H. Podejko v. DOT v. H.M. Kastler, of The Estate of J.G. Bunnell

IN THE COMMONWEALTH COURT OF PENNSYLVANIA.

Howard Podejko, Myrtis Podejko :

and Myrtis’s Preschool and Creative :

Learning Center, :

Appellants :

:

v. :

:

Department of Transportation of the :

Commonwealth of Pennsylvania, :

Texas Township, and The White Mills :

Fire Department :

:

v. :

:

Hertha M. Kastler, Executrix of The : No. 714 C.D. 2019

Estate of Joseph G. Bunnell : Argued: May 13, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY

JUDGE COVEY FILED: July 27, 2020

Howard Podejko, Myrtis Podejko (collectively, the Podejkos) and

Myrtis’s Preschool and Creative Learning Center (Preschool) appeal from the Wayne

County Common Pleas Court’s (trial court) February 6, 2019 order granting summary

judgment in favor of the White Mills Fire Department (Fire Department) and

dismissing the Podejkos’ Complaint against the Department of Transportation (DOT),

Texas Township (Township), and the Fire Department for damages to the Preschool

(Complaint). The sole issue for this Court’s review is whether the trial court erred as

a matter of law by concluding that the Fire Department’s 32 Mini Pumper Truck

(Pumper Truck) was not in operation for purposes of the vehicle liability exception

(Vehicle Liability Exception) to what is commonly referred to as the Political

Subdivision Tort Claims Act (Tort Claims Act).1

The Podejkos own and operate the Preschool at 523 Old Willow

Avenue, in Honesdale, Pennsylvania (Property), which is located at the bottom of a

steep embankment from State Route 6 (Route 6/Grandview Avenue) in the Township.

Route 6 flooded in the late afternoon of July 31, 2016, and again during the overnight

hours between August 1 and 2, 2016. Reproduced Record (R.R.) at 22a-25a. The

Fire Department was called to pump the water from the roadway. The Podejkos

asserted that, on both days, “[t]o alleviate the flooding, [the Fire Department] pumped

water located on [Route 6] in the vicinity of [the Property] and then shot that water

into [a shopping plaza (Plaza)] parking lot located at 250 Grandview Avenue . . . and

over the embankment onto [the Property].” R.R. at 15a. They claimed: “The

diverting of flood water onto [the Property] on July 31[], August 1, [] and August 2,

2016 caused substantial damage to [the Property], destroying the playground and

flooding two rooms in the [Preschool].” R.R. at 16a; see also R.R. at 60a.

On April 25, 2017, the Podejkos filed the Complaint, averring therein

that DOT caused Route 6 to flood by negligently failing to clean the storm water

drains on the berm adjacent to Route 6 (see R.R. at 18a-19a),2 that the Fire

Department negligently removed the water from Route 6 (see R.R. at 19a-20a), and

that the Township negligently failed to properly supervise the Fire Department (see

R.R. at 20a-21a). The Podejkos maintain that the Fire Department’s actions fall

within the Vehicle Liability Exception to governmental immunity. See R.R. at 20a.

1

42 Pa.C.S. §§ 8541-8542.

2

DOT owns and maintains Route 6.

2

DOT, the Township and the Fire Department each filed an answer, new

matter and crossclaim, with the Fire Department raising, inter alia, the affirmative

defense of governmental immunity. See R.R. at 33a-39a. DOT joined the Estate of

Joseph G. Bunnell (Estate) as an additional defendant, alleging that runoff from the

quarry operated by the late Mr. Bunnell caused the storm water drain clogs in the first

instance. After the pleadings closed, the parties voluntarily dismissed the Township

from the action.

The Fire Department admitted that it pumped the water into the Plaza

parking lot for approximately 45 minutes on July 31, 2016, and for approximately an

hour overnight between August 1 and 2, 2016, but clarified that the water went into two

separate Plaza drains, and that the Fire Department did not pump water over the

embankment onto the Podejkos’ Property. See R.R. at 22a-25a, 33a-39a, 43a. The Fire

Department claimed that it dispensed the water near the Plaza entrance closest to

Honesdale, a significant distance from the Property. See R.R. at 45a.

During discovery, a Fire Department firefighter who was at the scene on

July 31, 2016, testified that the Fire Department operated the Pumper Truck for

approximately 45 minutes to clear the water that “was almost over the guardrails.”

R.R. at 124a. The firefighter explained that a fan in the front of the Pumper Truck

created suction that pulled water in through a suction hose, and simultaneously

discharged the water from the Pumper Truck’s rear, where the firefighters observed it

go into the Plaza drains. During this time, the Pumper Truck’s engine was running,

but the Pumper Truck was stationary, except for when the firefighters moved it

approximately five to ten feet to get further into the water. See R.R. at 126a-127a.

The Fire Department used the same Pumper Truck and a similar process on August 1

and 2, 2016. The Podejkos did not observe the Fire Department shoot water over the

embankment onto the Property. See R.R. at 50a, 76a-77a, 80a, 82a. Their only

purported evidence that the Fire Department shot water over the embankment onto

3

their Property was Howard Podejko’s hearsay testimony that Plaza business owners

told him that is what occurred. See R.R. at 49a-50a, 82a-83a, 104a-105a.

