# City of Philadelphia v. Melendez > Commonwealth Court of Pennsylvania · June 15, 1993 · 156 Pa. Commw. 271 URL: https://www.frixlaw.com/law-library/cases/9755722 ## Case - **Full name:** CITY OF PHILADELPHIA, Appellant, v. Kathleen MELENDEZ - **Court:** Commonwealth Court of Pennsylvania - **Decided:** June 15, 1993 - **Citations:** 156 Pa. Commw. 271; 627 A.2d 234; 1993 Pa. Commw. LEXIS 361 - **Precedential status:** Published - **Opinion:** Dissent by Friedman - **Judges:** Palladino, Friedman, Silvestre - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755722 ## Opinion text FRIEDMAN, Judge, Dissenting. The majority concludes that the facts of this case do not fall within any of the specifically enumerated exceptions to governmental immunity contained in 42 Pa.C.S. § 8542(b). I disagree with this conclusion and respectfully dissent. Kathleen Melendez was injured when she was attempting to exit from a parking lot onto a street in the City of Philadelphia (the City) and her car was struck by an automobile driven by Richard Klein. She sued both Klein and the City. She alleged that the City was negligent because one of its employees had parked a City owned vehicle on the street in such a manner as to block her view, thereby preventing her from safely exiting onto the public street. The City filed a motion for summary judgment, arguing therein that it was immune from liability under the provisions of 42 Pa.C.S. § 8542. The trial court denied the City’s request for summary relief and also denied its request for reconsideration. The City filed a petition for review in this court, seeking permission to appeal from the interlocutory *278 order denying its motion for summary judgment. Melendez filed a motion to quash the petition for review. By order of December 31, 1992, this court permitted the City to appeal the interlocutory order and denied Melendez’ motion to quash. The majority holds that the facts of this case do not fall within any of the exceptions to governmental immunity contained in 42 Pa.C.S. § 8542(b). There, the Legislature has provided: (b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on the local agency: (1) Vehicle liability. — The operation of a motor vehicle in the possession or control of the local agency.... As I believe that this exception is applicable to the present situation, I believe the trial court' properly denied the City’s motion for summary judgment. 1 The majority rationalizes its reversal of the trial court’s order denying summary judgment to the City as follows: In the present action the trial court denied the City’s motion for summary judgment on the conclusion that the act of parking the vehicle was operation and, therefore, the Tort Claims Act did not preclude governmental liability. However, Melendez has never asserted that the vehicle was being parked at the time of the collision. According the specific fact alleged in Melendez’s complaint and those derived from discovery, the vehicle was already parked at the time of the collision. Therefore, the vehicle was no longer in operation and the motor vehicle exception to the Tort Claims Act does not apply. (Majority opinion, 627 A.2d pp. 275-276, p. 236.) I do not believe that this reasoning can withstand critical scrutiny. *279 The majority relied upon two cases in reaching its conclusion. It first relies upon Love v. City of Philadelphia, 518 Pa. 370 , 543 A.2d 531 (1988). In that case, the driver of a van owned by the City had parked and was assisting an elderly passenger who was exiting the van; the passenger fell and was injured. The Supreme Court, over the dissents of Justices Larsen and Papadakos, held that the act described above did not constitute “operation” of a vehicle as envisioned by the Legislature in 42 Pa.C.S. § 8542(b)(1). I believe there is a crucial difference between assisting a passenger from a parked van and actually parking a vehicle when analyzing section 8542(b)(1). For that reason alone, I believe that Love is distinguishable and does not apply to the present case. The majority also relies upon our decision in First National Bank of Pennsylvania v. Department of Transportation, 148 Pa.Commonwealth Ct. 158, 609 A.2d 911 (1992). In that case, a minor was killed when the car in which he was riding collided with a vehicle which was parked on or near the berm of the road; the vehicle was owned by the Department of Transportation. At the time of the accident, an employee of DOT was sitting in the driver’s seat with the keys in the ignition and the motor running while other employees were preparing to delineators on a state highway. We nonetheless concluded that this fact pattern did not fall within section 8542(b)(l)’s exception to immunity. In reaching this conclusion we relied upon both Love and Pennsylvania State Police v. Robinson, 123 Pa.Commonwealth Ct. 401, 554 A.2d 172 (1989). In the latter case, an accident occurred when a state police vehicle was stopped in the left hand passing lane of a highway while investigating an accident. We held that such conduct was not “operation” of a vehicle for immunity purposes. Robinson relied upon Love in reaching its conclusion. With all due respect, I bélieve that both Robinson and First National Bank were incorrectly decided. As I have already stated, Love is distinguishable and does not support such a result. Furthermore, imagine for a moment that the driver of a government owned vehicle suddenly stopped the vehicle for no valid reason at the front of a line of traffic, thereby starting *280 a chain of rear end collisions. Carrying the rationale of Robinson and First National Bank to its logical end, the governmental entity would be liable if the collision occurred before the government vehicle had not come to a complete stop but would not be if a complete stop had occurred. The Legislature has provided that “[i]n ascertaining the intention of the General Assembly ... the following presumptions may be ... used: (1) That the General Assembly does not intend a result which is absurd....” 1 Pa.C.S. § 1922 (Supp.1992-93). Such a result as set forth in the hypothetical above is, in my view, absurd. For all of the reasons set forth above, I believe that Melendez may be entitled to recover under the vehicle liability exception of section 8542(b)(1). Hence, this dissent. . Summary judgment is proper only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Pa.R.C.P.No. 1035(b). As the Supreme Court has stated, "An entry of summary judgment may be granted only in cases where the right is clear and free from doubt.” Marks v. Tasman, 527 Pa. 132, 134-45 , 589 A.2d 205, 206 (1991). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755722. Public record. Not legal advice.