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

COMMONWEALTH COURT OF PENNSYLVANIA


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 a vehicle operated by an agent of a local governmental unit, they cannot be liable under the motor vehicle exception. We disagree.

[ 123 Pa. Commw. Page 229]

As prior case law suggests, there is no requirement that a vehicle operated by a local government agent must physically collide with the injured party for liability to attach. Rather, common law concepts of negligence and proximate causation are to be applied as a prerequisite to determining whether an actionable claim has been stated within the statutorily defined exceptions to governmental immunity. Mascaro.

This Court was presented with a factually similar police pursuit case in Bickert v. Borough of Riverside, 118 Pa. Commonwealth Ct. 91, 545 A.2d 962 (1988). As here, the police vehicle was not physically involved in the collision. We stated therein that "[a]lthough the substantive exceptions to immunity set forth in the Code are to be interpreted narrowly, City of Philadelphia v. Love,*fn3 pleadings which raise a colorable theory of liability consistent with recognized exceptions to immunity should not be so construed to a more complete exposition of the facts." Id. at 95, 545 A.2d at 964 (citation omitted). Bickert alleged that the police had engaged in a high-speed motor vehicle pursuit, having reason to know that such pursuit would expose other persons including the plaintiff, a passenger in the vehicle being pursued, to an unreasonable risk of harm. We concluded that Bickert's complaint had stated a cognizable claim within the vehicle liability exception. Similarly, in the companion case of Force v. Watkins, 118 Pa. Commonwealth Ct. 87, 544 A.2d 114 (1988), we found that the allegations of " driving without due regard for the safety as well as in reckless disregard for the safety and rights of others on the highway" raised a factual question as to the degree of care exercised by the police car's operator. Id. at 90, 544 A.2d at 115 (emphasis added).

[ 123 Pa. Commw. Page 230]

We interpret Dickens' complaint as likewise alleging a cognizable theory of liability. Paragraph 19 of her complaint alleges:

19. The accident heretofore described was caused by the carelessness, recklessness and negligence of Defendant, Upper Chicester [sic] Township, through its agent, servant and/or employee acting within the course and scope of his employment by reason of the following:

(a) by improperly and without cause initiating a high speed pursuit through a residential neighborhood;

(b) in failing to follow accepted police practices with regard to high speed chases;

(c) in initiating a high speed chase of a minor who was suspected of violating a minor traffic offense; and

(d) in otherwise failing to exercise due care under the circumstances.

The apparent thrust of this complaint imputes negligence to the decision to initiate a pursuit of the Horner vehicle. We hold, nonetheless, that the common pleas court did not err or abuse its discretion in concluding that the allegations of a high-speed pursuit through a residential neighborhood and failure to exercise due care are sufficient to raise factual questions as to the degree of care exercised by Officer Bush while operating his vehicle.*fn4

[ 123 Pa. Commw. Page 231]

Despite her inartful pleadings, it is possible for Dickens to present evidence within the parameters of the alleged facts that tend to show that Officer Bush's operation of his vehicle put others at risk, including Dickens herself, and that his actions were a substantial contributing factor in causing Dickens' injuries.*fn5 Of course, any doubt about sustaining preliminary objections should be resolved against the objecting party. Goodheart v. Thornburgh, 104 Pa. Commonwealth Ct. 385, 522 A.2d 125 (1987).

Affirmed.

Order

The order of the Delaware County Common Pleas Court, No. 87-782 dated November 5, 1987, is affirmed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.

Dissenting Opinion by Judge Palladino:

I respectfully dissent.

Officer Bush's operation of the motor vehicle did not cause the injury suffered by the plaintiff, Denise Marie Dickens, in this case. Dickens' injury was caused when a motor vehicle operated by John Scott Horner struck Dickens' motor vehicle. The Pennsylvania Supreme Court made clear in Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), that an injury actually caused by a third party will not subject a local agency or

[ 123 Pa. Commw. Page 232]

    its employees to liability, even if a common law negligence action has been stated.


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