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COMMONWEALTH PENNSYLVANIA v. PAUL JOSEPH POPOVICH (06/09/88)

decided: June 9, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
PAUL JOSEPH POPOVICH, TO THE USE OF AETNA CASUALTY AND SURETY COMPANY AND AMERICAN STATES INSURANCE COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Washington County, in the case of Paul Joseph Popovich, to the use of Aetna Casualty and Surety Company and American States Insurance Company v. Commonwealth of Pennsylvania, Department of Transportation, No. 353 August 1985.

COUNSEL

Brian H. Baxter, Senior Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellant.

Louis C. Long, with him, Louis B. Loughren and Gregory F. Buckley, Meyer, Darragh, Buckler, Bebenek & Eck, for appellees.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 117 Pa. Commw. Page 15]

This matter comes before us on appeal of an interlocutory order of the Washington County Court of Common Pleas. On February 2, 1987, the parties filed a Joint Petition for Review from the trial court's order of December 11, 1986, denying a motion for summary judgment brought by the Pennsylvania Department of Transportation (DOT). Prior to filing the joint petition, DOT had filed a motion with the trial court asking it to certify the interlocutory order for appeal pursuant to Section 702(b) of the Judicial Code, 42 Pa. C. S. ยง 702(b). The trial court denied the motion. By order dated February 11, 1987, we found that the issue raised in the Joint Petition for Review involved a controlling question of law which would have a significant impact upon litigation in this Commonwealth. We therefore granted the petition, staying all proceedings in the trial court until the resolution of the summary judgment issue.

On July 4, 1983, Joseph Popovich, age 19, was operating his father's vehicle on Route 19, in Peters Township, Washington County, Pennsylvania. Shari Ann Balach, age 19, Gerald M. Carter II, age 19, and Caroline Reich, age 17, were all passengers in the vehicle. Popovich's vehicle struck a guardrail and crashed into a bridge abutment, killing Balach and injuring Carter and Reich. Shortly after the accident it was determined that Popovich had a blood alcohol level of .192, which is above the legal level establishing intoxication. Popovich

[ 117 Pa. Commw. Page 16]

    subsequently pled guilty to involuntary manslaughter in the death of Balach.

Actions were commenced against Popovich on behalf of Balach's estate and by Carter. Popovich joined DOT as an additional defendant in these actions, alleging that DOT was negligent in the erection and maintenance of the guardrails. Popovich's insurance carriers, Aetna Casualty and Surety Company (Aetna) and American States Insurance Company (American), settled the actions as well as Reich's claim which never reached the litigation stage. Aetna and American then commenced the instant action for contribution against DOT.

For purposes of its motion for summary judgment, DOT admitted it was negligent. By order dated March 2, 1985, the trial court held that Popovich's actions in connection with the accident were reckless.

On appeal, DOT contends that since its liability is based on negligence, it cannot be held responsible for contribution by a tortfeasor whose liability is based on recklessness. DOT incorrectly characterizes the action as one in which a reckless plaintiff is seeking to recover damages from a negligent defendant. DOT maintains that Krivijanski v. Union Railroad Co., 357 Pa. Superior Ct. 196, 515 A.2d 933 (1986), is therefore dispositive of the issue. In Krivijanski, the Superior Court held that where the defendant's conduct is wanton and willful and the plaintiff's negligence is simple or ordinary, the ...


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