author: TURGEON, J.,

text:
    Commonwealth v. Miller

      C.P. of Dauphin County,
    nos. 2775, 2775-A, 2787 and 2787-A CD 1992.

      James Barker, for Commonwealth.

      Robert Brett Dunham, Matthew C. Lawry, Anne Saunders and Shawn Nolan, for defendant.
    June 30, 2003
   TURGEON, J.,

Currently before the court is the Commonwealth’s appeal from this court’s December 17,2002 order, which vacated two death sentences imposed upon petitioner Joseph Miller and imposed consecutive life sentences upon him, on the basis that petitioner is mentally retarded and as such, cannot be executed under Atkins v. Virginia, 536 U.S. 304 (2002). This opinion is written in support of that order, pursuant to Pa.R.A.P. 1925(a).

PROCEDURAL BACKGROUND

On March 24,1993, petitioner was convicted by a jury for the first-degree murder and kidnapping of Selina Franklin and the first-degree murder of Stephanie McDuffey. Following a capital sentencing hearing, the jury returned two death sentences. After petitioner’s post-trial motions were denied, he was formally sentenced to consecutive death sentences and a consecutive seven and a half to 15 years for kidnapping. Commonwealth v. Miller, 113 Dauph. 374 (1993). Petitioner filed a direct appeal from the death sentences, which were affirmed by the Pennsylvania Supreme Court. Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310 (1995).

On December 13, 1995, a warrant of execution was signed by then-Govemor Ridge. On January 5,1996, the Pennsylvania Supreme Court granted a stay of execution. On February 20, 1996, the United States Supreme Court denied petitioner’s petition for writ of certiorari. Miller v. Pennsylvania, 516 U.S. 1122 (1995). On March 11, 1996, Governor Ridge signed a second warrant of execution scheduling petitioner for lethal injection on March 26, 1996. On March 19, 1996, this court granted a petition for stay of execution and appointed counsel to allow petitioner to pursue collateral relief under the Post Conviction Relief Act. On December 2,1997, this court denied petitioner’s request for PCRA relief and state habeas corpus relief. Commonwealth v. Miller, 118 Dauph. 16 (1997). Petitioner’s appeal to the Supreme Court was denied February 24, 2000. Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592 (2000).

On August 19, 2002, petitioner filed a petition seeking PCRA and habeas corpus relief, under Atkins v. Vir ginia, 536 U.S. 304 (2002). The United States Supreme Court held in Atkins that the execution of persons who suffer from mental retardation constitutes cmel and unusual punishment in violation of the Eighth Amendment. After the Commonwealth filed an answer to the petition, both parties filed extensive documentary evidence from previous proceedings in this case which established that petitioner suffers from mental retardation. Accordingly, on December 17,2002, based upon the documentary evidence, I issued an order vacating both death sentences and imposing consecutive life sentences upon petitioner. The Commonwealth has timely appealed from that order.

FACTUAL BACKGROUND

The Supreme Court previously summarized the facts giving rise to petitioner’s convictions, as follows:

“[0]n August 6, 1992, appellant was arrested in connection with the rape of Clara Johnson, which had occurred the previous day. While in custody and after waiving his Miranda rights, appellant confessed to raping and murdering two other victims, Selina Franklin and Stephanie McDuffey, several years earlier. After confessing regarding the other two victims, appellant led police to where their bodies were buried. Appellant ultimately pleaded guilty to the 1992 charges of rape, kidnapping, aggravated assault and attempted homicide arising out of his 1992 attack on Clara Johnson. Evidence concerning that attack was admitted at appellant’s trial for the kidnapping and murders of victims Franklin and McDuffey in order to establish a common scheme, plan or design.
“The evidence regarding Clara Johnson, a six-foot-tall black woman, was that on August 5,1992, while she waited for a cab at the Uptown Grill (a bar in Harrisburg), appellant and a friend of his offered her a ride. After the friend was dropped off, Johnson testified that she asked appellant to take her back to the bar because she had only consented to the ride when she believed that the friend would be present. Appellant pretended to agree to take her back to the Uptown Grill, but, after stopping at a mini-market for cigarettes and gasoline, he began driving in a direction away from the Uptown Grill, and in a direction away from Johnson’s home. Johnson became nervous and, when she tried to get appellant to stop the car, a struggle ensued. Appellant told Johnson that he had something to do with her and that she ‘wasn’t going anywhere.’ Appellant proceeded to drive at a high rate of speed to an isolated area near Conrail train tracks and, when Johnson tried to jump from the moving vehicle, appellant slammed on the brakes, causing the car door to hit her in the head, dazing her. Appellant then attempted to run over Johnson with the car, but she fell down an embankment. Upon finding her approximately a half mile away from the car, appellant beat her in the head and face and raped her. After consuming a beer, he bound her with duct tape, and placed a knife to her throat. Appellant then informed Johnson that he was going to rape her again, after which he would have to kill her. He also told Johnson that all women were alike and that he had killed other women.
“After raping Johnson again, appellant then repeatedly beat her about the head with beer bottles, and dragged her approximately half a mile by her legs to a ditch near where the car was parked, where he put duct tape over her mouth and nose. By happenstance, a Conrail security officer came upon the scene as appellant was dragging Johnson to the ditch. Upon seeing the Conrail officer, appellant fled on foot, leaving behind his car with a bloody knife stuck in the window well. Clara Johnson fortunately survived her ordeal and testified against appellant.
“A registration check of the car left at the scene revealed that it belonged to appellant. Based on this information and on Johnson’s statement, police went to appellant’s home at 6 a.m. the next morning, August 6, 1992, to arrest him. Appellant fled to the roof of a multistory apartment building, where he was apprehended after a six-hour standoff during which he had threatened to jump. Appellant was arrested and charged with the rape, aggravated assault, kidnapping and attempted murder of Clara Johnson. After being read and waiving his Miranda rights, appellant told Detective Thomas Brennan that Johnson had voluntarily accompanied him to the Conrail yard to have sex, and that a fight had ensued after an argument. At the end of the interview, Detective Brennan told appellant that he believed appellant had probably been involved in other assaults and that appellant could get in touch with him if he wished to provide further information or take him to any other bodies.
“Five days later, on August 11, 1992, while in custody, appellant requested a meeting with Detective Brennan through a counselor at the Dauphin County Mental Health/Mental Retardation Program. Pursuant to appellant’s request, Detective Brennan and appellant met at the prison between 4 and 5 p.m. After again waiving his Miranda rights, appellant further stated to Detective Brennan that he had killed a woman named Selina Franklin in 1987, and told Detective Brennan that he would take him to the body. Appellant also asked at the meeting to speak to a representative of the district attorney’s office. Complying with appellant’s request, Detective Brennan transported appellant to the district attorney’s office at about 5 or 6 p.m. to meet with First Assistant District Attorney William Tully. En route to the district attorney’s office, appellant told the detective that he had killed yet another woman in 1989, but that he did not recall her name.
“At the district attorney’s office, appellant told Mr. Tully, in Detective Brennan’s presence, that he had committed several homicides and wanted the death penalty because he did not wish to further embarrass his family. Appellant further told Mr. Tully that the bodies were located at the Swatara Township landfill. While awaiting the assistance of other police departments to join in the search of the landfill, appellant gave Detective Brennan more details of the murders.
“Specifically, appellant said in his statement that he had picked up Selina Franklin and her friends, and, after dropping off the other women at their homes, he took Franklin to the landfill where Franklin agreed to have sex with him for 35 dollars. He told Detective Brennan that after having sex with Franklin, he found an electrical insulator with which he beat Franklin over the head until she was dead. He then retrieved the 35 dollars from her pocket. Appellant said that several days after being questioned by police in connection with Franklin’s disappearance, he had returned to the landfill, located the body and moved it to a different location, removed some of the victim’s clothing and scattered it around the landfill and buried the body along with the insulator. When he returned again several months later, he found bones sticking out of the ground, which he threw down a hill.
“Appellant also told Detective Brennan about the killing of the other woman, whose name he did not know but who was later identified through testimony as Stephanie McDuffey. Appellant told the detective that sometime in 1989, he had picked up this second victim on the streets of Harrisburg and taken her to the same landfill where he had taken Franklin and that he and the second victim had sexual intercourse. He then took a piece of pipe from a junked car with which he beat her over the head until she was dead. Appellant told Detective Brennan that he then dragged her a short distance off the access road through the landfill and covered her body, along with the pipe, with lumber, shingles and tires.
“Appellant also recounted the assault on Johnson which led to his arrest. Although appellant claimed that Johnson had accompanied him to the Conrail yard voluntarily and that they had had consensual sex, he also told Detective Brennan that sometimes he just got ‘the urge to go out, pick up a black female, rape her and kill her.’...
“After his detailed statement to the first deputy D.A. and Detective Brennan, appellant was taken to the Swatara Township landfill between 6 and 7 that evening, where he pointed out the general location of the two bodies to police. Because police were not equipped to conduct a search at night, appellant agreed to return to the landfill the next morning to aid in the search for the bodies. On August 12,1992, Detectives Brennan and Wenner secured appellant from the prison, advised him once again of his Miranda rights, which he waived, and took him to the landfill. During the drive, appellant marked two areas on an aerial photograph provided by the detectives as the general areas where the bodies were located. These corresponded to the areas he had indicated the previous night. En route to the landfill, appellant began to laugh for no apparent reason and told Detective Brennan that he previously had been lying about the murders.
“Notwithstanding Miller’s recantation, police searched the areas indicated by appellant and, over the course of a week, found relatively intact human and fetal skeletal remains later identified as those of Stephanie Mc-Duffey and her eight-and-a-half month old fetus. Her skull had been crushed, and the pathologist testified that the cause of death was several severe blows to the head. The position of the body indicated that it had been dragged to the location where it was discovered. The skeletal remains were identified by dental records and specific conditions of the pregnancy, as documented by hospital records. A pipe was also found alongside the body.
“Police also uncovered the partial skeletal remains of Selina Franklin, including a foreleg bone around which a rope was knotted and tied. The pathologist testified that, based upon the tightness of the rope around the bone, prior to decay the rope would have been tightly tied around the victim’s ankle. The skull was never recovered, so the body was identified by the clothing, which matched the clothing Selina Franklin wore when she was last seen by friends. An electrical insulator was found near the body.” Miller, 541 Pa. at 540-45, 664 A.2d at 1314-17. (footnotes omitted)

