Sonnenberg v. Erie Metropolitan Transit Authority

5 Pa. D. & C.4th 522, 1990 Pa. Dist. & Cnty. Dec. LEXIS 352
CourtPennsylvania Court of Common Pleas, Erie County
DecidedFebruary 8, 1990
Docketno. 3323-A-1985
StatusPublished

This text of 5 Pa. D. & C.4th 522 (Sonnenberg v. Erie Metropolitan Transit Authority) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Erie County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sonnenberg v. Erie Metropolitan Transit Authority, 5 Pa. D. & C.4th 522, 1990 Pa. Dist. & Cnty. Dec. LEXIS 352 (Pa. Super. Ct. 1990).

Opinion

LEVIN, J.,

Before this court is a motion for summary judgment brought by defendant, Erie Metropolitan Transit Authority.

This action arises out of an incident which occurred on September 24, 1983. Plaintiff alleges that on that date she was a passenger on a bus operated by defendant and as she attempted to disembark the bus’s rear door closed upon her due to the driver’s action. It is undisputed that the bus was stopped at the time. Plaintiff alleges injuries as a result of this occurrence.

Defendant, EMTA, denies liability and asserts the immunity provisions of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. There are eight exceptions to the general rule of governmental immunity. Plaintiff attempts to impose liability on EMTA through the application of one such exception. This section, 42 Pa.C.S. §8542(b)(l), reads as follows:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(1) Vehicle liability — The operation of any motor vehicle in the possession or control of a local agency. As used in this paragraph, ‘motor vehicle’ means any vehicle which is self-propelléd and any attachment thereto, including vehicles operated by rail, through water or in the air.”

Exceptions to the rule of governmental immunity must be construed narrowly. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

Since this case involves a motion for summary judgment against plaintiff, the court must resolve all factual disputes in favor of plaintiff. Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment “shall be rendered if the pleadings, [524]*524depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” It is not the court’s function to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 475 A.2d 928 (1984).

Inasmuch as it was established that the bus was stopped at the time of the incident, the sole issue before this court is whether the EMTA bus (and its parts) can be considered to have been in “operation” and/or motion as required to bring the situation within the governmental immunity exception. Plaintiff contends that although the bus was stopped it was operating, for movement of the bus door constituted “operation” of a part of the vehicle or an attachment.

Three cases are controlling on the subject of immunity concerning governmental vehicles, Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988); Commonwealth of Pennsylvania, Pennsylvania State Police v. Robinson, 123 Pa. Commw. 401, 554 A.2d 172 (1989); and Gray v. EMTA, 4 D.&C. 4th 250 (1989). These cases hold that there is governmental immunity unless the vehicle in question is literally in motion.

In Love v. City of Philadelphia, supra, the plaintiff was injured while disembarking from a city van. The vehicle was stopped at the time of her exit. The Supreme Court of Pennsylvania, in interpreting whether the city had governmental immunity, held:

“As we have illustrated, to operate something means to actually put it in motion. . . . Thus according to the common and approved usage of the word ‘operation,’ the van was not in operation at the time [525]*525of Mrs. Love’s accident. Getting into or alighting from a vehicle are merely acts ancillary to actual operation of a vehicle.”

.This holding was clarified in Commonwealth of Pennsylvania, Pennsylvania State Police v. Robinson, supra. The Robinson court made it clear that motion was required for operation, emphasizing:

“Merely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating the vehicle,” Id. at 404, 554 A.2d at 174, quoting from Love v. City of Philadelphia, 518 Pa. at 374, 543 A.2d at 533. (emphasis in original)

This court, in Gray v. EMTA, supra, addressed the situation where a plaintiff was struck by a car after alighting from an EMTA bus. EMTA asserted governmental immunity under 42 Pa.C.S. §8541. This court, in interpreting Love v. City of Philadelphia, supra, and Commonwealth v. Robinson, supra, emphasized that “a vehicle must actually be in motion for the vehicle exception to apply.” 4 D.&C. 4th at 253. This court went on to define motion to mean “the action or process of changing position. Thus motion presupposes movement.” Id. As enunciated by Love and Robinson, supra, it is the. law that a vehicle must actually be in motion, and not just a mechanical part of the same, for the exception to governmental immunity to apply. The witnesses deposed, including plaintiff, consistently testified that the EMTA bus was not moving at the time of the incident.

Plaintiff attempts to distinguish its case from the above holdings on the basis that the other cases involved accidents occurring outside of, and separate and apart from the vehicle, while plaintiffs incident occurred inside.

[526]*526Plaintiff first contends that the bus door was “an attachment” under the statute, and that the door’s movement (while the bus was stopped) constitutes “operation.” Neither the statute nor case law define an “attachment” in this context. In interpreting this language the court is mindful that exceptions to the general rule of immunity must be construed narrowly. Mascaro v. Youth Study Center, supra.

Words and phrases shall be construed according to the rules of grammar and according to then-common and approved usage. 1 Pa.C.S. §1903. The American Heritage Dictionary, (rev. 2d ed. 1985), defines an attachment as “a supplemental part; an accessory.” Thus, a bus door is not an attachment, but is analogous to a fixture under real estate law. Black’s Law Dictionary, (5th ed. 1979), defines a fixture as “that which is fixed or attached to something permanently as an appendage.”

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Related

Thorsen v. Iron and Glass Bank
476 A.2d 928 (Supreme Court of Pennsylvania, 1984)
Love v. City of Philadelphia
543 A.2d 531 (Supreme Court of Pennsylvania, 1988)
Mascaro v. Youth Study Center
523 A.2d 1118 (Supreme Court of Pennsylvania, 1987)
Boyle Land & Fuel Co. v. Commonwealth
475 A.2d 928 (Commonwealth Court of Pennsylvania, 1984)
Commonwealth v. Robinson
554 A.2d 172 (Commonwealth Court of Pennsylvania, 1989)

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Bluebook (online)
5 Pa. D. & C.4th 522, 1990 Pa. Dist. & Cnty. Dec. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sonnenberg-v-erie-metropolitan-transit-authority-pactcomplerie-1990.