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PHYLLIS PSICHOS v. GABRIEL SAUVION AND CITY PHILADELPHIA. GABRIEL SAUVION (02/05/87)

decided: February 5, 1987.

PHYLLIS PSICHOS
v.
GABRIEL SAUVION AND THE CITY OF PHILADELPHIA. GABRIEL SAUVION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Phyllis Psichos v. Gabriel Sauvion and The City of Philadelphia, No. 3046 December Term, 1981.

COUNSEL

Frederick J. Gerngross, with him, William F. Sweeney, Schubert, Bellwoar, Mallon & Walheim, for appellant.

Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, John B. Day, Handsel B. Minyard, City Solicitor, Armando A. Pandola, Jr., Chief Deputy in Charge of Claims and Ralph J. Luongo, Assistant City Solicitor, for appellee.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 103 Pa. Commw. Page 518]

Gabriel Sauvion (appellant) appeals the portion of an order of the court of common pleas which held appellant primarily liable for injuries sustained by the plaintiff below, Phyllis Psichos. The trial court found appellee, the City of Philadelphia (City), only secondarily liable. We affirm the trial court.

[ 103 Pa. Commw. Page 519]

Psichos fell on the sidewalk abutting appellant's property. The sidewalk had been raised by the root systems of a tree, thereby changing the grade of a concrete block on which Psichos tripped and fell, sustaining injuries. Psichos filed a complaint in trespass against appellant and the City. Appellant filed an answer denying liability and in new matter alleged that the City was primarily liable. The City filed an answer to Psichos' complaint and appellant's new matter.

Before trial, appellant and Psichos settled, and appellant paid the claims. Appellant continued his suit for indemnification from the City on the theory that the obligation of the City was one of primary liability for the existence of the defect in the pavement which was the proximate cause of the injuries to Psichos. Appellant contends that he was obliged to pay by reason of the City's negligence.

It was stipulated at trial that the growth of a tree and tree roots on the pavement in front of appellant's property caused a change in grade of the concrete block over which Psichos had tripped. The theory of appellant's action is that the City created the dangerous condition of the pavement and thus became primarily liable.

Section 15-203 of the Philadelphia Code, Act of March 26, 1967, P.L. 547, 53 P.S. ยง 16471, pertaining to street trees, provides:

The Fairmount Park Commission shall have custody and control of the street trees on the streets of Philadelphia and shall make rules and regulations regarding the planting, setting out, removal, maintenance, protection and care of said trees as are necessary. Such rules and regulations shall ...


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