The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter R. Piper, :
Appellant :
:
v. : No. 1470 C.D. 2021
: Submitted: August 5, 2022
Rochella M. Marolf, Pennsylvania :
Department of Transportation, and :
Township of Lackawaxen :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: August 24, 2023
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
1
Following the grant of DOT’s Motion, the matter went to a jury trial against third-party
defendant Rochella M. Marolf (Marolf), and the jury found in Marolf’s favor. Although Marolf
is a named appellee, she filed a notice of non-participation on June 13, 2022. The Complaint also
named the County of Pike and Township of Lackawaxen as defendants, but they were removed
from the matter prior to the Motion via separate praecipe of discontinuance. (Common pleas’ Aug.
13, 2018 Mem. and Order at 1-2.)
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
2
Section 8522(b)(5) provides:
(b) Acts which may impose liability.--The following acts by a Commonwealth
party may result in the imposition of liability on the Commonwealth and the defense
of sovereign immunity shall not be raised to claims for damages caused by:
....
(5) Potholes and other dangerous conditions.--A dangerous condition of
highways under the jurisdiction of a Commonwealth agency created by
potholes or sinkholes or other similar conditions created by natural elements,
except that the claimant to recover must establish that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which was incurred
and that the Commonwealth agency had actual written notice of the dangerous
condition of the highway a sufficient time prior to the event to have taken
measures to protect against the dangerous condition. Property damages shall
not be recoverable under this paragraph.
42 Pa.C.S. § 8522(b)(5).
2
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 Complaint3 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.)
3
The Complaint is Item 1 of the Original Record and is found at pages 16a-27a of the
Reproduced Record.
3
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
4
DOT’s Answer and New Matter is Item 14 of the Original Record and is found at pages
29a-35a of the Reproduced Record.
4
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
5
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,
6
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, citing
Giordano’s and Thiele’s deposition testimonies, observed that these “meetings
served as a forum for road complaints in general, including but not limited to
complaints regarding [S.R.] 4006” and that Thiele testified that most complaints
were made informally and would not be in the meeting minutes. (Id. at 4-5.)
Therefore, common pleas could not “find that the Task Force meeting minutes
provide[d] actual written notice of the dangerous condition.” (Id. at 5.) As for
Krochta’s letter to Giordano, common pleas was “not persuaded that such letter
exists” because, notwithstanding Krochta’s testimony that he sent such a letter,
“Giordano testified that he never received a letter from [] Krochta” and “no such
letter has been produced for examination by the [c]ourt” even though there had been
ample time to discover the letter. (Id. at 5-6.) Finally, common pleas disagreed that
County Commissioners’ letter gave DOT actual written notice of S.R. 4006’s
condition because it was not addressed to DOT, but to the Commission. (Id. at 6.)
Even if it had been sent to DOT, common pleas found that the letter “lack[ed]
sufficient specificity to qualify as actual written notice of the dangerous condition
with sufficient time in which to effect repairs.” (Id.) Concluding that Piper “failed
to meet his burden of proving that [DOT] received actual written notice of the
dangerous condition with sufficient time in which to effect repairs, . . . [common
pleas] f[ound] that there [was] no genuine issue of material fact regarding the
7
sovereign immunity of [DOT],” and, therefore, granted summary judgment in favor
of DOT and denied it as to Piper. (Id. at 7.)
Following entry of final judgment in the trial, which proceeded against
Marolf, Piper filed the instant appeal challenging common pleas’ grant of summary
judgment to DOT.
II. PARTIES’ ARGUMENTS
On appeal, Piper raises the following issue:
Whether [common pleas] committed an error of law in [the] application
of the facts, in that, [a] genuine issue of material fact exists that [DOT]
received written notice of the dangerous condition of [S.R.] 4006 in
sufficient time prior to the August 24[], 2013 collision to have corrected
the dangerous condition pursuant to [Section 8522(b)(5) of the Judicial
Code,] 42 Pa.C.S.[] §8522(b)(5).
