concurring and dissenting.
While I join with the majority holding that the utility exception to immunity does not apply in this case, I respectively dissent to that portion of the opinion that properly holds, based on our decisions in Sherman v. City of Philadelphia, 745 A.2d 95, (Pa.Cmwlth.2000) and Gray v. Logue, 654 A.2d 109 (Pa.Cmwlth.), petition for allowance of appeal denied, 541 Pa. 628, 661 A.2d 875 (1995), that the sidewalk exception1 to governmental immunity does not apply because the sidewalk in question abuts a state-highway in a city of the First Class (Philadelphia). I respectfully dissent because I believe those cases were incorrectly decided.
Those decisions ignore2 that when the Commonwealth takes over the vehicular-traveled portions of a dedicated right-of-way, it does not take over the entire “right-of-way.” A street is composed of two distinct portions: the cartway for vehicles and the sidewalk for pedestrians. Mercantile Library v. Fidelity Trust Co., 235 Pa. 5, 83 A. 592 (1912). When a local road in Philadelphia is taken as a state highway, the Commonwealth only takes over the responsibility for the cartway,3 leaving ownership of the sidewalk portion of the street right-of-way in the hands of the local municipality.
Because, at the very least, a sidewalk is part of the “street” right-of-way and remains “owned” by Philadelphia, based on the plain language of the exception, for it is secondarily liable for defects in the sidewalk, I would hold that the sidewalk exception applies. For that reason and the reasons expressed in Judge Smith’s Concurring and Dissenting Opinion in Sher*1121man and my Dissenting Opinion in Gray, I would reverse the trial court’s’ decision granting summary judgement.
Accordingly I dissent.
.The sidewalk exception to governmental immunity applies when an injury is caused by: A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition ... When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable. (Emphasis added.) 42 Pa.C.S. § 8542(b)(7).
. Although Sherman states: "[Rjather than laboring through an analysis as to the' true definition of what constitutes a ‘street’....”, Id., 745 A.2d at 105, such an analysis needs to be labored over because it is the only way to determine if the “right-of-way” at issue is owned by the local agency.
. While not needed to address this issue, the question that still needs to be resolved is when the Commonwealth takes over a local road, it is only taking over maintenance responsibilities or is assuming "ownership” of the cartway.