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JOSEPH GRAHAM AND ANGELA GRAHAM AND DEBORAH WHITE v. E. PINCKINEY AND WAYNE WILLIAMS AND MILTON WILLIAMS (04/18/89)

decided: April 18, 1989.

JOSEPH GRAHAM AND ANGELA GRAHAM AND DEBORAH WHITE, APPELLANTS
v.
E. PINCKINEY AND WAYNE WILLIAMS AND MILTON WILLIAMS, SR., AND SEPTA AND COMMONWEALTH OF PENNSYLVANIA, AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND CITY OF PHILADELPHIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Joseph Graham and Angela Graham and Deborah White v. E. Pinckiney and Wayne Williams and Milton Williams, Sr., and Southeastern Pennsylvania Transportation Authority, and Commonwealth of Pennsylvania, Department of Transportation, and City of Philadelphia, No. 55 March Term, 1988.

COUNSEL

David C. Novitsky, Allen L. Rothenberg & Associates, for appellants.

Joan A. Zubras, for appellee, Southeastern Pennsylvania Transportation Authority.

Alan C. Ostrow, Assistant City Solicitor, with him, Norma S. Weaver, Chief Deputy in Charge of Claims, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, and Seymour Kurland, City Solicitor, for appellee, City of Philadelphia.

Judges Colins and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 125 Pa. Commw. Page 234]

Joseph Graham, Angela Graham, and Deborah White, (appellants) appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections in the nature of a demurrer of the City of Philadelphia. We vacate and remand.

In a complaint in trespass, appellants allege that they were injured while passengers on a trolley proceeding on Girard Avenue in the City of Philadelphia, when the trolley struck a loose metal beam causing the trolley to collide with a car.

Appellants allege possible liability either of the City of Philadelphia, the Southeastern Pennsylvania Transportation Authority (SEPTA), or the Pennsylvania Department of Transportation (DOT), on the theory that they were responsible for the dangerous condition on Girard Avenue.

The City filed preliminary objections in the nature of a demurrer contending that Girard Avenue is a state highway and that the City had no duty to maintain the roadway or tracks, and therefore, it was SEPTA's responsibility.

[ 125 Pa. Commw. Page 235]

The City also contended that it was immune under section 8541 of the Judicial Code, 42 Pa. C.S. ยง 8541. It is disputed that Girard Avenue is a state highway.

The trial judge sustained the preliminary objections holding that the City had no duty to maintain the roadway or trolley tracks at the accident site, and that it was the duty of SEPTA. In view of the trial court's statement that it was the duty of SEPTA to maintain the area, SEPTA filed a brief in support of its position that the defect which ...


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