PennDOT Continues to Enjoy the Protection of Pennsylvania Courts

Two recent cases, one out of the Commonwealth Court and one out of the Berks County Court of Common Pleas, confirm that the Pennsylvania Department of Transportation (PennDOT) continues to enjoy the protection of the court in liability claims arising out of motor vehicle accidents.

In Stein v. Pennsylvania Turnpike Commission, 2010 WL 521156 (Pa. Cmwlth. Feb. 16, 2010 Leavitt, J.), the Commonwealth Court held that the Commonwealth was immune from suit arising out of an accident during which a guiderail end treatment folded back and impaled the driver, causing fatal injuries. The Commonwealth Court affirmed the trial court's judgment in favor of the Pennsylvania Turnpike Commission.

Plaintiff argued that a claim based on the negligent design of the guardrail in question fit within the real estate exception to the Sovereign Immunity Act.

The Stein court rejected this argument noting that, in Dean v. Department of Transportation, 751 A.2d 1130 (Pa. 2000), the Pennsylvania Supreme Court stated that "[a]bsent legislative directive, however, we conclude that the real estate exception does not apply to the failure to install a guardrail."

The Stein court also noted that in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2008) the Commonwealth Court held that the commonwealth was immune "from suit regarding the design and maintenance of [a] guardrail." The Stein court held that nothing in this case or plaintiff's arguments convinced it to change that holding.

Accordingly, the Commonwealth Court affirmed the trial court entry of judgment in favor of the Pennsylvania Turnpike Commission.

The Stein v. Pennsylvania Turnpike Commission opinion can be viewed online at
http://www.aopc.org/OpPosting/Cwealth/out/1964CD08_2-16-10.pdf.


Judgment was also entered in favor of the Commonwealth defendant in a recent Berks County case stemming from an accident involving a telephone pole.

In Mayer v. Verizon-Pennsylvania, PICS Case No. 10-1270 (C.P. Berks Jan.22, 2010 Lash, J.), the Berks County Court of Common Pleas held that the Pennsylvania Department of Transportation (PennDOT) enjoyed immunity from a suit raising a claim that its plan for highway utility pole placement was deficient.

In this case, the Plaintiff's decedent lost control on a snowy road of her car and struck a wooden utility pole. Plaintiff sued Verizon-Pennsylvania alleging that the utility pole was negligently placed and managed. Verizon joined PennDOT, alleging that PennDOT analyzed utility pole placement and advised utilities on whether the poles were placed in acceptable locations. Utilities were required to obtain PennDOT approval for pole placement. Thus, Verizon claimed any negligence must be attributed to PennDOT.

The Mayer court rejected Verizon's cross-claim and ruled that such claims did not fall within any of the exceptions to the Sovereign Immunity Act. The "highway exception," in particular, only applies to the breach of a duty to properly design, construct and maintain the paved portions of highways and the berm or shoulder, and does not include the remainder of the right-of-way within PennDOT's control.

The court in Mayer therefore found that the law excluded any claims against PennDOT based on theories that PennDOT allegedly owed duties pertaining to maintaining "clear zones" of safety for drivers on that right-of-way.

With these rulings, the Berks County Court of Common Pleas followed the general rule of no liability for PennDOT and granted summary judgment in favor of PennDOT.

A copy of the Mayer case can be secured for a small fee by calling the Pennsylvania Law Weekly's Instant Case Service (1-800-276-7427) and giving the above noted PICS Case Number.

Source: Case Digests in 3/8/10 Pennsylvania Law Weekly

Tort Talk Reaches Another Milestone - 250 Email Subscribers!

I now have 250 subscribers to Tort Talk!!

Thanks to everyone who has signed up and stayed on. I hope you continue to find this blog informative and maybe even interesting.

As always, if I can help out anyone in any way on any matters you may have, please do not hesitate to contact me at dancummins@comcast.net.

Thanks again.

Phildelphia County Post-Koken Decision Reconsidered and Reaffirmed

I recently reported on a post-Koken decision that had been handed down in Philadelphia County in the case of Zerggen v. Rietman and Nationwide Insurance, No. 0906 of 1752 June Term 2009 (Phila. Co. Jan. 20, 2010 McInerney, J.). On the first time around, Judge Patricia McInerney sustained the preliminary objections filed by the tortfeasor and ordered the case transferred to Chester County on a venue argument and also severed the third-party case from the underinsured motorist claim against Nationwide.

That prior decision was by Order only, without any Opinion. The Plaintiff in Zerggen filed a Motion for Reconsideration. The court vacated its original decision and the parties awaited the Court's reconsideration of the matter

Then on March 3, 2010, Judge McInerney issued her reconsideration Order. In this Order, the Judge ruled upon Defendant Reitman's preliminary objections to the Plaintiff's fourth Amended Complaint.

The Court now ruled that the preliminary objection asserting improper venue was overruled.

The Philadelphia County Court also ruled that the preliminary objection by the tortfeasor defendant on misjoinder of a cause of action was overruled "without prejudice to the Defendants making a motion to sever to be decided by the trial judge or filing a petition pursuant to Pa.R.Civ.P. 1006 (d); otherwise, the Defedants and the causes of action shall remained joined...."

