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RAE RATNER v. DAY BY DAY ENTERPRISES (10/14/87)

decided: October 14, 1987.

RAE RATNER
v.
DAY BY DAY ENTERPRISES, INC., ET AL. AND PHILADELPHIA ELECTRIC COMPANY AND CITY OF PHILADELPHIA. PHILADELPHIA ELECTRIC COMPANY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Rae Ratner v. Day by Day Enterprises, Inc., et al. and Philadelphia Electric Co. v. City of Philadelphia, No. 4942 December Term, 1984.

COUNSEL

Kevin McNolty, with him, Joseph M. Donley and Robert Emmet Hernan, Kittredge, Kaufman & Donley, for appellant.

Norman G. Prajzner, Chief Assistant City Solicitor, with him, Armando A. Pandola, Jr., Chief Deputy, Claims, and Handsel B. Minyard, City Solicitor, for appellee, City of Philadelphia.

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

Author: Blatt

[ 110 Pa. Commw. Page 254]

This is an appeal by the Philadelphia Electric Company (PECO) from an order of the Court of Common Pleas of Philadelphia County (trial court) which sustained the preliminary objection of the City of Philadelphia (City) to the City's joinder by PECO as an additional defendant, and which dismissed the complaint against the City with prejudice.

This case arises due to injuries sustained in a fall. It is alleged that on or about November 12, 1984, Rae Ratner, while walking, fell on the sidewalk adjacent to 2101 Sansom Street. She alleged that the sidewalk was in an unsafe condition and named as defendants in her complaint Day by Day Enterprises, Inc. and Robin Ravner, individually (lessees), Samuel Rappaport, individually and t/a 21st and Chestnut Street Partnership, (buyer of the premises under an installment agreement), and the Philadelphia Authority for Industrial Development (record owner). These defendants thereafter joined PECO, alleging that Ms. Ratner's injuries were caused by the defective condition of a PECO manhole cover on the sidewalk. PECO then attempted to join the City, which in turn filed preliminary objections to its joinder.

The trial court dismissed the City's preliminary objection relating to untimely joinder,*fn1 but did hold that joinder under Pa. R.C.P. No. 2252 is improper, because the City is at most secondarily liable and Rule 2252 does not authorize joinder of parties who are only secondarily liable. It is this issue which we must review.

[ 110 Pa. Commw. Page 255]

In Jenkins v. American Dredging Company, 406 Pa. 145, 177 A.2d 451 (1962), our State Supreme Court clearly held that joinder of a party who is secondarily liable is not authorized under Rule 2252. See also Eckrich v. DiNardo, 283 Pa. Superior Ct. 84, 423 A.2d 727 (1980). PECO suggests, however, that the City's liability as to it is potentially more than secondary. Specifically, PECO attempts to construe Section 8542(b)(7) of the Judicial Code, 42 Pa. C.S. ยง 8542(b)(7) (pertaining to governmental immunity for dangerous conditions of sidewalks), as permitting the City to be secondarily liable only as to property owners. It argues, therefore, that, because PECO does not own the sidewalk, the City is not secondarily liable as to it.

Section 8542(b)(7) of the Judicial Code, cited by PECO reads as follows:

The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

(7) Sidewalks -- A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power ...


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