(Piper’s Br. at 2-3.) Citing the evidence he proffered to common pleas in opposition
to Motion, Piper essentially argues common pleas failed to apply the proper standard
for reviewing the record in considering a motion for summary judgment because it
did not resolve “all doubts as to whether or not a genuine issue of material fact exists
as to whether or not [DOT] received written notice of the dangerous condition of
[S.R.] 4006” against DOT. (Id. at 8.) Piper contends that to defeat DOT’s Motion,
he “need[ed] only to demonstrate that a genuine issue of material fact that [DOT]
received written notice exist[ed].” (Id.) According to Piper, Krochta’s letter and
testimony as to complaints Krochta made regarding S.R. 4006’s condition during
Task Force meetings, the Task Force meeting minutes and related testimony
regarding repeated complaints made about the condition of S.R. 4006 during those
meetings, DOT’s own photographs of its road survey performed on June 18, 2013,
two months before the accident, which identified in writing the section of S.R. 4006
8
surveyed and other statistics, and County Commissioners’ letter to Executive
Secretary identifying S.R. 4006 as needing “serious and immediate attention” that
had been attached to Task Force meeting minutes, raised genuine issues of material
fact regarding whether DOT received the requisite notice. (Id. at 8-12 (citing R.R.
at 182a-86a, 195a-98a, 225a-27a, 234a-36a, 263a-67a, 281a-82a, 348a-50a).) Piper
asserts that County Commissioners’ letter is similar to the letter found to be
sufficient to defeat summary judgment in Walthour v. Department of
Transportation, 31 A.3d 762 (Pa. Cmwlth. 2011). Piper further points to Thiele’s
testimony that he received complaints about S.R. 4006, both following the Task
Force meetings and otherwise, but did not record those complaints in writing. (Id.
at 10-11 (citing R.R. at 265a-66a, 281a-82a).)
DOT argues common pleas correctly held DOT is immune from Piper’s claim
of negligence because Piper has not established that DOT received actual written
notice of S.R. 4006’s dangerous condition and, therefore, could not invoke the
pothole exception to sovereign immunity. According to DOT, Piper failed to come
forward with any evidence that DOT received actual written notice, and,
consequently, there was no dispute of material fact and the issue of notice was not
required to be presented to the jury pursuant to Lacava. (DOT’s Br. at 12-13.)
III. DISCUSSION
When reviewing common pleas’ decision to grant summary judgment,
this Court’s standard of review is de novo and our scope of review is
plenary. [Common pleas] should grant summary judgment only in
cases where the record contains no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. The moving
party has the burden to demonstrate the absence of any issue of material
fact, and [common pleas] must evaluate all the facts and make
reasonable inferences in a light most favorable to the non-moving
9
party. [Common pleas] is further required to resolve any doubts as to
the existence of a genuine issue of material fact against the moving
party and “may grant summary judgment only where the right to such
judgment is clear and free from doubt. . . . .” An appellate court may
reverse a grant of summary judgment only if [common pleas] erred in
its application of the law or abused its discretion.
Bourgeois v. Snow Time, Inc., 242 A.3d 637, 649-50 (Pa. 2020) (internal citations
omitted and emphasis added).
We have described the sovereign immunity the Commonwealth enjoys, and
the waiver of that immunity, as follows.
Generally, the Commonwealth enjoys sovereign immunity and is
immune from lawsuits unless this immunity has been specifically
waived by the Legislature. 1 Pa.C.S. § 2310. Section 8522 provides
for waiver of sovereign immunity in certain circumstances, stating in
relevant part:
(b) Acts which may impose liability.--The following acts by a
Commonwealth party may result in the imposition of liability on the
Commonwealth and the defense of sovereign immunity shall not be
raised to claims for damages caused by:
....
