Norbert v. Com., State Police

• Decision Date: 12 June 1992
• Citation: 148 Pa.Cmwlth. 505,611 A.2d 1353
• Parties: Richard S. NORBERT and Karen H. Norbert, his wife, Appellants, v. COMMONWEALTH of Pennsylvania, STATE POLICE, Appellee. Richard S. NORBERT and Karen H. Norbert, his wife, Appellants, v. PENNSYLVANIA TURNPIKE COMMISSION, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1353

611 A.2d 1353

148 Pa.Cmwlth. 505

Richard S. NORBERT and Karen H. Norbert, his wife, Appellants, v. COMMONWEALTH of Pennsylvania, STATE POLICE, Appellee.

Richard S. NORBERT and Karen H. Norbert, his wife, Appellants, v. PENNSYLVANIA TURNPIKE COMMISSION, Appellee.

Commonwealth Court of Pennsylvania.

Argued Feb. 6, 1992.

Decided June 12, 1992.

C. Crady Swisher, III, for appellants.

Joseph A. Petrarca, Jr., for appellee.

Before DOYLE and KELLEY, JJ., and BARRY, Senior Judge.

DOYLE, Judge.

Richard S. Norbert and Karen S. Norbert (the Norberts) appeal from orders of the Court of Common Pleas of Allegheny County ¹ which sustained the preliminary objections filed by the Pennsylvania Turnpike Commission (Commission) and the Pennsylvania State Police (State Police) and dismissed the Norberts' complaint against each with prejudice.

The facts as alleged in the Norberts' complaint are as follows: At approximately 4:38 a.m. on August 16, 1988, Richard Norbert was operating a truck in the outer westbound lane of the Pennsylvania Turnpike near Monroeville when he encountered a large truck tire and wheel in the middle of the lane. Norbert attempted to avoid the wheel and tire, but was unable to do so. The tire temporarily lodged in the undercarriage of Norbert's truck, causing him to lose control of the truck and crash. As a result of this accident, Norbert suffered serious injuries.

The Norberts brought suit against the State Police and the Commission. ² As against the State Police, the Norberts alleged the following:

Prior to the crash involving Mr. Norbert, there had been another traffic incident involving the tire on west bound U.S. Route Interstate 76, which the State Police had investigated. Despite having investigated the earlier incident, the State Police negligently, and with reckless disregard for the safety of motorists on Interstate 76, and in breach of their duty as State Policemen, failed to remove the tire and wheel from Interstate 76.

Both the State Police and the Commission filed preliminary objections in the nature of a demurrer alleging that "[the Norberts'] cause of action fails to fall within one or another of the statutory categories of waived sovereign immunity applicable to claims against agencies of the Commonwealth of Pennsylvania." The common pleas court sustained the preliminary objections of the State Police and the Commission. This appeal followed.

Initially, we note that a preliminary objection in the nature of a demurrer admits as true every fact which is well pled and all inferences reasonably deducible therefrom. Curtis v. Cleland, 122 Pa.Commonwealth Ct. 328, 552 A.2d 316 (1988). In ruling on a preliminary objection in the nature of a demurrer, the court's role is to determine whether the facts pled are legally sufficient to permit the action to continue. Department of Public Welfare v. Joyce, 128 Pa.Commonwealth Ct. 341, 563 A.2d 590 (1989). In order to sustain such a preliminary objection, it must appear with certainty upon the facts pled that the law will not permit recovery. Bahian by Bahian v. Department of Public Welfare, 89 Pa.Commonwealth Ct. 644, 493 A.2d 803 (1985). Where any doubt exists as to whether the preliminary objection should be sustained, that doubt should be resolved by a refusal to sustain it. Monti v. City of Pittsburgh, 26 Pa. Commonwealth Ct. 490, 364 A.2d 764 (1976).

A plaintiff seeking to overcome the defense of sovereign immunity under Section 8522 of the Judicial Code, 42 Pa.C.S. § 8522 must meet two distinct requirements. First, the plaintiff must show that he possesses a common law or statutory cause of action against a Commonwealth party, Section 8522(a), 42 Pa.C.S. § 8522(a), and second, he must demonstrate that the cause of action falls within one of the exceptions to sovereign immunity contained in Section 8522(b), 42 Pa.C.S. § 8522(b).

The Norberts allege that two Sections of the Vehicle Code ³ imposed a duty upon the State Police to remove the tire from the highway. Section 3709 of the Vehicle Code, 75 Pa.C.S. § 3709, entitled "Depositing waste and other material on highway," provides in pertinent part:

(c) Removal of material following accident.--Any person removing a wrecked, damaged or disabled vehicle from a highway shall remove from the highway or neutralize any glass, oil or other injurious substance resulting from the accident or disablement.

