*1 subject conduct coercive, redress must include intimidating threatening behavior. provision The of the PHRA en- abling local human relations commissions allows that a local may given commission be powers and duties similar to those PHRC. See 43 P.S. exercised by Therefore, § 962.1. by such statute and reference to the PHRC’s regulation, the Reading City Council had the ability to create a local human relations commission competent redress threatening, coercive intimidating by conduct motivated racial animus.3 reasons,
For these conclude that the Commission pos- sessed the requisite jurisdiction subject over matter and thus join am able to disposition by directed the majority.
v. AMBULANCE, INC., Liquidating PRO COR Corp., P.A.I. Care Valley, Inc., line Delaware Brian Tuck and Southeastern Pennsylvania Transportation Authority, Appellees.
Supreme Pennsylvania. Court of
Argued Feb. 1999.
Decided Oct. 1999. 3. availability penalties I note that the of civil for unlawful discriminato- (such ry imposed by case) $500 acts as the fine the Commission in this expressly by restricted to certain acts enumerated the PHRA. See 43 Thus, 959(f)(2). view, § my P.S. legal there is a substantial issue as availability penalties pursuant of such regulation to the PHRC’s 45.11, and, 157(1) at 16 Pa.Code correspondingly, Section require Court, Ordinance. I would therefore the Commonwealth on remand, to address this issue to the extent that it has not been waived. *2 Bruno, II, for Lisa Warrick. Philadelphia,
Thomas Montrose, Amicus-PA Trial Law- Kelly, M. Laurence yers. Jacovini, for SEP- Zubras, Philadelphia, H. Joseph A.
Joan TA. Dacouini, for Amicus- Meneely, Pittsburgh, J. Colin
Joseph Authority. Port Public Putnam, Jr., for Amicus-PA Philadelphia,
Alfred W. Authority. Transp. Dist. for Amicus-School Philadelphia, McDonough,
Suzanne Authority. CAPPY, ZAPPALA, FLAHERTY, C.J., and
Before SAYLOR, NIGRO, JJ. CASTILLE, NEWMAN and ORDER PER CURIAM: October, Order of the NOW, 12th day
AND v. School Dis affirmed. See White Court is Commonwealth (1998). 778 553 Pa. trict of in which Dissenting Statement files Justice NEWMAN joins. Justice NIGRO
NEWMAN, Justice, dissenting. whether a SEPTA allocatur to determine granted We on its wrong stop at the stopped negligently from view blocking discharging regular thus traffic, as that term is used is in of approaching (Code), 42 Pa.C.S. Section Code 8522 of the Judicial Section I believe Immunity). Because Sovereign (Exceptions that falls within has stated conduct Appellant motor vehicle sovereign immunity, and because believe that the Commonwealth Court has drawn this excep- tion narrowly, too dissent.
FACTUAL AND PROCEDURAL HISTORY (Julian) 11,1994, On March five-year-old Julian Warrick brother, (Demetrius), his eleven-year-old Demetrius Warrick were returning home school on a SEPTA bus. The bus discharged curb, Julian and Demetrius at danger near the ous intersection of 33rd Spring Garden Streets in Philadel phia. This was not regular stop. The children left the bus and were on Spring directly Garden Street in front of the bus. The record evidence indicates that the bus blocked the approaching children from view of traffic. began As Julian street, cross the an passed bus, ambulance hitting him. injuries His were fatal and he died the following day. Lisa *3 Warrick, of Administratrix the Estate of Julian Michael War- rick (Appellant) SEPTA, suit against filed the ambulance driver, and the ambulance corporate entities. also Appellant filed a separate solely against lawsuit SEPTA. The trial court consolidated these actions. SEPTA filed a motion for sum mary judgment asserting that it was entitled to immunity. The trial court granted SEPTA’s motion and entered sum mary on judgment the basis that SEPTA was immune from suit to Section 8522 of the Code. The Common wealth Court affirmed without dissent. Warrick v. Pro Cor Ambulance, (Pa.Cmwlth.1997).
