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PENNSYLVANIA TURNPIKE COMMISSION v. SUSAN JELLIG AND BERNARD JELLIG (07/25/89)

decided: July 25, 1989.

PENNSYLVANIA TURNPIKE COMMISSION, APPELLANT,
v.
SUSAN JELLIG AND BERNARD JELLIG, HER HUSBAND; CHRISTOPHER KIERNAN; NORMAN COGLIAITTI; STABLER CONSTRUCTION COMPANY; EASTERN INDUSTRIES, INC., D.B.S. TRANSIT COMPANY; MICHAEL BAKER, JR., INC.; LECO CORPORATION; AND JOHN J. WOLF; COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEES



COUNSEL

Joseph J. Musto, with him, Susan M. Rooney, Griffith, Aponick & Musto, Wilkes-Barre, Gabriel L.I. Bevilacqua, with him Leslie P. Hitchings, Saul, Ewing, Remick & Saul, Philadelphia, for appellant.

Lawrence Ludwig, Michael J. Donohue, Henkelman, Kreder, O'Connell & Brooks, William E. Wyatt, Jr., Scranton, Timothy J. Holland, Wilkes-Barre, James J. Doherty, Jr., Esq. James M. Howley, Esq. Scranton, Thomas Devlin, Deputy Atty. Gen., Harrisburg, Anthony J. Piazza, Thomas J. Nolan, Scranton, Robert Schaub, Rosenn, Jenkins & Greenwald, Wilkes-Barre, Michael Roth, Scranton, for appellees.

David L. Lutz, Angino & Rovner, P.C., Harrisburg, Pa., for Pennsylvania Trial Lawyers Ass'n, amicus curiae, for appellees.

Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, Palladino and McGinley, JJ. MacPhail, J., did not participate in the decision of this case.

Author: Doyle

[ 128 Pa. Commw. Page 173]

Before us for consideration is a petition for review filed by the Pennsylvania Turnpike Commission (Commission) under the procedural scenario set out in the official note to Pa.R.A.P. 1311.*fn1 That petition sought, first, a review of the lower court's order refusing to certify an interlocutory order for appeal by permission pursuant to Section 702(b) of the Judicial Code (Code), 42 Pa.C.S. § 702(b), and second, a review of an earlier order of the court which denied a motion for summary judgment filed by the Commission. In denying the motion for summary judgment, the trial court ruled that the Commission was not entitled to assert the defense of sovereign immunity. Also before us is a motion

[ 128 Pa. Commw. Page 174]

    to quash the petition for review filed by Susan and Bernard Jellig (the Jelligs) who were plaintiffs in the action below.

This action was commenced when the Jelligs filed a complaint against the Commission, and others, on May 16, 1984, alleging that Susan Jellig was a passenger in an automobile travelling in a northerly direction on the Northeast Extension of the Pennsylvania Turnpike in Whitehall Township, Lehigh County, when, on July 20, 1983, a collision occurred between their car and a vehicle owned by one of the defendants. The Jelligs alleged that the Commission was an entity created by Section 4 of the Act of May 21, 1937, P.L. 744, as amended, 36 P.S. § 652d. They further alleged that the Commission routed northbound and southbound traffic into adjacent lanes without providing a barrier between the lanes, and permitted traffic to flow through an unsafe area that was under construction creating an "inherently dangerous condition" which caused injury to Susan Jellig. The parties underwent extensive discovery and on July 17, 1987, the Commission filed a motion for summary judgment on the basis that sovereign immunity applied to it pursuant to Sections 8501-8564 of the Judicial Code, 42 Pa.C.S. §§ 8501-8564. The lower court denied the motion on March 1, 1988.

Following the lower court's interlocutory order denying summary judgment, the Commission filed an application to amend the lower court's order to include the language found in Section 702(b) of the Code, 42 Pa.C.S. § 702(b),*fn2 allowing an appeal of an interlocutory order by permission. By order dated March 22, 1988, the lower court denied the

[ 128 Pa. Commw. Page 175]

    motion to amend.*fn3 The Commission then filed a petition for review with this Court following the direction of the official note to Pa.R.A.P. 1311, seeking immediate review of the trial court's order refusing to certify the issue as a controlling issue of law, and a review of the denial of summary judgment on the immunity issue. The Jelligs subsequently moved to quash the petition for review on the grounds that the lower court's March 1 order was a "final Order and no interlocutory appeal may be taken." By order of April 18, 1988, this Court granted the petition for review which permitted the appeal from the interlocutory order by permission, listed the issue of the denial of summary judgment for oral argument, and stayed the case in the lower court pending resolution of the appeal on the merits.

There is a two-step process to our approach to this appeal. We must first decide the threshold issue presented by the Jelligs' motion to quash, and second, we must decide the merits, i.e., whether ...


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