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Reversing a Philadelphia judge, a heavily divided en banc Commonwealth Court panel has ruled in favor of a slip-and-fall plaintiff whose complaint caption named as a defendant “commonwealth of Pennsylvania,” as opposed to “commonwealth of Pennsylvania, Department of Transportation.” The four-judge majority in Piehl v. City of Philadelphia stressed that PennDOT had been notified of the lawsuit, and that the language of William and Linda Piehl’s complaint clearly shows the agency had been the intended defendant. The city was let out of the case more than a year ago. The three dissenters said a potential litigant shouldn’t have to dissect an original process to determine if it is or isn’t a party to a particular action. “The problem was a clerical error,” said Piehl plaintiffs’ attorney Christine Godwin of the Law Offices of Todd Berk in Philadelphia. “For some reason, when [the complaint] was printed before filing, the Department of Transportation did not appear on the caption as a defendant.” Specifically naming PennDOT as a defendant in a personal injury action is key because under state law, there are instances in which the department does not enjoy the sovereign immunity that most state governmental entities do. The type of situation presented by Piehl is more common than some might guess: � In 1987, the Commonwealth Court held in Hall v. Acme Markets Inc. that it was appropriate to include PennDOT as a defendant in the action � even after the statute of limitations had run � because the department’s secretary had earlier been properly named as a defendant in the case, which stemmed from a traffic accident. � Tork-Hiis v. Commonwealth was brought in the late 1990s by children whose parents died while cross-country skiing in a state park. No specific commonwealth agency had been identified in the complaint. The trial court said a particular state agency had to be identified in such actions before the statute of limitations had run. The Commonwealth Court reversed in 1998, reasoning the addition of a particular agency could occur even after the statute of limitations had expired, so long as the same assets were exposed to judgment at all times. But the state Supreme Court reversed the appeals panel in 1999, explaining that the commonwealth’s assets are not identical to those of its individual agencies. � In its 2002 decision in Glover v. SEPTA, the Commonwealth Court ruled that a single reference to “DOT” in the body of a complaint did not make the state Department of Transportation a party in that action, which was brought by a woman injured while getting off a bus on Allegheny Avenue in Philadelphia. Linda Piehl’s March 2003 accident also occurred on Allegheny Avenue, according to Judge Mary Hannah Leavitt’s majority opinion in the case. The Piehls’ complaint was not filed until several days before the statute of limitations was set to expire in March 2005. Godwin said it was difficult to determine which government entity owned the property on which Piehl’s fall had occurred. But Godwin said her office had been in touch with PennDOT officials well before the actual complaint in the matter was filed. Leavitt noted in her opinion that the Piehl complaint was served on the Department of Transportation as well as Pennsylvania’s Office of the Attorney General. “The trial court concluded that the absence of �Department of Transportation’ in the caption of the Piehls’ complaint was an error fatal to the complaint,” Leavitt wrote. Leavitt called attention to the fact that in Glover, the plaintiff attempted to substitute one state agency, the Office of the Attorney General, with another, PennDOT. “This is not a substitution case like Glover,” she wrote. “Rather, it is a technical defect case like Hall.” “To give the caption of a complaint talismanic significance is at odds with the policy expressed in Tork-Hiis,” she added later. Leavitt was joined by President Judge Bonnie Brigance Leadbetter and Judges James Gardner Colins and Dan Pellegrini. In a dissent in which he was joined by Judges Bernard L. McGinley and Doris A. Smith-Ribner, Judge Robert Simpson wrote that “all parties, including commonwealth parties, are entitled to rely on the face of original process to determine if further action is warranted.” Piehl plaintiffs attorney Godwin had some advice for fellow practitioners. “Be very, very careful right before things are going to be filed, even right up until the last minute it leaves the door,” she said. “A lot of work went into trying to straighten this out, and hopefully now the case will settle.” A call to the Office of the Attorney General seeking comment on the ruling was not immediately returned. (Copies of the 19-page opinion in Piehl v. City of Philadelphia , PICS No. 07-1144, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) �

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