         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Syeta Brewington, as parent and          :
natural guardian for Jarrett             : No. 886 C.D. 2015
Brewington, a minor and Syeta            : Argued: October 19, 2016
Brewington in her own right,             :
                                         :
                         Appellants      :
                                         :
                   v.                    :
                                         :
City of Philadelphia and Walter G.       :
Smith Elementary School                  :
                                         :
Appeal of: Syeta Brewington and          :
Jarrett Brewington                       :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION BY JUDGE WOJCIK                              FILED: November 14, 2016


            Syeta Brewington, as parent and natural guardian for Jarrett
Brewington, a minor, and Syeta Brewington in her own right (Plaintiff) appeals
from the April 27, 2015 order of the Court of Common Pleas of Philadelphia
County (trial court) granting summary judgment to Walter G. Smith Elementary
School and the School District of Philadelphia (collectively, Defendants).
            The relevant facts follow. On May 9, 2012, nine-year-old Jarrett
Brewington (Student) was injured during gym class at the Walter G. Smith
Elementary School (School).         At the time Student was injured, he and other
children were engaged in a relay race whose boundaries were concrete walls at
either end of the school’s gym.1 (Reproduced Record (R.R.) at 86a.) Student
testified: “I was running too fast and I couldn’t stop and I tripped and fell. . . . And
hit my head on the wall. . . . I fell to the ground and blacked out . . . blood ran all
the way down my face.” (R.R. at 79a-80a; 86a-87a.)
              Student suffered a concussion that caused him to miss classes for the
final weeks of the spring 2012 semester. His symptoms initially required him to
severely curtail his activities, including watching television and even talking, for
about three months.       Student returned to school in the fall, but his memory
problems persisted and his grades dropped.              During his February 17, 2015
deposition, Student stated that he still experienced occasional headaches and
intermittent memory problems.
              On November 19, 2013, Plaintiff filed a Complaint against the
School, the School District of Philadelphia, and the City of Philadelphia,2 alleging
in part as follows:

              10. [Student] was engaged in gym activities when he was
              caused to sustain injuries as a result of a defective and
              dangerous condition of the premises caused directly by
              the actions/inactions of defendants (i.e. gym without
              safety mats).



       1
        The gym had concrete walls and a concrete floor. The School closed in 2012, about a
month after Student’s injury.

       2
        The City of Philadelphia was dismissed from the action by stipulation and order dated
February 4, 2015.


                                             2
            11. Defendants were negligent in maintaining the
            property that was within their care, custody and control[.]

                                   * * *
            23. [Defendants’] negligence and carelessness consisted
            of the following:

            (a) defendants caused or permitted dangerous conditions
            to exist;

            (b) defendants failed to make a reasonable inspection of
            the premises, which would have revealed the dangerous
            condition created by the defendants;

            (c) defendants failed to give warning of the dangerous
            condition and failed to erect barricades or to take any
            other precautions to prevent injury to [Student];

            (d) defendants failed to remove the dangerous condition;

            (e) defendants failed to exercise reasonable prudence and
            due care to keep the gym in a safe condition for the
            minor plaintiff;

            (f) defendants violated the ordinance of Philadelphia
            County pertaining to maintenance of the premises; and

            (g) defendants failed to conform to their own
            specifications and standards as to design and
            maintenance of the school gymnasium.

            (h) defendants’ negligence was a direct cause of injury to
            [Student];

            (i) defendants were negligent in the care, custody and
            control of the premises.

            (j) defendants were negligent in failing to maintain the
            property in a safe condition;

(Complaint, ¶¶10-11, 23, R.R. at 21a-22a, 24a-25a.)


