Opinion
Argued March 5, 1982
December 6, 1982.
Highways — Responsibility of Commonwealth — Demurrer.
1. Exclusive responsibility for the maintenance and control of state highways rests with the Commonwealth. [247]
2. A demurrer admits all well-pleaded facts and reasonable inferences deducible therefrom and cannot be sustained if there is any doubt as to the issue raised. [247]
Argued March 5, 1982, before President Judge CRUMLISH, JR. and Judges BLATT and DOYLE, sitting as a panel of three.
Appeal, No. 63 T.D. 1981, from the Order of the Court of Common Pleas of Bucks County in case of Nancy Diekman, Guardian of Fred W. Diekman, an alleged incompetent v. Wrightstown Township and Commonwealth of Pennsylvania and Department of Transportation and Andrew L. Warren, Elaine Zettick and Carl Fonash and County of Bucks, No. 80-7932-13-2.
Complaint in the Court of Common Pleas of Bucks County seeking damages for personal injuries. Preliminary objections filed. Preliminary objections sustained. Complaint dismissed. BIEHN, J. Plaintiff appealed to the Superior Court of Pennsylvania. Case transferred to the Commonwealth Court of Pennsylvania. Held: Affirmed in part and reversed in part. Case remanded.
Albert M. Hankin, of counsel: Meyer, Lasch, Hankin Poul, for appellant.
Carl Bucholz, with him Jay H. Karsch, William A. Slotter, Jr., and Alan Greenberg, Rawle Henderson, for appellees, Andrew L. Warren, Elaine Zettick and Carl Fonash, and the County of Bucks.
The Bucks County Common Pleas Court sustained the preliminary objections of Bucks County and certain named Commissioners. Fred W. Diekman, by his guardian, appeals. We affirm in part, reverse in part and remand.
Diekman, who was injured in an accident on a state road within Bucks County, alleged liability on the part of the County for negligent design, maintenance, repair and posting of traffic signs.
The appellant here is the court-appointed guardian of Diekman, who was still in a coma at the time of the trial court decision.
The trial court sustained the County's preliminary objections, concluding that exclusive jurisdiction for the maintenance and control of state highways rests with the Commonwealth. We agree. See Swank v. Bensalem Township, 68 Pa. Commw. 520, 449 A.2d 837 (1982). However, as we concluded in Swank, if the cause of action is based on allegations that the original design and construction were negligent and it is unclear who was responsible for such design, then that issue is for the trier of fact. Sustaining preliminary objections in the nature of a demurrer is only proper where, on the face of the complaint, admitting every well-pleaded fact, as well as all inferences reasonably deducible therefrom, the claim cannot be sustained. If there is any doubt as to the issue, the preliminary objections must be overruled. Dwyer v. Rothman, 288 Pa. Super. 256, 263, 431 A.2d 1035, 1039 (1982), quoting Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976).
In companion cases filed today, we disposed of similar issues dealing with a township's liability for failure to warn the Commonwealth of a hazard and failure to repair a hazard on a state road. See Calvanese v. Leist, 70 Pa. Commw. 251, 452 A.2d 1125 (1982), and Rinaldi v. Giblin, 70 Pa. Commw. 253, 452 A.2d 1126 (1982), wherein we concluded no such liability will repose in any other entity but the Commonwealth.
We conclude that it was improper it sustain the preliminary objections as to the issue of the liability, if any, for the initial design and construction.
We need not address appellant's claim that the lower court committed error in not allowing an amendment to the complaint once the preliminary objections had been sustained. We do note, however, that Pa. R.C.P. No. 1028(c) allows for amendment as of right only within ten days after the service of preliminary objections. After that time, amendment is by permission of the court or by consent of the parties. See Pa. R.C.P. No. 1033 and Associates of Philipsburg v. Hurwitz, 292 Pa. Super. 406, 437 A.2d 447 (1981).
Affirmed in part; reversed and remanded in part.
ORDER
The Bucks County Common Pleas Court order, No. 80-7932-13-2 dated October 20, 1980, is hereby affirmed in part, reversed in part, and remanded for proceedings consistent with this Opinion.
Judge MENCER did not participate in the decision in this case.