Judge Zulick of Monroe County Interprets Law of Balentine Decision

In the case of Martinez v. Swain, No. 9383-CV-2019 (C.P. Monroe Co. Feb. 6, 2020 Zulick, J.), Judge Arthur K. Zulick of the Monroe County Court of Common Pleas issued one of the first decisions since the previous Pennsylvania Supreme Court holding in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), regarding the governmental immunity afforded to municipalities and the issue of an exception applying to the “operation of a vehicle.”

 In this matter, the Complaint alleged that the Plaintiff was struck by another vehicle while she was crossing the street to gain excess to a passenger bus, which had stopped in an area outside of a destinated bus stop.

The Defendant bus company filed Preliminary Objections asserting that, since it was not the bus that hit the Plaintiff, but rather another vehicle, the ‘operation of the bus’ was not the cause of the Plaintiff’s alleged injuries and, therefore, the alleged conduct on the part of the municipality that ran the bus route could not fall within the exception to governmental immunity.

The Plaintiff argued that, by stopping the bus and inviting the Plaintiff to get onto the bus would fit with in the scope of newly defined ‘operation of a vehicle’ under the Balentine decision issued by the Pennsylvania Supreme Court, which overruled the thirty (30) years of precedent in issuing that decision.

Judge Zulick followed the rule of the Balentine case and overruled the Preliminary Objections under the facts presented since the bus driver knew, or should have known, that the Plaintiff would try to gain access to the bus, that stopping the bus in such an area would allegedly place the Plaintiff in a danger being struck be oncoming traffic, and given that the Plaintiff allegedly would not discover moving vehicles on the road as she attempting to cross the street to get to the bus.

Anyone wishing to review Judge Zulick’s detailed Order, without Opinion, may click this LINK.

I send thanks to Attorney Michael J. McKarski of the Bethlehem, Pennsylvania law office of Edward J. McKarski for bringing this case to my attention.

Building Code Officials Granted Immunity Under Tort Claims Act

Whether building code officials contracted to enforce the Construction Code Act by a local governmental entity are entitled to immunity under the Tort Claims Act was addressed in the case of Hartzell v. SM Ross, Inc., et.al., No. GD 17-CV-011430 (C.P. Allegh. Co. March 25, 2019 Connelly, J.).  In this case, the court ruled in favor of the Defendants, finding that these particular Defendants were indeed afforded immunity in negligence causes of action.  

According to the Opinion, this case arose following a landslide which damaged the Plaintiff’s newly purchased home.   The Plaintiffs failed a Complaint against Building Inspection Underwriters, Inc. and other Defendants, including a local governmental agency. 

The court generally noted that the local governmental agency was entitled to the immunity provided under 42 Pa. C.S.A. §8541 of the Tort Claims Act. 

The court additionally noted that the Pennsylvania Code requires that local governmental entities appoint a building code official to enforce the Construction Code Act.  

In part, the Plaintiffs sued the Borough Code Officials for failing to enforce the code provisions relative to the premises at issue.   In response, those particular Defendants asserted that they were entitled to protections afforded by the Tort Claims Act.   In the end, the court ruled that the Tort Claims Act does indeed afford immunity to Building Code Officials contracted to enforce the Construction Code Act by a local governmental agency.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney William J. Bryers of the Philadelphia law firm of Pillinger, Miller, Tarallo, for bringing this case to my attention.  

ARTICLE: The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

This article of mine was recently published in the December 18, 2018 edition of the Pennsylvania Law Weekly and is republished here with permission.

The Uncommon Law of 2018: Reversals of Precedent and Splits of Authority Dominate

By Daniel E. Cummins
December 18, 2018

These are invigorating times for those engaged in the study and practice of law in Pennsylvania.

Over the past year there have been dramatic reversals of long-standing law by a newly activist Pennsylvania Supreme Court. There have been clarifications of recurring civil litigation issues by both the Superior Court and Commonwealth Court. There has also been a continuing development of a new common law by the Pennsylvania state and federal trial courts grappling with novel questions in the absence of appellate guidance in post-Koken matters and with respect to social media discovery and evidentiary disputes. Keeping apprised of these dramatic changes and developments is more important than ever.

