             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis T. James, an individual,         :
Robin James, an individual, and         :
Dennis T. James and Robin James,        :
as Husband and wife                     :
                                        :
             v.                         :
                                        :
Pier L. Chiaradia, an individual, and   :
Commonwealth of Pennsylvania,           :
Department of Transportation, and       :
Pennsylvania State Police               :
                                        :   No. 1770 C.D. 2013
Appeal of: Pennsylvania State Police    :   Argued: April 24, 2014

BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE BERNARD L. McGINLEY, Judge (P)
             HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                           FILED: September 2, 2014
             The Pennsylvania State Police (State Police) appeals the order of the
Court of Common Pleas of Westmoreland County (trial court) which determined
that the State Police was negligent in its control of an emergency vehicle at the
accident scene on December 13, 2000, and said negligence was a factual cause in
bringing about the harm to Dennis T. James (James).          The trial court also
determined that the negligent actions of the State Police fell within the vehicle
exception to sovereign immunity contained in Section 8522(b)(1) of the Judicial
Code, 42 Pa.C.S. §8522(b)(1).


             On December 13, 2000, a fatal accident took place on State Route 119
in East Huntingdon Township in Westmoreland County, Pennsylvania. In the
aftermath of the accident, State Trooper Brain D. Thomas (Trooper Thomas) of the
State Police elected to stop northbound traffic on the road while he investigated.
Trooper Thomas directed the East Huntingdon Fire Department (EHFD), which
had responded to the accident to detour traffic to an off ramp which was the exit
for State Route 819.       The EHFD accomplished this task by blocking the
northbound lane with a fire truck.


             As a result of this action, a traffic backup formed in the northbound
lane in which a tractor trailer truck had come to a stop. Pier Chiaradia (Chiaradia)
attempted to merge his car into the right northbound lane. At the same time James
attempted to merge left into the passing lane. Chiaradia hit James’s vehicle which
caused James’s vehicle to ricochet into the back of the stopped tractor trailer truck.
James suffered serious, debilitating, and permanent injuries. The injuries included
traumatic brain injury, permanent blindness in both eyes, an open fracture of the
left femur, open right patellar fracture, left ulnar fracture, multiple facial fractures,
bilateral orbital floor and frontal sinus fractures, frontonasal ethmoid and bilateral
zygoma fractures, complete sciatic nerve paralysis, left parietal contusion, cardiac
arrest which necessitated left thoracotomy and placement of a chest tube,
abdominal bleeding for which he underwent three exploratory laparotomies,
splenectomy, colonotomy, and tracheostomy, multiple lacerations and contusions,
nervous shock, anxiety, and emotional upset.


             James sued the State Police, the Pennsylvania Department of
Transportation (DOT), and Chiaradia for various acts of negligence. In Count 1 of




                                           2
the complaint, James alleged that Chiaradia was negligent.1 In Count Two of the
complaint, James alleged that DOT was negligent.2                    In Count Three of the
complaint, James alleged:

                28. Defendant, Pennsylvania State Police, was negligent
                and careless in the following respects:

                a) failing to warn motorists, by the placing of signs,
                flares, and/or personnel, of traffic stoppage ahead,
                despite having ample time and/or opportunity to do so;

                b) failing to properly direct the flow of traffic, given the
                closure of Rte 119;

                c) failing to comply with its own rules and/or regulations,
                as well as federal rules and/or regulations pertaining to
                highway control and safety following motor vehicle
                collisions.

                29. Any and/or all of the aforementioned acts of
                negligence directly and proximately caused the injuries to
                plaintiff, DENNIS T. JAMES, as set forth herein above.
Complaint, October 11, 2001, Paragraph Nos. 28-29 at 8; Reproduced Record
(R.R.) at 8a.


                In Count Four of the complaint, Robin James, James’s wife, brought a
loss of consortium claim against all defendants.


                As new matter, the State Police asserted that the claims of James and
Robin James were barred by the doctrine of sovereign immunity.

       1
                James, Robin James, and Chiaradia subsequently settled through a joint tortfeasor
release.
       2
                By stipulation, DOT was dismissed from the action.



                                                3
             The State Police moved for summary judgment on the ground that its
actions did not fall within the real estate exception to sovereign immunity. By
order dated October 16, 2012, the trial court denied the motion.