On November 1, 2018, the Fire Department filed a motion for summary

judgment (Motion). See R.R. at 42a-46a. In the Motion, the Fire Department stated:

19. On October 31, 2018, the [Podejkos] produced an expert

liability report prepare[d] by Michael J. Tuttman, P.E.

[(Tuttman).] A copy of that report is attached as Exhibit D.

20. Per this report, the [Podejkos] are now adding a new

theory of liability against the [Fire Department].

21. In his report, [] Tuttman opines as follows:

The failure of the [Fire Department] to determine

where [its] discharged pumped water would outlet,

and subsequently flow, created an unreasonable

condition which was a cause of the Preschool

flooding and the resulting building damage.

The failure of the Fire Department to adequately

observe the entire Plaza led to the [c]atch [b]asin

above the Preschool (CB-PO4) overflowing

unnoticed. Had the [P]roperty been properly

monitored, the basin observed to be overflowing in

a timely manner, damage to the Preschool could

have been avoided or minimized. See pages 13-14

of Tuttman report, attached as [Motion] Exhibit D

[(see R.R. at 99a-100a)].

22. This new theory of liability does not fall into any of the

exceptions to immunity.

Motion at 4-5 (R.R. at 45a-46a). The Podejkos opposed the Motion, again asserting

that the Fire Department was liable because the Vehicle Liability Exception to

governmental immunity applied. See R.R. at 108a. In their response, the Podejkos

stated: “[R]egardless of which side of the [Plaza] parking lot water was pumped into,

the failure of [the] Fire Department to determine where the water it discharged would

outlet, and its further failure to adequately observe the entire [P]laza property to

4

detect the overflowing and flooding, likely led to the overflowing of the catch basin,

causing the flooding to [the Podejkos’] [P]roperty, as opined by [the Podejkos’]

engineering expert.” Podejko Answer to Motion at 5 (R.R. at 106a).

On February 6, 2019, the trial court granted the Motion and dismissed

the Complaint against the Fire Department with prejudice. The trial court rejected the

Podejkos’ assertion that the Vehicle Liability Exception applied, reasoning that

pumping water from a fire truck does not require any decisions related to transporting

an individual from one place to another. See Podejko Br. App. A. The Podejkos filed

a motion for reconsideration with the trial court, which the trial court denied. See

R.R. at 10a, 141a-144a. Thereafter, the Podejkos settled, discontinued and ended

their action against DOT and the Estate, leaving the Fire Department as the sole

remaining defendant. See R.R. at 10a. The Podejkos appealed to this Court.3

On June 14, 2019, the trial court issued an order pursuant to

Pennsylvania Rule of Appellate Procedure (Rule) 1925(b), directing the Podejkos to

file a Concise Statement of Errors Complained of on Appeal (1925(b) Statement)

3

The law is well settled:

An order of a trial court granting summary judgment may be

disturbed by an appellate court only if the court committed an error of

law; thus, our standard of review is de novo, and our scope of review

is plenary. The entry of summary judgment is proper whenever no

genuine issue of any material fact exists as to a necessary element of

the cause of action. The moving party’s right to summary judgment

must be clear and free from doubt. We examine the record, which

consists of all pleadings, as well as any depositions, answers to

interrogatories, admissions, affidavits, and expert reports, in a light

most favorable to the non-moving party, and we resolve all doubts as

to the existence of a genuine issue of material fact against the moving

party.

Moon v. Dauphin Cty., 129 A.3d 16, 19 n.3 (Pa. Cmwlth. 2015) (quoting LJL Transp., Inc. v. Pilot

Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009) (citations omitted)).

On July 17, 2019, the Office of Attorney General notified this Court that it would not

participate in this appeal.

5

within 21 days (Rule 1925(b) Order). See R.R. at 145a. The trial court’s docket

entries reflect that the order was served on the Podejkos on June 17, 2019. See R.R.

at 11a. On August 6, 2019,4 the trial court issued a Statement of Reasons, wherein it

held: “[The Podejkos] ha[ve] failed to comply with this [trial c]ourt’s Rule 1925(b)

Order. Accordingly, this [trial c]ourt respectfully requests the Commonwealth Court

to consider [the Podejkos’] failure to comply as a waiver of all objections to this

Court’s February 6, 2019 Opinion and Order.”5 R.R. at 147a.

By August 9, 2019 Order, this Court directed: “[T]he parties shall

address in their principal briefs on the merits or other appropriate motion whether

[the Podejkos] preserved any issues on appeal in light of their apparent failure to file

[the Rule 1925(b)] Statement as directed by the trial court.” August 9, 2019 Order. It

appears that, upon receipt of this Court’s August 9, 2019 Order, the Podejkos filed

their Rule 1925(b) Statement. See Podejko Br. App. B. The trial court then filed a

supplemental record with this Court, which included the Podejkos’ Rule 1925(b)

Statement. In a footnote contained in the Podejkos’ Rule 1925(b) Statement, the

Podejkos claimed that their counsel was not served with the trial court’s Rule 1925(b)

Order. See Podejko Br. App. B-1 n.1.

