Rubenstein v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 12 December 1995
• Citation: 668 A.2d 283
• Parties: Hattie RUBENSTEIN, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
• Court: Pennsylvania Commonwealth Court

Page 283

668 A.2d 283

Hattie RUBENSTEIN, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.

Commonwealth Court of Pennsylvania.

Argued Oct. 13, 1995.

Decided Dec. 12, 1995.

Joel M. Lieberman, for appellant.

Joan A. Zubras, for appellee.

Before COLINS, President Judge, and SMITH, J., and KELTON, Senior Judge.

COLINS, President Judge.

Hattie Rubenstein (Appellant) appeals from the Court of Common Pleas of Philadelphia County's (court of common pleas) March 27, 1995 order that denied her Motion to Strike Off Judgment Notwithstanding Verdict and Reinstate Jury Verdict. Appellant raises two issues for this Court's review: (1) whether the safe delivery of a passenger to a bus stop is to be considered "operation of a motor vehicle"; and (2) whether the request for a Judgment Notwithstanding the Verdict (judgment n.o.v.) was appropriately presented to the court of common pleas because it was not in writing.

The facts of this case as found by the court of common pleas are summarized as follows. Appellant brought this action against the Southeastern Pennsylvania Transportation Authority (Appellee) in the court of common pleas following injuries she sustained upon alighting from Appellee's passenger bus at a stop along the vehicle's regular bus route. The bus stopped moving at its regularly scheduled stop at the intersection of Castor and Cottman Avenues, where Appellant alighted the bus, and fell as she stepped to the ground. Appellee's bus driver was aware that the ground at the point where the bus stopped was not level and that he could have stopped the bus at a different point. No other passengers who alighted ahead of or behind Appellant fell.

At the close of Appellant's case on liability, the court of common pleas entertained argument on Appellee's motion for compulsory nonsuit based on the legal theory that Appellant failed to establish facts sufficient to fall within the motor vehicle exception ¹ to Section 8521 of the Judicial Code, 42 Pa.C.S. § 8521, which otherwise grants immunity to Commonwealth parties such as Appellee. The court of common pleas took that matter under advisement.

Appellant presented one additional witness sufficient to establish the harm suffered as a result of the fall. The court of common pleas noted in its opinion that it had been unable to review Appellee's motion at that time, and that the issue of immunity was still under consideration. Appellee did not present any evidence, so the matter proceeded to closing arguments and jury charge. The court of common pleas noted on the record that it would view Appellee's motion as one for directed verdict.

During jury deliberation, the court of common pleas considered Appellee's motion in full, but prior to announcing the disposition of that motion was advised that the jury had reached a verdict. The court of common pleas decided that it was best to receive the verdict of the jury before announcing its decision on Appellee's motion. The jury found Appellee negligent and Appellant 50% contributorily negligent, and awarded damages in the amount of $40,000.

After the jury was discharged, the court of common pleas announced its decision on Appellee's motion, concluding that the facts in evidence did not support the conclusion that Appellee's bus was in "operation" within the meaning of Section 8522(b)(1) of the Judicial Code, 42 Pa.C.S. § 8522(b)(1), at the time of Appellant's injury. Thus, the court of common pleas rejected the jury's verdict. Appellant filed a motion to strike off judgment n.o.v., which the court of common pleas denied. This appeal followed.

An appellate court reviews an order granting or denying judgment n.o.v. under the following standard: "We will reverse the lower court when we find an abuse of discretion or an error of law that controlled the outcome of the case." Jones v. Constantino, 429 Pa.Superior Ct. 73, 76, 631 A.2d 1289, 1290 (1993) (citations omitted), petition for allowance of appeal denied, 538 Pa. 671, 649 A.2d 673 (1994).

In Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), the Supreme Court of Pennsylvania held that Appellee is a Commonwealth agency and as such enjoys the benefit of sovereign immunity conferred upon Commonwealth agencies by Section 8521 of the Judicial Code, 42 Pa.C.S. § 8521. However, liability will lie against a Commonwealth agency where a claim for damages arises out of the "operation of any motor vehicle in the possession or control of a Commonwealth agency." Section 8522(b)(1) of the Judicial Code, 42 Pa.C.S. § 8522(b)(1).

The Supreme Court of Pennsylvania defined "operation" of a motor vehicle in the context of governmental immunity conferred by Section 8541 of the Judicial Code, 42 Pa.C.S. § 8541, and the motor vehicle exception thereto contained in Section 8542(b)(1) of the Judicial Code, 42 Pa.C.S. § 8542(b)(1), as follows:

[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.... Getting into or alighting from a vehicle are merely acts ancillary to the actual operation of that vehicle.

Love v. City of Philadelphia, 518 Pa. 370, 375, 543 A.2d 531, 533 (1988) (emphasis added). This Court in Miller v. Erie Metropolitan Transit Authority, 152 Pa.Cmwlth. 64, 618 A.2d 1095 (1992), petition for allowance of appeal denied, 537 Pa. 643, 644 A.2d 165 (1994), relied upon our Supreme Court's definition of operation and has consistently applied this definition to cases involving sovereign immunity. In Miller, the plaintiff alleged she was injured when she slipped on the steps of defendant's bus. This Court reversed the trial court's denial of the defendant's motion for summary judgment and held that a passenger's act of alighting the steps of a bus did not involve operation of the bus for purposes of the motor vehicle exception to sovereign immunity contained in Section 8522(b)(1) of the Judicial Code, 42 Pa.C.S. § 8522(b)(1). In Bazemore v. Southeastern Pennsylvania Transportation Authority, 657 A.2d 1323 (Pa.Cmwlth.1995), we reaffirmed our reliance on Love in the context of operation of a motor vehicle and sovereign immunity. In Bazemore, the plaintiff alleged that she slipped and fell on the bus steps when she attempted to alight defendant's bus at a regularly scheduled stop. The defendant filed a motion for summary judgment, which the trial court granted. Plaintiff appealed to this Court, which affirmed the trial court, and reaffirming the holding of Miller, held that plaintiff "does not allege that her injuries were caused by the movement of the bus or the movement of any of its parts; thus [plaintiff's] cause of action would not fall within the motor vehicle exception to sovereign immunity." Id. at 1326-27.

Appellant attempts to argue that the Love line of cases does not control under the facts of this case, and instead directs this Court's attention to our holdings in Vogel v. Langer, 131 Pa.Cmwlth. 236, 569 A.2d 1047 (1990), and Sonnenberg v. Erie Metropolitan Transit Authority, 137 Pa.Cmwlth. 533, 586 A.2d 1026 (1991). However, we find that these cases are not controlling because of factual dissimilarities. In Vogel, plaintiff was injured when defendant...