# J. Faucon v. Parkland Area School District

> Commonwealth Court of Pennsylvania · October 21, 2025

URL: https://www.frixlaw.com/law-library/cases/11174564

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 21, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** McCullough
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jamie A. Faucon, as Parent and :
Natural Guardian, Callie Faucon, :
A Minor, Jamie A. Faucon, in her own :
right, :
Appellants :
:
v. : No. 1349 C.D. 2024
:
Parkland Area School District : Submitted: September 9, 2025

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION
BY JUDGE McCULLOUGH FILED: October 21, 2025

Jamie A. Faucon, as parent and natural guardian of Callie Faucon, a minor
(Student), and in her own right (together, Appellant), appeals from the September 11,
2024 order of the Court of Common Pleas of Lehigh County (trial court), which
sustained Parkland School District’s (School District) preliminary objections in the
nature of demurrers and dismissed Appellant’s third amended complaint with
prejudice. Upon review, we affirm.
I. Factual and Procedural Background
Appellant filed the operative third amended complaint against the School
District on June 13, 2024. The third amended complaint includes a single cause of
action for negligence. Appellant alleges that on March 14, 2023, Student was injured
in gym class while in the weight room of Parkland Area High School. Specifically,
Appellant avers that Student saw a weight leaning against a wall, approached it, and
then it allegedly “suddenly and without warning” fell on her foot. (Third Amended
Complaint, ¶¶ 5-7.) Appellant avers that Student suffered a transverse fracture of her
first metatarsal on her left foot, swelling, pain and suffering. Id., ¶ 8. She further
claims that because of the “negligent design and construction” of the weight room,
Student “had unfettered access to all of the equipment.” Id., ¶ 11. Appellant contends
that had the weight room been designed in a manner that did not allow unfettered access
to the weight equipment, Student would not have been injured. Id., ¶ 12. Appellant
alleges that the School District’s negligence and carelessness consisted of the
following:
a. Designing the weight room in such a manner that allowed
minor children to have unrestricted access to the room’s
equipment;

b. Designing the weight room in a manner that makes it more
likely that a child would be injured than feasible alternatives,
including but not limited to:

i. Requiring keycard access to the weight room;

ii. Providing designated areas specifically for
trained and untrained students; and

iii. Providing storage space such that dangerous
equipment would be out of the reach of
untrained students.

c. Failing to design the premises in a manner that would
prevent minor children from being injured;

d. Constructing the weight room in such a manner that
allowed minor children to have unrestricted access to the
room’s equipment;

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e. Constructing the weight room in a manner that makes it
more likely that a child would be injured than feasible
alternatives;

f. Failing to construct the premises in a manner that would
prevent minor children from being injured;

g. Failing to warn individuals that the design of the premises
made it more likely that an individual would be injured; and

h. Failing to remedy the defective condition of the premises
such that individuals would not be likely to be injured.
(Third Amended Complaint, ¶ 19.)
Appellant further alleges:

14. It was further foreseeable that users of the weight room
would not properly store or restore the weights and
equipment, as it is common in weight rooms that weights and
equipment are not properly stored or restored.

15. Given that it was both foreseeable that weights and
equipment would be left in areas where they were not secured
or properly stored, and that it was foreseeable that weights
and equipment would be stored and stacked in a manner that
would result in them falling suddenly and without warning,
it was also foreseeable that the design of the weight room,
providing unfettered access to students such as [Student],
made the falling of weights on [Student] likely.

16. Therefore, the design of the weight room was the direct
and proximate cause of [Student’s] injuries.
Id., ¶¶ 14-16.
On June 28, 2023, the School District filed preliminary objections to the
third amended complaint, demurring on the grounds that Appellant failed to state a
negligence claim under the real property exception to governmental immunity under
the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. § 8542(b)(3).

