A. Ward v. M.C. Potteiger

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alice Ward, :
Appellant :
:
v. :
:
Michael C. Potteiger, Individually; and :
Michael W. Raith, Esquire, :
Individually; and Alicia Sweeney, : No. 1201 C.D. 2015
Individually : Argued: May 13, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION BY
JUDGE COVEY FILED: June 9, 2016
Alice Ward (Ward) appeals from the Delaware County Common Pleas
Court’s (trial court) June 9, 2015 order sustaining preliminary objections filed by
Michael C. Potteiger (Potteiger), Michael W. Raith (Raith) and Alicia Sweeney
(Sweeney) (collectively, Appellees) to Ward’s Sixth Amended Complaint. The sole
issue before this Court is whether the trial court erred in sustaining the Appellees’
preliminary objections and dismissing Ward’s Sixth Amended Complaint.
According to the Sixth Amended Complaint, on January 3, 2012, while
Ward was engaged in her job as a traffic controller on Providence Road in Edgemont
Township, Delaware County, Pennsylvania, she was struck by a vehicle operated by
Nicolas DeSimone (DeSimone). As a result of the accident, DeSimone was
convicted of aggravated assault by vehicle while driving under the influence (DUI),
aggravated assault by vehicle while driving under the influence of alcohol or
controlled substance, and possession of a controlled substance, and is currently
serving a prison term.
Ward also avers in the Sixth Amended Complaint that, at the time of the
January 3, 2012 accident, DeSimone was a probationer under the supervision of the
Delaware County Office of Adult Probation and Parole (DCOAPP). Hours
preceding the accident, DeSimone had met with DCOAPP Officer Sweeney
(Sweeney) as a condition of his parole. During the appointment, DeSimone admitted
to Sweeney that he was under the influence of a controlled substance (i.e.,
specifically, heroin) in violation of his probation conditions, and would fail a drug
test. Sweeney did not subject DeSimone to a drug test and, after discussing
DeSimone’s condition with DCOAPP Director Raith, permitted DeSimone to drive
home. The accident occurred after DeSimone left his DCOAPP appointment.
Ward suffered significant injuries and damages as a result of the
accident. On January 3, 2014, Ward filed a Section 1983 action1 and state law claims
in the United States (U.S.) District Court for the Eastern District of Pennsylvania
against the Commonwealth of Pennsylvania Board of Probation and Parole (Board),
Potteiger individually and in his official capacity as the Board’s then-chairman,
Delaware County, DCOAPP, Raith individually and in his official capacity as
DCOAPP director, and Sweeney individually and in her capacity as a DCOAPP
probation officer. After Ward had filed her second amended complaint, by
September 22, 2014 order, the U.S. District Court dismissed Ward’s federal claims
against the parties,2 and declined to exercise jurisdiction over Ward’s state claims
against Potteiger, Raith, and Sweeney in their individual capacities.
1
Section 1983 of the United States Code, 42 U.S.C. § 1983, authorizes civil actions for the
deprivation of constitutional rights.
2
On March 11, 2014, Ward filed an amended complaint. On April 1, 2014, she filed a
second amended complaint. However, Ward’s federal claims were dismissed because: (1) the U.S.
Constitution’s Eleventh Amendment immunity deprived the court of subject matter jurisdiction over
the Board, the County, DCOAPP, and Appellees in their official capacities; and, (2) Ward failed to
state a claim based upon a state-created danger.
2
On November 24, 2014, Ward’s second amended complaint seeking
damages against Appellees in their individual capacities was filed in the trial court.
Potteiger, Raith and Sweeney filed preliminary objections in the nature of a demurrer
on the basis that the action against them is barred by the act commonly referred to as
the Pennsylvania Sovereign Immunity Act (Sovereign Immunity Act).3 Between
December 2014 and March 2015, Ward filed and Appellees preliminarily objected to
three additional amended complaints on similar grounds.
On April 1, 2015, Ward filed the Sixth Amended Complaint at issue in
this appeal. Therein, Ward included claims for:
Count I – Negligence/Gross Negligence/Willful Misconduct
against Appellees
Count II – Constitutional Due Process Violations against
Appellees
Count III – Punitive Damages against Appellees
3
42 Pa.C.S. §§ 8521-8528.
[U]nder the Pennsylvania Rules of Civil Procedure, immunity from
suit is an affirmative defense that must be pled in a responsive
pleading under the heading new matter, not as a preliminary
objection. We recognize that courts have permitted limited exception
to this rule and have allowed parties to raise the affirmative defense of
immunity as a preliminary objection. The affirmative defense,
however, must be clearly applicable on the face of the complaint.
