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Nicole Walthour v. Commonwealth of Pennsylvania

November 17, 2011

NICOLE WALTHOUR, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION



The opinion of the court was delivered by: Judge Cohn Jubelirer

Submitted: July 1, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY

Nicole Walthour (Appellant) appeals from the Order of the Court of Common Pleas of Allegheny County (trial court), which granted the Motion for Summary Judgment (Motion) of the Commonwealth of Pennsylvania, Department of Transportation (the Department) and dismissed Appellant‟s Complaint with prejudice. Appellant now appeals to this Court, arguing that the trial court erred in granting summary judgment based on its conclusion that the written notice provided to the Department was not sufficient for the purpose of Section 8522(b)(5) of the Act commonly known as the Sovereign Immunity Act (the Act), 42 Pa. C.S. § 8522(b)(5).

In the Complaint, Appellant alleges that she suffered serious personal injuries on March 30, 2005, when the motorcycle on which she was a passenger hit a pothole on State Route 837 in the City of Duquesne, Allegheny County, Pennsylvania, and she was thrown approximately 120 feet. (Complaint ¶ 4, R.R. at 7.) Appellant further alleges that the Department had received written notice of the dangerous condition. (Complaint ¶ 7, R.R. at 8.) The Department filed an Answer and New Matter, asserting the defense of sovereign immunity, among others, and alleging that the cause of action did not fall within one of the nine exceptions found in Section 8522(b) of the Act. (Answer and New Matter ¶¶ 11, 12, R.R. at 14.) In her Reply to New Matter, Appellant denied that the cause of action did not fall within one of the exceptions to the Act and asserted that liability may be imposed under Section 8522(b). (Reply to New Matter ¶ 11, R.R. at 20.)

The Department filed its Motion and Brief in Support thereof, requesting that the trial court grant the Motion because Section 8522(b)(5), "governing recovery of damages caused by potholes and other dangerous conditions," requires that the Department have actual notice and that there is no evidence of actual written notice to the Department here. (Motion ¶¶ 5, 6, R.R. at 28.) The Department further stated in the Motion that Appellant might argue that a letter from State Senator Sean Logan (Senator Logan), dated June 29, 2004, and addressed to the Department (Senator Logan‟s Letter), "informing [it] of the condition of Route 837 located in the City of Duquesne, is adequate" notice, (Motion ¶ 6, R.R. at 28), but the Department avers that Senator Logan‟s Letter "does not constitute actual written notice of a pothole since it makes no reference to potholes." (Motion ¶ 7, R.R. at 28.) Senator Logan‟s Letter provides: I am writing to you concerning the condition of Route 837 located in the City of Duquesne.

It has been brought to my attention that this roadway has fallen into disrepair. It is my understanding that some patchwork has been done. However, the patchwork itself has seemingly caused more problems than it solved. The Mayor of Duquesne has contacted me expressing his concern over the potential of chipped paint or broken windshields due to loose gravel on the roadway. As you are aware [,] Route 837 [] is used as a primary artery of travel for the residents of Duquesne as well as commuters and motorists throughout the region.

I respectfully request that this road be evaluated and that subsequent repairs be undertaken as soon as possible.

I appreciate your time and attention to this important matter. If you have any questions or concerns regarding this letter, please do not hesitate to contact me directly.

(Senator Logan‟s Letter, R.R. at 36.) In reply, the Department sent a letter, dated July 16, 2004, to Senator Logan (Department‟s Letter), which stated as follows:

Thank you for your letter of June 29, 2004 on behalf of the City of Duquesne concerning the condition of State Route 837.

The Department would like to make major improvements to this section of roadway but has been unable to secure the necessary funding. We will certainly keep this project at the top of our priority list.

Ou[r] Maintenance Crews have been patching with materials that work best with concrete surfaces. They had street sweepers clean up the excess chips associated with this operation. I apologize for any inconveniences that may have occurred.

If you have any further questions about this issue please contact [a certain individual] of our District Maintenance ...


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