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THOMAS SWANK v. BENSALEM TOWNSHIP AND COMMONWEALTH PENNSYLVANIA (08/31/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 31, 1982.

THOMAS SWANK, APPELLANT
v.
BENSALEM TOWNSHIP AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEES

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Thomas Swank v. Bensalem Township and Pennsylvania Department of Transportation, No. 80-8786-13-2.

COUNSEL

Barton A. Haines, for appellant.

James M. Marsh, with him Jonathan D. Herbst, of counsel: LaBrum and Doak, for appellee, Bensalem Township.

Gary B. Gilman, Deputy Attorney General, for appellee, Department of Transportation.

President Judge Crumlish and Judges Blatt and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case.

Author: Crumlish

[ 68 Pa. Commw. Page 522]

A Bucks County Common Pleas Court granted Bensalem Township's motion for summary judgment. Thomas Swank appeals. We affirm in part and reverse and remand in part.

Swank was seriously injured in a motorcycle accident at the "Pen Ryn" curve on State Road, a state highway,*fn1 in Bensalem Township. The Township had previously applied to the Department of Transportation for a permit to erect flashing warning lights at the approaches to the "Pen Ryn" curve, following a series of collisions at the curve. The lights had not been erected at the time of Swank's mishap.*fn2

Swank alleges that the Township's delay in erecting these lights constituted negligence, and that the issue of the reasonableness of the delay was one of fact which should have been submitted to a jury. We disagree and conclude that the motion for summary judgment was properly granted as to this issue.

In Stevens v. Reading Street Railway Co., 384 Pa. 390, 121 A.2d 128 (1956), the plaintiff was injured after stepping into a hole in a state road in the City of Reading. Our Supreme Court, in interpreting the various provisions of the State Highway Law,*fn3 wrote:

The effect of these provisions was to place the control and responsibility for repair and maintenance of North Fifth Street, the scene of the accident, upon the Commonwealth. Since the

[ 68 Pa. Commw. Page 523]

Commonwealth, by statute, has relieved the City of the obligation to repair the hole, the City cannot be guilty of negligence since there must be a duty and a breach of duty to produce a right of action. (Emphasis added.)

Id. at 402, 121 A.2d at 134.

Swank would distinguish this case and its progeny on the basis that the Township, by asking for and receiving a permit to erect the warning devices, had assumed the duty to erect these signs. He further alleges that the reasonableness of the Township's delay in erecting these devices was a question of fact for a jury and not subject to a motion for summary judgment.

The mere application for a permit to erect these devices as provided by Section 6122 of the Motor Vehicle Code, as amended, 75 Pa. C.S. ยง 6122, was discretionary and created no duty because it was nothing more than an act of regulation in compliance with the Commonwealth's exclusive control of state highways.

Section 6122 states in pertinent part:

(a) General rule. -- The department on State-designated highways and local authorities on any highway within their boundaries may erect official traffic-control devices, which shall be installed and maintained in conformance with the manual and regulations published by the department upon all highways as required to carry out the provisions of this title or to regulate, restrict, direct, warn, prohibit or guide traffic. (Emphasis added.)

Further, the terms of the permit relieve the Commonwealth, and impose liability on the Township, for injuries occurring:

     to any person, persons or property through or in consequence of any act or omission of anyone working on the construction, or from faulty maintenance or operation of such device.

[ 68 Pa. Commw. Page 524]

This language relieves the township of liability prior to construction of the device, as the undisputed facts in this case clearly disclose.*fn4

Swank has also alleged a faulty design of the road.*fn5 The record is unclear whether the township or the Commonwealth had designed and constructed the road. Although the trial court casually referenced this allegation, it did not address this issue when it granted the Township's motion for summary judgment. A motion for summary judgment is only appropriate if the case is free and clear of doubt, there being no material issue of fact to be resolved. The evidence must be viewed in the light most favorable to the nonmoving party and the motion may only be granted when the moving party is entitled to judgment as a matter of law. Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Commonwealth Ct. 88, 434 A.2d 1327 (1981).

We now conclude that, not only is it factually unclear as to responsibility for the initial design and construction of the highway, it is also unclear as to where liability in the law reposes if in fact the design and construction were negligent. The granting of the motion for summary judgment was error as to this issue.

[ 68 Pa. Commw. Page 525]

Affirmed in part, and reversed and remanded in part.

Order

The order of the Court of Common Pleas of Bucks County, No. 80-8786-13-2 dated June 30, 1981, is affirmed in part and reversed and remanded in part.

Judge Mencer did not participate in the decision in this case.

Disposition

Affirmed in part and reversed in part. Case remanded.


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