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ERNEST LEASOFF v. COMMONWEALTH PENNSYLVANIA (04/28/81)

decided: April 28, 1981.

ERNEST LEASOFF, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Ernest Leasoff v. Commonwealth of Pennsylvania, Department of Transportation, No. 79-6444-11-2.

COUNSEL

Ernest Leasoff, appellant, for himself.

Gary B. Gilman, Deputy Attorney General, for appellee.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Blatt

[ 59 Pa. Commw. Page 46]

The appellant, Ernest Leasoff, appeals from an order of the Court of Common Pleas of Bucks County which dismissed his action in trespass against the Commonwealth of Pennsylvania, Department of Transportation (DOT), as barred by the applicable two-year statute of limitation of Section 5524(2) of the Judicial Code, 42 Pa. C.S. ยง 5524(2).

The appellant alleged in his complaint that he received serious injuries in a traffic accident in 1968 in Bristol Township, Bucks County, as a result of DOT's negligent failure to repair a pothole on a highway which the Commonwealth is obliged to maintain. Notwithstanding the applicable two-year statute of limitation, he filed his complaint against DOT on June 1, 1979. The lower court sustained DOT's motion for judgment on the pleadings.

The appellant contends here that the Supreme Court's retroactive abrogation of the governmental defense of sovereign immunity in 1978*fn1 revived his cause of action against DOT. In particular, he claims that the Commonwealth's prior immunity from action in trespass is analogous to situations in which a tortfeasor conceals his victim's cause of action, thus toll-ling the statute of limitation until the cause of action

[ 59 Pa. Commw. Page 47]

    is discovered. See e.g., Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964).

We believe that Section 5(d) of Act 152*fn2 expressly manifests the Legislature's intent to maintain the applicable statute of limitation in cases in which the Legislature has waived sovereign immunity, for it provides that:

Nothing contained in this act shall be construed to revive any action in which the applicable statute of limitation has run or in which a compromise settlement was reached and a release obtained, or in which final order dismissing the action against the Commonwealth or an agency of the Commonwealth government has been entered, no appeal has been taken, and the time for appeal has expired.

We further believe that this construction of the applicable statute of limitation here provided is consistent with case law and with the ...


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