Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Carolyn Hayes, in her own right and as Administratrix of the Estate of Glenn Hayes, deceased, and Glenn Hayes, Jr., a minor, by Carolyn Hayes, his mother and natural guardian v. Philadelphia Electric Company, Commonwealth of Pennsylvania, County of Montgomery and Borough of Norristown, No. 81-19619.
Mark C. Clemm, with him, Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, for appellant.
Thomas J. Speers, McTighe, Weiss & Stewart, P.C., with him, Allen J. Beckman, Ronald Yen and Margaret Mary Maguire, for appellees.
Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. Dissenting Opinion by Senior Judge Kalish.
[ 92 Pa. Commw. Page 207]
Philadelphia Electric Company (PECO) appeals an order of the Montgomery County Court of Common Pleas granting a Motion for Summary Judgment for the County of Montgomery and the Borough of Norristown and denying the motion for the Commonwealth of Pennsylvania.
Glenn Hayes, Sr. (deceased), was fishing on a dam on the Schuylkill River located between Norristown and Bridgeport when he slipped and fell into the river and drowned. Carolyn Hayes, administratrix of the estate of the deceased, brought an action against PECO, the Commonwealth of Pennsylvania, the County of Montgomery and the Borough of Norristown.
PECO is alleging that summary judgment should not have been granted to the Borough of Norristown because it was negligent in the care, custody or control of real property in its possession. The property in question is a driveway leading to the Schuylkill River that was to be constructed on PECO property for the purpose of providing a route of access to the River for fire fighting purposes. PECO claims that an agreement, in the form of a letter dated November 21, 1941, between Norristown and PECO created an easement, and that the deceased crossed the driveway that is under Norristown's control to reach the dam.*fn1 The pertinent part of the letter reads as follows:
[ 92 Pa. Commw. Page 208]
In keeping with your request we hereby give you permission at your own risk and expense to construct a driveway across our property on the north side of Swede Street at a convenient location to be agreed upon between our former power plant building and the Schuylkill River, for the purpose of providing a route of access to the river for fire fighting equipment for the purpose of withdrawing water from the river, provided that the driveway shall be laid out and constructed without cost to this Company, and that you will save harmless and indemnify this Company from and against any and all claims for any damages of whatsoever kind or nature arising in any manner or under any circumstances through the exercise of the permission hereby given. Provided, further, that this permission may be revoked at any time by our Company sending you five days written notice to that effect.*fn2
PECO contends that since the letter created an easement, Norristown falls under one of the exceptions to tort immunity conferred upon local governments by the Act of October 5, 1980, 42 Pa. C.S. §§ ...