Rice v. Philadelphia Electric Co.

Opinion by

President Judge Crumlish, Jr.,

Philadelphia Electric Company and Alexander Giamalis (PECO) appeal a Philadelphia County Common Pleas Court order sustaining preliminary objections of the City of Philadelphia (City), in the nature of a demurrer, and dismissing the third-party complaint of PECO and Giamalis. We reverse and remand.

Rice, a seventeen year old, sustained injuries when he was struck by a PECO vehicle driven by its employee, Giamalis. Rice had been playing in the spray of a City-owned fire hydrant directed toward a public street. The hydrant was opened without proper authorization.

In ruling upon preliminary objections in the nature of a demurrer, all well-pleaded facts and any inferences deducible therefrom must be accepted as true. Bahian v. Department of Public Welfare, 89 Pa. Commonwealth Ct. 644, 493 A.2d 803 (1985).

PECO and Giamalis contend that their complaint states a cause of action against the City because (1) it states a cause of action recoverable by common law and (2) comes within the utility service facilities exception to governmental immunity.¹ We agree.

The complaints averments state a cause of action at common law since they could sustain a jury finding that the dangerous condition of the hydrant and street created a reasonably foreseeable risk of injury of the type that Rice suffered.

Our review of this complaint reveals that it also states a claim within the utility services exception to governmental immunity.² We have recently held that this exception applies to “injuries or damages directly resulting from the negligent maintenance of the physical facilities and equipment within the municipality’s control. . . .” Gall v. Allegheny County Health Department, 98 Pa. Commonwealth Ct. 175, 181, 510 A.2d 926, 929 (1986). The complaint avers that the City negligently failed to properly maintain the hydrant and that the City was on notice that the fire hydrant had been opened on prior occasions without prior authorization. Since these averments must be accepted as true, the complaint states a cause of action within the utility service facility exception to governmental immunity.

Therefore, we reverse the common pleas court order sustaining the City’s preliminary objections. The case is remanded for further proceedings.

Order

The Philadelphia County Common Pleas Court order, No. 5960 dated November 20,' 1984, is reversed and the case is remanded for further proceedings.

Jurisdiction relinquished.

1 42 Pa. C. S. §8542 (b)(5) provides:

(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:

(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.

2 Specifically, PECOs third-party complaint avers:

5. Defendants aver and believe that on and before August 9, 1983, Additional Defendant City of Philadelphia was on notice that the fire hydrant in which minor Plaintiff was playing had been on prior occasions opened without proper authorization.

PECOs complaint also avers, inter alia, that the City was negligent in:

10. . . .

a. foiling to take proper action after being on notice that the area where the incident occurred was dangerous and unsafe;

b. failing to properly maintain the public street and the subject fire hydrant which were owned, possessed and controlled by Additional Defendant;

c. foiling to use due care under all of the circumstances; and

d. engaging in such other negligent or careless conduct as shall appear during discovery or trial of this case.

(Emphasis added.)