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PATRICIA A. BRADLEY v. PENNSYLVANIA TURNPIKE COMMISSION AND DENISE UCCI (11/10/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 10, 1988.

PATRICIA A. BRADLEY, APPELLANT
v.
PENNSYLVANIA TURNPIKE COMMISSION AND DENISE UCCI, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Patricia A. Bradley v. Pennsylvania Turnpike Commission and Denise Ucci, March Term, No. 5348-1986.

COUNSEL

Lee Albert, with him, Bernard M. Gross, and Ilissa Zimmerman, Gross, Sklar & Metzger, P.C., for appellant.

Peter J. Weber, with him, Lowell A. Reed, Jr., and Gerhard P. Dietrich, Rawle & Henderson, for appellees.

Judge Smith, and Senior Judges Kalish and Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge MacPhail did not participate in the decision in this case.

Author: Narick

[ 121 Pa. Commw. Page 52]

Patricia A. Bradley (Appellant) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) which granted a demurrer in favor of the Pennsylvania Turnpike Commission (Commission) and dismissed Appellant's complaint on the basis that the Commission was immune from suit pursuant to 42 Pa. C.S. § 8521 (sovereign immunity). We affirm.

On March 26, 1986, Appellant filed a complaint in trespass against the Commission for injuries she allegedly sustained as a passenger in a motor vehicle which was struck by a deer on the turnpike on October 27, 1985. On April 23, 1986, the Commission filed preliminary objections raising two issues: 1) whether venue was proper in Philadelphia,*fn1 and 2) whether a demurrer to

[ 121 Pa. Commw. Page 53]

    the complaint should be sustained on the basis of sovereign immunity. The trial court determined that the Commission was entitled to immunity and that Appellant's claim did not fall within the eight exceptions to immunity under 42 Pa. C.S. § 8522(b).*fn2 On appeal, Appellant argues that the Commission is an independent corporation excluded from the protection of sovereign immunity and that a cause of action in negligence lies against the Commission for a dangerous condition on the highway created by the entry of animals. In the alternative, Appellant argues that the Commission created and maintained a dangerous condition as contemplated by the exceptions to the immunity statute. We disagree.

In an appeal from an order sustaining preliminary objections in the nature of a demurrer, we are constrained to examine only the well-pleaded facts of the complaint; a demurrer admits those facts and any inferences reasonably deducible therefrom. Easton Area Joint Sewer Authority v. Bushkill -- Lower Lehigh Joint Sewer Authority, 71 Pa. Commonwealth Ct. 553, 455 A.2d 286 (1983).

Appellant argues firstly that the Commission is a corporation separate and apart from the Commonwealth and not immune from suit in tort. In particular, Appellant relies on the case of Specter v. Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission, 462 Pa. 474, 341 A.2d 481 (1975). In Specter, Irving and Marie Specter, Appellants, were injured in a collision on the turnpike caused by a turnpike employee's negligent operation of a turnpike-owned vehicle. The Court in Specter reviewed prior case law and concluded that

[ 121 Pa. Commw. Page 54]

    the Turnpike Commission was separate and apart from the Commonwealth and could not raise the defense of immunity.

However, Appellants' argument must fail in that the sovereign immunity provisions here at issue, 42 Pa. C.S. §§ 8521 and 8522, were enacted subsequent to the Specter decision. Section 8522 provides, in part:

Exceptions to sovereign immunity.

(a) Liability imposed -- The General Assembly, pursuant to Section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages will be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.

42 Pa. C.S. § 8522 (emphasis added). "Commonwealth parties" is defined to include "Commonwealth agencies" under 42 Pa. C.S. § 8501.*fn3 Under 42 Pa. C.S. § 102, "Commonwealth agency" is defined as an executive or independent agency. Independent agency is defined, in part, under the same section as: "Boards, Commissions, authorities, and other agencies and officers of the Commonwealth government which are not subject to the policy, supervision and control of the government. . . ." Under Section 102 of Commonwealth Attorneys Act, 71

[ 121 Pa. Commw. Page 55]

P.S. § 732-102,*fn4 a complete list of independent agencies is listed and the Turnpike Commission is one of the independent agencies enumerated. Finally, in Phillips Brothers Electrical Contractors, Inc. v. Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission, 77 Pa. Commonwealth Ct. 26, 465 A.2d 60 (1983), we held that the Turnpike Commission was an independent agency and therefore a Commonwealth agency.*fn5 Accordingly, we conclude that the Commission is a Commonwealth agency entitled to sovereign immunity.

Appellant next argues that under Hart v. Pennsylvania Turnpike Commission, 438 F. Supp. 573 (W.D. Pa. 1977)*fn6 and Section 344 of the Restatement (Second) of Torts (1982), Appellant was a business invitee upon the Commission's premises, and the Commission had a reasonable duty to protect her from or warn her of animals running at large. Therefore, Appellant concludes that this duty is a question of fact for jury consideration. Alternatively, Appellant argues that her cause of action falls within one of the eight exceptions to sovereign immunity set forth in 42 Pa. C.S. § 8522(b). In particular, the Appellant alleges that allowing deer onto the turnpike creates a "dangerous condition" which would fall under the exception articulated in 42 Pa. C.S. § 8522(b)(4).

[ 121 Pa. Commw. Page 56]

We concur with the trial court, however, that the legislature has specifically excluded Commonwealth agencies from claims arising from any injuries caused by wild animals:

(b) Acts which may impose liability -- The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity should not be raised to claims for damages caused by:

(6) Care, custody or control of animals -- The care, custody or control of animals in the possession or control of a Commonwealth party, including but not limited to police dogs and horses and animals incarcerated in Commonwealth agency laboratories. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer except as otherwise provided by statute. (Emphasis added.)

42 Pa. C.S. § 8522(b)(6). We have held that these sections are to be strictly construed. Davidow v. Anderson, 83 Pa. Commonwealth Ct. 86, 476 A.2d 998 (1984). Further, this Court has rejected a similar argument in Rippy v. Fogel, 108 Pa. Commonwealth Ct. 296, 299, 529 A.2d 608 (1987). In Rippy, we stated:

Short of fencing every inch on Commonwealth-owned highways in non-urban areas or permitting a wholesale obliteration of this Commonwealth's deer population, we can conceive no method of correcting the problem of wild animals wandering onto the highways. As neither of these methods is feasible, the problem of wild animals on the highways is simply not 'conceivably

[ 121 Pa. Commw. Page 57]

    correctable' and for that reason, Mistecka is inapposite.*fn7 (Footnote omitted.)

Id. at 299, 529 A.2d at 610.

Accordingly, we affirm the dismissal of Appellant's complaint.

Order

And Now, this 10th day of November, 1988, the decision of the Court of Common Pleas of Philadelphia County in the above-captioned case is hereby affirmed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


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