Dramatic Pennsylvania Supreme Court Decisions

Over the past year the Pennsylvania Supreme Court made its presence known with its new brand of judicial activism evidenced in several civil litigation decisions that have created new avenues for plaintiffs to seek additional compensation and which will likely trigger more litigation in the future.

In Cagey v. PennDOT, 179 A.3d 458 (Pa. Feb. 21, 2018), the Pennsylvania Supreme Court expressly overruled the long-followed 12-year-old Commonwealth Court decision in Fagan v. Commonwealth, DOT, 946 A.2d 1123 (Pa.Cmwlth. 2006), and held that PennDOT is now only immune from suit in guiderail claims in limited circumstances. Under the prior Fagandecision there was essentially no liability on any claims against PennDOT relative to guiderails in motor vehicle accident matters.

Now, under the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guiderail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident.  A dramatic increase of lawsuits against PennDOT on this theory of recovery is anticipated.

In another stunning reversal, the Pennsylvania Supreme Court overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (Pa. Aug. 21, 2018 Mundy, J.), the plaintiff’s decedent was working as a contractor hired to rehabilitate a section of a water distribution system. At the time of the accident, the decedent was working just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. The decedent-contractor was unfortunately killed when a third car struck the parked government inspector’s car and propelled that stationary vehicle into the decedent.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. As stated, in  so ruling, the court eradicated 30 years of precedent on the issue in one fell swoop. This decision is also expected to give rise to an increase in lawsuits on this theory of recovery.

No More Voir Dire Without a Judge Present

The Pennsylvania Superior Court also handed down a number of notable decisions over the past year. The case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. May 14, 2018), has already changed how jury selection will work in the trial courts across the Commonwealth. In Trigg, the Pennsylvania Superior Court reversed a trial court’s denial of post-trial motions in a medical malpractice case regarding, in part, jury selection issues.

According to the opinion, in certain trials in Allegheny County, only a court clerk presides over voir dire. Any issues raised during jury selection would require the litigants and the clerk to go to another office to meet with the judge for a decision on whether to strike a juror. As such, the trial court judge would not have any first-hand perception of a juror’s demeanor in response to questions posed by the attorneys during jury selection.

The Superior Court in Trigg ruled that, given the fact that that first-hand perception of a juror’s demeanor is the basis for a palpable error deference standard of review on appeal for voir dire issues, decisions on jury strikes made by judges who do not attend jury selection should not be afforded that type of deference by the Superior Court.

The appellate court ruled in this fashion after noting that the alleged demeanor of a prospective juror cannot be reconstructed after the fact by attorneys attempting to relay the same to the formerly absent trial judge.  The Superior Court ruled that “a judge personally witnessing the original voir dire is essential, because it justifies our—and the losing party’s—faith in the trial court’s rulings on challenges for cause.”

The Superior Court’s decision in Trigg is in line with the Pennsylvania Supreme Court’s jury selection decision last year in the case of Shinal v. Toms, 162 A.3d 429 (Pa. 2017). In Shinal, the Pennsylvania Supreme Court ruled that whether a juror is to be stricken during voir dire is dependent upon the trial judge’s assessment of the juror’s demeanor and the juror’s answers to the questions posed regarding whether the juror is capable of putting aside any biases so as to serve in a fair and impartial manner.

Going forward, it is anticipated that this line of decisions will keep trial court judges on the bench during voir dire so as to avoid any jury selection objections being upheld on appeal.

Social Media Decisions

Notable social media discovery and evidentiary decisions were handed down over the past year.

In Kelter v. Flanagan, PICS Case No. 18-0266, No. 286-Civil-2017 (C.P. Monroe Co. Feb. 19, 2018 Williamson, J.), Judge David J. Williamson granted a defendant’s motion to compel a plaintiff to provide the defense counsel with the plaintiff’s Instagram account log-in information.

