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HARRY AND TILLIE FILLER v. COMMONWEALTH FEDERAL SAVINGS AND LOAN ASSOCIATION AND CITY PHILADELPHIA (10/06/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 6, 1987.

HARRY AND TILLIE FILLER, APPELLANTS
v.
COMMONWEALTH FEDERAL SAVINGS AND LOAN ASSOCIATION AND CITY OF PHILADELPHIA, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Harry and Tillie Filler v. Commonwealth Federal Savings and Loan Association and City of Philadelphia, No. 2368 July Term, 1981.

COUNSEL

Norman Shigon, Deutsch & Shigon, for appellants.

Handsel B. Minyard, City Solicitor, with him, Norma S. Weaver, Chief Deputy City Solicitor, and Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, for appellees.

Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 110 Pa. Commw. Page 89]

Harry and Tillie Filler (appellants) appeal an order of the Court of Common Pleas of Philadelphia County granting the City of Philadelphia's (City) motion for summary judgment. We affirm.

On January 15, 1981, Harry Filler exited a branch office of Commonwealth Federal Savings and Loan Association (Commonwealth Federal S & L), took two steps, slipped on an icy sidewalk and fell sustaining injuries. The appellants filed suit in the Court of Common Pleas of Philadelphia County alleging their injuries to be caused by both Commonwealth Federal S & L and the City's failure to maintain the sidewalk.

On July 25, 1983, the appellants released Commonwealth Federal S & L from liability. Consequently, the City made a motion for summary judgment pursuant to Pennsylvania Rules of Civil Procedure 1035. The trial court granted the motion and entered judgment for the

[ 110 Pa. Commw. Page 90]

City.*fn1 The court characterized the nature of the City's liability as being secondary and stated that a release of the primarily liable party (Commonwealth Federal S & L) discharged the City. The parties do not contest this determination by the trial court.*fn2 Rather, the issue on appeal is whether the trial court erred by not judicially recognizing a Philadelphia Police Directive.*fn3 The appellants

[ 110 Pa. Commw. Page 91]

    allege that through the Police Directive the City has assumed an affirmative duty; by assuming this duty the City's liability was altered from that of being secondarily liable to being primarily liable. Therefore, according to appellant's argument, the release of Commonwealth Federal S & L did not discharge the City from liability. We disagree.

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides a summary method for the determination of legal disputes where "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa. R.C.P. No. 1035(b). "Entry of summary judgment may be granted only in cases where the right is clear and free of doubt." Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). "[T]he burden of demonstrating that no genuine issue of material fact exists and that one is entitled to judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party." Miller v. Leljedal, 71 Pa. Commonwealth Ct. 372, 375, 455 A.2d 256, 257 (1983) (emphasis added),

[ 110 Pa. Commw. Page 92]

Therefore, the trial court did not err in granting the City's motion for summary judgment.

Order

Now, October 6, 1987, the order of the Court of Common Pleas of Philadelphia County, granting the defendant City of Philadelphia's motion for summary judgment is affirmed.

Disposition

Affirmed.


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