[J-59-2017][M.O. – Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
VICTORIA BALENTINE, INDIVIDUALLY : No. 119 MAP 2016 AND AS ADMINISTRATRIX OF THE : ESTATE OF EDWIN OMAR MEDINA- : Appeal from the Order of the FLORES, DECEASED, : Commonwealth Court dated 6/3/16 at : No. 1859 CD 2015 affirming the Order : of the Delaware County Court of Appellant : Common Pleas, Civil Division, dated : 9/2/15 at No. 13-11179 : v. : : CHESTER WATER AUTHORITY, WYATT : A. ROLAND, MICHAEL W. ROLAND AND : CHARLES MATTHEWS, : : Appellees : ARGUED: September 13, 2017
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: August 21, 2018
The majority opinion appears to accept that the uncontrolled movement of a
driverless vehicle stricken from behind is not “operation of a motor vehicle” under the
governing precedent in Love v City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988).
Nevertheless, favoring the rationale of the Love dissent and its close cousin in Warrick
v. Pro Cor Ambulance, Inc., 559 Pa. 44, 45-49 739 A.2d 127, 127-29 (1999) (Newman,
J., dissenting), the majority proceeds to overrule Love on the basis that “for the General
Assembly to have intended the abrogation of governmental immunity based on the
random factor of motion is an absurd or unreasonable result.” Majority Opinion, slip op.
at 16. In Love, this Court implemented its duty to narrowly construe exceptions to
sovereign immunity by adopting a construction of the word “operation” connoting actual
operation, i.e., movement of the vehicle under the direction of an operator. See id. at
374-75, 543 A.2d at 532-33.1 Significantly, the General Assembly amended the motor
vehicle exception in 1995 but did not provide further guidance concerning the definition
of operation; accordingly, the Legislature signaled its approval of the Love Court’s
construction. See 1 Pa.C.S. §1922(4); Hunt v. PSP, 603 Pa. 156, 173, 983 A.2d 627,
637 (2009) (reiterating that, when the General Assembly revisits a statutory provision,
but does not amend it contrary to this Court’s prior interpretation, it signifies its
satisfaction with the prevailing construction).
Furthermore, other jurisdictions applying the rule of strict construction have held
that “operation” encompasses activities that are directly associated with driving a motor
vehicle. See, e.g., Chandler v. County of Muskegon, 652 N.W.2d 224, 228 (Mich. 2002)
(“[T]he common usage of the term ‘operation’ refers to the ordinary use of the vehicle as
a motor vehicle, namely, driving the vehicle.” (emphasis in original)); Texas Juv. Justice
Dep’t v. PHI, Inc., 537 S.W.3d 707, 716 (Tex. Ct. App. 2017) (applying the concept of
“active operation” in connection with strict construction of an immunity statute (emphasis
in original)). I do not regard their jurisprudence as being absurd and unreasonable.
1 In this regard, and abiding by the requirement of narrow construction, I agree with the line of Commonwealth Court decisions holding that causality is also assessed in terms of present operation. See, e.g., PSP v. Robinson, 123 Pa. Cmwlth. 401, 403-404, 554 A.2d 172, 174 (1989) (observing that, even if the placement of the vehicle may have a causal relationship to the injury, the motor vehicle exception does not apply unless the vehicle is actually in motion at the time of the injury); City of Phila. v. Melendez, 156 Pa. Cmwlth. 271, 275, 627 A.2d 234, 236 (1993) (determining that, because the vehicle was not being parked at the time of the collision, but rather, was already parked, it was no longer in operation); accord Mickle v. City of Philadelphia, 550 Pa. 539, 543, 707 A.2d 1124, 1126 (1998) (observing that “operation at the time of the accident [is] required by Love” (emphasis added)).
[J-59-2017][M.O. – Mundy, J.] - 2 Rather, I find that it derives rationally and directly from an accustomed understanding of
the notion of “operation” and application of the requirement of narrow construction.
Nor do I deem the ostensible tension between Mickle and Love, see Majority
Opinion, slip op. at 10-11, to be material. There will always be accretions and
observable inconsistencies in this Court’s decisions, as they are often a product of
shifting majorities formed amongst fundamentally different approaches expressed with
deep conviction. The primary stabilizing influence is the doctrine of stare decisis, which
is the principle upon which I rely here. In this regard, I simply do not agree that binding
precedent should be overturned based on the majority’s bare assertion that the Love
Court’s definition “has impeded the development of consistent and logical case law,”
Majority Opinion, slip op. at 12. See generally Hunt, 603 Pa. at 174, 983 A.2d at 637–
38 (“[F]or purposes of stability and predictability that are essential to the rule of law, the
forceful inclination of courts should favor adherence to the general rule of abiding by
that which has been settled. Moreover, stare decisis has ‘special force’ in matters of
statutory, as opposed to constitutional, construction, because in the statutory arena the
legislative body is free to correct any errant interpretation of its intentions[.]” (citation
omitted)).