(5) Potholes and other dangerous conditions.--A dangerous
condition of highways under the jurisdiction of a Commonwealth
agency created by potholes or sinkholes or other similar conditions
created by natural elements, except that the claimant to recover must
establish that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred and that
the Commonwealth agency had actual written notice of the
dangerous condition of the highway a sufficient time prior to the
event to have taken measures to protect against the dangerous
condition. Property damages shall not be recoverable under this
paragraph.
42 Pa.C.S. § 8522(b)(5) (emphasis added). Hence, Section 8522(b)(5)
requires a plaintiff to prove two elements of notice: “(1) that the
Commonwealth agency had actual written notice of the dangerous
10
condition; and (2) that the actual written notice had been given
sufficiently prior to the incident giving rise to [the] plaintiff[’]s claim
so that the Commonwealth agency had a reasonable opportunity to
remedy the dangerous condition.” Stevens . . . , . . . 492 A.2d [at] . . .
493 . . . .
Walthour, 31 A.3d at 764-65 (first alteration and emphasis in the original). “[A]
general notice about the poor condition of the relevant section of a highway [can be]
sufficient under Section 8522(b)(5),” but a “transcribed telephone call [that] broadly
refer[s] to roads and not to a specific road” is not. Id. at 766 (citing Cressman v.
Dep’t of Transp., 538 A.2d 992 (Pa. Cmwlth. 1988); Merling v. Dep’t of Transp.,
468 A.2d 894 (Pa. Cmwlth. 1983)). But see Texeira v. Commonwealth, 284 A.3d
1279, 1284-85 (Pa. Cmwlth. 2022) (holding customer telephone calls to DOT’s call
center complaining about a specific area of a highway, which were transcribed and
sent to DOT office in relevant area, established a disputed question of fact regarding
whether DOT had actual written notice).
In Walthour, the evidence relied upon by the plaintiff to invoke the pothole
exception was a letter from a state senator to DOT indicating that “the condition of
Route 837 located in the City of Duquesne . . . ha[d] fallen into disrepair,” observing
the patchwork intended to solve the issue was causing more problems, and
requesting that DOT evaluate and repair the road as soon as possible. 31 A.3d at
763. Although it responded to the senator’s letter, stating it wanted to make major
improvements to the roadway in question but could not secure the requisite funding,
DOT subsequently argued in support of a claim of sovereign immunity that this letter
was not actual written notice that complied with Section 8522(b)(5) because it did
not reference a particular section of the road or pothole. The trial court agreed,
granting summary judgment in DOT’s favor. In reversing, we applied the above
standards regarding notice and when summary judgment can be granted, and held
11
that, viewing the record in the light most favorable to the non-moving party, we
could not “conclude that [the senator’s l]etter [was] insufficient notice as a matter of
law.” Id. at 768. We concluded, “[t]he sufficiency of the notice, in this case, is a
material fact that is disputed,” and must “be determined after a trier of fact considers
whether [DOT] would have been on notice of the dangerous condition alleged to
have caused or contributed to [the a]ppellant’s injuries upon a reasonable inspection
of the section of State Route 837 to which [the senator’s l]etter refer[red].” Id. As
there was a material fact in dispute that had to be resolved by a jury, it was error to
grant summary judgment, and we vacated the order and remanded for further
proceedings.
Reviewing the record in the light most favorable to Piper, as we must,
Bourgeois, 242 A.3d at 649-50, we cannot conclude, as common pleas did, that all
of the evidence Piper cites is insufficient as a matter of law. Giordano, Thiele, and
Krochta all testified that the condition of S.R. 4006 in the County was an ongoing
topic of discussion/complaint at Task Force meetings, such discussions/complaints
would be included in the written meeting minutes, and those written minutes were
provided to DOT. (R.R. at 182a, 184a-86a, 224a, 226a-27a, 234a-35a, 263a, 265a.)
Although common pleas was not persuaded that these meeting minutes were
sufficient notice, (Memorandum and Order at 5), “[t]he sufficiency of the notice . . .
is a material fact that is disputed” and must be decided by a jury, Walthour, 31 A.3d
at 768.