             On July 17, 2013, with the consent of the parties, the common pleas
court held a nonjury trial to determine whether the State Police’s actions
constituted negligence and fell within one of the exceptions to sovereign immunity.
The parties proffered facts to the trial court and supporting oral argument as well
as exhibits, including but not limited to, deposition transcripts and police reports.
No witnesses testified in person.


             The State Police moved for a directed verdict on the basis that James
failed to introduce evidence to establish that the motor vehicle exception to
sovereign immunity applied. The trial court denied the motion. James introduced
the police accident report for the original accident which included physical
measurements which were taken in the northbound lane of State Route 119. James
also introduced the State Police accident report for the accident to establish the
time of the accident as 11:17 a.m. James introduced the field regulations for
accident reconstruction of the State Police. James believed that Trooper Thomas
closed the northbound lane of State Route 119 in an attempt to follow these
regulations. James included the portion of James’s deposition which indicated that
he had no memory of the accident. James also submitted the portion of Chiaradia’s
deposition concerning the accident. James argued that, based on the regulations,
the State Police should not have attempted an accident reconstruction because the




                                         4
person who caused the first accident died in the accident and “you can’t prosecute
a dead man.” Notes of Testimony, July 17, 2013, (N.T.) at 24; R.R. at 140a.


             James also introduced the deposition testimony of Trooper Timothy T.
Harrer (Trooper Harrer) of the State Police who was the investigating officer for
the accident and assisted Trooper Thomas in his investigation of the first accident.
Trooper Harrer confirmed “what was in the police accident report, that the fatal
accident started on the northbound side, and on the northbound side there were
yaw marks and physical evidence which crossed the highway which resulted in the
need to stop traffic to take those measurements.” N.T. at 26; R.R. at 142a.


             James introduced the deposition of Corporal Ronald Zona of the State
Police who confirmed that the purpose of stopping traffic was to take photographs
and measurements. N.T. at 27; R.R. at 143a. James introduced the deposition of
Corporal Jonathan Cook for the purpose of describing state police traffic control.
N.T. at 27; R.R. at 143a. He also introduced the deposition of Trooper Thomas
who investigated the first accident. Trooper Thomas directed the EHFD to stop
traffic by blocking the road with a fire truck. N.T. at 29; R.R. at 145a.


             The trial court concluded that the State Police was negligent in its
control of the fire truck at the accident scene, including specifically, the order
provided by Trooper Thomas to the EHFD to take the fire truck and block the
northbound lane.     The trial court reasoned that Trooper Thomas issued this
directive even though vehicles in the earlier accident were at rest in the southbound
lane. The trial court determined:



                                          5
Plaintiff [James] avers that Defendant, Pennsylvania
State Police were [sic] negligent, by and through its
actions, in stopping traffic and directing the East
Huntingdon Fire Department to place an emergency
vehicle to block traffic and stop traffic in the northbound
lane, improperly and against regulations, on the date of
the accident, and that said actions fall within the vehicle
liability exception of Sovereign Immunity. In contrast,
Defendant, Pennsylvania State Police avers that the
plaintiff [James] has failed to state a cause of action
under the motor vehicle exception to Sovereign
Immunity, citing caselaw that the vehicle must be in
operation, or actually in motion. . . . Defendant [State
Police] further argues that flashing lights do not
constitute ‘operation’ of a vehicle for the purposes of the
vehicle exception to Sovereign Immunity.
....
Based upon a review of this matter, the Court concludes
that the Defendant, Pennsylvania State Police were [sic]
negligent in their [sic] control of the emergency vehicle
at the accident scene, including specifically, the order or
direction provided by the State Police Trooper to the East
Huntingdon Township Fire Department to take their [sic]
fire truck and block the northbound lane. . . . Further,
Trooper Thomas began an accident reconstruction in the
northbound lanes but admitted that the criteria for an
accident reconstruction had not been met in that the at-
fault driver was deceased. . . . Moreover, the Court
accepts Plaintiff’s [James] arguments as to the operation
of the flashing lights on the emergency vehicle placed in
the roadway to block traffic. It is reasonable to infer that
the fire truck placed by the State Police had its flashing
lights turned on, in order to alert drivers to the situation.
Plaintiff [James] argued that the fire truck had utilized its
emergency lighting system and cited caselaw in support
of the argument that the movement of any part of
attachment to a vehicle can result in the vehicle being
considered in operation, if the movement of that part is
incidental to the normal operation of the vehicle. . . .
Plaintiff [James] argued that the purpose and existence of
the fire truck in this case was to block the road, using its
lights and attachments, and that it had accomplished its
purpose.

