# Miseo v. Ross Township Police Department > Commonwealth Court of Pennsylvania · April 13, 1992 · 147 Pa. Commw. 263 URL: https://www.frixlaw.com/law-library/cases/9705431 ## Case - **Full name:** Giovanni MISEO, Joan Miseo, His Wife, Anthony Cifelli, Sr. and Lorraine Cifelli, His Wife, Individually and as Parents and Natural Guardians of Anthony Cifelli, Jr., a Minor and Christina Cifelli, a Minor, Appellants, v. ROSS TOWNSHIP POLICE DEPARTMENT, Pennsylvania State Police Department, Commonwealth of Pennsylvania Et Al., Appellees - **Court:** Commonwealth Court of Pennsylvania - **Decided:** April 13, 1992 - **Citations:** 147 Pa. Commw. 263; 607 A.2d 806; 1992 Pa. Commw. LEXIS 304 - **Precedential status:** Published - **Opinion:** Dissent by McGINLEY - **Judges:** Palladino, McGinley, Silvestri - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705431 ## Opinion text McGINLEY, Judge, dissenting. I respectfully dissent. The majority concludes that a “flare” is not an official traffic-control device. I believe that such a conclusion is based on too narrow an interpretation and is unsupported by the Vehicle Code and the facts of the present case. The term “official traffic-control devices” is defined in section 102 of the Vehicle Code, 75 Pa.C.S. § 102 and also in the Department of Transportation regulation at 67 Pa.Code § 211.1 as “devices not inconsistent with this title placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic.” (Emphasis added.) 67 Pa.Code § 167.3 describes “flares” as a liquid burning warning device. In the present controversy there is no question that the Ross Township Police Department (Ross Police) placed flares at the accident site for the purpose of regulating and warning traffic of a prior accident and icy road conditions. I believe that “flares” are traffic-control devices and were used as such in the present case. Also, I believe that the facts in Mindala v. American Motors Corp., 518 Pa. 350 , 543 A.2d 520 (1988) 1 are distinguishable from the facts in the present case. In Mindala , Thomas Mindala, his wife, Vickie Lee, and their daughter, Tracy, had been travelling west on Indiantown Road, a state highway when their vehicle collided with another vehicle travelling south on Schoeneck Road, also a state *279 highway, resulting in the deaths of Thomas and Vickie Lee and serious injury to Tracy. The stop sign controlling traffic travelling west on Indiantown Road was not in place at the time of the accident. No stop sign controlling traffic on Schoeneck Road had been erected. Prior to the accident the Chief of Police of West Cocalico Township (Township) had been notified of the missing stop sign. After the Chief had investigated the report and was unable to locate the stop sign he failed to erect a temporary sign or implement any steps to warn motorists of the dangerous condition. The Township had not erected, maintained or serviced the missing stop sign prior to the accident. On appeal the Supreme Court stated: It is clear that the Township police chief had no absolute duty to act in this matter, for the authority to act under § 6109 does not necessarily create such a duty. However, under these particular facts, the Township police chief had a duty to act and breached that duty. Id., 518 Pa. at 361 , 543 A.2d at 526 . However, the Supreme Court concluded that because the stop sign had not been under the care, custody or control of the Township Section 8542(b)(4) did not apply. In the present controversy there was a working agreement with the Pennsylvania State Police whereby the Ross Police were to respond to accidents occurring on Route 118, within Ross Township limits from 5:00 P.M. to 6:00 A.M. 2 *280 Unlike the police chief and the Township in Mindala the Ross Police exercised care, custody and control of the accident site and traffic on the highway. The complaint contains allegations raising factual questions concerning whether the Ross Police negligently created a dangerous condition and therefore summary judgment is inappropriate. I would reverse the decision of the common pleas court and remand the matter for further proceedings. . In Mindala an evenly divided Supreme Court (three-three) affirmed our decision in Mindala v. American Motors Corp., 90 Pa.Commonwealth Ct. 366, 495 A.2d 644 (1985). . Attorney Nicholas S. Mattise to Chief John Houssock: Q. Who generally supplies the police service to that area, the area of the accident scene? A. It’s within the jurisdiction of Ross Township and Pennsylvania State Police, and it’s covered primarily by the sub-station of Shickshinny, State Police Sub-Station, Shickshinny. Q. Do you commonly respond — Ross Township commonly responds to accidents on Route 118 within their limits? A. Yes. Q. Do the State Police only respond if Ross township requests them? A. State Police respond ... Ross Township aren’t avail ... we are an entirely part-time department. Myself and my patrolmen work during the day, normal hours, so anything that comes in, any calls *280 or police are needed between the hours of six in the morning and five at night, the State Police usually, would normally take charge of that. Q. How about after five at night? A. Then the Ross Township Police. Q. Is there any agreement or understanding that — or regulations or rules that after five o’clock, it’s Ross Township and before that, it’s State Police? A. There’s no document agreement. Q. That’s just the way things normally go? A. Yes. Q. Has that been the case since you started working sis a police officer for Ross Township? A. Been the case since I’ve been Chief of Police. Deposition of John Houssock, May 27, 1987, at 63-66; Reproduced Record at 84a-86a. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705431. Public record. Not legal advice.