DocketNumber: Appeal, No. 91 T.D. 1984
Citation Numbers: 99 Pa. Commw. 508, 513 A.2d 586
Judges: Barry, Blatt, Crumlish
Filed Date: 8/8/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
Samuel A. Wilson appeals an order of the Court of Common Pleas of Philadelphia County dismissing his action against the Philadelphia Housing Authority (Authority) by granting a motion for summary judgment.
According to the pleadings, Wilson, who was a guest in an apartment building owned by the Authority, was bitten by a dog belonging to the tenant he was visiting. As a result of this incident Wilson filed an action against the Authority charging it with negligence for failing to exclude dangerous pets from the premises or failing to take appropriate measures to warn or otherwise protect people frequenting the premises. The Authority filed an answer to Wilsons complaint essentially denying his allegations. It also raised the defenses of comparative negligence and assumption of risk under the heading of New Matter. After some discovery was undertaken by both parties, the Authority filed a motion for summary judgment on the grounds that a landlord may not be held liable for dog-biting incidents occurring inside a tenants apartment. The trial court did grant the motion for summary judgment but on the ground of sovereign immunity.
We also find unpersuasive the Authority’s argument that because sovereign immunity can never be waived we should disregard its failure to properly raise it and address the merits of the case. At the outset we wish to point out that although the trial court characterized the Authority as a Commonwealth agency, the Supreme Court held in T & R Painting Co., Inc. v. Philadelphia Housing Authority, 466 Pa. 493, 353 A.2d 800 (1976) that for purposes of Section 401(a)(1) of the now repealed Appellate Court Jurisdiction Act (Act)
We, therefore, vacate the trial courts order granting the Authority’s motion for summary judgment and we remand so that the trial court can address the questions which were raised by the parties.
Order
Now, August 8, 1986, the order of the Court of Common Pleas of Philadelphia County at No. 5394 April Term 1982, dated January 23, 1984 is vacated and this case is remanded to the trial court for proceedings consistent with this opinion.
Jurisdiction relinquished.
Meagher, which was based on the court-made rule of sovereign immunity, was overruled by the Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978).
Act of July 31, 1970, P.L. 673, 17 P.S. §211.203 (Supp. 1975).