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COMMONWEALTH PENNSYLVANIA v. FRANCIS ROBINSON (02/09/89)

decided: February 9, 1989.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE AND THOMAS BOHENEK, INDIVIDUALLY AND AS AGENT FOR THE COMMONWEALTH, APPELLANTS
v.
FRANCIS ROBINSON, ANN ROBINSON, HIS WIFE, AND ALEXI ASTIER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Dauphin County, in the case of Francis Robinson and Ann Robinson, his wife v. Commonwealth of Pennsylvania, Pennsylvania State Police and Thomas Bohenek, Individually and as Agent for the Commonwealth, No. 3855 S 1985.

COUNSEL

Stephen E. Geduldig, Office of Attorney General, Torts Litigation Section, for appellants.

John J. Brazil, Jr., for appellees.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 123 Pa. Commw. Page 402]

The Pennsylvania State Police and State Trooper Thomas Bohenek (petitioners) appeal from an order of the Court of Common Pleas of Dauphin County that denied petitioners' motion for summary judgment. We must determine whether the respondents' cause of action falls within one of the statutory exceptions to the rule of sovereign immunity.*fn1

In the early morning hours on a rainy day Trooper Bohenek allegedly stopped his state police car in the left passing lane of Interstate 83 in Dauphin County to investigate an accident. Bohenek was questioning people involved in that accident, in his car, when respondent Francis Robinson, who had been driving his truck on the highway, stopped and asked Bohenek for some road flares. Bohenek opened the trunk of his car from inside so that Robinson could get the flares located in the trunk. While Robinson was standing at the trunk of Bohenek's police car, respondent Alexi Astier, driving his car, struck and injured Robinson. Robinson brought the negligence suit against the petitioners that is the subject of the trial court's summary judgment decision.

Petitioners moved for summary judgment on the ground that Trooper Bohenek and the State Police are immune from suit. The trial court denied the motion for summary judgment, finding that the general bar of immunity from suit that the petitioners enjoy falls in this case under the motor vehicle liability exception to sovereign immunity.*fn2 Petitioners argue that the trial court

[ 123 Pa. Commw. Page 403]

    erred in deciding that the respondents' allegations were sufficient to support a claim under the vehicle exception. Respondents contend that the petitioners are not immune, and suggest that Trooper Bohenek's negligent operation of his vehicle falls under the vehicle exception and that Bohenek created a dangerous condition on a Commonwealth highway under the real estate exception to sovereign immunity.*fn3

As allowed by Pa. R.A.P. 1311 and 42 Pa. C.S. ยง 702(b), the trial court certified for interlocutory review the question of whether the petitioners are immune from suit. In accordance with our discretionary power to consider the appeal of an interlocutory order, we affirm the trial court's decision for the reasons stated below.

We agree with petitioners' argument that the respondents' claim does not fall within the vehicle liability exception to sovereign immunity. That exception states:

Vehicle liability. -- The operation of any motor vehicle in the possession or control of Commonwealth party. As used in this paragraph, 'motor vehicle' means any vehicle which is self-propelled and any attachment thereto, ...


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