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MEYERHOFFER v. EAST HANOVER TWP. SCH. DIST.

February 16, 1968

Rae Ann MEYERHOFFER, a minor by her guardian, Jean M. Loughridge and Franklin O. Meyerhoffer, Jr., in his own right, Plaintiffs,
v.
EAST HANOVER TOWNSHIP SCHOOL DISTRICT, Lower Dauphin School District and Lloyd H. Umberger, Defendants



The opinion of the court was delivered by: FOLLMER

 FOLLMER, District Judge.

 This case is before the court on motions of defendants to dismiss the action on the following grounds.

 I. The defendant school districts are immune from tort liability.

 II. The suit of plaintiff, Jean M. Loughridge, a citizen of the State of Michigan, as against the defendant school districts, is barred by the Eleventh Amendment of the United States Constitution.

 III. There is an absence of diversity of citizenship and, therefore, no jurisdiction of the claim of plaintiff Franklin O. Meyerhoffer, Jr., against the defendants.

 IV. The court lacks jurisdiction of the claim of plaintiff Franklin O. Meyerhoffer, Jr., because the amount of damages which he seeks to recover is less than $10,000.00.

 The facts as alleged in the complaint and on which the motions are grounded are as follows: On April 22, 1965, Rae Ann Meyerhoffer, a minor, was injured when she was struck by a school bus owned by defendant school districts and operated by defendant Lloyd H. Umberger. A Michigan guardian was appointed for the injured minor to create diversity of citizenship, all parties to the accident being Pennsylvania citizens. Thereafter the guardian, on behalf of the minor, filed the instant suit against the above-named defendants for damages resulting from the accident, and the minor's father, also a Pennsylvania citizen, joined in the suit in his own right seeking out-of-pocket medical expenses.

 I

 The first issue presented is whether the defendant school districts are immune from tort liability in an action arising from the allegedly negligent operation of a school bus by one of their employees.

 It is well established in Pennsylvania that a school district is immune from tort liability arising in the performance of a governmental function. Husser v. Pittsburgh School District, 425 Pa. 249, 228 A.2d 910 (1967); Dillon v. York City School District, 422 Pa. 103, 220 A.2d 896 (1966). Plaintiffs assert, however, that the transportation of children by bus is not a governmental function, but a proprietary one, and it is also well settled Pennsylvania law that a municipal corporation is liable in tort for acts committed in the course of a proprietary function. Morris v. Mount Lebanon Township School District, 393 Pa. 633, 144 A.2d 737 (1958).

 The already difficult task of determining whether a given municipal operation is a governmental or proprietary function is made even more so by this court's obligation to decide the issue as it would be decided by the Pennsylvania state courts. The law in this area, as enunciated by the Pennsylvania courts, is far from clear. In Morris, supra, the court stated:

 
Perhaps there is no issue known to the law which is surrounded by more confusion than the question whether a given municipal operation is governmental or proprietary in nature. Two reasons may be assigned therefore: First, the concept of proprietary functions has been viewed 'liberally ' and exceptions to the rule of nonliability for the conduct of governmental functions have been created because of judicial recognition that the losses caused by the torts of public employees should properly be treated, as in other cases of vicarious liability, as a cost of government administration. See Prosser, Torts 775 (2nd ed. 1955). Second, the tests yet devised for distinguishing between governmental and proprietary functions have proven unsatisfactory. See 2 Harper and James, Torts ยง 29.6 at 1621-1627 (1956).
 
In general, (and perhaps unhelpfully), it has been said that if a given activity is one which a local government unit is not statutorily required to perform, or if it may also be carried on by private enterprise, or if it is used as a means of raising revenue, the function is ...

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