Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Patricia A. Campbell, et al. v. Pennsylvania Department of Transportation and City of Chester, No. 84-1549.
Avram G. Adler, for appellant.
Nicholas S. Lippincott, with him, Peter A. Dunn, Dunn, Haase, Sullivan, Mallon & Cherner, for appellees.
Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge Craig.
[ 105 Pa. Commw. Page 496]
Patricia A. Campbell, Administratrix of the Estate of Michael Lee Campbell, deceased, appeals from an order of the Court of Common Pleas of Delaware County granting summary judgment to the City of Chester (City). The common pleas court found the city had no duty or responsibility regarding the maintenance of Interstate Route 95 (I-95), where the accident at issue occurred, and that the City was immune under the doctrine of governmental immunity, as codified at 42 Pa. C.S. §§ 8541-8542. We affirm.
On February 25, 1982, the decedent and a companion were attempting to cross a stretch of I-95 in the City when they were struck and killed by one or more automobiles. There is no pedestrian crossing on I-95 as it is a high-speed, limited access highway. The decedent was a trespasser on the highway at the time he was struck and killed. On February 8, 1984, the administratrix filed a complaint against the Commonwealth and the City alleging, among other things, that the City was negligent in failing to provide safe and adequate pedestrian crossways. The common pleas court granted the City summary judgment in its favor and the administratrix appealed.
In this appeal, the administratrix contends the common pleas court erred in finding (1) that the City was immune under governmental immunity, and (2) that the City owed no duty to maintain a safe ingress and egress over a state highway. We shall discuss these issues seriatim. We are also mindful that we are reviewing a grant of summary judgment.
The governing principle is that the trial court may grant a motion for summary judgment only in cases where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
[ 105 Pa. Commw. Page 497]
to any material facts and that the moving party is entitled to judgment as a matter of law." Pa. R.C.P. No. 1035(b). Additionally, the trial court must determine whether a genuine dispute as to a material fact exists after an examination of the record in a light most favorable to the non-moving party. McCloskey v. Abington School District, 101 Pa. Commonwealth Ct. 110, 515 A.2d 642 (1986).
In her complaint, the administratrix sought to come within the "streets" exception of 42 Pa. C.S. § 8542(b)(6)(i) to governmental immunity by alleging the City had permitted its Fourteenth Street underpass to become hazardous to the extent that travelers, like the decedent, would risk crossing I-95 on foot rather than use the unsafe underpass. The ...