Petitioner pled guilty to all charges involving Clara Johnson on March 9,1993. On March 24,1993, following a jury trial, petitioner was found guilty of the first-degree murder and kidnapping of Franklin and the first-degree murder of McDuffey. In the penalty phase of the trial, the jury was presented with evidence of the statutory aggravating factors and mitigating circumstances relevant to a capital case. The jury found, for each murder, that the Commonwealth had proven beyond a reasonable doubt the existence of two aggravating factors. The jury also listed the following mitigating circumstances as having been found by one or more of them by a preponderance of the evidence: childhood abuse, low mental intelligence, neglect by family and society, mental illness, alcohol problems, and psychological trauma caused by neglect. Ultimately, the jury concluded the aggravating factors outweighed the mitigating circumstances and returned death sentences for both murders.

LEGAL DISCUSSION

In death penalty cases, the court may grant PCRA relief without a hearing when the petition and answer show that there is no genuine issue concerning any material fact and that the petitioner is entitled to relief as a matter of law. Pa.R.Crim.P. 907(2). The record provided the court, from earlier proceedings in this case, established that there existed no genuine issues of material fact as to petitioner’s mental retardation which was established by petitioner to this court on proof by a preponderance of the evidence. As such, petitioner was entitled to relief under Atkins as a matter of law.

In Atkins the United States Supreme Court held that the Eighth Amendment’s ban on excessive cruel and unusual punishment prohibits the execution of individuals with mental retardation, reversing Penry v. Lynaugh, 492 U.S. 302 (1989). The court acknowledged that a consensus had developed amongst state legislatures that had addressed the matter and that those states had unanimously created law finding death not a suitable punishment for a mentally retarded criminal. The court reasoned that it was not persuaded that the execution of mentally retarded criminals would measurably advance the deterrent or the retributive purpose of the death penalty. As such, “in construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ such punishment is excessive and that the constitution ‘places a substantive restriction on the state’s power to take the life’ of a mentally retarded offender.” Atkins at 321 (citing Ford v. Wainwright, 477 U.S. 399, 405 (1986) (holding that it is a violation of the Eighth Amendment to execute the insane)).

We note that, in determining how to proceed with petitioner’s mental retardation claim, the court in Atkins held that it would “leave to the states the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences,” as it had done in Ford v. Wainwright. Id. at 317. Thus, the court left to each state, decisions on procedure, including whether a judge or jury should adjudicate a mental retardation claim, who maintains the burden of proof, what burden of proof should be required and to a lesser extent, the definition of mental retardation. At the time I vacated petitioner’s death sentences, neither the Pennsylvania Supreme Court nor the General Assembly had conclusively addressed these issues. As such I based my decision assuming petitioner maintained the burden to prove his mental retardation by a preponderance of the evidence and that the court, and not a jury, was the proper body to evaluate a claim of mental retardation, as is the case with competency hearings. Furthermore, the consensus clinical definition of mental retardation used by the vast majority of professionals in the field, acknowledged in Atkins, was the appropriate definition.

In so concluding, I find analogous the law as applied in Pennsylvania competency proceedings, which closely resemble the issues before us, and in which, the defendant maintains the burden of proving incompetency to the court by a preponderance of the evidence. As noted, in prohibiting states from executing the mentally retarded, the Atkins court relied upon its 1986 decision in Ford v. Wainwright, where it had similarly found execution of the insane violative of the Eighth Amendment. Thereafter, in Medina v. California, the United States Supreme Court approved a California statute requiring that the defendant prove incompetency by a preponderance of the evidence. 505 U.S. 437 (1992). However, in Cooper v. Oklahoma, the United States Supreme Court found unconstitutional an Oklahoma rule which required that a capital defendant prove his incompetence by clear and convincing evidence. 517 U.S. 348 (1996). The rule was constitutionally infirm because it allowed the state to try a defendant who was more likely than not incompetent, which it found violative of the due process clause. Id. at 368. The Pennsylvania Supreme Court subsequently applied Cooper and Medina in Commonwealth v. duPont, holding that Pennsylvania’s competency statute, which required that the defendant prove incompetency to the court by a preponderance of the evidence, was constitutionally valid under the due process clause of the Fourteenth Amendment. 545 Pa. 564, 568, 681 A.2d 1328, 1329-30 (1996). Our state Supreme Court similarly held that this standard of proof did not offend due process under Article I, Section 9 of the Pennsylvania Constitution. Id. at 568, 681 A.2d at 1330. As such, the procedure in this case should mimic that set forth in a competency proceeding. See Ohio v. Lott, 779 N.E.2d 1011, 1015 (Ohio 2002) (holding that the trial court should conduct an Atkins hearing in a manner comparable to ruling on competency; i.e. defendant must prove incompetency to the court by a preponderance of the evidence).

Defining Mental Retardation

Atkins provides the following guidance on the issue of defining who qualifies as mentally retarded:

“To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded... . Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, ‘we leave to the states the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.’ 477 U.S. 399, 405, 416-17, 91 L.Ed.2d 335, 106 S.Ct. 2595 (1986). n.22
“n.22 The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n.3, supra.” Atkins at 317.

Note 3, as referred to in note 22 above, provides the following clinical definitions of mental retardation:

“n.3 The American Association of Mental Retardation (AAMR) defines mental retardation as follows: ‘Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.’ Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992).
“The American Psychiatric Association’s definition is similar: ‘The essential feature of mental retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.’ American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders [DSM-IV] 41 (4th ed. 2000). ‘Mild’ mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id., at 42-43.” Atkins at 309 n.3.

The court later elaborated on these definitions, as follows:

“As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others....” Atkins at 318. (footnotes omitted)

This court finds that the proper definition to apply in this case is that set forth by the AAMR, the principal professional organization in the field of mental retardation research. The AAMR, founded in 1876, has propounded and refined the definition of mental retardation since 1921 and its definitions have been the most widely accepted by courts, legislatures, and other professional organizations. Ellis, “Mental Retardation and the Death Penalty: A Guide to State Legislative Issues,” 27 Mental & Physical Disability Law Reporter (ABA) §111 p. 5 (2003) [available at http://www.aamr.org/ Reading_Room/pdf/state_legislatures_guide.pdf (last visited June 28,2003)]; Dowling, “Post-Atkins Problems with Enforcing the Supreme Court’s Ban on Executing the Mentally Retarded,” 33 Seton Hall L. Rev. 773,793-94 (2003). Furthermore, amongst the states that had adopted statues outlawing the execution of the mentally retarded, at the time of the Atkins decision, all had adopted, almost without variation, the AAMR definition. Ellis (2003), supra at 5. As such, the consensus in defining mental retardation at the time of the Atkins decision was one using the AAMR’s definition.

We note that the petitioner has argued this court should apply the definition of mental retardation set forth in Pennsylvania’s Mental Health and Mental Retardation Act of 1966, 50 PS. §4101 et seq.:

“ Mental retardation’ means subaverage general intellectual functioning which originates during the developmental period and is associated with impairment of one or more of the following: (1) maturation, (2) learning and (3) social adjustment.” 50 P.S. §4102.

