Detweiler v. Commonwealth

48 Pa. D. & C.5th 168
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedMay 22, 2015
DocketNo. 972 CIVIL 2010
StatusPublished

This text of 48 Pa. D. & C.5th 168 (Detweiler v. Commonwealth) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Detweiler v. Commonwealth, 48 Pa. D. & C.5th 168 (Pa. Super. Ct. 2015).

Opinion

WILLIAMSON, J,

This matter comes before us on an Amended Motion for Summary Judgment filed by the Commonwealth of Pennsylvania, Department of Transportation (hereafter “Defendant”) on March 9, 2015. David G. Detweiler (hereafter “Plaintiff’) filed a Brief in Opposition to Defendant’s Amended Motion for Summary Judgment on April 30, 2015.

Background

Plaintiff alleges that, on July 6, 2009, he was injured as a result of a bicycle crash when he struck a pothole on Route 447, a state designated highway. Plaintiff alleges that Defendant had actual, written notice of the condition of the roadway based upon a Travel Advisory issued by Defendant on May 15, 2009. This Travel Advisory stated that Defendant would be performing pothole patching on Creek Road between US 209 and Pike County Line in Price Township, Monroe County, starting May 20, 2009, and to be completed by May 22, 2009.

On November 19, 2013, Defendant took depositions of Plaintiff and the sole eye witness to the alleged incident, Donald Shenk. Defendant provided the Affidavit of Robert P. Mudrick, the person in charge of Defendant’s maintenance and clerical employees in Monroe County at the time of the alleged incident. Mr. Mudrick has since retired from that position. Plaintiff has taken depositions of Mr. Mudrick, Lewis Morton, Stanley F. Storm, Jr., and Dale G. Evans.

[171]*171According to these depositions, the work vehicles provided to Defendant’s employees were equipped with spray paint, including orange paint. Defendant alleges that someone had circled the pothole in question with orange spray paint prior to the alleged incident. There has been no evidence of any pothole repairs being done on the roadway at issue until after the alleged incident.

Argument

Defendant is arguing that they should be granted Summary Judgment against Plaintiff because the defense of sovereign immunity applies. Summary Judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary Judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83,85 (Pa.Super. 1995).

Summary Judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279,280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. [172]*172Tingling, 700 A.2d 508, 512 (Pa.Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa.Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa.Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

Generally, the Commonwealth is immune from lawsuits for damages resulting from a negligent act because of the defense of sovereign immunity. 42 Pa.C.S.A. § 8522. However, there are certain circumstances which provide for a waiver of the defense of sovereign immunity. 42 Pa.C.S.A. § 8522 delineates these exceptions to sovereign immunity and states, in relevant part:

(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
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[173]*173(5) Potholes and other dangerous conditions. — A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, 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 Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph.

42 Pa.C.S.A. § 8522.

In their Brief in Support of Amended Motion for Summary Judgment, Defendant cites to a case from the Commonwealth Court of Pennsylvania. In Stevens v. Com., Dep’t. of Transp., the court held that evidence of a pothole which existed in the roadway located within a mile and a half of Pennsylvania Department of Transportation’s local maintenance shed, and that the Department repaired the pothole within four or five days of the accident in question, was not sufficient to charge the Department with actual advance written notice of existence of potholes so as to come within exception to sovereign immunity. Stevens v. Com., Dep’t of Transp., 492 A.2d 490 (Pa. Cmwlth. 1985). The court stated that the requirements of the statute are clearly written and create a very narrow exception to the defense of sovereign immunity for damages caused by potholes. Id. at 493. In that case, none of the witnesses testified that the Department was aware of the existence [174]*174of the pothole prior to the accident and the court found that no reasonable person would have been able to resolve the issue of the Department having actual advance written notice of the pothole in order to satisfy the exception to sovereign immunity. Id.

In their respective briefs, both parties cite to another case from the Commonwealth Court of Pennsylvania. In Walthour v. Com., Dep’t of Transp.,

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Related

Thompson Coal Co. v. Pike Coal Co.
412 A.2d 466 (Supreme Court of Pennsylvania, 1979)
Musser v. Vilsmeier Auction Co., Inc.
562 A.2d 279 (Supreme Court of Pennsylvania, 1989)
RITMANICH v. JONNEL ENTER., INC.
280 A.2d 570 (Superior Court of Pennsylvania, 1971)
Phaff v. Gerner
303 A.2d 826 (Supreme Court of Pennsylvania, 1973)
Mattia v. Employers Mutual Companies
440 A.2d 616 (Superior Court of Pennsylvania, 1982)
Cosmas v. Bloomingdales Bros., Inc.
660 A.2d 83 (Superior Court of Pennsylvania, 1995)
Long v. Yingling
700 A.2d 508 (Superior Court of Pennsylvania, 1997)
Walthour v. Commonwealth, Department of Transportation
31 A.3d 762 (Commonwealth Court of Pennsylvania, 2011)
Davis v. Pennzoil Co.
264 A.2d 597 (Supreme Court of Pennsylvania, 1970)
Merling v. Commonwealth
468 A.2d 894 (Commonwealth Court of Pennsylvania, 1983)
Stevens v. Commonwealth, Department of Transportation
492 A.2d 490 (Commonwealth Court of Pennsylvania, 1985)

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Bluebook (online)
48 Pa. D. & C.5th 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/detweiler-v-commonwealth-pactcomplmonroe-2015.