*1 However, filing explanation to establish that the late this rule has been liberalized conduct, ap non-negligent non-negligent include the conduct of an I do was due his pellant’s attorney possible grounds as not believe that this court conclude that Id.; permitting appeal pro an nunc tunc. trial court its discretion or com- abused Commonwealth, see also Bass v. allowing appeal mitted an error law Grande, (1979); Tony Inc. v. pro Accordingly, nunc tunc. I would affirm Compensation Appeal Workmen’s Board the trial court’s order.4 (Rodriguez), 71 Pa.Cmwlth. (Pa.Cmwlth.1983). KELLEY, JJ., join in this SMITH and dissenting opinion. Here, Lajevic’s attorney stated that he appeal filed the late because he had become and,
unexpectedly ill hospitalized and was
thereafter, was confined to his home. Cru
cially, accepted explana court trial However, Majority,
tion as credible.
exceeding scope this court’s limited of re
view, disregards credibility determina merely because the record does not any independent
contain evidence to sub Stacey DEAN, Appellant, L. Lajevic’s attorney’s explanation. stantiate Majority Specifically, points out that La jevic’s attorney Pennsylvania, to state the exact “failed COMMONWEALTH time frame illness and did not submit of said DEPARTMENT OF TRANSPORTA have verified TION; Eugene medical records that would and Ronald Bell. 372.) However, Lajev (Majority op. it.” at Pennsylvania. Court of Commonwealth attorney hospital ic’s did state that he was pneumonia ized with in March and that he Argued June 1998. (Hearing incapacitated for a month.1 Sept. Decided 1998. 7.) addition, Transcript In there 9/20/96 appellant’s requirement is no that an coun produce verify an ill
sel medical records fact, there is no indication that
ness. produced
medical records were Bass.2
Furthermore, Lajevic’s it is conceivable
attorney not see the need to secure such did con
documentation as he relied on DOT’S delayed filing.3
sent to the
Lajevic’s attorney’s certainly the illness is
type non-negligent conduct which our su-
preme recognized grounds has as a court appeal pro nunc tunc. Be-
permitting Lajevic’s attorney provided a credible necessar- period largely encompasses peri- nize that this does mean that courts 1. This time ily accept explanation of an illness with- during have will should od documentation; Thus, anyone Lajev- who fails to Majority's out medical statement that filed. at one’s own risk. document one’s illness does so during preced- attorney the "month ic’s was ill date, 372), ing” filing (Majority op. the final misleading. Majority emphasizes Although that DOT period consenting to the extended denied Lajevic’s filing appeal, the trial court believed secretary attorney’s testi- 2. Bass states that the attorney. illness, that, during her that she was ill and fied However, by physician. treated she was challenge secretary the trial produced I note that DOT does not nothing to indicate verify recog- on the merits. We court’s decision the illness. medical records *2 Weinstock, Philadelphia, ap- Daniel S. pellant. Schwaibold, Harrisburg, ap-
Gerhard pellee. COLINS, Judge, and
Before President PELLEGRINI, DOYLE, McGINLEY, KELLEY, FLAHERTY and LEADBETTER, JJ.
PELLEGRINI, Judge. (Dean) appeals
Stacey L. Dean
Hun-
order
Pleas of
of the Court Common
(trial court)
tingdon County
mo-
granting the
summary judgment
by the
tion for
filed
Pennsylvania, Department
Commonwealth of
(collec-
Eugene
Bell
Transportation
PennDot)
tively,
determining
it was
Dean.
sustained
liable
dispute.
not in
facts of
case are
January
passenger
was a
On
Dean
operated by
Bell. The vehicle
vehicle
proceeding
Route 22 when
east on U.S.
it fishtailed on
snow-covered
of the vehicle.
causing Bell to lose control
result,
beyond the
went
As
vehicle
graveled highway shoulder and continued
declining embankment where
steep,
over a
sideways. Dean sustained seri-
overturned
quadriplegia.