This definition of mental retardation is the only one appearing in a Pennsylvania statute. Nevertheless, we reject using this language because it is aimed at defining the mentally retarded in the context of providing them services under the MH/MR Act. It is overly broad for the purpose of defining the mentally retarded in the context of a capital murder case; specifically, by requiring only “subaverage general intellectual functioning” under the first criteria. Nationally-recognized definitions of mental retardation require “significantly subaverage intellectual functioning.” As set forth below in greater detail, subaverage general intellectual functioning generally refers to individuals with an IQ of 85 or lower while significantly subaverage general intellectual functioning generally refers to individuals with an IQ of 70 or lower. While Pennsylvania could choose to extend the constitutional protection to a broader range of persons by opting to confer mental retardation status upon persons with mere subaverage intellectual functioning, it is highly doubtful it will so choose.

AAMR Definition

It is important to note that petitioner was evaluated and classified as mentally retarded on many occasions, beginning in 1973, when he was 6 years old, through his 1997 PCRA hearing, detailed infra. During that time span, the AAMR’s definition of mental retardation underwent a few revisions.

In 1973, the AAMR defined mental retardation as “significantly subaverage general intellectual functioning which originates during the developmental periods and is associated with impairment in adaptive behavior.” American Association on Mental Deficiency, Manual on Terminology and Classification in Mental Retardation at 5 (7th ed. 1973). In 1983, the AAMR revised the definition to “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.” American Association on Mental Deficiency, Classification in Mental Retardation 11 (8th ed. 1983).

Both the 1973 and 1983 AAMR definitions divided mental retardation into the following subcategories, directly linked with the intellectual functioning criterion as measured by IQ: individuals with IQ scores between 50-55 and 70 were classified with “mild” retardation; those with scores between 35-40 and 50-55 had “moderate” retardation; those with scores between 20-25 and 35-40 were “severely” retarded; and those with scores below 20 or 25 were “profoundly” retarded. Penry v. Lynaugh at 308 n.1 (1989) (citing Ellis & Luckasson, “Mentally Retarded Criminal Defendants,” 53 Geo. Wash. L. Rev. 414,423 (1985)). Prior to 1973, the AAMR had defined mental retardation to include all persons with IQ scores more than one standard deviation from the mean; i.e., with an IQ of approximately 85 or lower. Persons whose IQ scores fell in the range of 70-85 had been labeled “borderline retarded.” That category was dropped in the 1973 AAMR definition. See Ellis & Luckasson, supra (citing AAMR 7th (1973)).

In 1992, the AAMR revised the definition, refining the adaptive behavior component: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” American Association on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The 1992 AAMR definition is the one cited by the Supreme Court in Atkins. Id. at 309 n.3. The 1992 version eliminated the mild, moderate, severe and profound subcategories of mental retardation. In their place, the new scheme focused on the differences in the level of support needed by a mentally retarded individual, classifying the individual’s need in a particular skill area as “intermittent,” “limited,” “extensive,” or “pervasive.” Ellis, “Decisions By and For People with Mental Retardation,” 37 Vill. L. Rev. 1779, 1784 n.10 (1992).

The most current definition of mental retardation was propounded by the AAMR in 2002 and focuses primarily on refining the adaptive skills component: “Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.” American Association on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 1 (10th ed. 2002).

Although these definitions reveal some variation over the time period relevant to this case, the mental retardation definitions have maintained the same three core components:

“The common elements of the AAMR definitions address the three components of the concept of mental retardation: (1) substantial intellectual impairment; (2) impact of that impairment on everyday life of the individual; and (3) appearance of the disability at birth or during the person’s childhood. Unless an individual meets all three requirements, he does not fall within the definition of mental retardation. The variations found in the [three most recent] formulations of the AAMR definition differ only in the wording of how they describe the second component, i.e. the impact on the individual’s life. But it is important to emphasize that the various formulations describe the same group of individuals, and therefore do not differ in scope in any significant way.” Ellis (2003), supra at 5. (emphasis in original)

Thus, a mental retardation diagnosis requires that the person suffer from very substantial impairments in their intellectual and adaptive abilities compared to non-retarded individuals, and that the impairments appear prior to adulthood.

The first criterion, under the AAMR definitions, substantial intellectual impairment (i.e. significant limitations in intellectual functioning or significantly sub-average intellectual functioning) occurs where the individual scores two standard deviations or more below the statistical mean on a standardized IQ test, or approximately 70 or below. However, IQ must be considered in light of its standard error of measurement, which for most IQ tests is approximately 5. Thus, the ceiling for the IQ criterion may go up to 75. AAMR 10th (2002) (available at http://www.aamr.org/Policies/faq_mental_ retardation.shtml (last visited June 29, 2003)); Ellis (2003), supra at 6-7; Dowling, supra at 794. “It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.” Atkins at 309 n.5.

The second criterion concerns deficits in adaptive behavior. Adaptive behavior is currently defined by the AAMR as “the collection of conceptual, social, and practical skills that people have learned so they can function in their everyday lives.” AAMR 10th (2002), supra. “The adaptive behavior component requires that the intellectual impairment have produced real-world disabling effects on the individual’s life. The purpose of this element is to ensure that the individual is not merely a poor test-taker, but rather is a truly disabled individual.” Ellis (2003), supra at 7.

Finally, the last criterion requires that mental retardation appear during the person’s developmental period, currently defined as prior to age 18.

The other major professional organization which has historically defined mental retardation is the American Psychiatric Association, in its Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM, under its various editions, is considered the authoritative text used by psychologists and psychiatrists for the discussion and diagnosis of mental disorders. Commonwealth vol. 1, exhibit D (Davis dep.), p. 17; Dowling, supra at 795; Heck Van Tran v. Tennessee, 66 S.W.3d 790, 795 n.4 (Tenn. 2001). As such, its definitions are particularly relevant to this case. Furthermore, the mental health experts who testified in petitioner’s earlier proceedings, detailed infra, utilized the DSM. Significantly, the DSM’s definitions of mental retardation have essentially mirrored those of the AAMR and it has historically revised its mental retardation definition to follow changes made by the AAMR. Dowling, supra at 806 n.298. One notable difference between the DSM and AAMR, relevant to this case, is that after the AAMR eliminated the mild, moderate, severe and profound subcategories of mental retardation in 1992, the DSM did not follow suit in its subsequent editions (DSM-IV and DSM-IV-TR). Nevertheless, the DSM has maintained, over the time period relevant to this case, definitions of mental retardation which have left unaltered the three core components: (1) substantial intellectual impairment; (2) impact of that impairment on everyday life of the individual (i.e., substantial deficits in adaptive functioning); and (3) appearance of the disability prior to age 18.

Evidence of Petitioner’s Mental Retardation

The issue of petitioner’s mental capacity was explored in earlier proceedings, most notably at his 1993 capital sentencing trial and 1997 PCRA hearing. While neither proceeding specifically litigated the question of whether petitioner was mentally retarded, the extensive evidence provided in those proceedings established petitioner’s mental retardation for the purpose of this proceeding, including testimony in the latter proceeding wherein the Commonwealth’s expert psychologist conceded petitioner’s mental retardation.

With regard to the capital sentencing hearing, evidence was provided in order for the jury to determine whether any of two mental/psychologically-based mitigating circumstances applied in his case; specifically, whether he had been under the influence of extreme mental or emotional disturbance and whether his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. As noted, the jury did not find that these circumstances applied, although they did find, inter alia, that petitioner’s “low mental intelligence” was a mitigating factor.

At the 1997 PCRA proceeding, the main issue presented by petitioner was that his sentencing counsel had been ineffective for failing to present evidence at his 1993 sentencing trial of his organic brain disorder (i.e., brain damage). Extensive expert evidence of the existence of this disorder was presented at the PCRA hearing. The mental health experts’ testimony revealed a consensus that petitioner suffered from an organic brain disorder and as such, both of the mental/psychologically-based mitigating circumstances, listed above, applied to his case. The experts also agreed that evidence of organicity had been available to petitioner’s two sentencing hearing experts and that their testimony, that there existed only a suggestion petitioner’s deficits were organically or neurologically based, had been wrong.

The documentary evidence from these proceedings provided the following information regarding petitioner’s mental capacity and history: Petitioner was bom September 2, 1964 and attended regular kindergarten at Steelton Elementary School but was thereafter placed in special education classes beginning in first grade for the “educable” mentally retarded. Petitioner exhibit 1, tab 6. He was placed in several detention homes by the age of 9 due to stealing, running away and physical assault. He began to commit serious delinquent acts around the age of 10 including burglary, arson and threatening another person with a revolver. Id. (Guidance Assoc, eval. Aug. 1978.) He was removed from public school in fourth grade and was thereafter placed in 10 or 11 homes and facilities through the age 17. He attended school sporadically and was expelled from almost every treatment facility into which he was placed. Id. (Bleiman and Zurick evals.); Commonwealth vol. I, exhibit A (sent, hearing), pp. 75-76; Commonwealth vol. I, exhibit C (Schneider dep.), pp. 14-15.