By August 14, 2019 Order, this Court vacated its August 9, 2019 Order

and remanded the matter to the trial court for a determination of whether the Rule

1925(b) Order was served on the Podejkos’ counsel, and a supplemental opinion, if

necessary.6 Thereafter, this Court learned that, on August 8, 2019, the trial court

4

The trial court issued an order on August 5, 2019 for “the Superior Court” to consider the

Podejkos’ failure to comply with its 1925(b) Order a waiver. R.R. at 146a. The trial court filed a

corrected order on August 6, 2019, referring to “the Commonwealth Court.” R.R. at 147a.

5

On August 6, 2019, the trial court issued notice to the parties that it had transmitted the

record to this Court. See R.R. at 11a.

6

In the interim, on August 13, 2019, the Podejkos filed in this Court a designation of the

parts of the record it intended to produce and a Brief Statement of Issues the Podejkos Intend to

Present for Review.

6

issued a Statement of Reasons wherein the trial court explained that its docket entries

did not show entry of the trial court’s Rule 1925(b) Order and, since there was no

evidence that the Rule 1925(b) Order was mailed to the Podejkos, the Podejkos did

not waive any issues on appeal. See Podejko Br. App. C.

Initially,

[t]he [Tort Claims Act] provides the defense of

governmental immunity against any damages resulting from

injury to a person or property caused by any act of a local

agency or its employee. 42 Pa.C.S. § 8541[.] This

governmental immunity, however, is not absolute. Section

8542 of the Judicial Code provides that an injured party

may recover in tort from a local agency if (1) damages

would be otherwise recoverable under common law or

statute; (2) the injury was caused by the negligent act of the

local agency or an employee acting within the scope of his

official duties; and (3) the negligent act of the local agency

falls within one of eight enumerated categories. Id. [(]citing

42 Pa.C.S. § 8542(a)[)]. One of the enumerated exceptions

to the general grant of immunity is the ‘vehicle exception’

for acts involving the ‘operation of any motor vehicle in the

possession or control of the local agency . . . .’ 42 Pa.C.S. §

8542(b)(1).

N. Sewickley Twp. v. LaValle, 786 A.2d 325, 327 (Pa. Cmwlth. 2001) (citations

omitted). More specifically, Section 8542(b)(1) of the Tort Claims Act states, in

relevant part:

The following acts by a local agency or any of its

employees may result in the imposition of liability on a

local agency:

Vehicle liability.--The operation of any motor vehicle in

the possession or control of the local agency . . . . 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.

7

42 Pa.C.S. § 8542(b)(1) (emphasis added). “Finally, in interpreting the [Tort Claims]

Act, exceptions to governmental immunity must be narrowly construed.” Brewington

for Brewington v. City of Phila., 199 A.3d 348, 355 (Pa. 2018).

The Podejkos argue that the trial court erred as a matter of law by

granting the Motion based on its conclusion that the Vehicle Liability Exception does

not apply. They specifically assert that the trial court erroneously interpreted in

operation as requiring one or more decisions relating to transporting individuals from

one place to another, which added a requirement the General Assembly did not

intend. The Fire Department responds that, since its removing of the water from

Route 6 with the Pumper Truck and pumping it into the Plaza drains on July 31 and

August 1 and 2, 2016 did not constitute operation of a vehicle, its actions did not

come within the Vehicle Liability Exception.

The Tort Claims Act does not define operation. However, Pennsylvania

courts have defined the term. We begin our analysis by reviewing the development

of that definition. The Pennsylvania Supreme Court significantly analyzed the

meaning of operation in Love v. City of Philadelphia, 543 A.2d 531 (Pa. 1988).7

Therein, Catherine Love, an elderly, partially-blind woman was injured after she fell

while exiting a city-owned van. Usually, the driver parked the van at the curb in front

of her home, placed a portable step at the van doors and helped her alight from the

van. However, on the date she was injured, she apparently exited the van before the

driver could assist her, and she fell. The city claimed immunity. After a bench trial,

the trial court concluded that the driver’s negligence caused Love’s injuries, and that

the action came within the Vehicle Liability Exception to the Tort Claims Act,

thereby making the city liable. On appeal, this Court reversed, ruling that the Vehicle

Liability Exception did not apply and, thus, the city was immune from liability. On

7

The Pennsylvania Supreme Court overruled Love in Balentine v. Chester Water Authority,

191 A.3d 799 (Pa. 2018).

8

further appeal, after analyzing dictionary definitions and the Pennsylvania No-Fault

Act,8 the Pennsylvania Supreme Court affirmed this Court’s Order, reasoning:

[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. Thus, according to the common and

approved usage of the word ‘operation’, the van was not in

operation at the time of [Love’s] accident. Getting into or

alighting from a vehicle are merely acts ancillary to the

actual operation of that vehicle.

Love, 543 A.2d at 533. Notably, Justice Nicholas P. Papadakos dissented, opining:

Under the majority’s interpretation, one can only be

operating a vehicle if he actually puts it in motion or drives

it. If the legislature so intended, I am sure it is capable of

making such a distinction by using the appropriate

language. The legislature used the term operation of a

vehicle and this includes conduct which is generally

within the intended use of the vehicle and entails the use

of the vehicles appurtenant parts. . . .

Moreover, the term operation cannot be construed without

regard to the facts of this case and the duties of the operator

with respect to the vehicle and [Love].

Love, 543 A.2d at 534 (Papadakos, J., dissenting) (emphasis added).

In subsequent cases, this Court held that operation meant movement of

the vehicle. See Pa. State Police v. Robinson, 554 A.2d 172 (Pa. Cmwlth. 1989)9 (the

State Police was from immune from suit because the state trooper’s vehicle from

which Robinson was retrieving flares was not in motion when Robinson was struck

by another vehicle); Cacchione v. Wieczorek, 674 A.2d 773 (Pa. Cmwlth. 1996)

(operation of a vehicle ends when the vehicle is properly parked); Beitler v. City of

Philadelphia, 738 A.2d 37 (Pa. Cmwlth. 1999) (vehicle operation ended when an

8

Act of July 19, 1984, P.L. 489, as amended, formerly 40 P.S. §§ 1009.101-1009.701,

repealed by the Act of February 12, 1984, P.L. 26.

9

Abrogated by Balentine.

9

officer temporarily stopped to assist a motorist, because the subsequent assisting of

the motorist was a police duty distinct from operating the vehicle).

In Warrick v. Pro Cor Ambulance, Inc., 709 A.2d 422 (Pa. Cmwlth.

1997), aff’d, 739 A.2d 127 (Pa. 1999), this Court further clarified the definition of

operation. In Warrick, a Southeastern Pennsylvania Transportation Authority

(SEPTA) bus driver discharged two school students at an intersection, rather than at

their designated stop at the middle of the block. When the children crossed into the

street in front of the bus, they were struck by an ambulance that illegally passed the

bus and killed one of the children. The child’s estate sued the parties involved.

SEPTA filed a summary judgment motion based on the Vehicle Liability Exception,

and the trial court granted the motion. On appeal, this Court affirmed SEPTA’s

immunity, because the child was not injured by the bus or any moving part of the bus,

stating:

[A] temporary stop connected to the discharge of

passengers is not part and parcel of the operation of a

vehicle. Pennsylvania caselaw limits injuries caused by the

operation of a vehicle to those injuries resulting from the

actual movement of the vehicle or a moving part of the

vehicle.

. . . . [T]o hold that the mere opening of the doors to drop

off a passenger amounts to the type of communication that

could lead to the imposition of liability in sovereign

immunity cases would be an unwarranted expansion of the

motor vehicle exception.

Warrick, 709 A.2d at 427 (citations omitted). Although the Supreme Court affirmed

this Court’s Order on appeal, Justice Sandra Schultz Newman dissented, opining that

the Commonwealth Court applied the Vehicle Liability Exception too narrowly.

Justice Newman declared:

[I]t is impossible to look at the term ‘operation’ of a

motor vehicle in a vacuum and ignore the purpose for

10

which the vehicle is operated, particularly where, as here,

the sovereign is acting as a common carrier in the operation

of its vehicle. In this case, SEPTA serviced a specific bus

route, which regularly transported school children to and

from school. The public, especially children, put their trust

in the driver of a common carrier to stop at the designated

stop, and not at a dangerous location. They assume that the

driver will not let them off the bus in a place where

approaching traffic can not see them.

. . . . The process of operating a vehicle encompasses more

than simply moving the vehicle. When a person ‘operates’

a vehicle, he makes a series of decisions and actions, taken

together, which transport the individual from one place to

another. The decisions of where and whether to park,

where and whether to turn, whether to engage brake lights,

whether to use appropriate signals, whether to turn lights on

or off, and the like, are all part of the ‘operation’ of a

vehicle.

....

The term ‘operation’ reflects a continuum of activity, the

boundaries of which this Court should define. ‘Operation’

does not mean simply moving forward or backwards, but

instead includes the decision making process that is

attendant to moving the vehicle. Had the legislature

intended that recovery was permissible only when the

vehicle was actually in motion, the legislature would not

have used a word that implies a process, such as the term

‘operation.’ Moreover, the term ‘operation’ of a motor

vehicle occurs in other statutory provisions and in those

cases, we have not required that the term ‘operation’ means

that the automobile actually be in motion.

....

. . . . Here, I believe that the act and the decision of where

to discharge the passengers, including this small child,

constitute an integral component to the ‘operation’ of the

SEPTA bus. . . . In reaching this conclusion, I find

persuasive the Third Circuit’s statement in Toombs v.

Manning, 835 F.2d 453, 468 (3[]d Cir. 1987) (en banc) that,

‘the operation of a SEPTA vehicle cannot be divorced

from the purposes of the vehicle’s operation.’ The

Toombs court rejected the rigid analysis that a vehicle is

11

operated only where it is in motion and determined that,

when applied to a common carrier, the term ‘operation’

covered the discharge of passengers from a subway car. I

would adopt a similar analysis as set forth above. This

result is also consistent with a recent decision of this Court

recognizing that the plain language of the motor vehicle

exception encompasses negligent acts related to the

operation of a vehicle. See Mickle v. City of Phila[.], . . .

707 A.2d 1124 ([Pa.] 1998) ([the c]ity not immune where

plaintiff was injured while riding in a [c]ity-owned vehicle

due to negligent maintenance of the vehicle).

