Appeal from the Order of the Court of Common Pleas of Schuylkill County, in the case of Anna Kozura and John Kozura, her husband v. A & J Quality Shoppe, Inc. and Borough of Minersville, No. S-77-1986.
John W. Craynock, Anapol, Schwartz, Weiss & Schwartz, P.C., for appellants.
Frank L. Tamulonis, Jr., Zimmerman, Lieberman & Derenzo, for appellee, Borough of Minersville.
Judges Craig, McGinley and Smith, sitting as a panel of three. Opinion by Judge Smith.
[ 117 Pa. Commw. Page 10]
Appellants Anna and John Kozura, (Plaintiffs below), appeal from an order of the Schuylkill County Court of Common Pleas granting summary judgment to Appellee Borough of Minersville (Defendant) pursuant to Section 8542(b) of the Governmental Immunities Act.*fn1 We reverse and remand.
The sole issue on appeal is whether the trial court erred as a matter of law in granting Defendant's motion for summary judgment. Plaintiffs, husband and wife, commenced their negligence action seeking damages against Defendants A & J Quality Shoppe, Inc. and the Borough of Minersville alleging that defendants individually, or jointly and severally, owned or controlled the sidewalk on which plaintiff fell. Plaintiff Anna Kozura was walking along Sunbury Street in the Borough of Minersville on April 21, 1984 when she tripped, fell and suffered injury as a result of an alleged defective condition in the sidewalk in front of A & J Quality Shoppe, Inc., a luncheonette in downtown Minersville. Defendant Borough of Minersville moved for summary judgment on the contention that A & J Quality Shoppe owned and controlled the subject sidewalk; that Sunbury Street is a roadway owned and controlled by the Commonwealth; and that the Borough is immune from suit under the governmental immunities provisions since the sidewalk in question is adjacent to a state
[ 117 Pa. Commw. Page 11]
roadway and is therefore not a sidewalk within the rights-of-way of streets owned by the local agency. The Court below granted summary judgment to Defendant Borough on the premise that no liability may be imposed against the Borough under Section 8542(b)*fn2 because the rights-of-way involved are not owned by the Borough.
Summary judgment motions are governed by provisions of Pa. R.C.P. No. 1035 which state, in pertinent part, as follows:
(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment ...