IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Ward

, : Appellant :

:

v. :

: Michael C. Potteiger, Individually; and : Michael W. Raith, Esquire, : Individually; and Alicia Sweeney, : No. 1201 C.D. 2015 Individually : Argued: May 13 , 2016

BEFORE: HONORABLE ROBERT SIMPSON , Judge

HONORABLE ANNE E. COVEY , Judge HONORABL E ROCHELLE S. FRIEDMAN , Senior Judge

OPINION BY JUDGE COVEY FILED: June 9, 2016

Alice Ward (Ward) appeals from the Delaware County Common Pleas

Court’s (trial court) June 9, 2015 order sustaining preliminary objections filed by
Michael C. Potteiger (Potteiger) , Michael W. R ait h (Raith) and Alicia Sweeney
(Sweeney) (collectively, Appellees) to Ward’s Sixth Amended Complaint. The sole

issue before this Cou rt is whether the trial court erred in sustaining the Appellees’
preliminary objections and dismissing Ward ’s Sixth Amended Complaint.

According to the Sixth Amended Complaint, o n January 3, 2012, while
Ward was engaged in her job as a traffic controlle r on Providence Road in Edgemont
Township, Delaware County, Pennsylvania

, she was struck by a vehicle operated by
Nicolas DeSimone (DeSimone). As a result of the accident, D eSimone was
convicted of aggravated assault by vehicle while driving under the inf luence (DUI),
aggravated assault by vehicle while driving under the influence of alcohol or
controlled substance, and possession of a controlled substance, and is currently
serving a prison term.2 Ward also avers in the Sixth Amended Complaint that, a t the time of the
January 3, 2012 accident, DeSimone was a probationer under the supervision of the
Delaware County Office of Adult Probation and Parole (DCOAPP). H ours preceding the accident, DeSimone had met with DCOAPP Officer Sweeney
(Sweeney) as a condit ion of his parole. During the appointment , DeSimone admitt ed
to Sweeney that he was under the influence of a controlled substance ( i.e.

, specifically, heroin) in violation of his probation conditions, and would fail a drug
test. Sweeney did not subject D eSimone to a drug test and, after discussing

DeSimone’s condition with DCOAPP Director Raith, permitted DeSimone to drive

home. The accident occurred a fter DeSimone left his DCOAPP appointment

.

Ward suffered significant injuries and damages as a resu lt of the

accident. On January 3, 2014, Ward filed a Section 1983 action 1 and state law claims

in the United States (U.S.) District Court for the Eastern District of Pennsylvania
against the Commonwealth of Pennsylvania Board of Probation and Parole (Boar d),
Potteiger individually and in his official capacity as the Board’s then

- chairman,
Delaware County, DCOAPP, Raith individually and in his official capacity as
DCOAPP director, and Sweeney individually and in her capacity as a DCOAPP
probation officer. After Ward had filed her second amended complaint, b y September 22, 2014 order, the U.S. District Court dismissed Ward’s federal claims
against the parties, 2 and declined to exercise jurisdiction over Ward’s state claims
against Potteiger, Raith, and S ween ey i n their individual capacities.

1 Section 1983 of the United States Code, 42 U.S.C. § 1983, authorizes civil actions for the deprivation of constituti onal rights.

2 On March 11, 2014, Ward filed an amended complaint. On April 1, 2014, she filed a second amended complaint. However, Ward’s federal claims were dismissed because: (1) the U.S. Constitution’s Eleventh Amendment immunity deprived the court o f subject matter jurisdiction over the Board, the County, DCOAPP, and Appellees in their official capacities; and, (2) Ward failed to state a claim based upon a state

- created danger.3 On November 24, 2014, Ward ’s second amended complaint seeking
damages against Appellees in their individual capacities was filed in the trial court

. Potteiger

, Raith and Sweeney filed preliminary objections in the natur e of a demurrer

on the basis that the action against them is barred by the act commonly referred to as

the Pennsylvania Sovereign Immunity Act (Sovereign Immunity Act)

. 3 Between

December 2014 and March 2015, Ward filed and Appellees preliminarily objected to

three additional amended complaints on similar grounds

.

On April 1, 2015, Ward filed the Sixth Amended Complaint at issue in
this appeal

. Therein, Ward included claims for:

Count I

– Negligence/Gross Negligence/Willful Misconduct against Appellees

Count II

– Constitutional Due Process Violations against Appellees

Count III

– Punitive Damages against Appellees

3 42 Pa.C.S. §§ 8521

- 8528

.
[U] nder the Pennsylvania Rules of Civil Proce dure, immunity from suit is an affirmative defense that must be pled in a responsive pleading under the heading new matter , not as a preliminary objection

. We recognize that courts have permitted limited exception to this rule and have allowed parties to raise the affirmative defense of immunity as a preliminary objection

. The affirmative defense

, however, must be clearly applicable on the face of the complaint

. Where the plaintiff does not object to the improper procedure, courts have ruled on the affi rmative defense of immunity raised by preliminary objections

. Smolsky v. Pa

. Gen

. Assembly , 34 A.3d 316 , 321 n.7 (Pa. Cmwlth. 2011) (citations omitted). Here, Ward did not object to Appell ee s’ improper procedure.
Ward also references in her Sixth Amended Complaint and her brief the act commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. §§ 8541

- 42. However, the Tort Claims Act is applicable to local agencies and their employees. 42 Pa.C.S. § 8541. Because War d’s Sixth Amended Complaint makes claims against individuals acting in the scope and course of their Commonwealth employment, the Tort Claims Act is inapplicable. See footnote 8 infra.4 Count IV

– Vicarious Liability Involving Negligence/Gross Negligence/Willful Misconduct against Potteiger and Raith

Count V

– Civil Conspiracy /Willful Misconduct against Raith and Sweeney

See Reproduced Record (R.R.) at 6a

- 25a.

Potteiger filed preliminary objections to the Sixth Amended Complaint
on the bases that: (1) the trial court lacked jurisdiction over Ward’s claims against

him; (2) he is a high

- ranking public official entitled to absolute immunity; (3) the
Sovereign Immunity Act bars Ward’s negligence and constitutional claims against
him; (4) courts do not recognize money damages for constitutional violations; and,
(5) he is not respo nsible for DCOAPP’s actions or inactions. See R.R. at 34a

- 40a.

Raith and Sweeney similarly filed preliminary objections to the Sixth
Amended Complaint

. 4 Their first preliminary objection was a demurrer to Ward ’ s negligence and willful misconduct claims due to the immunity they enjoy under the
Sovereign Immunity Act (Count I) because there does not exist under these

circumstances actionable claims for money damages for constitutional violations
(Count II), punitive damages (Count III), and civil conspirac y (Count V); and,

because third

- party conduct cannot trigger vicarious liability (Count IV)

. Raith’s and
Sweeney’s second preliminary objection was a demurrer to Count II on the basis that
they are immune from Ward’s constitutional claims. See R.R. at 26 a

- 32a.

By June 9, 2015 or der, the trial court sustained Appellees’ preliminary
objections and dismissed Ward’s Sixth Amended Complaint with prejudice. 5 Ward
appealed to this Court. 6

4 Raith and Sweeney incorporated by reference Potteiger’s prelimina ry objections. See R.R. at 32a.

5 The trial court filed its opinion in accordance with Pa.R.A.P. 1925(a) on September 9,
2015.

6 “ O ur review of a trial court ’ s order sustaining preliminary objections and dismissing a complaint is limited to determining wh ether the trial court abused its discretion or committed an error of law.” Pub. Advocate v. Brunwasser , 22 A.3d 261, 266 n.5 (Pa. Cmwlth. 2011).5 W hen considering preliminary objections , we must accept as true al l well

- pled facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not conclusions of law. Preliminary objections in the nature of a demurrer should be sustained only where the pleadings are clearly insufficient to establish a right to relief and any doubt must be resolved in favor of overruling the demurrer.

Dadds v. Walters , 924 A.2d 740, 742 (Pa. Cmwlth. 2007) (citation omitted).

Ward argues that the trial court erred by sustaining Appellees’
preliminary object ions where the Sixth Amended Complaint , as a whole and
specifically at paragraphs 16, 22

- 27, 33, 39, 53

- 54, 61, 63, 82

- 83 b , 96

- 99, “clearly
and without doubt laid a sufficient factual foundation showing Appellees’ liability . . .
under the vehicle exceptio n to immunity[.]” 7 Ward Br. at 9. S pecifically , Ward

contends that since the Sixth Amended Complaint avers that Appellees had physical
and legal possession of DeSimone’s car keys and, thus, control of his vehicle prior to

the accident

, the Sixth Amended Complaint states a sufficient cause of action for
Appellees to be individually liable for Ward’s damages under the vehicle exception to
the Sovereign Immunity Act.

7 Pennsylvania Rule of Appellate Procedure ( Pa.R.A.P. ) 1925(b)(4)(vii) provides that

“ [i] ssues not included in the [ Pa.R.A.P. 1925(b) Concise] Statement [of Errors Complained of on Appeal] . . . are waived.” Id. I n compliance with Pa.R.A.P. 1925(b)(3)(iii), the trial court’s July 14,
2015 order directed Ward to file a Concise Statement of Errors Complained of on Appeal and therein warned that “ [a] ny issue not properly included in the Statement . . . shall be waived.” R.R. at 79a

, see Pa.R.A.P. 1925(b)(3)(iv)

. In Ward’s Concise Statement of Errors Complained of on Appeal, the sole issue she proffered for this C ourt’s review was whether the trial court erred by sustaining the preliminary objections in light of the vehicle and personal property exceptions under the Sovereign Immunity
Act. See R.R. at 80a

- 81 a . Therefore, we would be constrained to limit our revie w solely to those two issues. However, Ward does not address the personal property exception anywhere in her brief. “[W] here an appellate brief fails to provide any discussion of a claim with citation to relevant authority [,] or fails to develop the issu e in any other meaningful fashion capable of review, that claim is waived. ” Commonwealth v. Johnson , 985 A.2d 915 , 924 (Pa. Cmwlth. 2009). S ince Ward fails to reference or develop a personal property exception argument on appeal, that issue is waived,

an d this Court’s review is limited to whether Ward’s Sixth Amended Complaint states viable individual causes of action against Potteiger, Raith and Sweeney under the vehicle exception to the Sovereign Immunity Act.6 Initially,

[t] he Pennsylvania Constitution provides that the Commonwealth and its offi cers and employees may only be sued where the General Assembly has authorized the suit. Pa. Const. art. 1 § 11. The General Assembly has specified that ‘the Commonwealth, and its officials and employees acting within the scope of their duties, shall cont inue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.’ 1 Pa.C.S. § 2310.

Russo v. Allegheny C

n ty. , 125 A.3d 113, 116 (Pa. Cmwlth. 2015)

. Section 8522(a) o f the Sovereign Immunity Act provides, in relevant

part:

Liability imposed.

-- The General Assembly, pursuant to

section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in [S] ection 8528 [of the Sovereign Immunity Act] (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, [ 8 ] for damages arising out o f a

8 A “ Commonwealth party ” is “[a] Commonw ealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment.” 42 Pa.C.S. § 8501. Section 102 of the Judicial Code defines “ Commonwealth agency [] ” as “[a] ny executive agency or independent agency.” 42 Pa.C.S. § 102

. Executive agencies consist of “the departments, boards

, commissions, authorities and other officers and agencies of the Commonwealth government [.]” Id. (emphasis added). Because the Board is an independent Commonwealth agency, by exte nsion, Potteiger was a Commonwealth party employee entitled to immunity under the Sovereign Immunity Act for acts within the scope of his employment

. See Section 7(a) of the Prisons and Parole Code, Act of August 11, 2009, P.L. 147, as amended , 61 P.S. § 6111(a) ; see also Reiff v. City of Phila.

, 365 A.2d 1357 (Pa. Cmwlth. 1976) (the Sovereign Immunity Act insulates the Board from liability)

.

“ Commonwealth government [] ” is defined as “[t]he government of the Commonwealth, including the courts and other o fficers or agencies of the unified judicial system [.]” 42 Pa.C.S. § 102 (emphasis added). Article 5, Section 1 of the Pennsylvania Constitution vests the Commonwealth’s judicial power “in a unified judicial system consisting of the . . . courts of

commo n pleas . . . .” Pa. Const. art. 5, § 1. A county’s adult probation and parole office is considered an arm of the trial court, rather than the prison system , and thus, the probation department operates under the common pleas court’s authority

. See Commo nwealth v. Druce , 8687 negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.

42 Pa.C.S. § 8522 (a). Section 8522(b) of th e Judicial Code contains the vehicle
liability exception to sovereign immunity as follows:

The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised t o claims for damages caused by :
(1) Vehicle liability.

-- The operation of any motor vehicle in the possession or control of a Commonwealth party

. As used in this paragraph,

‘ motor vehicle ’ means any vehicle which is self

propelled and any attachment theret o, including vehicles operated by rail, through water or in the air.

42 Pa.C.S. § 8522 (b) (text emphasis added)

. 9 Because immunity remains the rule, we

must narrowly construe the exceptions applicable under the Sovereign Immunity Act.

See Gale v. City of Phila. , 86 A.3d 318 (Pa. Cmwlth. 2014); see also Quinones v.
Dep’t of Transp. , 45 A.3d 467 (Pa. Cmwlth. 2012 )

.

In the instant case, Ward contends that paragraphs 16, 22

- 27, 33, 39, 53

- 54, 61, 63, 82

- 83b and 96

- 99 of the Sixth Amended Complaint provide th e factual
foundation for her vehicle liability claim against Appellees. Those averments state:

A.2d 1232 (Pa. Super. 2005) ; see also Commonwealth v. Kelly , 931 A.2d 694 (Pa. Super. 2007); L.J.S. v. State Ethics Comm’n , 744 A.2d 798 (Pa. Cmwlth. 2000) (a county’s chief adult probation officer is a judicial officer) ; Haybarger v. Lawrence C n ty. Adult Prob. & Parole , 551 F.3d 193, 198 (3d Cir. 2008) ( “ Pennsylvania ’ s judicial districts, including their probation and parole departments, are entitled to Eleventh Amendment immunity.”). T herefore, as DCOAPP director and employee,

respe ctively, Raith and Sweeney are also employees of a Commonwealth part y entitled to immunity under the Sovereign Immunity Act for acts within the scope of their employment.

9 Relative to local agencies ( i.e. , those other than Commonwealth agencies), Section 8541 of the Tort Claims Act similarly affords local agencies and their employees immunity if the damages sought are recoverable under common law or statute and were cause d by negligent acts relating to “[t]he operation of any motor vehicle in the possessio n or control of the local agency[.]” 42 Pa.C.S. § 8542(b)(1).8 16. After completing his shopping, DeSimone drove in his car to Media to meet with [] Sweeney at the [DCOAPP] . . . where DeSimone was in effect detained by [] Sweeney for purposes of his required probation visit which included detention and/or physical and legal possession and control over the vehicle and keys DeSimone had operated to get to this meeting and the same vehicle DeSimone would use to leave.

