Wieczorek v. Cacchione

24 Pa. D. & C.4th 1, 1995 Pa. Dist. & Cnty. Dec. LEXIS 236
CourtPennsylvania Court of Common Pleas, Erie County
DecidedMay 11, 1995
Docketno. 13716-1994
StatusPublished

This text of 24 Pa. D. & C.4th 1 (Wieczorek v. Cacchione) 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
Wieczorek v. Cacchione, 24 Pa. D. & C.4th 1, 1995 Pa. Dist. & Cnty. Dec. LEXIS 236 (Pa. Super. Ct. 1995).

Opinion

LEVIN, J,

Before the court is a motion brought by defendants, Tom Cacchione Jr. and the City of Erie, to amend the court’s order of April 26, 1995, to include certification for interlocutory appeal. In that order, the court denied defendants’ motion for judgment on the pleadings based on a finding that the facts of this case fall within the motor vehicle exception to governmental immunity. 42 Pa.C.S. §§8541-8542. Specifically, the court found that an improperly parked and unoccupied vehicle was operating when it rolled into plaintiffs’ home.

The standard for interlocutory appeal is set forth in 42 Pa.C.S. §702(b) which provides:

“Interlocutory appeal by permission — when a court . . ., in making an interlocutory order in a matter in which its final order would be within the jurisdiction of the appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall also state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.”

[3]*3The instant case is appropriate for interlocutory appeal. The issue of governmental immunity raises a controlling question of law. Due to the precedent on this issue, discussed infra, there is a substantial ground for difference of opinion as to whether the motor vehicle was operating in the instant case. Judicial economy is also indicated where plaintiffs’ entire case will fail, if defendant is indeed entitled to judgment on the pleadings. Accordingly, this court will grant certification of this interlocutory appeal and discuss its reasons for denying defendants’ motion for judgment on the pleadings.

“A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034. Thus, a trial court must confine its consideration to the pleadings and relevant documents and accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings, presented by the party against whom the motion is filed. The court may grant judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise.” McAllister v. Millville Mutual Insurance Co., 433 Pa. Super. 330, 334, 640 A.2d 1283, 1285 (1994). (citations omitted)

In considering this motion, the court has accepted as true all well pleaded facts in plaintiffs’ complaint. Plaintiffs allege that this action arose on May 20, 1993, when Cacchione was working as a truck driver for the City of Erie. During the performance of his duties, Cacchione parked his city vehicle, left the motor running and exited the vehicle. The unoccupied vehicle then rolled backwards and crashed into plaintiffs’ home caus[4]*4ing extensive damage to the building. Plaintiff Esther Wieczorek, who was in the home at the time of impact, alleges severe physical and mental injuries as a result of defendants’ negligence. Primarily, plaintiffs aver that Cacchione was negligent in failing to properly park the motor vehicle by improperly engaging the handbrake and failing to block the wheels against the curb to prevent rolling. Plaintiffs further contend that the City of Erie, as Cacchione’s employer, was also negligent in failing to properly supervise and train Cacchione.

In their motion for judgment on the pleadings, defendants hoist the shield of governmental immunity as set forth in 42 Pa.C.S. §8541.1 Moreover, defendants contend that the facts of this case do not fall within any exception to governmental immunity, including the operation of a motor vehicle under section 8542(b)(1):

“(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 . . . .”

Exceptions to the rule of governmental immunity must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability. SEPTA v. Simpkins, 167 Pa. Commw. 451, 648 A.2d 591 (1994); Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

[5]*5Defendants argue that, as a matter of law, the parking of a vehicle completes the operation of that vehicle. Thus, the sole issue before the court is whether a vehicle that is improperly parked and left unoccupied with its motor running such that it rolled backward causing injury, is a motor vehicle in operation so as to fall within the vehicle exception to governmental immunity.

The seminal case on this issue is Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988). In Love, the Pennsylvania Supreme Court found that a parked city van was not in operation where the plaintiff was injured while disembarking. The court reasoned 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 . . . Getting into or alighting from a vehicle are merely acts ancillary to actual operation of that vehicle. ” Love, supra at 375, 543 A.2d at 533. (emphasis in original)

More recently, the Commonwealth Court reiterated the holding in Love, that a parked vehicle is not in operation and that claims involving a parked vehicle are not actionable under the vehicle exception to governmental immunity. City of Philadelphia v. Melendez, 156 Pa. Commw. 271, 627 A.2d 234 (1993). In Melendez, the court held that the government vehicle was not in operation where it was unlawfully parked such that it obstructed plaintiff’s view as she exited a private drive causing her vehicle to collide with a third vehicle. Since the vehicle was already parked at the time of the collision, it could not be considered in operation. However, the court alluded that the process of parking a vehicle could be considered the operation of a vehicle. Id. at 275, 627 A.2d at 236. See also, Commonwealth of Pennsylvania, Pennsylvania State Police v. Robin [6]*6son, 123 Pa. Commw. 401, 554 A.2d 172 (1989) (state police car, which was temporarily parked in the passing lane of a highway by a state trooper investigating an accident was held not to be in operation); First National Bank of Pennsylvania v. PennDOT, 148 Pa. Commw. 158, 609 A.2d 911

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Related

Southeastern Pennsylvania Transportation Authority v. Simpkins
648 A.2d 591 (Commonwealth Court of Pennsylvania, 1994)
McAllister v. Millville Mutual Insurance
640 A.2d 1283 (Superior Court of Pennsylvania, 1994)
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)
Vogel v. Langer
569 A.2d 1047 (Commonwealth Court of Pennsylvania, 1990)
First Nat. Bank v. Dept. of Transp.
609 A.2d 911 (Commonwealth Court of Pennsylvania, 1992)
Sonnenberg v. Erie Metropolitan Transit Authority
586 A.2d 1026 (Commonwealth Court of Pennsylvania, 1991)
City of Philadelphia v. Melendez
627 A.2d 234 (Commonwealth Court of Pennsylvania, 1993)
Commonwealth v. Robinson
554 A.2d 172 (Commonwealth Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
24 Pa. D. & C.4th 1, 1995 Pa. Dist. & Cnty. Dec. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wieczorek-v-cacchione-pactcomplerie-1995.