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TRENCO v. COMMONWEALTH PENNSYLVANIA (06/14/89)

decided: June 14, 1989.

TRENCO, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from Northumberland County Common Pleas Court, Honorable Barry F. Feudale, Judge.

COUNSEL

John R. Bonner, Norman M. Lubin, Casale & Bonner, P.C., Williamsport, for appellant.

Jefferson J. Shipman, Deputy Atty. Gen., Torts Litigation Div., LeRoy S. Zimmerman, Atty. Gen., Harrisburg, for appellee.

Barry and Colins (p.), JJ., and Kalish, Senior Judge.

Author: Colins

[ 126 Pa. Commw. Page 502]

Trenco, Inc. (appellant) appeals an order of the Northumberland County Court of Common Pleas (trial court) which granted the Department of Transportation's (DOT) motion for summary judgment.

On March 1, 1987, at approximately 11:15 p.m., appellant had two individual tractor trailer units traveling southbound on Pennsylvania Route 11 (Route 11) approximately 2 miles south of Danville, Northumberland County, Pennsylvania. While traveling on this road, a landslide of approximately 7,000 to 8,000 cubic yards of slate and mud came down upon the roadway causing damage to appellant's vehicles and the contents contained therein. As a result of the March 7, 1987, accident, appellant filed a civil action against DOT for damage to its vehicles and contents therein.

Appellant's complaint alleged that on the date of the accident DOT was the fee owner or right-of-way owner of the land abutting Route 11 on which the mud and landslide occurred. The Complaint further alleged that DOT was negligent in its maintenance of the hillside area adjacent to Route 11 which resulted in appellant's property damage. The expert's report submitted by appellant concluded that a rock slide on Route 11 was highly foreseeable due to the steepness of the rock-cut slopes and found that, as a result

[ 126 Pa. Commw. Page 503]

    of past slides along Route 11, DOT had ample warning that a slide the magnitude of the one that occurred on March 1, 1987, was inevitable.

At the close of discovery, DOT filed a motion for summary judgment on the ground that it was immune from liability. DOT argued that appellant had failed to state a cause of action within the exceptions to sovereign immunity provided by Section 8522(b)(5) of the Judicial Code, 42 Pa.C.S. § 8522(b)(5), since it failed to specifically plead and prove that DOT had prior written notice of the alleged dangerous condition which resulted in the landslide. In addition, DOT argued that property damages are not recoverable pursuant to Sections 8522(b)(5) and 8528(c)(5) of the Judicial Code, 42 Pa.C.S. §§ 8522(b)(5), 8528(c)(5). Appellant, on the other hand, argued that this action fell within the exception to sovereign immunity provided by Section 8522(b)(4) of the Judicial Code, 42 Pa.C.S. § 8522(b)(4).

The trial court, relying on Mistecka v. Commonwealth, 46 Pa. Commonwealth Ct. 267, 408 A.2d 159 (1979),*fn1 concluded that the mud and landslide were caused by natural elements and, therefore, fell within the exception to sovereign immunity provided by Section 8522(b)(5) of the Judicial Code. Consequently, the trial court found that appellant had failed to plead and prove that DOT had actual written notice of the dangerous condition, and, therefore, granted summary judgment since property damages are not recoverable pursuant to Section 8522(b)(5) of the Judicial Code.

We must now determine whether the trial court properly concluded that appellant failed to establish that no genuine issue of material fact existed. Our scope of review on appeal from the grant of a motion of summary judgment is ...


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