# Sherman v. City of Philadelphia

> Commonwealth Court of Pennsylvania · January 31, 2000 · 745 A.2d 95

URL: https://www.frixlaw.com/law-library/cases/9714521

## Case

- **Full name:** Karin SHERMAN, Appellant, v. CITY OF PHILADELPHIA
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** January 31, 2000
- **Citations:** 745 A.2d 95; 2000 Pa. Commw. LEXIS 36
- **Precedential status:** Published
- **Opinion:** Concurring in part by Smith
- **Judges:** Doyle, Colins, Smith, Friedman, Kelley, Flaherty, Leadbetter
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9714521

## Opinion text

SMITH, Judge,
concurring and dissenting.
I concur in the result reached by the majority to reverse the grant of summary judgment in favor of the City of Philadelphia and to return this matter to the trial court for further proceedings and trial. I must dissent, however, from the majority’s reasoning for reaching that result. As this Court explained in White v. City of Philadelphia, 712 A.2d 345 (Pa.Cmwlth.1998), the correct approach in cases where the Commonwealth’s having designated a road as a State highway is said to conflict with the “sidewalk exception” to local agency immunity contained in Section 8542(b)(7) of the Judicial Code, 42 Pa.C.S. § 8542(b)(7), is to examine closely the statutory provisions relating to such designation in order to determine what the legislature intended by it. I disagree with both major premises upon which the majority relies: first, that the designation of the street involved here as a State highway means that the Commonwealth “owns” the street, and therefore the sidewalk exception to local agency immunity does not apply, and second, that the sidewalk exception imposes only secondary liability upon a municipality.
The act of designation as a State highway is provided for by statutes, and it has only the legal effect expressed in the statutes. Nevertheless, beginning with Pritchard v. City of Pottsville, 113 Pa.Cmwlth. 38 , 536 A.2d 844 (1988), this Court simply assumed, with no discussion or analysis of the relevant statutes, that when a road was designated as a State highway, a sidewalk alongside it could not fall within the meaning of “sidewalks within rights-of-way of streets owned by the local agency” in Section 8542(b)(7). Cases cited by the majority routinely reaffirmed this interpretation, and in some, such as Gray v. Logue, 654 A.2d 109 (Pa.Cmwlth.1995), the question of whether designation as a State highway equated with “ownership” by the Commonwealth was not even contested. Various provisions of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §§ 670-101 to -1102, clearly show however that the legislature never intended the act of designation as a State highway to constitute the assumption of “ownership” of the designated street to the exclusion of the ownership of the City.
Section 102(1) of the State Highway Law, 36 P.S. § 670-102(1), provides:
State highway shall mean and include all roads and highways taken over by the Commonwealth as State highways under the provisions of any act of Assembly. Unless clearly so intended, the term shall not include any street in any city, borough or incorporated town, even though the same may have been taken over as a State highway.
Section 541, 36 P.S. § 670-541, relating to restrictions and limitations upon powers and obligations of the State, provides that the designation or taking over of any street in any city of the first or second class is not intended and shall not be construed: “(2) To place upon the department any authority to regulate traffic, parking or the general use by the traveling public of the streets, or sections thereof, taken over by the Commonwealth for maintenance or improvement under the provisions of any act of Assembly_” (Emphasis added.) The emphasized phrase encapsulates the limited purpose of designation.
Section 542, 36 P.S. § 670-542, as initially enacted 1 provided that after the streets *107 designated as State highways were taken over by the Commonwealth, they should be maintained, constructed, reconstructed, resurfaced and repaired at the expense of the Commonwealth: “Provided, however, That nothing in this section shall be construed to place upon the Commonwealth any obligation to repair and maintain the curbing and footways of any such street, or to remove snow or keep streets clean.” This language remains intact in the current version of Section 542, after amendments in 1965 and 1970.
Where the legislature wished to provide for the Commonwealth’s taking of an interest in land in the State Highway Law, it did so expressly and precisely. Section 413, 36 P.S. § 670-413, relating to acquisition of land for unobstructed view, provides:
The department may acquire, by purchase or by the right of eminent domain, a free and unobstructed view down and across such lands located at or near the intersection of any two highways, or a highway and a railroad or railway, or at any curve in any highway, as may be necessary to assure a free and unobstructed view in all directions at such crossings....
Upon any such condemnation, the secretary shall file with the recorder of deeds of the proper county a plan showing the property condemned....
The proceedings for the condemnation of such view over and across such lands, and for the assessment of damages for property taken, injured or destroyed, shall be taken in the same manner as provided for the condemnation of land by the department for road purposes.
[Following condemnation of a view,] the owner of such lands may make every such use thereof as will not interfere with a free and unobstructed view....
Thus acquisition of even the partial interest of a view over land is required to be accomplished through purchase or condemnation and to be recorded with the recorder of deeds. In contrast, “designation” of a road as a State road is accomplished by act of the legislature and is not treated in the State Highway Law as the acquisition of an interest in land. 2
The State Highway Law did provide for responsibility of the Commonwealth to maintain sidewalks in one specifically defined and limited circumstance in Section 416, 36 P.S. § 670-416: '
Whenever it shall appear that any part or portion of a State highway in any township is dangerous to the traveling public, and such danger could be materially reduced or lessened by the construction of a sidewalk, the department may aid the local authorities to lay out and construct a sidewalk along such dangerous portion of State highway.... All sidewalks constructed under the provisions of this section shall be thereafter considered as a part of the State highway system, and shall be reconstructed, maintained and repaired, by the department, and the cost or proportion thereof agreed to be paid by the department shall be paid in the same manner as provided in this act in the case of State highways. (Emphasis added.)
In City of Philadelphia v. Friends Asylum for the Insane, 46 Pa. D. & C. 251 (1942), the City had filed a lien against private property for the use of a contractor who had constructed a sidewalk in front of the property along Roosevelt Boulevard. The trial court stated that the defendant private property owner could take no comfort from the Act of May 7, 1937, P.L. 589, *108 as amended by the Act of July 10, 1941, P.L. 345, under which certain streets in the City were taken over by the Commonwealth. Although under those Acts the streets were to be maintained by the Department of Highways at the expense of the Commonwealth, “there is a proviso that there not be placed upon the Commonwealth any obligation to repair and maintain the curbing and footways. Therefore, we conclude that the duty of maintaining and repairing curbs and foot-ways remains with the owners of the abutting property.” Friends Asylum at 254. The trial court’s reference was to the provisions of former Section 5 of the Act of May 7, 1937, P.L. 589, which was the predecessor in part to Section 542 of the State Highway Law. See nl above.
Thus from the time of the earliest enactment and interpretation of relevant provisions of the State Highway Law and their predecessors, the legislative intent was clear that the act of designation and taking over of a road as a State highway imposed certain enumerated responsibilities upon the Commonwealth in regard to maintenance and improvement. Nothing in the State Highway Law indicated, however, that the act of designation constituted acquiring any form of interest in the “ownership” of the road that was designated. Section 413 affirmatively indicates to the contrary under the maxim expressio unius est exclusio alterius.
Both the general provisions of the State Highway Law and those specifically applicable to cities of the first class show that there never was any conflict between the State Highway Law and the grant of an exception to governmental immunity in Section 8542(b)(7) for “a dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency.” A street that was owned by the City of Philadelphia continued to be owned by the City after it was designated as a State highway.
