Dickens v. Upper Chichester Tp.

• Decision Date: 31 January 1989
• Citation: 553 A.2d 510,123 Pa.Cmwlth. 226
• Parties: Denise Marie DICKENS, v. UPPER CHICHESTER TOWNSHIP and Officer Thomas Bush, et al. Appeal of UPPER CHICHESTER TOWNSHIP and Officer Thomas Bush, Appellants.
• Court: Pennsylvania Commonwealth Court

Page 510

553 A.2d 510

123 Pa.Cmwlth. 226

Denise Marie DICKENS, v. UPPER CHICHESTER TOWNSHIP and Officer Thomas Bush, et al. Appeal of UPPER CHICHESTER TOWNSHIP and Officer Thomas Bush Appellants.

Commonwealth Court of Pennsylvania.

Argued Sept. 14, 1988.

Decided Jan. 31, 1989.

M. Kelly Tillery, Leonard, Tillery & Davison, Philadelphia, for appellants.

Thomas S. Myers, Jr., Berwyn, Harold A. Lockwood, Jr., Lockwood, Reid, Bolger & Keller, Philadelphia, for appellee.

Before CRUMLISH, Jr., President Judge, and CRAIG, DOYLE, BARRY, COLINS, PALLADINO and McGINLEY, JJ.

OPINION

CRUMLISH, Jr., President Judge.

Upper Chichester Township and Police Officer Thomas Bush appeal a Delaware County Common Pleas Court order overruling their preliminary objections to Denise Marie Dickens' complaint.¹ We affirm.

Officer Bush observed John Scott Horner operating a motor vehicle and believed Horner was driving with a suspended license and under the influence of drugs. Officer Bush initiated a pursuit which evolved into a high-speed chase. Horner's vehicle ultimately collided with Dickens' vehicle and caused her serious injuries. The police vehicle was not physically involved in the collision.

Dickens' complaint alleged that the Township, through its agent Officer Bush, was negligent in initiating a pursuit and in otherwise failing to exercise due care. The Township and Officer Bush preliminarily objected, averring that Dickens' allegations of negligence did not fall within the vehicle liability exception to governmental immunity. Section 8542(b)(1) of the Judicial Code (Code), 42 Pa.C.S. § 8542(b)(1).²

Our scope of review of a common pleas court order overruling preliminary objections in the nature of a demurrer is limited to determining whether the lower court abused its discretion or committed an error of law. Department of Labor and Industry, Office of Vocational Rehabilitation v. Pennsylvania Human Relations Commission, 118 Pa. Commonwealth Ct. 163, 545 A.2d 412 (1988). We accept as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom. McNeill v. City of Philadelphia, 104 Pa. Commonwealth Ct. 494, 522 A.2d 174 (1987).

Specifically, the Township and Officer Bush contend that Dickens has failed to allege that Officer Bush was at any time in possession or control of the Horner vehicle or that Bush's police vehicle struck Horner's vehicle, thus causing a collision with Dickens' automobile. Therefore, in light of the narrow construction applied to exceptions to immunity under the Judicial Code, Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), the Township and Officer Bush contend that without some physical impact by a vehicle operated by an agent of a local governmental unit, they cannot be liable under the motor vehicle exception. We disagree.

As prior case law suggests, there is no requirement that a vehicle operated by a local government agent must physically collide with the injured party for liability to attach. Rather, common law concepts of negligence and proximate causation are to be applied as a prerequisite to determining whether an actionable claim has been stated within the statutorily defined exceptions to governmental immunity. Mascaro.

This Court was presented with a factually similar police pursuit case in Bickert v. Borough of Riverside, 118 Pa. Commonwealth Ct. 91, 545 A.2d 962 (1988). As here, the police vehicle was not physically involved in the collision. We stated therein that "[a]lthough the substantive exceptions to immunity set forth in the Code are to be interpreted narrowly, City of Philadelphia v. Love,³ pleadings which raise a colorable theory of liability consistent with recognized exceptions to immunity should not be so construed prior to a more complete exposition of the facts." Id. at ---, 545 A.2d at 964 (citation omitted). Bickert alleged that the police had engaged in a high-speed motor vehicle pursuit, having reason to know that such pursuit would expose other persons including the plaintiff, a passenger in the vehicle being pursued, to an unreasonable risk of harm. We concluded that Bickert's complaint had stated a cognizable claim within the vehicle liability exception. Similarly, in the companion case of Force v. Watkins, 118 Pa. Commonwealth Ct. 87, 544 A.2d 114 (1988), we found that the allegations of "driving without due regard for the safety as well as in reckless disregard for the safety and rights of others on the highway" raised a factual question as to the degree of care exercised by the police car's operator. Id. at ---, 544 A.2d at 115 (emphasis added).

We interpret Dickens' complaint as likewise alleging a cognizable theory of liability. Paragraph 19 of her complaint alleges:

19. The accident heretofore described was caused by the carelessness, recklessness and negligence of Defendant, Upper Chichester Township, through its agent, servant and/or employee acting within the course and scope of his employment by reason of the following:

(a) by improperly and without cause initiating a high speed pursuit through a residential neighborhood;

(b) in failing to follow accepted police practices with regard to high speed chases;

(c) in initiating a high speed chase of a minor who was suspected of violating a minor traffic offense; and

(d) in otherwise failing to exercise due care under the circumstances.

The apparent thrust of this complaint imputes negligence to the decision to initiate a pursuit of the Horner vehicle. We hold, nonetheless, that the common pleas court did not err or abuse its discretion in concluding that the allegations of a high-speed pursuit through a residential neighborhood and failure to exercise due care are sufficient to raise factual questions as to the degree of care exercised by Officer Bush while operating his vehicle.⁴

Despite her inartful pleadings, it is possible for Dickens to present evidence within the parameters of the alleged facts that tend to show that Officer Bush's operation of his vehicle put others at risk, including...