Hayes v. Philadelphia Electric Co.

498 A.2d 1019, 92 Pa. Commw. 205, 1985 Pa. Commw. LEXIS 1308

• Court: Commonwealth Court of Pennsylvania
• Decided: October 11, 1985
• Docket: Appeal, No. 74 T.D. 1984
• Status: Published

Opinions

Opinion by

Judge Colins,

Philadelphia Electric Company (PECO) appeals an order of the Montgomery County Court of Common Pleas granting a Motion for Summary Judgment foi* the County of Montgomery and the Borough of Norristown and denying the motion for the Commonwealth of Pennsylvania.

Glenn Hayes, Sr. (deceased), was fishing on a dam on the Schuylkill River located between Norristown and Bridgeport when he slipped and fell into the river and drowned. Carolyn Hayes, administratrix of the estate of the deceased, brought an action against PECO, the Commonwealth of Pennsylvania, the County of Montgomery and the Borough of Norristown.

PECO is alleging that summary judgment should not have been granted to the Borough of Norristown because it was negligent in the care, custody or control of real property in its possession. The property in question is a driveway leading to the Schuylkill River that was to be constructed on PECO property for the purpose of providing a route of access to the River for fire fighting purposes. PECO claims that an agreement, in the form of a letter dated November 21, 1941, between Norristown and PECO created an easement, and that the deceased crossed the driveway that is under Norristown’s control to reach the dam.¹ The pertinent part of the letter reads as follows :

Gentlemen:

In keeping with your request we hereby give you permission at your own risk and expense to construct a driveway across our property on the north side of Swede Street at a convenient location to be agreed upon between our former power plant building and the Schuylkill Eiver, for the purpose of providing a route of access to the river for fire fighting equipment for the purpose of withdrawing water from the river,

provided that the driveway shall be laid out and constructed without cost to this Company, and that you will save harmless and indemnify this Company from and against any and all claims ■for any damages of whatsoever kind or nature arising in any manner or under any circumstances through the exercise of the permission hereby given. Provided, further, that this permission may be revoked at any time by our Company sending you five days written notice to that effect.²

PECO contends that since the letter created an easement, Norristown falls under one of the exceptions to tort immunity conferred upon local governments by the Act of October 5, 1980, 42 Pa. C. S. §§854l-85'64.³ These exceptions can be found at 42 Pa. C. S. §8542(b), and the relevant exception for our purposes provides in part:

(b) Acts which may impose liability.—

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

(3) Beal Property. — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. . . .

We disagree with PECO’s allegations and affirm the Montgomery County Court of Common Pleas.

The deceased was alleged to have fallen from the dam into the Eiver. PECO admits ownership of the dam. Norristown does not control or own the dam, the property in question, or the Eiver.⁴ Therefore, the trial court was proper in granting summary judgment as to Norristown since there was no genuine issue of fact as to the care, custody or control of the property where the injury allegedly occurred. Accordingly, Norristown does not fall under the exception found at 42 Pa. C. S. §8542(b)(3), and instead immunity is conferred pursuant to 42 Pa. C. S. §8541.

Assuming arguendo that the letter created an easement and the property abutting the dam was under the care, custody or control of Norristown,⁵ summary judgment would still be appropriate since the deceased would have trespassed across the driveway to reach the dam. Once again, Norristown would not be liable under the exception to immunity found at 42 Pa. C. S. §8542(b) (3). As stated in Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa. Commonwealth Ct. 596, 600, 492 A.2d 1204, 1206 (1985).

Indeed, case law supports our conclusion that one who has suffered injuries as the result of encountering a hazardous artificial condition on another’s land cannot recover damages from the owner of the land over which he passed to reach the land on which the dangerous condition existed. Malischewski v. Pa. R.R. Co., 356 Pa. 554, 52 A.2d 215 (1947); Magner v. Baptist Church, 174 Pa. 84, 34 A. 456 (1896); Heller v. Consolidated Rail Corporation, 576 F. Supp. 6 (E.D. Pa. 1982), aff’d, 720 F.2d 662 (3d Cir. 1983); Cousins v. Yaeger, 394 F. Supp. 595 (E.D. Pa. 1975).

, It, is clear from the pleadings that the administra- ' trix is alleging that the dam was unsafe, not the driveway leading to the dam; therefore, for the reasons set forth above, the order of the Montgomery County Court of Common Pleas is affirmed.

Order

And Now, October 11, 1985, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter, dated April 15, 1983, is hereby affirmed.

1 There is no evidence in the record that would indicate that a driveway leading to the dam was constructed. PECO maintains that the deceased traversed the driveway; however, no evidence was presented to show that the deceased used the driveway to reach the dam.

2 A copy of this letter was first presented to the Court of Common Pleas on March 30, 1983, the date of argument for the

Motion for Summary Judgment. The letter was not attached to the pleadings. On April 15, 1983, the Court of Common Pleas granted summary judgment as to the Borough of Norristown and Montgomery County and PECO appealed. On July 11, 1983, the Court of Common Pleas issued an opinion affirming the granting of summary judgment.

3 42 Pa. C. S. §8541, reads as follows:

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury fo a person or property caused by any act of the local agency or an employee thereof or any other person.

4 The Commonwealth of Pennsylvania holds title to the Schuylkill River. Philadelphia v. Philadelphia Suburban Water Co., 309 Pa. 130, 163 A.2d 297 (1932).

5 Since PECO, the owner and possessor of the property, gave Norristown permission to use it as a driveway, and since the agreement was revocable at will by PECO, the letter did not convey an . interest in real property, but created a mere license. See Puleo v. Bearoff, 376 Pa. 489, 103 A.2d 759 (1954).