In 1971, when petitioner was 6 or 7 years of age, he was evaluated with an IQ of 66. Petitioner exhibit 1, tab 6 (ESSH Bleiman eval.). In 1974, at 9 1/2 years of age, petitioner was evaluated with a full scale IQ of 67 and noted to be “within the normal range for a child with mild mental retardation.” Id. (CAIU eval.) A 1975 psychological evaluation, when he was 10 1/2, found his full scale IQ of 55 and stated “he is to be considered seriously disturbed, retarded and extremely hyperactive.” Id. (Peck eval.) In 1976, at approximately 12 years of age, petitioner was tested with a full scale IQ of 59, placing in the educable retarded area on some scores and in the seriously regressed or retarded area in others. Id. (Youth Dev. Center eval.) By age 12 1/2, petitioner was measured with a full scale IQ of 55. Id. (ESSH Paul eval.) In 1978, at 13 years, 11 months, petitioner was measured with an IQ of 72 and classified as “borderline.” Id. (Guidance Assoc, eval. Aug. 1978.) At some point between July 1980 and March 1981, petitioner obtained an IQ of 78. Commonwealth vol. II (Weavers-ville eval.). In June 1981, at 16 years, 9 months, petitioner was measured with an 81 IQ. Commonwealth vol. II (Guidance Assoc, eval. June 1981.) In 1986, at 21 years of age, petitioner was measured with an IQ of 71 and was described as functioning within the “borderline retarded range of intelligence.” Petitioner exhibit 1, tab 6 (Zuriclc eval.).

In addition to this documentary evidence, all five mental health experts (three psychologists and two psychiatrists) who evaluated petitioner in connection with his 1993 sentencing trial and/or 1997 PCRA hearing, concluded he was mentally retarded, including, most notably, the Commonwealth’s expert Dr. Dixon Miller. Significantly, Dr. Miller testified that there existed in the record “uncontestable” evidence of petitioner’s mental retardation and that petitioner “has currently and has throughout his life functioned in the mentally retarded range of abilities. ” See infra.

At the 1993 capital sentencing, Stanley Schneider, a clinical psychologist, diagnosed petitioner as mentally retarded. He stated at that time that “he is retarded, ” and placed petitioner in either the mild or borderline category, noting his IQ scores ranged from the mid-60s to low 70s. Petitioner exhibit 1, tab 1, pp. 67, 70. Dr. Schneider clarified his diagnosis in a 1997 deposition, given for the purpose of the PCRA proceeding:

“A:... the diagnosis regarding retardation varied over time depending upon the test and when it was given and how much he recalls from prior [tests] because these tests are basically the same. So there is a practice effect. . . . He is retarded, that has never been an issue.” Commonwealth vol. I, exhibit C, p. 47. (emphasis added) Dr. Schneider indicated in his 1997 deposition that he made his 1993 diagnoses under DSM-III andDSM-IH-R. Commonwealth vol. I, exhibit C, pp. 53-54.

Robert Davis, a forensic psychiatrist, also testified on petitioner’s behalf at his 1993 sentencing, finding that “he is mentally retarded” and categorizing petitioner in the borderline range, noting his IQ as 71. Petitioner’s exhibit 1, tab 1, p. 139. Dr. Davis based his diagnosis under DSM-III-R. Id. at 160. In his 1997 deposition, Dr. Davis was asked whether the fact that petitioner was organically brain damaged was something different from testimony he had provided in 1993. In response, he stated:

“A:... We did say he was mentally retarded [in 1993] and had suffered from minimum brain dysfunction. If you take people who are mentally retarded, by definition, they have suffered some type of assault to their brain at some point in development before age 18.” Commonwealth vol. I, exhibit D, p. 16 (emphasis added); see also, pp. 47-49, 66-69.

Additionally, all three experts who testified at the 1997 PCRA hearing classified petitioner as mentally retarded. Carol Armstrong, a psychologist with a neuropsychology subspecialty, conducted a comprehensive neuropsychological evaluation of petitioner in 1996 when petitioner was 31 years old, including full scale IQ testing. Petitioner’s IQ result was 76, which put him in the borderline mentally retarded range. Petitioner exhibit 1, tab 8, p. 28. However, Dr. Armstrong noted in her 1996 report that “strong practice effects appear likely because of repeated testing” and that petitioner had an “implicit recall of test procedures.” Id. at tab 7. She later testified at the 1997 hearing that the 76 IQ score “was probably an overestimate in that it was the eighth or ninth time that he had been administered that battery,” noting the general trend of improved IQ scores from his early childhood through adolescence. Id. at tab 8, pp. 48-49. She testified that “he would qualify as retarded, ” in light of his IQ score and “other severe deficits compromising his functional abilities.” Id. at pp. 49-50.

Robert Fox, a forensic psychiatrist, also testified on petitioner’s behalf at the 1997 PCRA hearing. Dr. Fox similarly diagnosed petitioner with “mild mental retardation” under the then current DSM-III-R, noting that mild retardation is so diagnosed where IQ falls between 50 and 70. Petitioner exhibit 1, tab 9, p. 142. He discounted the higher, later IQ tests as attributable to practice effect. Id. at 143.

Of the greatest significance to this court, however, was the testimony of psychologist Dr. Miller, also a sub-specialist in clinical neuropsychology, who testified on the Commonwealth’s behalf at the PCRA hearing. The thrust of the questioning aimed at Dr. Miller concerned the issue of petitioner’s organic brain disease and whether such evidence had been available to petitioner’s two experts (Drs. Schneider and Davis) at the time of his 1993 capital sentencing trial. During the course of this testimony, Dr. Miller was asked to comment upon Dr. Armstrong’s neuropsychological evaluation:

“Q: Now specifically with regard to the first line [of Dr. Armstrong’s report] there that he is broadly impaired across all neurocognitive domains, was there anything specifically about that in reviewing the summation that you found peculiar regarding that as a neuropsychologist?
“A: Well, only that it is consistent with what has been known from the history that has already indicated that this gentleman is functioning at the mentally retarded or borderline retarded range.” Id. at tab 10, p. 209. (emphasis added)
“Q: Well is [Dr. Armstrong’s report] something new? Is this something we haven’t seen in the prior testimony?
“A: It’s new in terms of specificity I think but if the issue here is does this individual have some type of organic brain damage, I think that aspect is redundant of things that have been tested. In saying that he has cur rently and has throughout his life functioned in the mentally retarded range of abilities, that already tells us something about the integrity of the brain or lack of integrity of brain junction.” Id. at 217-18. (emphasis added)
“Q: Was the jury told that [petitioner suffers from organic impairment across a wide variety of functions] in the last trial?
“A: I believe there were a number of references to that. As I mentioned earlier when you say that he doesn’t because of his learning disability, his attention deficit disorder, or his mental retardation, he doesn’t think or reason like you and I would. I believe [the jury was] told that sort of thing in the previous trial from the testimony I reviewed.” Id. at 222. (emphasis added)

Dr. Miller was later asked a series of questions whether, at the 1993 sentencing, there existed more than just a suggestion petitioner was brain damaged:

“Q: So there already was essentially uncontestable evidence in the record of brain damage?
“A: Well of mental retardation which as I stated is a form of brain dysfunction....” Id. at 223-24. (emphasis added)

With regard to the chronicity of petitioner’s impairments, Dr. Miller testified as follows:

“Q: . . . There is nothing in the [sentencing hearing] testimony that talks about the chronic nature of his deficits?
“A: Well mental retardation again by definition is a chronic condition. I don’t know again that that is, anybody said, hey, he is mentally retarded, he has been and he always will be.” Id. at 227. (emphasis added)

Finally, Dr. Miller was asked about the nature of petitioner’s limitations, as follows:

“Q: Doctor, with regard to this evidence of mental disturbance and his inability to substantially conform his conduct, can we classify that as either a decrease in his mental intelligence or as some type of mental illness? Can we classify it into either of those two realms?
“A: I think the effective, what is written about here and testified to by Dr. Armstrong, she herself said the basis as she determined it in his organic dysfunction is his mental retardation. I believe the mental retardation was testified to [at the sentencing hearing] and that in itself does represent certainly some limitation in an individual’s capacity to understand information and to reach conclusions. Whether [mental retardation] creates for him an inability as opposed to a limitation, that is a judgment call.” Id. at 233. (emphasis added) Dr. Miller based his conclusions on the DSM-III and - IV. Id. at 216.

This evidence, in combination with the documentary evidence provided this court, proved by a preponderance of evidence that petitioner is mentally retarded. All five experts, including the Commonwealth’s expert witness Dr. Miller, definitively stated that petitioner was and is mentally retarded. Dr. Miller, as well as Drs. Schneider, Davis and Armstrong alternately described petitioner as either borderline or mildly mentally retarded. Classification into one or the other category depends upon whether petitioner’s IQ falls below or above 70. For the purpose of this proceeding, the distinction is important since persons with borderline mental retardation might not be considered mentally retarded under the Atkins criteria.