Anyone desiring a copy of this recent Order (without any Opinion) may contact me at dancummins@comcast.net.


Defense counsel for the tortfeasor is Ronald Marrero Esq. and counsel for Nationwide is Victor M. Verbeke, Esq. I thank Attorney Verbeke for keeping me advised on the progress of this case.

I note that the Zerggen Philadelphia County case was initially in favor of a severance of the claims and was thereby in conflict with the previous Philadelphia County cases I have seen of Richard Hess v. Cosgrove et al., Phila, July Term, 2008, no. 3708 (request to sever UIM claim and third party claim denied) and Kelly Hess v. Dickel, et al., Phila, October Term, 2008, no. 3220 (request to sever UIM claim and third party claim denied). [I do not have copies of those opinions on hand.]

With this new decision denying severance, the Zerggen case is now consistent with the previously noted Philadelphia County cases on this issue.

The hope remains that a trial court judge somewhere along the line will hopefully grant permission for this issue to go up on an interlocutory appeal to the Superior Court so that members of the bar, as well as the trial court judges, can secure some appellate guidance on how to handle this issue.

For more details on the county-by-county handling of this issue by the trial courts, please click on the Post-Koken Scorecard down on the right hand column of this blog.

Recent Cases of Note Highlighted on Pennsylvania Defense Institute Website

The following case was recently highlighted on the Pennsylvania Defense Institute website (http://www.padefense.org/). More details on these cases, as provided by Matt Keris, Esquire from the Moosic, PA office of Marshall, Dennehey, Warner, Colemen and Goggin, can be reviewed by visiting that website and clicking on "Case Summaries."

Bowman v. Sunoco, Inc., 986 A.2d 883 (Pa. Super. 2009) (Opinion by Stephens, J.)

The Plaintiff in Bowman raised a negligence claim for injuries she sustained while working as a private security guard on Sunoco property. As a term of her employment, she signed a third party release pertaining to any and all claims she may have against any customer of her employer.

In a case of first impression, the Superior Court ruled that there was no public policy violation in enforcing the release because the release did not affect the employee's workers' compensation rights. In other words, the court ruled that there was "nothing unconscionable about releasing claims against customers for injuries [sustained by the employee] that are already covered by workers' compensation law." Plaintiff's claims were therefore dismissed.

Bad Faith Claim Severed From Post-Koken Lawsuit in Bucks County

On February 16, 2010 Judge Clyde W. Waite of the Bucks County Court of Common Pleas sustained the Preliminary Objections of the UIM carrier requesting that the bad faith claim be severed from the third party claims and the UIM claim all filed under one caption in the case of Hartman v. Schofield and Progressive Insurance Company, 2009 - Civil - 11956 (Bucks Co. Feb. 16, 2010 Waite, J.). The Judge offered this decision in an Order without an Opinion.

Anyone desiring a copy of opinion may contact me at dancummins@comcast.net.

I thank Robert Dapper, Esquire of the Pittsburgh law firm of Dapper, Baldasare, Benson, Behling & Kane for bringing this case to my attention.

Update on Luzerne County Judicial System Scandal

I offer the following link to an article updating the Luzerne County Judicial System Scandal:

The Times Leader:

http://www.timesleader.com/news/Ex-judges_launch_their_attack_03-02-2010.html

Deposition of UIM Claims Rep in a Post-Koken Case

In a case that is already getting much play on the listserve for the Plaintiff's bar, trial court Judge William Amesbury recently issued a February 1, 2010 Order allowing for a limited deposition of a UIM claims representative in the post-Koken case of Paulewicz v. Fronczkewicz, Bryan, and State Farm, 10655-CIVIL-2009 (Luz. Co. Feb. 1, 2010, Amesbury, J.).

In Paulewicz, the Plaintiff brought negligence claims against the third party tortfeasor owner and driver, as well as an underinsured motorist claim against State Farm under one caption. There was no bad faith claim at issue as any such allegations were stipulated out of the case by the parties for the time being.

When Plaintiff's counsel noted a desire to depose the UIM claims representative, the UIM carrier filed a Motion for a Protective Order to preclude the same.

On February 1, 2010, Judge Amesbury issued an Order denying the Motion and allowing for the deposition of the claims rep to go forward. However, the Judge specifically noted that the Plaintiffs were "precluded from deposing" the UIM claims adjuster "as to his mental impressions, conclusions, or opinions respecting the value or merit of the claim, defenses to the claim, or respecting the strategy or tactics in defense of claims by State Farm...."


Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

UPDATE (Posted October 21, 2013): In two separate Orders without Opinions issued on October 4, 2013, Luzerne County President Judge Thomas F. Burke, Jr., granted Motions for Protective Orders to preclude the deposition of a UIM claims rep in the cases of Garrett v. Griffin and Erie Ins. Exchange and Krzynefski v. Bish and State Farm.

To view the Tort Talk blog posts on these two more recent decisions out of Luzerne County, click this LINK.