Opinion
No. 1193 C.D. 2012
03-20-2013
Reina Strobel, a Minor, by Her Parents and Natural Guardians, Francis and Antonia Strobel, and Francis and Antonia Strobel, in their own right, Appellants v. School District of Philadelphia
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Reina Strobel, a minor, by her parents and natural guardians, Francis and Antonia Strobel, and Francis and Antonia Strobel, in their own right, (collectively Appellants) appeal from the May 30, 2012, order of the Philadelphia County Court of Common Pleas (Trial Court) granting summary judgment in favor of the School District of Philadelphia (District). We affirm.
Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, a motion for summary judgment is proper. See Pa. R.C.P. No. 1035.2(1). When reviewing an order granting a motion for summary judgment, this Court's standard of review requires that we view the record in the light most favorable to the non-moving party and reverse only if we find an error of law or an abuse of discretion. Mickle v. City of Philadelphia, 550 Pa. 539, 542, 707 A.2d 1124, 1125 (1998). When, as here, this Court is presented with a pure question of law, our scope of review is plenary.
The relevant facts are not in dispute. Reina Strobel was a passenger in a District bus that was stopped to pick up another student when an unidentified vehicle struck the District bus, causing injury to Reina Strobel, and fled the scene. Appellants filed a claim to recover uninsured motorist benefits from the District under the Motor Vehicle Financial Responsibility Law (MVFRL). The District filed a motion for summary judgment arguing that Appellants' claim was barred, because it did not fall within one of the enumerated exceptions to governmental immunity contained in the Judicial Code (Tort Claims Act). The Trial Court agreed.
75 Pa. C.S. §§ 1701-1799.7.
The act for which the "Political Subdivision Tort Claims Act" is the formal title has been repealed. Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P.S. §§ 5311.101-5311.803, repealed by the Act of October 5, 1980, P.L. 693. However, the title or its shorter version, the "Tort Claims Act," has remained as the "unofficial" title for the successor provisions found at Sections 8541-8542 of the Judicial Code, 42 Pa. C.S. §§ 8541-8542.
The Trial Court concluded that even if it were assumed that Appellants' claim satisfied the requirements of subsection 8542(a) of the Tort Claims Act, the District would still be immune, because the acts alleged did not fall within the vehicle liability exception to immunity contained in subsection 8542(b)(1) of the Tort Claims Act. The vehicle exception provides that a local agency or its employees may be liable for damages on account of an injury to a person or property arising out of the operation of any motor vehicle in the possession or control of the local agency. 42 Pa. C.S. § 8542(b)(1), as amended July 6, 1995, P.L. 290 N. 43, § 1 ("The operation of any motor vehicle in the possession or control of the local agency..."). In reaching this conclusion, the Trial Court reasoned that because the District bus was stopped at the time of the events giving rise to Reina Strobel's injuries, and not in motion, the bus was not in "operation," within the meaning of vehicle exception to governmental immunity. Appellants appealed the Trial Court's grant of summary judgment to this Court.
Subsection 8542(a) requires that prior to an examination of whether a claim may fall within one of the exceptions, the following two conditions must be satisfied: (1) damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of immunity; and (2) the injury was caused by a negligent act of the local agency or its employee acting within the scope of his or her office or duties. 42 Pa. C.S. § 8542(a)(1)-(2). If a plaintiff is able to satisfy these initial conditions, a plaintiff must then demonstrate that the alleged negligent act falls within one of the eight enumerated exceptions to governmental immunity in subsection 8542(b). 42 Pa. C.S. § 8542(a).
Before this Court, Appellants contend that the term "operation" has been erroneously narrowed by this Court, particularly in this Court's recent decision Wright v. Denny, 33 A.3d 687 (Pa. Cmwlth. 2011). Appellants contend that this Court should instead adopt the interpretation put forth in Justice Newman's dissenting statement in Warrick v. Pro Cor Ambulance, Inc., 559 Pa. 44, 47, 48, 739 A.2d 127, 128, 129 (1999), which sought to interpret the term "operation" to include "a series of decisions and actions, taken together, which transport the individual from one place to another," and which "reflects a continuum of activity."
On December 19, 2011, this Court denied appellants' application for reargument or for rehearing en banc in an unpublished order. Wright v. Denny, (Pa. Cmwlth., No. 530 C.D. 2011, filed December 19, 2011). Appellants petitioned the Pennsylvania Supreme Court for allowance of appeal and, in an unpublished order, the Court denied the petition. Wright v. Denny, (Pa., 38 No. EAL 2012, filed September 4, 2012). On February 1, 2013, the Pennsylvania Supreme Court denied appellants' petition for reconsideration in an unpublished order. Wright v. Denny, (Pa., No. 38 EAL 2012, filed February 1, 2013).
In Wright v. Denny, a Southeastern Pennsylvania Transportation Authority (SEPTA) bus was stopped at the intersection of 52nd and Walnut Streets in Philadelphia, when it was rear-ended by an uninsured motorist who then fled the scene. 33 A.3d at 688. Wright, a passenger aboard the bus, was injured and brought suit against SEPTA pursuant to the MVFRL. Id. This Court reasoned that for Wright to recover under the MVFRL, his claim would have to fall within the vehicle exception to sovereign immunity. 33 A.3d at 689. Following an examination of our Supreme Court's opinion in Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988), this Court held that Wright could not recover, because the vehicle exception to immunity does not apply when the vehicle is stopped. Wright v. Denny, 33 A.3d at 689.
The vehicle exception to sovereign immunity states that the Commonwealth may be held liable for "the operation of any motor vehicle in the possession or control of a Commonwealth party..." 42 Pa. C.S. § 8522(b)(1). The General Assembly's use of the term "operation" has been interpreted to have the same meaning in the vehicle exception to sovereign immunity and the vehicle exception to governmental immunity, although the two statutes do differ in other respects. See Kilgore v. City of Philadelphia, 553 Pa. 22, 25, 717 A.2d 514, 516 n.2 (1998) ("Statutes dealing with governmental and sovereign immunity are to be interpreted consistently, as they deal with indistinguishable subject matter.") --------
In Love v. City of Philadelphia, the plaintiff was injured when she fell while alighting from a city-owned van that had transported her home from a program at the Mann Adult Center administered by the Department of Public Health. 518 Pa. at 372, 543 A.2d at 531. In concluding that the van was not in "operation" at the time the plaintiff sustained her injuries, our Supreme Court stated:
As we have illustrated, to operate something means to actually put it in motion. Merely preparing to operate a vehicle, or acts taken at the
cessation of operating a vehicle are not the same as actually operating that vehicle. Thus according to the common and approved usage of the word "operation", the van was not in operation at the time of Mrs. Love's accident.Id. at 375, 543 A.2d at 533 (emphasis in original). Our Supreme Court stressed that in interpreting the meaning of the word "operation", it was guided by the General Assembly's expressed intent to insulate political subdivisions from tort liability, which required each exception to immunity to be construed narrowly. Id. at 374, 543 A.2d at 532; see also Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 118 (1987).
Following Love v. City of Philadelphia, our Supreme Court has repeatedly and consistently defined "operation" as an act "directed toward causing physical movement of the vehicle." White v. School District of Philadelphia, 553 Pa. 214, 219, 718 A.2d 778, 780 (1998) (holding that "operation" does not include actions taken by the school bus driver while the bus was in park.) In Wright v. Denny, this Court did not narrow the interpretation of "operation" found in Pennsylvania law, but applied that law to the facts; just as with the District bus here, the SEPTA bus in Wright v. Denny was stopped, and thus not in "operation" for purposes of the vehicle exception to the Tort Claims Act. Appellants are correct that the facts in Wright v. Denny, and the facts at issue here, would fit within the definition of "operation" if that term were defined as suggested by Justice Newman's dissenting statement in Warrick. However, under Pennsylvania law, "operation" as used in the Tort Claims Act has never been so defined. To overturn Wright v. Denny, as Appellants argue, would require this Court to contravene clear, longstanding Pennsylvania law, something this Court cannot and will not do.
Accordingly, the Trial Court's grant of summary judgment in favor of the District is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge Judge Leadbetter concurs in the result only. ORDER
AND NOW, this 20th day of March, 2013, the order of the Philadelphia County Court of Common Pleas granting the School District of Philadelphia's Motion for Summary Judgment in the above captioned matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge