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DONALD MILLER v. GEORGE LELJEDAL ET AL. COMMONWEALTH PENNSYLVANIA (01/26/83)

decided: January 26, 1983.

DONALD MILLER, A MINOR, BY MILDRED MILLER
v.
GEORGE LELJEDAL ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. DONALD MILLER, A MINOR, BY MILDRED MILLER V. GEORGE LELJEDAL ET AL. GEORGE LELJEDAL, APPELLANT



Appeals from the Court of Common Pleas of Bradford County in the case of Donald Miller, a minor by Mildred Miller v. George Leljedal, Benny Benjamin, Mildred Miller v. Pennsylvania Department of Transportation, No. 79-4945.

COUNSEL

David F. Snyder, Deputy Attorney General, with him, Herbert L. Olivieri, Chief, Torts Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellant, Commonwealth of Pennsylvania, Department of Transportation.

W. Marshall Dawsey, Griffin & Dawsey, for appellant, George Leljedal et al.

Joan F. Shullo, with her, Kenneth Levitzky, for appellee, Mildred Miller.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Mencer did not participate in the decision in this case.

Author: Doyle

[ 71 Pa. Commw. Page 373]

This is an appeal by George Leljedal (Appellant) and the Pennsylvania Department of Transportation

[ 71 Pa. Commw. Page 374]

(Department) from a decision and order of the Court of Common Pleas of Bradford County granting Mildred Miller's (Appellee) motion for summary judgment as to a third party complaint filed against her by Appellant. We reverse and remand.

On February 26, 1978, at around 5:30 p.m., Donald Miller, Appellee's minor son, while crossing U.S. Route 220 near Monroeton, Pennsylvania, was struck and severely injured by a car driven by Appellant. Appellee subsequently brought an action in trespass on Donald's behalf against Appellant asserting that his negligence and recklessness caused the accident. Appellant, in turn, brought a third party complaint against Appellee which alleged that she was aware of her son's propensity to play in or near the highway and to cross it repeatedly to visit friends, even in the dusk or dark, and that she was also aware of a snowbank near the driveway of her residence which would obstruct a motorist's view of her child. The complaint thus asserted that Appellee had negligently supervised Donald and she alone was liable for his injuries or, in the alternative, liable for contribution in the event of a determination of joint and several liability. Also joined as a third party by Appellant's complaint was Leonard "Benny" Benjamin, the owner of the house where the Millers resided. The complaint charged him with knowledge of and responsibility for the snowbank, and imputed liability accordingly. In his answer to Appellant's complaint, Benjamin denied responsibility for the snowbank, charged that it was created by the Department, and then instituted a third party complaint in trespass against the Department.

On February 2, 1981, Appellee filed a motion for summary judgment claiming that Appellant's third party complaint against her should be dismissed because a parent's negligent supervision of her child is not actionable under Pennsylvania Law and Appellant

[ 71 Pa. Commw. Page 375]

    had therefore failed to state a cause of action upon which relief could be granted. Following a hearing, the common pleas court ruled that the Pennsylvania Supreme Court's abrogation of the doctrine of parental immunity in Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971), was not absolute, and did not make a parent's negligent supervision of a minor child actionable. The court accordingly granted Appellee's motion. The ...


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