ANALYSIS 8522(b)(1) The motor exception, Code, vehicle Section of the states that a party, SEPTA, Commonwealth such may as be liable for personal injury damages if the injury results from operation any
The of motor vehicle in possession or control of a party. Commonwealth As in para- used this graph, vehicle, “motor any vehicle” means which is self- propelled, thereto, and attachment including vehicles rail, operated by through water or the air. 8522(b)(1). evidence Appellant presented 42 Pa.C.S. bus of the driver’s were a result and death injury Julian’s stop undesignated at an discharge decision determined Court The Commonwealth dangerous. that was motor vehicle fit within the not at issue did that the actions the movement “injured by was not Julian because exception disagree. of the bus.” moving part by any or the bus “operation” to look at the term impossible it is believe purpose ignore vehicle in a vacuum of a motor here, where, as operated, particularly is which the vehicle of its in the a common carrier acting as sovereign bus case, specific SEPTA serviced vehicle. from to and school children transported regularly which children, in the their trust put public, especially The school. stop, and stop designated at the of a common carrier driver the driver will They assume that dangerous location. not at a traffic place approaching where not them off the let can not see them. is limit- vehicle that the motor
The determination
of the bus or
“the movement
that results from
injury
ed to an
narrowly drawn.
bus” is much too
moving part of the
by any
than
more
encompasses
a vehicle
The process
“operates”
a person
When
moving the vehicle.
simply
actions, taken
vehicle,
he makes a series
decisions
place
one
transport
which
individual
together,
where
park,
of where and whether to
another. The decisions
turn,
lights,
brake
whether
engage
whether to
and whether
off,
on
lights
to turn
or
signals, whether
appropriate
to use
like,
of a vehicle.
all
part
and the
are
*4
previous
that
of our
decisions
I further do not believe
District
In
v. School
control this case. White
Of
(1998),
214,
Majority of this Court
The term reflects a continuum activity, of which boundaries this Court should “Operation” define. backwards, does not simply moving mean forward or but instead making process includes decision that is attendant moving legislature vehicle. Had the intended that recovery permissible was only actually when the vehicle was in motion, legislature not would have used a word implies process, Moreover, such as term “operation.” the term “operation” of a motor vehicle occurs in other statutory provisions cases, those we have not required that the term “operation” means that the actually automobile inbe motion. For example, the context of the offense of (DUI) under driving 3731, the influence 75 Pa.C.S.A. to find that a motor vehicle is in operation requires evidence vehicle, driver was in actual physical control of the not but that the vehicle was “in actually motion”. Commonwealth v. Wilson, 521, (1995). 442 Pa.Super. See also Wolen, Commonwealth v. 546 Pa. 685 A.2d 1384 (1996)(recognizing finding that a of “actual physical control” does not require actually that car is moving).
Indeed, driver, intoxicated, what if a decides to stop the SEPTA bus in the middle of railroad track in order
49 hit along a train come Should discharge passengers? off got and those who the bus, on the bus injuring those the say that the bus, pressed would be hard I believe that we Moreover, injuries. for of those was immune sovereign driving of with the offense charged could be the bus driver a motor vehicle. Other while under the influence example that drastic I see no difference between degree, than both, stopping and act of here. In the decision and the case bus, of and caused operation the bus are incident should not be immune sovereign to this child. The injury injuries that result. than the mere encompass should more “operation”
The term injury whether a Plaintiffs “movement” of a bus to determine Here, I a motor from the of vehicle. “operation” resulted discharge of where to believe that the act and the decision child, an including integral this small constitute passengers, Thus, I bus. find component “operation” SEPTA entry affirmed the incorrectly that the Commonwealth Court summary judgment of of the trial court because SEPTA is immune from suit to Section 8521 of Code. conclusion, I persuasive find the Third Circuit’s reaching (3rd 468 Manning, statement Toombs v. 835 F.2d Cir.l987)(en banc) that, of a vehicle operation “the SEPTA opera- cannot from the of the vehicle’s purposes be divorced rejected analysis tion.” The Toombs court that a rigid in motion operated only vehicle is where it is and determined carrier, that, applied when to a common the term discharge subway covered the car. forth This adopt analysis would similar as set above. result recogniz- is also consistent with a recent decision of this Court ing plain language of the motor vehicle encompasses negligent acts related to the Pa. City vehicle. See Mickle v. (1998) (City plaintiff injured A.2d 1124 not immune where was in a riding City-owned negligent vehicle due mainte- vehicle). nance of the
Accordingly, dissent. joins this Dissenting
Justice NIGRO Statement.