No. 100 April Term, 1979 Appeal from an Order of the Court of Common Pleas of Washington County, Civil Division, No. 454 May Term, 1972.
John F. Ploeger, Pittsburgh, for Lehnig, appellant.
Stephen P. McCloskey, Washington, for Glasgow, appellant.
Richard J. Mills, Pittsburgh, for appellees.
Price, Hester and Cavanaugh, JJ. Cavanaugh, J., files a concurring opinion.
[ 278 Pa. Super. Page 13]
This is an appeal from the Order of the Court of Common Pleas of Washington County granting summary judgment in favor of appellees. The procedural history and facts relevant to the issues on appeal are as follows:
Appellants, Ella Mae Lehnig, administratrix of the estate of Alfred H. Lehnig, and Glasgow, Inc., decedent's employer, brought an action in trespass against appellees, seven employees of the Pennsylvania Department of Transportation. Decedent, a truckdriver, was killed and his employer's truck destroyed when it struck a deteriorated portion of a public highway. Decedent lost control of the truck and it plunged through a guardrail and over an enbankment. Appellants alleged that the roadway had been dangerously deteriorated for a substantial period of time, that inspection would have revealed that fact, and that the accident was caused by
[ 278 Pa. Super. Page 14]
appellees' negligent failure to inspect and repair the road, or to warn the public of its dangerous condition. The Commonwealth of Pennsylvania was not a party to the law suit. The Court of Common Pleas of Washington County granted summary judgment in favor of appellees on the ground that as public employees, they were immune from liability for ordinary negligence in the performance of their official functions. On appeal, we affirmed, and our Supreme Court granted allocatur. The Supreme Court remanded for proceedings consistent with Dubree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978). The Court en banc after argument and upon consideration of the principles set forth in Dubree, sustained the granting of summary judgment in favor of all appellees. Appellants then filed this timely appeal.
Appellants contend the Washington County Court of Common Pleas erred in applying the principles enunciated in Dubree v. Commonwealth of Pennsylvania, supra.
The Supreme Court stated in Dubree, supra:
"In order to discharge his duties effectively, a public servant must be free to exercise his judgment unhampered by the fear of unpredictable liability. Where the nature of the servant's decision or action in question is such that it may not be measured against a predictable standard of care, the possibility of litigation may tend to discourage the making of clear choices. It is in the public interest to avoid such a chilling effect upon the servant's performance of his duties. Where, on the other hand, a standard of care may be defined and applied with relative ease, the public servant is not similarly deterred and the public interest in the protection of the official weakens. Also relevant to the strength of the public interest is the potential impact of the challenged ...