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

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 ...


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