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MARION ATKINS v. URBAN REDEVELOPMENT AUTHORITY PITTSBURGH (01/24/79)

decided: January 24, 1979.

MARION ATKINS, APPELLANT, AT NO. 707
v.
URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH, A MUNICIPAL AUTHORITY, APPELLEE, V. HOUSING AUTHORITY OF CITY OF PITTSBURGH, APPELLEE-APPELLANT, AT NO. 777



No. 707 April Term, 1978, No. 777 April Term, 1978, Appeal from the Judgments entered on the Order of February 17, 1978, of the Court of Common Pleas of Allegheny County, Civil Division at No. GD 75-17617, granting judgment n.o.v. in favor of original Defendant and Additional Defendant.

COUNSEL

Joseph M. Zoffer, Pittsburgh, for appellant at No. 707 and for appellee at No. 777.

George I. Buckler, Pittsburgh, for appellant at No. 777 and for appellee at No. 707.

Cosmos J. Reale, Pittsburgh, for appellee Urban Redevelopment Authority at Nos. 707 and 777.

Van der Voort, Spaeth and Montgomery, JJ. Spaeth, J., concurs in the result.

Author: Montgomery

[ 263 Pa. Super. Page 40]

This trespass action was brought against the Urban Redevelopment Authority of Pittsburgh (Urban) as the owner of real property known as 549 Junilla Street in the city of Pittsburgh by Marion Atkins, plaintiff, who was an employee of the Housing Authority of the City of Pittsburgh (Housing). Plaintiff was injured on October 11, 1973 at about 3:30 P.M. when he fell upon entering the stairway leading to the basement of the aforesaid premises while he was inspecting them to see if there were any meters left in the basement prior to the demolition of the building by the defendant, Urban.

Thereafter, Urban filed a complaint against Housing as an additional defendant alleging that under an agreement which they had entered into, Housing had the duty "to supervise, direct, and conduct the management, operation, maintenance and leasing of the property in question, which duty included the performance of necessary repairs to the property." On the basis of this agreement Urban denied liability and alleged that, if any liability existed, Housing was solely liable or jointly and severably liable, or liable over to Urban entitling Urban to indemnification and/or contribution from Housing with respect to any verdict or judgment recovered in the action.

Housing answered the third party complaint filed by Urban by alleging that since the plaintiff was its employee, jurisdiction was exclusively in the Workmen's Compensation Bureau and Workmen's Compensation Board of the Commonwealth of Pennsylvania; and further, that it has been making workmen's compensation payments to plaintiff and has been released from all liability to him. It also denied ever having had title to, or possession or control of the subject property.

[ 263 Pa. Super. Page 41]

On these pleadings, the case was tried before Honorable Frederick J. Weir, Judge and a jury which returned a verdict in plaintiff's favor against both Urban and Housing with a verdict over in favor of Urban against Housing by direction of the court.

Urban filed posttrial motions for a new trial and for Judgment in its favor N.O.V. Housing filed the same motions. Housing also filed a motion to remold the verdict so as to reinstate the jury's original verdict of joint liability against both Urban and Housing.

After argument, the Court en Banc (Weir and Louik, JJ.) granted the motions of both Urban and Housing for judgments n. o. v. and entered judgments in their favor; and denied their motions for a new trial. The court did not pass on Housing's motion to remold the verdict for the obvious reason judgment N.O.V. was entered in its favor.

Appeals were thereupon taken by plaintiff, Marion Atkins (707) and by Housing (777) which are now before us. Urban did not appeal.

Plaintiff-appellant argues two points viz; Judgments n. o. v. should not have been entered on the facts of record which do not show contributory negligence on the part of plaintiff as a matter of law; and do show notice to both Urban and Housing of the defect which caused the injuries to plaintiff. These were the two reasons assigned by the court en banc in its opinion for its action in entering the n. o. v. judgments, i. e., that plaintiff was guilty of contributory negligence as a matter of law and that neither Urban nor Housing were chargeable with notice of the defect which caused plaintiff to fall.

Housing argues the additional point that Judge Weir should not have directed a verdict over in favor of Urban against it. This argument becomes unimportant if the judgment n. o. v. are permitted to stand and was so stated by the court en banc in its opinion.

Housing seeks to have the judgment n. o. v. in its favor affirmed since, it argues, there can be no liability imposed

[ 263 Pa. Super. Page 42]

    on it as the employer of plaintiff; or if a new trial is granted, that the lower court be directed to hold, that there cannot be any liability over against it in favor of Urban by way of indemnity for the same reason.

Plaintiff seeks to have the judgments n. o. v. reversed and the jury's original verdict against both defendants reinstated, eliminating the lower court's molding of the verdict in favor of Urban against Housing.

Appeal of Housing (777)

This appeal seems to be precautionary in nature to overcome the effect of the verdict over in favor of Urban in case a new trial is granted. If the judgment n. o. v. is sustained, the question of molding becomes moot. Therefore, we shall first dispose of this appeal.

We are constrained to hold the judgment n. o. v. in favor of Housing was proper and should be sustained. There being no dispute as to plaintiff's status as an employee of Housing, his employer is insulated against any claim he may have for negligence on its part, the employee being limited to a claim under the Workmen's Compensation Act, Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956); Hyzy v. Pittsburgh Coal Co., 384 Pa. 316, 121 A.2d 85 (1956). This principle of law does not seem to be questioned by either plaintiff or Urban, although plaintiff seeks to have a judgment entered in his favor according to the verdict as rendered by the jury against both Urban and Housing before it was molded so that the negligence of both Urban and Housing may be established.

In Burke et ux v. Duquesne Light Co., 231 Pa. Super. 412, 332 A.2d 544 (1974), this court reviewed this subject in an exhaustive opinion written for the court by Judge Price, with an equally exhaustive dissenting opinion written by President Judge Jacobs, joined in by Judge Hoffman (now Senior Judge). The majority opinion stands for the principle that in a common law tort action by an employee against a third party ...


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