Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Clark A. Merling, Jr., and Marilyn L. Merling, his wife v. Commonwealth of Pennsylvania and Pennsylvania Department of Transportation, No. GD 80-00968.
Frank J. Micale, Deputy Attorney General, with him Herbert L. Olivieri, Chief, Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellant.
Jay Harris Feldstein, Feldstein, Grinberg, Stein & McKee, for appellees.
Neil J. Rovner, for Amicus Curiae, Pennsylvania Trial Lawyers Association.
Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Rogers.
[ 79 Pa. Commw. Page 123]
The Pennsylvania Department of Transportation (DOT) appeals from a judgment in the amount of $111,205.14 entered against it and in favor of Clark Merling, Jr., in the Court of Common Pleas of Allegheny County in Merling's suit for personal injuries suffered in an automobile accident on a state highway.
Mr. Merling was injured when, in attempting to avoid colliding with a disabled truck blocking his lane of travel,*fn1 he drove his vehicle onto the berm of the road. The berm gave way and Merling's vehicle tumbled into a ditch.
Merling's contention at trial was that DOT was negligent in the matter of the maintenance and repair of the state highway, because the truck which blocked the highway had been disabled in an encounter with a pothole, the berm onto which he drove was unstable and the guardrails at the roadside were in a state of collapse. The jury returned a verdict against DOT in the amount of $150,000 which the court reduced to $90,000 because the jury found that Merling was contributorily negligent to the extent of 40 percent. The court awarded Merling delay damages pursuant to Pa. R.C.P. No. 238 in the amount of $18,320.55. DOT's motion for a new trial and judgment n.o.v. were overruled, the judgment was entered and this appeal followed.
[ 79 Pa. Commw. Page 124]
The Commonwealth of Pennsylvania is responsible for the maintenance and repair of all roads and highways under its jurisdiction. Section 407 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-407; Section 2002 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 512. By Section 8522(b)(5) of the Judicial Code, 42 Pa. C.S. § 8522(b)(5), the Commonwealth has waived the defense of sovereign immunity with respect to:
(5) Potholes and other dangerous conditions. -- A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. . . .
DOT points to four instances of alleged error in the trial which it asserts requires that the ...