Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Brian and Amelia Aberant, individually and as Administrators of the Estate of Brian Leonard Aberant, Deceased, and as Parents and Natural Guardians of Timothy Aberant, a Minor v. Wilkes-Barre Area School District and David Williams, t/a Williams Bus Company v. Debra Ann Talmadge, No. 1582-C of 1981.
Paul A. Barrett, Nogi, O'Malley, Harris & Schneider, P.C., for petitioner.
Albert J. Flora, Jr., for respondents.
Judges Rogers and Colins and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.
[ 89 Pa. Commw. Page 517]
The Wilkes-Barre Area School District (School District) appeals from an interlocutory order of the Court of Common Pleas of Luzerne County, denying the School District's Motion for Summary Judgment based upon immunity as provided in Section 8541 of the Judicial Code.*fn1 The School District was granted permission to appeal from an interlocutory order.
The original suit was brought by Brian and Amelia Aberant (respondents), individually and as administrators of the Estate of Brian Leonard Aberant, their deceased son, and as parents and natural guardians of Timothy Aberant, their other son, a minor. Brian was fatally injured after he disembarked from a school
[ 89 Pa. Commw. Page 518]
bus at a T-type intersection. He attempted to cross at the "T" intersection and was struck by a passenger car. He and his brother, Timothy, normally crossed the street on which the school bus had stopped (Nicholson) and then crossed the other street (Hazel) in front of their home. Timothy proceeded to follow this procedure. There is a stop sign where Nicholson ends at Hazel. There are no stop signs, traffic signals, or crossing guards at Hazel at the "T" intersection.
The petitioner School District claims that it is immune from liability under Section 8541 of the Judicial Code, that none of the eight exceptions in Section 8542(b) applies, and that one of the two qualifying conditions enumerated in Section 8542(a) is not satisfied. Petitioner also argues that even if it did not comply with legislatively enacted duties, it cannot be held to have waived or to have been estopped from asserting immunity from suit as provided by Section 8541 of the Judicial Code.
Respondents (plaintiffs below) assert that a school bus, when stopped along a highway with its lights flashing or an adult school crossing guard, constitutes a traffic control within the "dangerous condition" exception of Section 8542(b)(4); that there exist genuine issues of fact as to whether respondents' claim falls within this exception; and that the School District has waived or limited its right to appellate review of this issue by its failure to properly raise or preserve it in its Motion for Summary Judgment and Petition for Allowance of Appeal.
We must initially note that the School Board raised the issue of tort immunity in its Answer to Complaint and New Matter as affirmative defenses (Nos. 7 and 8). We see no merit in respondents' argument ...