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08/04/97 ROBERT J. BERMAN v. SOUTHEASTERN

August 4, 1997

ROBERT J. BERMAN, APPELLANT
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



Appealed From No. 4077 March Term, 1994. Common Pleas Court of the County of Philadelphia. Judge SABO.

Before: Honorable Doris A. Smith, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Leadbetter.

The opinion of the court was delivered by: Leadbetter

OPINION BY JUDGE LEADBETTER

FILED: August 4, 1997

Robert J. Berman (appellant) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) denying appellant's post-trial motion for removal of the nonsuit which the trial court entered in favor of the Southeastern Pennsylvania Transportation Authority (SEPTA) after determining that appellant failed to establish a cause of action under the vehicle exception to sovereign immunity, 42 Pa. C.S. §§ 8522(b)(1). The question presented is whether a bus driver's actions in allowing a mass transit bus to become overcrowded constitute "operation" of a vehicle for purposes of liability under the vehicle exception when such overcrowding causes a passenger to sustain injuries in a fall while alighting from the bus at a regularly scheduled bus stop.

On June 16, 1993, appellant, a passenger on a SEPTA bus, sustained injuries upon alighting from the vehicle at a bus stop. Prior to the accident, the bus stopped and boarded many passengers, causing the vehicle to become very crowded. As a result, appellant was unable to make his way to the exit door when the bus arrived at his destination. At the next stop, one block away, appellant reached the exit, and while alighting from the bus, he fell off the steps onto the street. Appellant claims that his fall was caused by a surge of passengers due to the overcrowding of the bus.

On March 30, 1994, appellant instituted an action against SEPTA. SEPTA filed a response and a trial commenced on May 8, 1995. After appellant presented his case on liability, the trial court granted SEPTA's motion for nonsuit, holding that appellant's claim was barred because the accident as described did not support the Conclusion that the bus was in "operation" within the meaning of § 8522(b)(1) at the time of appellant's injury. Appellant then moved for removal of the nonsuit which the trial court denied on April 17, 1996, and appellant filed this appeal. For the reasons that follow, we affirm.

A compulsory nonsuit may be affirmed only if, giving the appellant the benefit of every reasonable inference and resolving all evidentiary conflicts in his favor, the facts and circumstances nonetheless lead to the clear Conclusion that no liability exists. Harvilla v. Delcamp, 521 Pa. 21, 25, 555 A.2d 763, 764 (1989).

It is well settled that SEPTA is a Commonwealth agency, and as such, enjoys the benefit of sovereign immunity under § 8521 of the Judicial Code, 42 Pa. C.S. § 8521. Rubenstein v. Southeastern Pennsylvania Transportation Authority, 668 A.2d 283, 285 (Pa. Commw. 1995) [citing Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986)]. Under the vehicle exception to sovereign immunity, a Commonwealth agency will be liable for damages caused by the negligent "operation of any motor vehicle in the possession or control of [such] agency." 42 Pa. C.S. § 8522(b)(1).

Appellant contends that the driver's allowing the bus to become overcrowded, which caused appellant to be pushed by other passengers as he exited the bus, was negligent and that this negligence constitutes "operation" within the meaning of the vehicle exception.

In Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988), the Pennsylvania Supreme Court stated that because the statute did not define the word "operation," courts must strictly construe the word according to common usage. Thus, the court defined "operation" in this context as follows:

To operate something means to actually put it in motion. Merely preparing to operate a vehicle, or acts taken at the cessation of operating a vehicle are not the same as actually operating that vehicle. . . . Getting into or alighting from a vehicle are merely acts ancillary to the actual operation of that vehicle.

518 Pa. at 375, 543 A.2d at 533 (emphasis in original). *fn1 Our court, in applying Love's definition of "operation," has consistently held that a passenger's act of alighting the steps of a bus does not involve "operation" of the bus for purposes of the motor vehicle exception to sovereign immunity. Rubenstein, 668 A.2d at 286; Bazemore v. Southeastern Pennsylvania Transportation Authority, 657 A.2d 1323, 1326 (Pa. Commw. 1995); Miller v. Erie Metropolitan Transit Authority, 152 Pa. Commw. 64, 618 A.2d 1095, 1097 (Pa. Commw. 1992).

Appellant attempts to distinguish Love and its progeny from the instant case claiming that the alleged negligent conduct of the bus driver involved acts normally "associated with the operation" of a mass transit vehicle. However, this is not the test. Many acts, such as collecting fares, refueling the vehicle, picking up litter or, as in Love, providing assistance to passengers who need help getting on or off the bus, are all associated with operating a bus. Nonetheless, they are not themselves "operation," defined, as noted in Love, as "to run or control the functioning of: operation a machine. . . ." Love, 518 Pa. at 374, 543 A.2d at 533. Rather they, ...


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