injuries resulting in
ous
alleging,
against
filed suit
PennDot
Dean
neg-
things,1 that PennDot was
among other
(a)
design,
Failing
properly
alleged
negligent
construct
1. Dean also
highway;
by:
maintain a safe
negligent
2. The action arises out of a
act
ligent by failing
properly
steep
shield the
agency
employee
or an
portion
on the
or omission of
embankment with a
any agency acting
scope
within the
of his
highway at
occurred.
accident
summary judg
employment;
her
PennDot filed a motion for
*3
relying on
ment that the trial court denied
damages
negligent
out of the
3. The
arise
our
Court’s decision Bendas v.
act;
act or failure to
Deer,
Township
Pa.
611
White
531
damages
4. The
would be recoverable
(1992), holding
a
A.2d 1184
that it was for
creating
or under a statute
a
common law
guard
jury
if the absence of a
to determine
death;
action,
wrongful
e.g.,
and
than two
rail constituted
More
negligent act or omission falls
5. The
later,
years
a
motion
PennDot filed
second
sovereign
exceptions
one of the
to
within
summary judgment
light
of our deci
§
immunity
42
8522.
set forth at
Pa.C.S.
sion
Rothermel
Commonwealth §
42
Pa.C.S.
Transporta
Pennsylvania, Department of
negligence
that must
The elements
tion,
(Pa.Cmwlth.1996), holding
837
duty
obligation recognized
a
proven
be
are
or
negligent by failing
that even if
was
PennDot
to conform to a
requiring
law
the actor
place
to
a
on a
that fail
conduct;
certain standard of
a failure of the
liability
support
theory
a
ure did not
standard;
to conform to that
a causal
actor
immu
against
sovereign
PennDot under the
the re
connection between the conduct and
nity
argued that
statute.2 PennDot
sum
damage
sulting injury; and actual loss or
to
mary judgment
it
appropriate
was
because
of another. Mason & Dixon
the interests
not liable for Dean’s
as was
was
Lines, supra.
roadway that caused the
the snow on the
that she met these condi-
Dean contends
roadway,
vehicle to leave the
and the absence
dangerous
PennDot created
tions because
inju
guardrail merely “facilitated” her
of a
by failing
highway
to erect
condition of
proceed
by permitting the vehicle to
ries
law,
duty
common
and
guardrail, a
it had at
court
down the
The trial
embankment.
caused the car in which she
that this failure
summary
granted the second motion for
passenger
go
to
over the embankment.
relying
holding in Rother-
judgment
on our
argues
further
that because she suffered
She
petitioned
Dean then
this Court for
mel.
failure to
damages as a result
PennDot’s
order
permission
to
the trial court’s
guardrail,
is liable under 42
erect a
granted
granting summary judgment that we
8522(b)(4).
liability
Immunity
§
Pa.C.S.
and is now before this Court.3
negli-
as a result of the Commonwealth’s
damages in
plaintiff
For a
to recover
dangerous condition
gence waived for a
Commonwealth, it must
against
action
8522(b)(4)
§
when
pursuant
to’
following:
prove the
by:
damages are caused
of Commonwealth
dangerous
A
against
1.The
action is
a “commonwealth
sidewalks, including
and
agency real estate
agency” which includes an
party” or “local
thereof;
property,
real
Commonwealth-owned
employee
(b) Failing
comply
accepted
2. See 42 Pa.C.S. 8522.
properly
to
relating
government
industry
standards
and/or
construction,
design,
mainte-
to safe
nance,
Summary judgment
appropriate when there
guarding;
repair and
genuine
of material fact
is no
issue
judg-
clearly
its entitlement
movant
establishes
to
(d)
guard-
Failing
replace previously extant
to
Lines,
Dixon
a matter of law. Mason &
ment as
along
portion of road-
rails
the aforementioned
Mognet,
Inc. v.
removed;
previously
way
that had
considering
When
a motion for sum-
(e) Failing
slope of the severe
to flatten the
mary judgment,
rec-
the court must examine the
roadway
along
the section
embankment
nonmoving
light
favorable to the
ord in the
most
occurred;
accident
which the aforementioned
well-pleaded
parly, accepting
all
facts
as true
(f) Failing
comply
rules and
to
with its own
Id.
all
to be
therefrom.
and
inferences
drawn
regula-
regulations
as well as federal rules
highway design
pertaining
and mainte-
to
tions
nance.
