serve on the owner, agent or person in control of the structure a written notice describing the imminent danger and specifying the required repair to render the structure safe, or requiring the imminently dangerous structure or portion thereof to be demolished within a stipulated time. Such notice shall require the person thus notified to declare immediately to the code official acceptance or rejection of the terms of an order to demolish.
Philadelphia Code § PM-308.2.
Section PM-308.3 provides:
Regardless of whether the person addressed with a notice of imminent danger receives service by one or more of the methods specified in the administrative code, a copy of the notice shall be posted in a conspicuous place on the premises; and such procedure shall be deemed the equivalent of personal notice.
Philadelphia Code § PM-308.3.
As noted above, however, per Stahlman, the City had to be in total control of the Property in order to have possession sufficient to qualify for the real estate exception. The facts of record do not indicate that the City was ever in total control of the Property. Essentially, Administrator asks this Court to consider the City to have been in constructive possession of the Property due to the mandatory duty imposed by Section PM-308.4. This argument conflates Section 8541(a)(1) of the Judicial Code — the existence of a cause of action — with Section 8542(b)(3) — possession of the real property from which the claim arises. Simply because the City had a duty with respect to the Property and the City failed to carry out that duty does not put it in control of the Property. As the City points out:
Because possession requires total control over the property by the local agency, both the negligent inspection and failure to inspect have been specifically rejected a number of times as giving a local agency possession over real property because such a construction constitutes an overly expansive interpretation of what constitutes "control" under the [Judicial Code].
Stahlman, 677 A.2d at 387.
Moreover, even were we to agree that the City should be constructively charged with the occupation of the Property for the purposes of rendering the Property safe, it is not clear that such occupation would constitute possession under Section 8542(b)(3). See Walsh v. Camelot Bristol Company, Inc., 517 A.2d 577, 578 (Pa.Cmwlth. 1986) ("A volunteer fire company's temporary occupancy of a privately owned building for the limited purpose of extinguishing a fire does not constitute `possession' of that property for the purposes of Section 8542(b)(3)"). Likewise, it would not appear that the City's temporary occupancy of the Property for the purposes of rendering it safe would have constituted possession of the Property for purposes of the real property exception.
Another element of Administrator's argument is that because the record owners of the Property were deceased, "no other entity or person was in control or possession of the premises." (Administrator's Br. at 21.) It is on this point that Administrator attempts to distinguish cases from this Court holding that a municipality's duty to inspect or enforce does not give rise to possession of property by the municipality. Although the Property's owners of record were deceased, this does not mean that the Property was without owners. See Section 301(b) of the Probate, Estates and Fiduciaries Code, 20 Pa. C.S. § 301(b) ("[l]egal title to all real estate of a decedent shall pass at his death to his heirs or devisees, subject, however, to all the powers granted to the personal representative by this code and lawfully by the will and to all orders of the court"). Additionally, the record indicates that a son of the deceased owners of record was living in the Property prior to the date the Violation Notice was posted until the total collapse of the porch. (Stipulation of Facts ¶¶ 13-15; Administrator's Dep. at 8.).) It would appear that it was the estate of the owners of record of the Property which was, or should have been, in possession of the Property, not the City.
For these reasons, we must affirm the order of the trial court.
ORDER
NOW, July 9, 2009, the Order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is hereby AFFIRMED.