Coolbaugh v. Com., Dept. of Transp.

• Decision Date: 24 January 2003
• Citation: 816 A.2d 307
• Court: Pennsylvania Superior Court
• Parties: Joyce and Harold COOLBAUGH v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Orig. Def. v. Slusser Brothers Trucking & Excavating Co., Inc., Addtl. Def. v. Joyce and Harold Coolbaugh, Appellant. Slusser Brothers Trucking & Excavating Co., Inc., Orig. Def. v. Commonwealth of Pennsylvania, Department of Transportation, Addtl. Def.

816 A.2d 307

Joyce and Harold COOLBAUGH v.COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Orig. Def. v.Slusser Brothers Trucking & Excavating Co., Inc., Addtl. Def. v.Joyce and Harold Coolbaugh, Appellant.

Slusser Brothers Trucking & Excavating Co., Inc., Orig. Def. v.Commonwealth of Pennsylvania, Department of Transportation, Addtl. Def.

Superior Court of Pennsylvania.

Argued December 11, 2002.

Filed January 24, 2003.

Derek R. Layser, Philadelphia, for appellants.

Timothy G. Lenahan, Scranton, for Slusser Brothers Trucking & Excavating, appellee.

Before JOHNSON, KLEIN, and KELLY, JJ.

OPINION BY JOHNSON, J.

¶ 1 Joyce and Harold Coolbaugh(the Coolbaughs) appeal the trial court's order granting summary judgment in favor of Slusser Brothers Trucking and Excavating Co., Inc.(Slusser Brothers).The Coolbaughs contend that the court erred in finding Slusser Brothers entitled to "immunity" pursuant to the "government contractor defense" stated in Ference v. Booth & Flinn Co.,370 Pa. 400, 88 A.2d 413(1952), andValley Forge Gardens, Inc. v. James D. Morrissey, Inc.,385 Pa. 477, 123 A.2d 888(1956).Following review of the record, we find questions of material fact, which, pending resolution by the factfinder, preclude application of the Ference/Valley Forge defense.Accordingly, we reverse the court's order granting summary judgment.

¶ 2 This matter arises out of a 1996 automobile accident in which Joyce Coolbaugh sustained severe injury to her spine resulting in permanent disability.Coolbaugh lost control of her car while driving in heavy rain on a portion of Interstate Route 81 in Luzerne County.The car plunged over an embankment, rolling end-over-end.As a result of the accident, Coolbaugh sustained a fracture of her cervical spine and was rendered quadriplegic.Coolbaugh asserts that her car hydroplaned due to improper water drainage on the road surface which could have been avoided had the Pennsylvania Department of Transportation(PennDOT) properly sloped, graded, grooved and otherwise prepared the road for wet weather.

¶ 3 Accordingly, the Coolbaughs commenced this action naming PennDOT as original defendant.PennDOT, by complaint pursuant to Rule 2252(d) joined Slusser Brothers, which one year prior to the accident, completed a re-surfacing project on that portion of the highway where Coolbaugh's mishap occurred.In its Rule 2252(d) Complaint, PennDOT sought indemnity and contribution, asserting that Slusser Brothers both failed to follow contract specifications required for the project and failed to complete the project in a workmanlike manner.Slusser Brothers denied the material allegations of PennDOT's Rule 2252(d) claim and asserted, as an affirmative defense, its compliance with all provisions of PennDOT's contract specifications.Further, Slusser Brothers asserted a claim for indemnification against PennDOT, asserting that it was so entitled under the terms of the construction contract.

¶ 4 During the pendency of the action in the trial court, PennDOT settled the Coolbaughs' claims against it.Subsequently, Slusser Brothers filed the Motion for Summary Judgment at issue here, asserting that its compliance with the terms of PennDOT's road construction contract entitled it to immunity from liability as a government contractor on the Coolbaughs' third-party tort claims.The Coolbaughs responded, contending that the "government contractor" defense upon which Slusser Brothers relies does not apply to non-military contractors and that, moreover, the evidence demonstrated questions of material fact concerning whether Slusser Brothers had completed the re-surfacing project in a workmanlike manner.In support, the Coolbaughs produced two expert engineering reports attesting that Slusser Brothers had improperly graded the road surface at the scene of the Coolbaughs' accident, allowing a depression in the traffic lanes in which water pooled during stormy weather and caused the Coolbaughs' car to hydroplane.Notwithstanding the Coolbaughs' expert reports calling Slusser Brothers' performance into question, the trial court, the Honorable Ann Lokuta, concluded that Slusser Brothers was entitled to immunity on the basis of its alleged fulfillment of PennDOT's contract specifications.Accordingly, the court granted Slusser Brothers' motion and entered summary judgment against the Coolbaughs.The Coolbaughs then filed this appeal.