                                        3
              Defendants filed an Answer and New Matter denying the relevant
allegations in the complaint and asserting, among other things, the defense of
governmental immunity. Sections 8541-8542 of the Judicial Code, 42 Pa.C.S.
§§8541-8542, commonly known as the Political Subdivision Tort Claims Act,
(Tort Claims Act). On March 2, 2015, Defendants filed a motion for summary
judgment alleging that they were immune from liability for Student’s injuries
because the real property exception to governmental immunity at 42 Pa.C.S.
§8542(b)(3) does not apply.
              The trial court granted Defendants’ motion for summary judgment by
order dated April 25, 2015. The trial court first focused on the allegation in
Paragraph 10 of Plaintiff’s Complaint, alleging that Student’s injuries resulted
from a “defective and dangerous condition of the premises caused directly by the
actions/inactions of defendants (i.e. gym without safety mats).” Relying on Rieger
v. Altoona Area School District, 768 A.2d 912 (Pa. Cmwlth. 2001), the trial court
held that a claim that Defendants were negligent in failing to protect the walls with
safety mats does not fall within the real property exception because safety mats are
personalty, not realty. The trial court next determined that, although Plaintiff
adequately pleaded a claim of negligent design or construction, that claim was
“comingled” with Plaintiff’s claim of negligent care, custody and control of real
property and accordingly, the holding in Rieger was dispositive.
              On appeal to this Court, Plaintiff argues that the trial court erred in
granting summary judgment to Defendants because Plaintiff’s claim falls within
the real property exception to governmental immunity.3

       3
         On appeal from a trial court’s order granting or denying summary judgment our
standard of review is de novo and our scope of review is plenary. Pentlong Corporation v. GLS
(Footnote continued on next page…)
                                             4
               Local government agencies are generally immune from tort liability.
42 Pa.C.S. §8541.         However, Section 8542 of the Tort Claims Act waives
immunity for specific categories of tort claims. It states:

               (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: . . .

                                           *    *    *

(continued…)

Capital, Inc., 72 A.3d 818, 823 n.6 (Pa. Cmwlth. 2013). Summary judgment is properly entered
only when, “after examining the record in the light most favorable to the non-moving party, and
resolving of all doubts as to the existence of a genuine issue of material fact against the moving
party, the moving party is clearly entitled to judgment as a matter of law." Pyeritz v.
Commonwealth, 32 A.3d 687, 692 (Pa. 2011).


                                                5
                  (3) Real property. -- The care, custody or
                  control of real property in the possession of the
                  local agency . . . .
42 Pa.C.S. §8542. In order 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.”
Taylor v. Northeast Bradford School District, 101 A.3d 144, 148 (Pa. Cmwlth.
2014); Mellon v. City of Pittsburgh Zoo, 760 A.2d 921, 924 (Pa. Cmwlth. 2000).
             Plaintiff asserts that the allegations in the Complaint, the testimony
presented, and Plaintiff’s expert report, (R.R. at 220a-23a), state a claim that the
design and layout of the gym and the construction of its walls were not safe for its
intended purpose. Plaintiff argues that the trial court erred in characterizing that
claim as one alleging an injury caused by personalty rather than real property.
             Plaintiff cites Grieff v. Reisinger, 693 A.2d 195, 197 (Pa. 1997),
which held that the real property exception to governmental immunity applied to
injuries caused by a fire chief’s alleged negligent care of the fire association’s real
property. In Grieff, our Supreme Court rejected the argument that the exception
applied only to a dangerous condition “of” real property. Noting that the exception
expressly applies to an agency’s negligence related to the care, custody, or control
of real property in its possession, the Supreme Court reasoned that “Grieff’s care
of the . . . property caused the fire that injured Reisinger. While he was removing
paint from the floor, therein caring for the real property, it ignited causing the
resultant injuries to Reisinger. Under the real property exception’s plain language,
Grieff and the Fire Association are not immune from suit.” Id. at 197.
             Although the Supreme Court’s decision in Grieff suggested an
expansion of the circumstances to which the real property exception to