                             6
            The Court also is persuaded that the emergency vehicle
            fire truck should not have been directed by the
            Pennsylvania State Police to be placed in the middle of
            the road, based upon the fact that the accident did not
            meet the criteria for accident reconstruction . . . .
            ....
            While it is acknowledged that two reasonable individuals
            analyzing the same set of facts and legal principles may
            differ as to their proper application, in this case, the
            Court views the scales of justice as tipping ever so
            slightly in favor of plaintiff [James]. The conclusion
            drawn by this Court is that the totality of the
            circumstances resulted in the emergency vehicle, the fire
            truck was ‘in operation’, as it was specifically directed by
            the police state trooper to be placed in the middle of the
            road for the purpose of blocking traffic and alerting
            traffic to the situation. Accordingly, the Court finds that
            these actions fall within the narrow exception to
            sovereign immunity, and specifically, the vehicle liability
            exception, at 42 Pa.C.S.A. [sic] §8522(b)(1). The Court
            finds that the totality of said actions constitute the
            ‘operation of any motor vehicle’ in the possession or
            control of a commonwealth party.

            Finally, although the defendant [State Police] cites
            numerous cases as to specific examples that support the
            State Police’s legal argument, all cases are fact specific,
            and the Court has drawn its conclusions from the unique
            facts of this case. Upon review of all the evidence, the
            Court finds that defendant Pennsylvania State Police was
            negligent in the control and operation of a motor vehicle
            on December 13, 2000. Accordingly, this matter falls
            within a narrow exception to the sovereign immunity
            statute.
Trial Court Opinion, August 12, 2013, at 4-7; R.R. at 619a-622a.


            The trial court determined that the State Police was negligent in its
control of the emergency vehicle and that this negligence was a factual cause in

                                         7
bringing about the harm to James. Pursuant to the State Police’s motion, the trial
court amended its order to add the language necessary for the State Police to
pursue an interlocutory appeal pursuant to 42 Pa.C.S. §702(b). On October 23,
2013, this Court granted the State Police’s petition for permission to appeal.


              The State Police contends that the trial court erred when it determined
that the State Police’s action, where it directed the EHFD to place a fire truck in a
traffic lane to close a road and to set up a detour, constituted operation of a motor
vehicle in possession or control by a Commonwealth party under the motor vehicle
exception to sovereign immunity.3


              Initially, the State Police contends that James’s claims do not fall
within the motor vehicle exception to sovereign immunity because the fire truck
was not in operation at the time of the accident.


              Section 8521(a) of the Judicial Code, 42 Pa.C.S. §8521(a), provides in
pertinent part: “Except as otherwise provided in this subchapter, no provision of
this title shall constitute a waiver of sovereign immunity for the purpose of 1
Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or
otherwise.”




       3
              In the case of a non-jury trial verdict, an appellate court’s review including this
Court is to determine whether the findings of fact made by the trial court are supported by
competence evidence and whether the trial court committed an error of law. Allegheny Energy
Supply Company v. Wolf Run Mining Company, 53 A.3d 53 (Pa. Super. 2012).



                                               8
             Section 8522(a)-(b)(1) of the Judicial Code, 42 Pa.C.S. §8522(a)-
(b)(1), provides:

             (a) 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
             section 8528 (relating to limitations on damages),
             sovereign immunity as a bar to an action against
             Commonwealth parties, for damages arising out of a
             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.

             (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. 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. (Emphasis added).


             The State Police argues that the fire truck was not in “operation” for
purposes of the motor vehicle exception because it was stationary or parked.


             In North Sewickley Township v. LaValle, 786 A.2d 325 (Pa. Cmwlth.
2001), petition for allowance of appeal denied, 797 A.2d 918 (Pa. 2002), this
Court addressed the applicable law involving the motor vehicle exception to
sovereign immunity. On April 3, 1999, at approximately 2:25 a.m., Police Officer


                                         9
Raymond Peters (Officer Peters) of the North Sewickley Township (Township)
Police Department had been conducting a patrol on River Road in the Township
when he observed an abandoned vehicle stopped next to the southbound lane of
River Road. Officer Peters pulled over and stopped in the southbound lane and
faced oncoming traffic. The headlights of the police car were on. Officer Peters
left his vehicle to investigate the abandoned car. While Officer Peters did so,
Michael LaValle (LaValle) rode his motorcycle in a southbound direction on River
Road toward the police car. LaValle became disoriented and tried to steer his
motorcycle to the right side of the police car. He hit the police car and suffered
serious bodily injuries. LaValle, 786 A.2d at 326-327.


