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TIMOTHY J. KLINE ET AL. v. PENNSYLVANIA MINES CORPORATION ET AL. (09/23/88)

decided: September 23, 1988.

TIMOTHY J. KLINE ET AL., APPELLANTS
v.
PENNSYLVANIA MINES CORPORATION ET AL., APPELLEES. FRANCES L. DEPTO ET AL., APPELLANTS V. PENNSYLVANIA MINES CORPORATION ET AL., APPELLEES



Appeals from the order of the Court of Common Pleas of Indiana County, in the case of Frances L. Depto, Administratrix of the Estate of Walter S. Depto, deceased, on behalf of the next of kin of Walter S. Depto, deceased, and Frances L. Depto, Administratrix of the Estate of Walter S. Depto, deceased, on behalf of the Estate of Walter S. Depto, deceased, and Deborah A. Miller, Administratrix of the Estate of Gary L. Miller, deceased, on behalf of the next of kin of Gary L. Miller, deceased, and Deborah A. Miller, Administratrix of the Estate of Gary L. Miller, deceased, on behalf of the Estate of Gary L. Miller, deceased, and Minnie F. Parzatka, Administratrix of the Estate of Stephen M. Parzatka, deceased, on behalf of the next of kin of Stephen M. Parzatka, deceased, and Minnie F. Parzatka, Administratrix of the Estate of Stephen M. Parzatka, deceased, on behalf of the Estate of Stephen M. Parzatka, deceased v. Pennsylvania Mines Corporation, a corporation et al., No. 189 C.D. 1986 and in the case of Timothy J. Kline and Linda Kline, husband and wife, and James Nadolsky and Brenda Lee Nadolsky, husband and wife v. Pennsylvania Mines Corporation, a corporation et al., No. 204 C.D. 1986, dated December 9, 1986.

COUNSEL

Michael A. Sossong, with him, Thomas J. Sibert, Smorto, Persio, Zadzilko & Sibert, for appellants.

Eugene G. Berry, Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, LeRoy S. Zimmerman, Attorney General, and Louis C. Long, for appellees.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 120 Pa. Commw. Page 9]

We here consider the appeal of an order of the Court of Common Pleas of Indiana County which granted judgment on the pleadings in favor of the Commonwealth of Pennsylvania, Department of Environmental Resources (Department) and dismissed the Department from certain actions for personal injury and wrongful death instituted by persons (Appellants) involved in a mine explosion. Appellants in the instant matter are Timothy J. and Linda Kline, James and Brenda Lee Nadolsky, and the Administratrix of the Estates of Frances L. Depto, Gary L. Miller, and Stephen M. Parzatka. We must now determine whether allegations of the Department's purported breach of a statutory duty to insure mine safety, and its alleged failure to enforce regulations related thereto, render it liable in tort for injuries sustained by mine employees under the exceptions to sovereign immunity found in Section 8522 of the Judicial Code, 42 Pa. C.S. § 8522.

In ruling on a motion for judgment on the pleadings, we must limit our review of the facts to those appearing in the pleadings themselves, keeping in mind that the moving party admits the truth of all allegations of his adversary and the untruth of his own allegations that have been denied. Council 13, A.F.S.C.M.E. v. Commonwealth, 108 Pa. Commonwealth Ct. 155, 529 A.2d 1143 (1987). Judgment on the pleadings should be entered only when the case is free from doubt and trial would be a fruitless exercise. Id.

The pleadings in the instant matter allege that the mine explosion which occurred on February 16, 1984, resulted from the accumulation of methane gas sparked by the ignition source of a battery-powered jeep locomotive

[ 120 Pa. Commw. Page 10]

    tractor used for the transport of personnel. Appellants directed suit against not only the Department but also their employer, the Pennsylvania Mines Corporation, and the National Mine Service Company, the manufacturer and distributor of the tractor allegedly involved in the explosion.

As to the Department, the gravamen of appellants' allegations concerned its purported failure to perform its statutory obligation of insuring mine safety. According to appellants, this duty is found in Sections 101-706 of the Pennsylvania Bituminous Coal Mine Act, Act of July 17, 1961, as amended, P.L. 659, 52 P.S. §§ 701-101 -- 701-706, and the regulations enacted thereunder. Specifically, appellants averred that the Department failed to adequately examine and inspect the mine itself, and the ventilation, roof and drainage systems; failed to keep accurate records of inspections; failed to close the mine despite knowledge that it posed an immediate danger; and employed inspectors who failed to make the required inspections of the ventilation systems.

The trial court granted the Department's motion for judgment on the pleadings on the basis that appellants had failed to allege circumstances falling within the exception to sovereign immunity pertaining to the care, custody and control of real property. See 42 Pa. C.S. § 8522(b)(3). Emphasizing that the Department did not own either the mine or the jeep which allegedly caused the explosion, the trial court rejected appellants' contention that the Department's regulatory and enforcement powers were tantamount to a constructive holding of such property. This appeal followed.

Section 8522(b)(3) provides for an exception to the general grant of sovereign immunity for the "care[,] custody or control of personal property in the possession or control of ...


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