To me, it is not so much Love, per se, that seems to be in issue, but rather, the
underlying precept that exceptions to sovereign and governmental immunity are to be
narrowly construed. See Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d
1118, 1123 (1987); Snyder v. Harmon, 522 Pa. 424, 433-34, 562 A.2d 307, 312 (1989).
Given the tremendous hostility of the Court to sovereign immunity manifested in its
decisions in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d
709 (1978), and Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d
877 (1973), one might have thought that the Court would have cemented a contrary
[J-59-2017][M.O. – Mundy, J.] - 3 rule, at least in the absence of explicit legislative direction. But, again, we are where we
are, and, from my point of view, the issue of whether the longstanding precedent should
now be displaced should be left to the Legislature, consistent with stare decisis and
governing principles of statutory construction.
Finally, I respectfully disagree that the Love Court’s definition of operation is
“untethered to the narrow question addressed” therein and, therefore, constitutes dicta.
Concurring Opinion at 2 (Baer, J.). The central issue in Love -- whether entering into or
alighting from a motor vehicle constitutes operation -- could not have been resolved
without first defining the term “operation.” See Seminole Tribe of Florida v. Florida, 517
U.S. 44, 67 116 S. Ct. 1114, 1129 (1996) (“We adhere . . . not to mere obiter dicta, but
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[J-59-2017][M.O. – Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
VICTORIA BALENTINE, INDIVIDUALLY : No. 119 MAP 2016 AND AS ADMINISTRATRIX OF THE : ESTATE OF EDWIN OMAR MEDINA- : Appeal from the Order of the FLORES, DECEASED, : Commonwealth Court dated 6/3/16 at : No. 1859 CD 2015 affirming the Order : of the Delaware County Court of Appellant : Common Pleas, Civil Division, dated : 9/2/15 at No. 13-11179 : v. : : CHESTER WATER AUTHORITY, WYATT : A. ROLAND, MICHAEL W. ROLAND AND : CHARLES MATTHEWS, : : Appellees : ARGUED: September 13, 2017
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: August 21, 2018
The majority opinion appears to accept that the uncontrolled movement of a
driverless vehicle stricken from behind is not “operation of a motor vehicle” under the
governing precedent in Love v City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988).
Nevertheless, favoring the rationale of the Love dissent and its close cousin in Warrick
v. Pro Cor Ambulance, Inc., 559 Pa. 44, 45-49 739 A.2d 127, 127-29 (1999) (Newman,
J., dissenting), the majority proceeds to overrule Love on the basis that “for the General
Assembly to have intended the abrogation of governmental immunity based on the
random factor of motion is an absurd or unreasonable result.” Majority Opinion, slip op.
at 16. In Love, this Court implemented its duty to narrowly construe exceptions to
sovereign immunity by adopting a construction of the word “operation” connoting actual
operation, i.e., movement of the vehicle under the direction of an operator. See id. at
374-75, 543 A.2d at 532-33.1 Significantly, the General Assembly amended the motor
vehicle exception in 1995 but did not provide further guidance concerning the definition
of operation; accordingly, the Legislature signaled its approval of the Love Court’s
construction. See 1 Pa.C.S. §1922(4); Hunt v. PSP, 603 Pa. 156, 173, 983 A.2d 627,
637 (2009) (reiterating that, when the General Assembly revisits a statutory provision,
but does not amend it contrary to this Court’s prior interpretation, it signifies its
satisfaction with the prevailing construction).
Furthermore, other jurisdictions applying the rule of strict construction have held
that “operation” encompasses activities that are directly associated with driving a motor
vehicle. See, e.g., Chandler v. County of Muskegon, 652 N.W.2d 224, 228 (Mich. 2002)
(“[T]he common usage of the term ‘operation’ refers to the ordinary use of the vehicle as
a motor vehicle, namely, driving the vehicle.” (emphasis in original)); Texas Juv. Justice
Dep’t v. PHI, Inc., 537 S.W.3d 707, 716 (Tex. Ct. App. 2017) (applying the concept of
“active operation” in connection with strict construction of an immunity statute (emphasis
in original)). I do not regard their jurisprudence as being absurd and unreasonable.