Where the plaintiff does not object to the improper procedure, courts
have ruled on the affirmative defense of immunity raised by
preliminary objections.
Smolsky v. Pa. Gen. Assembly, 34 A.3d 316, 321 n.7 (Pa. Cmwlth. 2011) (citations omitted). Here,
Ward did not object to Appellees’ improper procedure.
Ward also references in her Sixth Amended Complaint and her brief the act commonly
referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. §§ 8541-42.
However, the Tort Claims Act is applicable to local agencies and their employees. 42 Pa.C.S. §
8541. Because Ward’s Sixth Amended Complaint makes claims against individuals acting in the
scope and course of their Commonwealth employment, the Tort Claims Act is inapplicable. See
footnote 8 infra.
3
Count IV – Vicarious Liability Involving Negligence/Gross
Negligence/Willful Misconduct against Potteiger and Raith
Count V – Civil Conspiracy/Willful Misconduct against
Raith and Sweeney
See Reproduced Record (R.R.) at 6a-25a.
Potteiger filed preliminary objections to the Sixth Amended Complaint
on the bases that: (1) the trial court lacked jurisdiction over Ward’s claims against
him; (2) he is a high-ranking public official entitled to absolute immunity; (3) the
Sovereign Immunity Act bars Ward’s negligence and constitutional claims against
him; (4) courts do not recognize money damages for constitutional violations; and,
(5) he is not responsible for DCOAPP’s actions or inactions. See R.R. at 34a-40a.
Raith and Sweeney similarly filed preliminary objections to the Sixth
Amended Complaint.4 Their first preliminary objection was a demurrer to Ward’s
negligence and willful misconduct claims due to the immunity they enjoy under the
Sovereign Immunity Act (Count I) because there does not exist under these
circumstances actionable claims for money damages for constitutional violations
(Count II), punitive damages (Count III), and civil conspiracy (Count V); and,
because third-party conduct cannot trigger vicarious liability (Count IV). Raith’s and
Sweeney’s second preliminary objection was a demurrer to Count II on the basis that
they are immune from Ward’s constitutional claims. See R.R. at 26a-32a.
By June 9, 2015 order, the trial court sustained Appellees’ preliminary
objections and dismissed Ward’s Sixth Amended Complaint with prejudice. 5 Ward
appealed to this Court.6
4
Raith and Sweeney incorporated by reference Potteiger’s preliminary objections. See R.R.
at 32a.
5
The trial court filed its opinion in accordance with Pa.R.A.P. 1925(a) on September 9,
2015.
6
“Our review of a trial court’s order sustaining preliminary objections and dismissing a
complaint is limited to determining whether the trial court abused its discretion or committed an
error of law.” Pub. Advocate v. Brunwasser, 22 A.3d 261, 266 n.5 (Pa. Cmwlth. 2011).
4
When considering preliminary objections, we must accept
as true all well-pled facts set forth in the complaint, as well
as all inferences reasonably deducible therefrom, but not
conclusions of law. Preliminary objections in the nature of
a demurrer should be sustained only where the pleadings
are clearly insufficient to establish a right to relief and any
doubt must be resolved in favor of overruling the demurrer.
Dadds v. Walters, 924 A.2d 740, 742 (Pa. Cmwlth. 2007) (citation omitted).
Ward argues that the trial court erred by sustaining Appellees’
preliminary objections where the Sixth Amended Complaint, as a whole and
specifically at paragraphs 16, 22-27, 33, 39, 53-54, 61, 63, 82-83b, 96-99, “clearly
and without doubt laid a sufficient factual foundation showing Appellees’ liability . . .
under the vehicle exception to immunity[.]”7 Ward Br. at 9. Specifically, Ward
contends that since the Sixth Amended Complaint avers that Appellees had physical
and legal possession of DeSimone’s car keys and, thus, control of his vehicle prior to
the accident, the Sixth Amended Complaint states a sufficient cause of action for
Appellees to be individually liable for Ward’s damages under the vehicle exception to
the Sovereign Immunity Act.
