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THOMAS SWANK v. BENSALEM TOWNSHIP (03/15/84)

decided: March 15, 1984.

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



No. 43 E.D. Appeal Dkt. 1983, Appeal from the Order of the Commonwealth Court of Pennsylvania entered at No. 1987 C.D. 1981, Nix, C.j., and Larsen, Flaherty, Zappala and Papadakos, JJ. McDermott and Hutchinson, JJ., did not participate in the consideration or decision of this case. Larsen, J., filed a dissenting opinion.

Author: Zappala

[ 504 Pa. Page 292]

OPINION

Appellee Thomas Swank instituted a trespass action against Bensalem Township, the Appellant herein, and the Pennsylvania Department of Transportation (PennDOT) for injuries sustained as the result of a single vehicle accident which had occurred in Bensalem Township on November 11, 1978. The accident occurred while the Appellee was traveling on State Road. State Road, Legislative Route 09001, was adopted as a state highway by the Act of June 22, 1931, P.L. 594, 36 P.S. § 1738-1. Appellee's complaint asserted that his injuries were caused by the negligent design, construction and maintenance of State Road by the Appellant and/or PennDOT.

The Appellee's complaint against the Appellant was dismissed after the Appellant's motion for summary judgment was granted by the Bucks County Common Pleas Court. The Commonwealth Court affirmed the lower court on the issue of the alleged negligence of the township in delaying to erect warning lights at the site of the accident, but reversed on the issue of the alleged faulty design of the road.*fn1 449 A.2d 837. The Commonwealth Court concluded the lower court should not have granted the summary judgment motion on that issue because it was not clear who was responsible for the highway's design and construction.

We granted the township's petition for allowance of appeal from the Commonwealth Court's reversal on the issue

[ 504 Pa. Page 293]

    of negligent design, and we now reverse. The issue presented by this appeal, which has not been addressed heretofore by this Court, is whether a township may be held liable for damages resulting from the negligent design or construction of a highway which has been adopted as a state highway.*fn2

The exclusive authority and jurisdiction over all state designated highways rests with the Department of Transportation. 71 P.S. § 512(10).

When a township road has been adopted as a state highway, it is the duty of the Commonwealth, through its Department of Transportation, to rebuild and improve a highway, if necessary.

Section 502 of the State Highway Law, Act of June 1, 1945, P.L. 1242, 36 P.S. 670-502 provides, in relevant part,:*fn3

After the highways on the rural State highway system shall have been taken over by the Commonwealth, they shall be built, rebuilt, constructed, reconstructed, repaired and maintained by the department, at the expense of the Commonwealth, but it shall, nevertheless, be lawful for the department to enter into agreements, in the discretion of the secretary, with counties or townships or with persons, associations of corporations for sharing with the Commonwealth the cost of construction, reconstruction and maintenance of such highways, or parts thereof.*fn4

Prior control over the road does not impose a duty upon the township to improve or reconstruct the road; nor does a township retain the ...


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