Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Helene Ludwin, individually and as Executrix of the Estate of Charles Ludwin, deceased v. Port Authority Transit Corporation and City of Philadelphia and Southeastern Pennsylvania Transportation Authority, No. 1841 November Term, 1984.
Marguerite J. Ayres, with her, Gary L. Azorsky, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for appellant.
Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, Gary Howard Kaplan, Chief Assistant City Solicitor, Ralph J. Luongo, Assistant City Solicitor, and Handsel B. Minyard, City Solicitor, for appellee.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Barry and Colins. Opinion by Judge MacPhail. Concurring Opinion by Judge Barry. Concurring and Dissenting Opinion by President Judge Crumlish, Jr.
[ 102 Pa. Commw. Page 38]
The Port Authority Transit Corporation (PATCO) appeals here from an order of the Court of Common Pleas of Philadelphia County which granted the Motion for Judgment on the Pleadings of the City of Philadelphia (City). We reverse and remand.
Helene Ludwin initiated this action against the City, PATCO and the Southeastern Pennsylvania Transportation Authority (SEPTA) claiming that on the evening of December 13, 1982 her now deceased husband suffered serious injuries as the result of a criminal assault in an underground concourse in the vicinity of Eighth Street in Philadelphia. In paragraph five of her complaint, Mrs. Ludwin alleges that all three of the named entities "either individually, jointly and/or severally, owned, controlled, possessed, managed and operated the Underground Concourse of the Eighth and Chestnut Streets Subway Station enroute to the PACTO High Speed Line, Philadelphia, Pennsylvania."*fn1 In paragraph eight of her complaint, Mrs. Ludwin alleges the following:
The negligence of the Defendants herein, PATCO, City of Philadelphia and SEPTA, individually, jointly and/or severally . . . consisted of the following:
(a) Failure to have proper and adequate security, in and about the said scene of this incident;
[ 102 Pa. Commw. Page 39]
(b) Failure to properly warn the Plaintiff's Decedent, and other individuals, of the possibility of assault, mugging and/or robbery;
(c) Failure to properly provide necessary security personnel and/or security equipment for the safety of the Plaintiff's Decedent, and other individuals;
(d) Failure to conform to the standards applicable in the community with regard to security and safety;
(e) Failure to properly inspect the aforesaid area to determine the presence of any possible and undesirable assailants, and therefore, protect the person of the Plaintiff's Decedent, and other individuals therefrom;
(g) Negligence at law; and
(h) Such other acts of negligence as may appear during the course of discovery and at trial.*fn2
PATCO, by the way of a cross-claim against the City, alleges that if Mr. Ludwin was injured as a result of the City's negligence, then the City is liable to plaintiff or jointly and severally liable with PATCO, or liable over to PATCO by way of contribution and/or indemnity.*fn3 In an amended pleading, PATCO asserts in an additional claim that the City is liable on the basis of the lease agreements by which PATCO leases the premises from the City.
The City filed a Motion for Judgment on the Pleadings, arguing that it is immune from suit under Sections 8541 and 8542 of the Judicial Code, 42 Pa. C.S. §§ 8541, 8542. On June 17, 1985 the Common Pleas
[ 102 Pa. Commw. Page 40]
Court ruled that the City enjoys complete immunity from this action and that the indemnification clauses in PATCO's leases do not apply because they specifically state that the City will not indemnify ...