Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Michael Janosko and Elizabeth Ann Janosko, his wife v. Pittsburgh National Corporation, William D. Anthony, Administrator DBN, CTA of the Estate of August A. Fartro, Deceased et al. and The Commonwealth of Pennsylvania, The Pennsylvania Department of Transportation et al., No. GD 79-6778.
Paul Bogdon, with him, Edward G. Shoemaker and Joan Shoemaker, Adams, Shoemaker & McSorley, for appellants.
David R. Johnson, Thomson, Rhodes & Cowie, for appellees.
Judges Williams, Jr., Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry.
[ 83 Pa. Commw. Page 637]
This appeal results from an order of the Court of Common Pleas of Allegheny County which granted a motion for summary judgment filed by the defendant-appellee, the Borough of Brentwood (Borough), and accordingly dismissed the cause of action against the Borough filed by appellants, Michael Janosko and Elizabeth Ann Janosko, his wife.
On March 17, 1978, Mr. Janosko was severely injured in an automobile accident when an auto driven by Ms. Barbara Ann McHugh slid on a patch of ice on Route 51 in the Borough, crossed the center line and struck the Janosko automobile. The ice patch was a recurring problem caused by water runoff from private property abutting Route 51, a state highway.
Prior to filing this lawsuit, appellants reached a settlement with Ms. McHugh. Appellants then filed an action in trespass, naming as defendants the Borough and various parties having some relationship with Roman Gardens, Inc., a restaurant from which some of the water runoff originated. Joined as additional defendants were the Commonwealth, Department of Transportation (DOT), Allegheny County
[ 83 Pa. Commw. Page 638]
and various other parties who were alleged to have been additional sources of the water runoff. Before the Borough filed the present motion for summary judgment, the appellants reached a settlement with all of those parties associated in some manner with Roman Gardens, Inc. The trial court granted the Borough's motion for summary judgment, holding that the Borough had no duty to either warn of hazardous conditions on a state highway or to take remedial action with respect to those dangers. This appeal followed.
Appellants first claim that the trial court erred in holding the Borough had no duty with regard to hazards on a state highway. In Medina v. Township of Falls, 71 Pa. Commonwealth Ct. 295, 454 A.2d 674 (1983), an individual was injured when her car struck a pothole on a state highway running through Falls Township. Prior to the accident in question, another individual hit the same pothole and notified the local police. Despite this, we affirmed an order of the trial court granting the Township's motion for summary judgment, "because the Commonwealth has exclusive responsibility for the repair and maintenance of state roads. . . ." Id. at 297, 454 A.2d at 675. Appellants do not challenge our holding in Medina and admit that under most circumstances, the Borough had no duty to either remove or correct a dangerous condition on a state highway. Rather, appellants argue "that the long term and continuing drainage from the adjoining property constituted a known and serious public nuisance within the jurisdiction and boundaries of the Borough, which the Borough was obligated ...