# A. Turner & T. Govan-Turner v. Lower Merion S.D.

> Commonwealth Court of Pennsylvania · May 10, 2024

URL: https://www.frixlaw.com/law-library/cases/9967709

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 10, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Wallace, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Turner and :
Tobi Govan-Turner, :
Appellants :
:
v. : No. 657 C.D. 2023
: Submitted: April 9, 2024
Lower Merion School District :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION
BY JUDGE WALLACE FILED: May 10, 2024

Anthony Turner (Anthony) and his mother, Tobi Govan-Turner (collectively,
the Turners), appeal the order of the Court of Common Pleas of Montgomery County
(Common Pleas), dated January 13, 2023, which granted the Lower Merion School
District’s (School District) motion for judgment on the pleadings and dismissed the
Turners’ complaint with prejudice. Common Pleas concluded the School District
was entitled to governmental immunity under Section 8541 of the Judicial Code, 42
Pa.C.S. § 8541, because the Turners’ negligence claim did not meet the requirements
of the real property exception to immunity under Section 8542(b)(3) of the Judicial
Code, 42 Pa.C.S. § 8542(b)(3).1 After careful review, we affirm.

1
Sections 8541-42 of the Judicial Code, 42 Pa.C.S. §§ 8541-42, are commonly known as the
Political Subdivision Tort Claims Act.
I. Background
We take the alleged facts of this matter from the Turners’ complaint. Anthony
was a high school student in the School District. Reproduced Record (R.R.) at 6a.
On or about June 5, 2019, Anthony attended a physical education class, during which
School District staff directed him to participate in a kickball game.2 School District
staff “utilized temporary bases which were not affixed to the ground” for the game.
Id. While participating, Anthony ran to a base, which slid out from under him. Id.
Anthony “experience[d] a pop” and fell to the ground, suffering “a displaced fracture
of the posterior margin of the distal tibia with localized soft tissue swelling, noted as
a Salter-Harris type II fracture with a permanent decrease in functional mobility,
stiffness, pain, weakness, and physical discomfort.” Id. at 7a.
The Turners filed their complaint against the School District on June 3, 2021,
alleging the School District was negligent by failing to safely maintain the field used
during the kickball game, resulting in Anthony’s injury. Specifically, the Turners
alleged the School District did not “install and use a hook or clip or a type of fastener
to be made part of the real estate” to affix the temporary bases to the ground or did
not use “non-slip bases for kickball games during physical education classes.” R.R.
at 9a. The School District filed an answer with new matter on September 8, 2022,
denying it acted negligently and, in relevant part, contending it was immune from
liability under the Judicial Code. The School District filed a motion for judgment
on the pleadings on September 28, 2022, contending once again that it was immune.
The School District acknowledged the Judicial Code’s exception to immunity under
Section 8542(b)(3) for the negligent “care, custody or control of real property in the

2
Although not explained in the Turners’ complaint, the record indicates the kickball game was
played outdoors on AstroTurf. R.R. at 57a. Anthony was 16 years old at the time of the game and
is now an adult. See id.

2
possession of the local agency.” 42 Pa.C.S. § 8542(b)(3). It argued, however, that
the bases used during the kickball game were personalty, not real property, such that
Section 8542(b)(3) did not apply.
The Turners filed a reply to the School District’s new matter on September
28, 2022, followed by an answer in opposition to the School District’s motion for
judgment on the pleadings on October 28, 2022. The Turners argued their lawsuit
involved the School District’s failure to install fasteners for the bases to the kickball
field, i.e., its failure to make the real property safe, rather than a defect with the bases
themselves. In addition, the Turners argued the School District’s contentions were
inconsistent with Brewington for Brewington v. City of Philadelphia, 199 A.3d 348
(Pa. 2018), in which the Pennsylvania Supreme Court applied Section 8542(b)(3) to
a boy who tripped and fell into a concrete wall during physical education class. The
School District filed a surreply on November 10, 2022.
By order dated January 13, 2023, Common Pleas granted the School District’s
motion for judgment on the pleadings and dismissed the complaint with prejudice.
The Turners timely filed this appeal.3 In its opinion, Common Pleas first discussed
Section 8542(a), concluding the Turners failed to establish an action at common law
that would permit them to recover damages absent the School District’s immunity.
R.R. at 138a. Common Pleas reasoned a possessor of land, like the School District,
has a duty to protect invitees from latent unreasonable risks that the possessor should
expect the invitees not to discover or recognize. Id. at 139a (citing Brewington, 199
A.3d at 355; Restatement (Second) of Torts § 343 (Am. L. Inst. 1965)). It was

3
The Turners filed their notice of appeal with the Pennsylvania Superior Court, which transferred
the matter to this Court. The Turners also filed a motion for reconsideration. Common Pleas did
not formally rule on the Turners’ motion for reconsideration but expressed disagreement with the
motion in its opinion, which we discuss below. See R.R. at 143a.

