Gray v. Logue

¶1dissenting.

¶2I respectfully dissent. I believe that the majority misperceives the nature of the obligation placed on a municipality to insure the safety of pedestrians on sidewalks by insuring that they are safe for pedestrian traffic. I also believe the majority erred in finding that a pipe imbedded in the ground is not a fixture.

¶3Gray was injured when he tripped over the remnant of a pipe protruding from the sidewalk along East Pitt Street within the Borough of Bedford in front of Farmers Hardware which is owned by the Logues. East Pitt Street (Route 30) was a state highway which had been taken over by the Commonwealth.1 Within days of the accident, agents of the Borough removed and disposed of the pipe remnant. During the course of discovery, the Commonwealth admitted that it owned East Pitt Street. It also made the following admissions:

Request No. 3 — Admit that the area of the sidewalk where Plaintiff allegedly fell falls within the right of way of streets owned and/or under the control of the Commonwealth of Pennsylvania.

Response: Admitted....

Request No. 4 — Admit that you have no evidence that the subject sidewalk in the area of Plaintiffs alleged fall is owned by Bedford Borough and/or located within the right of way of a street owned and/or under the control of Bedford Borough.

Response: Denied in part. After reasonable investigation at this stage of the case, PennDOT does not have sufficient knowledge or information to admit or deny whether Bedford Borough has an ownership interest in the subject sidewalk, although it is admitted that PennDOT has no evidence of either ownership or to the contrary at this time. It is denied that PennDOT has no evidence that the subject sidewalk is located within the right of way of a street under the control of Bedford Borough. By way of further answer, evidence of Bedford Borough’s control is found in the Vehicle Code, 75 Pa.C.S. § 6109.

¶4(R.R. 38a). Based upon these admissions, the trial court ruled that the sidewalk exception did not apply because it was established that the Commonwealth owned both East Pitt Street and a right-of-way over the sidewalk.

¶5*114The sidewalk exception to governmental immunity applies when an injury is caused by:

A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition_ When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable. (Emphasis added.)

¶642 Pa.C.S. § 8542(b)(7). The majority interprets the sidewalk exception to apply only when the street adjoining a sidewalk is owned by the municipality and concludes that because East Pitt Street was taken over by the Commonwealth, the Borough cannot be held liable. I disagree with the majority for several reasons.

¶7It is the traditional duty of a municipality to see that sidewalks are safe. As was stated in Koerth v. Borough of Turtle Creek, 355 Pa. 121, 123, 49 A.2d 398, 399-400 (1946):

It is, of course, the duty of a municipality to maintain its sidewalks in a reasonably safe condition, or, rather, when it has reasonable notice express or implied of a defective condition, to see that the property owner performs his duty to make the necessary repairs, the duty of the latter being primary and absolute, that of the municipality secondary and supplemental.

¶8Enabling municipalities to carry out this duty, the General Municipal Law2 gives all municipalities in the Commonwealth the power to require property owners to construct and maintain sidewalks. See also 53 P.S. §§ 46801-46806 (specifically, authorizing boroughs to require property owners to construct and maintain sidewalks). The Borough, in turn, has passed an ordinance at Chapter XXI requiring all property owners within the Borough to repair their sidewalks. (R.R. 509a-518a). Consistent with this view, in Pritchard v. City of Pottsville, 113 Pa.Commonwealth Ct. 38, 536 A.2d 844 (1988), we held that the exception applies to sidewalks in which the municipality has a right-of-way regardless of who owns the cartway. Unlike municipalities, the Commonwealth has no interest in the safety of sidewalks because its governmental obligation is to see that people are able to travel from town to town and city to city within the Commonwealth rather than the safety of pedestrian traffic within the confines of particular municipalities.

¶9Ignoring that it is the traditional obligation of municipalities and not the Commonwealth to see that sidewalks are made safe for pedestrian traffic, the majority adopts a textu-alist approach holding that because the sidewalk exception requires that the “sidewalks be within the right-of-way of streets owned by the local agency,” the “plain meaning” of these words is that if the street is owned by another governmental entity, then the sidewalk exception does not apply. While that approach is certainly appropriate, the correctness of the majority holding is dependent on what it finds to be the “plain meaning” to be also the “real” meaning of the word.

¶10At the core of the majority’s opinion, “plain meaning” is what it considers the “street.” It mistakenly assumes that the term “street” as used in 42 Pa.C.S. § 8542(b)(7) only means that portion of the right-of-way over which vehicles travel. However, the term “street” encompasses two distinct portions; the cart-way for vehicles and the sidewalk for pedestrians. Mercantile Library Co. v. Fidelity Trust Co., 235 Pa. 5, 83 A. 592 (1912). When the Commonwealth takes ownership of a “street,” it takes ownership of the cartway as a matter of law. See, e.g., 36 P.S. § 1758-103 (limiting liability of Commonwealth to maintain certain designated state highways only to that portion available to vehicular traffic). However, the same is not true for sidewalks. Even when the Commonwealth takes over the cartway of a street and designates it a *115state highway, a municipality normally retains control of a portion of the “street” right-of-way known as the sidewalk. Kozura v. A & J Quality Shoppe, 111 Pa.Commonwealth Ct. 9, 542 A.2d 637 (1988).

¶11In its response to the Borough’s request for admissions, the Commonwealth specifically stated that it could not deny that there is evidence that the Borough has a right-of-way in the sidewalk, i.e., an interest in the street right-of-way. (R.R. 38a). From the Commonwealth’s admissions alone then, it is insufficient as a matter of law to conclude that the Borough has no right-of-way over the sidewalk portion of the street right-of-way. Because the facts are not undisputed, I believe summary judgment should not be have been granted as to the sidewalk exception.

¶12I also disagree with the majority that the “real property” exception does not apply. 42 Pa.C.S. § 8542(b)(3) provides:

Real Property. — The care, custody or control of real property in the possession of the local agency_ As used in this paragraph, real property shall not include:

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

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

(iii) streets; or

(iv) sidewalks.

¶13Because the exception says that a sidewalk is not real property, the majority finds that “the pipe cannot be a fixture without being part of the sidewalk” and holds that “the real estate exception to governmental immunity is inapplicable in this case.” Again, it follows a textualist approach, but this time, the approach is dependent on whether using the real property exception is applicable to determining whether something is a fixture.

¶14No language in the real property exception indicates that it has any application in determining whether an item is a fixture or not. By denominating subsections (i) through (iv), not to be “real property” as used in the “[real property exception],” the General Assembly did not mean to enunciate a new principle of real property law but only to make clear that there were other provisions specifically dealing with those exception in 42 Pa.C.S. 8542 and the real property exception did not apply-

¶15Under traditional principles of real property law, a pipe embedded in concrete in land, be it in or through a sidewalk into the dirt, is a fixture and real property. To hold otherwise and to adopt the majority’s position that a pipe embedded in concrete can only be removed by a jackhammer is not real estate because property has to be either real or personal inescapably leads to the absurd result that it must be personality. Because I believe that the pipe embedded in concrete is a fixture and real property, it falls within the real property exception to immunity.

¶16Accordingly, I dissent.

¶17McGINLEY and FRIEDMAN, JJ., join in this dissent.