I disagree also with the majority’s ultimate conclusions regarding Section 8542(b)(3) of the Judicial Code, 42 Pa.C.S. § 8542(b)(3), and Section 8542(b)(7), the real property and sidewalk exceptions to local agency immunity respectively. Section 8542(b)(3), in defining the real property exception, could not be clearer in excluding sidewalks from that definition. There can be no dispute that the reason for this exclusion is that liability relating to sidewalks is dealt -with separately in Section 8542(b)(7). I agree with the majority that the Commonwealth’s liability relating to sidewalks is handled in Section 8522(b)(4) of the Judicial Code, 42 Pa.C.S. § 8522(b)(4), where it is included with Commonwealth real estate and highways. I agree further that the sovereign immunity provision contemplates only primary liability. The different treatment in the two provisions, however, simply reflects the fact that the Commonwealth does not own and operate municipalities. The Commonwealth owns parcels of land, many of which have sidewalks, and the legislature has determined that it should be liable for injuries caused by a dangerous condition of those sidewalks in the same manner as for the rest of its real property. 3
In municipalities such as the City, on the other hand, sidewalks run by both land owned by the municipality and land owned by others. As the majority explains, such other owners typically are charged by ordinance with the primary responsibility to keep their sidewalks in good repair, while the municipality has the distinct duty to ensure that they do so. However, the fact that the Commonwealth’s Lability is solely primary and that a municipality’s may be secondary simply does not lead to a conclusion that a municipality’s liability may never be primary. Contrary to the majority’s *109 position, I believe that there is no question that a municipality is primarily liable for injuries caused by dangerous conditions of sidewalks abutting its own property. The last sentence of Section 8542(b)(7) recognizes the different responsibilities of a municipality and renders it secondarily liable only where some other party is primarily liable.
The Supreme Court in Finn v. City of Philadelphia, 541 Pa. 596 , 664 A.2d 1342 (1995), to which the majority refers, held that Section 8542(b)(7) applied to determine the liability of the City where a plaintiff alleged that she was injured when she fell on an accumulation of grease on a sidewalk in front of a City-owned building. Although the Supreme Court ultimately concluded that the claim was not within the meaning of the phrase “dangerous condition of sidewalks” (emphasis added) as strictly construed, Finn holds, as do many other cases, that the City may be held primarily liable where an injury is shown to be caused by a dangerous condition of a sidewalk along property owned by the City.
Finally, I note that the majority’s discussion of the holding in White v. City of Philadelphia is not correct. The holding there was not that the Commonwealth had somehow acquired ownership of the cart-way of the street next to the sidewalk where the injury occurred but not of the sidewalk itself. Rather, based upon an analysis of the relevant statutes as discussed above, the holding was that the designation of the street involved there as a State highway did not mean that the Commonwealth had acquired “ownership” at all, and therefore it did not remove the sidewalk from the ambit of “sidewalks within the rights-of-way of streets owned by the local agency” in Section 8542(b)(7). In my view, the resolution of the present case is straightforward under the principles set forth in White . It may be accomplished by application of the clearly relevant provisions of the State Highway Law and the sidewalk exception to local agency immunity and without the majority’s conceded violence to the plain meaning of Section 8542(b)(3) and its unconceded violence to Section 8542(b)(7).
. Replacing former Section 5 of the Act of May 7, 1937, P.L. 589, as amended, formerly 36 P.S. § 961-5, repealed by Section 1101 of the State Highway Law, 36 P.S. § 670-1101.
. Although the Secretary was given the power, with the approval of the Governor, to establish the ultimate width and lines of any State highway for future construction by means of a plan recorded with the recorder of deeds, this power could be exercised "before or after the construction, reconstruction or improvement” of the State highway. Section 206 of the State Highway Law, 36 P.S. § 670-206. Such a plan is not a recording of the act of designation as a State highway, which necessarily precedes the development of any such plan.
. See Joint State Government Commission, General Assembly of the Commonwealth of Pennsylvania, Sovereign Immunity 13 (1978), concerning the exception to immunity for Commonwealth real estate, highways and sidewalks: "As to real property generally, this area of waiver is intended to impose liability as it would exist if the owner or lessee were a private person.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9714521. Public record. Not legal advice.