*2 CAVANAUGH, PRICE, JJ. and Before HESTER HESTER, Judge: of of from the Order the Court Common appeal

This an in Washington County granting summary judgment of Pleas and rele- procedural history The facts appellees. favor of as appeal on follows: vant to issues Lehnig, of estate Ella Mae administratrix Appellants, Inc., Lehnig, Glasgow, employer, decedent’s of Alfred H. and em- trespass against appellees, an seven brought action Transportation. ployees Pennsylvania Department Decedent, truckdriver, employer’s was killed and his truck public it a deteriorated of a destroyed portion when struck and plunged lost control of the truck highway. Decedent over enbankment. through guardrail Appellants and an had roadway dangerously been deteriorated alleged that time, that would have period inspection a substantial for fact, the accident was caused revealed that and appellees’ negligent inspect repair road, failure to and or to warn the of its public condition. The Com- Pennsylvania monwealth of was not a party the law suit. The granted Court Common Pleas Washington County summary judgment appellees in favor of on the ground public employees, they were liability immune from for ordinary negligence performance of their official affirmed, functions. On we appeal, our Supreme granted allocatur. The Supreme Court remanded pro- ceedings with consistent Dubree v. (1978). The Court en argument banc after upon principles consideration set forth in

sustained the granting summary judgment in favor of all appellees. then filed this Appellants timely appeal.

Appellants Washington contend the County Court of Com- Pleas principles mon erred applying enunciated in Dubree v. Commonwealth of Pennsylvania, supra. *3 Supreme

The in supra: Court stated “In order to his discharge public duties a effectively, servant must be free to exercise judgment his unham- pered by the fear of unpredictable liability. Where the nature of the servant’s decision or action in question is may such that it not be measured a against predictable care, standard of the possibility tend to litigation may discourage making public the of clear choices. It is in the chilling interest to avoid such a upon effect the servant’s Where, performance hand, of his duties. the on other a may standard of care be defined ¿pplied and with relative ease, the public servant is not the similarly deterred and public protection interest in the of the official weakens. the strength Also relevant to the interest is the public potential challenged of the decision or impact upon action whole public upon large segment the as a or a of it. The or this greater pervasive impact, more be- stronger the public insuring comes interest in unfettered decision- making.” Supreme

The Court further stated: unimpaired “Consistent with the interest in decision- making, protect we it appropriate believe to from the who has not himself servant public of suit a possibility Thus, ‘chain those in the in actionable conduct. engaged subject any theory to suit on should not be of command’ public servant en- . . If a responsibility . vicarious his in performance conduct in actionable gages em- duties, his ultimate he only and subject to are suit.” ployer, There administrators.

We are appellees note that view part. their In of direct conduct on allegations are no Court, that appellees we hold Supreme of our ruling subject they merely to because suit should not be “chain command.”

Furthermore, responsible those at a time when a position been in highways of state have maintenance to had to be made as decisions economic important where had have priority, to repairs should needing what areas engage be able to they importance is of utmost our by Supreme As indicated making. decision unfettered totally would result a Court, challenge such decision impact upon public. devastating of Act 152 provisions further contend the Appellants In 28, 1978, retrospectively. not apply should September (Act 152) 5110(a)(5) provides: regard 42 Pa.C.S.A. § dangerous conditions.-Damages, other “(5) Potholes damages, caused property other than of Common- highways jurisdiction under or sinkholes or other by potholes created agencies wealth *4 elements, except natural by conditions created similar dangerous the to recover must establish the claimant kind foreseeable risk of the reasonably created a was and that the Common- damage which incurred notice the had actual written agency wealth the prior the a sufficient time to highway condition of protect against measures to event to have taken dangerous condition.” 28,1978, 788, 152, September P.L. further of Act 5

Section provides follows: as

Section 5. Construction and Application

“In this Act: An applying action which accrued to prior the effective date this is by Act but which barred 42 Pa.C.S.A. 5110 and not is within contained exceptions therein, barred, shall continue to be sovereign immu- defense, nity action, shall continue as a unless the would barred, not have and sovereign immunity been would not it, have been by applicable a defense to statutory and 1 13, decisional as July law it existed on 1978.” Furthermore, 42 5111(b)(5) Pa.C.S.A. clarifying § types damage against recoverable the Commonwealth acting and its employees within their scope employ- losses, ment “Property except states: property losses shall not be brought recoverable in claims pursuant to Section 5110(a)(5).”

The statutory language thus indicates clear inten disposition tion to the of actions which were barred sovereign 13, because of to immunity prior July 1978. Rath standards, er than applying provides retrospectively, relief some instances where sovereign an immunity was absolute defense and which occurred before its if enactment requirements 152 fulfilled, Act can be thereby breath ing new life into some previously barred lawsuits. 152 Act does not previously act as bar to against valid suits Commonwealth. Since it is clear that the instant action was by barred the doctrine of sovereign immunity prior July to 13,1978, the only issue is remaining whether this case comes within any exceptions in Act 152.

Appellant Glasgow’s claim is for property damage to its vehicle occasioned in the accident is clearly by barred 5111(b)(5), supra, Pa.C.S.A. since it is brought § an action pursuant 5110(a)(5) to (pertaining Section to defective road- ways) and is for property damage alone.

Appellant Ella Lehnig’s Mae claim is also outside the exceptions provided the Act due to the fact that failed she. July prior Mayle Pennsylvania Dept. Highways, (1978), abrogated which the doctrine of sovereign immunity and whose mandates were later codified enactment of Act 152.

17 written had actual Agency the Commonwealth to aver that highway. notice of Pleas of of Common the Order Court Accordingly, is af- summary judgment County granting Washington firmed. J.,

CAVANAUGH, concurring opinion. files a CAVANAUGH, concurring: Judge, view that the defendants majority’s with the I concur v. of Dubree principles under liability from immune (1978). I concur 540, 393 A.2d 293 481 Pa. I however, because think join majority, rather than 5110(a)(5) (limited waiver of 42 discussion about Pa.C.S.A. § 5111(b)(5) (limita- 42 sovereign immunity) and Pa.C.S.A. § deter- subsections damages) unnecessary. Those tions on which, sovereign not, the extent whether or mine is a defense Sovereign immunity immunity is a defense. its from agencies Commonwealth or which insulates Highways, Department Mayle Pennsylvania v. liability. 709, (1978). In the instant 384, 386, A.2d 710 388 not the agency, Com- of a Commonwealth employees case Thus, sovereign are defendants. agency, or its monwealth Nevertheless, immunity, official apply. does not immunity the instant apply does and bars enunciated in action. A.2d Pennsylvania

COMMONWEALTH BALAZICK, Appellant. Charles Pennsylvania. Superior Argued April 1979. May

Filed