The court ruled in this fashion given that the defense had made a predicate showing that the public pages on the plaintiff’s profile showed that more information may be found on the private pages of the same profile.

In addition to granting the defense limited access to the private pages of the site for discovery purposes, the also court ordered that the defense not share that information with anyone not related to the case. The court’s order also directed that the Plaintiff not remove or delete any content from that account in the meantime.

A contrary result was handed down in the Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

This case arose out of the plaintiff’s alleged slip-and-fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity. The plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the plaintiff’s social media profiles.

In his detailed opinion, Northampton County Judge Craig A. Dally provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down not only by various county courts of common pleas but also courts from other jurisdictions. No Pennsylvania appellate court decision was referenced by the Allen court as there is apparently still no appellate guidance to date.

In his opinion, Dally noted that the defendant had pointed out discrepancies between the plaintiff’s deposition testimony regarding her alleged limitations from her alleged accident-related injuries and photos available for review on the public pages of the plaintiff’s Facebook profile depicting the plaintiff engaging in certain activities.

Nevertheless, after reviewing the record before the court, Dally still ruled that the defense had failed to establish the factual predicate of showing sufficient information on the plaintiff’s public pages to allow for discovery of information on the plaintiff’s private pages.

In a footnote, the court also emphasized that such a factual predicate must be established with respect to each separate social media site the defendant wishes to access further.

Dally additionally noted that, in any event, he “would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party’s social medial account by requiring the responding party to  to turn over their username and password, as requested by the defendant in this case.” The court found that such access would be overly intrusive, would cause unreasonable embarrassment and burden, and represented a discovery request that was not properly tailored with reasonable particularly as required by the Rules of Civil Procedure pertaining to discovery efforts. In light of the above reasoning, the defendant’s motion to compel was denied.

The above cases show that a decision on the discoverability of social media information can be dependent upon the personal assessment of the evidence by a particular trial court judge.

It is anticipated that when faced with the issue, the appellate courts will apply a similar method of allowing for social media discovery, i.e., requiring a predicate showing of information on the public pages of a profile that lend support to an assertion that discovery of the private pages should be allowed as well. But perhaps the appellate courts will apply more concrete parameters of the analysis so that the litigants can predict with greater confidence how a trial court judge may be required to rule upon the issue.

For a comprehensive compilation of social media discovery decisions, one can freely access the Facebook Discovery Scorecard on the Tort Talk blog. Many of the decisions handed down to date can be viewed and downloaded from that page.

Although there has been no appellate guidance in Pennsylvania on the issue of the discoverability of social media information, the appellate courts have weighed in on the issue of the admissibility of social media evidence at trial, albeit in the criminal court context.

Earlier this year, in the case of Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), the Pennsylvania Superior Court ruled that social media posts are inadmissible in criminal cases unless prosecutors can present evidence of who actually authored the commentary, that is, unless the evidence is authenticated under Pa.R.E. 901.

The court ruled in this fashion after noting that social media accounts can be easily hacked or faked. In so ruling, the court affirmed an Erie County trial court decision denying a prosecutor’s motion in limine seeking to introduce into evidence Facebook posts and messages allegedly authored by the defendant.

Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the defendant’s name was not enough to allow the evidence in. The court noted that Facebook posts and messages must instead be authenticated under Pa.R.E. 901 in a manner similar to how text messages and email messages are authenticated. The Superior Court in Mangel relied on its own 2011 decision in Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014), which dealt with the admissibility and authentication of cellphone text messages.

In the 2018 Commonwealth v. Mangel case, the court noted that the Koch court had previously held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” The Mangel court ruled, in a case of first impression, that the same analysis should apply to social media posts in the criminal court context.

It can be expected that a similar ruling will also be handed down in the context of a civil litigation matter should that issue come before the trial or appellate courts.

The Future Shows Up as Your Ride

Sometimes the future, like an Uber ride, arrives sooner than you expect. One of the first Pennsylvania court decisions in a personal injury matter involving an Uber ride was handed down this year.

