Piper v. Marolf

1

Peter R. Piper, Appellant v. Rochella M. Marolf, Pennsylvania Department of Transportation, and Township of Lackawaxen

No. 1470 C.D. 2021

Commonwealth Court of Pennsylvania

August 24, 2023

OPINION NOT REPORTED

Submitted: August 5, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE LORI A. DUMAS Judge

MEMORANDUM OPINION

RENÉE COHN JUBELIRER, PRESIDENT JUDGE

Peter R. Piper (Piper) appeals from the Order of the Court of Common Pleas of Pike County (common pleas) that granted the Motion for Summary Judgment (Motion) filed by the Pennsylvania Department of Transportation (DOT) and denied Piper's Cross-Motion for Summary Judgment (Cross-Motion) on Piper's Civil Complaint (Complaint) against, among others, DOT for negligence arising out of an August 24, 2013 motorcycle accident.^[1] The issue in this appeal is whether common pleas erred in concluding that: there were no material facts in dispute over whether DOT received actual written notice of the dangerous conditions of State Route 4006 (S.R. 4006); Piper could not establish that DOT received such notice; and DOT was entitled to sovereign immunity because the pothole exception to sovereign immunity set forth in Section 8522(b)(5) of the Judicial Code, 42 Pa.C.S. § 8522(b)(5),^[2] was inapplicable as a matter of law. Because there is a disputed material fact as to whether DOT received written notice of S.R. 4006's dangerous condition that must be decided by a jury, common pleas erred in granting DOT's Motion, and we vacate and remand for further proceedings.

I. BACKGROUND

On August 24, 2013, at around 6:30 p.m., Piper was driving his motorcycle in the westbound lane of S.R. 4006 in the Township of Lackawaxen (Township) in the County of Pike (County), and Rochella M. Marolf (Marolf) was driving her SUV in the opposite direction, partially in the westbound lane. (Complaint ¶¶ 6-7.) Piper alleged that S.R. 4006's westbound lane "was in a generally deteriorating condition, so that more than one-half (1/2) of the west[]bound lane was cracked and falling apart." (Id. ¶ 8.) The road's condition caused Piper to move to the center line of the lane as he entered a turn. (Id. ¶ 9.) Because Marolf's vehicle was partially in the same lane, Piper "turned his motorcycle so as to set it down on its side causing it and him to collide with [] Marolf's vehicle." (Id. ¶ 10.) As a result, Piper sustained numerous severe and permanent injuries, including a fractured neck. (Id. ¶ 17.)

On August 22, 2014, Piper filed the Complaint^[3] against Marolf, DOT, Township, and County, asserting negligence claims against each. Relevant here, Piper averred that DOT owned and maintained S.R. 4006, and "prior to the above accident, written notice of the deteriorating condition of S[.R.] 4006 in the area of the accident was made to . . . [DOT]." (Id. ¶¶ 11, 14.) Piper alleged that DOT "was negligent for failure to repair S[.R.] 4006 . . . in that:" "[i]t allowed a dangerous defect to exist on S.R. 4006 after written notice of the danger[; and i]t allowed S.R. 4006 in the area of the accident to deteriorate and crumple after written notice of the deterioration and crumpling." (Id. ¶ 20.) Specifically, Piper maintained that DOT "had received written notice of the dangerous deterioration of S.R. 4006 and failed to make necessary repairs" and, "[a]s a direct and proximate result . . ., [Piper] suffered serious bodily injur[ies,] including a fractured neck[,] which are permanent and total causing damages including past, present and future medical expenses, lost wages, pain, suffering and other attendant damage[s]." (Id. ¶¶ 21-22.)

DOT filed an Answer and New Matter,^[4] in which it denied the allegations, particularly that it was negligent in maintaining S.R. 4006, and demanded strict proof as to its receiving notice of the alleged deficient condition of S.R. 4006. (DOT Answer and New Matter ¶¶ 20-21.) DOT asserted sovereign immunity as an affirmative defense to the negligence claims brought by Piper, which would not fall within a strict construction of the exceptions set forth in Section 8522(b). (Id. ¶ 36.)

Discovery ensued, and various depositions were taken, including those of: Dennis Giordano, the Assistant District Executive for Maintenance for the DOT district that includes County, (Reproduced Record (R.R.) at 37a-86a); Kenneth L. Thiele, DOT's Maintenance Manager for County, (id. at 89a-122a); and Richard Krochta, a Township supervisor and former Township roadmaster, (id. at 179a-87a). DOT responded to Piper's interrogatories and document requests, including answering "none" to the request for records of oral or written complaints about the condition of S.R. 4006. (Id. at 130a-32a.) Additionally, Piper obtained meeting minutes from monthly Road Task Force (Task Force) meetings, which were attended by municipal roadmasters, supervisors, and DOT employees, including Giordano and Thiele. DOT received the Task Force's meeting minutes. Piper also obtained from DOT photographs of the section of S.R. 4006 at issue taken on June 18, 2013, two months before the accident. (Id. at 195a-98a.)

