Appeals from the Order of December 19, 1986 of the Commonwealth Court of Pennsylvania at 2160 C.D. 1985, Reversing the Order of the Court of Common Pleas of Armstrong County, Civil Division, at Nos. 82-1605 thru 1607, dated July 22, 1985.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos, Stout, JJ. Stout, Former Justice, did not participate in the decision of this case. Larsen, J., dissents and would affirm based upon the Commonwealth Court's Opinion.
We granted allowance of appeal to the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) to determine whether the Commonwealth Court erred in reversing in part the trial court's order granting summary judgment in favor of appellant and Commonwealth of Pennsylvania, Department of Environmental Resources (DER). While Commonwealth Court affirmed the grant of summary judgment as to DER, it reversed the trial court's order with respect to PennDOT by holding that sufficient allegations had been pled to raise material questions of fact. 102 Pa. Commw. 519, 519 A.2d 528 (1986).
The facts indicate that around 2:30 a.m. on November 2, 1980, appellees, Donna Snyder, Susan Fleming and Mitchell Johnson, left the Sky View Lounge in Punxsutawney along with Joyce Van Horn and Jerry Barrett. In the lounge's parking lot, William Shaffer joined the group who decided to take Barrett's car for the ride home. Jerry Barrett drove his car, along with the five passengers, out of the parking lot and onto Route 36 until reaching Oliveburg, where he turned onto Legislative Route 33060 (L.R. 33060). As they traveled along L.R. 33060, one of the passengers mentioned he had to relieve himself, so Barrett stopped the car along the berm of the road, which, unbeknown to the travelers, was directly adjacent to a strip mine.
The piece of property on which the strip mine was being operated was located in Oliver Township, Jefferson County. Bruce Poole, who owns the property, had leased it in 1973 to Harmon Mining Company (Harmon). In order to fully exploit the coal seam, Harmon sought and obtained a variance from DER that allowed mining within one hundred feet of L.R. 33060, which was owned, controlled and maintained by PennDOT. The variance required Harmon to build an earthen embankment on top of the highwall of the
strip mine to prevent cars from driving into the pit and dropping eighty feet to the bottom of the mine. The earthen embankment was six to seven feet wide and seven feet high, composed of lose dirt, rock and shale. By 1980, Harmon's mining activities had caused the earthen embankment to be moved closer to L.R. 33060.
After Barrett stopped his car on the berm of L.R. 33060, appellee Johnson got out of the vehicle. Within moments, defendant Gary Gruver, driving a four wheel drive vehicle, pulled onto the berm in front of Barrett's car and then proceeded to drive in reverse at a high rate of speed toward Barrett's vehicle. To avoid being hit, Johnson scrambled up the embankment, which was seven feet outside L.R. 33060's right-of-way, and fell to the bottom of the strip mine. He was left a paraplegic as a result of his fall.
Once Gruver's vehicle went around Barrett's car, William Shaffer, a passenger in the car, yelled and appellees Snyder, and Fleming along with Joyce Van Horn got out of Barrett's car. Gruver then drove forward toward Barrett's car and the three women standing on the berm. As Gruver rapidly approached them, the women scrambled up the embankment, which was approximately twelve feet outside the right-of-way, and fell into the mine. Snyder and Fleming sustained serious injuries; Joyce Van Horn was killed in the fall.
As a result of this tragedy, appellees filed suit in the Court of Common Pleas of Armstrong County. The basic allegation against PennDOT in the complaint was that this Commonwealth agency was negligent in permitting a dangerous condition to exist within its right-of-way. Specifically, appellees claimed that PennDOT had failed to warn the public of the existence of the pit either by lighting, or by erecting physical barriers or guardrails along the right-of-way. It also alleged negligence in permitting mining activities to occur thereon. The allegations against DER were similar in nature but also included claims that DER failed to inspect or supervise the mine and enforce applicable mining laws. In their answer and new matter, PennDOT and DER
denied the allegations against them and raised as a bar to appellees' cause of action the rule of sovereign immunity and the failure of the cause of action to fall within one of the eight exceptions enumerated in 42 Pa.C.S. § 8522.
Thereafter, PennDOT and DER each moved for summary judgment, alleging no genuine issue of material fact existed because the accident took place outside PennDOT's twenty foot statutorily granted right-of-way. Additionally, PennDOT and DER claimed that since the dangerous condition of the strip mine did not exist on Commonwealth realty, appellee's cause of action did not fall within any exception to sovereign immunity which entitled these Commonwealth agencies to summary judgment as a matter of law.*fn1 Attached to the motion was an affidavit signed by the District ...