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DELLA FARBER v. BETTY L. ENGLE AND FRANK ENGLE (05/14/87)

decided: May 14, 1987.

DELLA FARBER, APPELLANT
v.
BETTY L. ENGLE AND FRANK ENGLE, H/H AND CONSOLIDATED RAIL CORPORATION AND CITY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. DELLA FARBER, APPELLANT V. FRANK ENGLE AND BETTY L. ENGLE, HIS WIFE, AND CONSOLIDATED RAIL CORPORATION AND CITY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in the case of Della Farber v. Betty L. Engle and Frank Engle, h/w and Consolidated Rail Corporation, and City of Philadelphia, and Commonwealth of Pennsylvania, No. 1040 December Term, 1981.

COUNSEL

Philip H. Rush, for appellant.

Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, Armando A. Pandola, Jr., Chief Deputy in Charge of Claims, and Handsel B. Minyard, City Solicitor, for appellee, City of Philadelphia.

J. Matthew Wolfe, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellee, Commonwealth of Pennsylvania.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 106 Pa. Commw. Page 175]

Della Farber (Appellant) appeals from two orders of the Court of Common Pleas of Philadelphia County granting the Commonwealth of Pennsylvania's (Commonwealth) motion for summary judgment and the City of Philadelphia's (City) motion for judgment on the pleadings in her action against these two entities. We affirm.

On April 1, 1981, Appellant disembarked from a passenger train at Consolidated Rail Corporation's (Conrail) Fox Chase station. The station is located on the south side of Rhawn Street where it intersects with Elberon Street in the City. The station was extremely crowded that day due to a strike by employees of the Southeastern Pennsylvania Transportation Authority. As Appellant crossed Rhawn on that rainy evening, she was struck by a car driven by Betty Engle and sustained serious injuries. Rhawn Street at the situs of the accident is part of Legislative Route 67323.

Appellant filed suit against Conrail, Engle, the Commonwealth and the City. The Commonwealth and the City each filed a preliminary objection to the complaint.*fn1 The Commonwealth's objection was that under Section 203 of the Act of September 18, 1961 (Act), P.L. 1389, 36 P.S. ยง 1758-203, the duty to regulate and control

[ 106 Pa. Commw. Page 176]

    traffic on this legislative route in cities of the first class was upon the City, not the Commonwealth. The City's objection was that the complaint did not state a cause of action that fell within any of the eight exceptions to governmental immunity contained in Section 8542(b) of the Judicial Code (Code).*fn2 On March 15, 1982, Judge Gafni of the Court of Common Pleas of Philadelphia County, without filing an opinion, entered orders overruling the Commonwealth's and City's preliminary objections.

The case proceeded and in 1985, the Commonwealth moved for summary judgment and the City for judgment on the pleadings on the same bases relied upon in their respective preliminary objections. Judge DiBona of the Court of Common Pleas of Philadelphia County granted both motions by separate orders dated November 22, 1985. These appeals followed.*fn3

We first address Appellant's contention regarding the City. Appellant argues that Judge DiBona erred in granting the City's motion because Judge Gafni's ruling constituted the "law of the case."*fn4 Although the "law of ...


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