1 In this regard, and abiding by the requirement of narrow construction, I agree with the line of Commonwealth Court decisions holding that causality is also assessed in terms of present operation. See, e.g., PSP v. Robinson, 123 Pa. Cmwlth. 401, 403-404, 554 A.2d 172, 174 (1989) (observing that, even if the placement of the vehicle may have a causal relationship to the injury, the motor vehicle exception does not apply unless the vehicle is actually in motion at the time of the injury); City of Phila. v. Melendez, 156 Pa. Cmwlth. 271, 275, 627 A.2d 234, 236 (1993) (determining that, because the vehicle was not being parked at the time of the collision, but rather, was already parked, it was no longer in operation); accord Mickle v. City of Philadelphia, 550 Pa. 539, 543, 707 A.2d 1124, 1126 (1998) (observing that “operation at the time of the accident [is] required by Love” (emphasis added)).
[J-59-2017][M.O. – Mundy, J.] - 2 Rather, I find that it derives rationally and directly from an accustomed understanding of
the notion of “operation” and application of the requirement of narrow construction.
Nor do I deem the ostensible tension between Mickle and Love, see Majority
Opinion, slip op. at 10-11, to be material. There will always be accretions and
observable inconsistencies in this Court’s decisions, as they are often a product of
shifting majorities formed amongst fundamentally different approaches expressed with
deep conviction. The primary stabilizing influence is the doctrine of stare decisis, which
is the principle upon which I rely here. In this regard, I simply do not agree that binding
precedent should be overturned based on the majority’s bare assertion that the Love
Court’s definition “has impeded the development of consistent and logical case law,”
Majority Opinion, slip op. at 12. See generally Hunt, 603 Pa. at 174, 983 A.2d at 637–
38 (“[F]or purposes of stability and predictability that are essential to the rule of law, the
forceful inclination of courts should favor adherence to the general rule of abiding by
that which has been settled. Moreover, stare decisis has ‘special force’ in matters of
statutory, as opposed to constitutional, construction, because in the statutory arena the
legislative body is free to correct any errant interpretation of its intentions[.]” (citation
omitted)).
To me, it is not so much Love, per se, that seems to be in issue, but rather, the
underlying precept that exceptions to sovereign and governmental immunity are to be
narrowly construed. See Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d
1118, 1123 (1987); Snyder v. Harmon, 522 Pa. 424, 433-34, 562 A.2d 307, 312 (1989).
Given the tremendous hostility of the Court to sovereign immunity manifested in its
decisions in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d
709 (1978), and Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d
877 (1973), one might have thought that the Court would have cemented a contrary
[J-59-2017][M.O. – Mundy, J.] - 3 rule, at least in the absence of explicit legislative direction. But, again, we are where we
are, and, from my point of view, the issue of whether the longstanding precedent should
now be displaced should be left to the Legislature, consistent with stare decisis and
governing principles of statutory construction.
Finally, I respectfully disagree that the Love Court’s definition of operation is
“untethered to the narrow question addressed” therein and, therefore, constitutes dicta.
Concurring Opinion at 2 (Baer, J.). The central issue in Love -- whether entering into or
alighting from a motor vehicle constitutes operation -- could not have been resolved
without first defining the term “operation.” See Seminole Tribe of Florida v. Florida, 517
U.S. 44, 67 116 S. Ct. 1114, 1129 (1996) (“We adhere . . . not to mere obiter dicta, but
rather to the well-established rationale upon which the Court based the results of its
earlier decisions. When an opinion issues . . . it is not only the result but also those
portions of the opinion necessary to that result by which we are bound.”); accord
Engweiler v. Persson, 316 P.3d 264, 270 (Or. 2013) (declining to treat a court’s prior
construction of a term as dicta because it was a predicate to the ultimate resolution of
that case); Bellar v. National Motor Fleets, Inc., 450 S.W.2d 312, 314 (Tenn. 1970) (“On
principle and reason . . . a case construing the particular words of a statute could hardly
ever be dictum in a later case involving the same statut[ory] language.”). I fail to see
how trial courts and intermediate courts are to differentiate between controlling
precedent and dicta if the definition of a term that is essential to the resolution of a case
is treated as dictum.
For the above reasons, I respectfully dissent.
[J-59-2017][M.O. – Mundy, J.] - 4