In the case of Fusco v. Uber Technologies, PICS No. 18-0944  (E.D. Pa. July 27, 2018 Goldberg, J.)(Mem. Op.), the court conditionally granted Uber’s motion to dismiss the plaintiff’s negligent hiring, retention and supervision claims in a case of an Uber driver who allegedly attacked the plaintiff-customer.

By way of background, the plaintiff had attended a party Philadelphia and then contacted Uber for a ride to his home in New Jersey.

According to the opinion, the Uber app conceals the customer’s destination until the start of a booked trip. Accordingly, when a driver arrives to pick up the plaintiff, he does not know the plaintiff’s destination. The app is apparently set up in this way so as to the prevent drivers from declining routes they deem to be less profitable or less desirable. According to the opinion, Uber does not allow drivers to refuse a trip after learning of a customer’s destination.

In this matter, when the Uber driver arrived, he refused to take the plaintiff to his home in southern New Jersey. The plaintiff, apparently knowing the rules that Uber imposes on its drivers, remained seated in the car and repeated his request to be brought home. At that point, the driver dragged the plaintiff out of the car, kicked and beat him, leaving the plaintiff unconscious and bleeding.

The plaintiff later filed this suit against Uber asserting a negligent hiring claim, fraud and misrepresentation claims and vicarious liability claims.

According to the opinion, the court had originally granted Uber’s motion to dismiss on the negligent hiring and related claims given that there was no record of any alleged instances of past misconduct by the offending driver.

The court noted, however, that, after the plaintiff filed his complaint, news outlets in the area reported that the driver involved in the incident had a prior criminal conviction. In light of this development, the court granted the plaintiff leave to amend his complaint as to these claims.  Accordingly, the claim against Uber was allowed to proceed.

Can You Hear Me Now?

In 2018, the law continued to trend with respect to the issue of the availability of punitive damages in claims involving drivers involved in accidents while using their cellphones.

Under Pennsylvania’s Anti-Texting Law, 75 Pa.C.S.A. Section 3316, it is provided that no driver shall use a handheld device to send, read or write a text while the vehicle is in motion. Noncommercial drivers are otherwise still currently allowed to use their cellphones to make and receive calls while driving.

As for commercial drivers, Pennsylvania’s Distracted Driving Law, 75 Pa.C.S.A. Section 1622, makes it illegal for commercial drivers to use handheld devices in any fashion, except in emergency situations. That law also provides that it is illegal for an employer to permit or require a commercial driver to use a handheld device while driving, except in emergency situations.

With the continuing absence of any appellate authority on the issue to date, the trial courts of Pennsylvania have developed a common law on the issue of whether punitive damages are a viable part of an auto accident claim involving cell phone use by a defendant driver.

In the Cumberland County case of Manning v. Barber, No. 17-7915 Civil (C.P. Cumb. Co. 2018), preliminary objections were granted and a plaintiff’s punitive damages claim was dismissed in a case in which the plaintiff alleged that the defendant driver was texting while driving.

According to the opinion, the plaintiff’s vehicle was stopped at a red light with another vehicle stopped behind it. The plaintiff alleged that the defendant failed to stop for the traffic light and rear-ended the second vehicle, causing it to strike to the rear of the plaintiff’s vehicle. The plaintiff additionally alleged that, at the time of the accident, the defendant was not looking at the roadway because she was distracted while looking at and texting on her cellphone.

After reviewing the general law pertaining to punitive damages, the court confirmed that there remains “a lack of Pennsylvania appellate case law in the context of distracted driving cases where the tortfeasor is distracted by the use of a cellular phone at the time of the accident.”

The court did note that there were a number of trial court decisions from across Pennsylvania regarding claims for punitive damages in cellphone cases. Based upon these trial court decisions, the Manning court concluded that the mere use of a cellphone absent additional indicia of recklessness was not enough to sustain a claim for punitive damages.

In reviewing the plaintiff’s complaint, the note noted that the plaintiff simply pleaded boilerplate allegations that the defendant was inattentive and going too fast. The court in Manning found that these allegations only amounted to a classic claim of negligence, and not recklessness.