7
Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(b)(4)(vii) provides that
“[i]ssues not included in the [Pa.R.A.P. 1925(b) Concise] Statement [of Errors Complained of on
Appeal] . . . are waived.” Id. In compliance with Pa.R.A.P. 1925(b)(3)(iii), the trial court’s July 14,
2015 order directed Ward to file a Concise Statement of Errors Complained of on Appeal and
therein warned that “[a]ny issue not properly included in the Statement . . . shall be waived.” R.R.
at 79a, see Pa.R.A.P. 1925(b)(3)(iv).
In Ward’s Concise Statement of Errors Complained of on Appeal, the sole issue she
proffered for this Court’s review was whether the trial court erred by sustaining the preliminary
objections in light of the vehicle and personal property exceptions under the Sovereign Immunity
Act. See R.R. at 80a-81a. Therefore, we would be constrained to limit our review solely to those
two issues. However, Ward does not address the personal property exception anywhere in her brief.
“[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant
authority[,] or fails to develop the issue in any other meaningful fashion capable of review, that
claim is waived.” Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. Cmwlth. 2009). Since Ward
fails to reference or develop a personal property exception argument on appeal, that issue is waived,
and this Court’s review is limited to whether Ward’s Sixth Amended Complaint states viable
individual causes of action against Potteiger, Raith and Sweeney under the vehicle exception to the
Sovereign Immunity Act.
5
Initially,
[t]he Pennsylvania Constitution provides that the
Commonwealth and its officers and employees may only be
sued where the General Assembly has authorized the suit.
Pa. Const. art. 1 § 11. The General Assembly has specified
that ‘the Commonwealth, and its officials and employees
acting within the scope of their duties, shall continue to
enjoy sovereign immunity and official immunity and
remain immune from suit except as the General Assembly
shall specifically waive the immunity.’ 1 Pa.C.S. § 2310.
Russo v. Allegheny Cnty., 125 A.3d 113, 116 (Pa. Cmwlth. 2015).
Section 8522(a) of the Sovereign Immunity Act provides, in relevant
part:
Liability imposed.--The General Assembly, pursuant to
section 11 of Article I of the Constitution of Pennsylvania,
does hereby waive, in the instances set forth in subsection
(b) only and only to the extent set forth in this subchapter
and within the limits set forth in [S]ection 8528 [of the
Sovereign Immunity Act] (relating to limitations on
damages), sovereign immunity as a bar to an action against
Commonwealth parties,[8] for damages arising out of a
8
A “Commonwealth party” is “[a] Commonwealth agency and any employee thereof, but
only with respect to an act within the scope of his office or employment.” 42 Pa.C.S. § 8501.
Section 102 of the Judicial Code defines “Commonwealth agency[]” as “[a]ny executive agency or
independent agency.” 42 Pa.C.S. § 102. Executive agencies consist of “the departments, boards,
commissions, authorities and other officers and agencies of the Commonwealth government[.]”
Id. (emphasis added).
Because the Board is an independent Commonwealth agency, by extension, Potteiger was a
Commonwealth party employee entitled to immunity under the Sovereign Immunity Act for acts
within the scope of his employment. See Section 7(a) of the Prisons and Parole Code, Act of
August 11, 2009, P.L. 147, as amended, 61 P.S. § 6111(a); see also Reiff v. City of Phila., 365 A.2d
1357 (Pa. Cmwlth. 1976) (the Sovereign Immunity Act insulates the Board from liability).
“Commonwealth government[]” is defined as “[t]he government of the Commonwealth,
including the courts and other officers or agencies of the unified judicial system[.]” 42 Pa.C.S. §
102 (emphasis added). Article 5, Section 1 of the Pennsylvania Constitution vests the
Commonwealth’s judicial power “in a unified judicial system consisting of the . . . courts of
common pleas . . . .” Pa. Const. art. 5, § 1. A county’s adult probation and parole office is
considered an arm of the trial court, rather than the prison system, and thus, the probation
department operates under the common pleas court’s authority. See Commonwealth v. Druce, 868
6
negligent act where the damages would be recoverable
under the common law or a statute creating a cause of
action if the injury were caused by a person not having
available the defense of sovereign immunity.
42 Pa.C.S. § 8522(a). Section 8522(b) of the Judicial Code contains the vehicle
liability exception to sovereign immunity as follows:
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(b) (text emphasis added).9 Because immunity remains the rule, we
must narrowly construe the exceptions applicable under the Sovereign Immunity Act.
See Gale v. City of Phila., 86 A.3d 318 (Pa. Cmwlth. 2014); see also Quinones v.
