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GEORGE R. HOFFMASTER v. COUNTY ALLEGHENY. GEORGE R. HOFFMASTER (11/23/88)

decided: November 23, 1988.

GEORGE R. HOFFMASTER, II
v.
COUNTY OF ALLEGHENY. GEORGE R. HOFFMASTER, II V. TOWNSHIP OF CRESCENT. GEORGE R. HOFFMASTER, II. APPELLANT. TOWNSHIP OF CRESCENT, APPELLANT V. GEORGE R. HOFFMASTER, II, APPELLEE



Appeals from the Order of the Court of Common Pleas of Allegheny County in the case of George R. Hoffmaster, II v. County of Allegheny and George R. Hoffmaster, II v. Township of Crescent, Nos. GD 82-09306 and GD 82-22747.

COUNSEL

Ronald P. Koerner, Gatz, Cohen, Segal and Koerner, P.C., for appellant/appellee, George R. Hoffmaster, II.

Louis C. Long, with him, Richard J. Mills and Gregory F. Buckley, Meyer, Darragh, Buckler, Bebenek & Eck, for appellee/appellant, Township of Crescent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry. Judge MacPhail did not participate in the decision in this case.

Author: Barry

[ 121 Pa. Commw. Page 268]

George R. Hoffmaster, II (plaintiff) and Crescent Township (Township) have filed cross appeals from an order of the Court of Common Pleas of Allegheny County denying the Township's motion for judgment n.o.v. but granting its motion for new trial.

Plaintiff sustained injuries when shortly after 6:00 a.m. on March 13, 1981, the car he was driving slid on a patch of ice and collided with a Port Authority Transit of Allegheny County bus travelling in the opposite direction. The accident occurred at a bend on Spring Run Road, an Allegheny County (County) highway. A year or

[ 121 Pa. Commw. Page 269]

    two before this accident, the Township had an informal, unwritten agreement with the County concerning the responsibility for removal of snow and ice from Spring Run Road. By a letter dated October 30, 1980, from Thelma A. Stucke, the Secretary and Manager of the Township, to Paul Ostrowski, Chief Engineer in the County's Maintenance Department, this informal agreement was confirmed in writing. This letter read:

As per our conversation, please be advised that the Township of Crescent is willing to continue snow and ice removal on Spring Run Road for the coming winter 1980-81. As in the past. Mr. Wagner [a district supervisor for the county] will supply the township with salt and cinder mix as needed for this road.

As a result of the motor vehicle accident of March 13, 1981, plaintiff brought an action for damages against the County. When discovery revealed the existence of the agreement between the County and the Township, plaintiff brought a separate action against the Township. These actions were consolidated for jury trial. Before trial, the County settled with the plaintiffs and received a joint tortfeasors' release. The County remained on the record throughout the trial, however. The case was submitted to the jury on written interrogatories. The jury returned a verdict in favor of Mr. Hoffmaster, finding no contributory negligence on his part and apportioning 30% of causal negligence to the County and 70% to the Township.

The Township filed a timely motion for post trial relief seeking judgment N.O.V. or a new trial. The trial court, acting upon this motion, granted a new trial on the basis of insufficiencies it saw in its charge to the jury. It denied, however, the Township's motion for judgment N.O.V. These cross appeals followed.

The Township appeals from the denial of its motion for judgment N.O.V. This court's scope of review when

[ 121 Pa. Commw. Page 270]

    considering an appeal from an order denying a motion for judgment N.O.V. is very narrow; we are concerned only with determining whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference reasonably to be drawn from the evidence and rejecting all unfavorable testimony and inferences. Cabell v. City of Hazleton, 96 Pa. Commonwealth Ct. 129, 506 A.2d 1001 (1986).

The Township contends that it had no duty to correct an artificial condition that makes ice formation on Spring Run Road in dry weather possible, or a duty to post warnings of such a phenomenon, since it is a county highway. Therefore, according to it, judgment N.O.V. should have been entered in its favor. We note, however, that the trial court agreed with the Township's contention that it did not have a duty to either correct an artificial condition making ice formation on the county road in dry weather possible or to post warning signs of such a phenomenon and rejected the plaintiff's argument that the Township had such duties. The trial court, however, refused to enter judgment N.O.V. because it found that:

The jury might have found that the Township, having had actual or constructive notice of the hazard of ice produced at the bend in the road by the artificial condition, should routinely have sent its road crew out there to check for ice whenever weather conditions existing on the morning of plaintiff's accident prevailed, and that its failure to do so was negligence.

Hoffmaster v. County of Allegheny, (Nos. G.D. 82-09306 and G.D. 82-22747, filed February 2, 1987), slip op. at 14.

The Township, at one point in its brief to this Court, asserts that it did not even have the duty of removing snow and ice from Spring Run Road.

[ 121 Pa. Commw. Page 271]

In its decision in Clark v. Allegheny County, 260 Pa. 199, 103 A. 552 (1918), the Supreme Court held that the Act of June 26, 1895, P.L. 336-specifically, Section 16 thereof -- and the Act of May 11, 1911, P.L. 244-specifically, Section 1 thereof -- relieved townships of the responsibility of repairing and maintaining township roads which had been taken over by the county and imposed such responsibilities upon the county. Therefore, the county became liable for injuries resulting from the failure to properly repair and/or maintain those roads, even though neither act expressly imposed liability upon a county for such negligence. 260 Pa. at 203-04, 103 A. at 553. The Act of August 9, 1955, P.L. 323-specifically, Sections 2702 and 2705 thereof, 16 P.S. §§ 2702, 2705 -- like its above mentioned predecessors, relieves townships of all duty for the repair and maintenance of township roads taken over by counties and imposes upon the counties this duty. Spring Run Road was declared to be a county road by the Court of Quarter Sessions of Allegheny County on October 5, 1911. As a result, the duty of repairing and maintaining that road, and the accompanying liability for failure to carry out that duty, thereafter fell on the County.

Nevertheless, we note that the Township, pursuant to an agreement with the County, assumed the County's responsibility for removing snow and ice from Spring Run Road. That being the case, the County can be liable for its negligence, Restatement (Second) of Torts § 324(a),*fn1 and cannot rely upon the effect of the statutory provisions mentioned above as a shield from such liability.

[ 121 Pa. Commw. Page 272]

The Township, in arguing that it could not be held responsible for removing ice from Spring Run Road, relies upon the decision in McCormick v. Allegheny County, 263 Pa. 146, 106 A. 203 (1919); another case in which it was recognized that the Act of June 26, 1895, P.L. 336 and the Act of May 11, 1911, P.L. 244, imposed liability for failure to repair or maintain county highways on the county and not on the local municipality. In that case, the appellee was injured while walking on a sidewalk along a township road taken over by the county. There was evidence showing that Union Township had constructed the sidewalk under a contract with Allegheny County, that the county contributed part of the money for this project, and that the county had agreed to an indemnity clause in the contract. After noting these facts, the Supreme Court stated:

[T]he county could not, by such an agreement, shift its statutory responsibility to another party. Hence Union Township could not construct and maintain a boardwalk along the road. If it did so, with the consent of the county officials, it was simply acting as the agent of the county, and the latter was not thereby relieved of liability to a stranger.

263 Pa. at 149, 106 A. at 204. The Township argues that, in making the above statement, the Supreme Court had held that a municipality which assumes responsibility for the repair and maintenance of a road taken over by the county could not be held liable for injuries sustained by a third party as a result of its failure. We do not, however, construe the above statement

[ 121 Pa. Commw. Page 273]

    to stand for that principle. Rather, we believe that what the Supreme Court meant was that the county could be held liable to ...


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