Warrick, 739 A.2d at 128-29 (Newman, J., dissenting) (citations and emphasis

omitted; emphasis added).

Thereafter, this Court reviewed the prior operation cases in North

Sewickley Township and held:

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. Cf. Vogel v.

Langer, . . . 569 A.2d 1047 ([Pa. Cmwlth.] 1990)

(momentary stop in traffic was ancillary to operation of bus

and, therefore, bus was in operation). 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 [V]ehicle [Liability] [E]xception to be

applicable. See[,] e.g., Sonnenberg v. Erie Metro[.] Transit

Auth[.], . . . 586 A.2d 1026, 1028 ([Pa. Cmwlth.] 1991)

(injury by the physical closing of a bus door when the bus

was stationary). In the matter sub judice, neither the vehicle

nor a part of the vehicle was moving.

N. Sewickley Twp., 786 A.2d at 328 (emphasis added).

Most recently, in Balentine v. Chester Water Authority, 191 A.3d 799

(Pa. 2018), the Pennsylvania Supreme Court established an expanded definition of

operation. Therein, a water authority (authority) employee approached a roadside job

site where another company (company) was working on the water main, parked the

authority’s vehicle approximately 80% in the roadway, activated the vehicle’s four-

12

way flashers and amber strobe light, and exited the vehicle. A company employee

was working in a ditch between the sidewalk and the curb of the road approximately

10 to 15 feet from the where the authority vehicle was parked. When another vehicle

hit the authority vehicle, the authority vehicle struck and killed the company worker.

The deceased company worker’s estate brought a negligence action against the

authority. The authority filed a summary judgment motion based on governmental

immunity. The trial court granted the motion, holding that the Vehicle Liability

Exception did not apply and, thus, the authority was immune from suit. On appeal, a

divided panel of this Court affirmed the trial court’s decision, holding “that

involuntary movement of a vehicle does not constitute ‘operation’ for purposes of the

[][V]ehicle [Liability] [E]xception to governmental immunity.” Id. at 803.

On appeal from this Court’s decision in Balentine, the Pennsylvania

Supreme Court recognized: “Inherent in whether the Commonwealth Court erred by

holding that involuntary movement does not constitute operation of a motor vehicle,

lies the more fundamental question regarding the relationship between motion and

operation[,]” id. at 808, as addressed by Justice Papadakos in his Love dissent, and as

Justice Newman elaborated in her Warrick dissent. The Pennsylvania Supreme Court

in Balentine adopted Justice Newman’s continuum of activity definition from

Warrick, stating that it “creates a reasonable standard that comports with the intent of

the General Assembly and avoids the illogical results that have flowed from the

emphasis on motion in Love and its progeny.” Id. at 810. Based thereon, the

Balentine Court reversed this Court’s decision and ruled that Balentine pled facts

sufficient to establish a prima facie cause of action in negligence based on acts that

constituted the operation of the authority’s vehicle, such that the Vehicle Liability

Exception applied.

13

Relying on Balentine, the trial court in the instant case concluded:

In the case now before this [trial c]ourt, [the Podejkos]

allege that they have set forth facts sufficient to establish a

prima facie cause of action in negligence against [the Fire

Department] based on acts that constitute the operation of a

motor vehicle. It is undisputed that the [Fire Department]

used fire trucks to draft and then expel water from Route [6]

during the course of which the water made its way onto [the

Podejkos’] [P]roperty. While this action may have caused

[the Podejkos’] [P]roperty to overflow with water and

flood, this does not fall within the [V]ehicle [L]iability

[E]xceptions to governmental immunity.

A close review of the Balentine decision shows that while

‘operation’ is not just strictly ‘to be in motion[,]’[] it does

require ‘a series of decisions and actions, taken together,

which transport the individual from one place to another.’

Id. For instance, in the instant matter, pumping the water

from one area to another does not require any decisions in

transporting an individual from one place to another. If the

water pumping was done manually without the use of the

[Pumper Truck], it would blatantly fall outside of the

immunity exceptions. To say that just because the hose was

connected to the [Pumper Truck] it qualifies as an operation

of a motor vehicle would be a gross deviation to what the

General Assembly meant in drafting the statute. Therefore,

[the Fire Department’s] [Motion] must be granted and the

action against [it] must be dismissed due to [its]

governmental immunity.

Trial Ct. Op. at 6.

Here, the Fire Department’s firefighters transported themselves to Route

6 in the Pumper Truck and parked the Pumper Truck in the roadway where it would

most efficiently remove the floodwater. However, pursuant to Balentine, the

transporting of the firefighters to Route 6 and the proper parking of the Pumper Truck

on Route 6 did not end the Fire Department’s operation of the Pumper Truck.10 The

10

Before Balentine overruled Love, making a vehicle’s purpose part of the analysis, this

Court relied on Love to hold:

14

firefighters also activated the part of the Pumper Truck’s system that removed the

water from Route 6, and directed the water into the Plaza drains.

