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MARCIA HOROWITZ v. CHELTENHAM TOWNSHIP AND ABINGTON TOWNSHIP. ABINGTON TOWNSHIP (02/23/89)

decided: February 23, 1989.

MARCIA HOROWITZ, EXECUTRIX OF THE ESTATE OF NEIL HOROWITZ, AND MARCIA HOROWITZ, IN HER OWN RIGHT
v.
CHELTENHAM TOWNSHIP AND ABINGTON TOWNSHIP. ABINGTON TOWNSHIP, APPELLANT



Appeal from the order of the Court of Common Pleas of Philadelphia County, in the case of Marcia Horowitz, Executrix for the Estate of Neil Horowitz, Deceased & Marcia Horowitz, in her own right v. City of Philadelphia, Philadelphia Police Department, Cheltenham Township, and Cheltenham Township Police Department v. Abington Township, No. 4152 April Term, 1986.

COUNSEL

Christine M. Mooney, with her, Charles W. Craven, Marshall, Dennehey, Warner, Coleman and Goggin, for Abington Township, appellant.

Ezra Wohlgelernter, Feldman, Shepherd & Wohlgelernter, for appellee.

M. Kelly Tillery, Leonard, Tillery & Davison, for Cheltenham Township Police Department.

Dennis L. Platt, for Cheltenham Township.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 123 Pa. Commw. Page 587]

Abington Township (appellant) appeals the order of the Philadelphia County Court of Common Pleas (trial

[ 123 Pa. Commw. Page 588]

    court) which denied appellant's motion for summary judgment. We quash this appeal.

On February 24, 1985, at approximately 6:55 p.m., Neil Horowitz (decedent) was killed when his westbound car collided with an abandoned truck which was left in the inside westbound lane of Cottman Avenue. The decedent's wife, Marcia Horowitz (appellee) subsequently instituted a wrongful death and survival action in her own right and as the Executrix of her husband's estate against the City of Philadelphia, Cheltenham Township and their respective police departments. On February 24, 1987, Cheltenham Township joined appellant and its police department to the action as additional defendants. Appellee alleges negligence on the part of the named defendants in failing to remove the abandoned vehicle from the roadway, and otherwise failing to take active measures to insure the safety of passing motorists from the danger presented by the abandoned vehicle.

Cottman Avenue is the territorial dividing line between Cheltenham Township and the City of Philadelphia. The accident in question occurred on the westbound lane of Cottman Avenue, allegedly within the territorial limits of the City of Philadelphia. Although the abandoned vehicle was located in Philadelphia County, the police departments of both appellant and Cheltenham Township received calls concerning the abandoned vehicle on February 23, 1985, and February 24, 1985.

The police departments of both Townships dispatched officers to the scene of the abandoned vehicle. These officers concluded that the vehicle was within the territorial limits of the City of Philadelphia and, therefore, took no action to remove the vehicle from the roadway. The officers did, however, ...


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