           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David G. Detweiler,                     :
                         Appellant      :
                                        :
                  v.                    :   No. 2027 C.D. 2015
                                        :   Argued: March 7, 2016
Commonwealth of Pennsylvania,           :
Department of Transportation            :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                     FILED: March 30, 2016


             David G. Detweiler appeals from an order of the Court of Common
Pleas of Monroe County that granted the amended motion for summary judgment
of   the   Commonwealth     of   Pennsylvania,   Department    of   Transportation
(Department). In this case, we consider the applicability of the pothole exception
to sovereign immunity found in Section 8522(b)(5) of the Judicial Code, 42 Pa.
C.S. § 8522(b)(5), and its requirement that the Commonwealth agency have actual
written notice of the dangerous condition created by potholes a sufficient time
before an event to have taken measures to protect against the dangerous condition.
We affirm.
             In his one-count negligence complaint against the Department,
Detweiler alleged that he was injured in July 2009 while bicycling south on State
Route (S.R.) 447, north of Canadensis, Pennsylvania, when his bicycle struck a
pothole and he was thrown to the ground. February 4, 2010 Complaint, ¶¶ 5 and 6;
Reproduced Record (R.R.) at 227a.         Alleging that the pothole constituted a
defective and/or dangerous condition, he further alleged that the Department was
aware of that dangerous condition and had actual written knowledge thereof in that
it “had scheduled repairs to the road two months before [his] incident but failed to
make said repairs.” Id., ¶ 8. In support of that allegation, Detweiler subsequently
provided the Department’s May 2009 travel advisory providing, in pertinent part,
that, from May 20 to 22, 2009, it would be doing pothole patching on Creek Road
in Monroe County, Price Township, between U.S. 209 and County Line. May 15,
2009 PennDOT Travel Advisory at 1-2; R.R. at 217-18a. Accordingly, he alleged
that his accident and resulting injuries were the direct and proximate result of the
Department’s negligence and demanded judgment against it in excess of
mandatory arbitration limits, exclusive of costs and interest.
             Following the denial of its preliminary objections, the Department
filed an answer and new matter denying any negligence and asserting the
affirmative defense of sovereign immunity. In addition, it filed a motion for
summary judgment, which it withdrew to enable further discovery. In relevant
part, the discovery consisted of the depositions of Detweiler’s fellow bicyclist and
sole eyewitness Shenk and the depositions of four witnesses for the Department
responsible for road maintenance work in Monroe County. Subsequently, the




                                          2
Department filed an amended motion for summary judgment, which common pleas
granted. Detweiler’s timely appeal followed.1
               Under the Sovereign Immunity Act, Commonwealth agencies are
generally immune from tort liability. Section 8521(a) of the Judicial Code, 42 Pa.
C.S. § 8521(a). However, in certain enumerated circumstances, the Act waives
sovereign immunity as a bar to actions against the Commonwealth “for damages
arising out of a negligent act where the damages would be recoverable under the
common law or a statute creating a cause of action if the injury were caused by a
person not having available the defense of sovereign immunity.” Section 8522(a)
of the Judicial Code, 42 Pa. C.S. § 8522(a). Subsection 8522(b) sets forth the
specific instances in which sovereign immunity may not be raised as a defense.
Relevant to the case before us is the pothole exception, which provides as follows:
               § 8522. Exceptions to sovereign immunity
               (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

    1
       The entry of summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). It may be granted only in cases where the
right is clear and free from doubt. Id. The moving party has the burden of establishing the
nonexistence of any genuine issue of material fact. Id. In addition, the record must be viewed in
the light most favorable to the non-moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party. Id. Our review of an order
granting summary judgment involves only an issue of law. Hence, our review is plenary.



                                                 3
             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).
             A plaintiff seeking to come within Section 8522(b)(5) must
specifically plead and prove sufficient prior written notice to the Commonwealth
of the allegedly dangerous condition of the roadway. Stevens v. Dep’t of Transp.,
492 A.2d 490, 493 (Pa. Cmwlth. 1985). In addition, the statute requires a plaintiff
to establish two elements of notice in order to fall within the exception:
             (1) that the Commonwealth agency had actual written
             notice of the dangerous condition; and (2) that the actual
             written notice had been given sufficiently prior to the
             incident giving rise to plaintiff’s claim so that the
             Commonwealth agency had a reasonable opportunity to
             remedy the situation.
Id. at 493. Further, “[t]he requirements of the statute are clearly written and create
a very narrow exception to the defense of sovereign immunity for damages caused
by potholes.” Id.
             In the present case, Detweiler argues that common pleas erred in
determining that the travel advisory was insufficient to establish that the
Department had actual written notice of the dangerous condition of the roadway a
sufficient time before his accident to have taken measures to protect against the
dangerous condition because departmental procedures provide for some sort of
written notice of the necessity for pothole repair before issuance of a travel
advisory. In support of that contention, he notes that the departmental depositions