As noted, whether a person falls into any of the subcategories of mental retardation (under the DSM) depends solely upon the intellectual functioning criterion of the mentally retarded definition, which is essentially measured by standardized IQ tests. Thus, the descriptions given by Drs. Miller, Schneider, Davis and Armstrong, suggesting petitioner to be either mildly or borderline mentally retarded, depended upon which IQ test(s) they accepted. While petitioner’s IQ scores varied widely, the evidence provided this court established by a preponderance of the evidence that his IQ qualifies as between 70 and 75, or below, placing him in the mild mental retardation range.

As set forth above, petitioner underwent at least nine IQ tests prior to his 22nd birthday. All but two of his scores (a 78 and 81) fell within the five point margin of error for a qualifying ceiling IQ of 75. Most significantly, the first five times petitioner was tested, his scores — 66, 67, 55, 59 and 55 — were all below 70, including three scores well below the threshold IQ factoring in the margin of error. Furthermore, his two highest scores, a 78 and 81, respectively, were achieved on his seventh and eighth tests, and the latter score resulted from a test taken within a year of his previous test. This reflects the theory testified to by Drs. Schneider, Armstrong and Fox, that a “practice effect” enhanced petitioner’s IQ scores as he underwent subsequent testing. Commonwealth vol. I, exhibit C, p. 47; petitioner exhibit 1, tab 7, tab 8, pp. 48-49, and tab 9, p. 143. See Brackett v. Apfel, 1998 U.S. Dist. Lexis 9616, *22 (S.D. Ala. 1998) (citation omitted) (acknowledging that higher scores on subsequent IQ tests are “likely attributable to the well-documented ‘practice effect’ ”).

Thus, although the experts suggested petitioner’s mental retardation fell into the borderline range, this would not disqualify petitioner from being considered mentally retarded for the purposes of this proceeding, inasmuch as that categorization of “borderline” was solely based upon practice-effect enhanced IQ scores greater than 70. As set forth above, however, the preponderance of the evidence proved petitioner scored below this threshold after the practice effect was considered. Nevertheless, the experts were otherwise unanimous in classifying petitioner as “mentally retarded.” (“He is retarded, that has never been an issue” (Dr. Schneider); “he is mentally retarded” (Dr. Davis); “he would qualify as retarded” (Dr. Armstrong); petitioner has “mild mental retardation” (Dr. Fox); and petitioner “has throughout his life functioned in the mentally retarded range of abilities” (Dr. Miller), supra.) These conclusions necessarily include findings, not only of lowered IQ, but also deficits in adaptive functioning and early onset, as those are necessary elements for a clinical diagnosis of mental retardation, whether under the AAMR definition or that of included in the DSM, and whether under an earlier or later version of those definitions, supra. See e.g., Commonwealth vol. I, exhibit C, p. 21 (Dr. Schneider acknowledges that by definition, mental retardation includes not only a lowered IQ “but deficits in adaptive behavior”); Petitioner exhibit 1, tab 8, pp. 49-50 (Dr. Armstrong noted that her finding of mental retardation was based on IQ score “and other severe deficits compromising his functional abilities”); Commonwealth vol. I, exhibit D, p. 16 (Dr. Miller testified that mental retardation, by definition, occurs “at some point in development before age 18”).

Finally, we note that the Commonwealth petitioned this court to appoint or permit another expert to evaluate petitioner’s “mental retardation,” and requesting a hearing under the Atkins case. This court’s order, vacating petitioner’s death sentences under Atkins, essentially denied that request on the basis that the record, from the 1993 and 1997 proceedings, already contained an abundance of evidence on the mental retardation issue. An additional evaluation of petitioner would not have provided any relevant information on his mental capacity as of the time of his criminal acts or trials, especially considering the “practice effect” of repeated IQ testing, and especially since the Commonwealth had already presented an expert who had previously testified to the issue of mental retardation.

Accordingly, I entered an order December 17, 2002, vacating petitioner’s death sentences and imposing consecutive life sentences upon him.

      . The two aggravating factors in the Franklin murder were that petitioner committed the killing while in the perpetration of a felony (kidnapping) and that petitioner had a significant history of felony convictions involving the use or threat of violence to the person. 42 Pa.C.S. §9711(d)(6) and (d)(9). In the McDuffey murder, the jury also found that petitioner had a significant history of felony convictions involving the use or threat of violence to the person and that petitioner had been convicted of another offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was possible (i.e. the murder of Franklin). 42 Pa.C.S. §9711 (d)(9) and (d)(ll).

      . The jury had been presented with the following mitigating circumstances to consider: (1) petitioner was under the influence of extreme mental or emotional disturbance; (2) the capacity of the petitioner to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; (3) petitioner’s age at the time of the crimes; and (4) other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense including mental intelligence, mental illness, learning disabilities, childhood problems and alleged abuse and cooperation. 42 Pa.C.S. §9711 (e)(2), (3), (4) and (8).

      . Currently, there exist separate pending bills addressing Atkins before both the state senate and house. The bills propose amendments to portions of the Post Conviction Relief Act and Sentencing Code, including setting forth the procedure for raising mental retardation in a capital case, assigning the burden and the level of proof, and defining mental retardation. S.B. no. 26, 2003-2004 sess. (2003); H.B. no. 1073, 2003-2004 sess. (2003). Both bills provide that, in the context of raising the issue in a PCRA, that the petitioner prove mental retardation by a preponderance of the evidence. They provide slightly different variations of the meaning of mental retardation and the Senate version requires that the judge determine mental retardation while the House requires a jury to determine that issue. See footnote 9. On June 17,2003, S.B. 26 passed the Senate 48-1. The House version emerged from committee June 17, 2003.

      . The United States Supreme Court has noted that:
      “[M]ental retardation is easier to diagnose than is mental illness. That general proposition should cause little surprise, for mental retardation is a developmental disability that becomes apparent before adulthood----By the time the person reaches 18 years of age the documentation and other evidence of the condition have been accumulated for years.” Heller v. Doe, 509 U.S. 312, 321-22 (1993) (citing, inter alia, DSM-III and AAMR definitions, discussed infra).

      . Pennsylvania Mental Health Procedures Act, 50 P.S. §§7101-7503, provides as follows:
      “Section 7403. Hearing and determination of incompetency to proceed; stay of proceedings; dismissal of charges
      “(a) Competency determination and burden of proof. — Except for an incompetency examination ordered by the court on its own motion as provided for in section 402(d), the individual making an application to the court for an order directing an incompetency examination shall have the burden of establishing incompetency to proceed by a preponderance of the evidence. The determination shall be made by the court.” 50 P.S. §7403.

      . Prior to 1987, the AAMR referred to itself as the American Association on Mental Deficiency (AAMD). For the sake of clarity, all references to the organization prior to 1987 will use the current name.

      . Most states which passed statutes outlawing execution of the mentally retarded based their definitions on the AAMR’s 1983 version (8th ed.). The remainder of states based their definitions on the AAMR’s 1992 version (9th ed. Ellis (2003)), supra at 7. Both definitions are discussed infra.

      . We do note that in the context of determining eligibility for a driver’s license, the relevant Medical Advisory Board, appointed by the Department of Transportation, is directed to define mental and physical disabilities as set forth in the Pennsylvania Code, which recognizes the AAMR and DSM classifications of the mentally retarded (discussed infra). See Crosby v. Sultz, 405 Pa. Super. 527, 541-42, 592 A.2d 1337, 1340-41 (1991) (citing 75 Pa.C.S. §1518(a) and 67 Pa.Code §83.5(a)(6)).

      . For example, both bills currently pending in the General Assembly require “significantly subaverage intellectual functioning.” See footnote 3. Senate Bill 26 mimics the AAMR’s 1992 definition: “an individual who has significantly subaverage intellectual functioning as evidenced by an intelligence quotient of 70 or below on an individually administered intelligence quotient test and significant impairment in adaptive behavior, and that the mental retardation is manifested before the individual attains 18 years of age.” The House version requires: (1) that the defendant’s full-scale IQ be 70 or lower (accounting for all potential margin of error), (2) that the defendant’s ability to function is significantly impaired in a manner that is reflected in the facts of the case such that the defendant either was unable to appreciate the criminality of the conduct or, if able to appreciate it, was unable to conform the conduct to legal requirements, (3) that the defendant’s impairments are primarily attributable to a diagnosis of mental retardation present from early in childhood development and revealed by contemporaneous written records from early childhood, unless the defendant was deprived of schooling or other social service contacts in which such contemporaneous records would have been created. A cursory view of the House version indicates it may be constitutionally infirm under Atkins since it would be possible that its definition would not include persons falling “within the range of mentally retarded offenders about whom there is a national consensus.”

      . First published in 1952, the DSM has been updated five times: in 1968 (DSM-II), 1980 (DSM-III), 1987 (DSM-III-R), 1994 (DSM-IV) and 2000 (DSM-IV-TR).

      . For example, the mental retardation definition contained in the 1987 DSM-III-R was adopted from the 1983 AAMR definition. Robert L. Hayman, Jr., “Law, Politics, and The Mentally Retarded Parent” 103 Harv. L. Rev. 1202, 1203 n.2 (1990). Similarly, the mental retardation definitions contained in the 1994 DSM-IV and 2000 DSM-IV-TR respectively, closely follow the 1992 AAMR definition. Ellis (2003), supra at 6 n.16; Atkins at 309 n.3 (acknowledging similarity between 1992 AAMR (9th ed.) and DSM-IV).

