whether table saw is "personality" or "realty" under school district's manifest conduct is a question of law: Society Hill Carriage Company v. Pennsylvania Public Utility Commission, 135 Pa.Cmwlth. 538, 581 A.2d 702 (Pa.Cmwlth. 1990)
How later courts described this case
- whether table saw is "personality" or "realty" under school district's manifest conduct is a question of law: Society Hill Carriage Company v. Pennsylvania Public Utility Commission, 135 Pa.Cmwlth. 538, 581 A.2d 702 (Pa.Cmwlth. 1990)
- what constitutes a "common carrier" under Public Utility Commission's policy statement is a question of law
Written by the judges who cited it.
The opinion
DOYLE, Judge,
dissenting.
The more essential issue in this case is not, as I view it, whether the table saw is classified as “personalty” or *615 “realty,” but rather, who will determine the facts upon which that legal conclusion will be drawn.
The majority articulates the principle that “when proper ty falls within the third class described in Clay ton,[ 1 ] the question of whether property is realty or personalty, is a question of law to be based on the facts as to the property owner’s manifest conduct,” which is, in other words, a problem of deciphering the intent of the parties. But, as regards to the question of who should make that determination, the majority would hold, in stating that it is a “question of law” and by following the Canon-McMillan trilogy 2 in a rather blind manner, that the decision must always rest with the trial court, eschewing entirely the role of a jury to determine either the underlying absolute facts or the factual conclusions to be drawn therefrom.
I dissented in both Canon-McMillan I and Canon-McMillan III and cannot believe that the Supreme Court in Canon-McMillan II in a cursory two-sentence, one-paragraph, per curiam opinion meant to determine that the legal conclusion here at issue is forever to be reached on the facts as found by the court, eviscerating entirely and forever the jury’s fact-finding role. Indeed, several of the case law predicates upon which the tripartite classifications were made in Clayton were appellate review of determinations made by juries.
In Seeger v. Pettit, 77 Pa. 437 (1875), a case involving a landlord’s attempt to recover damages for the tenant’s removal of gas fixtures, walnut stairs and bannisters, walnut shelves and a “coal bin,” among other fixtures that the tenant had installed for his business, the trial court had ■charged the jury that the gas fixtures, since they were “only slightly attached to the freehold, and such as may be removed without any serious injury,” may be removed by *616 the tenant as of right; but as to the other fixtures, if they were “affixed to the freehold in the manner described by the witnesses,” those were not trade fixtures, being permanently fastened so that they could not be removed without injury to the freehold, and the tenant could not remove them. The Supreme Court, in reversing, held:
Under the earlier decisions physical annexation was undoubtedly the test. But this doctrine no longer prevails. It was overturned in Voorhis v. Freeman, 2 W. & S. 116 , followed by Pyle v. Pennock, Id. 390; and numerous other cases which will be found collected in Hill v. Sewald, 3 P.F. Smith 271. The true role to be deduced from these authorities is, that it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex. Where a tenant puts in fixtures or conveniences for his own comfort, the law raises no presumption that he intended them as permanent improvements, to be left for the benefit of his landlord; and as a general rule he will be entitled to remove them during his term. For any injury to the freehold by reasons of such removal, he is of course liable to the landlord in damages.
The matter of fixtures should have been left to the jury as a question of intention. Instead of doing so, the learned judge applied the law to certain facts of the case, and instructed the jury substantially that, if there was physical annexation, the articles could not be removed. This was error.
Id. at 440-41.
I believe the holding in Seeger is still good law today and should be applied to this new and emerging area of the law concerning the exception to sovereign and governmental immunity. Where the issue is joined in the third classification — where the Court cannot say as a matter of law that the particular fixture is clearly either personalty or realty— the question of whether a particular fixture is realty or personalty should be left to the jury to determine.
. Clayton v. Lienhard, 312 Pa. 433 , 167 A. 321 (1933).
. Canon-McMillan School District v. Bioni, 110 Pa.Commonwealth Ct. 584, 533 A.2d 179 (1987) (Canon-McMillan I); Bioni v. Canon-McMillan School District, 521 Pa. 299 , 555 A.2d 901 (1989) (Canon-McMillan II); Canon-McMillan School District v. Bioni, 127 Pa.Commonwealth Ct. 317, 561 A.2d 853 (1989) (Canon-McMillan III).