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decided: April 26, 1989.


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.


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 correction of the designation of the parties and not the naming of a new and distinct party.

This court in Hall v. Acme Markets, Inc., 110 Pa. Commonwealth Ct. 199, 532 A.2d 894 (1987), held that the Commonwealth is an entity distinct from those Commonwealth agencies and employees encompassed by the term Commonwealth parties.*fn3 The court also held that only Commonwealth parties may be sued for damages resulting from their negligent acts because the Commonwealth is absolutely immune to suit pursuant to 1 Pa. C.S. § 2310 and 42 Pa. C.S. § 8522(a).*fn4 However, in Hall, this court concluded that amendment of a complaint to replace the Commonwealth with a Commonwealth party was not necessarily precluded. The court held that "[c]onsideration in each case must also be given to whether the entity sought to be substituted will be prejudiced." Id. at 208, 532 A.2d at 897. (Emphasis added.)

We determined, in Hall, that the naming of the Commonwealth was only a technical defect that could be remedied by amendment. That decision was based on the fact that DOT had "clearly been involved with all aspects of [the] litigation since the suit was initially filed." Id. We note that in Hall the initial complaint named not just the

[ 125 Pa. Commw. Page 410]

Commonwealth but also the Secretary of the Department of Transportation.

The situation in this case is considerably different. There is no indication in the record of this case of any participation by DOT. Appellants point to seven letters it claims were exchanged by Appellants and the "Torts Claims Unit." The letters, however, do not appear in the record, and we note that the "Torts Claims Unit" is part of the Bureau of Risk and Insurance Management in the Department of General Services. Additionally, the Commonwealth was the only named defendant in the original complaint, unlike Hall where the Secretary of DOT was also originally named as a defendant.

The accident in this case is alleged to have been caused by a defect of a road, which was allegedly caused by negligence in design, construction and/or maintenance. This is not an instance where it is difficult for an injured party to know what Commonwealth party should be named in an action for damages. Clearly the failure to name DOT as a party in this case is not a technical defect that may be remedied after the applicable statute of limitations has run. To permit DOT to be named as a party at this point in the litigation of this case would be prejudicial to DOT.

Accordingly, we affirm.


And Now, April 26, 1989, the decision of the Court of Common Pleas of Monroe County in the above-captioned matter is affirmed.

Judge Barry dissents.



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