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JOSEPH T. BAINBRIDGE AND KAREN BAINBRIDGE v. COMMONWEALTH PENNSYLVANIA (04/26/89)

decided: April 26, 1989.

JOSEPH T. BAINBRIDGE AND KAREN BAINBRIDGE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND POCONO TOWNSHIP AND POCONO MOUNTAIN CAMPSITES CIVIC CLUB, APPELLEES



Appeal from the Order of the Court of Common Pleas of Monroe County, in the case of Joseph and Karen Bainbridge v. Commonwealth of Pennsylvania, Department of Transportation, Pocono Township and Pocono Mountain Campsites Civic Club, No. 2854 Civil 1986.

COUNSEL

Michael Klimpl, with him, John C. Marston, for appellants.

James R. Moyles, Deputy Attorney General, for appellees.

Judges Barry and Palladino (p.), and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge Barry dissents.

Author: Palladino

[ 125 Pa. Commw. Page 407]

Joseph T. and Karen Bainbridge (Appellants) appeal from a decision of the Court of Common Pleas of Monroe County dismissing the Department of Transportation

[ 125 Pa. Commw. Page 408]

(DOT) and the Commonwealth as parties to their suit for damages. We affirm.

Appellants were injured on February 16, 1985 when the car in which they were traveling slid on an icy spot on the road and overturned. The road was located in Mt. Pocono, Pennsylvania in the area of Pocono Mountain Campsites and allegedly was owned by the Commonwealth. On December 17, 1986, Appellants filed a trespass action against Pocono Township, Pocono Mountain Campsites and the Commonwealth (collectively, Defendants), alleging that the Defendants' negligence with respect to the road resulted in the icy patch's presence and, therefore, caused Appellants' accident and their injuries.

The Commonwealth filed preliminary objections to the complaint. The preliminary objections contained a motion to dismiss for lack of jurisdiction.*fn1 The basis of the motion was that (1) Appellants' complaint did not name a Commonwealth agency and (2) the Commonwealth may not be sued as an individual entity because it is absolutely immune to suit. Appellants, on March 4, 1987, filed an "amended" complaint, which named DOT as a defendant in place of the Commonwealth. The Commonwealth filed preliminary objections, on behalf of DOT, to the amended complaint, seeking to have the amended complaint dismissed as to DOT, because, among other things, DOT was a new and distinct party and the statute of limitations had run.*fn2

After oral argument and the submission of letter briefs, the trial court concluded that the Commonwealth and DOT were distinct entities, that the Commonwealth was absolutely immune to suit, and that Appellants'

[ 125 Pa. Commw. Page 409]

    amendment of its complaint to name DOT was not a correction but an attempt to name a new and distinct party. The trial court dismissed the Commonwealth and DOT as parties to Appellants' action. On appeal to this court, Appellants contend that replacing the Commonwealth with DOT was merely a ...


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