The Podejkos contend:

The trial court’s interpretation focuses on language from the

Warrick dissent regarding transportation, which was

appropriate in that case because it involved a SEPTA bus,

whose primary purpose was to transport individuals from

one place to another. The trial court’s interpretation

ignores, however, other language from the Warrick dissent

indicating that the court must take into account the purpose

for which the vehicle is operated. A primary purpose of fire

trucks is to draft and discharge water. As such, fire trucks

are ‘in operation’ when drafting and discharging water, as

the [Pumper Trucks] were in this case.

Podejko Br. at 15-16.

The Podejkos are correct. The trial court’s interpretation that the

Pumper Truck’s operation is limited to “decisions [related to] transporting an

individual from one place to another,” Trial Ct. Op. at 6, is too narrow in this

particular case. Based upon Balentine, the courts cannot ignore “the purpose for

which the vehicle is operated[.]” Warrick, 739 A.2d at 128 (Newman, J., dissenting).

Here, the purpose of the Fire Department’s Pumper Truck was not only to transport

firefighters to where they were needed, but its parts were also expressly designed to

In the present case, at the time the hose burst, the two fire trucks were

stopped, were being used to pump water to the fire, and were clearly

not being ‘operated[],[’] as defined by the Supreme Court in Love.

Further, none of the acts involved via use of the attached hose was

even remotely connected to driving or movement of the fire trucks.

When [the plaintiff] was injured, both fire trucks were in stationary

positions and were being used as pumping stations to extinguish the

fire. Any acts associated with use of the hose are ancillary to

operation of either vehicle and are insufficient to justify penetrating

the cloak of immunity afforded to governmental agencies under the

[Tort Claims Act].

Speece v. Borough of N. Braddock, 604 A.2d 760, 762-63 (Pa. Cmwlth. 1992).

15

disperse water onto fires or, in this case, to remove flood waters. Because the Fire

Department controlled the parts of the Pumper Truck that removed the water from

Route 6 and redirected it from the Pumper Truck’s rear, the Fire Department operated

the vehicle.11 Thus, the Vehicle Liability Exception to governmental immunity

applies herein if the Podejkos can prove that the Fire Department was negligent and

that negligence was the proximate cause of the damages to their Property. See 42

11

The Dissent declares that “special consideration must be given in cases involving a

government’s emergency services because the purpose of emergency response vehicles goes beyond

transportation.” Podejko v. The White Mills Fire Dep’t, ___ A.3d. ___, ___ (Pa. Cmwlth. No. 714

C.D. 2019, filed July 27, 2020) (McCullough J., dissenting), slip op. at 2. Thus, the Dissent would

have this Court interpret emergency vehicle operations differently than operations of other vehicles

when they are not being operated on a public highway, such that fire and ambulance companies

would be immune from liability for damages caused by the operation of emergency vehicle

attachments. However, neither the General Assembly nor the courts have heretofore treated

emergency vehicles differently. Although the Supreme Court in Regester v. City of Chester, 797

A.2d 898 (Pa. 2002), and this Court in Speece, reflected on the public duties of the vehicle

operators, neither Court went so far as to recognize a separate or additional public

ambulance/firefighting duty analysis. Moreover, both Regester and Speece were decided before the

Balentine Court overruled Love. Notably, Justice Newman dissented in Regester on the same basis

she did in Warrick (i.e., purpose and continuum of activity) and, based thereon, concluded that she

would have considered the ambulance driver’s failure to follow directions to the victim’s home part

of the operation of the ambulance. Because the Balentine Court adopted Justice Newman’s Warrick

rationale, it is not clear that Regester and Speece would support the Dissent’s proposed post-

Balentine interpretation.

The Dissent further suggests that this Court applied a public firefighting duties analysis in

Wilson v. Dravosburg Volunteer Fire Department No. 1, 516 A.2d 100 (Pa. Cmwlth. 1986), and

Weaver v. Union City, 518 A.2d 7 (Pa. Cmwlth. 1986), in reaching its conclusions. However,

neither the Vehicle Liability Exception nor operation of the fire truck was at issue (or even

discussed) in Wilson or Weaver. Rather, the issue in Wilson was whether a volunteer fire company

was a government unit, and the issue in Weaver was whether the city’s firefighting training exercise

was within the scope of its public firefighting duties.

Finally, the Dissent’s rationale that “the purpose of emergency response vehicles goes

beyond transportation[,]” Podejko, ___ A.3d. at ___, slip op. at 1, is precisely why the Majority

reached its conclusion. Because the Pumper Truck’s purpose goes beyond mere transportation of

firefighters to include water pumping, the operation of the Pumper Truck’s pumping apparatus

(“attach[ed] thereto,” 42 Pa.C.S. § 8542(b)(1),) was considered part of the Pumper Truck’s

operation.

16

Pa.C.S. § 8542(a)(2); see also N. Sewickley Twp. Accordingly, the trial court erred

by granting the Motion.

Based on the foregoing, the trial court’s order is reversed.

___________________________

ANNE E. COVEY, Judge

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Howard Podejko, Myrtis Podejko :

and Myrtis’s Preschool and Creative :

Learning Center, :

Appellants :

:

v. :

:

Department of Transportation of the :

Commonwealth of Pennsylvania, :

Texas Township, and The White Mills :

Fire Department :

:

v. :

:

Hertha M. Kastler, Executrix of The : No. 714 C.D. 2019

Estate of Joseph G. Bunnell :

ORDER

AND NOW, this 27th day of July, 2020, the Wayne County Common

Pleas Court’s February 6, 2019 order is reversed.