      . Petitioner had argued that evidence of organic brain damage would have totally changed the evidentiary picture at the capital sentencing proceeding by significantly weakening the aggravating factors. Ultimately, however, petitioner was not entitled to relief since his experts’ failure to present organicity evidence in 1993 was not a cognizable PCRA claim.

      . Mild mental retardation “is roughly equivalent to what used to be referred to as the educational category of ‘educable.’ ” DSM-IV-TR §317.

      . The Commonwealth did not offer any testimony at the capital sentencing trial.

      . Dr. Davis apparently used the IQ result taken of petitioner from 1986 when he was approximately 21 years old. See Commonwealth vol. II, Dr. Davis psychiatric eval. October 11, 1990.

      . As set forth above, borderline mental retardation had been traditionally used to diagnose the mentally retarded whose IQs fell between 70 and 85. As noted, the AAMR stopped using this category in 1973, and also dispensed with the mild mental retardation subcategory in 1992. Nevertheless, the experts who testified in 1993 and 1997 continued to use this term, indicating their continued adherence to the DSM terminology.

      . About 85 percent of all those diagnosed with mental retardation fall into this category. DSM-IV-TR at 41. The term “mild” mental retardation can be misleading, for even the highest functioning individuals with mental retardation must have substantial cognitive and behavioral disabilities before they can be diagnosed with retardation. AAMR 9th at 5; DSM-IV-TR, supra. Each subcategory (mild, moderate, etc.) “is by definition marked by significant and serious impairments to intelligence and adaptive functioning.” Heck Van Tran v. Tennessee at 796. “Although there is great variation in the level of functioning of people within the classification of mental retardation, the highest functioning individuals in the class have a substantial disability.” United States v. Cockrell, 1997 U.S. Dist. Lexis 23467 (M.D.Ala. 1997) (citing Ellis (1992), supra at 1784).

      . Furthermore, there can be no dispute but that there exists no hint of feigning or malingering on these tests given that the bulk of them were administered when petitioner was between 6 and 14 years of age. See Ellis (2003), supra, section III p. 9 (there are no reports in the clinical literature indicating that malingering or feigning is a practical problem in the assessment of individuals who are thought to have mental retardation).


source: Caselaw Access Project

author: NICKLEACH, P.J.,

license: Public Domain

text:
    Gardner v. Kiski Realty Co.

      C.P. of Armstrong County,
    no. 2000-0544-Civil.

      Ronald W. Crouch and Kelly A. Williams, for plaintiffs.

      James A. Favero, for defendant Wilkerson and Booker.

      Robert Andrews Jr., for defendant Commonwealth.

      Al Lander and Linda L. Cloak, for defendant Kiski Realty.

      June 17, 2003
   NICKLEACH, P.J.,

Currently before the court for disposition is the Commonwealth of Pennsylvania’s motion for summary judgment.

FACTS

This suit arises out of an incident in which the plaintiffs suffered various injuries after lighting a match on property owned by Wilkerson and Booker, and under which Kiski owned a stratum of coal. Additionally, the plaintiffs allege that Kiski owns an abandoned mine on the property and that the Commonwealth defendants had a duty to maintain the mine seal.

The plaintiffs were minors at the time of the accident, and were trespassing upon the land. The complaint alleges that the “area in front of the mine is notoriously frequented by minors.” (¶19.) When the plaintiffs stopped to rest in front of the abandoned mine entrance, they struck a match to light a cigar. Methane gas emanating from the mine entrance caused them to burst into flames and prevented them from extinguishing those flames while in the immediate area. Both plaintiffs were severely burned.

The plaintiffs brought suit for their injuries in eight counts, the last four of which deal with the Commonwealth defendants named in the caption. Count V is for negligent breach of a duty imposed by 52 P.S. §28.5, and Count VI is for negligence per se based upon violation of that statutory section. Count VII is for negligent breach of a duty imposed by 52 P.S. §810, and Count VIII is for negligence per se based upon violation of that statutory section.

ISSUE

Whether the Commonwealth defendants are immune from suit under the facts of this case.

DISCUSSION

Granting a motion for summary judgment is a serious act for a court because it ends a lawsuit before all parties have presented all of their evidence. Scopel v. Donegal Mutual Insurance Co., 698 A.2d 602, 605 (Pa. Super. 1997). Therefore, summary judgment may only be “granted where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law’____‘The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party’.... Summary judgment may be entered only in those cases where the right is clear and free from doubt.” Ducjai v. Dennis, 540 Pa. 103, 113, 656 A.2d 102, 107 (1995). (citations omitted)

We have applied this standard to the body of law surrounding the Commonwealth’s sovereign immunity from suit and the statutory exceptions thereto.

Subject to specifically-enumerated, narrowly-construed exceptions, the Commonwealth defendants enjoy sovereign immunity from suit. They maintain that the facts of this case do not fall within any of the statutory exceptions to sovereign immunity as interpreted by the appellate courts of the Commonwealth.

Facially, one of these exceptions to sovereign immunity, contained in 42 Pa.C.S. §8522(b), could possibly be applicable to the facts of this case. This is the general real estate exception, which the plaintiffs contend applies because the Commonwealth’s statutory duty to maintain mine seals places it in actual control of the realty. It states as follows:

“(b)... the defense of sovereign immunity shall not be raised to claims for damages caused by: ...
“(4) Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons ... .” 42 Pa.C.S. §8522(b)(4).

The plaintiffs also contend that if mine seals are not realty, they must be personal property under the actual control of the Commonwealth, and that the similar personal property exception at 42 Pa.C.S. §8522(b)(3) would be applicable.

Initially, we note that the statutory exceptions are an act of legislative grace which constitute consent to be sued in spite of sovereign immunity. Thus, the Pennsylvania Supreme Court has consistently held that the legislative intent in enacting the exceptions was that they must be construed narrowly. Jones v. SEPTA, 565 Pa. 211, 219, 772 A.2d 435, 440 (2001); Finn v. City of Philadelphia, 541 Pa. 596, 601, 664 A.2d 1342, 1344 (1995); Snyder v. Harmon, 522 Pa. 424, 433, 562 A.2d 307, 312 (1989).

In their brief (p. 8), the plaintiffs admit that the Commonwealth does not hold title or an ownership interest in the mine or mine seal; nor is the Commonwealth in physical possession of the mine or mine seal that allegedly gave rise to their injuries. Rather, they argue that the Commonwealth defendants’ statutory right and/or duty to enter, inspect, and maintain the mine and mine seal constitute actual control sufficient to satisfy the personal and real property exceptions at 42 Pa.C.S. §8522(b)(3) and (4).

In applying the real estate exception, the Commonwealth Court has found that rights and duties regarding permitting and inspection were not sufficient to satisfy the requirement of possession or actual control under section 8522(b). In CSX Transportation Inc. v. Franty Construction, 157 Pa. Commw. 620, 630 A.2d 932 (1993), the court stated:

“In its complaint, CSX asserts that DER had possession and control over the Shipley Mine area because it issued mining permits covering the Shipley Mine area; obtained a preliminary injunction against Richter, the company mining the area; conducted a bond forfeiture proceeding against Richter; and contracted with others for reclamation of the Shipley Mine site.
“DER argues that accepting the allegations in CSX’s complaint as true, CSX has failed to state a cause of action against DER because the property from which the landslide emanated was never owned by DER nor did DER ever enter into a leasehold interest concerning this property. DER further argues that the entire sequence of events as related in CSX’s complaint concern DER’s failure to regulate and supervise private property or to properly enforce mining regulations, allegations which do not give rise to a claim under the real estate exception to sovereign immunity... .
“This court has interpreted the above cited section [42 P.S. §8522(b)(4)] as requiring the Commonwealth agency to have title, ownership, physical possession or actual control over the real property in question. Snyder v. Harmon, 102 Pa. Commw. 519, 519 A.2d 528 (1986), rev’d on other grounds, 522 Pa. 424, 562 A.2d 307 (1989). It is undisputed that DER did not have title, ownership or physical possession of the Shipley Mine. CSX argues, however, that DER’s involvement with the strip mining and reclamation of the mine amounted to constructive possession or actual control, thus rendering DER potentially liable under the real estate exception to sovereign immunity. We do not agree.” 157 Pa. Commw. at 625-26, 630 A.2d at 934-35.

In CSX, the Commonwealth had greater and temporally closer involvement with the mining operation than in the instant case. It had more reason to suspect a potential problem than in the instant case. Still, the court held that the Commonwealth’s involvement, rights, and duties did not rise to the level of constructive possession or actual control sufficient to satisfy 42 P.S. §8522(b)(4).

