Appeal from the order of the Court of Common Pleas of Armstrong County, in cases of Donna J. Snyder v. Kenneth C. Harmon et al. v. William J. Dombrowski et al., No. 1982-1605; Susan R. Fleming v. Kenneth C. Harmon et al. v. William J. Dombrowski et al., No. 1982-1606, and Mitchell R. Johnson, an incompetent, by Elizabeth G. Johnson, his guardian v. Kenneth C. Harmon et al. v. William J. Dombrowski et al., No. 1982-1607, dated July 22, 1985.
Nicholas F. Lorenzo, Jr., for appellants, Mitchell R. Johnson, an incompetent, Susan R. Fleming and Donna K. Snyder.
Robert A. Weinheimer, with him, Arthur J. Murphy, Jr., Arthur J. Murphy, Jr. & Associates, P.C., for appellees, William J. Dombrowski and Kathleen A. Dombrowski, his wife, individually and trading and doing business as Sky View, a/k/a/ Sky View Lounge.
J. Elise Tourek, Deputy Attorney General, with her, Frank J. Micale, Sr., Deputy Attorney General, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellees, Office of Attorney General, Departments of Transportation and Environmental Resources.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.
[ 102 Pa. Commw. Page 521]
Donna K. Snyder, Susan R. Fleming and Mitchell R. Johnson (Appellants) appeal from an order of the Court of Common Pleas of Armstrong County granting summary judgment to Appellees Department of Transportation (DOT) and Department of Environmental Resources (DER) on the ground that Appellants' cause of action against these parties did not fall within any of the exceptions to sovereign immunity listed in Section 8522(b) of the Judicial Code (Code), 42 Pa. C.S. § 8522(b). We affirm in part, reverse in part and remand this case for further proceedings not inconsistent with this opinion.
[ 102 Pa. Commw. Page 522]
The facts as alleged indicate that alongside Legislative Route 33060 (L.R. 33060) in Oliver Township, Jefferson County, Pennsylvania, is a piece of property owned by Bruce Poole. Just prior to or during 1973, Poole entered into a lease with the Harmon Mining Company (Harmon), allowing Harmon to operate a strip mine on the property. In order to fully exploit the coal seams located on the Poole property, Harmon needed to mine closer to the roadway. In 1973, Harmon sought a variance from the DER allowing it to mine within 100 feet of L.R. 33060.*fn1 DER granted the variance, but imposed some conditions upon Harmon. Since there was an 80 foot vertical drop from the top of the "highwall" (the wall of the mine) which was approximately level with the roadbed of L.R. 33060, to the bottom of the strip mine, DER required Harmon to put an earthen embankment approximately four feet high on top of the mine highwall where it bordered L.R. 33060. This was required in order to prevent cars from driving off L.R. 33060 and into the pit.
After 1974, when Harmon commenced strip mining on that portion of the Poole property, the earthen embankment moved progressively closer to L.R. 33060. By 1980, the embankment even encroached at some points along the highway's right-of-way. This earthen embankment in 1980 was six to seven feet wide and 3.7 feet high and composed of loose dirt, rock and shale. The embankment appeared to be a small upward slope from L.R. 33060, and gave no indication that it was at the top of a strip mine highwall. The DER never required Harmon to post fences along the embankment before the accident involved in this case took place.
[ 102 Pa. Commw. Page 523]
During the late evening hours of November 1, 1980 and early morning hours of November 2, 1980, the three Appellants were drinking in the Sky View Lounge on Route 36 in Punxsutawney, Pennsylvania. Also present in the Sky View with Appellants were Joyce Van Horn and Jerry Barrett. The Appellants, Van Horn and Barrett decided to leave the Sky View Lounge around 2:30 a.m. on November 2. Outside of the bar they met William Schaffer, and the six of them decided to take Barrett's car to some undisclosed location.
The Barrett vehicle drove along L.R. 33060 until one of the passengers mentioned that he had to relieve himself. Barrett stopped the car on the berm of L.R. 33060, directly adjacent to the Harmon embankment. Shortly thereafter, a large four wheel drive vehicle driven by defendant Gary Gruver pulled onto the berm in front of the Barrett vehicle and then proceeded to drive, in reverse, at a high rate of speed, toward the Barrett vehicle. Appellant Johnson, who was apparently out of the Barrett vehicle, scrambled up the embankment in an attempt to avoid being hit by the Gruver vehicle, and fell to the bottom of the strip mine. He was left a paraplegic by the fall. The sudden appearance of the Gruver vehicle also caused the female Appellants and Van Horn to exit the Barrett vehicle. Gruver then drove behind the Barrett vehicle on the berm and then drove forward towards the Barrett vehicle and the women on the berm. The women scrambled up the embankment and fell into the strip mine. Snyder and Fleming sustained serious injuries and Van Horn was killed. The ...