In Susko v. Pennsylvania State Police, 132 Pa.Commonwealth Ct. 263, 572 A.2d 831 (1990), petition for allowance of appeal denied, 526 Pa. 644, 584 A.2d 325 (1990), this Court considered the nature of the duty imposed by Section 3709 to remove debris left on a highway as a result of an accident. In Susko, the plaintiffs were injured when the motorcycle on which they were riding skidded on fluids allegedly left on a roadway as the result of a prior accident. The plaintiffs brought suit against both the driver of the vehicle involved in the first accident and the State Police. Judgment on the pleadings was granted in favor of both defendants. On appeal, the plaintiffs argued that Section 3709(c) imposed a duty on the driver to remove the fluid. This Court opined:

[T]he General Assembly was very clear in requiring the person removing the damaged automobile to also remove any substance resulting therefrom. Therefore, in order for [the plaintiffs] to plead a cause of action based on [the driver's] or the PA State Police's failure to remove the substances, they would have had to allege that [the driver] or an agent of the PA State Police removed the damaged vehicle. Because they failed to do so, we cannot sua sponte charge anyone with the duty of removing substances or any breach of the same.

Id. 132 Pa.Cmwlth. at 271-72, 572 A.2d at 835. The Norberts' complaint does not allege that the State Police removed the damaged vehicle from the roadway; it alleges only that the State Police "failed to remove the tire and wheel from Interstate 76." The complaint is, therefore, based upon the rationale in Susko, inadequate to establish a duty on the State Police.

Additionally, the Norberts also rely on Section 7310(a) of the Vehicle Code, 75 Pa.C.S. § 7310(a), entitled "Removal of vehicles and spilled cargo from roadway," to impose a duty upon the State Police. That Section pertinently provides:

(a) General rule.--Police officers may remove or direct removal of abandoned or wrecked vehicles and spilled cargo from any roadway to the nearest point off the roadway where the vehicle or spilled cargo will not interfere with or obstruct traffic. Immediately following an accident, the wrecked vehicle or spilled cargo shall be removed or directed to be removed from the roadway by a police officer if the owner or operator cannot remove the wrecked vehicle or refuses or fails to have the vehicle removed within a reasonable time.

The Norberts, in their complaint, do not allege that the owner of the vehicle could not remove the tire from the roadway or refused or failed to remove it within a reasonable time. The Norberts allege only that the State Police investigated a prior accident involving the tire and failed to remove it from the roadway. Section 7310(a), therefore, does not serve to impose a duty upon the State Police to remove the tire from the roadway. See Susko.

The Norberts further allege that the State Police owed a special common law duty to motorists travelling westbound on the turnpike near Monroeville to remove the tire and rim from the roadway after the first collision.

There is generally no duty resting on a municipality or other governmental body to provide police protection to any particular person. Thomas v. City of Philadelphia, 133 Pa.Commonwealth Ct. 121, 124, 574 A.2d 1205, 1206 (1990), petition for allowance of appeal denied, 527 Pa. 659, 593 A.2d 429 (1990), (citing Melendez v. City of Philadelphia, 320 Pa.Superior Ct. 59, 64, 466 A.2d 1060, 1063 (1983)). A very narrow exception to this principle does exist, but only where there are circumstances establishing a special relationship between the police and an individual, such as where the police have expressly promised to protect a specific individual from precise harm. Bruce v. Department of Transportation, 138 Pa.Commonwealth Ct. 187, 192-93, 588 A.2d 974, 977 (1991). Where such a relationship is established the police and the municipality owe a duty to the victim which can give rise to tort liability. Yates v. City of Philadelphia, 134 Pa.Commonwealth Ct. 282, 578 A.2d 609 (1990), petition for allowance of appeal denied, 527 Pa. 660, 593 A.2d 430 (1991). In their complaint, the Norberts did not allege any special relationship between the State Police and themselves which would impose such a duty.

Because the Norberts' complaint does not set forth a cause of action recognized at common law or conferred by statute, it does not meet the threshold test under Section 8522(a). We hold, therefore, that the common pleas court did not err in concluding that the Norberts' complaint against the State Police does not set forth a cause of action under Section 8522 of the Judicial Code.

We next consider whether the Norberts' complaint states a cause of action against the Commission. The Norberts argue that the Commission has the responsibility to maintain the Turnpike and to protect the safety of persons and property on the Turnpike. They further contend the Commission's failure to remove the tire, despite its knowledge of the presence of the tire on the roadway, constitutes a breach of that duty. For purposes of this appeal, we will assume that the Norberts' complaint adequately alleges a duty on the part of the Commission to those travelling on the Turnpike. See generally, Department of Transportation v. Pennsylvania Public Utility Commission, 79 Pa.Commonwealth Ct. 266, 469 A.2d 1149 (1983) (the Department has a continuing responsibility for the safe passageway of the traveling public over Commonwealth highways arising from its...