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NANCY DIEKMAN v. WRIGHTSTOWN TOWNSHIP ET AL. (12/06/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 6, 1982.

NANCY DIEKMAN, GUARDIAN OF FRED W. DIEKMAN, AN ALLEGED INCOMPETENT, APPELLANT
v.
WRIGHTSTOWN TOWNSHIP ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Nancy Diekman, Guardian of Fred W. Diekman, an alleged incompetent v. Wrightstown Township and Commonwealth of Pennsylvania and Department of Transportation and Andrew L. Warren, Elaine Zettick and Carl Fonash and County of Bucks, No. 80-7932-13-2.

COUNSEL

Albert M. Hankin, of counsel: Meyer, Lasch, Hankin & Poul, for appellant.

Carl Bucholz, with him Jay H. Karsch, William A. Slotter, Jr., and Alan Greenberg, Rawle & Henderson, for appellees, Andrew L. Warren, Elaine Zettick and Carl Fonash, and the County of Bucks.

President Judge Crumlish, Jr. 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

[ 70 Pa. Commw. Page 246]

The Bucks County Common Pleas Court sustained the preliminary objections of Bucks County and certain named Commissioners. Fred W. Diekman, by his guardian, appeals. We affirm in part, reverse in part and remand.

Diekman, who was injured*fn1 in an accident on a state road within Bucks County, alleged liability on the part of the County for negligent design, maintenance, repair and posting of traffic signs.

[ 70 Pa. Commw. Page 247]

The trial court sustained the County's preliminary objections, concluding that exclusive jurisdiction for the maintenance and control of state highways rests with the Commonwealth. We agree. See Swank v. Bensalem Township, 68 Pa. Commonwealth Ct. 520, 449 A.2d 837 (1982).*fn2 However, as we concluded in Swank, if the cause of action is based on allegations that the original design and construction were negligent and it is unclear who was responsible for such design, then that issue is for the trier of fact. Sustaining preliminary objections in the nature of a demurrer is only proper where, on the face of the complaint, admitting every well-pleaded fact, as well as all inferences reasonably deducible therefrom, the claim cannot be sustained. If there is any doubt as to the issue, the preliminary objections must be overruled. Dwyer v. Rothman, 288 Pa. Superior Ct. 256, 263, 431 A.2d 1035, 1039 (1982), quoting Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976).

We conclude that it was improper to sustain the preliminary objections as to the issue of the liability,*fn3 if any, for the initial design and construction.

Affirmed in part; reversed and remanded in part.

[ 70 Pa. Commw. Page 248]

Order

The Bucks County Common Pleas Court order, No. 80-7932-13-2 dated October 20, 1980, is hereby affirmed in part, reversed in part, and remanded for proceedings consistent with this Opinion.

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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