Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Robert N. Gwiszcz v. Consolidated Rail Corporation, et al., No. 186 May Term, 1986.
J. Matthew Wolfe, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellant, Department of Transportation.
Donald Caruthers, III, with him, Gregory John Hannon, Brobyn & Forceno, for appellee, Robert N. Gwiszcz.
President Judge Crumlish, Jr., Judge Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge MacPhail did not participate in the decision in this case.
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The Department of Transportation (DOT) appeals a Philadelphia County Common Pleas Court order denying
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its motion for summary judgment. We quash the appeal as interlocutory.
Robert Gwiszcz lost control of his motorcycle on Delaware Avenue*fn1 in the city of Philadelphia, when the vehicle's front and rear wheels became lodged on either side of railroad tracks exposed by roadway ruts and potholes. As Gwiszcz approached a set of perpendicular tracks, he jumped off his motorcycle to avoid injury. Gwiszcz was then struck and injured by a hit-and-run motorist while attempting to retrieve his motorcycle.
In his complaint against DOT, Gwiszcz alleged that he lost control of his motorcycle due to DOT's negligence in failing to maintain the roadway.
DOT, in its motion for summary judgment, claimed that Gwiszcz failed to state a claim within one of the exceptions to sovereign immunity enumerated in the Judicial Code, 42 Pa. C.S. § 8522(1)-(9). The common pleas court denied DOT's motion, concluding that material issues of fact remained.
On appeal DOT contends that as a matter of law, it was entitled to summary judgment based on immunity. Gwiszcz, however, maintains that the appeal should be quashed, because the denial of summary judgment is a non-appealable interlocutory order. 42 Pa. C.S. § 762(a); Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 482 Pa. 615, 394 A.2d 491 (1978). DOT, in turn, responds that the denial of a summary judgment motion based on immunity is an ...