¶ 5 The Coolbaughs raise the following questions for our review:

1.Whether the trial court committed legal error and/or abuse[d] its discretion by granting Slusser Brothers' motion for summary judgment on the basis that Slusser Brothers may not be held liable to plaintiffs by reason of the "Government Contractors Defense"?

2.Whether the trial court committed legal error and/or abuse[d] its discretion when it granted Slusser Brothers' motion for summary judgment on the basis that plaintiffs failed to set forth a prima facie case of negligence against defendant Slusser Brothers?

Brief for Appellantsat 4.

¶ 6 Our scope of review of an order granting summary judgment is plenary.SeeHarber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership,764 A.2d 1100, 1103(Pa.Super.2000), appeal denied,566 Pa. 664, 782 A.2d 546(2001).Accordingly, we must consider the court's order in the context of the entire record.SeeBasile v. H & R Block, Inc.,777 A.2d 95, 101(Pa.Super.2001)."Our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion."Id."Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration.Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or [rules] in a manner lacking reason."Miller v. Sacred Heart Hosp.,753 A.2d 829, 832(Pa.Super.2000).

¶ 7 In their first question, the Coolbaughs assert that the trial court abused its discretion in finding the "Government Contractors Defense" dispositive of their claims against Slusser Brothers.Brief for Appellantsat 15.The court concluded that this defense, premised on Slusser Brothers' asserted compliance with construction specifications generated by PennDOT, precluded liability because "Slusser followed those plans and specifications to Penndot's complete satisfaction."Trial Court Opinion, 2/6/02, at 10.The Coolbaughs argue that this defense bars liability, notwithstanding a contractor's compliance with government specifications, only upon proof by the defendant that its performance was not otherwise negligent.Brief for Appellantsat 19.Upon consideration of governing caselaw, we concur in the Coolbaughs' conclusion.

¶ 8 Our Supreme Court has confirmed that contractors engaged by state government do not share in the statutory immunity from suit conferred on the government itself.SeeConner v. Quality Coach, Inc.,561 Pa. 397, 750 A.2d 823, 833(2000)(declining to extend statutory shield of immunity to civilian government contractor who manufactured defective product in accordance with government design specifications).The Court has also recognized, however, that public works contractors who perform in conformity with government specifications for contracted work may be insulated from liability to third parties seeking consequential damages in certain tort actions.Seeid. at n. 17.

¶ 9 Accordingly, in Ference v. Booth & Flinn Co.,the Supreme Court concluded that the plaintiff operators of a bus company could not recover on a claim of nuisance against a public works contractor for damages caused by the contractor's delay in clearing a landslide over the highway on which the company's buses traveled.See88 A.2d at 414.Significantly, the plaintiff conceded during trial that the contractor had not caused the landslide and had not been negligent in its efforts to remove it.Seeid.The Court reasoned accordingly:

Since plaintiffs concede that [the contractor] was guilty of no negligence, in the way it performed the work, the inference is inescapable that the slide was a necessary result of following the plans and specifications of the contract.The only remaining question is whether the obstruction was removed with[in] a reasonable amount of time.

Id. at 415.Because the plaintiff failed to introduce sufficient evidence to establish an amount of time in which the contractor should have removed the obstruction, the trial court entered a non-suit and the Supreme Court affirmed.Seeid.

¶ 10 Thereafter, in Valley Forge Gardens, Inc. v. James D. Morrissey, Inc.,the Supreme Court clarified the rule implied in Ference.See123 A.2d at 889.In Valley Forge Gardens,the plaintiff cemetery sued a public works contractor to recover for the effects on its land of erosion from an adjoining road construction site.Seeid.As in Ference,the plaintiff offered no evidence that the contractor was negligent in its execution of the construction project and withdrew the issue from the case at trial.Seeid.When, subsequently, the trial court entered judgment for the plaintiff against the contractor, the Supreme Court reversed.Significantly, the Court grounded its holding not on a grant of privilege or immunity, but on the absence of a viable claim of negligence where the contractor had complied with the project specifications.Seeid. at 890.The Court reasoned specifically:

`That the state itself may have proceeded wrongfully in not foreseeing the consequential damage to plaintiffs' property and making provision for its compensation supports not at all the conclusion that either the highway commissioner or defendant[contractor] has committed wrong in proceeding with the work in the only way it could be done.Having committed no wrong, defendant should not be subjected to liability.It is not saved by the state's immunity from suit, but

...