Dep’t of Transp., 45 A.3d 467 (Pa. Cmwlth. 2012).
In the instant case, Ward contends that paragraphs 16, 22-27, 33, 39, 53-
54, 61, 63, 82-83b and 96-99 of the Sixth Amended Complaint provide the factual
foundation for her vehicle liability claim against Appellees. Those averments state:
A.2d 1232 (Pa. Super. 2005); see also Commonwealth v. Kelly, 931 A.2d 694 (Pa. Super. 2007);
L.J.S. v. State Ethics Comm’n, 744 A.2d 798 (Pa. Cmwlth. 2000) (a county’s chief adult probation
officer is a judicial officer); Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 198
(3d Cir. 2008) (“Pennsylvania’s judicial districts, including their probation and parole departments,
are entitled to Eleventh Amendment immunity.”). Therefore, as DCOAPP director and employee,
respectively, Raith and Sweeney are also employees of a Commonwealth party entitled to immunity
under the Sovereign Immunity Act for acts within the scope of their employment.
9
Relative to local agencies (i.e., those other than Commonwealth agencies), Section 8541 of
the Tort Claims Act similarly affords local agencies and their employees immunity if the damages
sought are recoverable under common law or statute and were caused by negligent acts relating to
“[t]he operation of any motor vehicle in the possession or control of the local agency[.]” 42 Pa.C.S.
§ 8542(b)(1).
7
16. After completing his shopping, DeSimone drove in his
car to Media to meet with [] Sweeney at the [DCOAPP] . . .
where DeSimone was in effect detained by [] Sweeney for
purposes of his required probation visit which included
detention and/or physical and legal possession and control
over the vehicle and keys DeSimone had operated to get to
this meeting and the same vehicle DeSimone would use to
leave.
....
22. After knowing of DeSimone’s admissions, . . . Sweeney
and [] Raith discussed the content of DeSimone’s
admissions and then Sweeney and Raith together agreed
that despite at this time having legal and physical
possession and control of DeSimone’s vehicle and keys,
they would allow DeSimone to leave in the very vehicle he
arrived in.
23. At this time . . . Sweeney and Raith . . . had physical and
legal possession/control of DeSimone’s vehicle and as such
said vehicle was a Commonwealth vehicle and/or personal
property.
24. Despite these admissions by DeSimone while being
detained during his probation visit, [] Sweeney
affirmatively acted and permitted DeSimone to operate a
motor vehicle despite the fact that Sweeney had physical
and legal control over the situation and had physical and
legal control over [DeSimone]’s vehicle and keys
(DeSimone’s personal property a/k/a vehicle).
25. Despite these admissions by DeSimone, [] Sweeney
affirmatively acted and permitted DeSimone, who was
detained for purpose[s] of the probation visit, to leave and
to operate a motor vehicle said vehicle and keys to said
vehicle being completely under physical and legal
possession and control of [] Sweeney.
26. As a county probation officer, [] Sweeney was a peace
officer and had authority throughout the Commonwealth of
Pennsylvania to arrest, with or without writ, warrant, rule or
process any person on probation for violation of the terms
of the probation and also despite already having physical
and legal control of DeSimone’s vehicle and keys, had
authority to take further legal possession and control of
8
DeSimone’s vehicle by preventing the vehicle and keys
from being passed back to DeSimone in light of
DeSimone’s admissions.
27. Despite DeSimone’s admitted use of a controlled
substance during a detained probation visit, [] Sweeney
affirmative[ly] acted based on policy and customs, did not
arrest or detain DeSimone, nor despite having complete
physical and legal control of DeSimone’s vehicle did
Sweeney prevent DeSimone from taking what then would
be considered County and/or a Commonwealth vehicle
and/or personal property.
....
33. DeSimone drove his motor vehicle past three (3)
cautionary signs warning of work in the road and drove
straight into [Ward].
....
39. Prior to and during the time that DeSimone injured
[Ward], DeSimone should have been arrested by []
Sweeney and should have been in custody and[/]or
DeSimone’s vehicle, which was in the control of
[DCOAPP] and Sweeney, should have been retained and
possesse[d] by Sweeney.
....
53. . . . Sweeney did absolutely nothing to either detain
DeSimone or to prevent him from operating a motor vehicle
after leaving [DCOAPP].