              LaValle commenced an action against the Township and Officer
Peters based on negligence. LaValle alleged that the police car had its high beams
on but the overhead lights were not activated. The Township and Officer Peters
moved for a judgment on the pleadings on the basis that they were immune from
liability under Sections 8541-8542 of the Judicial Code, 42 Pa.C.S. §§8541-8542,
and that the motor vehicle exception did not apply. 4 The Court of Common Pleas
of Beaver County denied the motion. An interlocutory appeal to this Court was
granted. LaValle, 786 A.2d at 327.




       4
                These sections are also known as the Political Subdivision Tort Claims Act. Also,
the General Assembly's use of the term “operation” has been interpreted to have the same
meaning in the vehicle exception to sovereign immunity and the vehicle exception to
governmental immunity, even though the two statutes are different in other respects. See Kilgore
v. City of Philadelphia, 717 A.2d 514, 516 n. 2 (Pa. 1998).



                                               10
            This Court reviewed the applicable case law concerning sovereign
immunity and reversed:

            These cases can be synthesized to generalize that
            operation of a vehicle requires movement of the vehicle
            and when the vehicle is not moving, it is generally not
            considered to be in ‘operation’ under the vehicle
            exception. . . . Where an act, however, causing movement
            of a part of a vehicle is directly connected with the injury
            at issue, this Court has found the vehicle exception to be
            applicable. . . .In the matter sub judice, neither the
            vehicle nor a part of the vehicle was moving.

            LaValle asserts, however, that ‘the cause of the accident
            was movement emanating from defendant’s vehicle,
            namely the light beams coming from the vehicle’s
            headlights’ . . . . ‘We are constrained to strictly construe
            the crucial term, i.e., ‘operation’’ . . . . It is unclear from
            the record whether the light beams were alternating
            between high and low beams or the beams remained
            high. Regardless of the high beans [sic], low beams or
            alternating beams and the fact that the beams move
            according to the laws of physics, the laws of
            Pennsylvania on the vehicle exception govern this issue
            and they cannot be strained to conclude that the travel of
            light from the parked police car’s overhead lights and
            headlights to LaValle’s eyes constitutes movement of the
            vehicle under Love [v. City of Philadelphia, 543 A.2d
            531 (Pa. 1988)] and its progeny. The trial court erred by
            denying Appellants’ [Township and Officer Peters]
            motion. (Citations omitted).
LaValle, 786 A.2d at 328.


            Here, it is clear that neither was the fire truck moving nor were any of
its parts moving. Under the well-developed case law, the fire truck does not
qualify as in “operation” under the vehicle exception. The common pleas court
inferred that the fire truck had its flashing lights on. However, in First National


                                          11
Bank v. Department of Transportation, 609 A.2d 911 (Pa. Cmwlth.), petition for
allowance of appeal denied, 614 A.2d 1144 (Pa. 1992) this Court held that the
motor vehicle exception did not apply when a motorist collided with a Department
of Transportation vehicle that was parked along a road with its motor running and
lights flashing in part because this Court determined that the vehicle was not in
operation and the injuries suffered were not caused by any moving parts of the
vehicle.    Similarly here, even if the flashing lights were engaged, it did not
constitute “operation” under the motor vehicle exception. The trial court erred
when it determined that an exception to sovereign immunity applied in this case.5


              Accordingly, this Court reverses.




                                            ____________________________
                                            BERNARD L. McGINLEY, Judge




       5
                The State Police also contend that because it was not in possession or control of
the fire truck that the motor vehicle exception did not apply. However, because this Court has
determined that the fire truck was not in operation, this Court need not address this issue.



                                               12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dennis T. James, an individual,         :
Robin James, an individual, and         :
Dennis T. James and Robin James,        :
as Husband and wife                     :
                                        :
             v.                         :
                                        :
Pier L. Chiaradia, an individual, and   :
Commonwealth of Pennsylvania,           :
Department of Transportation, and       :
Pennsylvania State Police               :
                                        :   No. 1770 C.D. 2013
Appeal of: Pennsylvania State Police    :

                                    ORDER

             AND NOW, this 2nd day of September, 2014, the order of the Court of
Common Pleas of Westmoreland County in the above-captioned matter is reversed.




                                        ____________________________
                                        BERNARD L. McGINLEY, Judge
