                           [J-59-2017] [MO: Mundy, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


VICTORIA BALENTINE, INDIVIDUALLY             :   No. 119 MAP 2016
AND AS ADMINISTRATRIX OF THE                 :
ESTATE OF EDWIN OMAR MEDINA-                 :   Appeal from the Order of the
FLORES, DECEASED,                            :   Commonwealth Court dated June 3,
                                             :   2016 at No. 1859 CD 2015 Affirming the
                    Appellant                :   Order of the Delaware County Court of
                                             :   Common Pleas, Civil Division, dated
                                             :   September 2, 2015 at No. 13-11179.
             v.                              :
                                             :   ARGUED: September 13, 2017
                                             :
CHESTER WATER AUTHORITY, WYATT               :
A. ROLAND, MICHAEL W. ROLAND AND             :
CHARLES MATTHEWS,                            :
                                             :
                    Appellees                :


                                CONCURRING OPINION


JUSTICE WECHT                                          DECIDED: August 21, 2018
      I join the Majority’s Opinion in full. Justice Benjamin Cardozo recognized that,

“when a rule, after it has been duly tested by experience, has been found to be

inconsistent with the sense of justice or with the social welfare, there should be less

hesitation in frank avowal and full abandonment.” B. CARDOZO, THE NATURE         OF THE

JUDICIAL PROCESS 150-51 (1921). I do not lightly join the Majority in abrogating Love v.

City of Philadelphia, 543 A.2d 531 (Pa. 1988), mindful as I am of our general adherence

to the principle of stare decisis, the importance of which Chief Justice Saylor extols in

his dissent. However, against the critical importance of stability we must balance our

duty as a court of last resort to refine or even abandon precedent when time and

experience reveal its infirmity. See Tincher v. Omega Flex, Inc., 104 A.3d 328, 351 (Pa.
2014) (“[W]e have long recognized that the doctrine of stare decisis is not a vehicle for

perpetuating error, but a legal concept which responds to the demands of justice and,

thus, permits the orderly growth processes of the law to flourish.”) (internal quotation

marks omitted); Flagiello v. Pa. Hosp., 208 A.2d 193 (Pa. 1965) (“Stare decisis

channels the law. . . . [It] does not demand that we follow precedents which shipwreck

justice.”).

        As ably articulated by the Majority, the case at hand requires us to consider

whether, as this Court held in Love, “motion,” involuntary or otherwise, is implicit in

“operation” for purposes of determining whether the vehicle liability exception to

governmental immunity applies.       See 42 Pa.C.S. § 8542(b)(1).    “Motion,” as such,

appears nowhere in the statute, and the statute speaks in terms of “[t]he operation of

any motor vehicle,” not “operating any motor vehicle,” id. (emphasis added), a

distinction that strikes me as important.      See Maj. Op. at 15 (distinguishing “the

operation of” from the hypothetical requirement that a vehicle must be “in operation to

impose liability”) (emphasis added).          As prior case law makes clear, and

notwithstanding the confidence of this Court’s prior pronouncements, the legal and

standard dictionary definitions do not speak clearly. 1

        The “motion” requirement, therefore, is Love’s encrustation upon the motor

vehicle exception. It has forced upon our courts a cramped definition of what “the

operation” of a motor vehicle entails, and the consequences could not be more clear.

As the Majority lays bare in its recitation of the competing cases relied upon by the

lower courts and the parties in this case, precedents abound that interact uneasily and

lead to results that defy common sense. See Maj. Op. at 9-12.

1      See Maj. Op. at 6-7 (excerpting and discussing the Love Court’s reliance upon
various dictionaries).



                              [J-59-2017] [MO: Mundy, J.] - 2
       Like the Majority, I believe that the time has come for Love to join those

surpassingly rare cases that prove so problematic in practice that they must yield to

superior alternatives. For all the reasons stated by the Majority and more, I believe that

our predecessor Justices Papadakos and Newman anticipated the problems we now

must rectify, and that Justice Newman provided in her Love dissent the most cogent

reading of the vehicle exception, charting our course to a more textually sound and

intuitive approach to applying the exception.     See Maj. Slip. Op. at 13-14 (quoting

Justice Papadakos’ dissenting observation in Love that, had it wanted to create a

“motion” requirement, the General Assembly was capable of employing clearer

language to that effect), 14 (quoting Warrick v. Pro Cor Ambulance, Inc., 739 A.2d 127,

128-29 (Pa. 1999) (Newman, J., dissenting) (“‘Operation’ does not mean simply moving

forward or backwards, but instead includes the decision[-]making process that is

attendant to moving the vehicle.”)).

       Of particular interest is the effect of this Court’s decision in Mickle v. City of

Philadelphia, 707 A.2d 1124 (Pa. 1998). In Mickle, a city van’s wheels fell off, causing

injuries to passengers in that vehicle. Id. at 1125. We stated that “[t]he 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. at 1126 (emphasis added). We

rejected Philadelphia’s immunity defense because the City’s negligent maintenance and

repair of the vehicle caused the wheels to fall off while it was in motion, notwithstanding

that the negligent acts occurred independently of the vehicle’s motion. Id. Thus, Mickle

necessarily raised doubt about Love’s view that a municipality retains immunity when

“acts ancillary to the actual operation of [a] vehicle” cause the injury. Love, 543 A.2d at

