Appeal from the Order of the Commonwealth Court of Pennsylvania No. 66 Misc. Dkt. No. 4, Reversing the Order of the Court of Common Pleas of Lancaster County dated October 7, 1983, No. 235, November Term, 1981
Joseph A. McIntyre, William A. Atlee, Jr., Lancaster, Thomas Hollander, Pittsburgh, for appellants.
George A. Welsh, Sr. Deputy Atty. Gen., Charles W. Rubendall, Harrisburg, William E. Haggerty, Vincent J. Quinn, Lancaster, for appellees.
George C. Werner, Lancaster, for appellee West Cocalico Tp.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Stout, J., did not participate in the consideration or decision of this case. Hutchinson, Former J., did not participate in the decision of this case. Zappala, J., filed an Opinion in Support of Affirmance in which Nix, C.j., and Flaherty, J., joined. Larsen, J., filed an Opinion in Support of Reversal in which McDermott and Papadakos, JJ., joined.
The Court being evenly divided, the Order of the Commonwealth Court is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
We granted Appellants' petition for allowance of appeal to determine whether the Commonwealth Court erred in reversing the trial court's order denying the Appellee's*fn1 motion for summary judgment. The basis of the Commonwealth Court decision was that the township owed no duty to Appellants since the intersectional vehicular collision occurred on a state-designated highway. 90 Pa. Commw. 366, 495 A.2d 644 (1985).
The facts are as follows:*fn2 Thomas M. Mindala and Vickie Lee Mindala were killed and their infant daughter Tracy Lee Mindala severely injured as a result of an intersectional collision on Schoeneck and Indiantown Road in West Cocalico Township, Lancaster County. The collision occurred on November 25, 1979 at 7 p.m. Schoeneck and Indiantown Road are state-designated highways which run respectively in a north/south and east/west direction. However, on the west side of the intersection, Indiantown Road is a township road. For over forty years, this intersection has been controlled by stop signs situated on both the state and township sides of Indiantown Road. On the night in question, the Mindalas were travelling west on Indiantown Road while Harry Good was operating his vehicle in a southbound direction on Schoeneck Road. Ordinarily, westbound traffic on Indiantown Road is controlled by a stop sign erected at the intersection of Schoeneck and Indiantown Road. Unfortunately for the Mindalas, at the time that they reached the intersection of Schoeneck and Indiantown Road the stop sign was missing.
The day before the Mindala-Good collision, at approximately 3:30 to 3:45 p.m., a resident of nearby Clay Township
observed that the stop sign was missing on the east side of Indiantown Road. By way of deposition, that resident testified that the Schoeneck-Indiantown Road intersection is not easily recognizable by motorists travelling westbound on Indiantown Road and on the day that the stop sign was missing she observed a vehicle enter the Schoeneck-Indiantown Road intersection without stopping, almost causing an intersectional collision. Since she was unable to contact either a township official or the police chief upon reaching home, she reported the missing stop sign to the Ephrata Communications Center, which takes calls for the township police. The Communications Center attempted to contact PennDot on two occasions without any success. Around midnight, approximately eight hours after the stop sign was reported missing, the township police chief contacted the Communications Center and was informed of the missing stop sign and that prior efforts to notify PennDot were unsuccessful. Notwithstanding, the police chief did not attempt to contact PennDot or the state police barracks which was situated only four miles from this dangerous intersection.*fn3 The police chief did, however, proceed to the intersection to check the report and to attempt to locate the stop sign. Failing to find the stop sign, the police chief did nothing more although his patrol car was equipped with warning devices which could be used to alert motorists of the upcoming dangerous intersection. In addition, an affidavit was filed in response to the township's motion for summary judgment which indicated that the township had available a portable stop sign which could have been used at the intersection on a temporary basis.
Both township officials and the police chief testified by way of deposition that PennDot had specifically instructed the township that the township had no authority to maintain any traffic control devices on state-designated highways. Based upon these instructions, the township had never
installed or replaced a traffic control device of any kind on a state highway.
As the result of this tragedy, Appellants filed a complaint against the township alleging that the township was negligent in failing to erect the stop sign as well as negligent in failing to either take corrective action or warn motorists of the hazardous condition. After discovery had been completed, the township filed a motion for summary judgment alleging that it had no statutory duty to take corrective action of any kind or alternatively that the Appellants' claim was barred by the Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, 53 P.S. § 5311.101 et seq.*fn4 The trial judge denied the motion but certified the issues as controlling questions of law. In denying the motion the trial judge held that the township owed a duty to motorists to at least notify the Commonwealth of the condition and undertake safety measures until such time as the Commonwealth could rectify the situation and that the Appellants' cause of action was not barred by the Political Subdivision Tort Claims Act.
In finding that the township did have a duty to react to the missing stop sign, the trial court adopted the reasoning of the New Jersey Supreme Court in Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968). In Bergen, the Court held that a township may be liable for a broken traffic control device on a state-designated highway if a police officer learns of a hazardous and emergent condition on the state highway which was not likely to be observed by a motorist and which presents an unusual risk of injury. A municipality may avoid liability by proving that the police failed to act because of competing demands upon the police force and such inaction was not palpably unreasonable.
As to the issue of governmental immunity, the trial court strictly construed § 221(l) of the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542(b)(4) and held that it was
unnecessary for the local municipality to have a possessory interest in the stop sign, for that exception to immunity to apply.
On appeal, the Commonwealth Court en banc reversed the trial court finding that the instant case was indistinguishable from Rinaldi v. Giblin, 70 Pa. Commw. 253, 452 A.2d 1126 (1982). In Rinaldi, the Commonwealth Court held that a township may not be held liable for failure to warn the Commonwealth of a missing traffic control sign on a state-designated highway, nor may a municipality be held liable for failing to correct a hazardous condition on a state highway because the exclusive responsibility for traffic control lies with the Commonwealth. Furthermore, the Commonwealth Court determined that the township did not have "care, custody or control" of the stop sign at the Schoeneck-Indiantown Road intersection thereby making the § 8542(b)(4) exception to governmental immunity inapplicable. From this decision we granted Appellants' request for our review.
This appeal presents two issues: whether the township owed a duty to the Appellants either to take corrective action or warn of the existing hazardous condition, and whether, if such duty does exist, this claim is barred by governmental immunity.
In Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), this Court abolished governmental immunity for municipalities. As a result of our action in rejecting governmental immunity in Ayala, our legislature enacted the Political Subdivision Tort Claims Act, supra, to restrict instances when an individual may sue a local agency. In so doing, the legislature granted an individual a cause of action in specifically limited situations:
§ 8542. Exceptions to governmental immunity
(a) Liability imposed. -- A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of ...