Borough,
Pa.
possession
in the
McCracken v. Curwensville
lease-holds
a Common-
(1932) (common
law
agency
wealth
and Commonwealth-owned
A.
property
real
a Commonwealth
leased
public
place adequate
travelling
existed
agency
private persons,
highways
prevent skidding ears
on road to
jurisdiction
under the
of Commonwealth
road).4
Additional
going off side of
except
agency,
conditions described
Harmon,
Pa.
ly,
Snyder
(5)
potholes
(relating to
paragraph
Court held
A.2d 307
our
conditions).
dangerous
agen
a Commonwealth
of care that
real
A
condition of Commonwealth
using
real estate was
cy owed to those
its
“a
affairs
estate has been defined as
state of
required make the condi
that it
such
requires
impedes
or
correc
hampers
safe for the activities
property
of its
*4
Ward,
v.
Wyke
tion.”
81 Pa.Cmwlth.
used,
be
regularly
intended to
it was
375, 379(1984).
474 A.2d
used.5
reasonably foreseen to be
See
used or
Regarding
duty
guard
to
PennDot’s
erect
Amwell,
Township
Pa.
Yoders v.
also
of
highway,
rails on the
Dean needed to estab
(1896);6
379
Second,
immunity
for which
has
interpretation of
waived,10 nonetheless,
liability
immunity
not
sovereign
is consistent with
statute
if
negligence
provides
“normal”
there
8522
a sec-
prohibited
law
under 42
proximate
responsible
be
or
causes of
can
two
more
proximate
ond
cause
negligence
neg
in a
action because
can be more
injuries. Because there
Dean’s
ligent
may
proximate
injuries,
act
be a
dam
proximate cause
we
than
one
ages
though
Rothermel,
even
have
causes
expressly
decision
overrule our
McElyea
to the result. See
v.
contributed
accordingly,
court’s order
and
vacate
trial
Transportation
Navistar International
Cor
summary judgment
remand the
granting
1366,
poration,
F.Supp.
aff’d, 950 F.2d
788
proceedings
case
further
consistent
(C.A.3(Pa.)1991); Mazur v. Merck
&
opinion.
Inc.,
(E.D.Pa.
F.Supp.
Company,
1990);
Corporation,
v.
Wieder Towmotor
ORDER
(E.D.Pa.1983); Commonwealth,
F.Supp. 1058
NOW,
September,
day of
AND
this 18th
Highlands
Fidelity
to Use
Willow
U.S.
order
the Court of Common
Guaranty Company,
&
A.2d
January
County dated
Huntingdon
Pleas of
(1950); Shippen Township
Portage
summary
granting the motion for
Township,
judgment
by the
filed
Commonwealth
petition
allowance
denied
Transportation
Pennsylvania, Department of
Pa.
Because the
Bell,
and the ease
Eugene
is vacated
damages
focus is
initial
on the
or
pro-
court for further
remanded to the trial
cause,
subsequent
escape liability
where
opinion.
ceedings consistent with this
Juris-
are two more substantial causes of
relinquished.
diction is
damages, the
must
defendant
show
*6
injuries
plaintiff’s
have
the same
would
LEADBETTER,
concurring.
Judge,
its
even
DeVita v.
without
Durst,
105,
Even
is
in
the
is safe for
intended
correct
by
only
on
the
has been waived
Penn-
roadway
the snow
the
was not a
that
issue
that
fencing
fall
the real estate
reasonably
is
in the
did not
within
because there
not a
close nexus to
resulting injuries
sovereign immunity
injuries and
are not
the
exception
the
the
to
because
Club,
v.
inevitable. See Redland Soccer
Inc. De
allowing
negligence in
the break in the fence did
States,
Army
partment
F.3d 827
United
55
probable
produce as
conse-
not
a natural and
of
of
denied,
1071,
(3rd Cir.),
U.S.
116
cert.
516
S.Ct.
juvenile
quence
as
to
the
of the
so
not
actions
772,
725; Dudley
Corpora
L.Ed.2d
v. USX
133
injuries.
of
have been
tion,
160,
(1992),
Pa.Super.
606
916
414
A.2d
denied,
appeal
petition
532 Pa.
allowance
for
of
Commonwealth, Department
Huber
See
words,
(1992).
985
while
616 A.2d
82, 551 A.2d
Transportation, 122 Pa.Cmwlth.
possible,
have made
because
(1988),
petition
de
allowance
1130
for
many
there
other attendant causes of
are so
nied,
A.2d
525 Pa.
931
conduct,
particular event
be consid
cannot
bringing about
factor in
ered a substantial
by
legal duty
PennDOT that
1. The
owed
injuries.
example, in
v. Youth
For
Mascaro
reasonably
highway
condition for
be in "a
safe
Center,
Study
514 Pa.
A.2d
using
by persons
the road in the ordi
travel
Supreme
inflicted on
our
Court held
with reasonable
nary.
usual manner and
..and
juvenile
family by
their home
a
a
who entered
Commonwealth, Dept.
Trans
Felli v.
care.”
escaping
detention center where
after
from the
1995).
(Pa.Cmwlth.
portation,
climbing through
being
held
break
he was
Indeed,
DOT in
case.
I
I
would dissent
this Court has the authori
While believe
ty
decisions,
from
prior
such
unless and until clear
to overrule one of its own
generally
namely,
accepted
scientific evidence
Rothermel v. Commonwealth
presented
efficacy
Pennsylvania,
Department
Transporta
under
tion,
(Pa.Cmwlth.1996),1
modern
I
conditions. What
little
do
subject
authority
caselaw there is on the
was
not believe we have the
to overrule
devel-
oped
buggy days,
precedent
in the
ease
horse and
and thus
written
Harmon,
instance,
Court,
today.
helpful
notably Snyder
is less than
For
it is
(1989), which,
view,
my
all clear to me that a barrier
sufficient
prevent
driving
a tractor-trailer
off
outcome in this case.
controls the
sixty
per
road
miles
hour would not do
opinion
in either this Court’s
Nowhere
accidents,
good many
more harm than
and Snyder
opinion
v. Harmon2 or in the
of the
judges
juries
neither
nor
should be allowed
reversing
that decision
speculate
about such matters.
In addi-
any argument
plain-
advanced that the
tion,
dealing
liability
we are not
with a strict
using
purposes
tiffs were not
the road
standard;2
duty only
has a
PennDOT
act
for which it was intended to be used. The
prudence,
with reasonable
not to make the
plaintiffs
specifi-
Snyder
v. Harmon had
highways
they
possibly
as safe
can
as
be no
cally pled
Pennsylvania
argued
practical
matter what the cost or other
con-
(DOT)
Department
Transportation
siderations. At such time as this court is
negligent by
guardrail
its failure to erect
presented
ap-
with a record which contains
along
strip
L.R. 33060 where it bordered
evidence,
propriate scientific
we will be able
adjacent
high-
mine
to that state
which was
(at
to determine whether a
exists
least way. This Court held that “the absence of
circumstances)
under certain
aas matter of
guardrail alongside
roadway [which
plaintiff
present
law or whether each
must
jurisdiction
on land owned or under the
was]
expert testimony
necessity
guard-
of the
of DOT
condition on Com-
[was]
Here,
case-by-ease
rails on a
basis.
re-
property,
lack of the
monwealth
as the
sponse
summary
motion
PennDOT’s
danger
falling off
increases the
judgment, plaintiff came forward with no
strip
precipice
an 80-foot
into the
mine.”
such
Consequently,
evidence.3
had Penn-
deleted).
