Opinion
Civil Action No. 03-6947.
May 10, 2004
MEMORANDUM AND ORDER
This is a wrongful death and survivorship case brought by the decedent's parents against P.T. Lyons ("Lyons"), Lyon's employer, Scientific Window Cleaners, Haverford Township ("Haverford"), and the Commonwealth of Pennsylvania, Department of Transportation ("PennDOT"). Haverford filed a motion to dismiss, arguing that the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541, et seq. ("PSTCA"), renders it immune from suit in this case. The Court will grant Haverford's motion.
The Court set forth the facts and procedural history of this case in its April 16, 2004, Memorandum and Order dismissing PennDOT from the case. Below is a recitation of pertinent facts relevant for deciding Haverford's motion.
According to the complaint, on November 29, 2001, the decedent, Sophia Devi Ali, was driving on the 3700 block of Darby Road in Haverford Township, Pennsylvania. Her car was struck by a vehicle driven by Lyons in the course of his employment. Ms. Ali died as a result of the crash.
The plaintiffs assert wrongful death claims against both PennDOT and Haverford Township, alleging both entities owned, controlled, maintained, supervised and had a duty to maintain Darby Road. The road is alleged to have been improperly maintained and inadequately posted with warning signs for speeding, slippery conditions, hills, or curves. The plaintiffs also allege defective road design against these defendants. PennDOT and Haverford filed separate motions to dismiss. The Court granted PennDOT's motion.
Haverford argues that the PSTCA immunizes it from this suit. Section 8541 of the PSTCA provides that:
Except as otherwise provided in this subchapter, no local agency shall be held liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof or any other person.42 Pa. Cons. Stat. § 8541
The subchapter in question provides that a local agency may be sued only for a negligent act and only in a limited number of circumstances. The applicable exception to immunity provides in pertinent part that a local agency or any of its employees may be held liable for:
(6) 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:
(A) The local agency has entered into written a contract with a Commonwealth agency for the maintenance and repair by the local agency of such streets . . .
(B) The injury and dangerous condition were directly caused by the negligent performance of its duties under such contract.
(C) The claimant must establish that the 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.42 Pa. Cons. Stat. § 8542(b)(6).
The plaintiff alleges that Haverford owns the road upon which the accident occurred. It is, however, a matter of public record that the 3700 Block of Darby Road in Haverford Township is a state highway. See 36 Pa. Cons. Stat. Ann. § 1738-2; Dep't of Highways, Commonwealth of Pennsylvania, Right-of-Way Record for Route 23047, Delaware County, Haverford Township, Dist. 6 (Aug. 14, 1934). Haverford, therefore, is immune from suit unless all three of the conditions of § 8542(b)(6)(ii) are met.
Although, the Court must generally limit its review to the allegations of the complaint, the Court may take judicial notice of matters of public record. City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 n. 3 (3d Cir. 1998).
The complaint does not allege that Haverford has a contract with the Commonwealth. In its motion, however, Haverford admitted that it had a contract with PennDOT to remove snow and ice accumulations on Darby Road that was in effect from October 15 through April 30 of 2001. Nevertheless, the plaintiffs do not allege that either snow or ice was a factor in the accident. Nor do they allege any other facts that would support a claim that Haverford negligently performed its duties under the contract. Similarly, there are no factual allegations that would support a claim that Haverford had the requisite notice of any dangerous conditions for which it was responsible under the contract to correct.
The Court, therefore, will grant the motion to dismiss Haverford without prejudice. The plaintiffs may file an amended complaint within thirty days of the date of this Memorandum and Order.
An appropriate Order follows.
ORDER
AND NOW, this 10th day of May, 2004, upon consideration of the defendant Haverford Township's (Docket No. 2), and the opposition thereto, and after hearing argument thereon at a telephone conference held on April 15, 2004, IT IS HEREBY ORDERED that said motion is GRANTED for the reasons stated in a memorandum of today's date. The defendant Haverford Township is dismissed from this case without prejudice. The plaintiffs may file an amended complaint reasserting their claims against Haverford Township within thirty days of this Order, if they determine, consistent with Fed.R.Civ.Pro. Rule 11, that there is a basis in fact and law to do so.