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On September 11, 2024, the trial court sustained the School District’s
preliminary objections and dismissed the third amended complaint with prejudice. The
trial court explained:

[Appellant] posits that this unfettered access caused a foot
injury to [Student], by giving students the ability to freely
enter into the room where the weights were stored. As a
matter of law, however, those allegations fail to allege
negligence sufficient to fall within the real property
exception to governmental immunity under the [Tort Claims
Act]. To fall within the real property exception, “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.” Brewington v. City of
Philadelphia, 149 A.3d 901 (Pa. [Cmwlth.] 2016) (citations
omitted). As alleged, [Student] was attending her regularly
scheduled gym class and was able to access the weight room
during this time. There is no basis to conclude that the
[S]chool [D]istrict real property was unsafe for its intended
and regular use as a weight room. At best, access to the
weight room may have facilitated the injury, however,
[Student’s] foot injury was caused when a loose weight,
leaning against a wall, fell on her left foot, not by an unsafe
or dangerous condition of the real property. See, Moon v.
Dauphin County, 129 A.3d 16 (Pa. [Cmwlth.] 2015)(the real
property exception to governmental immunity may not apply
where a dangerous condition of the real property merely
facilitates an injury). Having unfettered access to places
within the school, especially during a regularly scheduled
gym class, without more, is insufficient to establish a defect
in the design or construction of real property. Any further
amendment would prove futile. The third amended
complaint is dismissed with prejudice.
(Trial ct. order., 9/11/24, at 1 n.1.)

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On appeal,1 Appellant contends that the trial court committed an error of
law in concluding her claim did not fall within the real property exception to
governmental immunity. Specifically, she asserts that the trial court erred in
concluding that her allegations that the weight room was defectively designed in such
a manner that students could have “unfettered access” to the weights are insufficient to
establish a defect in the design or construction of real property.
II. Analysis
Local government agencies are generally immune from tort liability under
the Tort Claims Act. Wells v. Harrisburg School District, 884 A.2d 946 (Pa. Cmwlth.
2005) (finding school districts are local government agencies for purposes of 42
Pa.C.S. § 8541-42 immunity provisions). There are limited exceptions to such
immunity and an injured party may recover in tort from a local governmental agency
if:
(1) damages would be otherwise recoverable under common
law or statute; (2) the injury was caused by the negligent act
of the local agency or an employee acting within the scope
of his official duties; and (3) the negligent act of the local
agency falls within one of eight enumerated categories.
Wells, 884 A.2d at 948 (citing 42 Pa.C.S. § 8542). Section 8542(b)(3) provides an
exception to immunity for 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

1
In reviewing a trial court’s order sustaining or overruling preliminary objections, our “review
is limited to determining whether that court committed an error of law or abused its discretion.” East
Lampeter Township v. County of Lancaster, 696 A.2d 884, 886 (Pa. Cmwlth. 1997). To sustain
preliminary objections, “it must appear with certainty that the law will not permit recovery and, where
any doubt exists as to whether the preliminary objections should be sustained, that doubt should be
resolved by a refusal to sustain them.” Peerless Publications, Inc. v. County of Montgomery, 656
A.2d 547, 550 (Pa. Cmwlth. 1995).

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real property in the possession of the local agency.” 42 Pa.C.S. § 8542(b)(3). To
recover under the real property exception, Pennsylvania courts have required a plaintiff
to “show that (a) the injury resulted from a dangerous condition that (b) stemmed from
the care, custody[,] or control of real property, not personalty.” Brewington, 149 A.3d
at 905. “Whether chattel is personalty or a fixture is a question of law for the court to
decide.” Id. at 908.
There are two approaches that can be used to determine whether to apply
the real estate exception to immunity under the Tort Claims Act.