533. For Mickle’s denial of immunity to square with Love’s admonition regarding such




                             [J-59-2017] [MO: Mundy, J.] - 3
“ancillary” acts, we must conclude that maintenance performed upon government

vehicles is not “ancillary” to that vehicle’s operation, while simultaneously holding that

operation occurs only when the vehicle is in motion. To so conclude defies logic. Thus,

after Mickle, which followed both Love and the General Assembly’s last amendment to

the motor vehicle exception,2 the exception encompasses “acts of negligence with

respect to the operation of a vehicle,” regardless of whether the vehicle was in motion at

the time of the act of negligence upon which liability is premised. Mickle, 707 A.2d at

543 (emphasis added).3



2      Mickle post-dated Love by approximately ten years and the General Assembly’s
most recent amendments to Section 8542 by three years. This chronology resists Chief
Justice Saylor’s suggestion in dissent that we should glean from the legislature’s failure
to modify the “operation” requirement its tacit endorsement of Love’s interpretation. See
Diss. Op. at 2 (citing, inter alia, 1 Pa.C.S. § 1922(4)). Be that as it may, to the extent
Mickle contradicts Love, and for the reasons that follow I believe it does so substantially,
we just as readily may find tacit approval in twenty subsequent years of legislative
silence regarding Love’s complications after Mickle. The Dissent cites Hunt v. Pa. State
Police, 983 A.2d 627, 637 (Pa. 2009), correctly for the proposition that this Court’s
construction of a given statute has been endorsed when the General Assembly revisits
that statute but does not amend the relevant language. But Hunt also provides that we
may infer indifference to, or approval of, our interpretation of a given statute from its
long-standing silence, noting that “the General Assembly is quite able to address what it
believes is a judicial misinterpretation of a statute.” Hunt, 983 A.2d at 637. As noted,
the legislature has had approximately twenty years to signal its disapproval of Mickle or
to make sense of its inconsistency with Love.
3       In light of the numerous cases cited by the Majority, including in particular the
discussion of Mickle, the Dissent does the Majority a disservice in suggesting that these
amount to nothing more than a “bare assertion” of inconsistent and illogical post-Love
case law. Diss. Op. at 3. Furthermore, the Dissent provides no account of how we
should decide which precedent to stand by when, as with Love and Mickle, a court of
last resort’s cases reveal “accretions and observable inconsistencies” that preclude
faithful reconciliation of the cases’ disparate rationales. Instead, it casts aside the
“tension” aptly identified by the Majority as merely “ostensible” and not “material.” Id.
There is nothing ostensible about the way Mickle contradicts Love’s critical premise, nor
is it sufficient to cite stare decisis and stability in the law to discard the former in favor of
the latter, especially when the former is of more recent vintage.



                               [J-59-2017] [MO: Mundy, J.] - 4
       Two hypothetical examples further highlight the arbitrary and manifestly unjust

results that Love might cause.      Suppose a public employee driving a government

vehicle causes a pile-up by coming to a screeching halt on the Pennsylvania Turnpike.

If motion is necessary to operation, then the motor vehicle exception’s application will

hinge upon whether the first impact occurs immediately before or immediately after the

government vehicle comes to a complete stop. Assuming the vehicle has come to a

stop, passengers injured in a car that struck the halted government vehicle would be

denied a remedy because the car was stationary at the time of impact. However, if

operation includes involuntary motion, as in Cacchione v. Wieczorek, 674 A.2d 773

(Pa. Cmwlth. 1996), see Maj. Slip. Op. at 7-8, then anyone struck by the government’s

car following the impact would have a remedy. Similarly, imagine a government agent

parks and abandons a government vehicle across railroad tracks. A crowded commuter

train strikes the vehicle at high speed and derails catastrophically. Setting aside any

laws peculiar to railroads, the government entity responsible for the vehicle that caused

the derailment would have no liability to the train’s passengers, simply because the

vehicle was not moving at the moment of impact.

       In ascertaining legislative intent we presume that “the General Assembly does

not intend a result that is absurd, impossible of execution or unreasonable,” 1 Pa.C.S.

§ 1922(1). Moreover, as this Court has observed many times over, “it is not for the

courts to add, by interpretation, to a statute, a requirement which the legislature did not

see fit to include.” Pa. Med. Soc. v. Dep’t of Pub. Welfare of the Commonwealth, 39

A.3d 267, 284 (Pa. 2012) (quoting Piper Group, Inc. v. Bedminster Twp. Bd. of

Supervisors, 30 A. 3d 1083, 1092 (Pa. 2011)). Yet Love brazenly added a “motion”

requirement that has, as its only statutory anchor, a questionably narrow definition of

“operation,” and is sustainable on the Love Court’s account only by the employment of




                             [J-59-2017] [MO: Mundy, J.] - 5
dictionary definitions that offer no clear direction on this point. It is now clear that this

addition confounded the common meaning of the legislature’s chosen terminology

viewed in the context of its intended effect, a tension that the courts have sought to

resolve ever since with only limited success. Indeed, the numerous anomalies found in

our and the Commonwealth Court’s post-Love precedent provide powerful evidence that

our case law has departed from both the intent of the General Assembly and common

sense. In hindsight, it is clear that, albeit unintentionally, Love embodied an imprudent

departure from the letter of the motor vehicle exception in pursuit of its spirit in violation

of our rules of construction. See 1 Pa.C.S. § 1921(b).

       Justice Felix Frankfurter once observed that “[w]isdom too often never comes,

and so one ought not to reject it merely because it comes late.” Henslee v. Union

Planters Nat. Bank & Tr. Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting). A

foolish consistency in rigid adherence to stare decisis despite a given precedent’s

failings or unintended consequences is the hobgoblin of bad law—and it is insufficient

reason not to revise the law to reconcile legislative intent with lived experience. Love

has nothing to do with it.

              Justice Todd joins this concurring opinion.




                              [J-59-2017] [MO: Mundy, J.] - 6
