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The Philadelphia Housing Authority enjoys sovereign immunity from a lawsuit brought by a tenant who allegedly suffered injuries when attacked by another tenant’s pit bull, an en banc panel of the Pennsylvania Commonwealth Court has ruled. In a 5-2 decision in Govan v. Philadelphia Housing Authority, the majority rejected plaintiff Latif Wheeler Govan’s argument that the “animal control” exception to Pennsylvania’s law on immunity for commonwealth agencies applies in this case because concerns about the dog not being properly attended during workdays had been brought to the PHA’s attention in the months leading up to the attack. “In accordance with our [case] precedent on the meaning of ‘control’ with respect to governmental and sovereign immunity,” Judge Mary Hannah Leavitt wrote, “we hold that PHA was not in control of the dog when it injured Govan. PHA’s authority to eject a tenant for violating its pet policy did not give it control of the dog for purposes of the care, custody and control of animals exception to sovereign immunity. PHA did not own the dog, and it was not in physical possession of the dog at the time of the incident.” Leavitt was joined by Judges Bernard L. McGinley, Dan Pellegrini, Renee L. Cohn and Robert Simpson. President Judge James Gardner Colins joined in a dissent filed by Judge Doris A. Smith-Ribner. According to the opinion, Latif, 3 years old at the time of the incident, lived with parents Carolyn Wheeler and Warren Govan in the Cambridge Plaza housing development, near 10th St. and Girard Ave. in North Philadelphia. In mid-July 1999, a pit bull owned by Cambridge Plaza tenant Peggy Skinner broke free of the rope that had kept it tethered to a tree in a development common area, the opinion states. The dog began attacking Latif, who was playing nearby with a group of other children, until Warren Govan intervened. The parents later charged that Latif had received injuries to his head, shoulder, buttocks, back and other parts of his body. Prior to the attack, according to the opinion, Claudette Bennett, president of Cambridge Plaza’s residents council, had received complaints about Skinner’s dog throughout the spring of 1999. The dog belonged to Skinner’s son, but Skinner was caring for it while he was incarcerated. When Skinner went to work, she would tie the dog to a tree outside her residence and leave him there, unattended, until she returned. When tenants complained that the Skinner dog smelled bad and was jumping and barking, Bennett met with the development’s property manager, Gary French, who promised to address the problem, the opinion states. However, Latif was attacked before French could act on the tenants’ complaints about the dog. Latif’s parents filed suit against the PHA in May 2001, according to the opinion, alleging negligence for permitting the dog to remain unsupervised in violation of the authority’s pet policy. The opinion cites to the PHA’s pet policy, under which a pet-owning tenant is required to, among other measures, register the pet annually with the housing manager, certify that the pet has been inoculated and ensure that the pet is under the control of a supervising individual when in the common areas. Additionally, the PHA retains the authority to remove a pet that poses a threat to other tenants. In response to the parents’ suit, the PHA moved for summary judgment, but in April 2002, a trial court denied that motion and the PHA’s subsequent requests for reconsideration, the opinion states. Both parties later agreed to an expedited bench trial before a different judge. That court found the PHA liable and awarded Latif $50,000 in damages. The opinion notes that under Pennsylvania law, a commonwealth party can only be deemed liable for a plaintiff’s injury after a two-pronged test has been met: that the damages sought would be recoverable from a party that does not enjoy sovereign immunity and that the circumstances surrounding the injury correspond to one of the exceptionable scenarios set out in the statute. According to the opinion, the exceptions include instances when a commonwealth agency has “care, custody and control” of an animal, such as a police dog or horse; of personal property, except where the action involves nuclear equipment; or of highways under commonwealth jurisdiction or sidewalks on commonwealth-owned real estate. On appeal to the Commonwealth Court, the PHA asserted that the parents’ case fails under the second prong of the test because the “animal control” exception can’t be applied in this case. The case law on the topic is sparse, the opinion notes, although two Commonwealth Court decisions from the 1980s establish “that the animal exception to governmental immunity does not apply except where the animal is in the direct control of the governmental agency,” Leavitt wrote. The panel found that the PHA’s ability to enforce its pet policy does not automatically confer upon it the type of “control” described in the statute. “The fact that PHA’s pet policy gave it authority to remove the dog did not mean that it had ‘control’ within the meaning of the statutory exception to sovereign immunity,” Leavitt wrote. “Stated otherwise, constructive control is inadequate to defeat the defense of sovereign immunity.” Despite Bennett’s warning about the dog, the majority argued, no evidence was presented that the PHA had knowledge that the dog posed an unreasonable risk to Latif or any other tenant. Leavitt wrote in a footnote that the case would not pass the first prong of the commonwealth liability test for that reason. Though ruling in the authority’s favor, the majority included words of caution for the PHA in its opinion. “It is not acceptable that a three-year-old child cannot play safely in a common area outside his home,” Leavitt wrote. “PHA should be more protective in its policies and more vigilant in their enforcement. However, it is inescapable that PHA did not have direct control over the dog at the time of the incident.” In her dissent, Smith-Ribner wrote that the PHA’s awareness of the situation made it responsible for the Skinner dog’s actions. “Although PHA did not take actual physical control of the dog and secure it elsewhere,” Smith-Ribner wrote, “the fact remains that the dog was deposited on PHA property and remained there each work day with PHA’s actual knowledge. This undisputed evidence establishes that PHA had possession or control over the dog for purposes of the sovereign immunity exception for care, custody or control of animals.” While recognizing that exceptions to immunity provisions should be interpreted strictly, the minority concluded that the PHA could have reasonably foreseen an attack such as Latif experienced. “It matters not that the dog belonged to a tenant or to a stranger,” Smith-Ribner wrote. “PHA permitted an individual to leash a dog with obviously dangerous and vicious tendencies on its property on a daily basis for a period of months. The foreseeability of harm to a young child in the common area was evident, and because PHA had direct and actual knowledge that the dog was being deposited and leashed to a tree on its property PHA assumed control over the animal.” Daniel J. Zucker, a solo practitioner, represented the parents in the matter. He said that the minority’s strong dissent gives him hope that the state Supreme Court will accept his petition for allocatur in the case. “I commend PHA’s attorneys for the excellent job they did … but the battle is not over,” Zucker said. The PHA was represented by Stephanie Pompey and David Bateman of Delany & O’Brien. (Bateman no longer works at the firm.) “To try to state that a landlord, especially a government agency, has care, custody and control over an animal on its premises … is illogical,” said Stephen McDonnell, a Delany & O’Brien partner.

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