[ J

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MIDDLE DISTRICT

VICTORIA BALENTINE, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF EDWIN OMAR MEDINA

FLORES, DECEASED,

Appellant

v.

CHESTER WATER AUTHORITY, WYATT A. ROLAND, MICHAEL W. ROLAND AND CHARLES MATTHEWS,

Appellees :

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: No. 119 MAP 2016

Appeal from the Order of the Commonwealth Court dated June 3, 2016 at No. 1859 CD 2015 Affirming the Order of the Delaware County Court of Common Pleas, Civil Division, dated September 2, 2015 at No. 13

- 11179.

ARGUED: September 13, 2017

CONCURRING O PINION

JUSTICE BAER DECIDED: August 21, 2018

I agree with the Majority that the motor vehicle exception to governmental

immunity under the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S.

§§ 8541

- 8542 1 applies under the circumstances presented in this case because the

vehicle at issue was in “operation” at the time of the accident. I further agree with the

Majority that, in deciding whether a motor vehicle is in “operation” for purposes of the

motor vehicle exception, the proper test to apply is that which is set forth in the dis sent

penned by our distinguished former colleague, Justice Sandra Schultz Newman, in

1 The motor vehicle exception to the Tort Claims Act provides that “[t]he operation of any motor vehicle in the possession or control of the local agency” is an act that may result in the imposition of liability on a local age ncy. 42 Pa.C.S. § 8542(b)(1).[ J

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Warrick v. Pro Core Ambulance, Inc. , 739 A.2d 127 (Pa. 1999) (Newman, J.,

dissenting). I disagree, however, with the Majority to the extent that it overrules this

Court’s decision in Love v. City of Philadelphia , 543 A.2d 531 (Pa. 1988) , in reaching its

decision today

.

Love involved a woman who fell while exiting a van own ed by the City of

Philadelphia. The very specific issue this Court addressed on appeal was “ whether the

act of entering into or alighting from a motor vehicle constitutes operation of that vehicle

under 42 Pa.C.S. § 8542(b)(1). ” Love , 543 A.2d at 532. The Court decided that narrow

issue in the negative, concluding that “[g]etting into or alighting from a vehicle are

merely acts ancillary to the actual operation of that vehicle.” Id. at 533. In so doing,

however, the Court made the f ollowing additional observation about the term “operation”

that have served as the impetus for the confounding developmen t of the law in this

area:
[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 Mrs. Love’s accident.

Id. (emphasis in original).

Because this language is untethered to the narrow question addressed in Love , it

constitutes dicta

. U nfort unate ly, this dicta equating “operation” with “movement ”

spurred a line of cases

, primarily from the Commonwealth Court

, which perpetuat e d the

false equivalency of “operation” and “motion.” By way of an extreme example, in Wright

v. Denny

, 33 A.3d 687 (Pa. Cmwlth. 2011), a passenger onboard a Southeastern

Transportation Authority (SEPTA) bus was injured when the bus was rear

- ended by

another vehicle while it was at a stop at an intersection. Citing Love ’s dicta quoted

above, the Commonwea lth Court interpreted Love to hold that “the exception to[ J

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immunity does not apply where the vehicle is stopped.” Id. at 690. Thus, t he

Common wealth Court held that “the SEPTA bus was not in motion, and therefore, not in

‘operation’ when the accident occu rred.” Id. at 691. 2

T his decision, as well as those encapsulated in footnote 2, emana te not from

Love ’s holding that ingress and egress from a parked vehicle does not constitute

“operation” thereof

, but, rather, from the gratuitous dicta contained with in that opinion

and quoted above, which unnecessarily equates movemen t and operation. Accordingly,

I would honor stare decisis and reaffirm this Court’s actual holding in Love

. However

, to

the extent any precedent in this Commonwealth turned on the application of the dicta in

Love as opposed to its holding , I would disapprove them

. Justice Donohue joins this concurring opinion.

2 Additional Commonwealth Court cases following the dicta in Love include, among other decisions

, Pennsylvania State Police v. Robinson , 55 4 A.2d 172 (Pa. Cmwlth. 1989) ( holding that a state police vehicle

, temporarily parked in the passing lane of an interstate highway while the officer inside the vehicle investigated an accident

, was not in operation at the time another vehicle struck a person obtaining flares from the police vehicle’s trunk) ; First National Bank of Pennsylv ania v. Department of Transportation

, 609 A.2d 911 (Pa. Cmwlth. 1992) ( holding that a PennDOT truck not in motion, but rather parked on or near the berm of a road , with a PennDOT employee in the driver’s seat and two others in the truck bed, the moto r runn ing, and the flashing lights activated, was not in operation at the time another vehicle collided with it) ; and Beitler v. City of Philadelphia , 738 A.2d 37 (Pa. Cmwlth 1999) ( hol ding that a city police vehicle that was again not in motion, but was tempora rily stopped in the lane of an expressway, with its motor running and roof lights activated by an officer

- driver while he was assist ing another motorist, was not in operation at the time another vehicle collided with it).