Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Catherine Love v. City of Philadelphia, No. 1286 May Term, 1980.
Armando A. Pandola, Jr., with him, Jill A. Douthett, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, Michael B. Tolcott, Assistant City Solicitor, and Barbara W. Mather, City Solicitor, for appellant.
John Rogers Carroll, for appellee.
President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Palladino. Dissenting Opinion by Judge Doyle. Dissenting Opinion by Judge Colins. President Judge Crumlish, Jr. joins in this dissent.
[ 98 Pa. Commw. Page 139]
The City of Philadelphia (City) appeals from a judgment of the Court of Common Pleas of Philadelphia (trial court) in favor of Appellee, Catherine Love, in Appellee's negligence suit against the City. The trial
[ 98 Pa. Commw. Page 140]
court, sitting without a jury, awarded Appellee $375,000.00. For the reasons set forth below, we reverse.
The trial court made the following findings of fact. Appellee, a senior citizen, attended the Mann Adult Center, which is operated by the City's Department of Public Health. The City provided transportation for Appellee to and from the Adult Center in a van owned by the City. Because Appellee had impaired vision, she had some trouble ambulating. The driver of the van, Mr. Kitchen, would facilitate getting into and out of the van by placing a stool next to the van's door. Mr. Kitchen normally assisted Appellee from the door of her residence into the van and from the van to her door.
On February 15, 1980, Mr. Kitchen returned Appellee, who was the last occupant of the van that day, to her home. Mr. Kitchen assisted Appellee from the vehicle, but did not walk her to the door of her home. Mr. Kitchen left the stool in the street and proceeded toward the rear of the van to go back to the driver's seat. Appellee fell, and landed in the street with her buttocks about two feet from the stool, and her feet pointed toward the curb, which was approximately three feet away. Mr. Kitchen heard Appellee call for help, discovered her in the street, and summoned Appellee's daughter-in-Law and granddaughter from the house. Neither Mr. Kitchen nor Appellee's relatives saw Appellee fall. Appellee fractured her right hip and her right shoulder in the fall, and as a result was placed in a nursing home.
At the start of the trial, the City moved that the trial judge, Judge Bernard Snyder, recuse himself because his daughter had been recently fired from the City Solicitor's office. The trial court denied this request, and, following a separate hearing on the recusal issue before a judge in Washington County, the recusal was again denied.*fn1
[ 98 Pa. Commw. Page 141]
The trial court concluded: 1) that Mr. Kitchen had been negligent because he failed to exercise reasonable care in assisting Appellee from the van; 2) that the City was not immune from liability because the facts of Appellee's case fell within the exception to local agency immunity involving the operation of a motor vehicle; and ...