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DONNA BUFFALINI v. WILLIAM N. SHRADER (12/30/87)

decided: December 30, 1987.

DONNA BUFFALINI, AN INCOMPETENT, BY FRANCIS T. BUFFALINI, AND ROSE MARIE BUFFALINI, HER GUARDIANS, AND FRANCIS T. BUFFALINI AND ROSE MARIE BUFFALINI, INDIVIDUALS IN THEIR OWN RIGHT, APPELLANTS
v.
WILLIAM N. SHRADER, JR., ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Westmoreland County, in the case of Donna Buffalini, an incompetent, by Francis T. Buffalini, and Rose Marie Buffalini, her guardians, and Francis T. Buffalini and Rose Marie Buffalini, individuals in their own right v. William N. Shrader, Jr., an individual; Cathy E. Higgins, an individual; P.B.R. Enterprises, Inc., a corporation; Ernest E. Vallozzi and Patrick Tatano, individuals, t/d/b/a Vallozzi's Restaurant; Township of Hempfield, a municipal corporation; Commonwealth of Pennsylvania, Department of Transportation v. Eastgate Chrysler-Plymouth Dodge, William D. Shrader, No. 3679 of 1982.

COUNSEL

Louis C. Long, with him, Robert A. Nedwick and Scott T. Redman, Meyer, Darragh, Buckler, Bebenek & Eck, for appellants.

Donald J. McCormick, Wayman, Irvin & McAuley, for appellee, Township of Hempfield.

Brian H. Baxter, Senior Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellee, Department of Transportation.

Judges MacPhail and Barry, and Senior Judge Blatt; sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 112 Pa. Commw. Page 230]

Donna Buffalini, an incompetent, and Francis T. Buffalini and Rose Marie Buffalini, her guardians (appellants) appeal from an order of the Court of Common Pleas of Westmoreland County granting the Township of Hempfield's (Township) motion for summary judgment. We affirm.

During the early morning hours of June 28, 1980 Donna Buffalini was a passenger in a car which failed to stop at the intersection of U.S. Route 30 and Legislative Route 64135 in Westmoreland County. The car in which Ms. Buffalini was riding was hit by a pickup truck which was traveling west on Route 30. The injuries

[ 112 Pa. Commw. Page 231]

    sustained by Ms. Buffalini in this unfortunate accident have rendered her incompetent and she was so adjudged on September 3, 1981 by the Orphans' Court Division of the Court of Common Pleas of Westmoreland County. By the same order Francis T. Buffalini and Rose Marie Buffalini, her parents, were appointed as guardians of her estate. By order of June 15, 1982 they were further appointed as guardians of her person.

On June 15, 1982 a complaint was filed by the appellants naming inter alia the Township and the Commonwealth of Pennsylvania, Department of Transportation (DOT) as defendants. Count V of the complaint alleges liability on the part of the Township for negligently permitting a commercial sign to be erected and/or maintained which obstructed the view of a stop sign at the intersection in question.

The trial court granted the Township's motion and this appeal followed.

Rule 1035 of the Pennsylvania Rules of Civil Procedure provides a summary method for the determination of legal disputes where there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa. R.C.P. No. 1035(b). "[E]ntry of summary judgment may be granted only in cases where the right is clear and free of doubt." Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986). "[T]he burden of demonstrating that no genuine issue of material fact exists and that one is entitled to judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party." Giannini v. Carden, 286 Pa. Superior Ct. 450, 454, 429 A.2d 24, 26 (1981) (emphasis added), quoted with approval in Miller v. Leljedal, 71 Pa. Commonwealth Ct, 372, 375, 455 A.2d 256, 257 (1983). We must determine whether the trial court erred in granting the Township's motion for summary judgment.

[ 112 Pa. Commw. Page 232]

The pleadings, depositions and answers to interrogatories which are part of the record reveal that both roadways involved in this accident are state highways. The stop sign was at the intersection of the two highways and was not located on real property owned by the Township. The commercial sign alleged to have obstructed the L.R. 64135 southbound motorist's view of the stop sign was not located on real property owned by the Township. The commercial sign was erected without a permit application being filed with the Township. Following the initiation of this action the sign was found to be in violation of a Township ordinance and its removal was ordered by the Township Zoning Officer.

The trial court granted the Township's motion for summary judgment on the basis that the appellants had failed to demonstrate that the Township had an affirmative duty to enforce its ordinance and order the removal of the sign prior to the accident. Since it found no such duty the trial court did not reach the defense of governmental immunity raised by the Township ...


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