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KENNETH HUBER AND ERMA HUBER v. COMMONWEALTH PENNSYLVANIA (12/13/88)

decided: December 13, 1988.

KENNETH HUBER AND ERMA HUBER, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, ANGELO DININNI AND JOHN GARDECKI, APPELLEES



Appeal from the Order of the Court of Common Pleas of Berks County in the case of Kenneth Huber and Erma Huber v. Commonwealth of Pennsylvania, Department of Transportation, Angelo Dininni and John Gardecki, No. 273 November, 1985.

COUNSEL

John R. Badal, Liever, Hyman & Potter, P.C., for appellants.

William A. Slotter, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellee.

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

Author: Palladino

[ 122 Pa. Commw. Page 84]

Kenneth Huber and Erma Huber (Appellants) appeal an order of the Court of Common Pleas of Berks County (trial court) denying their motion to open summary judgment granted in favor of the Commonwealth of Pennsylvania, Department of Transportation (DOT). We affirm.

Kenneth Huber was involved in a multi-car collision on December 22, 1983 at approximately 6:45 A.M. The collision occurred in Exeter Township, Berks County along Pennsylvania Route 422 near the intersection of Route 422 and 39th Street. At the time of the accident, the road was covered with ice and snow as a result of a snow storm which had begun on December 21, 1983 at approximately 10:30 P.M. Mr. Huber's automobile was struck from behind by a car driven by Mr. Angelo Dininni. After Mr. Huber got out of his vehicle to inspect the damage, he was injured when a car driven by Mr. John Gardecki struck Mr. Dininni's car, causing Mr. Dininni's car to strike Mr. Huber.

Appellants brought an action in the trial court against Gardecki, Dininni, and DOT. Appellants alleged that DOT was aware of the icy road conditions existing at the accident scene for at least seven (7) hours before the accident occurred yet did not remove or treat the ice and snow. Appellants averred that DOT's failure to remove or treat the ice and snow constituted negligence and that such negligence was the cause of the collision and the resulting injuries to Mr. Huber.*fn1

[ 122 Pa. Commw. Page 85]

In its answer and new matter, DOT contended that Appellants had not stated a cause of action, asserting that it could not be held liable for injuries resulting from a failure to remove or treat natural accumulations of ice and snow. In the alternative, DOT averred that it was immune from suit because Appellants failed to provide actual written notice of the road conditions as required by 42 Pa. C.S. § 8522(b)(5).*fn2 DOT then filed a motion for summary judgment setting forth these contentions.

[ 122 Pa. Commw. Page 86]

By order dated May 18, 1987, the trial court granted DOT's motion for summary judgment. The trial court granted reconsideration by order dated May 22, 1987, but on October 14, 1987, denied Appellants' motion to open summary judgment. The trial court determined that although Appellants had stated a cause of action against DOT for its failure to clear the ice and snow, DOT was immune because Appellants had not given DOT actual written notice of the road conditions as specified in section 8522(b)(5).

On appeal to this court, Appellants argue that the trial court erred in granting summary judgment in favor of DOT. Appellants contend that 42 Pa. C.S. § 8522(b)(4) is the applicable sovereign immunity exception, and that under this section, written notice is not required.*fn3 Appellants further assert that even if written notice to DOT were a prerequisite to the waiver of sovereign immunity, DOT received actual written notice through a diary made by one of DOT's highway foremen in charge of maintenance and logs prepared by DOT's radio ...


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