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MILDRED PRITCHARD v. CITY POTTSVILLE ET AL. (01/25/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 25, 1988.

MILDRED PRITCHARD, ADMINISTRATRIX OF THE ESTATE OF ROBERT PRITCHARD, DECEASED AND MILDRED PRITCHARD, INDIVIDUALLY, APPELLANT
v.
CITY OF POTTSVILLE ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Schuylkill County in the case of Mildred Pritchard, Administratrix of the Estate of Robert Pritchard, deceased, and Mildred Pritchard, individually v. City of Pottsville, Conrail a/k/a Consolidated Rail Corporation, Pennsylvania Schuylkill Railroad a/k/a Penn Central Corporation and Pottsville Housing Authority and Edward Keese and Mary Keese, his wife, and Charles C. Morris, Inc., No. S-415-1984.

COUNSEL

Anthony J. Urban, for appellant.

Frank L. Tamulonis, Jr., Zimmerman, Lieberman & Derenzo, for appellee, City of Pottsville.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 113 Pa. Commw. Page 39]

Mildred Pritchard*fn1 appeals a Schuylkill County Common Pleas Court order granting the City of Pottsville's (Pottsville) motion for summary judgment. We affirm in part and reverse and remand in part.

[ 113 Pa. Commw. Page 40]

On June 25, 1983, Robert Pritchard's body was found at the bottom of an embankment running parallel to Peacock Street, a state road in Pottsville.*fn2 Pritchard commenced a wrongful death/survival action against Pottsville and others, alleging that its negligence in failing to adequately light or maintain the sidewalk caused her son's death. The common pleas court dismissed Pritchard's claim against Pottsville*fn3 because she failed to establish that Pottsville owned Peacock Street or the sidewalk.

On appeal, Pritchard initially argues that the common pleas court erred in requiring evidence of direct municipal ownership of the sidewalk under Section 8542(b)(7) of the Judicial Code.*fn4 She contends that Pottsville maintained a possessory interest in Peacock Street and the sidewalk which is sufficient to impose liability under Lowman v. Indiana School District, 96 Pa. Commonwealth Ct. 389, 507 A.2d 1270 (1986). We disagree.

[ 113 Pa. Commw. Page 41]

In Lowman, we held that a mere possessory interest is sufficient to expose a local agency to liability under Section 8542(b)(3) of the Judicial Code, i.e., the real Page 41} property exception.*fn5 In contrast, the sidewalk exception expressly requires ownership of the right-of-way by the local agency. Reviewing the pleadings and affidavits, it is clear that Pottsville did not own either the street or the sidewalk.

Pritchard also argues that the common pleas court erred in releasing Pottsville from liability because she alleged municipal negligence through inadequate street lighting under Section 8542(b)(4) of the Judicial Code.*fn6

The street lighting exception requires a local agency to have "care, custody, or control" of a street light for it to be exposed to liability. Here, the record reflects that Pottsville contracted with a utility company for street lighting.*fn7 Although Pottsville filed affidavits disclaiming responsibility for the street lighting, we hold that under the circumstances the question of whether the lighting was under the care, custody, or control of Pottsville is one of disputed material fact and not proper for disposition

[ 113 Pa. Commw. Page 42]

    in a summary judgment motion under Pa. R.C.P. No. 1035.

We therefore affirm that part of the common pleas court order granting Pottsville's motion for summary judgment as to the sidewalk exception. We reverse that portion of the common pleas court order granting Pottsville's motion for summary judgment under the street light exception and remand this case to the common pleas court for further proceedings.

Order

That portion of the Schuylkill County Common Pleas Court order, No. S-415-1984 dated May 22, 1986, granting the City of Pottsville's (Appellee) summary judgment motion based on Section 8542(b)(7) of the Judicial Code, 42 Pa. C. S. § 8542(b)(7), is affirmed.

That portion of the order granting Appellee's motion for summary judgment based on Section 8542(b)(4) of the Judicial Code, 42 Pa. C. S. § 8542(b)(4), is reversed, and this case is remanded for further findings consistent with this opinion.

Jurisdiction relinquished.

Disposition

Affirmed in part, reversed in part and remanded.


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