                                          6
governmental immunity would apply, it was not inconsistent with existing case
law.
             For example, in Gump v. Chartiers-Houston School District, 558 A.2d
589 (Pa. Cmwlth. 1989), a member of a high school wrestling team was injured
while sprinting in a running drill conducted in the high school’s hallway. “As he
reached the end of the hallway [the student] failed to negotiate a left hand turn and
unintentionally pushed his hand through the window pane of a hallway door.” Id.
at 590.   The student suffered multiple lacerations of his right hand and arm
requiring medical treatment. The appellants (the student and his parents) argued
that the school district was not immune from suit “because of the alleged regular
and permitted use of the hallway for wrestling activities.” Id. at 602. They also
argued that the school district’s “failure to install a type of window that was
shatterproof or reinforced created a dangerous condition.”         Id.   This Court
concluded that the appellants’ allegations “placed them squarely within the [real
property] exception.” Id. (emphasis added). Accordingly, we reversed the trial’s
court’s grant of summary judgment and remanded for further proceedings.
             In Singer v. School District of Philadelphia, 513 A.2d 1108 (Pa.
Cmwlth. 1986), a student gymnast who was performing a stunt over a vaulting
horse in his school’s gymnasium fell and broke his elbow when he missed a mat
and landed on the hardwood floor. The plaintiffs alleged that the school district
was negligent in controlling the landing surface, specifically, by failing to provide
sufficient mats on the hardwood gym floor for students’ protection. The common
pleas court granted judgment on the pleadings to the district, citing governmental
immunity. The plaintiffs appealed, arguing that their allegations were within the
real property exception. We initially recognized that the real property exception to


                                         7
governmental immunity has been interpreted “to impose liability for negligence
which makes government–owned real property unsafe for activities for which it is
regularly used, intended to be used or reasonably forseen to be used.” Id. at 1109
(emphasis added). We reversed the trial court’s order granting judgment on the
pleadings for the school district, explaining:

             Our review of the complaint reveals that it alleges
             negligence concerning the care, custody and control of
             the landing surface around the vaulting horse. A
             necessary element of a gymnasium's hardwood floor,
             which is regularly used as a gymnastic stunt area is
             sufficient matting protection to ensure safe landing by the
             students. Since proper gym floor matting is an essential
             safety element of a gymnasium floor being utilized for a
             vaulting stunt, it is an aspect within the District's care,
             custody and control of its real property, subject to the
             real property exception.
Id. at 1109-10 (emphasis added).

             We relied on Singer in Cestari v. School District of Cheltenham
Township, 520 A.2d 110 (Pa. Cmwlth. 1987), to reverse the trial court’s grant of
summary judgment on the basis of governmental immunity. Cestari involved a
student pole vaulter who was injured during a track meet when he failed to clear a
pole and landed with one foot on and one foot off the landing mat. The student
filed suit alleging that the district was negligent in, among other things, failing to
conform to applicable guidelines related to the number and placement of mats in
and about the pole vault pit. He asserted that his claim fell within the real property
exception because the pole vault unit was affixed to the district's real property, thus
becoming realty, and the district was negligent in failing to protect the pole vault
pit with sufficient mats. Citing Singer’s holding that the use of matting could
constitute an aspect of an agency’s care, custody, and control of real property, we

                                          8
concluded that the allegations could fall within the real property exception and
remanded the case for resolution of material facts.
             Subsequently, in Bradley v. Franklin County Prison, 674 A.2d 363
(Pa. Cmwlth. 1996) (en banc), we held that allegations of a prison’s negligence in
installing a tile floor without a non-slip surface constituted a dangerous condition
of government property set forth facts that fell within the real property exception.
We reasoned that

             the prison authorities provided the shower facilities
             where running water was a necessary and inextricable
             part of the design; the prison constructed the shower and
             drying-off area knowing and intending that water would
             necessarily accumulate on the floor where bare feet must
             tread. As such [sic], the instant case is analogous to
             Singer in that a shower drying off area must have tiles
             with non-slip properties in order to be safe for its
             particular use, i.e., being stepped upon by wet feet, just
             as a school gymnasium floor must have sufficient
             matting protection in order to be safe for its intended,
             specific use, i.e., gymnastic activities of its students.

             Accordingly, we hold that Bradley's allegation that his
             injury was caused by the defective design, construction
             or condition of the floor, devoid of a non-slip surface, is
             an allegation that falls within the real property exception
             to governmental immunity. Because the question of
             whether Appellees have created a dangerous condition of
             government realty, by failing to install a non-slip surface
             on the prison drying off area, is one of fact for the jury to
             decide, the trial court acted improperly in granting the
             Appellees’ motion for judgment on the pleadings.