A. The Grieff Approach – When Injury is Caused by Care, Custody or
Control of the Real Property Itself
Under Grieff v. Reisinger, 693 A.2d 195, 197 (Pa. 1997), (i.e., the “Grief
approach”), the determinative inquiry is whether the injury is caused by the care,
custody, or control of the real property itself. In Grieff, the fire chief poured paint
thinner onto the floor to remove paint from the floor. Id. at 196. The paint thinner
spread across the floor and caught fire under a refrigerator, causing severe injuries to a
bystander. Id. The Supreme Court explained that the fire chief’s alleged negligence
was in the paint removal, and paint removal clearly fell within the exception’s language
of the care of the property. Id. at 197. The Supreme Court held, therefore, that the real
property exception applied, and the chief and fire association were not immune. Id.
In Brewington, a school was conducting relay races during gym class
inside an elementary school gymnasium that had concrete walls, but did not provide
any mats or padding on the wall to prevent or minimize injury. 149 A.3d at 903. The
plaintiff, a 9-year-old student, was running too fast, could not stop, lost his footing, and
tripped and fell into the concrete wall. Id. The trial court dismissed the claim, finding
that the injury was caused by personalty, not real property; this Court reversed. We
found that “the design and layout of the gym and the construction of its walls were . . .

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unsafe for its intended and regular use as a gymnasium; the unprotected cement wall
posed a danger to students who used it regularly for gym class; and that dangerous
condition was the cause of [the plaintiff’s] injury.” Id. at 910 (internal citations
omitted).
The Pennsylvania Supreme Court affirmed our decision in Brewington v.
City of Philadelphia, 199 A.3d 348 (Pa. 2018), finding that “the lack of padding of a
gym wall may constitute negligence in the care, custody, and control of real property,
and, thus, falls within the [Tort Claims Act’s] real property exception.” Id. at 350. The
Supreme Court held that “the real estate exception, by its express definitional terms,
includes a failure to provide safety features in situations where such a duty otherwise
exists,” “the unpadded wall directly caused [the plaintiff's] injuries, and that the wall
constitutes real property.” Id. at 357.
Similarly, in Bradley v. Franklin County Prison, 674 A.2d 363 (Pa.
Cmwlth. 1996), an inmate of the Franklin County Prison slipped and fell on wet tile
while drying off in the prison showers. The inmate commenced an action against a
prison, alleging it was negligent in installing a tile floor without a non-slip surface.
This Court considered that the prison “provided the shower facilities where running
water was a necessary and inextricable part of the design . . . .” Bradley, 674 A.2d at
366. The prison constructed the shower and area in which prisoners dried off,
“knowing and intending that water would necessarily accumulate on the floor where
bare feet must tread.” Id. Ultimately, the inmate’s allegation that his injury was caused
by the defective design, construction, or condition of the shower floor, which was
devoid of a non-slip surface, fell within the real property exception to governmental
immunity.

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B. The Blocker Approach – When Injury is Caused by Personalty,
which is not Attached to the Real Estate, or by a Fixture, which is
Attached
Under Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000) (i.e., the
“Blocker approach”), the determinative inquiry is whether the injury is caused by
personalty, which is not attached to the real estate, or by a fixture, which is attached.
In Blocker, a concert patron brought an action against the City of Philadelphia alleging
that she was injured when a bleacher on which she was sitting collapsed. The plaintiff
argued that the bleacher constituted a “fixture” of real property. The Supreme Court
disagreed that the bleacher was a fixture because it was not physically affixed to the
realty. Instead, it held that the bleacher was personalty, and that, even if negligently
maintained, the real estate exception did not apply to personalty.
In Repko v. Chichester School District, 904 A.2d 1036 (Pa. Cmwlth.
2006), appeal denied, 923 A.2d 1175 (Pa. 2007), a student was injured while retrieving
a basketball during gym class at school, when a folding table, previously leaning on its
side against the bleachers, fell over and struck her. The trial court followed Grieff in
rejecting the school district’s assertion that the real property exception did not apply
and that it was immune from liability. On appeal, this Court reversed the trial court,
stating the following, in pertinent part:

Contrary to the trial court’s interpretation of Grieff that the
government entity was not immune because “the care of the
personalty caused a dangerous condition to occur on the real
property,” the actual holding in Grieff clearly stated that there
was no immunity due to the negligent care of the real
property—[i.e.], the floor—when paint thinner was poured
on the floor, which ignited and caused severe injuries.
Similarly, the holding in Hanna [v. West Shore School
District, 717 A.2d 626 (Pa. Cmwlth. 1998),] was based on
the injuries suffered from improperly caring for the real
property, i.e., the floor. Here, although [the plaintiff] frames

8
the issue in terms of the negligent care of the gymnasium,
which is real property, in fact, [the plaintiff] was injured by
a table that fell on her in the gymnasium. Thus, the facts in
this case are very similar to the facts in Blocker and its
progeny, which have held that the real property exception to
immunity does not apply where a person is injured by the
negligent maintenance of personalty.

