Sherman v. City of Philadelphia

FLAHERTY, Judge,

dissenting.

I regretfully dissent. While the majority’s method of resolving this case has the allure of achieving perhaps the most reasonable result, because I am a judge and not a legislator, I cannot join the majority’s opinion. As a judge I am bound by the clear unambiguous language enacted by the legislature and compelled to dissent. What is at stake here is a more crucial principle — the proper role of courts in our democracy in giving effect to the language duly enacted by the legislature.

In the Statutory Construction Act of 1972, the legislature has statutorily mandated to the courts of this Commonwealth what principles of construction the courts are to utilize in interpreting the statutes on which it works so hard to cover every conceivable situation. 1 Thus, we have been instructed that the

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible to give effect to all of its provisions.

(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering among other matters:

1 Pa.C.S. § 1921. The legislature further instructs us that “[wjords and phrases *110 shall be construed according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning.” 1 Pa.C.S. § 1903(a). Although ostensibly engaged in construing the Governmental Immunity Act, inexplicably, nowhere in its entire opinion does the majority even once reference these fundamental principles of construction.

Application of these principles requires that we find the City not hable as the sidewalk at issue herein was not within the right of way of a street owned by the City. Indeed the majority candidly acknowledges as much: “[f]rom even a cursory review of these statutory exceptions to governmental immunity, it is readily apparent, first, that any strict reading of Section 8542(b)(7) would preclude Sherman from recovering for her injuries because the sidewalk on which she fell was not within the right-of-way of a street owned by the City....” Majority op. at 97. Perhaps this is why in the majority’s opinion, not one reference is made to these dispositive principles as they apply to this case. Because the text of the statute clearly precludes recovery here and the majority concedes as much, I dissent to the majority’s reversal of the trial court’s order.

Essentially, the majority reasons that because the sidewalk at issue herein abuts property owned by the City, it constitutes “real property” in the possession of the local agency and thus falls within the real estate exception to the Governmental Immunity Act. The majority concludes so notwithstanding that the legislature specifically defined “real property” as used in this exception to exclude “sidewalks.” Thus, we have the majority concluding that the real property exception applies to the sidewalk herein which is directly contradictory to the legislature’s clear and unambiguous definition of real property which excludes sidewalks. 2

Rather than give effect to the legislature’s clear and unambiguous language as courts are bound to do, the majority seeks to remedy what it perceives to be a lacuna or gap in the legislative scheme of immunity due to the legislature’s alleged failure to contemplate the situation where the City owns the real property abutting a sidewalk but not the cartway which also abuts the sidewalk. The text of the statute, however, does provide for this situation. In no uncertain terms the text of the statute prohibits liability and the majority so concedes. Majority op. at 97.

The majority severs its analysis from the text of the statute in favor of an analysis which “reaches a sensible result.” Majority op. at 105. Thus, severed from the anchor of the text, the majority’s analysis is cast adrift into the murky and unpredictable seas of its own surmise regarding what must have been the legislature’s intent, forgetting that the “intent of the legislature should be gathered from the language of the statute alone where such language is clear and unambiguous” as it concededly is here. F.W. Woolworth Co. v. City of Pittsburgh, 2 Pa.Cmwlth. 338 , 284 A.2d 143, 146 (1971)(emphasis added).

Even if one agrees with the majority’s surmise that the General Assembly, “when it was drafting the exceptions to governmental immunity, did not envision nor consider the situation where the local agency owns the property adjacent to the sidewalk on which the injury occurs and the Commonwealth owns the street abutting the sidewalk”, Majority op. at 105, it does not follow that the solution is for this court by judicial fiat to engraft language onto the legislature’s definition of real property where the engrafted language runs directly contrary to the express words. Latella v. Com., Unemployment Compensation *111 Board of Review, 74 Pa.Cmwlth. 14 , 459 A.2d 464 (1983)(a court cannot supply an apparent omission in a statute even though it appears that the omission resulted from the legislature’s failure to foresee or contemplate a case in question). Rather, the solution is to give effect to the clear and unambiguous language, point out the anomalies, and urge the legislature to resolve the problem by enacting proper amendments to the statute.

Because the majority ignores the applicable principles of construction, and fails to give effect to what is concededly the plain meaning of the text of the statute and instead engages in legislation by judicial fíat, I must dissent.

. As the Governmental Immunity Act was a statute finally enacted after September 1, 1937 and does not provide otherwise, the Statutory Construction Act applies to it. 1 Pa.C.S. § 1502.

. I find it ironic that the majority takes to task the panel in White v. City of Philadelphia, 712 A.2d 345 (Pa.Cmwlth.1998) for ignoring the "plain language of the sidewalk exception" while engaging in the same behavior. See Majority op. at p. 102 n. 5.