Swank v. Bensalem Tp.
| Decision Date | 31 August 1982 |
| Citation | 449 A.2d 837,68 Pa.Cmwlth. 520 |
| Parties | Thomas SWANK, Appellant, v. BENSALEM TOWNSHIP and Commonwealth of Pennsylvania Department of Transportation, Appellees. |
| Court | Pennsylvania Commonwealth Court |
Before CRUMLISH, President Judge, and BLATT and DOYLE, JJ.
A Bucks County Common Pleas Court granted Bensalem Township's motion for summary judgment. Thomas Swank appeals. We affirm in part and reverse and remand in part.
Swank was seriously injured in a motorcycle accident at the "Pen Ryn" curve on State Road, a state highway, 1 in Bensalem Township. The Township had previously applied to the Department of Transportation for a permit to erect flashing warning lights at the approaches to the "Pen Ryn" curve, following a series of collisions at the curve. The lights had not been erected at the time of Swank's mishap. 2
Swank alleges that the Township's delay in erecting these lights constituted negligence, and that the issue of the reasonableness of the delay was one of fact which should have been submitted to a jury. We disagree and conclude that the motion for summary judgment was properly granted as to this issue.
In Stevens v. Reading Street Railway Co., 384 Pa. 390, 121 A.2d 128 (1956), the plaintiff was injured after stepping into a hole in a state road in the City of Reading. Our Supreme Court, in interpreting the various provisions of the State Highway Law 3, wrote:
The effect of these provisions was to place the control and responsibility for repair and maintenance of North Fifth Street, the scene of the accident, upon the Commonwealth. Since the Commonwealth, by statute, has relieved the City of the obligation to repair the hole, the City cannot be guilty of negligence since there must be a duty and a breach of duty to produce a right of action. (Emphasis added.)
Swank would distinguish this case and its progeny on the basis that the Township, by asking for and receiving a permit to erect the warning devices, had assumed the duty to erect these signs. He further alleges that the reasonableness of the Township's delay in erecting these devices was a question of fact for a jury and not subject to a motion for summary judgment.
The mere application for a permit to erect these devices as provided by Section 6122 of the Motor Vehicle Code, as amended, 75 Pa.C.S. § 6122, was discretionary and created no duty because it was nothing more than an act of regulation in compliance with the Commonwealth's exclusive control of state highways.
Section 6122 states in pertinent part:
(a) General rule.--The department on State-designated highways and local authorities on any highway within their boundaries may erect official traffic-control devices, which shall be installed and maintained in conformance with the manual and regulations published by the department upon all highways as required to carry out the provisions of this title or to regulate, restrict, direct, warn prohibit or guide traffic. (Emphasis added.)
Further, the terms of the permit relieve the Commonwealth, and impose liability on the Township, for injuries occurring to any person, persons or property through or in consequence of any act or ommission of anyone working on the construction, or from faulty maintenance or operation of such device.
This language relieves the township of liability prior to construction of the device, as the undisputed facts in this case clearly disclose. 4
Swank has also alleged a faulty design of the road. 5 The record is unclear whether the township or the Commonwealth had designed and constructed the road. Although the trial court casually referenced this allegation, it did not address this issue when it granted the Township's motion for summary judgment. A motion for summary judgment is only appropriate if the case is free and clear of doubt, there...
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Mindala v. American Motors Corp.
...Commonwealth. 384 Pa. at 403-404, 121 A.2d at 135. Likewise, Appellee cites Commonwealth Court cases such as Swank v. Bensalem Township, 68 Pa.Comwlth. 520, 449 A.2d 837 (1982), rev'd on other grounds, 504 Pa. 291, 472 A.2d 1065 (1984); Calvanese v. Leist, 70 Pa.Comwlth. 251, 452 A.2d 1125 ......
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...to erect traffic controls. Bryson v. Solomon, 97 Pa.Commonwealth Ct. 530, 510 A.2d 377 (1986). See also Swank v. Bensalem Township, 68 Pa. Commonwealth Ct. 520, 449 A.2d 837 (1982), rev'd on other grounds, 504 Pa. 291, 472 A.2d 1065 (1984). Once they are erected, however, a suit alleging ne......
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...of Appellants' accident. The Township argues, therefore, that this case is more akin to our decision in Swank v. Bensalem Township, 68 Pa.Commonwealth Ct. 520, 449 A.2d 837 (1982), rev'd on other grounds, 504 Pa. 291, 472 A.2d 1065 (1984), 8 in which we held that Bensalem Township was not l......
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Mindala v. American Motors Corp.
...holding, the Rinaldi Court cited Calvanese v. Leist, 70 Pa.Commonwealth Ct. 251, 452 A.2d 1125 (1982), and Swank v. Bensalem Township, 68 Pa.Commonwealth Ct. 520, 449 A.2d 837 (1982), rev'd on other grounds, 504 Pa. 291, 472 A.2d 1065 (1984). These two cases, in turn, rely upon our Supreme ......