overruling in part Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 (1990)
How later courts described this case
- overruling in part Crowell v. City of Philadelphia, 131 Pa.Commonwealth Ct. 418, 570 A.2d 626 (1990)
- concurring opinion of Byer, J.
Written by the judges who cited it.
The opinion
McGINLEY, Judge,
dissenting.
I respectfully dissent.
*200 The majority would reverse our decision in Crowell v. City of Philadelphia, 131 Pa. Commonwealth Ct. 418 , 570 A.2d 626 (1990) insofar as it holds that a government unit can never be held jointly liable with a non-governmental unit. I believe our decision in Crowell was correctly based on the Supreme Court’s decision in Mascaro v. Youth Study Center, 514 Pa. 351 , 523 A.2d 1118 (1987) (that a defect in the land itself must cause the injury and not merely facilitate the injury by the acts of others); to reverse Crowell would effectively misapply Mascaro .
The plurality states that in Mascaro the court reasoned that the criminal conduct of a third party constituted a superseding cause. Plurality Opinion at 56. I disagree. More accurately, the court in Mascaro held “that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself caused the injury, not merely when it facilitates the injury by the acts of others____” (Emphasis in original.) Mascaro, 514 Pa. at 363 , 523 A.2d at 1124 . The Mascaro court did not differentiate between the criminal and noncriminal conduct of third parties. 1 Accordingly, I would not overrule Crowell and would affirm the trial court.
. In Crowell we noted that had the Supreme Court decided Mascaro on the grounds that the criminal conduct of a third party acted as an intervening cause, Crowell could be distinguished because "there is no conduct on the part of Lewis which permits us to conclude that Lewis’ conduct was an intervening cause of the injuries sustained by the Crowells....” 131 Pa.Commonwealth Ct. at 427, 570 A.2d at 631 . In Crowell , we further noted: "Since the Supreme Court rejected an intervening cause analysis in Mascaro , we believe we are precluded from utilizing such an analysis to distinguish the present case from Mascaro. Id.