54. All [Appellees] were required, obligated and/or duty-
bound to properly supervise DeSimone in accordance with
the terms and conditions of his probation.
....
61. At the time that DeSimone admitted to . . . Sweeney that
he had injected himself with heroin and that he had done so
in the car that he drove to the [DCOAPP], . . . Sweeney
should have detained DeSimone immediately in accordance
with the terms of DeSimone’s probation and in accordance
with the obligations and/or duties of all [Appellees]. All
9
[Appellees] had the duty to arrest and had control over
DeSi[]mone’s vehicle at this time.
....
63. . . . Sweeney’s affirmative decision and act while
DeSimone was being detained during a probation visit to
actively permit DeSimone to leave when DeSimone
admitted to his drug use and motor vehicle operation was in
dereliction of the obligations and duties of all [Appellees]
with respect to supervising the probation of DeSimone.
....
83. . . . Ward’s grievous and permanent physical/mental
injuries, which vastly exceed any statutory monetary
minimum, were caused by the following negligent, grossly
negligent, reckless, willful disregard, wanton, outrageous
and/or deliberately indifferent conduct of [Appellees]
jointly and severally as follows:
....
b. Although clearly having physical and legal
control and physical and legal possession of
DeSimone’s vehicle and keys to the vehicle,
knowingly allowing DeSimone to leave and
operate Commonwealth/County vehicular and/or
personal property;
....
97. . . . Ward’s grievous and permanent physical/mental
injuries, which vastly exceed any statutory monetary
minimum, were caused by the following negligent, grossly
negligent, reckless, willful disregard, wanton, outrageous
and/or deliberately indifferent conduct of . . . Potteiger
[and] Raith as to their supervisory and managerial
oversight/control of [] Sweeney and [] Potteiger’s
supervisory/managerial oversight/control of [] Raith jointly
and severally as follows:
....
b. Although clearly having physical and legal
control and physical and legal possession of
DeSimone’s vehicle and keys to the vehicle,
10
knowingly allowing DeSimone to leave and
operate Commonwealth/County vehicular and/or
personal property;
....
99. . . . Ward’s grievous and permanent physical/mental
injuries, which vastly exceed any statutory monetary
minimum, were caused in part AS AFORESAID, by the
agreement of [] Sweeney and Raith, the conspirators, which
consisted of inter alia, despite knowing of DeSimone’s
hellacious but truthful admissions of being high on illegal
drugs (as well as being visibly and obviously intoxicated)
and knowing that DeSimone operated a vehicle now in the
legal and physical possession and control of [] Sweeney and
Raith as a Commonwealth and/or County vehicle or
personal property, agreeing to allow DeSimone to leave
unscathed and to operate said Commonwealth/County
vehicular and/or personal property which was the factual
cause of [Ward]’s devastating and permanent injuries[.]
R.R. at 9a-24a (underline emphasis in original; bold emphasis added).10
Accepting as true the well-pled facts in the Sixth Amended Complaint,
and all reasonable inferences deducible therefrom, as we must, it is clear that
DeSimone physically operated the vehicle that struck and injured Ward on January 3,
2012. Dadds. Even assuming, arguendo, that Raith and Sweeney had control over
DeSimone’s car keys at some point prior to the accident, we must determine whether
that is sufficient, as a matter of law, to subject Potteiger, Raith and/or Sweeney to
liability for Ward’s damages.
In order for the vehicle liability exception under the Sovereign Immunity
Act to apply, the damages must have resulted from the “operation of any motor
vehicle in the possession or control of” the Commonwealth party. 42 Pa.C.S. §
10
Ward’s Sixth Amended Complaint paragraphs 82, 96 and 98, incorporate by reference the
previously-pled paragraphs.
11
8522(b) (emphasis added).11 In order to trigger the vehicle liability exception,
Potteiger, Raith and/or Sweeney had to have operated the vehicle, and the vehicle
had to be under their control.
The Sovereign Immunity Act does not expressly define either
“operation” or “control.” However, in Love v. City of Philadelphia, 543 A.2d 531(Pa. 1988), our Supreme Court expressly held:
[T]o 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.
Id. at 533 (bold emphasis added); see also Gale; Bottoms v. Se. Pa. Transp. Auth.,
805 A.2d 47 (Pa. Cmwlth. 2002). In addition, this Court has held that a stopped
vehicle is not in operation for purposes of the vehicle liability immunity exception.
