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

HONORABLE 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. Raith (Raith) and Alicia Sweeney 

(Sweeney) (collectively, Appellees) to Ward’s Sixth Amended Complaint. The sole 

issue before this Court 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, on January 3, 2012, while 

Ward was engaged in her job as a traffic controller 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, DeSimone was 

convicted of aggravated assault by vehicle while driving under the influence (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, at 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). Hours 

preceding the accident, DeSimone had met with DCOAPP Officer Sweeney 

(Sweeney) as a condition of his parole. During the appointment, DeSimone admitted 

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 DeSimone to a drug test and, after discussing 

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

home. The accident occurred after DeSimone left his DCOAPP appointment. 

Ward suffered significant injuries and damages as a result of the 

accident. On January 3, 2014, Ward filed a Section 1983 action1and 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 (Board), 

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, by 

September 22, 2014 order, the U.S. District Court dismissed Ward’s federal claims 

against the parties,2and declined to exercise jurisdiction over Ward’s state claims 

against Potteiger, Raith, and Sweeney in their individual capacities.

 

1

Section 1983 of the United States Code, 42 U.S.C. § 1983, authorizes civil actions for the 

deprivation of constitutional 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 of 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 nature 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 Procedure, 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 affirmative 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 Appellees’ 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 Ward’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 responsible 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 conspiracy (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 26a-32a. 

By June 9, 2015 order, 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 preliminary 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

“Our review of a trial court’s order sustaining preliminary objections and dismissing a 

complaint is limited to determining whether 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

When considering preliminary objections, we must accept 

as true all 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 objections where the Sixth Amended Complaint, as a whole and 

specifically at paragraphs 16, 22-27, 33, 39, 53-54, 61, 63, 82-83b, 96-99, “clearly 

and without doubt laid a sufficient factual foundation showing Appellees’ liability . . . 

under the vehicle exception to immunity[.]”7 Ward Br. at 9. Specifically, 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. In 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 Court’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-81a. Therefore, we would be constrained to limit our review 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 issue in any other meaningful fashion capable of review, that 

claim is waived.” Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. Cmwlth. 2009). Since Ward 

fails to reference or develop a personal property exception argument on appeal, that issue is waived, 

and 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 officers 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 continue 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 Cnty., 125 A.3d 113, 116 (Pa. Cmwlth. 2015).

Section 8522(a) of 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 of a 

 

8 A “Commonwealth party” is “[a] Commonwealth 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 extension, 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 officers 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 

common 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 Commonwealth v. Druce, 868 
7

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 the 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 to 

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 selfpropelled and any attachment thereto, 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 the 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 Cnty. 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.”). Therefore, as DCOAPP director and employee, 

respectively, Raith and Sweeney are also employees of a Commonwealth party 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 caused by negligent acts relating to 

“[t]he operation of any motor vehicle in the possession 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 vehicle 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 personal 

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 vehicle and keys, had 

authority to take further legal possession and control of 
9

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 

substance 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 Sweeney.

. . . .

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 dutybound to properly supervise DeSimone in accordance 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 detained DeSimone immediately in accordance 

with the terms of DeSimone’s probation and in accordance 

with the obligations and/or duties of all [Appellees]. All 
10

[Appellees] had the duty to arrest and had control over 

DeSi[]mone’s vehicle at this time.

. . . .

63. . . . 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 duties 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 

negligent, 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 [] Sweeney 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

knowingly 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 AFORESAID, 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 knowing 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/County 

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 Complaint, 

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 

DeSimone’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 Sovereign 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, 

Potteiger, Raith and/or Sweeney had to have operated the vehicle, and the vehicle 

had to be under their control. 

The Sovereign Immunity Act does not expressly define either 

“operation” or “control.” However, in 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, in 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 asserted 

that it was immune from Gale’s claims, and the trial 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 continuous 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]mmunity [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[,] liability 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 

vehicle 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, if the vehicle was not actually put in motion by 

the government employees, the vehicle liability exception to immunity is 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). The Mickle

Court addressed a slightly different aspect concerning the “operation” of a vehicle. In Mickle, a 

patient sued the City of Philadelphia (City), alleging that he was severely injured when the fire 

department rescue van into which he was placed lost its wheels while en route to the hospital. The 

trial court granted the patient’s motion for summary judgment. The City appealed. This Court 

affirmed, and the City appealed to our Supreme Court which held that the City’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 encompasses 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 requires 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, since 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 immunity is not applicable.13 

Love, 543 A.2d at 533. Because 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 sustaining 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, 2016, the Delaware County Common 

Pleas Court’s June 9, 2015 order is affirmed.

___________________________

ANNE E. COVEY, Judge