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DENISE MARIE DICKENS v. UPPER CHICHESTER TOWNSHIP AND OFFICER THOMAS BUSH (01/31/89)

decided: January 31, 1989.

DENISE MARIE DICKENS
v.
UPPER CHICHESTER TOWNSHIP AND OFFICER THOMAS BUSH, ET AL. UPPER CHICHESTER TOWNSHIP AND OFFICER THOMAS BUSH, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Denise Marie Dickens v. Upper Chichester Township and Officer Thomas Bush, et al., C.A. No. 87-782.

COUNSEL

M. Kelly Tillery, Leonard, Tillery & Davison, for appellants.

Thomas S. Myers, Jr., for appellee.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, Palladino and McGinley. Opinion by President Judge Crumlish, Jr. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by Judge Palladino.

Author: Crumlish

[ 123 Pa. Commw. Page 227]

Upper Chichester Township and Police Officer Thomas Bush appeal a Delaware County Common Pleas Court order overruling their preliminary objections to Denise Marie Dickens' complaint.*fn1 We affirm.

Officer Bush observed John Scott Horner operating a motor vehicle and believed Horner was driving with a suspended license and under the influence of drugs. Officer Bush initiated a pursuit which evolved into a high-speed chase. Horner's vehicle ultimately collided with Dickens' vehicle and caused her serious injuries. The police vehicle was not physically involved in the collision.

Dickens' complaint alleged that the Township, through its agent Officer Bush, was negligent in initiating a pursuit and in otherwise failing to exercise due care. The Township and Officer Bush preliminarily objected, averring that Dickens' allegations of negligence did not fall within the vehicle liability exception to governmental

[ 123 Pa. Commw. Page 228]

    immunity. Section 8542(b)(1) of the Judicial Code (Code), 42 Pa. C.S. ยง 8542(b)(1).*fn2

Our scope of review of a common pleas court order overruling preliminary objections in the nature of a demurrer is limited to determining whether the lower court abused its discretion or committed an error of law. Department of Labor and Industry, Office of Vocational Rehabilitation v. Pennsylvania Human Relations Commission, 118 Pa. Commonwealth Ct. 163, 545 A.2d 412 (1988). We accept as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom. McNeill v. City of Philadelphia, 104 Pa. Commonwealth Ct. 494, 522 A.2d 174 (1987).

Specifically, the Township and Officer Bush contend that Dickens has failed to allege that Officer Bush was at any time in possession or control of the Horner vehicle or that Bush's police vehicle struck Horner's vehicle, thus causing a collision with Dickens' automobile. Therefore, in light of the narrow construction applied to exceptions to immunity under the Judicial Code, Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), the Township and Officer Bush contend that without some physical impact by ...


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