Appeal from judgment of Court of Common Pleas of Philadelphia, Sept. T., 1968, No. 503, in case of Margaret Borgel v. Homer Hoffman and Jane G. Hoffman, and Leo D. Canfield and Mary Jane Canfield, Benjamin F. Richardson and Margaret Richardson.
Donald J. P. Sweeney, with him McEldrew, Hanamirian, McWilliams, Quinn & Bradley, for appellants.
John J. Coffey and Robert G. Kelly, Jr., with them Marshall, Dennehey & Warner, and Kelly, Deasey & Scanlan, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ. (Hoffman, J., absent). Opinion by Cercone, J. Dissenting Opinion by Montgomery, J. Jacobs, J., joins in this dissenting opinion.
[ 219 Pa. Super. Page 261]
Plaintiff in this case fell in a driveway which runs between the rear of two rows of houses, one row fronting on Lawndale Street and the other row fronting on Bingham Street in the City of Philadelphia. This rear driveway is used in common by the abutting property owners and opens on both ends to public streets. Homer and Jane G. Hoffman are the owners of an abutting property located at one end of the driveway, their property being known and located as 5950 Lawndale Street. Plaintiff instituted an action against the Hoffmans alleging that her fall and consequent personal injuries
[ 219 Pa. Super. Page 262]
were the result of a defect in that portion of the driveway located on the Hoffman property. The Hoffmans, in turn, filed a Complaint seeking to join as additional defendants two owners of properties similarly located on the same side of the driveway and three owners of properties located on the opposite side of the driveway. No other owners of properties abutting the driveway, who also enjoyed easements therein, were named in the Hoffman suit.
In their Complaint the Hoffmans alleged that the negligence, if any, was that of the additional defendants "in that they did own, control and maintain the said common driveway and failed to maintain the same in a reasonably safe condition for public travel thereon". The Hoffmans claimed the "Additional Defendants are alone liable or jointly or severally liable or liable to the defendant for contribution for injuries or losses which Plaintiff may have sustained."
The additional defendants filed Answers denying that they had any ownership, possession or control, exclusive or otherwise, of the location at which plaintiff fell, and denied that the fall was the result of any condition which was caused, created, maintained, possessed, or controlled by them.
Interrogatories were then directed to the Hoffmans by the additional defendants and after Answers thereto, the additional defendants made motions for summary judgment in their favor on the reasoning that: plaintiff alleged she fell on that portion of the driveway owned by Hoffmans; that defendants did not deny such ownership; that according to Hoffmans' Answers to Interrogatories, the supposed duty of the additional defendants to maintain and control the driveway arose from their Deeds; and that no such duty or obligation is expressed or implied in their Deeds. The additional defendants claimed there was no genuine issue
[ 219 Pa. Super. Page 263]
as to any material fact involved and no cause of action existed against them. The lower court agreed and granted motions for summary judgment in their ...