Evans v. Southeastern Pennsylvania Transportation Authority , 149 Pa. Commw. 376 ( 1992 )

PALLADINO, Judge.

Appellants Elizabeth and Andrea Denise Evans (collectively, Evans)¹ appeal an order of the Court of Common Pleas of Philadelphia County (trial court) which granted summary judgment in favor of Appellee Southeastern Pennsylvania Transportation Authority (SEPTA) because SEPTA has sovereign immunity. We affirm.

The following facts are undisputed by the parties. On December 2, 1985, Andrea Denise Evans was a passenger aboard a SEPTA elevated train when three other female passengers began to harass her. In an effort to avoid additional harassment, Andrea Denise attempted to move from one SEPTA passenger car to another. The three females pursued Andrea Denise, cornered Andrea Denise on the platform between two passenger cars, and physically injured Andrea Denise with their fists and a razor blade.

The Evans commenced an action against SEPTA in which they alleged that Andrea Denise’s injuries resulted from SEPTA’s negligence in failing to maintain the SEPTA train in a reasonably safe manner² and in failing to respond to the emergency situation involving Andrea Denise.³ SEPTA filed an answer and new matter in which it averred sovereign immunity as a bar to its liability. SEPTA filed interrogatories and supplemental interrogatories to which the Evans filed answers. SEPTA also filed a motion for summary judgment in which it reasserted its lack of liability on the ground of sovereign immunity. The trial court entered summary judgment for SEPTA, and the Evans brought the present appeal to the Commonwealth Court of Pennsylvania.

Our scope of review of the entry of summary judgment is limited to determining whether the trial court committed an error of law or a manifest abuse of discretion. Peters Township School Authority v. United States Fidelity and Guaranty Co., 78 Pa.Commonwealth Ct. 365, 467 A.2d 904 (1983). A grant of summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to any material fact and that the moving party is clearly entitled to judgment as a matter of law. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).

A plaintiff seeking to impose liability on a Commonwealth party, such as SEPTA,⁴ must establish that a common-law or statutory cause of action exists against the Commonwealth party as a result of a negligent act of the Commonwealth party and that the Commonwealth party’s negligent act falls within an exception to sovereign immunity enumerated in subsection 8522(b) of the Judicial Code, 42 Pa.C.S. § 8522(b).

We shall adopt the analytical approach utilized by Judge Doyle in Hall v. Southeastern Pennsylvania Transportation Authority, 141 Pa.Commonwealth Ct. 591, 596 A.2d 1153 (1991), and shall assume arguendo that SEPTA breached a duty of care owed to Andrea Denise Evans. Nevertheless, we conclude that the Evans cannot recover from SEPTA because the Evans cannot establish that the injuries sustained by Andrea Denise stemmed from a Commonwealth party’s negligent act which falls within a subsection 8522(b) sovereign immunity exception.

The Evans have maintained that liability may be imposed on SEPTA pursuant to the sovereign immunity exception at 42 Pa.C.S. § 8522(b)(1). In pertinent part, subsection 8522(b)(1) provides:

(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.

(Emphasis added.)

The explicit language of subsection 8522(b) allows the imposition of liability solely for certain enumerated “acts by a Commonwealth party” and thus generally disallows the imposition of liability on the Commonwealth for acts of third parties. Section 8501 of the Judicial Code, 42 Pa.C.S. § 8501, defines a Commonwealth party as a “Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment.”