Following discovery, the Motion and Cross-Motion were filed. DOT asserted it was entitled to judgment as a matter of law because Piper failed to produce evidence of DOT's receipt of actual written notice of S.R. 4006's road condition, which was required for Piper to invoke the pothole exception to sovereign immunity under Section 8522(b)(5). DOT contended that "[w]hile it is true the issue of notice is usually considered a question of fact for the jury, [Piper] herein has offered no evidence at all that [DOT] had actual written notice of the condition at the situs of [Piper]'s accident." (DOT's Brief (Br.) in Support of Motion at 5-6, R.R. at 164a-65a.) When no evidence of actual written notice is of record, DOT argued, there is "'no basis for [a] jury to conclude that [the plaintiff's] claim [falls] within the 'pothole' exception to sovereign immunity.'" (Id. at 6 (quoting Lacava v. Se. Pa. Transp. Auth., 157 A.3d 1003, 1016 (Pa. Cmwlth. 2017)), R.R. at 165a.) As there was "no dispute over a material fact related to notice," DOT maintained it was entitled to sovereign immunity and Piper's claims against it failed as a matter law. (Id.)

Piper responded, pointing to evidence obtained during discovery that, in his view, raised a factual question as to whether DOT had received the notice required for Piper to proceed under the pothole exception. Piper cited, among other evidence: Krochta's deposition testimony that he sent a letter to DOT regarding S.R. 4006's condition; the Task Force's meeting minutes, which Giordano and Thiele acknowledged DOT received; Giordano's and Thiele's acknowledgment that numerous complaints were raised about S.R. 4006 at the Task Force meetings, which were reduced in writing in those minutes; DOT photographs depicting S.R. 4006 upon which there was writing regarding the location and notations regarding the road's condition; and a letter from County Commissioners to the Executive Secretary (Executive Secretary) of the Pennsylvania State Transportation Commission (Commission) outlining projects and needed improvements to S.R. 4006. (Piper's Answer to the Motion ¶¶ 23-24, R.R. at 337a-40a.) This evidence, Piper asserted, "demonstrated . . . that . . . DOT in fact received [the] statutory required notice on numerous occasions, that such notice preceded the accident and that []DOT had ample opportunity to remedy the dangerous existing condition and failed to do so." (Id. ¶ 24, R.R. at 339a.) Therefore, Piper contended there were genuine issues of material fact at issue, which precluded granting the Motion.

Piper sought summary judgment on his own part because, he argued, the undisputed evidence reflected "that the 'base failure' deterioration of [S.R. 4006] was [the] caus[e] in this accident," S.R. 4006 was in a dangerous condition, DOT had notice thereof, and DOT had a reasonable opportunity to resolve the condition but failed to do so. (Id. ¶¶ 31-32, R.R. at 340a.) In its response, DOT denied the allegations of notice and observed that no letter from Krochta was found in its records and Krochta did not produce the supposed letter he sent to DOT. (DOT's Answer to the Cross-Motion ¶ 32, R.R. at 358a.)

Upon its review of the Motion, Cross-Motion, the parties' briefs, and oral argument, common pleas granted DOT's Motion and denied Piper's Cross-Motion. Common pleas explained "[t]he [p]othole [e]xception places the burden of proving actual written notice squarely upon the claimant." (Common pleas' Aug. 13, 2018 Mem. and Order (Mem. and Order) at 4 (citing Stevens v. Dep't of Transp., 492 A.2d 490, 493 (Pa. Cmwlth. 1985)).) If "there is insufficient evidence in the record to establish that [the] agency received actual written notice," common pleas held, "there is no basis for a jury to conclude that a claim falls within the [p]othole [exception] to sovereign immunity." (Id. (citing Lacava, 157 A.3d at 1016).) Common pleas examined some of the evidence Piper cited in opposition to the Motion - the Task Force meeting minutes, Krochta's testimony regarding the letter about S.R. 4006 he sent to DOT, and the County Commissioners' letter to the Executive Secretary - and found them all to be insufficient to provide actual written notice to DOT. (Id. at 4-6.) In doing so, common pleas reviewed the evidence, compared it to other evidence in the record, and held it was "not persuaded" that Piper's cited evidence could establish that DOT received actual written notice of the deteriorating condition of S.R. 4006. (Id.)

With respect to the Task Force meeting minutes, common pleas acknowledged that the meeting minutes were provided to DOT but,...