The opinion
*46 Concurring and Dissenting Opinion by President
Judge Crumlish, Jr :
I concur in that part of the majority’s opinion which holds that a specific causal relationship between a physical defect in the real estate and the inflicted harm be pleaded to maintain a cause of action against a governmental subdivision under the real property exception to the 1980 Immunity Act. 42 Pa. C. S. §8542(b)(3).
However, I respectfully dissent from that part of the majority’s opinion which holds that the City may be liable over to the Authority for the harm suffered by Mr. Ludwin through the terms of the lease provision.
This case presents the unique factual situation where one municipality grants to a separate distinct public corporate entity its right to operate a business within its own infrastructure. The City of Philadelphia granted to PATCO the right to operate a high-speed transit line, including the orderly ingress and egress of commuting passengers, inside the City underground rail system. For this limited purpose, the City relinquishes its control over the property for the proper fulfillment of the independent agency’s objective.
Because a municipality has a responsibility which exceeds the limited interests of its lessee, it must refuse to abdicate its responsibility to insure the safety, health and welfare of the citizens it governs. This recognition of its duty distinguishes the lease under review herein from ordinary private sector lease agreements. I believe the indemnities and right-to-access clauses in the lease agreement evidence the intent by the parties that the City would not interfere with the transportation function of PATCO, except as necessary in pursuit of its essential, municipal purposes. The City should only be liable for damages when it actively pursues its municipal duties, i.e., the avoidance and correction of flooding, the suppression of fire, or the apprehension of a criminal, onto the leased premises.
*47 I believe the majority has mischaracterized the intent of the indemnities agreement between the parties. The City simply reasserted its responsibility to police within its own geographical jurisdiction. This valid, in fact required, assumption does not constitute a waiver by the City of its immunity for injuries occurring within an area where a separate public corporate entity is lawfully conducting its business.