A split Pennsylvania Superior Court panel has ruled that it must be left to a jury to determine whether a construction company’s alleged removal of a stop sign while working on a sidewalk near an intersection played a key role in causing a crash.

A three-judge panel ruled 2-1 in Estate of Jeff S. Hine v. Pennsy Supply to reverse a Luzerne County trial judge’s grant of summary judgment to defendant Pennsy Supply.

According to the court’s opinion, Jeff Hine, who has since died of apparently unrelated causes, was injured in a motor vehicle accident with defendant Michelle Dulay at an intersection in Wilkes-Barre. Hine and his wife sued Dulay, alleging she was at fault for driving through the intersection without yielding to Hine, who had the right of way. The Hines also named Pennsy as a defendant, alleging the construction company was liable for either removing or allowing the removal of the stop sign that was normally at the intersection while it worked on the sidewalk.

The Hines and Dulay ultimately reached a settlement, leaving Pennsy as the sole defendant.

Pennsy argued that there was no evidence that it removed the stop sign from the intersection. The company also denied that it had a duty to erect or maintain a stop sign at that location.

While a trial judge agreed, Superior Court Judge Judith Ference Olson, writing for the majority, said there existed a genuine issue of material fact regarding whether Pennsy was negligent for either removing or allowing the removal of the stop sign.

Olson, joined by Judge Jack Panella, noted that Pennsy was the prime contractor on the sidewalk project and that Wilkes-Barre City Police Sergeant Thomas Harding wrote in his accident report that the stop sign had been removed from the intersection and had not been reposted at the time of the crash. Attilio “Butch” Frati, the director of operations for Wilkes-Barre, also testified that he “would not dispute” Harding’s statement.

Meanwhile, the majority also noted, Pennsy employees David Tavaris and David Kuniega Sr. agreed that a contractor may not remove a sign without proper authorization. Tavaris testified that doing so would be “unsafe” and Kuniega testified that it would be “reckless” for a contractor to take down a stop sign and then leave for the day, according to Olson.

“This evidence alone is sufficient to defeat Pennsy’s summary judgment motion, given the evidence also demonstrates that Pennsy did not have permission to remove the stop sign at the intersection and that removing a stop sign to create an uncontrolled intersection is unreasonably dangerous,” Olson said.

But Justice Correale Stevens filed a dissenting memorandum, arguing that nothing in the summary judgment record indicated that Pennsy removed the stop sign or that it had a duty to erect or maintain a sign at the intersection. Stevens also noted that the trial court had found that, even if the stop sign had been improperly removed, Dulay’s failure to obey the rules of the road was the proximate cause of Hine’s injuries.

“The record supports the court’s conclusion: Ms. Dulay stated during depositions that she was familiar with the requirement to stop at intersections and to yield right-of-way to traffic already traveling on a road she was approaching,” Stevens said. ”She admitted she did not stop at the intersection in question.”

Counsel for Hine’s estate, Gregory Fellerman of Fellerman & Ciarimboli in Kingston, did not return a call seeking comment.

Pennsy’s attorney, Mark Bufalino of Elliott Greenleaf in Wilkes-Barre, said he and his client maintain that Pennsy did not remove the stop sign and that the record contains no evidence that it did.

Bufalino said the stop sign in question was located in the grass 15 feet before the area in which Pennsy was working so there would have been no need to remove it.

(Copies of the 21-page opinion in Estate of Hine v. Pennsy Supply, PICS No. 18-1114, are available at http://at.law.com/PICS.)