3
“obvious and unhidden” that the bases were unaffixed to the ground, Common Pleas
explained, and Anthony “must have been aware that he was participating in a gym
class kickball game with temporary bases.”4 Id. (emphasis in original).
In addition, Common Pleas addressed Section 8542(b)(3), concluding the real
property exception did not apply because this case involved personalty, rather than
real property. R.R. at 142a-43a. Common Pleas reasoned Anthony “was not injured
as a result of the field being negligently maintained, nor was he injured by the land
itself. The injury occurred because he slipped on a temporary base placed on the
land for a temporary purpose.” Id. at 144a. It distinguished Brewington, explaining
the boy in that case was injured by a concrete wall, which was real property. Id. at
142a. Common Pleas cited another Pennsylvania Supreme Court decision, Blocker
v. City of Philadelphia, 763 A.2d 373 (Pa. 2010), which held Section 8542(b)(3) did
not apply to a woman who was injured when a bleacher she was sitting on during a
concert collapsed. R.R. at 143a-44a.
Common Pleas also discussed its decision to dismiss the Turners’ complaint
with prejudice. Common Pleas asserted there was no way the Turners could amend
their complaint to bring a negligence claim under Section 8542(b)(3). R.R. at 144a-
45a. The Turners acknowledged the base on which Anthony slipped was temporary
and unaffixed to real estate. Id. at 144a. Common Pleas concluded, therefore, that
no matter how they amended their complaint, “the fact remains that [Anthony’s] foot
made contact with personalty which led to his harm and [the School District] remains

4
Common Pleas rejected an argument the Turners made that Major League Baseball rules require
attaching bases to the ground. See R.R. at 57a. Common Pleas explained: “Major League Baseball
may establish regulations for professional baseball teams and ballparks under its control, but those
obligations do not create a duty for high school physical education kickball.” Id. at 139a.

4
immune from suit. Trial in this matter would be a fruitless exercise.” Id. at 145a
(citing Beardell v. W. Wayne Sch. Dist., 496 A.2d 1373, 1375 (Pa. Cmwlth. 1985)).
On appeal, the Turners argue Common Pleas erred by concluding the School
District was immune from liability and did not fall within the real property exception
under Section 8542(b)(3). They argue, in the alternative, that Common Pleas should
have allowed them to amend their complaint.
II. Discussion
When reviewing an order granting judgment on the pleadings, the Court must
determine whether the law makes recovery impossible on the facts averred. Cagey
v. Commonwealth, 179 A.3d 458, 463 (Pa. 2018) (citing Emerich v. Phila. Ctr. for
Hum. Dev., Inc., 720 A.2d 1032, 1034 (Pa. 1998)). We confine our review “to the
pleadings and documents properly attached thereto. Accordingly, [we] must accept
as true all well[-]pleaded statements of fact, admissions, and any documents properly
attached to the pleadings presented by the party against whom the motion is filed,
considering only those facts which were specifically admitted.” Foust v. Pa. Dep’t
of Hum. Servs., 305 A.3d 1128, 1132 n.3 (Pa. Cmwlth. 2023) (quoting Angino &
Rovner v. Jeffrey R. Lessin & Assocs., 131 A.3d 502, 507 (Pa. Super. 2016)).
Our analysis focuses on the real property exception under Section 8542(b)(3),
which is dispositive. The Judicial Code provides governmental immunity for local
agencies. Under Section 8541, “no local agency shall be liable for any damages on
account of any injury to a person or property caused by any act of the local agency
or an employee thereof or any other person.”5 42 Pa.C.S. § 8541. Section 8542 lists

5
A “local agency” is a “government unit other than the Commonwealth government.” Section
8501 of the Judicial Code, 42 Pa.C.S. § 8501. The School District qualifies as a local agency. See,
e.g., Brewington, 199 A.3d at 350.

