Conaway v. Kirschner

18 Pa. D. & C.4th 338, 1993 Pa. Dist. & Cnty. Dec. LEXIS 192
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedJune 4, 1993
Docketno. 1691 Civil of 1991
StatusPublished

This text of 18 Pa. D. & C.4th 338 (Conaway v. Kirschner) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conaway v. Kirschner, 18 Pa. D. & C.4th 338, 1993 Pa. Dist. & Cnty. Dec. LEXIS 192 (Pa. Super. Ct. 1993).

Opinion

O’BRIEN,

On April 8,1991, plaintiff, Lewis Conaway, commenced this action by filing a complaint in trespass against defendant, Dieter L. Kirschner, seeking recovery for damages to his automobile resulting from a multiple-vehicle accident that took place on September 27, 1990. The accident occurred when plaintiff’s vehicle, operated by Michael L. Conaway, was traveling north on Route 3023, in Hamilton Township, Monroe County, Pa. Plaintiff’s vehicle struck a Pennsylvania Department of Transportation vehicle that had been parked on the side of Route 3023 by employee Leroy Batchler. Following this initial collision, defendant’s vehicle, while traveling north on Route 3023, collided with plaintiff’s stopped vehicle.

On May 2, 1991, defendant filed an answer, counterclaim and joinder complaints naming Michael Conaway, Leroy Batchler and PennDOT as additional defendants. On March 9, 1993, additional defendants Leroy Batchler and PennDOT filed a motion for summary judgment. Fol[339]*339lowing the submission of briefs and oral argument, additional defendants’ motion is now before this court for disposition.

Pennsylvania’s Rules of Civil Procedure provide in pertinent part as follows:

“Rule 1035. Motion for Summary Judgment—

“(a) After the pleadings are closed but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.

“(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.”

Summary judgment is a means to “eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.” Liles v. Balmer, 289 Pa. Super. 451, 567 A.2d 691 (1989). The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. Pennsylvania Gas and Water Co. v. Nenna and Frain Inc., 320 Pa. Super. 291, 467 A.2d 330 (1983). A material fact is one which affects the outcome of the case. Beach v. Bums International Security Services, 406 Pa. Super. 160, 593 A.2d 1285 (1991). In deciding a motion for summary judgment, the record [340]*340must be viewed in a light most favorable to the non-moving party and summary judgment may only be entered in cases where the right is clear and free from doubt. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). However, the party seeking to avoid the imposition of summary judgment is required to show by specific facts in its depositions, admissions or affidavits that there exists a genuine issue for trial. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).

Additional defendants’ motion for summary judgment alleges that the doctrine of sovereign immunity precludes the imposition of any liability attributable to PennDOT or its employees relating to the accident at issue in the case at bar. The doctrine of sovereign immunity prevents liability from being imposed on the Commonwealth. However, this immunity is not absolute. Our Legislature has carved out specific exceptions in which liability may be imposed upon a Commonwealth party. The exception regarding vehicle liability states as follows:

“Exceptions to sovereign immunity—

“(b) Acts which may impose liability — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

“(1) Vehicle liability — The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, “motor vehicle” means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.” 42 Pa.C.S. §8522 (emphasis added)

Additional defendants assert that their vehicle was parked and not in “operation” at the time of the accident. Therefore, sovereign immunity has not been waived and [341]*341no liability may be imposed in the case at bar. Original defendants argue, however, that even though additional defendant’s vehicle was parked along the side of the road it was in “operation” for purposes of vehicle liability. As we examine the statutory meaning of the term “operation” and apply it to the facts in the instant case, we are mindful of the fact that the exceptions to sovereign immunity are to be strictly construed “given the expressed legislative intent to insulate political subdivisions from tort liability.” Love v. City of Philadelphia, 518 Pa. 370, 374, 543 A.2d 531, 532 (1988) (quoting Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d 1118, 1123 (1987)).

In Love, supra, our Supreme Court had to define the term “operation” in the context of a personal injury claim arising out of a slip and fall from a city-owned van. The blind and elderly plaintiff was being transported from a public health center to her home when she fell as she was exiting the van. Our Supreme Court stated that:

“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. Getting into or alighting from a vehicle are merely acts ancillary to the actual operation of that vehicle.” Id. at 375, 543 A.2d at 533.

Our Commonwealth Court has recently applied this definition of “operation” to facts similar to the scenario in the case at bar. In First National Bank of Pennsylvania v. PennDOT, 148 Pa. Commw. 158, 609 A.2d 911 (1992) alloc. denied, 532 Pa. 648, 614 A.2d 1144 (1992), a Department of Transportation vehicle had temporarily stopped on or near the right-hand berm of a road. The [342]*342vehicle’s motor was running and its lights were flashing. There was one DOT employee in the driver’s seat and two other employees were in the bed of the vehicle preparing delineators to install on an adjacent highway.

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Related

Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc.
467 A.2d 330 (Supreme Court of Pennsylvania, 1983)
Speece v. Borough of North Braddock
604 A.2d 760 (Commonwealth Court of Pennsylvania, 1992)
Liles v. Balmer
567 A.2d 691 (Supreme Court of Pennsylvania, 1989)
Love v. City of Philadelphia
543 A.2d 531 (Supreme Court of Pennsylvania, 1988)
Hayward v. Medical Center
608 A.2d 1040 (Supreme Court of Pennsylvania, 1992)
Mascaro v. Youth Study Center
523 A.2d 1118 (Supreme Court of Pennsylvania, 1987)
City of Pittsburgh v. Jodzis
607 A.2d 339 (Commonwealth Court of Pennsylvania, 1992)
Force v. WATKINS
544 A.2d 114 (Commonwealth Court of Pennsylvania, 1988)
Marks v. Tasman
589 A.2d 205 (Supreme Court of Pennsylvania, 1991)
First Nat. Bank v. Dept. of Transp.
609 A.2d 911 (Commonwealth Court of Pennsylvania, 1992)
Beach v. Burns International Security Services
593 A.2d 1285 (Superior Court of Pennsylvania, 1991)
Jackson v. Richards 5 & 10 Inc.
433 A.2d 888 (Superior Court of Pennsylvania, 1981)

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Bluebook (online)
18 Pa. D. & C.4th 338, 1993 Pa. Dist. & Cnty. Dec. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conaway-v-kirschner-pactcomplmonroe-1993.