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

COMMONWEALTH COURT OF PENNSYLVANIA


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 real estate resulted.

42 Pa. C.S. § 8522 provides exceptions to sovereign immunity:

(b) Acts which may impose liability. -- The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

(4) Commonwealth real estate, highways and sidewalks. -- A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).

We hold that the legislature never intended for these exceptions to apply in this situation. 1 Pa. C.S. § 1921. Had appellants sustained property damage because of the initial overflow, rather than the closing of the roadway for repair, the complaint would have been well founded. 42 Pa. C.S. § 8522(4). See Steckley v. Department of Transportation, 46 Pa. Commonwealth Ct. 367, 407 A.2d 79 (1979); Lutzko v. Mikris, Inc., 48 Pa. Commonwealth Ct. 75, 410 A.2d 370 (1979).

In Lazzari Motors, Inc. v. Department of Transportation, 63 Pa. Commonwealth Ct. 339, 437 A.2d 1332 (1981), we affirmed on the basis of the trial court's

[ 68 Pa. Commw. Page 623]

    opinion.*fn6 In Lazzari the plaintiffs filed an action against the Commonwealth alleging that they had suffered damages to their business as a result of the closing of a bridge. The plaintiffs brought this action under § 8522(4), alleging that the Commonwealth's negligence in maintaining the bridge resulted in a "dangerous condition" which caused them damages. The trial court disagreed, stating:

42 Pa. C.S.A. § 5110(a)(4)*fn7 is not applicable since it was not the dangerous condition of the highway which resulted in damage. Damages, as alleged by plaintiff, did not arise from a dangerous condition but from the closing of the bridge. (Emphasis added.)

Filipelli v. Department of Transportation, Allegheny County Court of Common Pleas, No. G.D. 80-16307 (filed April 6, 1981). This reasoning is equally applicable.*fn8

Affirmed.

Order

The order of the Allegheny County Common Pleas Court, No. G.D. 80-16307, dated March 23, 1981, is affirmed.

Disposition

Affirmed.


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