___________________________

ANNE E. COVEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Howard Podejko, Myrtis Podejko and :

Myrtis’s Preschool and Creative :

Learning Center, :

Appellants :

: No. 714 C.D. 2019

v. :

: Argued: May 13, 2020

Department of Transportation of the :

Commonwealth of Pennsylvania, :

Texas Township, and The White Mills :

Fire Department :

:

v. :

:

Hertha M. Kastler, Executrix of The :

Estate of Joseph G. Bunnell :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: July 27, 2020

I must respectfully dissent from the Majority’s conclusion that the Fire

Department is liable for damages caused by the alleged negligent operation of its

mini pumper truck to pump water off of Route 6, for two reasons. First, I do not

agree that the Podejkos’ cause of action falls within the motor vehicle exception to

governmental immunity, 42 Pa.C.S. §8542(b)(1), because the conduct is more

closely associated with the public function served by the Fire Department than with

the physical operation of the vehicle itself as a means of transportation. I find it

inconceivable that the legislature or our Supreme Court intended to impose liability

on a volunteer fire department that is performing public firefighting/emergency

duties simply because the negligence involves the operation of mobilized

firefighting/emergency response equipment. Second, applying the construct of

“operation” of a vehicle in the recent Supreme Court opinion in Balentine v. Chester

Water Authority, 191 A.3d 799 (Pa. 2018), and other relevant precedent, underscores

the conclusion that the use of the water pump here does not fit within the ambit of

such precedent.

In my view, special consideration must be given in cases involving a

government’s emergency services because the purpose of emergency response

vehicles goes beyond transportation. More often than not, emergency vehicles

themselves are the very instruments of emergency response. Ambulances,

firetrucks, and police cars are automotive vehicles equipped with specialized tools,

such as the firefighting equipment at issue here. If we construe such mobilized

emergency equipment as “attachments” that would extend the vehicle liability

exception to include acts of negligence committed while operating such equipment,

then fire departments would be subject to liability for any negligent act committed

while putting out a fire with a fire hose - simply because the hose was transported to

the scene on a firetruck. This is a consequence in tension with both the purpose of

the governmental immunity that local emergency responders were meant to enjoy,

and with the rule of strict construction that our courts must apply to the statutory

exceptions to that immunity. See Metro. Edison Co. v. City of Reading, 162 A.3d

414, 421 (Pa. 2017) (“[W]e must narrowly construe and strictly interpret the

exceptions in section 8542.”).

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In fact, our Supreme Court in Regester v. City of Chester, 797 A.2d 898

(Pa. 2002), has already rejected a plaintiff’s attempt to invoke the vehicle liability

exception when the conduct at issue was more closely associated with the emergency

public service involved than it was with the physical operation of the vehicle. In

Regester, the husband of the plaintiff suffered cardiac arrest. Members of his family

called the local emergency services number, requested an ambulance, indicated a

correct street number, and provided accurate driving directions. Emergency medical

personnel traveled to an incorrect address, thus delaying their arrival at the correct

location. When they arrived at the correct location, the emergency medical

personnel were unable to revive Regester.

The Supreme Court held that the vehicle liability exception to immunity

did not apply because the Regesters’ allegations of negligence related not to the

“operation” of the ambulance involved, but rather to other acts of negligence, i.e.,

negligently failing to follow the correct directions given by the 911 dispatcher to the

Regesters’ house. The Supreme Court explained that the form of negligence alleged

by the Regesters (failure to maintain adequate familiarity with the emergency service

area and follow provided directions) was “more closely associated with the public

service involved (ambulance service) than it was with the physical operation of

the vehicle as such.” Id. at 904 (emphasis added). In other words, the conduct was

not the type of conduct that will implicate the vehicle liability exception.

Similarly, in Speece v. Borough of North Braddock, 604 A.2d 760 (Pa.

Cmwlth. 1992), the plaintiff filed suit after being injured when a hose attached to

two fire trucks burst at the scene of a fire. The plaintiff maintained that, as an

attachment to a motor vehicle, a hose is part of the vehicle itself, and thus, negligent

operation of the hose afforded a cause of action against the fire company. In addition

to the “operation of an attachment” theory, the plaintiff also argued that the act of

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pumping water through fire trucks, in conjunction with operation of the attached

hose, represented “operation” of the fire truck itself for purposes of the vehicle

liability exception. Thus, the plaintiff asserted that not only was the attachment

being operated, the fire truck itself was also being operated.

This Court disagreed. First, we held that, at the time the hose burst, the

two fire trucks were “stopped” and therefore they were not being “operated,” as

defined by the Supreme Court in Love v. City of Philadelphia, 543 A.2d 531 (Pa.

1988). However, entirely separate from any reliance on Love, we relied on the fact

that at the time the plaintiff was injured, the fire trucks “were being used as

pumping stations to extinguish the fire.” Speece, 604 A.2d at 762-63 (emphasis

added). Thus, we held that any acts associated with use of the hose were ancillary

to the operation of either vehicle and were insufficient to justify penetrating the cloak

of immunity afforded to governmental agencies. Id. I do not agree with the Majority

that Balentine’s overruling of Love has any impact on this part of Speece.

Regester and Speece are entirely consistent with established case law

holding that a volunteer fire company has immunity when it is performing public

firefighting duties. If the water pumping was done manually, without the use of the

mini pumper truck, there would be no question that it would fall outside of the

immunity exceptions. A volunteer fire department is no less eligible for immunity

merely because the alleged negligent conduct somehow tangentially includes a

vehicle. See Wilson v. Dravosburg Volunteer Fire Department No. 1, 516 A.2d 100

(Pa. Cmwlth. 1986) (applying the public firefighting duties analysis and holding that

a volunteer fire company had immunity from liability for pollution, which the fire

company caused when chemicals that it was using to clean up a diesel fuel spill on

a highway polluted a lake); Weaver v. Union City, 518 A.2d 7 (Pa. Cmwlth. 1986)

(granting immunity to a volunteer fire company for property damages which

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occurred during a fire set by the volunteer fire department during a firefighting

training exercise because the training exercise was within the scope of the volunteer

fire company’s public firefighting duties).

Obviously, a volunteer fire department is subject to the same liability

with respect to the operation of its firetrucks as applies to other motor vehicles while

being operated upon a public highway. See Radobersky v. Imperial Volunteer Fire

Department, 81 A.2d 865, 867 (Pa. 1951) (holding that a volunteer fire company has

immunity while engaging in the prevention and control and extinguishment of fires,

but such immunity did not shield the fire company while it was returning from

participation in a parade and that, in such instance, the company was subject to the

same liability with respect to its fire truck as applies to other motor vehicles while

being operated upon a public highway). However, that is not the case here.

Here, when the Podejkos’ day care center was flooded, the mini pumper

truck was being used as a pumping station to pump flood waters off of Route 6.

Applying the above rationale, I would hold that the act of pumping water from a

public roadway is “more closely associated with the public service” of firefighting

than it is “with the physical operation of the vehicle as such.” Regester, 797 A.2d at

904. The Fire Department must be granted immunity because it was engaged in the

act of remedying a hazardous condition at the time it pumped water over the

embankment.

By applying the vehicle liability exception to this case, the Majority has

effectively extinguished the legislature’s grant of immunity to volunteer fire

companies for alleged negligent acts committed in the performance of their public

firefighting/emergency service duties any time a volunteer fire department uses a

firetruck. As a result, there will be no government immunity for a political

subdivision’s or local agency’s emergency service providers any time they use a

PAM - 5

specialized vehicle. I submit that this is the exact opposite of what the legislature

intended.

The Pennsylvania Supreme Court instructs the “clear intent” of the Tort

Claims Act is to insulate local agencies and political subdivisions from exposure to

tort liability and strictly construes exceptions to immunity. Lockwood v. City of

Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000). The Majority fails to adhere to this

precept, and instead goes out of its way to fit this fact pattern into the exception. In

so doing, the Majority engages in a broad “in operation” analysis. This approach

will eventually lead to a de facto abrogation of the immunity granted to government

emergency service providers because police, fire, emergency medical services, and

animal care and control all use their vehicles to carry out their emergency service

duties. Under the Majority’s reasoning, it is difficult to imagine a situation where

an emergency vehicle will not be considered to be “in operation.” As a result, the

exception will swallow the rule.

I also disagree with the Majority’s conclusion that Balentine requires

that we find the mini pumper truck was “in operation.” Balentine involved a driver’s

decision to leave a vehicle parked partly on a highway. The Balentine Court clarified

that a vehicle need not be “in motion” in order for the vehicle liability exception to

apply. That case did not involve an emergency services vehicle, and did not

overrule, let alone consider, that a volunteer fire company has immunity when it is

performing public firefighting/emergency service duties. Rather, Balentine

addresses the scope of liability when engaged in “operation” of a vehicle relating to

compliance with or violation of safety and highway traffic laws.

By misreading Balentine, and expanding the vehicle liability exception

to include the operation of specially equipped vehicles designed to fight fires and

pump water, the Majority has moved away from what is supposed to be a narrow

PAM - 6

vehicle liability exception, to capture conduct which was indisputably within the

Fire Department’s firefighting/emergency services duties. This cannot be what the

legislature intended when it enacted the Tort Claims Act and the exceptions.

Mishaps involving emergency service vehicles warrant a special

analysis which must start with a threshold question of whether the alleged negligent

conduct at issue was performed while the emergency service provider was engaged

in the performance of emergency services. The question is whether the vehicle is

being used as a mode of transportation, in which case liability may lie, or whether it

instead is being used solely in its function as a tool of emergency response, in which

case the injury is not attributable to the “operation of [a] motor vehicle.” 42 Pa.C.S.

§8542(b)(1) . Here, the injury occurred while the firetruck was being used as a

pumping station, not during the firetruck’s operation as a motor vehicle.

In sum, I believe that the Majority incorrectly construes the exception

so broadly so as to find liability even when a government’s emergency service

provider is engaged in the performance of its public function - which is exactly what

the legislature’s grant of immunity was intended to avoid.

For the above reasons, I respectfully dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge

Judge Ceisler joins this dissent.

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