Bradley, 674 A.2d at 366-67 (emphasis added). In Leonard v. Fox Chapel Area
School District, 674 A.2d 767, 770 (Pa. Cmwlth. 1996), we repeated that liability




                                          9
may “be imposed for negligence which makes the governmental realty unsafe for
its intended, specific and readily identifiable use.”
                In decisions that followed Grieff, we continued to apply that analysis,
repeatedly holding that allegations of an agency’s negligence in the care, custody,
and control of real property that rendered its property unsafe for its intended and
foreseeable use fell within the real property exception. In Hanna v. West Shore
School District, 717 A.2d 626 (Pa. Cmwlth. 1998), we reversed the grant of
summary judgment in a suit alleging that the plaintiff slipped in a puddle of water
that accumulated as a result of an employee’s negligence in damp-mopping a
school floor. And in Kevan v. Manesiotis, 728 A.2d 1006 (Pa. Cmwlth. 1999), we
held that a trial court erred in granting summary judgment to a school district based
on governmental immunity where a student alleged that inadequate lighting in the
school gymnasium contributed to injuries he sustained during indoor baseball
practice. “As in Floyd4 . . . in the present case a question of fact exists as to
whether inadequate lighting in [the] gymnasium contributed to [the plaintiff’s]
injuries. The trial court thus erred in granting summary judgment to [the school
district] on the grounds of governmental immunity.” Kevan, 728 A.2d at 1008.
                Additionally, in accord with the plain statutory language, we have
consistently held that in order for the real property exception to apply, the real
property must be in the “possession” and “control” of the governmental agency, 5
and the injury must be “caused by” negligence related to the care, custody, or



      4
          Floyd v. Philadelphia Housing Authority, 623 A.2d 901 (Pa. Cmwlth. 1993).

      5
          See, e.g., City of Pittsburgh v. Estate of Strahlman, 677 A.2d 384 (Pa. Cmwlth. 1996).



                                                10
control of the real property.6 Likewise, we have repeatedly held that the exception
is limited to injuries involving real property and does not apply in cases where the
plaintiff’s injury was caused by personalty. See e.g., Repko v. Chichester School
District, 904 A.2d 1036 (Pa. Cmwlth. 2006) (injury was caused by a folding table
that fell on a student); Kniaz v. Benton Borough, 642 A.2d 551 (Pa. Cmwlth.
1994) (injury resulted when picnic table overturned); Wilson v. Ridgeway Area
School District, 596 A.2d 1166 (Pa. Cmwlth. 1991) (injury was related to use of a
table saw); DeRitis v. City of Philadelphia, 582 A.2d 738 (Pa. Cmwlth. 1990)
(injury was caused by unsafe condition of bleacher); Canon-McMillan School
District v. Bioni, 561 A.2d 853 (Pa. Cmwlth. 1989) (injury was caused by
malfunction of a wood lathe not attached to real property); Maloney v. City of
Philadelphia, 535 A.2d 209 (Pa. Cmwlth. 1987) (injury was caused by unsafe
condition of scaffolding).
                Determinations as to whether an alleged injury involves real property
or personalty are often predicated on whether an article is a fixture. See, e.g.,
Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000); Gore v. Bethlehem Area
School District, 537 A.2d 913 (Pa. Cmwlth. 1988).7 Whether chattel is personalty
or a fixture is a question of law for the court to decide. Taylor, 101 A.3d at 148;
Canon-McMillan School District, 561 A.2d at 855.

       6
           See e.g., Wellons v. SEPTA, 596 A.2d 1169 (Pa. Cmwlth. 1991).
       7
          “A fixture is an article in the nature of personal property which has been so annexed to
the realty that it is regarded as part and parcel of the land.” Gore, 537 A.2d at 915 (quoting
Black's Law Dictionary 574 (5th Ed. 1979)). “The considerations to be made in determining
whether or not a chattel becomes a fixture include (1) the manner in which it is physically
attached or installed, (2) the extent to which it is essential to the permanent use of the building or
other improvement, and (3) the intention of the parties who attached or installed it.” Id.