. . . .
22. After knowing of DeSimone’s admissions, . . . Sweeney and [] Raith discussed the content of DeSimone’s admissions and then Sweeney and Raith together agreed that despite at this time having legal and physical possession and control of DeSimone’s vehic le and keys, they would allow DeSimone to leave in the very vehicle he arrived in

.
23. At this time . . . Sweeney and Raith . . . had physical and legal possession/control of DeSimone’s vehicle and as such said vehicle was a Commonwealth vehicle and/or per sonal property

. 24. Despite these admissions by DeSimone while being detained during his probation visit, [] Sweeney affirmatively acted and permitted DeSimone to operate a motor vehicle despite the fact that Sweeney had physical and legal control over the situation and had physical and legal control over [DeSimone]’s vehicle and keys (DeSimone’s personal property a/k/a vehicle).

25. Despite these admissions by DeSimone, [] Sweeney affirmatively acted and permitted DeSimone , who was detained for purpose[s] of the probation visit, to leave and to operate a motor vehicle said vehicle and keys to said vehicle being completely under physical and legal possession and control of [] Sweeney.

26. As a county probation officer, [] Sweeney was a peace officer and had authority throughout the Commonwealth of Pennsylvania to arrest, with or without writ, warrant, rule or process any person on probation for violation of the terms of the probation and also despite already having physical and legal control of DeSimone’s veh icle and keys, had authority to take further legal possession and control of9 DeSimone’s vehicle by preventing the vehicle and keys from being passed back to DeSimone in light of DeSimone’s admissions

. 27. Despite DeSimone’s admitted use of a controlled sub stance during a detained probation visit, [] Sweeney affirmative[ly] acted based on policy and customs, did not arrest or detain DeSimone, nor despite having complete physical and legal control of DeSimone’s vehicle did Sweeney prevent DeSimone from taking what then would be considered County and/or a Commonwealth vehicle and/or personal property

.

. . . .
33. DeSimone drove his motor vehicle past three (3) cautionary signs warning of work in the road and drove straight into [Ward].

. . . .
39. Prior to and during the time that DeSimone injured [Ward] , DeSimone should have been arrested by [] Sweeney and should have been in custody and[/]or DeSimone’s vehicle, which was in the control of [DCOAPP] and Sweeney, should have been retained and possesse[d] by Swee ney.

. . . .
53.

. . . Sweeney did absolutely nothing to either detain DeSimone or to prevent him from operating a motor vehicle after leaving [DCOAPP]

.
54. All [Appellees] were required, obligated and/or duty

bound to properly supervise DeSimone in accord ance with the terms and conditions of his probation.

. . . .
61. At the time that DeSimone admitted to

. . . Sweeney that he had injected himself with heroin and that he had done so in the car that he drove to the [DCOAPP]

, . . . Sweeney should have detain ed DeSimone immediately in accordance with the terms of DeSimone ’ s probation and in accordance with the obligations and/or duties of all [Appellees]

. All10 [Appellees] had the duty to arrest and had control over DeSi [] mone ’ s vehicle at this time

.

. . . .
6 3.

. . . Sweeney ’ s affirmative decision and act while DeSimone was being detained during a probation visit to actively permit DeSimone to leave when DeSimone admitted to his drug use and motor vehicle operation was in dereliction of the obligations and dut ies of all [Appellees] with respect to supervising the probation of DeSimone.

. . . .
83.

. . . Ward ’ s grievous and permanent physical/mental injuries, which vastly exceed any statutory monetary minimum, were caused by the following negligent, grossly

n egligent, reckless, willful disregard, wanton, outrageous and/or deliberately indifferent conduct of [Appellees] jointly and severally as follows:

. . . .
b. Although clearly having physical and legal control and physical and legal possession of DeSimone’ s vehicle and keys to the vehicle, knowingly allowing DeSimone to leave and operate Commonwealth/County vehicular and/or personal property ;

. . . .
97.

