Opinion
Civil Action No. 03-6947.
August 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"). The Court granted PennDOT's motion to dismiss with prejudice on April 16, 2004, and Haverford's motion to dismiss without prejudice on May 10, 2004. The plaintiffs subsequently filed an amended complaint once again naming Haverford as a defendant. Haverford has filed a motion to dismiss, arguing that the amended complaint fails to allege facts sufficient to overcome the township's immunity under Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541, et seq. ("PSTCA"). The Court will grant Haverford's motion.
The Court set forth the facts and procedural history of this case in both its April 16, 2004, and May 10, 2004, Memoranda and Orders. Below is a recitation of pertinent facts relevant for deciding Haverford's present motion.
According to the original complaint, on November 29, 2001, the plaintiffs' daughter, Sophia Devi Ali, was killed in a car accident while driving on the 3700 block of Darby Road in Haverford Township, Pennsylvania. The plaintiffs asserted wrongful death and survivorship claims against Haverford, alleging that Haverford owned, controlled, maintained, supervised and had a duty to maintain Darby Road. Haverford filed a motion to dismiss, arguing that the PSTCA immunized it from this suit.
After oral argument, the Court granted the motion without prejudice. The Court held that Haverford, as a local agency that did not own Darby Road, is immune from suit unless all three of the conditions of § 8542(b)(6)(ii) of the PSTCA are met. The complaint failed to plead any of those conditions.
This subsection provides that a local agency may be held liable for:
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 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. Ann. § 8542(b)(6)(ii)
Briefing on Haverford's motion to dismiss the original complaint revealed that at the time of the accident there was a written contract between Haverford and the Commonwealth requiring Haverford to remove snow and ice and to apply de-icing and antiskid materials as part of that effort during the winter months. The Court dismissed Haverford, but gave the plaintiffs leave to file an amended complaint against Haverford as long they had an adequate basis in law and fact to do so.
The Court's May 10, 2004, Memorandum and Order ("May 10, 2004 Order") explained the deficiencies of the complaint with respect to the claims against Haverford. The plaintiffs had failed to plead the existence of the above referenced contract. The plaintiffs also failed to allege "that either snow or ice was a factor in the accident" or to allege facts "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." May 10, 2004 Order, at 4.
In their amended complaint, the plaintiffs now plead that there was a road maintenance and repair contract between Haverford and the Commonwealth. Am. Compl. ¶ 30. The amended complaint, however, still fails to sufficiently allege the two other necessary conditions imposed by § 8542(b)(6)(ii) of the PSTCA.
In considering motions to dismiss for failure to state a claim, the Court takes all well pleaded allegations as true, construes the complaint in the light most favorable to the plaintiff, and determines whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.Colburn v. Upper Darby Twp., 838 F.2d 663, 665 (3d Cir. 1988).
In particular, the plaintiffs have not alleged facts to support a claim that Haverford violated any of its duties under the contract, and that this violation caused the decedent's accident. The contract specifies that Haverford "shall undertake and accomplish the required snow and ice clearance together with the application of anti-skid and/or de-icing materials for the State Highways." November 19, 1998 Contract ¶ 1. The plain language of this provision imposes only a duty to clear snow or ice and apply anti-skid and/or de-icing materials as part of that effort. If there is no snow or ice to remove, Haverford has no duties under this contract with respect to Darby Road. The plaintiffs, therefore, had to allege specifically that snow or ice, which Haverford negligently failed to remove, caused the accident. The plaintiffs did not do this.
On a motion to dismiss, courts may consider documents upon which allegations in complaint depend. City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998).
In describing the alleged dangerous condition for which they seek to hold Haverford liable, the plaintiffs merely state that the roads were in a "slippery condition." Am. Compl. ¶¶ 35, 38. Slippery conditions can be caused by different things. They can be caused by rain or oil, for example. The contract, however, does not require Haverford to correct all slippery conditions regardless of their cause. It requires Haverford to correct only slippery conditions caused by snow or ice.
The amended complaint contains an allegation that Haverford was aware of "the slippery (sic) and skidding" on Darby Road. Am. Compl. ¶ 35. There are no factual allegations, however, suggesting how Haverford was aware of these conditions. Nor is there an allegation that Haverford was aware "at a sufficient time prior to the event to have taken measures to protect against the dangerous condition," as required by § 8542(b)(6)(ii)(C).
The Court made clear how the plaintiffs could amend their complaint to assert claims against Haverford. The plaintiffs were given ample opportunity to determine whether there is a reasonable factual basis to allege that snow or ice played a role in the accident and that Haverford had the requisite notice and time. Yet, the amended complaint does not contain these necessary allegations. The Court, therefore, reluctantly grants Haverford's motion to dismiss with prejudice.
An appropriate Order follows.