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THOMAS V. MONZO AND ANNE MARIE MONZO v. COMMONWEALTH PENNSYLVANIA (03/23/89)

decided: March 23, 1989.

THOMAS V. MONZO AND ANNE MARIE MONZO, HIS WIFE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the order of the Court of Common Pleas of Allegheny County in the case of Thomas V. Monzo and Anne Marie Monzo, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. G.D. 87-08072.

COUNSEL

Robert N. Peirce, Jr., with him, Ronald D. Powers, Robert N. Peirce, Jr. & Associates, for appellants.

Eugene Grant Berry, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellee.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 124 Pa. Commw. Page 361]

Thomas Monzo and Anne Monzo (appellants) appeal from an order of the Court of Common Pleas of Allegheny County, which granted a motion for judgment on the pleadings in favor of the Commonwealth, Department of Transportation (DOT). We reverse the trial court's order of judgment and remand for trial.

Monzo was driving his car on Thompson Run Road, a state highway in Monroe, Allegheny County. There was a creek bed adjacent to and below the roadway. Although there was a drop of more than four feet from the roadway to the ground below, there was no guard rail in place at the site. A deer darted across the roadway and Monzo, in an attempt to avoid it, plunged into the creek and sustained injuries.

The appellants filed suit against DOT, alleging that DOT was negligent in failing to provide a sufficient berm area and guard rail or to post warning signs indicating the absence of a guard rail. The appellants maintained that DOT was not protected as a Commonwealth agency subject to immunity pursuant to section 8521 of the Judicial Code, 42 Pa. C.S. § 8521. Section 8522(b)(4) of the Judicial Code provides an exception to immunity in cases of negligence caused by dangerous conditions of highways under the jurisdiction of the Commonwealth.

DOT denied liability, arguing that section 8522(b)(6) of the Judicial Code was applicable, providing that the Commonwealth is liable for the care, custody, and control of animals in its possession, but is not liable for any injury caused by wild animals such as deer. DOT filed a motion for judgment on the pleadings which was granted by the trial court, on the basis that no material issue of fact was in dispute. Both parties agreed that the original collision was caused by the wild deer; therefore, DOT maintained it could not be liable for injuries caused by a

[ 124 Pa. Commw. Page 362]

    wild animal pursuant to section 8522(b)(6) of the Judicial Code.

Jurisdiction of the Commonwealth Court to hear appeals from the common pleas court is limited to final orders unless otherwise permitted by statute. Section 762(a) of the Judicial Code, 42 Pa. C.S. § 762(a); Waddell v. Trostel, 336 Pa. Superior Ct. 527, 485 A.2d 1208 (1984).

A final order has been defined as one which effectively ends litigation or disposes of the entire case. Praisner v. Stocker, 313 Pa. Superior Ct. 332, 459 A.2d 1255 (1983). The grant of judgment on the pleadings has been held to be a final order. Such a judgment is dispositive of all issues raised by the case and is therefore applicable. Indiana County Hospital ...


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