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SEAN G. POWELL v. WRIGHTSTOWN TOWNSHIP ET AL. (08/24/83)

decided: August 24, 1983.

SEAN G. POWELL, APPELLANT
v.
WRIGHTSTOWN TOWNSHIP ET AL., APPELLEES



Appeal from the Orders of the Court of Common Pleas of Bucks County in case of Sean G. Powell v. Wrightstown Township, Commonwealth of Pennsylvania, Pennsylvania Department of Transportation and Andrew L. Warren, Elaine Zettrick and Carl Fonash, Commissioners of Bucks County, George J. Froelich & Fred W. Diekman, Additional Defendants, No. 80-7933-05-2; and in case of Nancy Diekman, Guardian of Fred Diekman, an alleged incompetent v. Wrightstown Township, Commonwealth of Pennsylvania, Department of Transportation, Andrew L. Warren, Elaine Zettrick, Carl Fonash and County of Bucks, and George J. Froelich, Additional Defendant, No. 80-7932-13-2.

COUNSEL

Edward N. Noss, with him Jeffrey L. Naftulin and Albert M. Hankin, of Counsel: Meyer, Lasch, Hankin & Poul, for appellant.

Jay H. Karsch, with him David L. Shenkle, of Counsel: Eastburn and Gray, for appellee, Wrightstown Township.

William A. Slotter, Deputy Attorney General, for appellee, Department of Transportation.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 76 Pa. Commw. Page 522]

Appellants*fn1 have appealed*fn2 from two orders of the Court of Common Pleas of Bucks County which granted motions for judgment on the pleadings filed by Wrightstown Township (Township) and ordered that Appellants' complaints in trespass be dismissed as to the Township. We affirm in part, reverse in part and remand.

Appellants were involved in a serious automobile accident on Legislative Route 09050 (also known as Mill Creek Road) in Bucks County on July 27, 1978. Appellants subsequently filed separate trespass complaints against several defendants including the

[ 76 Pa. Commw. Page 523]

Township. The complaints allege that at the time of the accident the Township "was responsible for the design, building, maintenance, repair, traffic signs and the care of highways and bridges within township limits." It is further alleged that the Township is liable for the negligent construction, maintenance and control of L.R. 09050.

The Township's motions for judgment on the pleadings were based on the present status of L.R. 09050 as a state highway.*fn3 The Township alleged that it is not responsible for the construction, maintenance, repair, control or erection of signs on state highways and, accordingly, cannot be held liable for negligence with regard thereto. The court of common pleas agreed, concluding that exclusive jurisdiction for the construction and maintenance of L.R. 09050 resides in the Commonwealth. The instant appeals followed.

A motion for judgment on the pleadings is in the nature of a demurrer. Board of Pensions and Retirement v. Bradley, 65 Pa. Commonwealth Ct. 154, 442 A.2d 26 (1982). The moving party admits the truth of the well pleaded allegations of his adversary and the untruth of his own averments which have been denied. Judgment on the pleadings cannot be entered where material issues of the facts are in dispute. Tate v. Pennsylvania Board of Probation and Parole, 40 Pa. Commonwealth Ct. 4, 396 A.2d 482 (1979).

Our ruling in this case is controlled by our recent decision in Diekman v. Wrightstown Township, 70 Pa. Commonwealth Ct. 245, 453 A.2d 366 (1982). The issue in Diekman was whether the trial court had properly dismissed one of the same trespass ...


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