Like the plaintiffs in Canon-McMillan III [School District v.
Bioni, 561 A.2d 853 (Pa. Cmwlth. 1989)], Rieger [v. Altoona
Area School District, 768 A.2d 912 (Pa. Cmwlth. 2001),] and
Blocker, [the plaintiff] was injured by an item of personalty,
and not real property. Therefore, consistent with those
opinions, we will apply the Blocker approach, and find that
the [s]chool was immune under [Section 8542 of the Judicial
Code]. To hold, as the trial court did, that an item of
personalty which injures someone on real property is within
the care, custody and control exception to immunity, would
bring almost any injury on school district property within the
real property exception to immunity. Such a holding would
defeat the purpose of immunity under the [Judicial Code],
which must be strictly construed to further the legislature’s
intent to provide immunity. Finn [v. City of Philadelphia, . .
. 664 A.2d 1342, 1344 (1995)].
Repko, 904 A.2d at 1042-43 (emphasis in original and footnote omitted). See also the
following cases which found in favor of immunity: Kniaz v. Benton Borough, 642 A.2d
551 (Pa. Cmwlth. 1994) (injury resulted when picnic table overturned); Wilson v.
Ridgway Area School District, 596 A.2d 1166 (Pa. Cmwlth. 1991) (injury related to
use of a table saw); DeRitis v. City of Philadelphia, 582 A.2d 738 (Pa. Cmwlth. 1990)
(injury caused by unsafe condition of bleacher); Canon-McMillian School District
(injury caused by malfunction of a wood lathe not attached to real property); Malone
v. City of Philadelphia, 535 A.2d 209 (Pa. Cmwlth. 1987) (injury caused by unsafe
condition of scaffolding).

9
Here, Appellant alleges that “unfettered” access to the weight room
amounts to a design flaw because it is foreseeable that a weight would be stored
improperly. Despite Appellant’s attempt to couch the cause of Student’s injury as a
problem with the care, custody, or control of the weight room, Student was not injured
as a result of the negligently constructed or designed weight room. Rather, she was
injured by an item of personalty, a weight, that fell on her foot in the weight room.
As a result, Blocker and Repko control the disposition of the instant preliminary
objections. Under these cases, if the injury is caused by personalty that is merely on
the real property, the political subdivision remains immune. As we observed in Repko,
“[t]o hold, as the trial court did, that an item of personalty which injures someone on
real property is within the care, custody and control exception to immunity, would
bring almost any injury on school district property within the real property exception
to immunity.” 904 A.2d at 1042-43.
Appellant’s claim would fail under the Grieff approach in any event
because “unfettered access” to a weight room does not constitute a condition of real
property but instead, relates to one’s ability to access property at any given moment.
To conclude that no waiver exists in this situation, would result in the assumption that
the design of all rooms in a high school filled with heavy objects with unlocked doors
are per se defective.

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III. Conclusion
Because the real property exception applies only to real property,
Student’s injury from the weight leaning against the wall in the high school’s weight
room does not fall within the exception. The School District, therefore, is immune
under the Tort Claims Act. The order of the trial court is affirmed.

________________________________
PATRICIA A. McCULLOUGH, Judge

11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jamie A. Faucon, as Parent and :
Natural Guardian, Callie Faucon, :
Minor, Jamie A. Faucon, in her own :
right, :
Appellants :
:
v. : No. 1349 C.D. 2024
:
Parkland Area School District :

ORDER

AND NOW, this 21st day of October, 2025, the September 11, 2024
order of the Court of Common Pleas of Lehigh County is hereby AFFIRMED.

________________________________
PATRICIA A. McCULLOUGH, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11174564. Public record. Not legal advice.