                                          4
indicated that the work vehicles provided to the Department’s assistant managers
inspecting roadways were equipped with orange spray paint and that someone
allegedly had circled the pothole in question with orange spray paint before his
accident. In addition, he notes that there are three scenarios under which the
Department schedules pothole repair work: 1) pothole repair is part of a planned
paving project; 2) complaints from the public; and 3) direct observations of one of
the Department’s county maintenance assistant managers.2 Focusing on the latter
two scenarios and asserting that both instances require written notice of the
necessity for pothole repair before scheduling such work, Detweiler argues that the
Department, therefore, necessarily had actual written notification of the dangerous
condition of the roadway.
              In determining that the travel advisory was insufficient to establish
that the Department had actual written notice of the dangerous condition of the
pothole, however, common pleas determined that the advisory merely suggested
that the Department had such notice, that no witness actually testified that the
Department had actual written notice of the dangerous condition and that there
were no written complaints to the Department or written acknowledgements from
it regarding the dangerous condition. In addition, common pleas noted that the
travel advisory at issue, on its face, did not cover the pothole’s location. In that
regard, the court observed as follows:
              The length of the roadway known as Creek Road covers
              more than twenty (20) miles and stretches through
              multiple townships. Pl.’s Br. In Opp’n to Mot. For

    2
      Referencing the depositions of its three assistant managers responsible for systematically
inspecting about a third of the roads in Monroe County, the Department acknowledges that this
proposition regarding how it undertakes pothole repair work in Monroe County is generally
accurate. Department’s Brief at 9-10.



                                               5
             Summ. J, Ex. B. Also, the location of the pothole in
             question is not even within the parameters mentioned in
             the Travel Advisory. For example, there is more than one
             road in Monroe County referred to as “Creek Road.”
             Furthermore, the area mentioned in the Travel Advisory,
             from Route 209 through to the Pike County line in Price
             Township is not located in the stretch of road where
             Plaintiff had the accident. The “Creek Road” Plaintiff
             claims to have had the accident is actually State Route
             447, and while Route 447 runs to the Pike County line,
             near where Plaintiff had the accident, the Monroe County
             township that borders Pike County, and where the
             accident occurred, is Barrett Township.
Common Pleas’ Opinion at 6-7 (emphasis added) (footnote omitted). We conclude
that common pleas did not err in granting the Department’s amended motion for
summary judgment.
             As an initial matter, exceptions to immunity must be strictly
construed. Jones v. Se. Pa. Transp. Auth., 772 A.2d 435, 440 (Pa. 2001). In that
regard, the alleged possibility of actual written notice does not satisfy the statute.
In addition, although it is true that the sufficiency of notice of a dangerous
condition is a matter of material fact for the trier of fact to determine, it is also true
the court may decide the issue when it does not appear as though reasonable minds
could differ as to the conclusion. Walthour v. Dep’t of Transp., 31 A.3d 762, 767-
68 (Pa. Cmwlth. 2011). Here, for the aforementioned reasons, common pleas
determined that “no reasonable jury could find that the contents of the Travel
Advisory are sufficient to establish the element of actual written notice required to
satisfy the very narrow pothole exception to the defense of sovereign immunity.”
Common Pleas’ Opinion at 7. We agree.
             As common pleas observed, the present case was not one, for
example, where there was evidence of any written complaints to the Department
about the specific highway at issue and there was also no evidence that it

                                            6
acknowledged receipt of any complaints. In contrast, in Walthour, 31 A.3d at 766,
another pothole case, the plaintiff established that a genuine issue of material fact
existed regarding notice by virtue of the Department’s acknowledgement of a letter
from a state senator regarding the dangerous condition of the state route at issue.
In addition, in Merling v. Department of Transportation, 468 A.2d 894, 897 (Pa.
Cmwlth. 1983), which was not strictly a pothole case but where a pothole was
involved as an alleged contributing factor in the accident, the plaintiff nonetheless
met his burden of proving notice by producing letters from PennDOT employees
acknowledging the receipt of written complaints regarding the poor condition of
the highway at issue. Both cases are distinguishable, therefore, from the instant
one and Detweiler’s reliance on the Department’s operating procedures is
insufficient to establish the requisite actual written notice.
             Accordingly, we affirm.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge




                                            7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David G. Detweiler,                   :
                       Appellant      :
                                      :
                  v.                  :   No. 2027 C.D. 2015
                                      :
Commonwealth of Pennsylvania,         :
Department of Transportation          :


                                   ORDER


            AND NOW, this 30th day of March, 2016, the order of the Court of
Common Pleas of Monroe County is hereby AFFIRMED.




                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Senior Judge
