Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1967, No. 1512, in case of Stephen Toth et ux. v. City of Philadelphia et al.
Michael Goldman, for appellants.
William B. Freilich, with him Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J.
[ 213 Pa. Super. Page 283]
The issue in this case is whether a summary judgment was properly entered in favor of the defendant Harry Hollander.
Plaintiffs instituted an action in trespass to recover for personal injuries sustained by wife-plaintiff on July 31, 1966, in a fall on the sidewalk in front of the premises at 423 West Norris Street, Philadelphia. The fall allegedly resulted from "large holes, obstructions,
[ 213 Pa. Super. Page 284]
depressions, irregularities or defects" in the sidewalk. Plaintiffs sued the City of Philadelphia and Harry Hollander, the owner of the premises. The complaint charged that both defendants had a duty "to keep and maintain said sidewalk in a reasonably safe condition for use by pedestrians."*fn1
Defendant Hollander answered alleging that he was a landlord out of possession, averring that "the defendant Hollander leased the entire property located at 423 West Norris Street to Pedro Cumba and Cruz Cumba, his wife, who were in full possession and control of the entire property at all times material to the plaintiff's cause of action." The City of Philadelphia's answer also alleged that the sidewalk was owned, possessed, or controlled by the defendant Hollander, who it claimed was primarily and solely liable. The Cumbas were joined as additional defendants by the City.
After the pleadings were closed and interrogatories were served upon and answered by Hollander, Hollander moved for summary judgment, attaching a copy of an alleged lease between Garrison Realty Company, agent for Harry Hollander, and Pedro Cumba and Cruz Cumba, his wife. The lease recites that the Cumbas were renting "All That Certain entire two story store and dwelling property numbered and known as 423 West Norris Street" for two years beginning August
[ 213 Pa. Super. Page 28520]
, 1964 and ending August 19, 1966. This lease copy was affixed to the motion for summary judgment as an exhibit but no affidavit was attached or ...