5
exceptions to immunity that apply if certain conditions are met. 42 Pa.C.S. § 8542.
It provides as follows, in relevant part:

(a) Liability imposed.--A local agency shall be liable for damages on
account of an injury to a person or property within the limits set forth
in this subchapter if both of the following conditions are satisfied and
the injury occurs as a result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law
or a statute creating a cause of action if the injury were
caused by a person not having available a defense under
section 8541 (relating to governmental immunity
generally) or section 8546 (relating to defense of official
immunity); and

(2) The injury was caused by the negligent acts of the local
agency or an employee thereof acting within the scope of
his office or duties with respect to one of the categories
listed in subsection (b). As used in this paragraph,
“negligent acts” shall not include acts or conduct which
constitutes a crime, actual fraud, actual malice or willful
misconduct.

(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:

....

(3) Real property.--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 real property in the possession of the local
agency. As used in this paragraph, “real property” shall
not include:

(i) trees, traffic signs, lights and other traffic
controls, street lights and street lighting
systems;

6
(ii) facilities of steam, sewer, water, gas and
electric systems owned by the local agency
and located within rights-of-way;

(iii) streets; or

(iv) sidewalks.

42 Pa.C.S. § 8542(a), (b)(3).
In Blocker, as summarized above, our Supreme Court held Section 8542(b)(3)
did not apply to a woman who was injured when a bleacher she was sitting on during
a concert collapsed. 763 A.2d at 374. The Court reasoned the bleacher was not
attached to the ground and could not “be a fixture of the real property.” Id. at 375-
76. The Court quoted from its previous decision in Clayton v. Lienhard, 167 A. 321
(Pa. 1933), distinguishing between the different types of chattels “used in connection
with real estate,” as follows:

Chattels used in connection with real estate are of three classes: First,
those which are manifestly furniture, as distinguished from
improvements, and not peculiarly fitted to the property with which they
are used; these always remain personalty. . . . Second, those which are
so annexed to the property that they cannot be removed without
material injury to the real estate or to themselves; these are realty, even
in the face of an expressed intention that they should be considered
personalty-to them the ancient maxim “Quicquid plantatur solo, solo
cedit”[6] applies in full force. . . . Third, those which, although
physically connected with the real estate, are so affixed as to be
removable without destroying or materially injuring the chattels
themselves, or the property to which they are annexed; these become
part of the realty or remain personalty, depending upon the intention of
the parties at the time of the annexation; in this class fall such chattels
as boilers and machinery affixed for the use of an owner or tenant but
readily removable. . . .

6
“[W]hatever is annexed to the land becomes land.” Blocker, 763 A.2d at 375 (quoting Powell on
Real Property, Ch. 57, ¶ 649[1], at 57–5 (1992)).

7
Blocker, 763 A.2d at 375 (quoting Clayton, 167 A. at 322).
Conversely, in Brewington, our Supreme Court applied Section 8542(b)(3) to
a boy who tripped and fell into a concrete wall during physical education class. 199
A.3d at 350. The boy’s mother alleged the school negligently failed to install safety
mats on the wall. Id. The Court explained that “the real property exception, by its
express definitional terms, includes a failure to provide safety features in situations
where such a duty otherwise exists,” and that local agencies would be subject to suit
for acts “which render a property unsafe for ‘the activities for which it is regularly
used, for which it is intended to be used, or for which it may reasonably be foreseen
to be used.’” Id. at 357 (quoting Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1124
(Pa. 1987)). The Court also discussed Blocker:

Our decision in Blocker focused solely on the collapsed bleachers,
which caused the plaintiff’s injury; as chattel that was not affixed to
realty, it constituted personalty which did not fall within the real
property exception. The chattel in Blocker was the cause of the injury.
Here, it was the wall, which is not chattel, but real property, that caused
[the boy’s] injuries. Thus, we find the instant matter, unlike the
situation in Blocker, comfortably fits within the real property exception.
Accordingly, we reaffirm our decision in Blocker to the extent it holds
personalty alone may not serve as the basis to trigger the real property
exception to governmental immunity . . . .

Id. at 357-58.
The Turners aver in their complaint that Anthony was injured because School
District staff “utilized temporary bases which were not affixed to the ground” for the
kickball game. R.R. at 6a. Because the bases were not affixed to the kickball field,
they were personalty, like the bleacher in Blocker. The Turners anticipate this issue,
averring the School District failed to install fasteners for bases to the kickball field,
“rendering the property unreasonably unsafe.” Id. In other words, the Turners aver