                                                 11
               The plaintiff in Blocker was attending a concert at a city-owned
facility and was injured when a bleacher that she was sitting on collapsed. She
filed a claim against the city alleging that it negligently maintained the bleacher.
The common pleas court granted summary judgment to the city, reasoning that,
because the bleacher was not affixed to the realty it was personalty and, as such,
the claim did not fit within the real property exception to governmental immunity.
               On appeal, however, this Court reversed. Although there was no
evidence that the bleacher was attached to the ground, we concluded that there was
a genuine issue of material fact as to whether the city intended the bleacher to
remain permanently on the concert grounds, which must be submitted to a jury as
fact-finder.
               Addressing only that discrete issue, our Supreme Court reversed.
               Commonwealth Court erred in holding that the bleacher
               could be a fixture of the real property. There was no
               attachment of the bleacher to the property on which it
               rested. The court’s view that the intention of the city
               regarding whether the bleacher was permanent in its
               location supersedes the lack of attachment was without
               basis. . . . It is anciently established that consideration of
               the intention of an owner regarding whether a chattel has
               been permanently placed on real property is relevant only
               where the chattel has in fact been affixed to the realty. . .
               . Absent an attachment to realty, a chattel remains
               personalty.
763 A.2d at 375. Citing the relevant principles set forth in Clayton v. Lienhard,
167 A. 321, 322 (Pa. 1933),8 the court summarized its holding as follows: “Thus, a

               8
                 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
(Footnote continued on next page…)
                                               12
chattel that is not affixed to realty remains personalty; only where personalty has
been attached to realty does the parties’ intent become relevant.” Blocker, 763
A.2d at 375.
               Subsequently, in Rieger v. Altoona Area School District, 768 A.2d
912 (Pa. Cmwlth. 2001), this Court concluded that the narrow holding in Blocker,
that a chattel not attached to realty remains personalty, had implicitly overruled our
holding in Singer that the use of mats for safety purposes constituted an “aspect of
the District's care, custody and control of its real property.” 513 A.2d at 1109-10.
               Rieger involved a student who was injured during cheerleading
practice when she fell onto an unprotected hardwood gym floor. The Riegers
claimed that the school district was negligent in the care, custody, and control of its
real property by failing to provide mats on the hardwood surface used for
cheerleading practice. There was no allegation in Rieger that her injury was
caused by a condition of personalty, and, therefore, the legal distinction between
real property and personalty was neither raised nor relevant. The plaintiff was
injured when she struck the hardwood floor, which is clearly not personalty.


(continued…)

               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 . . . . 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 . . . .

Blocker, 763 A.2d at 375 (quoting Clayton, 167 A. at 322).



                                                13
Nevertheless, the court in Rieger concluded that the holding in Blocker was
dispositive.
               Singer focused on the element that caused the student’s injury – the
unprotected hardwood floor – and not on that which could have prevented the
injury – a mat. Rieger misapprehended this focus, concentrating not on the cause
of the plaintiff’s injury but on the nature of chattel that could have been used to
protect students from injury.
               Consequently, this Court in Rieger misconstrued Blocker as
overruling Singer.
               The analysis in Singer was introduced with the following statements:

               The Singers contend that the facts averred in the
               complaint come within the real property exception to
               governmental immunity, Section 8542(b)(3) of the
               Judicial Code, because the District was negligent in
               controlling the landing surface by insufficiently
               protecting the hardwood floors with mats. We agree.

513 A.2d at 1109 (emphasis added) (footnote omitted). The court next observed
that, “[p]ursuant to the real property exception, the conduct alleged in the
complaint must be directly related to the condition of the property. This exception
has been read to impose liability for negligence which makes government-owned
real property unsafe for activities for which it is regularly used, intended to be used
or reasonably foreseen to be used.” Id. (citations and footnote omitted).
               In Singer this Court also highlighted the averment that “the District
negligently . . . failed to properly choose, construct, manage, maintain and control
a landing surface for plaintiff’s vault mentioned hereinabove.” Id. at 1109 n.4
(emphasis in original).


