The opinion
Concurring Opinion by
Judge Barry:
I agree with that portion of the analysis of the majority opinion which holds that the City may be liable because of the lease agreement to which the City and PATCO were signatories. Accordingly, I join that portion of the majority opinion which requires a remand on this issue.
I disagree, however, with the majority’s interpretation and rejection of the reasoning utilized by Judge ROGERS in Johnson v. Southeastern Pennsylvania Transportation Authority, 91 Pa. Commonwealth Ct. 587 , 498 A.2d 22 (1985). That case does not hold, in my opinion, contrary to the majority’s finding, that appropriate pleading of a common law cause of action under Section 344 of the Restatement (Second) of Torts suffices to fit within the limited waiver of immunity contained in 42 Pa. C. S. §8542(b)(3). Although not explicit, Judge Rogers’ opinion holds that the failure to adequately police the real property, when the City has notice that the real property is an area where business invitees are being regularly assaulted and molested, Mis within the waiver of immunity for the “care, custody and control of real property in the possession of the political subdivision.” Id.
I can find no case other than Johnson decided in the context of the real property exception to either sovereign or governmental immunity where the specific *48 allegation was made that the property in question was the scene of repeated criminal activity. In Casey v. Geiger, 346 Pa. Superior Ct. 279 , 499 A.2d 606 (1985), the Superior Court held that the political subdivision was not liable for failing to police a park where a ten year old girl was sexually assaulted. There, however, the only allegation relevant for our present purposes, was that the park had been the scene of one other rape some months before. This is hardly the type of repeated criminal activity that was alleged in Johnson . For this reason, I believe all of those cases rejecting the applicability of the real property exception under the Judicial Code are distinguishable. Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Commonwealth Ct. 604 , 464 A.2d 684 (1983), for example, was decided on the basis that an attack on a minor on school property was not foreseeable. Joner v. Board of Education of the School District of Philadelphia, 91 Pa. Commonwealth Ct. 142 , 496 A.2d 1288 (1985), also was decided on the basis of non-foreseeability. Ziccardi v. School District of Philadelphia, 91 Pa. Commonwealth Ct. 595 , 498 A.2d 452 (1985), involved an unanticipated shooting of a student on the steps of a school building.
Interestingly, the majority opinion states that a political subdivision can be liable where the condition of the property is such that criminals can “nest” on that property, presumably invoking the concurring opinion of Judge Doyle in Johnson . The majority thus recognizes that criminal activity can, in limited circumstances, constitute a defect in the real estate. I can see no distinction between the “nesting” situation that may be present here and that alleged in Johnson . “Nests” of criminals need only frequent the property and not live on it. Nor do I believe that a political subdivision is liable for all criminal attacks occurring on its property. Such liability should attach only where the political *49 subdivision has notice that the property is the scene of repeated criminal activity directed against business invitees.
A review of the pleadings shows that no such allegation was made in this case. Since the complaint against the City was dismissed on a motion for judgment on the pleadings and because of our liberal rules concerning amendments of pleadings, I would permit the pleadings to be amended to allege, if warranted, the necessary facts. This amendment should be allowed in particular in this case since this area of the law is still unsettled.