The court in Manning additionally rejected the plaintiff’s presentation of a policy-based argument that texting while driving should constitute per se recklessness. The court stated that, while this argument maybe considered by a future appellate court, in the absence of any such appellate guidance to date, the Manning court declined to accept the plaintiff’s argument in this regard.

The Manning decision is consistent with other prior trial court cellphone decisions requiring additional aggravating facts over and above mere cellphone use in order for a court to allow for a punitive damages claim to proceed. Such aggravating factors in other decisions in which punitive damages were allowed to proceed have included the fact that the defendant is driving a large commercial vehicle, excessive speed on the part of any driver, heavy traffic in the area, looking down or intoxication.

It remains to be seen whether 2019 will bring us an appellate decision on the issue of cellphone use and punitive damages claims in the auto law context.

Still in Need of Appellate Guidance for Post-’Koken’ Cases

There were no appellate decisions handed down in 2018 in the separate auto law context of post-Koken matters.

The only published appellate decision to date remains the Pennsylvania Superior Court’s decision from five years ago in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013) appeal denied 89 A.3d 1286 (Pa. 2014). In that case, the Superior Court approached the question of whether an insurance company defendant should be identified as a party to a jury in a post-Koken trial but, unfortunately, did not provide a definitive holding on that issue.  Incredibly, the Pennsylvania Supreme Court declined to hear that appeal thereby missing a rare opportunity to dole out much needed guidance on novel issues of law.

Ever since, the trial courts of Pennsylvania continue to struggle with post-Koken issues. According to the post-Koken Scorecard on the Tort Talk blog, which has been compiling post-Koken decisions over the past decade, there are splits of authority among, and sometimes within, the county courts across the commonwealth on many different important questions of law pertaining to pleadings, discovery, evidentiary and trial issues.

For example, in terms of whether post-Koken claims not containing a bad faith claim should be consolidated or severed in terms of the third-party allegations against the defendant driver and the breach of contract claim for UIM benefits, at least 24 county courts favor the pretrial consolidation of such cases, while at least 23 favor the severance of these types of cases.

In terms of those post-Koken cases in which a bad faith claim is also alleged, there are at least 10 county courts that deny motions to sever and stay the bad faith claims, while at least 19 other county courts have ruled in favor of granting motions to sever and stay discovery on the bad faith claims.

The majority trend in the Pennsylvania federal courts, regardless of whether a bad faith claim has been pleaded, has been in favor of the consolidation of post-Koken claims through the life of the litigation.

Looking Ahead to 2019

It is expected that the above trending areas of law will continue to grab the headlines in 2019.

Perhaps one of the most important decisions to watch for in 2019 will be the Pennsylvania Supreme Court’s ruling in Roverano v. Crane, No. 58 EAL 2018 (Pa. July 31, 2018). In Roverano, the Pennsylvania Supreme Court is expected to address the issue of first impression involving the question of whether the Pennsylvania Superior Court misinterpreted the Fair Share Act in terms of apportioning liability among defendants in the context of this products liability case. That decision could have an impact across all types of civil litigation matters involving multiple defendants.

At the Superior Court level, the hope is that that court will publish any decisions in these trending areas of law as opposed to releasing them as nonprecedential decisions. In this day and age of digital information there should not be any concern with respect to filling too many casebooks—those books are (unfortunately) falling by the wayside. As appellate guidance is desired by both civil litigators and the bench on these emerging areas of concern, such decisions should all be published as a matter of course.

The hope also remains that if the Pennsylvania Supreme Court has an opportunity to review any of the above issues on appeal that it will grant certiorari and also provide the much-needed appellate guidance in these important areas of the law.

Daniel E. Cummins is a partner with the Scranton law firm of Foley, Comerford & Cummins. He focuses his practice on the defense of auto accident, premises liability and products liability matters.  His Tort Talk Blog can be viewed at www.TortTalk.com.

