Erney v. Wunsch

35 Pa. D. & C.3d 440, 1983 Pa. Dist. & Cnty. Dec. LEXIS 72
CourtPennsylvania Court of Common Pleas, York County
DecidedJuly 7, 1983
Docketno. 82-S-1535
StatusPublished

This text of 35 Pa. D. & C.3d 440 (Erney v. Wunsch) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erney v. Wunsch, 35 Pa. D. & C.3d 440, 1983 Pa. Dist. & Cnty. Dec. LEXIS 72 (Pa. Super. Ct. 1983).

Opinion

BUCKINGHAM, J„

This matter is before the court on the motion of the additional defendants, for summary judgment. Defendant has requested oral argument but we believe that the issues are sufficiently clear so as to make such argument unnecessary.

At approximately 7:50 a.m. on January 28, 1981, a school bus operated by plaintiff Rita Erney collided with an automobile driven by defendant Sherrie Wunsch. The accident occurred at the intersection of Hartman and Maple Streets in the Borough of Manchester, York County, Pa. Mrs. Erney had been driving southbound on Hartman Street and Mrs. Wunsch had been driving westbound on Maple Street. The portion of Maple Street in the vicinity of the Hartman intersection is marked as a “school zone” and accompanied by a warning with flashing lights due to the proximity of Northeastern Senior High School. Additional defendant Betty Fadeley, a school crossing guard, was supervising traffic at the intersection at the time of the accident. Mrs. Fadeley was an employee of additional defendants Northeastern School District and Manchester Borough.

Mrs. Wunsch was proceeding west on Maple Street. A block in advance of the intersection, Mrs. Wunsch saw Mrs. Fadeley stationed at the intersection of Maple and Hartman Streets wearing orange blaze clothing and holding a “stop” sign in one hand. Mrs. Wunsch, although she noticed that eastbound Maple Street traffic had stopped, claims she believed Mrs. Fadeley was monitoring her through the intersection and continued at the same rate of speed.

Mrs. Erney, after discharging students at the high school, traveled down Hartman Street to a stop sign at the intersection. After coming to a complete [442]*442stop, Mrs. Erney checked traffic in both directions, then proceeded into the intersection at what she claims was the motion of Mrs. Fadeley. The school bus driven by Mrs. Erney struck the right side of Mrs. Wunsch’s vehicle behind the front wheel. The collision occurred when Mrs. Erney was about three-fourths of the way into the intersection.

Defendant and plaintiffs aver that the accident was the direct result of additional defendant Fadeley’s negligent, careless, and reckless performance of her duties as a school crossing guard. Additional defendants Manchester Borough and Northeastern School District are alleged to be liable to plaintiffs for the alleged negligence of additional defendant Fadeley on the basis of respondeat superior.

The issues are whether plaintiffs and defendant have failed to raise a genuine question of material fact concerning additional defendants in light of the pleadings, testimony at the depositions, and the applicability of the governmental immunity provisions of 42 Pa.C.S. §§8541-8564.

The additional defendants are entitled to summary judgment in this action under the governmental and official immunity provisions of 42 Pa.C.S. §§8541-8564 (1982) because defendant and plaintiffs have failed to raise any “genuine questions of material fact,” Pa.R.C.P. 1035(b), concerning any exceptions to governmental or official immunity. Summary judgment is proper when a claim of immunity is established. Zinna v. McDougald, 71D.&C.2d 271 (1975).

The additional defendants are immune from liability in this action because of the governmental and official immunity provisions of the Act of October 5, 1980, P.L. 693, 42 Pa.C.S. §§8541-8564 (1982). Sections 8541-8564 became effective in De[443]*443cember 1980 and represent a recodification, with minor changes, of the Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, 53 P.S. §5311.101 et seq., repealed by section 333 of the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, 42 P.S. §20043. The recodification controls in the instant case because the action arises out of an incident occurring on January 28, 1981.

Section 8541 provides that “no local agency shall be liable for any damages on account of any injury to a person or property caused by any local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541 (1982). For the purposes of this section, “local agency” is defined as “[a] government unit other than the Commonwealth government.” 42 Pa.C.S. §8501 (1982). The use of the words “local agency” represents a change in the wording from the original act which used “political subdivision.” The new language has been interpreted to include townships, Thorpe v. Danby, 68 Pa. Commw. 138, 448 A. 2d 676 677 (1982), and school districts, Bliss v. Allentown Public Library, 534 F. Supp. 356, 358 (E.D., Pa. 1982). Accordingly, Manchester Borough and Northeastern School District satisfy the definition of “local agency.” Further, an “employee” of a government unit is defined in the same section as a “person who is acting or who has acted on behalf of a government unit” such as additional defendant Betty Fadeley is alleged to have acted. 42 Pa.C.S. §8501 (1982). An employee is granted immunity “to the same extent as (her) employing local agency.” 42 Pa.C.S. §8545 (1982).

While 42 Pa.C.S. §8542 (1982) lists several exceptions to governmental immunity, it is clear from the pleadings and the language of the statute that none of the exceptions apply here. Liability will be [444]*444imposed on a local agency or its employee for negligent acts with respect to the operation of a motor vehicle, the care, custody, or control of personal property, real property, or animals, or the maintenance of a dangerous condition with respect to trees, traffic controls, sidewalks, utility service facilities, streets, and street lighting. 42 Pa.C.S. § 8542(b)(1) (1982).

Of the eight exceptions listed in §8542, only two can be construed remotely applicable. One of the exceptions is found in subsection (b)(4). A local agency or an employee can be held liable for:

“A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(4) (1982). The pleadings do not aver that any of the additional defendants were negligent in the maintenance of a dangerous condition of traffic lights, street lighting systems or trees. Accordingly, exception four to governmental immunity is inapplicable unless a school crossing guard qualifies as a “traffic control.”

A school crossing guard does not qualify as a “traffic control” when this phrase is viewed in context. Under the statutory construction provisions of Pennsylvania law, “[gjeneral words shall be construed to take their meaning and be restricted by preceding particular words.” 1 Pa.C.S. § 1903(b) (Supp. 1982). Moreover, Pennsylvania courts follow [445]*445the doctrine of noscitur a sociis and ascertain the meaning of a doubtful word by reference to words associated with it. See e.g. Ford v. Unemployment Compensation Board, 168 Pa. Super. 446, 79 A.2d 121 (1951). If there is any ambiguity with reference to the phrase “traffic controls,” this ambiguity must be resolved by making reference to other terms.

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Related

Bliss v. Allentown Public Library
534 F. Supp. 356 (E.D. Pennsylvania, 1982)
Saaybe v. Penn Central Transportation Co.
438 F. Supp. 65 (E.D. Pennsylvania, 1977)
Geelen v. Pennsylvania Railroad
161 A.2d 595 (Supreme Court of Pennsylvania, 1960)
Thorpe v. DANBY
448 A.2d 676 (Commonwealth Court of Pennsylvania, 1982)
Kasanovich v. George
34 A.2d 523 (Supreme Court of Pennsylvania, 1943)
Hucaluk v. Clyde Realty Co.
106 A.2d 829 (Supreme Court of Pennsylvania, 1954)
Ford Motor Co. v. Unemployment Compensation Board
79 A.2d 121 (Superior Court of Pennsylvania, 1951)

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Bluebook (online)
35 Pa. D. & C.3d 440, 1983 Pa. Dist. & Cnty. Dec. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erney-v-wunsch-pactcomplyork-1983.