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MARY FILIPELLI AND GERALDINE DEPROSPO v. COMMONWEALTH PENNSYLVANIA (09/09/82)

decided: September 9, 1982.

MARY FILIPELLI AND GERALDINE DEPROSPO, T/D/B/A QUICK DELI ET AL., APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, TOWNSHIP OF WILKINS AND BOROUGH OF TURTLE CREEK, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Mary Filipelli et al. v. Commonwealth of Pennsylvania, Department of Transportation et al., No. GD 80-16307.

COUNSEL

Henry G. Beamer, with him John A. Metz, Jr., Metz, Cook, Hanna & Kelly, for appellants.

Brian H. Baxter, Deputy Attorney General, for appellee.

President Judge Crumlish and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 68 Pa. Commw. Page 620]

Appellants*fn1 appeal an Allegheny County Common Pleas Court order granting the Commonwealth's motion for judgment on the pleadings. We affirm.

Appellants, property owners abutting a state highway, allege in their amended complaint*fn2 that the Commonwealth

[ 68 Pa. Commw. Page 621]

    negligently installed a culvert causing the state road to wash out. The Commonwealth closed the road for repairs. Appellants have alleged that, due to the closing of this road, they have suffered damages.*fn3

The trial court concluded that appellants had stated a cause of action fitting within one of the eight statutory exceptions to sovereign immunity,*fn4 but had failed to allege recoverable statutory damages.*fn5 That court's grant of the Commonwealth's motion for judgment on the pleadings is affirmed but for a different reason. The action was barred from its inception because it did not meet the statutory exceptions for immunity.

In response to the elimination of sovereign immunity as a defense by our Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), the legislature partially reenacted this doctrine by statute, see 1 Pa. C.S. § 2310, by carving out eight very narrow exceptions to the general immunity rule. The appellants allege that, by closing the road to repair the damage caused by the overflow of the Commonwealth-installed culvert,

[ 68 Pa. Commw. Page 622]

    a "dangerous condition" of Commonwealth ...


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