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ERNEST F. GIOVANNITTI v. COMMONWEALTH PENNSYLVANIA (02/22/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 22, 1988.

ERNEST F. GIOVANNITTI, IN HIS OWN RIGHT AND AS EXECUTOR OF THE ESTATE OF BEVERLY S. GIOVANNITTI, DECEASED, AND AS THE PARENT AND NATURAL GUARDIAN OF RHONDA, JENNIFER AND MICHAEL GIOVANNITTI, MINORS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE

Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of Ernest F. Giovannitti, in his own right and as Executor of the Estate of Beverly S. Giovannitti, Deceased, and as the parent and natural guardian of Rhonda, Jennifer and Michael Giovannitti, Minors v. Commonwealth of Pennsylvania, Department of Transportation, No. 325 Civil, 1986.

COUNSEL

Robert W. Barton, Killian & Gephart, for appellant.

Stephen E. Geduldig, Deputy Attorney General, with him, Victor P. Stabile, Deputy Attorney General, and Mark E. Garber, Jr., Chief, Torts Litigation Unit, for appellee.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 113 Pa. Commw. Page 573]

Ernest Giovannitti, in his own right and as Executor of Beverly Giovannitti's estate, appeals a Cumberland County Common Pleas Court order sustaining the Pennsylvania Department of Transportation's (DOT) preliminary objections in the nature of a demurrer and dismissing his complaint. We affirm.

Beverly Giovannitti was killed when Leland Anderson, a licensed Pennsylvania motorist, suffered a heart attack while driving his car. Anderson's vehicle crossed over into the oncoming traffic lanes and struck Mrs. Giovannitti's car. Ten months earlier a physician had advised DOT of Anderson's history of cardiovascular disease and loss of consciousness. DOT took no action to revoke Anderson's license.

Giovannitti instituted a trespass action against DOT, averring that his wife's death was the result of DOT's negligence in failing to inquire into Anderson's fitness or to obtain physical custody of his driver's license. The common pleas court granted DOT's preliminary objections,*fn1 concluding that the averred acts of negligence

[ 113 Pa. Commw. Page 574]

    did not arguably fall within any of the eight statutory exceptions to sovereign immunity found in Section 8522 of the Judicial Code.*fn2

On appeal, Giovannitti argues that the common pleas court erred because a jury could reasonably conclude that: (1) DOT exercises control over operators' licenses and its control extends to a right to recall; and (2) DOT's negligence in failing to act after receiving notice of a physically incompetent driver was the legal cause of Mrs. Giovannitti's death.

However, we hold that these contentions are misplaced because Giovannitti fails to aver facts which, if

[ 113 Pa. Commw. Page 575]

    proven, would fall within an exception to sovereign immunity.

In Walters v. Department of Transportation, 81 Pa. Commonwealth Ct. 478, 474 A.2d 66 (1984), we held that the personal property exception was inapplicable to a complaint alleging DOT's negligent failure to revoke a license plate and registration card. Herein, although DOT may have had a duty to recall Anderson's license,*fn3 this authority to revoke does not involve physical possession or actual control sufficient to bring the license within the ambit of 42 Pa. C. S. § 8522(b)(3). Furthermore, as the Walters Court noted, "the chattels [license plate and registration card] themselves were in no way involved in the chain of causation." Id. at 481, 474 A.2d at 67.

Likewise, the failure to revoke an operator's license does not create a dangerous highway condition within the meaning of 42 Pa. C. S. § 8522(b)(4), Shakoor v. Department of Transportation, 63 Pa. Commonwealth Ct. 571, 574, 440 A.2d 647, 649 (1981). In Shakoor, where the plaintiff alleged DOT's failure to investigate liability insurance coverage and to revoke an operator's license, we held that, although the action averred would constitute negligent policies or activities,*fn4 it does not fit within the dangerous highway condition exception to sovereign immunity. Id. at 574, 440 A.2d at 649.

[ 113 Pa. Commw. Page 576]

Unfortunately, the issue here is not one of legal cause but whether Giovannitti stated a cause of action contemplated under the Judicial Code.

Accordingly, we are constrained to affirm the common pleas court.

Order

The order of the Cumberland County Common Pleas Court, No. 325 Civil 1986 dated April 15, 1986, is affirmed.

Disposition

Affirmed.


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