Further, Krochta testified that he sent a letter to DOT complaining of S.R.
4006’s condition, and Giordano testified he had no knowledge of receiving a letter
and that no letter was found in DOT’s records, which were kept for “four to five
years.” (R.R. at 185a, 236a.) Thus, there is a conflict in the evidence on this topic.
12
In granting summary judgment to DOT, common pleas resolved this conflict in
DOT’s favor, notwithstanding that it acknowledged that, if sent, the letter “would
provide actual written notice in accord with the [p]othole [e]xception.” (Mem. and
Order at 5.) However, “court[s] should not attempt to resolve conflicting
contentions of fact or conflicting inferences which might be drawn from the facts”
in resolving motions for summary judgment. Edwards v. Dep’t of Transp., 546 A.2d
1291, 1295 (Pa. Cmwlth. 1988) (emphasis added).
County Commissioners’ letter to Executive Secretary, while not sent directly
to DOT like the state senator’s letter in Walthour, was attached to Task Force
meeting minutes, which Giordano and Thiele acknowledge DOT receives. (R.R. at
348a-50a.) This letter specifically references 9.6 miles of S.R. 4006 in the County,
and that it, along with other roads, is “in need of serious and immediate attention.”
(Id. at 350a.) Although common pleas concluded the letter was not specific enough
to provide sufficient notice, “[t]he sufficiency of the notice . . . is a material fact that
is disputed” and must be decided by a jury, Walthour, 31 A.3d at 768.
As the record here contains evidence that creates a disputed material fact as
to whether DOT had actual written notice of S.R. 4006’s dangerous condition, this
matter is distinguishable from Lacava. In that case, notice of a dangerous condition
was given to the City of Philadelphia (City), which did not forward the notice to the
Southeastern Pennsylvania Transportation Authority (SEPTA), the Commonwealth
agency being sued for negligence. Lacava, 157 A.3d at 1016. Instead, the City
responded to the complaint and performed the repair without notifying SEPTA. Id.
Because the was no evidence that SEPTA received actual written notice of the
asserted dangerous condition, we held “there was no basis for the jury to conclude
13
that [the negligence] claim fell within the ‘pothole’ exception to sovereign
immunity.” Id.
We reached a similar result in Texeira wherein we reversed the grant of
summary judgment to DOT that had been based on the lack of actual written notice
and insufficient specificity of the notice provided. 284 A.3d at 1287. In Texeira,
we held the plaintiff had established the existence of a disputed material fact as to
DOT having actual written notice where notes from DOT’s call center reflected at
least one of the complaints referenced the specific part of Interstate 80 where an
accident occurred and were sent to DOT’s office in the relevant county, and that
such complaints were not insufficiently specific as a matter of law even though they
did not specify the exact pothole at issue. Id. at 1284-86. Consistent with our
holding in this matter, we explained “it should be for the trier of fact to reconcile
[the] evidence,” and, therefore, the grant of summary judgment based on sovereign
immunity was in error. Id. at 1287.
IV. CONCLUSION
Viewing the evidence presented in this matter in the light most favorable to
Piper, genuine issues of material fact exist as to whether DOT had the notice required
by Section 8522(b)(5). In granting DOT summary judgment, common pleas erred
by not viewing the evidence in the light most favorable to Piper. Accordingly, we
vacate common pleas’ Order granting DOT’s Motion and remand for further
proceedings.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Peter R. Piper, :
Appellant :
:
v. : No. 1470 C.D. 2021
:
Rochella M. Marolf, Pennsylvania :
Department of Transportation, and :
Township of Lackawaxen :
ORDER
NOW, August 24, 2023, the Order of the Court of Common Pleas of Pike
County granting the Pennsylvania Department of Transportation’s Motion for
Summary Judgment is VACATED, and this matter is REMANDED for further
proceedings.
Jurisdiction relinquished.
__________________________________________
RENÉE COHN JUBELIRER, President Judge