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RONALD THOMAS AND GLORIA THOMAS v. JOSEPH PAGANO AND JENNIE PAGANO (07/30/87)

decided: July 30, 1987.

RONALD THOMAS AND GLORIA THOMAS, APPELLANTS
v.
JOSEPH PAGANO AND JENNIE PAGANO, AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEES



Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of Ronald Thomas and Gloria Thomas v. Joseph Pagano and Jennie Pagano, and Commonwealth of Pennsylvania, Department of Transportation, No. 1984-3101.

COUNSEL

Martin N. Ghen, with him, Bruce F. McKenrick, R. Elliott Toll & Associates, for appellants.

Elizabeth T. Winson, Deputy Attorney General, with her, Frank J. Micale, Senior Deputy Attorney General, Mark E. Garber, Chief, Tort Litigation Unit, LeRoy S. Zimmerman, Attorney General, for appellee.

Judges MacPhail and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 108 Pa. Commw. Page 132]

Appellants, Ronald Thomas and Gloria Thomas, appeal from that portion of an order of the Court of Common Pleas of Cambria County which granted partial summary judgment for the Department of Transportation (DOT). We reverse.

Joseph Pagano was a real estate appraiser employed by DOT. He was operating his own automobile, titled to him and his wife Jennie, when he was involved in an accident in which appellants were injured. Pagano carried

[ 108 Pa. Commw. Page 133]

    his own liability insurance in the amount of $100,000. Appellants brought an action against Jennie and Joseph Pagano. Subsequently, appellants amended their complaint to join DOT, averring that Pagano was acting within the scope of his employment with DOT, thus making DOT liable on the theory of respondeat superior.

DOT filed a motion for partial summary judgment, requesting the trial court to dismiss the complaint because it failed to state a cause of action that fell within one of the exceptions to immunity set forth in section 8522 of the Judicial Code, 42 Pa. C.S. § 8522. Alternatively, DOT requested that its liability exposure be limited to excess coverage in the event of a damage award exceeding Joseph Pagano's $100,000 private insurance coverage. Jennie Pagano also filed a motion for summary judgment. The trial court granted Jennie Pagano's motion for summary judgment and DOT's motion for partial summary judgment. Appellants appeal that portion of the trial court's order which granted DOT's motion for partial summary judgment.

Appellants argue that the negligent operation of a motor vehicle by a Commonwealth employee in the scope of his employment falls within the exception to immunity set forth in section 8522(b)(1) of the Judicial Code, 42 Pa. C.S. § 8522(b)(1), regardless of who owns the vehicle. DOT admits that Pagano was within the scope of his employment, but argues that because he was driving his own car, the exception to immunity is not applicable.

Factually, there does not appear to be a dispute. Therefore, our scope of review, is limited to determining whether the trial court abused its discretion or committed an error of law. City of Philadelphia v. Nationwide ...


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