The personal property exception to sovereign immunity was also raised in CSX. It likewise was held to be inapplicable for lack of sufficient possession or control by the Commonwealth under the facts of the case. 157 Pa. Commw. at 627-28, 630 A.2d at 936. The court relied upon Kline v. Pennsylvania Mines Corporation, 120 Pa. Commw. 7, 547 A.2d 1276 (1988), wherein the plaintiffs brought suit against DER for failure to insure mine safety and failure to enforce regulations allegedly resulting in injuries sustained in a mine explosion caused by a spark from a jeep locomotive tractor. The mine and jeep were privately owned. The Commonwealth Court concluded that the allegations of DER’s negligence constituted negligent “policies or activities,” and not circumstances encompassed by the exceptions to sovereign immunity. The court declined to expand the interpretation of the terms “possession or control” to include negligent supervision within the motor vehicle or personal property exceptions to sovereign immunity. CSX, 157 Pa. Commw. at 628, 630 A.2d at 936.

Thus, before a plaintiff can even reach the issue of defects or dangerous conditions of property, he must show that the Commonwealth held a sufficient interest in that property. Under the rules stated above in CSX and Kline, the instant plaintiffs have fallen far short of that mark.

The plaintiffs cite no case in which the Commonwealth was deemed to have been in actual control of property for purposes of exceptions to statutory immunity under facts similar to those of the instant case. Our independent research has likewise uncovered no such case. Their theory of recovery is novel and creative. This approach must fail in an arena where the courts have determined that narrow construction of statutory exceptions to sovereign immunity is the law. Also instructive was Sweeney v. Merrymead Farm Inc., 799 A.2d 972 (Pa. Commw. 2002), which was decided in the parallel statutory arena of exceptions to governmental immunity for local agencies. In that case, the plaintiffs were harmed by disease spread through animals owned by the farm, which was subject to inspection and regulation by the county health board. The court held that inspection and regulation (which actually occurred and revealed the presence of disease) did not amount to possession or actual control sufficient to penetrate governmental immunity. 799 A.2d at 978-79.

In addition to showing that a factual scenario falls within a particular exception to the doctrine of sovereign immunity, a plaintiff must also show that the tort complained of is cognizable at common law.

“The General Assembly . . . does hereby waive . . . sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S. §8522(a). (emphasis supplied)

Although not fully developed by the parties, the ability of the plaintiffs to make out a case at common law against the Commonwealth defendants is suspect. For negligence to lie, there must be duty owed, a breach thereof, legal causation, and harm to the plaintiffs. For the same reasons enunciated in our opinion in this case filed on April 23, 2001, we believe that 52 P.S. §§28.5 and 810 do not create a private right of action or define a duty or standard of care with respect to these particular plaintiffs.

Furthermore, the causal chain between any inaction by the Commonwealth defendants and the plaintiffs’ harm is extremely attenuated. In a negligence action, a plaintiff can be held responsible only for the foreseeable results of his action or inaction. In this case, it would seem that the plaintiffs were injured following a freakish course of events. With respect to the Commonwealth, they are no more entitled to recovery than was Helen Palsgraf. See Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928).

After careful consideration of the entire record and oral argument by counsel for the parties, and applying the law of sovereign immunity and exceptions thereto, we conclude that no genuine issues of material fact exist with respect to the Commonwealth defendants. This is so because no possible interpretation of the facts could result in proper application of any statutory exception to sovereign immunity enjoyed by the Commonwealth. Therefore, the right to judgment in favor of the Commonwealth defendants is clear and free from doubt as a matter of law, and the Commonwealth defendants’ motion for summary judgment will be granted.

An appropriate order will be entered.

ORDER

And now, to-wit, June 17, 2003, after careful consideration of the oral arguments, pleadings, briefs, and other documents filed by the parties in this case, we find that for the reasons stated in the foregoing opinion, the Commonwealth defendants are cloaked with sovereign immunity from suit in this case; now therefore, it is ordered, adjudged, and decreed that the Commonwealth defendants’ motion for summary judgment be and hereby is granted, and Counts V, VI, VII, and VIII of the complaint are dismissed with prejudice.

      . We did find a substantial number of annotations for cases in which novel theories were held invalid. For example:
      Department of Transportation’s authority to revoke a motorist’s operating license was not sufficient to bring license within the physical possession or actual control of the Department within meaning of the exclusive control of personal property exception to sovereign immunity, even though Department may have had duty to revoke the license; thus, husband’s suit against Department for its failure to revoke the license, after his wife was killed by motorist who suffered heart attack while driving, was barred by doctrine of sovereign immunity. Giovannitti v. PennDOT, 113 Pa. Commw. 572, 537 A.2d 966 (1988), appeal denied, 519 Pa. 669, 548 A.2d 258 (1988).
      Memorandum of understanding between Fish Commission and United States Army Engineer District, which imposed on District duty to consult with Commission relative to marking of lake with buoys and posting of speed limits, did not establish Commonwealth’s interest in “care, custody or control of personal property” which would thereby waive Commission’s sovereign immunity defense to injured boat owner’s and passenger’s damages action predicated on negligence and strict liability, as buoys were not under Commission’s custody or control. Davidow v. Anderson, 83 Pa. Commw. 86, 476 A.2d 998 (1984).
      Memorandum of understanding between state Fish Commission and United States Army Engineer District did not establish Commonwealth’s interest in real estate which would waive Commission’s sovereign immunity defense to injured boat owner’s and passenger’s damages action predicated on negligence and strict liability, as lake was neither owned nor leased by Commonwealth. Davidow v. Anderson, 83 Pa. Commw. 86, 476 A.2d 998 (1984).

      . A case in which a tree fell onto a motorist, Patton v. PennDOT, 669 A.2d 1090 (Pa. Commw. 1996), provides an interesting analysis of proving all elements of common law negligence, notice to the Commonwealth even in section 8522(b)(4) cases, when the duty to inspect arises, and maintaining highways in a reasonably safe condition. This case was reversed in PennDOT v. Patton, 546 Pa. 562, 686 A.2d 1302 (1997).
      The issue on appeal was an erroneous refusal to give a specific jury instruction regarding notice to the Commonwealth that the tree was in danger of falling. The Commonwealth Court only analyzed sufficiency of the evidence, and the analysis seems to have been good as far as it went, but the court reached an incorrect result because the analysis did not go far enough. The existence of a dangerous condition (and by extension whether it was reasonably discoverable) is a question of fact for the jury, which cannot decide correctly, regardless of the evidence, if it is not properly instructed on the law. Even though it was reversed, the Commonwealth Court Patton is instructive on the broader scope of issues and sufficiency of evidence necessary for a case of this type.


author: BLACK, J.,

text:
    Landis v. School District of the City of Allentown

      C.P. of Lehigh County,
    no. 2002-C-0040.

      Neil E. Durkin, for plaintiff.

      Cliff A. Morales, for defendants.
    June 10, 2003
   BLACK, J.,

This case is before the court on the motion of defendant School District of the City of Allentown (ASD) for summary judgment based on (1) the expiration of the statute of limitations and (2) governmental immunity. For the reasons that follow, we find that ASD is immune from suit on the cause of action asserted against it. Therefore, ASD’s motion for summary judgment is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Deborah Landis, brings this action individually and as parent and natural guardian of her son, Brandon Breisch, for damages arising from injuries sustained by him in two separate incidents that occurred on property of ASD. At all times relevant to this action, Brandon was a student at Jefferson Elementary School in Allentown, Pennsylvania. The Jefferson School is operated by ASD.

The first incident occurred on May 20, 1998, when Brandon, who was then 5 years old, was playing on certain playground equipment manufactured by defendant BCI Burke Company, LLC. The playground equipment has been described by the parties as a “jungle gym” incorporating, inter alia, horizontal bars and ladders into its structure. The parties agree that it was securely installed into the ground and is therefore part of ASD’s property. While playing on this equipment Brandon fell to the ground, fracturing his right radius and ulna. At the time of this incident, ASD had a policy that prohibited children of Brandon’s age from using this equipment.

On September 7, 2001, while climbing on the same piece of playground equipment, Brandon again fell to the ground, this time sustaining a right radial head fracture. This injury healed over the next two-and-one-half months, but Brandon still experiences “achiness” in the area where his arm was previously injured in the 1998 incident.

Plaintiff initiated this suit against both ASD and BCI on January 7, 2002, for medical expenses incurred by her for Brandon and on Brandon’s behalf for his pain and suffering and disability as a result of the two incidents referred to above. Plaintiff concedes that her individual claim for medical expenses arising from the 1998 incident is barred by the two-year statute of limitations. However, she continues to pursue a claim for medical expenses arising from the second incident and a claim on Brandon’s behalf for his pain and suffering and disability arising from both incidents.

Plaintiff’s complaint alleges that ASD was negligent (a) by installing equipment on its property with horizontal bars that are too high for a child of Brandon’s age to safely traverse; (b) by failing to mark the bars with minimum height restrictions; and (c) by failing to maintain a minimum level of impact-absorbing material under the lateral bars to cushion a child’s fall from the apparatus.

