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JOHN MSCISZ v. CARL AND MARY RUSSELL (12/21/84)

filed: December 21, 1984.

JOHN MSCISZ
v.
CARL AND MARY RUSSELL, ET AL. APPEAL OF CARL RUSSELL AND MARY RUSSELL



No. 602 Philadelphia, 1983, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 3472 January Term, 1982.

COUNSEL

Howard A. Davis, Philadelphia, for Stanton, appellee.

Joseph W. Fullem, Jr., Thomas C. Delorenzo and Pamela B. Gagne, Philadelphia, for Geisler, etc., appellees.

J.S. Lynch, appellee, in propria persona.

John J. Duffy, Philadelphia, for Albright, appellee.

Wieand, Olszewski and Popovich, JJ. Popovich, J., filed a dissenting statement.

Author: Wieand

[ 338 Pa. Super. Page 39]

John Mscisz sustained injuries when he fell from a motorcycle while riding on a private driveway. He commenced an action against Carl and Mary Russell, alleging that they had caused his fall by failing to maintain in a safe condition that portion of the driveway which abutted their land. The Russells then joined as additional defendants approximately 55 neighbors whose lots also abutted on the private driveway.

[ 338 Pa. Super. Page 40]

The Russells contended that each of their neighbors had an equal duty to maintain the driveway in a safe condition. The trial court summarily dismissed the Russells' complaint against all additional defendants.*fn1 This appeal followed.

As a general rule, where an easement is used and enjoyed for the benefit of a dominant estate, it is the owner of the dominant estate who is under obligation to keep the easement in good repair; and he may be liable to third persons if he fails to keep the right of way in a proper state of repair. Reed v. Allegheny County, 330 Pa. 300, 303, 199 A. 187, 189 (1938); 25 Am.Jur.2d Easements and Licenses ยง 85 (1966).

In Borgel v. Hoffman, 219 Pa. Super. 260, 280 A.2d 608 (1971), this Court held that where multiple owners of property which abutted a private driveway extending between two rows of houses enjoyed an easement over the driveway in common with other abutting owners, each owner, in the absence of an agreement to the contrary, was responsible for the maintenance and repair of only that portion of the driveway abutting or located on his land. Therefore, the owners of land in proximity to, but not abutting upon, the defendant's land on which the plaintiff fell and on which the alleged defect had existed owed no duty of repair and could not be held liable to the plaintiff.

In the instant case, however, an equal duty to maintain the private driveway was imposed upon each abutting owner by a covenant in the deed conveying title to his land. Each deed for land abutting the private ...


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