Knox v. Se. Pa. Transp. Auth., 81 A.3d 1016 (Pa. Cmwlth. 2013) (wherein a bus
temporarily stopped to discharge passengers was not in operation); see also Bottoms.
Moreover, in Gale, Jose Garriya (Garriya) was handcuffed and placed
into the back of a police cruiser owned by the City of Philadelphia (City). Garriya
was somehow able to commandeer the cruiser and eventually struck a car operated by
Gale, causing Gale serious injuries and damages. Gale sued the City, which asserted
that it was immune from Gale’s claims, and the trial court agreed. Gale contended, as
Ward does in the instant case, that the vehicle liability exception applied because both
Garriya and the cruiser were in the City police officers’ custody and control, and their
actions were part of a continuous sequence of events that led to her injuries. In
affirming the trial court’s order, this Court held:
11
“Because the language in the vehicle exception to [the S]overeign [I]mmunity [Act] and
to [the Tort Claims Act] is identical, the provisions are interpreted consistently, and cases that
address one are applicable to the other.” Gale, 86 A.3d at 321 n.4.
12
The language of the statute and our cases make clear . . .
that where an employee of a local agency has not acted
by putting a vehicle in motion[,] liability under the
vehicle exception to governmental immunity will not
attach. From the face of [Gale]’s complaint, it is clear that
. . . she is alleging that her injuries arose from the police
officers’ failure to prevent [] Garriya from operating the
vehicle and not from their own operation of a vehicle.
Id. at 322 (emphasis added). Thus, even in a situation in which a government-owned
vehicle caused the accident, and government employees’ actions or inactions may
have provided access to the vehicle, if the vehicle was not actually put in motion by
the government employees, the vehicle liability exception to immunity is not
applicable.12
Here, since DeSimone’s vehicle was stopped at the time Raith and/or
Sweeney purportedly possessed DeSimone’s car keys, see Knox, and, as in Gale,
Potteiger, Raith and Sweeney did not “actually put [DeSimone’s vehicle] in
motion[,]” we are constrained to hold that they did not operate DeSimone’s vehicle as
12
Ward relies upon Mickle v. City of Philadelphia, 707 A.2d 1124 (Pa. 1998). The Mickle
Court addressed a slightly different aspect concerning the “operation” of a vehicle. In Mickle, a
patient sued the City of Philadelphia (City), alleging that he was severely injured when the fire
department rescue van into which he was placed lost its wheels while en route to the hospital. The
trial court granted the patient’s motion for summary judgment. The City appealed. This Court
affirmed, and the City appealed to our Supreme Court which held that the City’s negligent
maintenance and repair of the fire department’s rescue van was “the operation of a motor vehicle”
within the meaning of the motor vehicle exception to governmental immunity. Id. at 1126. The
Mickle Court stated:
Negligence related to the operation of a vehicle encompasses not
only how a person drives but also whether he should be driving a
particular vehicle in the first place. The motor vehicle exception does
not say that liability may be imposed only where the operator’s
manner of driving is negligent. Rather, it requires that the injury is
caused by a negligent act with respect to the operation of a motor
vehicle.
Id. (emphasis added). Hence, the Mickle Court concluded that the motor vehicle exception applied
in that case. However, since the vehicle in the Mickle case was operated by a City employee,
Mickle is inapposite here.
13
a matter of law, and the vehicle liability exception to immunity is not applicable.13
Love, 543 A.2d at 533. Because Ward has failed to state a cause of action against
Potteiger, Raith and/or Sweeney that would trigger their individual liability under the
Sovereign Immunity Act, the trial court did not err by sustaining Appellees’
preliminary objections and dismissing Ward’s Sixth Amended Complaint with
prejudice.
Accordingly, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
13
The vehicle liability exception in the immunity statutes require Potteiger’s, Raith’s and/or
Sweeney’s operation and control of DeSimone’s vehicle, and it is clear on the face of the Sixth
Amended Complaint that DeSimone was operating the vehicle at the time of the accident. Thus, we
need not consider whether Potteiger, Raith and/or Sweeney ever had control, constructive or
otherwise, of the vehicle.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alice Ward, :
Appellant :
:
v. :
:
Michael C. Potteiger, Individually; and :
Michael W. Raith, Esquire, :
Individually; and Alicia Sweeney, : No. 1201 C.D. 2015
Individually :
ORDER
AND NOW, this 9th day of June, 2016, the Delaware County Common
Pleas Court’s June 9, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge