        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lancelot Robertson,                        :
                  Appellant                :
                                           : No. 1851 C.D. 2015
             v.                            : Submitted: February 26, 2016
                                           :
Port Authority of Allegheny County         :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                            FILED: June 9, 2016

             This matter is an appeal filed by Lancelot Robertson (Plaintiff), pro
se, from an order of the Allegheny County Court of Common Pleas (trial court)
granting summary judgment in favor of the Port Authority of Allegheny County
(Port Authority) on the ground that Plaintiff’s personal injury action against the
Port Authority is barred by sovereign immunity. For the reasons set forth below,
we affirm.
             On July 29, 2014, Plaintiff tripped over a sandbag in a construction
area as he was hurrying toward a Port Authority bus to try to reach the bus and
board it before it left.    (June 1, 2015 Hearing Transcript (H.T.) at 5-6, 13;
Plaintiff’s Pretrial Statement at 1-2.) After he tripped, Plaintiff’s hands hit the side
of the bus and he fell backwards on the sidewalk. (H.T. at 6; Plaintiff’s Pretrial
Statement at 2.) Plaintiff was taken to a hospital emergency room where he was
examined and released following a CT scan or MRI of his head. (Plaintiff’s Dep.
at 34, attached to Defendant’s Motions in Limine as Ex. A.)
               On August 13, 2014, Plaintiff, acting pro se, filed a complaint against
the Port Authority alleging that the bus driver operated the bus “so as to cause his
bus to collide with plaintiff’s body” and seeking damages for headaches and back
pain that he claimed were caused by his fall. The Port Authority pleaded sovereign
immunity as a defense in its answer and new matter. Approximately one month
before trial, it became apparent that Plaintiff was not claiming that the bus ran into
him. Instead, Plaintiff asserted that the Port Authority bus driver was negligent in
letting passengers on and off in the construction zone, approximately a bus length
behind the designated bus stop, rather than waiting for the vehicle in front of the
bus to move when the light changed and stopping at the designated bus stop.
(Plaintiff’s Pretrial Statement at 1-2; Plaintiff’s Dep. at 34-35.) On May 22, 2015,
the Port Authority served a motion in limine on Plaintiff seeking to preclude him
from asserting this claim on grounds that it was barred by sovereign immunity.1
               On June 1, 2015, the day that trial was scheduled to begin, the trial
court held a hearing on this motion in limine at which Plaintiff was given a full
opportunity to state what negligence claims he sought to prove against the Port
Authority at trial and what evidence he intended to present if the case proceeded to
trial. (H.T. at 4-34, 39-47.) The trial court granted the Port Authority’s motion in
limine to preclude evidence based on sovereign immunity, and, following that
ruling, the Port Authority made an oral motion for summary judgment on the


1
  This motion was one of a set of motions in limine filed by the Port Authority. In its motions in
limine, the Port Authority also sought to limit Plaintiff’s damages because Plaintiff had no
medical expert witness.


                                                2
ground that Plaintiff’s action was barred in its entirety by sovereign immunity,
based on the same law and facts raised and argued in its motion in limine. (Id. at
34-39.) After giving Plaintiff an additional opportunity to state what claims and
evidence he intended to present and to respond to this motion, the trial court
granted the motion for summary judgment and dismissed the action with prejudice
on the ground that it was barred by sovereign immunity. (Id. at 39-47; Trial Court
Order; Trial Court Opinion at 1-2, 4-5.) Plaintiff timely appealed the trial court’s
grant of summary judgment to the Superior Court, which transferred the appeal to
this Court pursuant to Pa. R.A.P. 751.2
               Before this Court, Plaintiff asserts two arguments: 1) that summary
judgment could not be granted because the motion was made on the day of trial;
and 2) that he had a legally valid negligence claim against the Port Authority.3 We
conclude that neither of these arguments is meritorious.
               It is error for a trial court to grant summary judgment or judgment on
the pleadings on a motion made on the day of trial where the plaintiff has no notice
that he must respond to the legal issue on which the motion is based and does not
have a full opportunity to respond to the motion. Cagnoli v. Bonnell, 611 A.2d
1194, 1196 (Pa. 1992); School Security Services, Inc. v. Duquesne City School

2
 Our standard of review of the trial court’s grant of summary judgment is de novo and the scope
of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011).
3
  Plaintiff also filed an application for oral argument on January 11, 2016, and, on March 21,
2016, filed an application for relief seeking to place his opposition to the Port Authority’s
motions in limine before the Court. The application for oral argument was denied by the
February 22, 2016 order of the Court directing that the case be submitted on the briefs. With
respect to the second application, the document that Plaintiff seeks to bring to the Court’s
attention is in the certified trial court record and is therefore properly before the Court. It has
been considered by the Court without the need for an application for relief.


