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WILLIAM MANUELLA AND BARBARA MANUELLA v. O. F. SORGENFREI AND T. ROBERT KEALEY ET AL. (09/19/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 19, 1979.

WILLIAM MANUELLA AND BARBARA MANUELLA, HIS WIFE, PLAINTIFFS
v.
O. F. SORGENFREI AND T. ROBERT KEALEY ET AL., DEFENDANTS

Original jurisdiction in case of William Manuella and Barbara Manuella, his wife v. O. F. Sorgenfrei and T. Robert Kealey and Robert D. Hutton and William B. Conway and Robert B. Felsburg, all individually and t/a Modjeski and Masters, Modjeski, Masters and Chase and J. Rich Steers and Commonwealth of Pennsylvania, Department of Transportation.

COUNSEL

Paul Crowley, with him Wilfred F. Lorry, for plaintiffs.

Richard S. Herskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for defendant, Commonwealth.

Joel D. Gusky, with him Bruce D. Lombardo, for defendants, O. F. Sorgenfrei, T. Robert Kealey, Robert D. Hutton, William B. Conway and Robert B. Felsburg.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Mencer.

Author: Mencer

[ 46 Pa. Commw. Page 112]

William and Barbara Manuella filed a complaint in trespass in this Court against the Pennsylvania Department of Transportation (PennDOT), against certain individuals trading as Modjeski, Masters & Chase (MM & C), and against J. Rich Steers (Steers), a general contractor. PennDOT filed an answer and moved for judgment on the pleadings on the basis of sovereign immunity. MM & C filed an answer and, by way of new matter, asserted that PennDOT and Steers were solely liable to plaintiffs or, in the alternative, were liable over to MM & C. PennDOT then filed preliminary objections to MM & C's new matter, again raising sovereign immunity. PennDOT's preliminary objections and its motion for judgment on the pleadings are presently before us for disposition.

The allegations of the complaint may be summarized as follows. PennDOT contracted with MM & C to design, and with Steers to construct, a portion of Interstate 95 in Philadelphia County, on land owned and controlled by PennDOT. Included in the project were the design and construction of support columns for certain sections of the highway. PennDOT and/or Steers contracted with L & R Construction Co. (L &

[ 46 Pa. Commw. Page 113]

R) to install steel bars in these columns. William Manuella, an employee of L & R, was engaged in installing these steel bars when a column collapsed and injured him. The column allegedly collapsed because of PennDOT's negligence in designing or constructing the column, in supervising the design and construction, or in failing to provide necessary safety guidelines. The plaintiffs and MM & C contend that PennDOT may be held liable by virtue of the waiver of sovereign immunity in the Judicial Code, 42 Pa. C.S. § 5110(a)(3), (4).

42 Pa. C.S. § 5110(a)(3) provides that sovereign immunity shall not be a defense as to claims for "[d]amages caused by the care, custody or control of personal property in the possession of Commonwealth agencies. . . ." PennDOT argues that a column which has become permanently attached to the real estate ceases to be personal property and becomes part of the realty. Accepting PennDOT's argument renders 42 Pa. C.S. § 5110(a)(3) inapplicable but renders PennDOT subject to liability under 42 Pa. C.S. § 5110(a)(4). The latter provision subjects the Commonwealth to liability for "[d]amages caused by a dangerous condition of Commonwealth real estate . . . , including Commonwealth-owned real property . . . and highways under the jurisdiction of Commonwealth agencies. . . ." PennDOT's argument that a highway under construction is not a "highway" within the meaning of this provision is irrelevant if, as PennDOT apparently concedes, Commonwealth real estate other than a highway is involved.

Since plaintiffs' claim falls within either subsection (a)(3) or subsection (a)(4) of Section 5110, we must deny PennDOT's motion for judgment on the pleadings and overrule its preliminary objections. As this Court has no original jurisdiction over claims in which sovereign immunity has been waived, see the

[ 46 Pa. Commw. Page 114]

Judicial Code, 42 Pa. C.S. § 761(a)(1)(iii), this case must be transferred to the Court of Common Pleas of Philadelphia County.

Order

And Now, this 19th day of September, 1979, the motion of the Pennsylvania Department of Transportation for judgment on the pleadings is hereby denied, the preliminary objections of said Department to defendants' new matter are hereby overruled, and this case is transferred to the appropriate division of the Court of Common Pleas of Philadelphia County.

Disposition

Motion of Department for judgment on the pleadings denied. Preliminary objections of Department overruled. Case transferred to the Court of Common Pleas of Philadelphia County.

19790919

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