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SUSAN A. CRESSMAN v. COMMONWEALTH PENNSYLVANIA (03/10/88)

decided: March 10, 1988.

SUSAN A. CRESSMAN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND L. CHRISTINE STAFFORD, APPELLEES



Appeal from the Order of the Court of Common Pleas of Tioga County, in the case of Susan A. Cressman v. Commonwealth of Pennsylvania, Department of Transportation v. L. Christine Stafford, No. 483 Civil Division, 1985.

COUNSEL

John Kocsis, Dowd and Kocsis, for appellant.

Stephen E. Geduldig, Deputy Attorney General, with him, Victor P. Stabile, Deputy Attorney General, Mark E. Garber, Jr., Chief, Office of Attorney General, for appellees.

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

Author: Barry

[ 114 Pa. Commw. Page 349]

Appellant Susan A. Cressman appeals an order of the Court of Common Pleas of Tioga County which denied her motion to remove a compulsory non-suit in favor of the Commonwealth's Department of Transportation (DOT).

Appellant was involved in a two car accident at approximately 7:45 A.M. on January 8, 1985. According to

[ 114 Pa. Commw. Page 350]

    testimony she gave at a pretrial deposition, Route 328, a Commonwealth highway, was snow covered as she was driving to work. Two to four inches of snow had fallen in the last seven to eight hours. When she noticed an automobile driven by additional defendant Christine Stafford approaching her from the opposite direction, appellant moved a little to the right when her front wheel hit a pothole, causing her car to slide into the path of the oncoming Stafford vehicle.

Appellant subsequently filed suit against DOT which then joined Stafford as an additional defendant. Prior to trial, the court granted partial summary judgment in DOT's favor, holding that the pothole exception to immunity contained in 42 Pa. C. S. ยง 8522(b)(5) did not impose liability on DOT because the appellant was unable to prove that DOT had prior written notice of the pothole. After all parties agreed to proceed non-jury, DOT filed a motion in limine seeking to preclude appellant from mentioning the pothole at trial and from introducing a certain document in DOT's files. Both requests were granted.

When trial commenced, appellant testified and also called Stafford as on cross. At the conclusion of appellant's case, the trial court entered a non-suit as to both defendants. Appellant filed a motion to remove the non-suit which the trial court denied. This appeal followed.

Appellant first argues that written notice to DOT of the pothole was not required. Section 8522(b)(5) provides that DOT may be liable for 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 Commonwealth agency had actual written notice of the ...


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