OPINION BY Judge LEAVITT.
Evelyn M. Taylor (Taylor) appeals the order of the Court of Common Pleas of Bradford County (trial court) granting summary judgment to the Northeast Bradford School District (District) on a personal injury claim. The trial court held that Taylor's lawsuit did not fall within the real property exception to governmental immunity in what is commonly called the "Political Subdivision Tort Claims Act"
The following facts are not in dispute. On December 20, 2008, Taylor attended a Christmas band concert in the gymnasium of the Northeast Bradford School. Before the concert began, a partition between two sections of the gym was partially opened to allow guests, including Taylor, to get to their seats. Once the concert began, the partition was closed to improve the acoustics in the gym. During the intermission, a door in the partition was opened to allow guests to walk to an area where raffle tickets were being sold. The door did not open to the floor; approximately one foot of the partition crossed the bottom of the doorway opening. This configuration required one to step over the partition to pass through the opening. Taylor, wishing to purchase a raffle ticket, followed a group of guests to the pocket door. Taylor
In a December 5, 2012, deposition, Taylor provided more information about her injury. She testified that she had been to concerts in the District's gymnasium on at least two other occasions, although she could not remember if she had ever walked through the pocket door before. In response to questioning, Taylor explained that "I saw a lady go through this [pocket door], so I followed her." Reproduced Record (R.R. ___) at 101. When asked if she was "just following traffic," Taylor responded "[c]orrect." R.R. 109. Taylor acknowledged that she did not see anyone else trip over the partition wall at the bottom of the pocket door and she had no trouble seeing where she was walking. Taylor also testified that there was no sign warning guests of the step. Counsel for the District then questioned Taylor concerning the particulars of the fall. The following dialogue occurred:
R.R. 106.
Taylor filed a negligence claim against the District seeking damages for her injuries. The District moved for summary judgment, asserting governmental immunity and denying that the District was negligent in its care, custody or control of the partition. In her brief opposing the District's motion, Taylor countered that the real property exception to immunity was applicable because the partition constituted a "fixture" as defined by this Court in Blocker v. City of Philadelphia, 729 A.2d 187 (Pa.Cmwlth.1999) (Blocker I), rev'd, 563 Pa. 559, 763 A.2d 373 (2000). Taylor further argued that the question of whether the partition created a dangerous condition was one of fact for a jury to decide, not the court on a summary judgment motion.
At argument on the District's summary judgment motion, the District informed the trial court that Blocker I, on which Taylor relied, had been overruled by our Supreme Court in Blocker v. City of Philadelphia, 563 Pa. 559, 763 A.2d 373 (2000) (Blocker II). It further argued that "under the Supreme Court ruling, the partition would remain a personalty, and therefore would not meet the exception to the [Tort Claims Act]." R.R. 169. In any case, even if the partition were a fixture, Taylor would be unable to show that the partition represented a dangerous condition of its real estate. Taylor responded that determining whether the partition was a fixture or personalty and whether it created a dangerous condition were questions of fact for a jury to decide.
On November 12, 2013, the trial court granted the District's motion for summary judgment. The trial court explained that our "Supreme Court's interpretation [of the real property exception] is starkly different from the argument that [Taylor] sets forth in her brief." Trial Court opinion at 5. Quoting Blocker II, the trial court explained as follows:
Id. at 5 (quoting Blocker II, 763 A.2d at 375) (second emphasis added). The trial court then concluded that
Id. at 5-6.
On appeal,
Pennsylvania's local governments are granted immunity by Section 8541 of the Tort Claims Act, which states:
42 Pa.C.S. § 8541. School districts are considered "local agencies" for purposes of the Tort Claims Act. Repko v. Chichester School District, 904 A.2d 1036, 1040 (Pa. Cmwlth.2006). However, this grant of immunity is waived for certain categories of tort claims. Section 8542 states:
42 Pa.C.S. § 8542. When invoking the real property exception in Section 8542(b)(3), the injured party must show that (a) the injury resulted from a dangerous condition that (b) stemmed from the care, custody or control of real property, not personalty. Mellon v. City of Pittsburgh Zoo, 760 A.2d 921, 924 (Pa.Cmwlth. 2000).
In her first issue, Taylor asserts that "whether or not a chattel used in connection with real estate is a fixture or personalty is a question for the jury." Appellant's Brief at 7. In any case, she contends that the partition and door, which were permanently fixed to the gymnasium, were realty.
Whether chattel is personalty or a fixture is a question of law for the court to decide. LoFurno v. Garnet Valley School District, 904 A.2d 980, 983 (Pa.Cmwlth. 2006). Bioni v. Canon-McMillan School District, 521 Pa. 299, 555 A.2d 901 (1989), is instructive on this point. In that case, a student was injured in school while working with a wooden lathe. Over the objection of the school district, the trial court submitted to the jury the question of whether the school district intended the wooden lathe to be personalty or a fixture. The jury determined that the lathe was a fixture and, further, that the school district had been negligent. The school district moved for post-trial relief on the ground that the trial court had improperly submitted the question to the jury. The trial court denied the school district's motion. On appeal, this Court affirmed.
Our Supreme Court disagreed and remanded the matter back to this Court "for a determination on the present record of the legal question as to whether the lathe is personalty or realty." Id. at 901. On remand, we made the following correction:
Canon-McMillan School District v. Bioni, 127 Pa.Cmwlth. 317, 561 A.2d 853, 855 (1989).
In short, whether an item is personalty or realty is a legal question for the court. We turn, then, to the question of whether, viewing the evidence in a light most favorable to Taylor, the District was entitled to summary judgment that the partition was personalty.
Taylor relied on this Court's decision in Blocker I. In that case, a visitor to a facility owned by the City of Philadelphia sustained injuries when the bleachers on which she was sitting collapsed. The plaintiff sought damages from the City,
Blocker I, 729 A.2d at 189 (emphasis omitted). Concluding that a genuine issue of material fact existed as to whether the City intended the bleachers to be permanently affixed to its realty, we reversed the grant of summary judgment.
On appeal, the Supreme Court reversed, quoting the three-part test established in Clayton v. Lienhard, 312 Pa. 433, 167 A. 321, 322 (1933), on which the trial court relied. The Court explained that "only where personalty has been attached to realty does the question of the parties' intent become relevant." Blocker II, 763 A.2d at 375. Because it was undisputed that the bleachers from which the appellant fell were not attached to the property, the bleachers were held to be personalty as a matter of law. Accordingly, the Supreme Court held that this Court erred in considering the City's intention in installing the bleachers.
The third category of chattels identified in Clayton, which can be classified as realty or personalty, are
Clayton, 167 A. at 322. To apply this test, there needs to be evidence relevant to the removability of the chattel and the property owner's intent. This need for relevant evidence was the basis for our ruling in LoFurno v. Garnet Valley School District, 904 A.2d 980 (Pa.Cmwlth.2006). In that case, a student was injured by a mechanical sanding device that was bolted to the floor. At the close of discovery, the trial court held that because the machine was bolted to the floor, the device was a fixture. On appeal, this Court reversed. We explained that
Id. at 985-86 (emphasis added).
Here, the partition is a wall that can be pulled out or collapsed, depending on the school's needs. The partition has been part of the gymnasium for 44 years. It was pulled out, accordion-style, when necessary to create more than one space in the gymnasium. It is not known how the partition was fixed to the gymnasium wall
The ultimate determination of whether the partition is a fixture or personalty is a question of law. However, in light of the material factual issues underlying that determination, the trial court erred in holding that the partition was personalty. It lacked a factual foundation on the facts material to this legal question.
For the foregoing reasons, we reverse the order of the trial court and remand the matter to the trial court for further proceedings consistent with this opinion.
AND NOW, this 9th day of October, 2014, the order of the Court of Common Pleas of Bradford County dated November 12, 2013, in the above-captioned matter is hereby REVERSED and this matter is REMANDED for further proceedings in accordance with the attached opinion.
Jurisdiction relinquished.