8
it was the kickball field that caused Anthony’s injury by lacking fasteners for bases,
rather than the bases themselves. The Turners’ brief advances the same idea, arguing
the School District failed to provide a kickball field that was reasonably safe for its
intended use. Turners’ Br. at 7-8, 13-16.
The Turners are not entitled to relief. The Turners’ complaint does not point
to an unsafe condition of the real property but to a way that the School District could
have changed the real property to make personalty safer, i.e., installing fasteners for
kickball bases to the ground. This argument lacks support in case law, which
“centers on the cause of the injury, rather than the nature of the remedy that should
have been provided.” See Brewington, 199 A.3d at 357. It also contravenes our
Supreme Court’s directive that “exceptions to governmental immunity must be
narrowly construed.” See id. at 355-56 (citing Dorsey v. Redman, 96 A.3d 332, 341
(Pa. 2014)). We agree with Common Pleas that our Supreme Court’s reasoning in
Blocker controls, and that the Turners’ claim does not meet the requirements of the
real property exception under Section 8542(b)(3).7
The Turners argue, in the alternative, that Common Pleas should have allowed
them to file an amended complaint. We review Common Pleas’ decision to grant or
deny leave to amend for an abuse of discretion. See Lacava v. Se. Pa. Transp. Auth.,
157 A.3d 1003, 1017 (Pa. Cmwlth. 2017) (citing Weaver v. Franklin Cnty., 918 A.2d
194, 203 (Pa. Cmwlth. 2007)). A party may amend a pleading at any time, either by
filed consent of the adverse party or leave of court. Rule 1033(a) of the Pennsylvania
Rules of Civil Procedure, Pa.R.Civ.P. 1033(a). However, “the trial court does not
abuse its discretion in failing to grant leave to amend where further amendment could

7
Given this disposition, we do not address Common Pleas’ belief that the Turners would be unable
to establish a cause of action at common law that would permit them to recover damages absent
the School District’s immunity. See R.R. at 138a-40a.

9
not circumvent a defendant’s immunity.” Sobat v. Borough of Midland, 141 A.3d
618, 627 (Pa. Cmwlth. 2016) (citing Holt v. Nw. Pa. Training P’ship Consortium,
Inc., 694 A.2d 1134, 1138 n.9 (Pa. Cmwlth. 1997)).
The Turners’ brief does not explain what amendment they could make to bring
a negligence claim within Section 8542(b)(3). The section of the brief addressing
their request to file an amended complaint merely emphasizes Anthony was a minor
when he was injured, and the statute of limitations had not yet expired. Turners’ Br.
at 18-19. Elsewhere in the brief, the Turners contend they were entitled to discovery,
which would reveal “the nature of the relationship of the bases to the real property.”
Id. at 16-18. They propose that the kickball field “might” have been slippery, or
“that the offending base was the only base not to be secured.” Id. at 16. The Turners’
counsel made similar points during argument before Common Pleas on January 9,
2023, when explaining why she should be permitted to file an amended complaint.
R.R. at 81a-95a.
Review of the record demonstrates the Turners’ proposed amendment would
not have circumvented the School District’s immunity. See Sobat, 141 A.3d at 627.
Although the Turners’ counsel suggested the kickball field might have been slippery,
her theory was that the slippery field may have made the base that caused Anthony’s
injury unsafe. See R.R. at 81a-83a, 86a (“[P]erhaps this base was not appropriate
for AstroTurf; perhaps this base was made for natural grass and dirt and, therefore,
it may have not slid had it been used on a different surface . . . .”). She also suggested
School District staff might have affixed the base that caused Anthony’s injury to the
field, “and it should have stayed but didn’t.” Id. at 84a-85a, 91a. Counsel was not
apparently suggesting that the base was meant to be permanently affixed to the field,
but that it was a temporary base, which did not stay affixed or was never affixed as

10
it should have been. See id. at 91a (“[M]aybe that base was the only one that wasn’t
attached. Maybe the coach should have attached it, but the field itself was defective,
the real property was defective for the purpose that it was being used.”). Thus, even
after the amendment, the Turners’ complaint would continue to depend on an injury
caused by personalty, i.e., an unattached base. We discern no abuse of discretion by
Common Pleas in dismissing the complaint with prejudice.
III. Conclusion
We conclude Common Pleas did not err or abuse its discretion by granting the
School District’s motion for judgment on the pleadings and dismissing the Turners’
complaint with prejudice. Therefore, we affirm Common Pleas’ order dated January
13, 2023.

______________________________
STACY WALLACE, Judge

11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Turner and :
Tobi Govan-Turner, :
Appellants :
:
v. : No. 657 C.D. 2023
:
Lower Merion School District :

ORDER

AND NOW, this 10th day of May 2024, the order of the Court of Common
Pleas of Montgomery County, dated January 13, 2023, is AFFIRMED.

______________________________
STACY WALLACE, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9967709. Public record. Not legal advice.