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SISTER PAULINE STEVENS v. COMMONWEALTH PENNSYLVANIA (05/17/85)

decided: May 17, 1985.

SISTER PAULINE STEVENS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE. WESLEY B. COMBS V. ROMAN CATHOLIC DIOCESE OF PITTSBURGH, BENEDICTINE SISTERS OF PITTSBURGH AND ROSEMARY A. STEVENS, APPELLANTS V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Allegheny County in the case of Wesley B. Combs v. Roman Catholic Diocese of Pittsburgh, Benedictine Sisters of Pittsburgh and Rosemary A. Stevens v. Commonwealth of Pennsylvania, No. G.D. 81-3298, and in the case of Sister Pauline Stevens v. Pennsylvania Department of Transportation, No. G.D. 81-4898.

COUNSEL

Louis C. Long, with him, P. Brennan Hart, Meyer, Darragh, Buckler, Bebenek & Eck, for appellants.

Frank J. Micale, Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellees.

Judges MacPhail and Blatt and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 89 Pa. Commw. Page 311]

Sister Pauline Stevens (Rosemary A. Stevens), the Roman Catholic Diocese of Pittsburgh, and the Benedictine Sisters of Pittsburgh (hereinafter referred to collectively as Appellants) appeal here an order of the Court of Common Pleas of Allegheny County which granted motion of the Pennsylvania Department of Transportation (PennDOT) for a compulsory non-suit as to it at the close of Appellants' evidence at trial.*fn1

The claims against PennDOT arose out of a vehicle accident which occurred on U.S. Route 22 in West-moreland County on March 3, 1979, when Sister Stevens, operating a 1976 Dodge owned by the Benedictine Sisters, traveling in an easterly direction on Route 22, lost control of the vehicle which swerved into the oncoming lane of traffic and collided with a 1976 Volkswagen operated by one Wesley B. Combs which was headed in a westerly direction. Sister Stevens contends that she lost control of her vehicle after it had struck a large pothole which existed in the roadway.

Combs brought suit against the Diocese, the Benedictine Sisters and Sister Stevens for injuries he received as a result of the accident. The defendants in that suit joined PennDOT as an additional defendant contending that PennDOT's alleged negligent maintenance of the roadway was the primary cause of the accident. Sister Stevens sued PennDOT for injuries

[ 89 Pa. Commw. Page 312]

    which she received as a result of the accident. The two cases were consolidated for trial. Shortly before trial, Combs settled with the appellants and the trial was solely between appellants and PennDOT.*fn2

PennDOT, having raised the defense of sovereign immunity in its pleadings, moved at the close of Appellants' evidence, for a compulsory non-suit, which motion was granted by the common pleas court, which held that Appellants failed to present sufficient evidence that they came within one of the eight exceptions to sovereign immunity set forth in Section 8522 of the Judicial Code, 42 Pa. C.S. ยง 8522. Appellants moved to remove the non-suit. When the common pleas court denied Appellants' motion to remove the compulsory non-suit, timely appeals were taken to this Court.*fn3

The sole issue presented by Appellants in this appeal is whether there was sufficient evidence presented to establish the kind of notice to PennDOT of the allegedly dangerous condition caused by the pothole as to meet the statutory proof requirements for an exception to the sovereign immunity defense. We are aware, of course, that in reviewing a compulsory non-suit, the plaintiffs are to be given the benefit of all favorable testimony and every favorable inference of fact arising therefrom; and all conflicts in the evidence are to be resolved in the plaintiffs' favor. Finnin v. Neubert, 378 Pa. 40, 41-42, 105 A.2d 77 (1954); Marlowe v. Lehigh Township, 64 Pa. Commonwealth Ct. 587, 441 A.2d 497 (1982). A ...


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