                                                3
District, 851 A.2d 1007, 1011 (Pa. Cmwlth. 2004); Moscatiello Construction Co.
v. City of Pittsburgh, 625 A.2d 155, 156-58 (Pa. Cmwlth. 1993). The mere fact
that summary judgment is sought on the day of trial does not, however, require that
the trial court deny the motion; rather, the issue is whether plaintiff has received a
full and fair opportunity to respond to the motion. Phillips v. Lock, 86 A.3d 906,
914-15 (Pa. Super. 2014); see also Pa. R.C.P. No. 1035.3(e)(1) (providing that
“[n]othing in this rule is intended to prohibit a court, at any time prior to trial, from
ruling upon a motion for summary judgment without written responses or briefs if
no party is prejudiced” and that “[a] party is prejudiced if he or she is not given a
full and fair opportunity to supplement the record and to oppose the motion”).
Where the plaintiff has sufficient notice of the issues raised by the summary
judgment motion and a full opportunity to respond and raise any factual and legal
arguments against the motion, the granting of summary judgment on a motion
made on the day of trial is not reversible error. Phillips, 86 A.3d at 911-15
(affirming grant of motion for summary judgment made by defendant on the
morning of trial).
             Here, Plaintiff had both ample notice and an unrestricted and
unimpaired opportunity to oppose the Port Authority’s motion for summary
judgment. Plaintiff received notice over a week before trial of the precise legal
issue, sovereign immunity, and the case law and facts on which the summary
judgment was based, as these legal and factual arguments were set forth in the Port
Authority’s motion in limine. (Defendant’s Motions in Limine at 2-8.) The trial
court gave Plaintiff extensive opportunities at the motion in limine hearing to
respond to the summary judgment motion and show that he intended to present
evidence at trial that would support a negligence claim not barred by sovereign


                                           4
immunity. (H.T. at 4-34, 39-47.) Notably, Plaintiff has not set forth in this appeal
any evidence or legal arguments that he did not have the opportunity to present to
the trial court and argues in his brief only the same facts that the trial court
considered. Because Plaintiff was given a full and fair opportunity to oppose the
Port Authority’s summary judgment motion, the trial court did not err in ruling on
the motion and granting summary judgment on the day of trial. Phillips, 86 A.3d
at 914-15.
             The trial court also correctly held that Plaintiff’s action is barred by
sovereign immunity. Agencies of the Commonwealth of Pennsylvania are immune
from personal injury suits except to the extent expressly permitted by a statutory
waiver of sovereign immunity.       42 Pa. C.S. § 8521; Mosley v. Southeastern
Pennsylvania Transportation Authority, 842 A.2d 473, 475 (Pa. Cmwlth. 2003).
The Port Authority is a Commonwealth agency protected by sovereign immunity.
Marshall v. Port Authority of Allegheny County, 568 A.2d 931, 933-34 (Pa. 1990);
Mannella v. Port Authority of Allegheny County, 982 A.2d 130, 132 (Pa. Cmwlth.
2009).
             Section 8522 of the Judicial Code grants a limited waiver of sovereign
immunity where two requirements are met: 1) the Commonwealth agency’s act
that injured the plaintiff is a negligent act for which the damages would be
recoverable against a non-government defendant and 2) the Commonwealth
agency’s negligent act falls within one of the nine exceptions set forth in Section
8522(b). 42 Pa. C.S. § 8522(a); Dean v. Department of Transportation, 751 A.2d
1130, 1132 (Pa. 2000); Mannella, 982 A.2d at 132; Mosley, 842 A.2d at 475. The
exceptions to sovereign immunity in Section 8522(b) are to be interpreted
narrowly, in accordance with the Legislature’s intent to insulate the


                                         5
Commonwealth and its agencies from tort liability. Dean, 751 A.2d at 1132;
Mosley, 842 A.2d at 475.
               Plaintiff’s claim against the Port Authority does not fall within any of
the Section 8522(b) exceptions to sovereign immunity.                      The only relevant
exception is the motor vehicle exception, Section 8522(b)(1), which waives
immunity for damages caused by negligent acts in “[t]he operation of any motor
vehicle in the possession or control of a Commonwealth party.” 42 Pa. C.S. §
8522(b)(1). The mere fact that the plaintiff alleges negligence by a driver of a
Commonwealth agency vehicle is not sufficient to bring an action within this
exception. Because Section 8522(b)(1) waives sovereign immunity only for claims
arising out of negligence in the “operation” of the vehicle, suit is permitted only
where the negligent act involves movement of the vehicle or some part of the
vehicle. White v. School District of Philadelphia, 718 A.2d 778, 780-81 (Pa.
1998); Love v. City of Philadelphia, 543 A.2d 531, 532-33 (Pa. 1988);4 Mannella,
982 A.2d at 133-34; Miller v. Erie Metropolitan Transit Authority, 618 A.2d 1095,
1097 (Pa. Cmwlth. 1992); First National Bank of Pennsylvania v. Department of
Transportation, 609 A.2d 911, 914 (Pa. Cmwlth. 1992).
               The actions and decisions of the driver as to where to stop the vehicle
to let on or discharge passengers does not constitute “operation” of the vehicle
under Section 8522(b)(1).          Mosley, 842 A.2d at 475-76; Warrick v. Pro Cor
Ambulance, Inc., 709 A.2d 422, 426-27 (Pa. Cmwlth. 1997), aff’d, 739 A.2d 127


