Verna v. Commonwealth

613 A.2d 174, 149 Pa. Commw. 449, 1992 Pa. Commw. LEXIS 514
CourtCommonwealth Court of Pennsylvania
DecidedJuly 29, 1992
DocketNo. 1891 C.D. 1991
StatusPublished
Cited by1 cases

This text of 613 A.2d 174 (Verna v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Verna v. Commonwealth, 613 A.2d 174, 149 Pa. Commw. 449, 1992 Pa. Commw. LEXIS 514 (Pa. Ct. App. 1992).

Opinion

FRIEDMAN, Judge.

This is an appeal from an order of the Court of Common Pleas of Delaware County granting Delaware County’s motion for summary judgment. We affirm.

John E. Verna was injured in a collision between his motorcycle and an automobile in August 1985. The collision oc[452]*452curred at the intersection of Route 320, also known as Sproul Road, and Paxon Hollow Road in Marple Township, Delaware County. Both roads are state designated highways. The injuries sustained by John Verna in this accident have rendered him incompetent and this suit was brought for him by his father and guardian, George J. Verna, by John E. Verna in his own right and by Joyce Verna, his mother.

On December 7, 1987, a complaint was filed naming the County of Delaware, inter alia, as a defendant and alleging liability on the part of the county for its design, construction and maintenance of Route 320 and Paxon Hollow Road and for its failure to take actions which might have prevented or lessened the accident. The county filed preliminary objections and counts X and XI were ordered stricken. On May 10, 1991, the county filed a motion for summary judgment which the trial court granted. This appeal followed.

Verna argues that summary judgment is not proper because a genuine issue of material fact exists as to whether County Liquid Fuels Tax funds were utilized on the roadways where the accident occurred. The factual issue of whether County Liquid Fuels Tax Fund monies were expended on Route 320 and Paxon Hollow Road is material only if, as a matter of law, such expenditures would bring the highways within the control and jurisdiction of the county and one of the exceptions to governmental immunity would then apply so as to make the county liable for Verna’s injuries.

The county argues that the Pennsylvania Legislature has granted it immunity in most actions for injuries to persons, that none of the exceptions to immunity apply in this case, and that the Liquid Fuels Tax Act does not confer jurisdiction or control over the roadways or traffic control devices which might give rise to one of the exceptions to governmental immunity.

Our scope of review of a trial court grant of summary judgment is limited to a determination of whether the trial court committed an error of law or an abuse of discretion. Bowles v. SEPTA, 135 Pa.Commonwealth Ct. 534, 581 A.2d [453]*453700 (1990). Summary judgment is appropriate when the moving party has established that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035(b). In making this determination, all well-pleaded facts, but not conclusions of law, in the non-moving party’s pleadings must be accepted as true. Prescott v. Philadelphia Housing Authority, 124 Pa.Commonwealth Ct. 124, 555 A.2d 305 (1989).

We must determine whether the trial court committed an error of law or an abuse of discretion in granting the motion for summary judgment. The trial court concluded that:

Delaware County’s receipt and distribution of funds under the Liquid Fuels Tax Act cannot in any manner constitute a basis for finding the County legally responsible for the accident which gave rise to this litigation.

Trial ct. op. at 7.

The issue in this case is whether the county has any duty to users of the state highways under common law or the Liquid Fuels Tax Act and whether breach of such a duty would render the county liable in tort for injuries sustained by Verna under the exceptions to governmental immunity found in Section 8542 of the Judicial Code, 42 Pa.C.S. § 8542. For Verna to succeed in his challenge to summary judgment, both a duty and an applicable exception to governmental immunity must exist and there must be a genuine issue of material fact so that the trial court is precluded from rendering a judgment as a matter of law.

Pursuant to 42 Pa.C.S. § 8541 of the Judicial Code, immunity is the rule for political subdivisions.1 The legislature has also determined that in certain limited situations, the rule of immunity should be waived and that specific exceptions to governmental immunity should apply.2 For the County of [454]*454Delaware to be liable, one of the exceptions to immunity would have to apply and damages would have to be recoverable under common law or a statute creating a cause of action. The only applicable exceptions in the case sub judice are those dealing with streets and with trees, traffic controls and street lighting. For either exception to apply there must have been a dangerous condition which created a reasonably foreseeable risk of the kind of injury which occurred and the local agency must have had notice of the dangerous condition. The county can only be liable for a dangerous condition of streets if it owns the streets or if it has a written contract with the Commonwealth agency which owns the streets to maintain and [455]*455repair the streets. The county can only be liable for a dangerous condition of trees, traffic signs, lights or traffic controls if those items are under its care, custody or control.

The Liquid Fuels Tax Act, Act of May 21,1931, P.L. 149, as amended, 72 P.S. §§ 2611a-2611z, provides for the imposition of a tax on liquid fuels3 and for the deposit of a portion of the taxes collected into the state Liquid Fuels Tax Fund and for the distribution of those monies to counties for deposit in special funds designated as the “County Liquid Fuels Tax Fund.” County Liquid Fuels Tax Fund expenditures are authorized for the

construction, reconstruction, maintenance and repair of roads, highways and bridges, ... and for the acquisition, maintenance, repair and operation of traffic signs and signals, and for the erection and maintenance of stop and go signal lights, blinkers and other like traffic control devices.

Section 10 of the Liquid Fuels Tax Act, 72 P.S. § 2611.

Prior to expenditures by the county for new construction, the state Department of Transportation must approve the plans and no funds can be allocated to political subdivisions within the county without Department of Transportation approval. Id.

According to Verna, if liquid fuels tax funds funnelled through Delaware County were expended in some undefined manner on Route 320 or on Paxon Hollow Road or on traffic control devices, the roads and traffic control devices would come within the care, custody and control of the county and exception (b)(4) would be applicable. This argument ignores the fact that exception (b)(4) does not apply to streets and that exception (b)(6), which does apply to streets, would impose liability on the county for dangerous condition of streets only if the streets were owned by the county or if the county had a written contract to maintain and repair streets [456]*456owned or under the jurisdiction of Commonwealth agencies. Verna does not claim that the county owned the streets where the accident occurred or that the county had a written contract with a Commonwealth agency for the repair and maintenance of those streets. We have previously concluded that “the Commonwealth has exclusive jurisdiction over the control and maintenance of state highways.” Powell v. Wrightstown Township, 76 Pa.Commonwealth Ct.

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Bluebook (online)
613 A.2d 174, 149 Pa. Commw. 449, 1992 Pa. Commw. LEXIS 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verna-v-commonwealth-pacommwct-1992.