Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Sherry Martin v. Pennsylvania Department of Transportation, et al., No. 87-01537.
Everett K. Sheintoch, with him, Lawrence E. Feldman, Needle & Feldman, for appellant.
John H. Martin, III, Wilson, Drayer, Morrow, Furber & Lecky, for appellee, Montgomery County.
Judges Barry and Palladino (p.), and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.
[ 124 Pa. Commw. Page 626]
Sherry Martin (Appellant) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) sustaining the preliminary objection in the nature of a demurrer of the County of Montgomery (County) and dismissing Appellant's complaint as to the County. We reverse and remand.
On February 12, 1985, Appellant was exiting from One Fairway Plaza onto Philmont Road near the intersection of Red Lion Road in Lower Moreland Township in the County. Appellant drove her car into what appeared to be a puddle, but which was actually a sewer or storm drain located in a ditch next to the road. Appellant alleged that the ditch was totally filled with water and was therefore not visible. Appellant further alleged that her car became submerged in the water, causing her to almost drown.
Appellant commenced an action in the trial court against the County.*fn1 In her complaint, Appellant alleged
[ 124 Pa. Commw. Page 627]
that the County had jurisdiction over the road in question, the shoulder of the road, and the sewer or storm drain system. Appellant's Complaint, paragraph 42. Appellant further alleged that the County had a duty to make the roads within its jurisdiction, as well as the utility services it provides, reasonably safe to travellers. Appellant's Complaint, paragraph 41. Appellant averred that the County "negligently installed, ordered the installation of, or maintained the sewer or storm drain system adjacent to the Philmont Avenue entrance/exit of the premises at One Fairway Plaza." Appellant's Complaint, paragraph 43. Appellant also alleged that the County was aware that the area in question tended to flood during rainstorms, that the sewer or storm drain system was not adequate for its intended purpose, and that the sewer or storm drain was not visible to travellers during flooding conditions. Appellant's Complaint, paragraphs 21-23. Finally, Appellant alleged that, despite the County's knowledge of the dangerous condition, the County failed either to correct the condition or post signs, fences, guardrails or other devices to warn of the defective condition. Appellant's Complaint, paragraph 44.
The County filed preliminary objections in the nature of a demurrer, contending that the roads in question were state highways.*fn2 The County further asserted that it had no ownership interest in the sewer or storm drain system. Accordingly, the County contended that, because it owed no duty to Appellant as a matter of law, Appellant failed to state a cause of action. In support of its demurrer, the County attached the affidavit of George Schlosser, the Director of the Roads and Bridges Division of the
[ 124 Pa. Commw. Page 628]
County's Public Works Department. Mr. Schlosser stated that the roads in question were owned and maintained by the Pennsylvania Department of Transportation (DOT), that the County did not own and had never owned the drain system, and that the County had entered into no contracts with Lower ...