4
  While White and Love involved the motor vehicle exception to local governmental immunity,
42 Pa. C.S. § 8542(b)(1), because the motor vehicle exceptions in both statutes are similar and
the immunity statutes are to be interpreted consistently, these decisions are equally applicable to
the interpretation of Section 8522(b)(1) . Mosley, 842 A.2d at 476 n.3; First National Bank of
Pennsylvania v. Department of Transportation, 609 A.2d 911, 914 n.2 (Pa. Cmwlth. 1992).


                                                6
(Pa. 1999). Claims that a transportation authority bus driver was negligent in
where he let passengers on and off the bus are therefore barred by sovereign
immunity. Mosley, 842 A.2d at 475-76 (claim that bus driver was negligent in
deviating from his route to let plaintiff off closer to her home is barred by
sovereign immunity); Warrick, 709 A.2d at 423, 426-27 (claim that bus driver was
negligent in letting children off at the end of the street, rather than at the designated
stop in the middle of the block, is barred by sovereign immunity).
             Here, the only negligence of the Port Authority bus driver that
Plaintiff has asserted is his picking up and discharging passengers in a construction
zone, rather than at the designated bus stop. (Appellant’s Br. at 5-6; H.T. at 7, 16,
21, 24, 42-43; Plaintiff’s Pretrial Statement at 1-2; Plaintiff’s Dep. at 34-35.) That
claim does not fall within the motor vehicle exception and is barred by sovereign
immunity as a matter of law. Mosley, 842 A.2d at 475-76; Warrick, 709 A.2d at
426-27.
             Plaintiff’s contention that the bus driver violated an alleged Port
Authority policy (Plaintiff’s Dep. at 34; Plaintiff’s Opposition to Defendant’
Motions in Limine at 1) does not change this conclusion. Whether there is a
violation of agency policy goes only to the question of whether the conduct was
negligent, and does not alter the scope of the motor vehicle exception or make
driver conduct an “operation” of the vehicle. White, 718 A.2d at 781; Mosley, 842
A.2d at 476-77. If the negligent act does not fall within one of the exceptions to
sovereign immunity, the action is barred even if the conduct is a direct violation of
the agency’s rules. Mosley, 842 A.2d at 476-77 (transportation authority was
immune from liability despite driver violation of its rules prohibiting deviation



                                           7
from authorized routes); Warrick, 709 A.2d at 426-27 (transportation authority was
immune from liability despite driver violation of its operating procedure).
             The fact that the bus was in motion when Plaintiff tripped over the
sandbag (H.T. at 6, 15; Plaintiff’s Opposition to Defendant’ Motions in Limine at
1) likewise does not bring his claim within the motor vehicle exception. The motor
vehicle exception does not apply to injuries simply because they occur while a
Commonwealth agency vehicle is in motion. Hall v. Southeastern Pennsylvania
Transportation Authority, 596 A.2d 1153, 1156 (Pa. Cmwlth. 1991) (claim of
negligence in failing to protect passenger from object thrown through trolley
window was not within the motor vehicle exception and was barred even though
trolley was in motion at the time the passenger was hit by the thrown object).
Rather, the motor vehicle exception waives sovereign immunity only where the
negligent act that caused the plaintiff’s injury involved movement of the vehicle or
its parts. Hall, 596 A.2d at 1156; see also 42 Pa. C.S. § 8522(a) (waiver of
sovereign immunity applies only to “damages arising out of a negligent act” that is
within one of the nine exceptions set forth in subsection (b)). Plaintiff did not
claim negligence in how the bus was driven and admitted that the bus did not run
into him.
             Because Plaintiff received a full and fair opportunity to oppose the
Port Authority’s motion for summary judgment and his claim is barred by
sovereign immunity, the trial court’s grant of summary judgment in favor of the
Port Authority is affirmed.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge

                                         8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lancelot Robertson,                     :
                  Appellant             :
                                        : No. 1851 C.D. 2015
            v.                          :
                                        :
Port Authority of Allegheny County      :



                                     ORDER

            AND NOW, this 9th day of June, 2016, the order of June 1, 2015 of
the Allegheny County Court of Common Pleas granting the motion for summary
judgment of the Port Authority of Allegheny County in the above-captioned matter
is AFFIRMED.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge
