Cacchione v. Wieczorek

• Decision Date: 11 April 1996
• Citation: 674 A.2d 773
• Parties: Tom CACCHIONE, Jr., and the City of Erie, Appellants, v. Robert WIECZOREK and Esther Wieczorek, his wife
• Court: Pennsylvania Commonwealth Court

Page 773

674 A.2d 773

Tom CACCHIONE, Jr., and the City of Erie, Appellants, v. Robert WIECZOREK and Esther Wieczorek, his wife.

Commonwealth Court of Pennsylvania

Submitted on Briefs Nov. 14, 1995.

Decided April 11, 1996.

James W. Harvey, for Appellants.

Michael E. Dunlavey, for Appellees.

Before DOYLE and SMITH, JJ., and MIRARCHI, Senior Judge.

MIRARCHI, Senior Judge.

The City of Erie and its employee, Tom Cacchione, Jr. (collectively, the City) appeal from an order of the Court of Common Pleas of Erie County denying their motion for judgment on the pleadings.

Robert Wieczorek and Esther Wieczorek commenced the instant action against the City, seeking damages sustained when a parked truck owned by the City crashed into their home. The Wieczoreks alleged that on May 20, 1993, while performing his duties as the City truck driver, Cacchione parked the truck in front of their home, left the engine running and then exited the truck; the parked truck later rolled backwards and crashed into their home; as a result, they sustained damages to their home and suffered physical and mental injuries; and the accident was caused by Cacchione's negligence in leaving the motor running and in failing to properly set the handbrake and block the wheels against the curb to prevent the truck from rolling backwards in the event of a brake failure.

After the pleadings were closed, the City filed a motion for judgment on the pleadings, asserting, inter alia, that the alleged facts do not establish that the truck was "in operation" at the time of the collision to bring the case within the vehicle exception to governmental immunity under Section 8542(b)(1) of the Judicial Code, 42 Pa.C.S. § 8542(b)(1).

The trial court denied the motion and, upon the City's request, amended its order certifying the matter for interlocutory appeal. By order dated July 18, 1995, this Court granted the City's petition for permission to appeal the interlocutory order to consider a limited issue of whether under the alleged facts, the instant case falls within the vehicle exception to governmental immunity under Section 8542(b)(1).

Section 8542(b)(1) provides that a local agency or its employees may be held liable for "[t]he operation of any motor vehicle" in its possession or control. The City contends that the operation of the truck terminated when Cacchione parked and exited the truck and that therefore, the Wieczoreks' claims for the injury occurred after the termination of the operation do not fall within the vehicle exception to governmental immunity. ¹

In Love v. City of Philadelphia, 518 Pa. 370, 375, 543 A.2d 531, 533 (1988), the Pennsylvania Supreme Court, in defining the term "operation" under Section 8542(b)(1), stated: "[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 the vehicle." (Emphasis in original).

To support its contention, the City relies on this Court's previous decisions, which held that under the Love definition of "operation," the parked or temporarily stopped vehicle cannot be considered in operation under the vehicle exceptions to governmental and sovereign immunity. ² See, e.g., Rubenstein v. Southeastern Pennsylvania Transportation Authority, 668 A.2d 283 (Pa.Cmwlth.1995) (the bus temporarily stopped at a regularly scheduled stop); City of Philadelphia v. Melendez, 156 Pa.Cmwlth. 271, 627 A.2d 234 (1993) (the negligent placement of the parked vehicle blocking the view of the traffic); First National Bank of Pennsylvania v. Department of Transportation, 148 Pa.Cmwlth. 158, 609 A.2d 911 (1992), appeal denied, 532 Pa. 648, 614 A.2d 1144 (1992) (the DOT vehicle temporarily parked on or near the berm of the highway); Pennsylvania State Police v. Robinson, 123 Pa.Cmwlth. 401, 554 A.2d 172 (1989) (the state police vehicle temporarily parked in the passing lane of the interstate highway).

Clearly, these cases do not fall within the Love definition of operation because the injuries were not allegedly caused by any movement of the entire vehicles or parts of the vehicles when or after the vehicles were parked or temporarily stopped. By contrast, the Wieczoreks alleged in this matter that their injuries were proximately caused by the movement of the entire truck, when the truck rolled backwards and crashed into their home. ³ Therefore, Love and its progeny relied on by the City are not controlling in this matter. ⁴

Where, as here, the injury was caused by the movement of the entire vehicle, or moving parts of the vehicle, this Court has consistently held that the vehicle was in operation at the time of the injury for the purpose of deciding whether the case falls within the vehicle exception. In Sonnenberg v. Erie Metropolitan Transit Authority, 137 Pa.Cmwlth. 533, 586 A.2d 1026 (1991), the passenger moved to exit through the rear door of the bus when the bus stopped. As she was leaving the bus, the door suddenly closed striking her in the back. The issue presented to this Court was "whether if the entire motor vehicle is not in motion, the physical movement of certain parts of the motor vehicle is sufficient to bring the case within the vehicle liability exception to the Code." Id. 586 A.2d at 1028. This Court concluded:

[N]othing in Love and Robinson requires that the entire vehicle be in motion to establish 'operation' for purposes of the vehicle liability exception to the Code. The movement of parts of a vehicle, or an attachment to a vehicle, is sufficient to constitute 'operation.' Moreover, the bus driver's closing of the bus doors is an act normally related to the 'operation' of a bus.

Id. (Emphasis added.) Because the injury in this matter was caused by the movement of the entire truck, the truck was in operation at the time of the injury.

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