Thursday, July 21, 2011

Judge Amesbury of Luzerne County Addresses Municipal Tort Claims Act

In his July 5, 2011 Order and Opinion in the case of Vannucchi v. Marquis, No. 1136 of 2008 and No. 5136 of 2008 (Luz. Co. July 5, 2011, Amesbury, J.), Judge Amesbury ruled upon a Municipal Tort Claims Act case and allowed the case to proceed beyond the summary judgment stage against a towing company, a local police department, and local police officers.

By way of background, this matter arose out of an incident during which a police officer pulled over a motorist on a motorcycle and ultimately made a decision that the motorcycle should be impounded. When the flatbed tow truck operator arrived at the scene, the police officers turned over the keys to the motorcycle to the tow truck operator. The police officers then left the scene.

Thereafter, as the flat bed tow truck operator had loaded the motorcycle onto the flatbed and was talking to the motorcycle operator in the street, a drunk driver came by and struck and killed the motorcycle operator.

In his decision, Judge Amesbury denied the private towing company Defendant’s request to amend the pleadings to assert the defense of governmental immunity based upon an allegation that this was a police tow as a opposed to a private tow. The Court found that such an amendment would be futile as against a positive rule of law in that the tow company could not be considered a governmental entity under the facts presented.

The Court also denied the Motion for Summary Judgment filed by the police department and the local police officers. The Court found that the Plaintiff’s allegations that the failure of the police to use their patrol vehicle as a safety barrier at the scene of the accident as well as the failure of the police to control the scene by the use of flares and/or traffic control devices were negligent allegations that should proceed to a jury for consideration.

Anyone desiring a copy of this Opinion may contact me at

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