Consequently, the express wording of subsection 8522(b) manifests that the General Assembly has not waived sovereign immunity for harm caused by third parties, i.e., persons and entities not included in the subsection 8501 definition of a Commonwealth party. Buschman v. Druck, 139 Pa.Commonwealth Ct. 182, 590 A.2d 53 (1991); Southeastern Transportation Authority v. Hussey, 138 Pa.Commonwealth Ct. 436, 588 A.2d 110 (1991); Moore v. Department of Justice, 114 Pa.Commonwealth Ct. 56, 538 A.2d 111 (1988), appeal dismissed sub nom. Moore v. Reid, 523 Pa. 418, 567 A.2d 1040 (1990); Chevalier v. City of Philadelphia, 516 Pa. 316, 532 A.2d 411 (1987); Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).⁵ “[T]his legislative judgment, as evidenced by the language of the statute, is consistent with the general rule that criminal and negligent acts of third parties are superseding causes which absolve the defendant from liability for the harm caused by such third parties.” Moore, 114 Pa.Commonwealth Ct. at 60, 538 A.2d at 113; accord Mascaro; Buschman; Hussey.

Because the facts in Hussey are very similar to the facts in the present case, we conclude that Judge Smith’s analysis in Hussey governs the disposition of the present appeal. While standing on a SEPTA subway station platform, Michael Hussey was slashed by a knife or a razor during a confrontation with some passengers who had just alighted from a SEPTA train. Hussey alleged that SEPTA was liable for his injuries under the sovereign immunity exception at subsection 8522(b)(1) (vehicle liability) because the confrontation with his assailants had occurred within the direct sight and hearing of the SEPTA trainman who had failed to keep closed or to close expeditiously the SEPTA train doors in order to prevent the escalation of violence and who had failed to enlist police assistance for Hussey once the confrontation had begun. Citing Chevalier and Mascaro, the commonwealth court held that “a Commonwealth party is not subject to liability under the vehicle liability exception to sovereign immunity for the criminal acts of third parties even if they were facilitated by the Commonwealth agency’s operation of a vehicle.” Hussey, 138 Pa.Commonwealth Ct. at 442; 588 A.2d at 113.

In the present case, the undisputed facts clearly reveal that Andrea Denise Evans’ injuries stemmed from the attack perpetrated by three female SEPTA passengers. Like the SEPTA passengers’ attack on Michael Hussey, the SEPTA passengers’ attack on Andrea Denise Evans was a superseding cause which absolved SEPTA of any liability for the harm suffered as a result of the attack. Buschman; Hussey; Moore; see Chevalier; Mascaro.

For these reasons, we hold that the trial court properly entered summary judgment in favor of SEPTA. Accordingly, the order of the trial court is affirmed.

ORDER

AND NOW, July 22, 1992, the order of the Court of Common Pleas of Philadelphia County in the above-captioned case is hereby affirmed.

1 . Elizabeth Evans is appealing individually and as the natural parent and guardian of minor Andrea Denise Evans.

2 . The Evans contend that Andrea Denise was cornered on the platform between passenger cars because she was unable to open a jammed door on the second car.

3 . The Evans contend that another SEPTA passenger witnessed the attack and tried to summon help by using an alarm switch mounted on the SEPTA passenger car, but the SEPTA train did not stop until it reached the next station.

4 . SEPTA is a commonwealth agency which may assert the defense of sovereign immunity. Martz v. Southeastern Pennsylvania Transportation Authority, 143 Pa.Commonwealth Ct. 25, 598 A.2d 580 (1991); Chambers v. Southeastern Pennsylvania Transportation Authority, 128 Pa.Commonwealth Ct. 368, 563 A.2d 603 (1989).

5 . In Chevalier and Mascaro, the Supreme Court of Pennsylvania construed section 8542 of the Judicial Code, 42 Pa.C.S. § 8542, which, in the context of governmental immunity, permits the imposition of liability upon a local agency for injuries caused by “the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties” if the negligent acts fall within an exception to governmental immunity enumerated in subsection 8542(b). Because the language of section 8522 and section 8542 are very similar (for example, the language in both sections excludes liability for acts by third parties), the commonwealth court has repeatedly recognized that the supreme court’s analyses in Chevalier and Mascaro are instructive in interpreting section 8522. In Hussey, the commonwealth court specifically relied on the supreme court’s decisions in Chevalier and Mascaro to interpret the vehicle liability exception of subsection 8522(b)(1).