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Oliver v. Tropiano Transportation, Inc.

Commonwealth Court of Pennsylvania

November 8, 2013

Geraldine Oliver
Tropiano Transportation, Inc. and Philadelphia Parking Authority Appeal of: Philadelphia Parking Authority

Argued: October 9, 2013.



DAN PELLEGRINI, President Judge.

The Philadelphia Parking Authority (Authority) appeals from the decision of the Court of Common Pleas of Philadelphia County (trial court) finding the Authority liable for injuries sustained by Geraldine Oliver (Oliver) pursuant to the real estate exception to sovereign immunity, 42 Pa. C.S. §8522(b)(4).[1] For the reasons that follow, we reverse the trial court.

On March 20, 2009, Oliver was injured in an Authority parking garage located at 10th and Ludlow Streets in the City of Philadelphia (City). Oliver parked her vehicle on the garage's third level. When she returned to the garage, Oliver boarded a shuttle van which transported her to her vehicle because the garage's elevator was broken. Upon exiting the shuttle, Oliver sustained fractures to her right foot.

Oliver filed a complaint in the trial court against the Authority and Tropiano Transportation, Inc.; Tropiano Transportation Service, Inc.; Tropiano Bus Company, LLC; and Tropiano Tours, Inc. (collectively, Tropiano). The complaint alleged, inter alia, that the Authority contracted with Tropiano to provide shuttle service for its garage customers to and from the upper levels of its garage, and that the negligence of the Authority and Tropiano caused Oliver's injuries. The Authority filed an Answer, New Matter and Cross Claim, in which it denied the allegations in the complaint; raised numerous affirmative defenses, including governmental[2] and sovereign immunity, and asserted that Tropiano was solely responsible for Oliver's injuries.

The Authority then filed a Motion for Summary Judgment arguing that it is a local agency immune from suit under the Tort Claims Act; that Oliver failed to prove that the vehicle liability or real property exception to governmental immunity applied;[3] and that Oliver cannot recover damages for pain and suffering because she did not sustain "permanent loss of bodily function, permanent disfigurement or permanent dismemberment" as required by 42 Pa. C.S. §8553(c)(2)(ii).[4] The trial court denied the Authority's Motion for Summary Judgment and a non-jury trial was held.

At trial, Oliver testified that when she returned to the parking garage on the date of the accident, she entered a van with the word "Tropiano" written on the side, which was to transport her to her vehicle on the third level. She stated that the van's driver stopped at an inclined portion of the ramp and did not open the door for her or assist her in exiting the vehicle. She testified that when she stepped out of the van, her foot went into a groove in the ramp, causing her injuries. She acknowledged that she misjudged the distance from the van to the concrete surface when she exited the van. Oliver also provided testimony about the treatment she received and her subsequent recovery from her injuries. She stated that when she returned to work in June 2009, she was able to resume all of her previous work duties and normal life activities. (January 28, 2013 Trial Transcript at 25).

Salvatore Lancelotti (Lancelotti), a Site Coordinator/Manager for the Authority, testified by deposition that both of the garage's elevators were out of service during the spring of 2009 and that during that time, the Authority provided shuttle service for customers to get to and from their vehicles. He stated that the Authority used an Authority van for the shuttle service. He further testified that he was the person in charge of the shuttle van drivers during that period, and that he instructed them to "make sure no one gets off on the ramp." Id. at 40. He explained that the shuttle drivers were supposed to stop the van, get out, come around to the side door and open it for customers when dropping them off.[5]

Anthony Dintino (Dintino), a Parking Enforcement Officer for the Authority, testified that he drove a shuttle van at the garage in the spring of 2009, and was the only person operating a van on the morning of March 20, 2009. He explained that he let passengers out of his van on a flat surface of the garage's third floor and would have no reason to let anyone off on a sloped portion of the garage. He further testified that he never saw a Tropiano van at the garage.

The trial court found in favor of Tropiano but against the Authority in the amount of $15, 000. In its subsequent Opinion, the trial court explained that it found that Tropiano had no presence on the property; the shuttle van was owned and operated by the Authority; and the driver's action of letting Oliver off at a point of incline in the garage was in violation of the Authority's directives. Relying on Blount v. Philadelphia Parking Authority, 600 Pa. 277, 965 A.2d 226 (2009), the trial court held that the Authority is a Commonwealth agency and, therefore, the case is governed by the real estate exception to sovereign immunity. The trial court explained that although the ramp itself was not defective, it nonetheless constituted a dangerous condition of the real estate because it played a significant role in causing Oliver's injuries. Finding that Oliver lost approximately three months' work but did not suffer permanent loss of bodily function as a result of her injuries, the trial court awarded Oliver a gross sum of $30, 000, reduced by 50% due to her contributory negligence of misjudging the distance to the ground when exiting the van. This appeal by the Authority followed.[6]

On appeal, the Authority contends that for purposes of tort immunity, it is a local agency, not a Commonwealth agency, and because Oliver did not prove a permanent loss of bodily function, she was barred from recovering damages for pain and suffering by 42 Pa. C.S. §8553(2)(ii). Moreover, the Authority argues that Oliver cannot recover damages pursuant to the real property exception to governmental immunity because the real property itself was not defective. Alternatively, the Authority contends that even if the trial court was correct in holding that the Authority is a Commonwealth agency, Oliver still could not recover under the real estate exception to sovereign immunity, 42 Pa. C.S. §8522(b)(4), because there was no "dangerous condition of the property" established.

The issue of whether the Authority is governed by the Sovereign Immunity Act or Tort Claims Act is important because of significant differences between governmental and sovereign immunity provisions. A plaintiff may or may not be able to recover, depending on whether a governmental body is determined to be a Commonwealth party or a local agency. For example, there is an exception to immunity for medical professional liability for a Commonwealth party but not for a local agency. When a plaintiff is injured as a result of negligent medical care, he or she can recover if the negligent treatment was rendered by the Commonwealth party, but not if the same negligent care was rendered by a local agency. Not only is that distinction important as to whether a plaintiff can recover, but how much one can recover and the limitation on the amount and the calculation is significantly different for a Commonwealth party than for a local agency.

More pertinent here, the real estate exception to sovereign immunity waives immunity when there is a "dangerous condition of" the real estate, 42 Pa. C.S. §8522(b)(4), while the real property exception for local agencies waives immunity instead for acts arising out of "[t]he care, custody or control of real property in the possession of the local agency." 42 Pa. C.S. §8542(b)(3). Moreover, unlike under sovereign immunity, to recover against a local agency, the plaintiff must have a "permanent loss of a bodily ...

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