Discovery has been completed, and ASD now moves for summary judgment. ASD and BCI each joined the other as an additional defendant on claims of sole liability, joint liability, and liability over. However, BCI has not opposed ASD’s summary judgment motion.

DISCUSSION

The standard for reviewing a summary judgment motion is well established.

“Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. . . . The reviewing court must view the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party.” Basile v. H & R Block Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000). (citations omitted) The court is not to grant summary judgment where the moving party relies exclusively upon oral testimony, affidavits, or depositions to establish the absence of a genuine issue of material fact. Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 238, 163 A. 523, 524 (1932). No matter how indisputable such proof may appear, issues of witness credibility are for the jury. Id. In moving for summary judgment, the defendants have the burden of establishing that there exists no genuine issue of material fact, and that they are therefore entitled to judgment as a matter of law.

“The non-moving party is entitled to all reasonable inferences. Any doubts as to the existence of a factual dispute must be resolved in the non-moving party’s favor and summary judgment is appropriate only in the clearest of cases.” Nelson v. Heslin, 806 A.2d 873, 876 (Pa. Super. 2002), quoting Lange v. Burd, 800 A.2d 336, 338 (Pa. Super. 2002). (emphasis in original)

In responding to a motion for summary judgment the non-moving party cannot rest on the allegations of his/ her pleading, but must produce sufficient evidence by way of affidavits, answers to interrogatories, depositions, or admissions in pleadings or discovery to create a genuine issue of fact on those issues on which the non-moving party has the burden of proof at trial. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996).

As a local agency, the ASD is entitled to governmental immunity pursuant to 42 Pa.C.S. §8541 unless the cause of action falls within one of the recognized exceptions to governmental immunity found in 42 Pa.C.S. §8542(b). At issue is the applicability of the real property exception to immunity, which is as follows:

“(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....”

ASD contends that plaintiff has failed to adduce sufficient evidence during discovery to justify the application of the real property exception. It is well established that “exceptions to the rule of immunity are to be narrowly interpreted given the express legislative interest to insulate political subdivisions from tort liability.” Phillips v. City of Philadelphia, 148 Pa. Commw. 175, 181, 610 A.2d 509, 512 (1992). Plaintiff concedes that she cannot support the allegations in the complaint that ASD failed to lay down sufficient impact-absorbing padding beneath the equipment. Additionally, in responding to the summary judgment motion, plaintiff does not contend that ASD was negligent in installing the equipment or in failing to mark minimum height restrictions on the bars. Rather, plaintiff states:

“After discovery, plaintiff’s negligence claims have been narrowed to the negligence of school district employees Susan Taber and Cynthia Czopp.”

Viewing the evidence in the light most favorable to plaintiff, the non-moving party, the relevant facts are these: Ms. Taber is an ASD gym teacher who was present for the 1998 incident and was in charge of supervising the children using the playground equipment at that time. She failed to instruct Brandon to alight from the jungle gym and failed to physically remove him from the equipment when she saw him on it shortly before his first fall.

Ms. Czopp is an ASD teacher who was present for the 2001 incident and was in charge of supervising the children using the playground equipment at the time. She failed to prevent Brandon from using the equipment despite ASD’s policy then of prohibiting children in Brandon’s age group from using the equipment.

Plaintiff cites Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997), in support of her argument that because Taber and Czopp had control of the playground equipment, the real property exception to immunity is implicated. According to plaintiff, by their failure to remove the child from the jungle gym or to warn him not to use it, they were negligent in the “care, custody, and control” of the equipment. However, in Grieff, supra, the alleged negligence arose from affirmative actions by an individual on behalf of the local agency in caring for its property. In that case, the chief of a volunteer fire association attempted to clean the floor of a firehouse with paint thinner when it ignited and caused injuries to Reisinger, a visitor of the station. The court held that the real property exception to governmental immunity applied because it was the fire chief’s negligent actions in the maintenance of government property that led to the plaintiff’s injury. The court wrote:

“Here, Grieff’s care of the Fire Association’s property caused the fire that injured Reisinger....
“The Fire Association’s property did not facilitate an injury by a third party. Rather, Grieff’s and the Fire Association’s alleged negligent care of the property caused Reisinger’s injury. The Reisingers’ claim falls squarely within the real property exception.” Reisinger, supra at 16-17, 693 A.2d at 197. (footnote omitted) In the instant case there are no affirmative acts of negligence alleged on the part of Ms. Taber or Ms. Czopp. Thus, Greiff does not support plaintiff’s position in this case.

Plaintiff’s theory of liability here is that Ms. Taber and Ms. Czopp were negligent in the care, custody and control of one of their students, not of ASD’s real property. This case is similar to Wilson v. Norristown Area School District, 783 A.2d 871 (Pa. Commw. 2001), where a student sued the school district and its athletic coach for injuries she sustained during a relay tag drill for the school’s field hockey team. Because of inclement weather, the coach instructed the students to run their drills on the staircases inside the school. While doing so, the plaintiff tripped on the stairs and fell, sustaining injuries to her jaw and face. The court held that because the plaintiff’s injury was not caused by a defect on the school district’s property or by the negligent care of its property, the real property exception to governmental immunity did not apply, stating:

“[A]ll of the evidence presented by [the plaintiff] points to Coach Meissner’s negligent supervision of the hockey team as the cause of [the plaintiff’s] injuries, and not the district’s real property or its care of the property.” Wilson, supra at 876.

Similarly, in Usher v. Upper St. Clair School District, 87 Pa. Commw. 461, 487 A.2d 1022 (1985), the Commonwealth Court rejected the plaintiff’s claim that the alleged negligence of a school teacher in failing to properly supervise a chemistry experiment and to take steps to protect the plaintiff brought the case within the scope of the real property exception to governmental immunity. The court stated:

“We believe that the teacher’s alleged failure to control the area of the experiment is more akin to the allegation of the failure to supervise the students which we held subject to the defense of governmental immunity in Robson.” Id. at 465, 487 A.2d at 1023. In the instant case, where the claim is that the ASD teachers did not adequately supervise Brandon, the same result should obtain.

Had plaintiff in this case produced evidence that ASD failed to maintain the required amount of impact-absorbing padding beneath the playground equipment, as alleged in their complaint, this would have been evidence of negligent care of its property and would likely have been sufficient to defeat the present motion for summary judgment. But because plaintiff admittedly was unable to uncover evidence in support of this allegation during discovery, the case has effectively been reduced to a claim of negligent supervision of Brandon. This does not qualify for the real property exception to governmental immunity. See Mooney by Mooney v. North Penn School District, 90 Pa. Commw. 7, 493 A.2d 795 (1985) (student who sustained injuries on school’s steps unable to invoke real property exception because case amounted to a failure of the school to properly supervise student); see also, Robson v. Penn Hills School District, 63 Pa. Commw. 250, 437 A.2d 1273 (1981) (student injured by pencil thrown by fellow classmate in unattended classroom unable to invoke real property exception because “action or activities” complained of is really a failure of defendant to supervise students).

A mere failure to warn a child of impending danger or to physically remove him from a danger he put himself in is not enough to bring a claim within the purview of the real property exception. The Commonwealth Court recently emphasized that the injury must result from the “care, custody and control of the real property by a local government agency.” Cureton ex rel. Cannon v. Philadelphia School District, 798 A.2d 279, 284 (Pa. Commw. 2002). (emphasis added) In Cureton, the court cited with approval Tackett v. Pine Richland School District, 793 A.2d 1022 (Pa. Commw. 2002), in which the court reviewed and affirmed a line of governmental immunity cases including Usher and Wilson, supra. The plaintiff in Cureton initiated an action against a school district for injuries he sustained while cleaning a scroll saw during a shop class. The court applied the real property exception to government immunity because it was the negligence of the defendant’s employee in his care of the school’s property, i.e., by failing to turn off the main power switch, that contributed to the plaintiff’s injury. The court distinguished the case from Usher and Wilson, supra, because the injuries in those cases resulted from the negligent supervision of a student, and not from negligence associated with the defendant’s maintenance of its real property.

Accordingly, since plaintiff’s only theory of liability amounts to a claim of negligent supervision, summary judgment must be granted in favor of ASD, based on the defense of governmental immunity. Because we grant ASD’s motion on this ground, we need not address the other issues raised in its motion.

ORDER

Now, June 10, 2003, upon consideration of the motion of the defendant School District of the City of Allentown for summary judgment, and the plaintiff’s response thereto, after review of the parties’ briefs and oral argument and for the reasons set forth in the accompanying opinion, it is ordered that said motion is granted. Judgment is hereby entered in favor of said defendant against plaintiff and against defendant BCI Burke Company, LLC.

      . 42 Pa.C.S. §8542(b)(3).

      . Plaintiff’s brief in opposition to defendant school district’s motion for summary judgment at 3.

      . Robson v. Penn Hills School District, infra.