John MSCISZ v. Carl and Mary RUSSELL, et al.
Superior Court of Pennsylvania
December 21, 1984
February 21, 1985
487 A.2d 839
Aрpeal of Carl RUSSELL and Mary Russell. Argued July 11, 1984. Petition for Allowance of Appeal Denied Aug. 9, 1985.
Joseph W. Fullem, Jr., Thomas C. Delorenzo and Pamela B. Gagne, Philadelphia, for Geisler, etc., appellees.
J.S. Lynch, appellee, in propria persona.
John J. Duffy, Philadelphia, for Albright, appellee.
Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
WIEAND, Judge:
John Mscisz sustained injuries when he fell from a motorcycle while riding on a private driveway. He commenced an action against Carl and Mary Russell, alleging that they had caused his fall by failing tо maintain in a safe condition that portion of the driveway which abutted their land. The Russells then joined as additional defendants approximately 55 neighbors whose lots also abutted on the privаte drive-
As a general rule, where an easement is used and enjoyed for the benefit of a dominant estate, it is the owner of the dominant estate who is under obligation to keep the easement in good repair; and he may be liable to third persons if he fails to keep the right of way in a proper state of repair. Reed v. Allegheny County, 330 Pa. 300, 303, 199 A. 187, 189 (1938); 25 Am.Jur.2d Easements and Licenses § 85 (1966).
In Borgel v. Hoffman, 219 Pa.Super. 260, 280 A.2d 608 (1971), this Court held that where multiple owners of property which abutted a private driveway extending between two rows of houses enjoyed an easement over the driveway in common with other abutting owners, each owner, in the absence of an agreement to the contrary, was responsible for the maintenance and repair of only that portion of the driveway abutting or located on his land. Therefore, the owners of land in proximity to, but not abutting upon, the defendant‘s land on which the plaintiff fell and on which the alleged defect had existed owed no duty of repair and could not be held liable to the plaintiff.
In the instant сase, however, an equal duty to maintain the private driveway was imposed upon eaсh abutting owner by a covenant in the deed conveying title to his land. Each deed for land abutting the рrivate driveway contained language similar to the following:
Together with the free and commоn use, right, liberty and privilege of the aforesaid driveway as and for a driveway, passageway and watercourse in common with
the owners, tenants and occupiers of the other lots of ground bounding thereon and entitled to the use thereof at all times hereafter. Subject however, to the proportionate part of the expense of keeping said driveway in good order and repair.
Was this language intended to impose upon each owner of the dominаnt tenement a duty to keep in repair only that portion of the driveway which abutted or lay upon his lot? We think not. To so hold would result in a patchwork arrangement more likely to defeat thаn encourage the expressed intention to maintain the driveway in good repair with costs apportioned among all dominant tenants. If all abutting owners had a duty to contribute proportionately to the total cost of maintaining the driveway in a state of good repair, was it nоt also the intention of the parties that all should share the potential liability to one who hаs been injured because of a failure to keep the driveway in repair?
Whether the intentiоn of the parties, as expressed in their deed covenants, was to create a joint duty оf repair and impose joint liability for failure to keep the driveway in repair is a viable issue. If the language of the covenant is ambiguous, extrinsic evidence may be received to show the manner in which the abutting landowners interpreted the covenant on prior occasions when repairs were needed. Other extrinsic evidence may also be helpful.
On a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, who must be given the bеnefit of all reasonable inferences. Moreover, any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Lehigh Electric Products Co. v. Pennsylvania National Mutual Cas. Ins. Co., 257 Pa.Super. 198, 202-203, 390 A.2d 781, 783 (1978); Schacter v. Albert, 212 Pa.Super. 58, 62, 239 A.2d 841, 843 (1968).
In this case, it seems clear that the summary judgment was improvidently entered. The deed covenants are not supportive of a summary judgment which holds as a matter
Reversed and remanded for further proceedings. Jurisdiction is not retained.
POPOVICH, J., filed a dissenting statement.
POPOVICH, Judge, dissenting:
I dissent. I would affirm on the opiniоn of the trial court.