George I. Buckler, Pittsburgh, for appellant.
Joseph S. D. Christof, II, Pittsburgh, for appellee.
Van der Voort, Spaeth and Watkins, JJ. Spaeth, J., files a concurring opinion.
[ 274 Pa. Super. Page 520]
This action arose on a complaint filed by the Borough of West View against the North Hills School District for indemnity on a fifteen thousand dollar ($15,000) settlement made by the Borough with Mrs. Mary Antal. Mrs. Antal had filed suit against both the borough of West View and the North Hills School District in the Court of Common Pleas of Allegheny County on July 7, 1971 (hereinafter, the Antal suit) in which she claimed damages for personal
[ 274 Pa. Super. Page 521]
injuries incurred on October 18, 1969, as a result of a fall on a sidewalk abutting property owned by the School District and located in the borough of West View.
The Borough and the School District were co-defendants in the Antal suit. The Borough filed a separate Answer and New Matter in that litigation, but did not assert a cross-claim against the School District. The School District also filed an Answer and New Matter setting up the defense of governmental immunity of the School District from tort liability. On May 25, 1972, a court en banc granted the School District's motion for summary judgment (which it treated as a judgment on the pleadings) on the basis of governmental immunity. No appeal was taken from that judgment.
Thereafter, on September 16, 1974, the Borough paid Mrs. Antal the sum of fifteen thousand dollars ($15,000) in settlement of her claim for damages for personal injuries. Counsel for the School District was called to a conference by the trial judge at the time settlement was agreed upon and he agreed for purposes of any later action by the Borough against the School District that the Borough was liable to Mrs. Antal in the amount of the settlement.
In the interim between the dismissal of the School District from the Antal suit (1972), and the settlement of Mrs. Antal's claim by the Borough (1974), the Supreme Court of Pennsylvania abolished the doctrine of governmental immunity from the suit: Ayala v. Philadelphia Board of Education, 453 Pa. 584, 305 A.2d 877, (May 23, 1973).
After paying Mrs. Antal the amount agreed upon in settlement of her claim, the Borough instituted this action against the School District for indemnification. The School District filed an Answer and New Matter setting up the defenses of res judicata and collateral estoppel. The Borough filed a Reply to the New Matter. Both parties accepted a Stipulation of Facts in which the liability of the Borough and the reasonableness of the settlement were agreed upon. Each party then moved for summary judgment. After oral argument, the Lower Court en banc
[ 274 Pa. Super. Page 522]
granted the motion of the Borough and entered judgment in its favor against the School ...