Wednesday, December 7, 2011

Commonwealth Court Addresses Actual Notice Requirement Under the Sovereign Immunity Act

The Pennsylvania Commonwealth Court recently addressed the parametersof the written notice provision under the Sovereign Immunity Act, 42 Pa.C.S.A. Section 8522(b)(5), in the case of  Walthour v. PennDOT, No. 390 C.D. 2011 (Pa.Cmwlth. Nov. 17, 2011 McGinley, Cohn Jubelirer, Friedman, JJ.)(Opinion by Cohn Jubelirer).

In this case, a plaintiff was injured when the motorcycle she was a passenger on hit a pothole and causing her to be ejected from the bike and sustain personal injuries.  The Plaintiff sued PennDOT under an allegation that that Commonwealth Department had prior notice of the dangerous condition of the road and failed to fix it.

PennDOT eventually filed a Motion for Summary Judgment on the grounds that there was no evidence that the Department had prior, actual knowledge of the pothole as alleged.  PennDOT argued that, although it had received a letter from a State Senator regarding the condition of the subject roadway, that letter did not reference potholes.

The Allegheny County trial court previously granted PennDOT's motion for summary judgment.  On appeal, the Commonwealth Court found material facts to be in dispute and vacated the trial court's granting of a defendant's motion for summary judgment.

More specifically, the appellate court ruled that it was for a jury to decide whether the letter from the State Senator to PennDOT regarding overall condition of a particular portion of a state roadway, without specifically referencing the pothole in question, satisfied the written notice provision of the Sovereign Immunity Act, 42 Pa.C.S.A. 8522(b)(5).

The Commonwealth Court's Opinion in Walthour can be viewed here.

I send thanks to Attorney William Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.

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