Judge Julia K. Munley of Lackawanna County Applies Recent Supreme Court Decision Regarding Governmental Immunity

In her recent decision in the case of Sands v. Hamilton, No. 2013-CV-55 (C.P. Lacka. Co. Nov. 5, 2018 Munley, J.), Judge Julia K. Munley of the Lackawanna County Court of Common Pleas addressed a Defendant municipal bus company’s Motions In Limine seeking to preclude evidence and testimony related to negligent supervision, negligent training, and negligent retention of the bus driver.  The defense was asserting that such evidence was irrelevant given that such evidence did not relate to the central issue of whether the “operation” of the motor vehicle at issue fell under an exception to the governmental immunity provided under42 Pa. C.S.A. §8542(b)(1).  

The defense also sought to preclude evidence of the bus driver’s non-compliance with internal policies and procedures on the same grounds.  

In this matter, the Plaintiff alleged that he was injured when the bus driver took a turn too fast, causing the Plaintiff's motor scooter to tip over while the Plaintiff was sitting on it.

In her decision, Judge Munley pointed to the recent Supreme Court decision in the case of Balentine v. Chester Water Auth., 191 A.3d 799 (Pa. 2018) (Click HERE for the Tort Talk Posts on that case, including a Link to that case) in which the Pennsylvania Supreme Court held that “operation” in this context refers to a continuum of activity as well as the decision-making processes that are attendant to moving a vehicle.  

Judge Munley also noted that the term “operation” also encompasses negligent acts related to the operation of a vehicle, including even whether a driver should be driving a particular vehicle in the first place.

As such, the court ruled that the Plaintiff was not automatically barred by governmental immunity considerations from presenting evidence at trial of policies and procedures along with other evidence in support of claims of negligent supervision, training, and retention so long as that evidence is relevant and related to the operation of the bus.  

As such, the defense Motion In Limine was denied and the court ordered that the evidence at issue would be permitted at trial. 

Anyone wishing to review this decision online may click this LINK.

Pennsylvania Supreme Court Overrules 30 Years of Precedent Pertaining to Motor Vehicle Exception to Governmental Immunity Under Tort Claims Act

In the case of Balentine v. Chester Water Authority, No. 119 MAP 2016 (Pa. Aug. 21, 2018 Mundy, J.) (Justices Todd, Dougherty, and Wecht joined in the majority Opinion) (Baer, J., concurring) (Saylor, dissenting, J.), the Pennsylvania Supreme Court addressed the issue of whether the Commonwealth Court erred in holding that the involuntary movement of a vehicle does not constitute operation of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. §8542(b)(1).   The Supreme Court reversed the Commonwealth Court's decision and, in the process, 30 years of precedent on the issue presented.

By way of background, the Plaintiff's decedent was a contractor hired to rehabilitate a section of a water distribution system.  At the time of the accident, the decedent was working just off to the side of a two lane road.   The decedent was inside a ditch located on the grassy strip between the sidewalk and the curb when an inspector drove up to the work site and parked his vehicle, with the engine running, approximately 10-15 feet from the ditch.  

A few moments later, a vehicle operated by another person struck the inspector's parked vehicle, causing it to move forward.   The parked vehicle struck the decedent was he stood in the ditch, drug him out and pinned him under the vehicle when it came to a stop. The decedent sustained fatal injuries.  

The decedent's estate filed a lawsuit against various Defendants.  Certain governmental Defendants obtained summary judgment from the lower court under an argument that neither the motor vehicle exception nor the traffic control device exception to governmental immunity set forth in the Political Subdivision Tort Claims Act applied.   On appeal, a divided panel of the Commonwealth Court affirmed the trial court's decision.   

At the Commonwealth Court level, that court indicated that, since “no Pennsylvania case law addresses whether involuntary movement of a vehicle constitutes operation for purposes of the governmental immunity exception, this is a matter of first impression.”  

Relying upon the fact that the vehicle at issue was parked at the time of the accident, the majority in the Commonwealth Court considered itself “constrained” to conclude as a matter of law that that vehicle was no longer in operation when the accident occurred.  As such, the Commonwealth Court concluded that the involuntary movement of that vehicle did not constitute ‘operation’ for purposes of the motor vehicle exceptions to governmental immunity.  

