Verna v. Commonwealth
Verna v. Commonwealth
Opinion of the Court
This is an appeal from an order of the Court of Common Pleas of Delaware County granting Delaware County’s motion for summary judgment. We affirm.
John E. Verna was injured in a collision between his motorcycle and an automobile in August 1985. The collision oc
On December 7, 1987, a complaint was filed naming the County of Delaware, inter alia, as a defendant and alleging liability on the part of the county for its design, construction and maintenance of Route 320 and Paxon Hollow Road and for its failure to take actions which might have prevented or lessened the accident. The county filed preliminary objections and counts X and XI were ordered stricken. On May 10, 1991, the county filed a motion for summary judgment which the trial court granted. This appeal followed.
Verna argues that summary judgment is not proper because a genuine issue of material fact exists as to whether County Liquid Fuels Tax funds were utilized on the roadways where the accident occurred. The factual issue of whether County Liquid Fuels Tax Fund monies were expended on Route 320 and Paxon Hollow Road is material only if, as a matter of law, such expenditures would bring the highways within the control and jurisdiction of the county and one of the exceptions to governmental immunity would then apply so as to make the county liable for Verna’s injuries.
The county argues that the Pennsylvania Legislature has granted it immunity in most actions for injuries to persons, that none of the exceptions to immunity apply in this case, and that the Liquid Fuels Tax Act does not confer jurisdiction or control over the roadways or traffic control devices which might give rise to one of the exceptions to governmental immunity.
Our scope of review of a trial court grant of summary judgment is limited to a determination of whether the trial court committed an error of law or an abuse of discretion. Bowles v. SEPTA, 135 Pa.Commonwealth Ct. 534, 581 A.2d
We must determine whether the trial court committed an error of law or an abuse of discretion in granting the motion for summary judgment. The trial court concluded that:
Delaware County’s receipt and distribution of funds under the Liquid Fuels Tax Act cannot in any manner constitute a basis for finding the County legally responsible for the accident which gave rise to this litigation.
Trial ct. op. at 7.
The issue in this case is whether the county has any duty to users of the state highways under common law or the Liquid Fuels Tax Act and whether breach of such a duty would render the county liable in tort for injuries sustained by Verna under the exceptions to governmental immunity found in Section 8542 of the Judicial Code, 42 Pa.C.S. § 8542. For Verna to succeed in his challenge to summary judgment, both a duty and an applicable exception to governmental immunity must exist and there must be a genuine issue of material fact so that the trial court is precluded from rendering a judgment as a matter of law.
Pursuant to 42 Pa.C.S. § 8541 of the Judicial Code, immunity is the rule for political subdivisions.
The Liquid Fuels Tax Act, Act of May 21,1931, P.L. 149, as amended, 72 P.S. §§ 2611a-2611z, provides for the imposition of a tax on liquid fuels
construction, reconstruction, maintenance and repair of roads, highways and bridges, ... and for the acquisition, maintenance, repair and operation of traffic signs and signals, and for the erection and maintenance of stop and go signal lights, blinkers and other like traffic control devices.
Section 10 of the Liquid Fuels Tax Act, 72 P.S. § 2611.
Prior to expenditures by the county for new construction, the state Department of Transportation must approve the plans and no funds can be allocated to political subdivisions within the county without Department of Transportation approval. Id.
According to Verna, if liquid fuels tax funds funnelled through Delaware County were expended in some undefined manner on Route 320 or on Paxon Hollow Road or on traffic control devices, the roads and traffic control devices would come within the care, custody and control of the county and exception (b)(4) would be applicable. This argument ignores the fact that exception (b)(4) does not apply to streets and that exception (b)(6), which does apply to streets, would impose liability on the county for dangerous condition of streets only if the streets were owned by the county or if the county had a written contract to maintain and repair streets
We have never dealt with whether the County Liquid Fuels Tax Fund creates a duty, breach of which brings a county within the exceptions to governmental immunity and imposes liability for dangerous conditions of streets and traffic control devices which the county does not own and over which it does not otherwise exercise care, custody and control. However, we have dealt with attempts to create a duty and pierce the veil of governmental immunity where one unit of government acts as an escrow agent or funnel for funds from another unit of government and where it has been argued that a statute or ordinance creates a duty of a governmental unit to an injured individual. See Rousseau v. City of Philadelphia, 100 Pa.Commonwealth Ct. 173, 514 A.2d 649 (1986), appeal denied,
Applying these precedents to the case sub judice, we conclude that even if funds from the County Liquid Fuels Tax Fund were expended on the streets or traffic control devices in question, the Liquid Fuels Tax Act does not impose a duty on the county to insure the safety of those streets. Nor does the county own the streets or have “care, custody or control” of the traffic control devices. Thus, there is no genuine issue of material fact and the county is entitled to judgment as a matter of law.
Accordingly, we affirm the trial court’s grant of Delaware County’s motion for summary judgment.
AND NOW, this 29th day of July, 1992, the Order of the Court of Common Pleas of Delaware County, dated July 24, 1991, granting the County of Delaware’s Motion for Summary Judgment is affirmed.
. 42 Pa.C.S. § 8541 provides:
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.
. 42 Pa.C.S. § 8542 provides in pertinent part:
*454 (а) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action ...
(2) The injury was caused by the negligent acts of the local agency ... with respect to one of the categories listed in subsection (b)---- ■ (b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
(4) Trees, traffic controls and street lighting. — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency, 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 local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
(б) Streets.—
(i) A dangerous condition of streets owned by the local agency, 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 local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
(ii) A dangerous condition of streets owned or under the jurisdiction of Commonwealth agencies, if all of the following conditions are met:
*455 (A) The local agency has entered into a written contract with a Commonwealth agency for the maintenance and repair by the local agency of such streets....
. Section 4 of the Liquid Fuels Tax Act, 72 P.S. § 261 Id.
. Although Verna never refers to the streets exception found at 42 Pa.C.S. § 8542(b)(6), Verna does claim that although the county does not own Paxon Hollow and Sproul Roads, it does control them “by virtue of its statutorily created command over the pursestrings of monies utilized for construction, maintenance and repair.” Appellants’ Brief at 10. We reject any implication that such “control” constitutes ownership, or that the county may be liable for dangerous condition of streets under the (b)(4) exception for dangerous condition of traffic control devices.
Reference
- Full Case Name
- John E. VERNA, an Incompetent, By his father and guardian, George J. VERNA, and John E. Verna, in his own right, and Joyce Verna, parent of John E. Verna v. COMMONWEALTH of Pennsylvania and Delaware County, a/k/a County of Delaware and Marple Township a/k/a Township of Marple, and Mary Lawrence and Ernest Lawrence, and Fidelcor Services, c/o Lawrence Associates and Simpson Marine Safety Equipment, Inc. and Simpson Safety Equipment, Inc., and E.J. Simpson, and Cycle City II, Inc. and Stuart Goldis, and Gary Goldis, d/b/a Cycle City and Commonwealth of Pennsylvania, Department of Transportation, Motorcycle Stuff, Inc., and Motorcycle Stuff South
- Cited By
- 1 case
- Status
- Published