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JERI AND ANTHONY MISTECKA v. COMMONWEALTH PENNSYLVANIA (10/01/79)

decided: October 1, 1979.

JERI AND ANTHONY MISTECKA, WIFE AND HUSBAND, PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA, DEFENDANT. SHERLEY M. DAVIS ET AL., PLAINTIFFS V. JAMES WILSON, ON BEHALF OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION ET AL., DEFENDANTS



Original jurisdiction in cases of Jeri and Anthony Mistecka, wife and husband v. Commonwealth of Pennsylvania; and Sherley M. Davis and Elsie Davis, her mother v. James Wilson on behalf of the Department of Transportation, and Robert P. Kane on behalf of Commonwealth of Pennsylvania, and New Garden Township and Chester County and Grof and Mayers, Inc.

COUNSEL

Keith S. Edbstein, with him Daniel L. Thistle, and, of counsel, Beasley, Hewson & Casey, for plaintiffs.

Thomas O. Malcolm, with him Malcolm & Riley, for defendant, Chester County.

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

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Craig. President Judge Bowman and Judges Crumlish, Jr. and DiSalle concur in result only. Concurring and Dissenting Opinion by Judge Mencer.

Author: Craig

[ 46 Pa. Commw. Page 269]

Consolidated here for argument and disposition are two trespass cases arising out of similar incidents occurring at the same place on the same date.

In the first case, Jeri and Anthony Mistecka, wife and husband, filed their complaint in trespass against the Commonwealth, to recover, according to their allegations, for injuries suffered September 7, 1975 by the wife plaintiff while traveling in a motor vehicle on State Route 1 under the Bancroft Road Bridge, in

[ 46 Pa. Commw. Page 270]

New Garden Township, Chester County, as a result of a large rock being thrown by unknown assailants from the bridge down upon plaintiff's motor vehicle.

The complaint further avers that at least 26 similar incidents of rock-throwing upon motorists traveling Route 1 had occurred at or near that location and had been reported to the state police during the two years preceding. Plaintiffs also aver that 3 such incidents occurred on the same date within 25 minutes preceding the striking of plaintiffs' car.

The complaint avers negligence on the basis that, despite notice of the rock-throwing incidents averred, the Commonwealth had failed to erect appropriate barriers or screens to protect the traveling public on Route 1, failed to warn the traveling public on Route 1 of the danger, failed to investigate, police and prevent such incidents and otherwise failed to take adequate precautions to protect the motoring public on Route 1 from the danger of rockthrowing. The averments conclude with a description of the injuries and a demand for judgment in an amount in excess of $10,000.00.

The averments of the trespass complaint in the case of Sherley M. Davis and Elsie Davis, her mother, against the Commonwealth and others, are substantially similar, describing injuries to plaintiff Sherley M. Davis on the same date and at the same location. With the exception of the Mistecka complaint's reference to other incidents on the same day, the Davis averments of notice and negligence against the Commonwealth are similar.

In addition, the Davis complaint identifies defendant township and defendant county as the local government jurisdictions within which the site is located. The Davis complaint also names as defendant Grof and Myers, Inc., identifying that corporation as an independent consulting engineer for the Commonwealth

[ 46 Pa. Commw. Page 271]

    with respect to the design of bridges, highways and overpasses.

A separate Davis count avers negligence in design, manufacture, construction, installation and maintenance as an alternative basis for liability.

Although the Davis complaint names James Wilson, Secretary of the Pennsylvania Department of Transportation, and Robert P. Kane, Attorney General of the Commonwealth, as defendants in the caption, those individuals are not identified in the complaint so that none of the averments of negligent conduct appear to be directed toward them.

In both cases, the Commonwealth, by answer and new matter, pleads sovereign immunity as a defense, and that issue has been placed before us by the Commonwealth's motion for judgment on the pleadings in both cases.

In the Davis case, the Commonwealth, by preliminary objections, has also entered a demurrer with respect to the naming of Secretary James Wilson and Attorney General ...


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