. . . Ward ’ s grievous and permanent physical/mental injuries, which vastly exceed any statutory monetary minimum, were caused by the following negligent, grossly negligent, reckless, willful disregard, wanton, outrageous and/or deliberately indifferent conduct of

. . . Potteiger [and] Raith as to their supervisory and managerial oversight/control of [] Sween ey and [] Potteiger ’ s supervisory/managerial oversight/control of [] Raith jointly and severally as follows:

. . . .
b. Although clearly having physical and legal control and physical and legal possession of DeSimone ’ s vehicle and keys to the vehicle,11 know ingly allowing DeSimone to leave and operate Commonwealth/County vehicular and/or personal property ;

. . . .
99.

. . . Ward ’ s grievous and permanent physical/mental injuries, which vastly exceed any statutory monetary minimum, were caused in part AS AFORE SAID, by the agreement of [] Sweeney and Raith, the conspirators, which consisted of inter alia, despite knowing of DeSimone ’ s hellacious but truthful admissions of being high on illegal drugs (as well as being visibly and obviously intoxicated) and know in g that DeSimone operated a vehicle now in the legal and physical possession and control of [] Sweeney and Raith as a Commonwealth and/or County vehicle or personal property, agreeing to allow DeSimone to leave unscathed and to operate said Commonwealth/Cou nty vehicular and/or personal property which was the factual cause of [Ward]’s devastating and permanent injuries [.]

R.R. at 9a

- 24a (underline emphasis in original; bold emphasis added). 10

Accepting as true the well

- pled facts in the Sixth Amended Compla int,

and all reasonable inferences deducible therefrom, as we must, it is clear that
DeSimone physically operated the vehicle that struck and injured Ward on January 3,

2012

. Dadds

. Even assuming, arguendo

, that Raith and Sweeney had control over

DeSimon e’s car keys at some point prior to the accident

, we must determine whether
that is sufficient, as a matter of law, to subject Potteiger, Raith and/or Sweeney to
liability for Ward’s damages.

In order for the vehicle liability exception under the Soverei gn Immunity
Act to apply, the damages must have resulted from the “ operation of any motor
vehicle in the possession or control of ” the Commonwealth party. 42 Pa.C.S. §

10 Ward’s Sixth Amended Complaint paragraphs 82, 96 and 98, incorporate by reference the previously

- pled paragraphs.12

8522 (b) (emphasis added)

. 11 In order to trigger the vehicle liability exception,

Pottei ger, Raith and/or Sweeney had to have operate d the vehicle, and the vehicle

had to be under their control

.

T he Sovereign Immunity Act does not e xpressly define either
“operation” or “control.” However, i n Love v. City of Philadelphia, 543 A.2d 531

( Pa. 1988)

, our Supreme Court expressly held:

[ 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.

Id. at 533 ( bold emphasis added) ; see also Gale ; Bottoms v. Se. Pa. Transp. Auth.

, 805 A.2d 47 (Pa. Cmwlth. 2002). In addition, this Court has held that a stopped
vehicle is not in operation for purposes of the vehicle liability immunity exception

. Knox v. Se. Pa. Transp. Auth. , 81 A.3d 1016 (Pa. Cmwlth. 2013) (wherein a bus
temporarily stopped to discharge passengers was not in operation ) ; see also Bottoms

.

Moreover, i n Gale

, Jose Garriya (Garriya) was handcuffed and placed
into the back of a police cruiser owned by the City of Philadelphia (City). Garriya
was somehow able to commandeer the cruiser and eventually struck a car operated by
Gale, causing Gale serious injuries and damages. Gale sued the City, which assert ed

that it was immune from Gale’s claims , and the tria l court agreed. Gale contended, as

Ward does in the instant case, that the vehicle liability exception applied because both
Garriya and the cruiser were in the City police officers’ custody and control, and their
actions were part of a conti nuous sequence of events that led to her injuries. In
affirming the trial court’s order, this Court held:

11 “ Because the language in the vehicle exception to [the S] overeign [I] mmuni ty [Act] and

to [the Tort Claims Act] is identical, the provisions are interpreted consistently, and cases that address one are applicable to the other. ” Gale , 86 A.3d at 321 n.4.13 The language of the statute and our cases make clear

. . . that where an employee of a local agency has not acted by putting a vehicle in motion [ , ] l iability under the vehicle exception to governmental immunity will not attach . From the face of [Gale] ’ s complaint, it is clear that . . . she is alleging that her injuries arose from the police officers’ failure to prevent [] Garriya from operating the

v ehicle and not from their own operation of a vehicle.

Id. at 322 ( emphasis added )

. Thus, even in a situation in which a government

- owned

vehicle caused the accident, and government employees’ actions or inactions may

have provided access to the vehicle

, i f the vehicle was not actually put in motion by

the government employee s , the vehicle liability exception to immunity i s not
applicable. 12

Here , since DeSimone’s vehicle was stopped at the time Raith and/or
Sweeney purportedly possessed DeSimone’s car keys, see Knox

, and, as in Gale

, Potteiger, Raith and Sweeney did not “ actually put [ DeSimone’s vehicle ] in

motion [

, ] ” we are constrained to hold that they did not operate DeSimone’s vehicle as

12 Ward relies upon Mickle v. City of Philadelphia , 707 A.2d 1124 (Pa. 1998 )

. T he Mickle Court addressed a slightly different aspect concerning the “operation” of a vehicle. In Mickle , a patient sued the C ity of Philadelphia (City) , alleging that he was severely injured when the fire department rescue van into which he was plac ed lost its wheels while en route to the hospital. The trial court granted the patient’s motion for summary judgment . The C ity appealed. This Court affirmed, and the C ity appealed to our Supreme Court which held that the C ity’s negligent maintenance and repair of the fire department’s rescue van was “ the operation of a motor vehicle” within the meaning of the motor vehicle exception to governmental immunity. Id. at 1126. The Mickle Court stated:

Negligence related to the operation of a vehicle encompa sses not only how a person drives but also whether he should be driving a particular vehicle in the first place. The motor vehicle exception does not say that liability may be imposed only where the operator’s manner of driving is negligent. Rather, it r equires that the injury is caused by a negligent act with respect to the operation of a motor vehicle.

Id. (emphasis added). Hence, the Mickle Court concluded that the motor vehicle exception applied in that case. However, s ince the vehicle in the Mickle case was operated by a City employee

, Mickle is inapposite here.14

a matter of law, and the vehicle liability exception to immun ity is not applicable. 13

Love, 543 A.2d at 53 3. B ecause Ward has failed to state a cause of action against
Potteiger, Raith and/or Sweeney that would trigger their individual liability under the
Sovereign Immunity Act, the trial court did not err by susta ining Appellees’
preliminary objections and dismissing Ward’s Sixth Amended Complaint with
prejudice.
Accordingly , the trial court’s order is affirmed.

___________________________ ANNE E. COVEY, Judge

13 The vehicle liability exception in the immunity statutes require Potteiger’s, Raith’s and/or Sweeney’s operation and control of DeSimone’s vehicle, and it is clear on the face of the Sixth Amended Complaint that DeSimone was operating the vehicle at the time of the accident . Thus , we need not consider whether Potteiger, Raith and/or Sweeney ever had control, constructive or otherwise, of the vehicle.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Ward, : Appellant :

:

v. :

: Michael C. Potteiger, Individually; and : Michael W. Raith, Esquire, : Individually; and Alicia Sweeney, : No. 1201 C.D. 2015 Individually :

O R D E R

AND NOW, this 9 th day of June

, 201 6

, the Delaware County Common
Pleas Court’s June 9, 2015 order is affirmed

.

___________________________ ANNE E. COVEY, Judge