(emphasis
519 A.2d at
*7
issue,
properly preserved
DOT
I would
decision,
Supreme Court reversed that
articu-
grant
summary judg-
have affirmed the
lating the law as follows:
ment.
appellees
that the close
The
next assert
proximity
L.R. 33060 and the
between
KELLEY, J., joins
concurring
in this
chasm,
deep
deceptive
unlit and
opinion.
appearance
of the road
of the shoulder
presented
inherently dangerous condi-
DOYLE, Judge, dissenting.
Thus, liability
predicated
is not
on a
tion.
land,
respectfully
I
dissent.
defective condition on Commonwealth
Sovereign immunity
only
Although recognize
2.
1.
I
that this Court
over
has been waived
8522(a).
Court,
§
prior
See
Pa.C.S.
rule a
I am of the
decision
this
view
Court should not do so in this
that this
instance under these circumstances. Rothermel
recently
3. Our
Court has
held that:
important
decision of this Court
was an
en banc
non-moving party
adduce
[W]here
fails to
law,
developing
decided
in a
area of the
on
sufficient evidence to establish
existence
6, 1996,
years ago. By
March
less than two
an element essential to his case and on
today adopting
view of the dissent in Rother
proof,
moving
then the
he hears the burden of
great
making
paramount,
mel and
that view
parly
judgment
is entitled to
as a matter of
uncertainty
litigants
is created in the law for
law.
bar,
practicing
disrupts the
and it also
order
Co.,
Ertel v. Patriot-News
ly development
of the law the
—
denied,
1038,
U.S.
cert.
development ultimately
where such
rests.
—,
512,
(1996)
117 S.Ct.
L.Ed.2d
Catrett,
317,
[adopting
Corp.
Celotex
477 U.S.
(1986)].
106 S.Ct.
wealth knows or should know any prevent
and takes no action to harm occurring. theory ap- this While attractive, supported is
pears it immunity exception to our statute. strip
It is uncontroverted that the
mine
highwall,
points
appellees
at the
where
Lisbeth HOOK
Ursula
fell,
edge
some distance from
Furthermore,
right-of-way.
PennDOT’s
Pennsylvania,
lighting
the absence of
so as to create a
DE
COMMONWEALTH
TRANSPORTATION,
deceptive appearance of the shoulder of
OF
PARTMENT
LICENSING,
the road cannot be
to be either an
said
BUREAU OF DRIVER
artificial
of the land
Appellant.
a defect
Accordingly,
itself.
we conclude
Sec-
Pennsylvania.
Commonwealth Court
8522(b)(4)
inapplicable
cause of
The
action.
issue of
thus
Aug.
Briefs
Submitted
becomes moot.
Sept.
Decided
(emphasis
Id. at
The contradicts that hold-
ing. majority states:
Dean these contends she met condi- [causation]
tions because PennDOT creat- a dangerous
ed condition of the
by failing erect a guardrail, law,
had at common and that failure passen-
caused in which the car she was
ger go fur- over embankment. She argues
ther that because she suffered
damages as a result of PennDOT’s failure guardrail,
to erect PennDOT liable 8522(b)(4)....
under *8 376.) added.)
(Op. (Emphasis majority opinion further then states
that:
Dean us to reconsider our asks hold that the absence Rothermel guardrail was one the causes of her
injuries utilizing language set forth (b)(4)]. 8522[ added.) 378.)
(Op. (Emphasis majority might strongly the wish
However the outcome backtrack and reverse
Rothermel, has when
clearly in an situation that stated identical causation, duty, and issue of hence exception of Section
moot because the