Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Yvonne Edwards v. Commonwealth of Pennsylvania, Department of Transportation, Township of Indiana, Honeywill and Company and Dingbats of Pittsburgh, Inc., No. GD 85-6222.
Eugene G. Berry, Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellant.
Alan H. Perer, with him, Nelson B. Gaugler, Swensen & Perer, for appellee, Honeywill and Company.
Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge Doyle.
[ 119 Pa. Commw. Page 117]
The Pennsylvania Department of Transportation (DOT) appeals an order of the Allegheny County Court
[ 119 Pa. Commw. Page 118]
of Common Pleas granting summary judgment to Honeywill and Company (Honeywill).
This matter stems from a single vehicle accident which occurred August 8, 1984, on Pennsylvania Route 910 in Allegheny County at approximately 2:00 a.m. At that time Yvonne Edwards, who had become intoxicated while drinking at a bar called Dingbats, drove her automobile around a curve and over an embankment at a point at which there was no guiderail. Earlier in the year, DOT had erected a 20 m.p.h. advisory speed limit sign in the area as well as signs warning of the curve.*fn1
At the time of the accident, Honeywill was under contract with DOT to repair or replace guiderail in Beaver and Allegheny Counties, including certain stretches along Route 910. In fact, on the day prior to the accident, Honeywill was working in the vicinity of the accident site but had not yet reached the point where Ms. Edward's vehicle left the road. Honeywill did reach the accident site and erected*fn2 guiderail there later on the day of the accident.
Ms. Edwards was twenty-four years old at the time her automobile went over the embankment on Route 910 and is now a paraplegic as a result of the accident. She brought an action in the trial court against Dingbats for serving her alcoholic beverages while she was visibly intoxicated and against DOT and Honeywill for failing to erect guiderail at the point where the accident occurred.*fn3 DOT and Dingbats subsequently filed cross-claims
[ 119 Pa. Commw. Page 119]
against Honeywill. The Complaint, and both Dingbats and DOT's New Matter filed pursuant to Pa. R.C.P. 2252(d), allege inter alia, that Honeywill was negligent in failing to promptly construct guiderail in the area of the accident and in failing to warn motorists that there was no guiderail in the area when it was in the process of being installed at the time of the accident.
In granting Honeywill's motion for summary judgment as to the original complaint and the cross claims, the trial court held that Honeywill had no duty to place traffic control or warning devices at the scene of the accident as it had not yet begun to work at that site. On appeal to this Court, DOT contends that the trial court erred in granting summary judgment as Honeywill had a contractual duty to safeguard the public and failed to place any warning devices in the area despite the fact that it had been working the previous day in the vicinity of the accident site. DOT suggests that Honeywill could have erected lighting devices, signs, barricades, or drums to warn and protect motorists from the potential hazard it was engaged to eliminate.
Honeywill entered into two contracts with DOT for the repair and replacement of damaged guiderail in Allegheny and Beaver Counties. Work commenced under the first contract in September of 1983, when DOT's project coordinator and Honeywill's superintendent compiled a seventeen page list designating work to be performed on various legislative routes. However, funding ran out before all work on this list could be completed. Additional funds were allocated and by a contract dated July 26, 1984, the remaining work was to be completed. On ...