Further up on the appellate ladder, after reviewing the law behind the Tort Claims Act, the majority of the Pennsylvania Supreme Court held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception. 

As such, the Supreme Court reversed the decisions of the lower courts and remanded the case back  the trial court.  

In reaching its decision, the Pennsylvania Supreme Court confirmed that the word “operation” was not defined in the Tort Claims Act.   As such, the Supreme Court turned to Black’s Law Dictionary and prior Pennsylvania case law addressing the proper definition of that term in this context.   The majority emphasized that the vehicle liability exception to governmental immunity only referred to “operation,” and not to “motion.”  

With its ruling, the Pennsylvania Supreme Court overturned thirty (30) years of precedent on this particular issue, including numerous prior decisions where the immunity was held to apply in accidents involving vehicles that are stopped or parked.   That is no longer the law under this decision.  

The Pennsylvania Supreme Court ruled, in this case, that “[w]here a government vehicle obstructs a roadway, in whole or in part, we can assume, absent evidence to the contrary, that a government agent operated the vehicle to arrive at that position.”  See Op. 15.  

More specifically with respect to this case, the court found that, if a Plaintiff establishes that his injury was caused by an illegally parked government vehicle, but the movement of the vehicle itself did not cause the injury, the government would not avoid liability simply because the government vehicle was not “in motion” at the time of the injury.  Id. at 15-16.  

The Pennsylvania Supreme Court adopted the definition of an operation of a vehicle voiced by Justice Newman in her Dissenting Opinion in the case of Warrick v. Pro Cor Ambulance, Inc., 739 A.2d 127, 129 (Pa. 1999) (Newman, J. dissenting).  

Justice Newman recognized in that Dissenting Opinion that the operation of a vehicle “reflects a continuum of activity,” which entails “a series of decisions and actions, taken together, which transport the individual from one place to another.   The decisions of where and whether to park, where and whether to turn, whether to engage brake lights, whether to use appropriate signals, whether to turn lights on or off, and the like, are all part of the ‘operation’ of a vehicle.”  Id. at 128. (Newman, J. dissenting). 

The Pennsylvania Supreme Court in this Balentine case adopted Justice Newman’s definition, and found that definition to represent a reasonable standard that comports with the intent of the legislature behind the Tort Claims Act and avoids what the Pennsylvania Supreme Court deemed to be illogical results over the past 30 years of precedent that flowed from the prior emphasis on the need for motion in the previous cases.  

The Majority Opinion of the Court in Balentine can be viewed HERE.

Justice Baer's Concurring Opinion can be viewed HERE.

Chief Justice Saylor's Dissenting Opinion can be viewed HERE.

Limited Tort Motion for Summary Judgment Denied in Lawrence County

In the Lawrence County case of Mason v. Petrone, No. 11084-CV-2016 (C.P. Lawrence Co. May 17, 2018 Motto, P.J.), President Judge Dominick Motto of the Lawrence County Court of Common Pleas denied a limited tort Motion for Summary Judgment.   In this regard, the court ruled that there were issues of fact that were best left for a jury to determine.  

The court additionally ruled that the Plaintiff was not barred from seeking damages for pain and suffering under the Tort Claims Act on the basis that she allegedly did not have evidence of a permanent injury.  In this regard, the court again noted that issues of fact remain and also emphasized that the expert reports were not yet due in the case.  

This matter arose out of a motor vehicle accident during which the Plaintiff struck by an operator who was responding to an emergency at the time of the accident.  

Among other injuries, the Plaintiff suffered a fractured ankle and bruising along the right side of her back. The Plaintiff primarily treated with an orthopedic surgeon and underwent physical therapy.  

After reviewing the settled law pertaining to the need of a Plaintiff to prove a permanent injury in a case against a government agency, as well as the current status of limited tort law in Pennsylvania, the court denied the Defendant’s Motion for Summary Judgment in these respects.

Anyone wishing to read this case may click this LINK.