                                          14
             Our review of the complaint reveals that it alleges
             negligence concerning the care, custody and control of
             the landing surface around the vaulting horse. A
             necessary element of a gymnasium's hardwood floor,
             which is regularly used as a gymnastic stunt area is
             sufficient matting protection to ensure safe landing by the
             students. Since proper gym floor matting is an essential
             safety element of a gymnasium floor being utilized for a
             vaulting stunt, it is an aspect within the District's care,
             custody and control of its real property, subject to the real
             property exception.
Id. at 1109-10 (emphasis added).
             We conclude that the court in Rieger misconstrued the above language
as holding that personalty placed on real property to render it safe for its intended
use is considered to be real property for purposes of governmental immunity.
Such interpretation does not logically follow the Singer court’s introductory
summary of the case or the averments it emphasized.             More importantly, it
interprets Singer as conflicting with the well-settled principle that a chattel not
affixed to real property remains personalty. Clayton.
             Additionally, insofar as this analysis of whether the real property
exception applies turns on the nature of a remedy not provided rather than the
cause of the injury - the condition of the real property as it existed vis-a-vis its
intended use – it will lead to absurdly inconsistent results for identically dangerous
conditions. For example, a claim alleging a dangerous condition due to inadequate
lighting would rest on whether the established standard of care calls for providing a
floor lamp, which is chattel, or recessed lighting, which is a fixture. A claim that
an injury was caused by a crumbling retaining wall would be dismissed if the
plaintiff alleged that nylon barrier netting should have been used as a temporary
protective measure. As illustrated, plaintiffs would be penalized for pointing out
how easily an injury could have been avoided.

                                          15
             Plaintiff argues that she has not alleged that Student’s injury was
caused by the condition of any property that can be classified as personalty.
Plaintiff maintains that, instead, the allegations in the Complaint, the testimony
presented, and Plaintiff’s expert report, (R.R. at 220a-23a), all relate to allegations
that the design and layout of the gym and the construction of its walls were not
safe for its intended purpose. We agree; Plaintiff’s claim is that the property as it
existed was 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, Bradley; Singer; and that dangerous condition was the cause of Student’s
injury. The fact that the possible options for remedying the dangerous condition of
the gymnasium may include personalty is irrelevant. On summary judgment, the
only issue is whether Plaintiff’s allegations that Student’s injury was caused by an
unprotected concrete wall in an elementary school gym fall within the real property
exception to governmental immunity.
             Based on the foregoing, we hold that where a complaint includes
specific allegations that a plaintiff’s injuries resulted from negligence in the
defendant’s care, custody, or control of real property, neither the Supreme Court’s
decision in Blocker nor this Court’s decision in Rieger precludes a determination
that the real property exception may apply.         Consequently, we reaffirm our
decision in Singer and overrule Rieger as a misinterpretation of Singer and a
misapplication of Blocker.
             As to this case, we further conclude that the trial court erred in
characterizing Student’s claims of a “defective and dangerous condition of the
premises” and Defendants’ failure “to conform to their own specifications and
standards as to [the] design” of the school gymnasium as “comingled” claims


                                          16
involving personalty, rather than as claims alleging injury caused by Defendants’
negligence in their care, custody, and control of real property.
             Finally, we stress that while the question of whether a plaintiff’s
allegations of negligence concern real property or personalty is a question of law
for the court to decide, it is well settled that the question of whether a defendant’s
negligence caused the plaintiff’s injury is a question of fact to be decided by a jury.
Taylor, 101 A.3d at 150; Mellon, 760 A.2d at 925.
             Accordingly, we reverse the trial court’s order and remand this matter
to the trial court for further proceedings.




                                         MICHAEL H. WOJCIK, Judge




                                              17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Syeta Brewington, as parent and            :
natural guardian for Jarrett               : No. 886 C.D. 2015
Brewington, a minor and Syeta              :
Brewington in her own right,               :
                                           :
                         Appellants        :
                                           :
                   v.                      :
                                           :
City of Philadelphia and Walter G.         :
Smith Elementary School                    :
                                           :
Appeal of: Syeta Brewington and            :
Jarrett Brewington                         :



                                     ORDER


            AND NOW, this 14th day of November, 2016, the order of the Court
of Common Pleas of Philadelphia County, dated April 27, 2015, is reversed, and
the matter is remanded for further proceedings.


            Jurisdiction relinquished.




                                         __________________________________
                                         MICHAEL H. WOJCIK, Judge
