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ALLEN E. WALCH v. RED HILL BOROUGH AND COMMONWEALTH PENNSYLVANIA (10/29/87)

decided: October 29, 1987.

ALLEN E. WALCH, FATHER AND NATURAL GUARDIAN OF CATHY WALCH, A MINOR, APPELLANT
v.
RED HILL BOROUGH AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Allen E. Walch, Father and Natural Guardian of Cathy Walch, a minor v. Red Hill Borough and Commonwealth of Pennsylvania, No. 85-08540.

COUNSEL

Ronald R. Bolig, with him, Robert A. Lechowicz, Rufe and Lechowicz, for appellant.

Jay H. Karsch, Eastburn and Gray, for appellee, Borough of Red Hill.

Judges Craig and MacPhail, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 110 Pa. Commw. Page 556]

Allen E. Walch, father and natural guardian of Cathy Walch, appeals an order of Court of Common Pleas of Montgomery County dismissing Mr. Walch's complaint and sustaining Red Hill Borough's demurrer. Judge Brown concluded that the borough had no duty or responsibility regarding the establishment of traffic control measures on Main Street, which is also Pennsylvania State Route 29, where the accident at issue occurred. We affirm.

On June 8, 1983, the minor Walch, while attempting to cross that street to get to school at Red Hill Elementary was struck by an automobile and seriously injured. No school zone crossing existed.

Mr. Walch filed a complaint against the Commonwealth of Pennsylvania and the borough, alleging, among, other things, that the borough was negligent in failing to provide safe and adequate means of regulating the flow of traffic on the highway.

In his appeal, Mr. Walch contends that the common pleas court erred in concluding (1) that the borough did not exercise control or supervision of the highway, and (2) that the borough had no duty to install traffic control measures to protect school students.

Of course, the essential elements of a cause of action in negligence are (1) a duty on the part of the defendant to conform to a certain standard of conduct with respect to the plaintiff, (2) a failure by the defendant to conform to that standard and (3) a reasonably close causal connection between the defendant's conduct and the resulting injury to the plaintiff. Cummins v. Firestone Tire & Rubber Co., 344 Pa. Superior Ct. 9, 495 A.2d 963 (1985).

[ 110 Pa. Commw. Page 557]

Although the complaint makes averments concerning the defendants' failure to supervise and maintain Route 29 properly, it does not identify which of the defendants has the responsibility and hence does not identify the borough as the subject of those averments. Because Route 29 is a state highway, the Commonwealth has exclusive authority over it. Calvanese v. Leist, 70 Pa. Commonwealth Ct. 251, 452 A.2d 1125 (1982); Rinaldi v. Giblin, 70 Pa. Commonwealth Ct. 253, 452 A.2d 1126 (1982). Moreover, absent a statutorily imposed duty, a municipality has no duty to warn or ...


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