I send thanks to Attorney Garth Gartin, Esquire of the Pittsburgh office of Simon and Simon, P.C. for bringing this case to my attention. 

Commonwealth Court Affirms Entry of Summary Judgment In Favor of Municipal Defendant Under Hills and Ridges Doctrine and Tort Claims Act

In its recent decision in the case of Moon v. Dauphin County,  PICS Case No. 15-1832 (Pa. Cmwlth. Dec. 10, 2015 Covey, J.), the Pennsylvania Commonwealth Court granted a Defendant County's Motion for Summary Judgment in a slip and fall case.  

According to the Opinion, the Plaintiff resided at the Dauphin County Work Release Center in Harrisburg.  He allegedly sustained injuries as a result of a slip and fall that occurred on February 22, 2008 on the Center’s fenced-in-walkway.  

The record before the Court revealed that, when the Plaintiff entered the Center between 4:00 and 5:00 p.m. on the date in question, it was raining outside.  Within five (5) minutes after hearing that the Center’s activities were cancelled for the night, the Plaintiff left the building and saw that the walkway was wet.  The Plaintiff admitted that he sensed by the sound of pellets hitting the ground, that the rain was changing to ice.  Accordingly, he carefully continued but unfortunately slipped and fell.

The Court granted summary judgment in favor of the Defendant County, in part, under the Hills and Ridges Doctrine after finding that the evidence, and the Plaintiff’s own admissions, established that the Plaintiff’s fall occurred at the start of a weather event that created generally slippery conditions.   There was no evidence that the County had allowed any ice or snow to unreasonably accumulate in ridges or elevations.

The Court also rejected the Plaintiff’s argument that a design flaw abrogated the immunity provided by the Hills and Ridges Doctrine.  

The Commonwealth Court noted that, under §8542(a)(2) and §8542(b) of the Tort Claims Act, a local agency will retain immunity from suit unless the claim also falls within an exception to the Tort Claims Act.  

The Court went on to note that liability will not be imposed under the Real Estate Exception of the Tort Claims Act for injuries sustained as a result of a county’s alleged failure to remove a foreign substance from the real property, including ice and/or snow.   Rather, the Court could only be liable under that exception if the snow or ice on the real property resulted from a design or construction defect.  

The Plaintiff argued in this matter that the alleged improper construction defect at issue was that there in only a single exit from the Center leaving the Plaintiff with no alternative but to pass through a gate and into the icy and slippery conditions.   The Court noted that the Plaintiff admitted, however, that the walkway itself was not defective.   

Given that the law requires proof of a defect of the walkway upon which the Plaintiff fell, the Court entered summary judgment for this reason as well.   The Court found that the Plaintiff’s claim that the Center’s single exit constituted a dangerous condition of the real estate was devoid of merit.  

Accordingly, the trial court’s entry of summary judgment was affirmed.  

Anyone wishing to review the Commonwealth Court's decision in Moon may click this LINK.

Pennsylvania Supreme Court Upholds Constitutionality of Statutory Caps in Context of Tort Claims Act

In another notable decision, this time in the case of Zauflik v. Pennsbury School District, 1 MAP 2014 (Pa. Nov. 19, 2014  ), the Pennsylvania Supreme Court upheld the constitutionality of the $500,000 statutory cap on tort claim recoveries against local governmental agencies under the Tort Claims Act, 42 Pa.C.S.A. Section 8501-8564.  The statutory cap which was upheld is found at Section 8553.

In the end, the molding of a jury verdict in favor of the Plaintiff in an amount of over $14 million dollars for personal injuries down to the $500,000 cap was upheld over the Plaintiff's constitutional challenges.

The Supreme Court noted that any changes in the law in this regard should originate from the General Assembly as opposed to the court system.

The Court's Opinion in Zauflik can be viewed HERE. 

Justice Baer's Concurring Opinion can be viewed HERE.


I say thanks to Attorney Matt Keris, the current President of the Pennsylvania Defense Institute and a shareholder in the Moosic, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this notable decision to my attention.