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HomeMy WebLinkAbout2006-5370 Civil JAMES D. HEGARTY and JEAN MARIE HEGARTY, Individually, and as parents and natural guardians of Brendan Hegarty, a minor, Hugh Hegarty, a minor, and John Hegarty, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW CUMBERLAND V ALLEY SCHOOL DISTRICT, H.E. ROHRER, INC., CHAD T. KOVACH, Defendants NO. 06-5370 CIVIL TERM IN RE: DEFENDANT CUMBERLAND VALLEY SCHOOL DISTRICT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' FIRST AMENDED COMPLAINT and PLAINTIFFS' PRELIMINARY OBJECTION TO DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, 1., March 23,2007, In this negligence action, Plaintiffs James D. Hegarty and Jean Marie Hegarty, individually, and as the parents of three minor children, Brendan Hegarty, Hugh Hegarty, and John Hegarty, have sued Defendant Cumberland Valley School District (hereinafter Defendant or the school district) et al. Plaintiffs' suit arises from an alleged school bus accident on April 25, 2006.1 The school district has filed preliminary objections in the nature of a demurrer to Plaintiffs' amended complaint, contending that (1) the school district is immune from suit based on 42 Pa. C.S. 98541 et seq., which provides immunity from liability for torts to certain governmental entities and (2) the Plaintiffs 1 Plaintiffs' First Amended Complaint, para. 17, filed November 7,2006 (hereinafter Plaintiffs' amended complaint). misapply the vehicle liability exception found at 42 Pa. C.S. 98542(b )(1)? Plaintiffs III response have filed a preliminary objection to Defendant's preliminary objections, contending that under Pennsylvania Rule of Civil Procedure 1030(a) the issue of governmental immunity is to be raised as an affirmative defense in new matter. 3 These issues were argued on January 24, 2007. For the reasons stated in this opinion, Defendant's preliminary objections will be denied, Plaintiffs' preliminary objection will be granted, and Defendant will be afforded 20 days within which to file a responsive pleading to Plaintiffs' first amended complaint. STATEMENT OF FACTS The facts alleged in Plaintiffs' first amended complaint may be summarized as follows: Plaintiffs are James D. Hegarty and Jean Marie Hegarty, individually and as the parents of three minor children, Brendan Hegarty, Hugh Hegarty, and John Hegarty. 4 One of the Defendants is the Cumberland Valley School District, a Pennsylvania school district located in Cumberland County. 5 Defendant school district regulated the discipline of students while on school buses.6 However, it ignored complaints from parents about unruly behavior of students on a certain school bus, the operation of which subsequently became a subject of the present case? 2 Defendant's Preliminary Objections against the Plaintiffs' First Amended Complaint, paras. 15, 20, filed November 22,2006 (hereinafter Defendant's preliminary objections). 3 Plaintiffs' Preliminary Objection to Cumberland Valley School District's Preliminary Objections to First Amended Complaint, filed December 4,2006 (hereinafter Plaintiffs' preliminary objection). 4 Plaintiffs' First Amended Complaint, para. 1. 5 Plaintiffs' First Amended Complaint, para. 5. 6 Plaintiffs' First Amended Complaint, paras. 6-11. 7 Plaintiffs' First Amended Complaint, para. 25. 2 On April 25, 2006, at approximately 4: 15 p.m., the aforesaid minors were being transported on this bus from Green Ridge Elementary School to their home.8 The bus was being driven by Chad T. Kovach, an employee of H.E. Rohrer, Inc., both named defendants. 9 At this time, the bus was involved in an accident on Deer Lane in Middlesex Township, Cumberland County,lO when it struck a tree after a disruptive student had placed his hands over the driver's eyes. 11 As a result of the accident, Plaintiffs' son Brendan suffered a broken collarbone and lacerations to his head and skull and was evacuated to a hospital by helicopter. 12 Plaintiffs' sons Hugh and John suffered physical pain and emotional trauma as a result of witnessing their brother's injuries. 13 DISCUSSION Pennsylvania Rule of Civil Procedure 1030(a) states: [A]ll affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading "New Matter". A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. 14 One exception to this rule is that "the affirmative defense of governmental immunity may be raised by preliminary objections in the nature of a demurrer where that defense is apparent on the face of the pleading; that is, that a cause of 8 Plaintiffs' First Amended Complaint, paras. 16-17. 9 Plaintiffs' First Amended Complaint, para. 17. 10 Plaintiffs' First Amended Complaint, para. 20. 11 Plaintiffs' First Amended Complaint, paras. 20, 26. 12 Plaintiffs' First Amended Complaint, para. 35. 13 Plaintiffs' First Amended Complaint, para. 36. 14 Pa. RC.P. 1030(a) (emphasis added). 3 action is made against a governmental body and it is apparent on the face of the pleading that the cause of action does not fall within any of the exceptions to governmental immunity." Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 638, 584 A.2d 403, 407 (1990). Since it is not disputed that the Defendant is a "governmental body,,,15 it must be determined in the context of the Defendant's preliminary objections and Plaintiffs' preliminary objection to Defendant's preliminary objections if it is "apparent" that the Plaintiffs' cause of action does not fall within any of the exceptions to governmental immunity. Rule 1028 of the Pennsylvania Rules of Civil Procedure allows for preliminary objections based on legal insufficiency of a pleading (demurrer). 16 When ruling on a demurrer to a complaint, the court must determine "whether, on the facts averred, the law says with certainty that no recovery is possible." Santiago v. Penna. Nat'l Mutual Casualty Ins. Co., 418 Pa. Super. 178, 184,613 A.2d 1235, 1238 (1992). "Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer." Id The Political Subdivision Tort Claims Act found at 42 Pa. C.S. 9 8541 et seq. provides, inter alia, as follows: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. An exception to immunity is found at 42 Pa. C.S. 98542(B)(1): ACTS WHICH MAY IMPOSE LIABILITY.-- The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: (1) Vehicle liability. -- The operation of any motor vehicle in the possession or control of the local agency, provided that the local agency shall not be liable to any plaintiff that 15 Plaintiffs' First Amended Complaint, para. 5. 16 See Pa. RC.P. 1028(a)(4). 4 claims liability under this subsection if the plaintiff was, during the course of the alleged negligence, in flight or fleeing apprehension or resisting arrest by a police officer or knowingly aided a group, one or more of whose members were in flight or fleeing apprehension or resisting arrest by a police officer. As used in this paragraph, "motor vehicle" means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air. Exceptions to immunity under the Political Subdivision Tort Claims Act are to be narrowly construed. 17 Plaintiffs allege that, because Defendant was in "operational control" of the bus while it transported students, the vehicle liability exception to immunity applies. 18 Defendant argues that, because its policies did not directly affect the operation of the vehicle, the exception is not applicable. 19 As a general rule, of course, an agency is not operating a vehicle for purposes of the exception to immunity when the vehicle is being driven by an independent contractor. 20 On the other hand, it has been held by the Pennsylvania Supreme Court that operation of a vehicle for this purpose encompasses maintenance of the vehicle?1 Depending upon the degree of control maintained by Defendant over the discipline of students while on school buses, and the unique circumstances underlying the present alleged failure of operational control of the bus on which the minor plaintiffs were riding, it is not impossible that the factual record can be developed to support an argument that the alleged tort in the present case was encompassed by the vehicle exception to immunity contained in the 17 Mickle v. City of Philadelphia, 550 Pa. 539, 707 A.2d 1124 (1998). 18 See generally, Plaintiffs' First Amended Complaint. 19 See Defendant's preliminary objections, para. 38. 20 O'Brien v. Bennote, 18 Pa. D. & C.4th 523 (Luzeme Co. Ct. of Common Pleas, 1993). 21 Mickle v. City of Philadelphia" 550 Pa. 539, 707 A.2d 1124 (1998). 5 statute. Accordingly, it appears appropriate to defer the immunity issue raised by Defendant to a later stage of the proceedings. F or this reason, the following order will be entered: ORDER OF COURT AND NOW, this 23rd day of March, 2007, upon consideration of the Preliminary Objections against the Plaintiffs' First Amended Complaint filed by Defendant Cumberland Valley School District, and of Plaintiffs' Preliminary Objection to Cumberland Valley School District's Preliminary Objections to First Amended Complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The Preliminary Objections against the Plaintiffs' First Amended Complaint filed by Defendant Cumberland Valley School District are denied; 2. Plaintiffs' Preliminary Objection to Cumberland Valley School District's Preliminary Objections to First Amended Complaint is granted; and 3. Defendant Cumberland Valley School District is afforded a period of twenty days from the date of this order within which to file a responsive pleading to Plaintiffs' first amended complaint. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 6 C. Grainger Bowman, Esquire KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP 17 North Second Street, 18th Floor Harrisburg, P A 17101 Counsel for Plaintiffs Charles E. Haddick, Jr., Esquire Grant W. Schonour, Esquire DICKIE, McCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011 Counsel for Defendant Cumberland Valley School District Stephen E. Geduldig, Esquire THOMAS, THOMAS, & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, P A 17108 Counsel for Defendants H.E. Rohrer, Inc., and Chad T. Kovach 7 8 JAMES D. HEGARTY and JEAN MARIE HEGARTY, Individually, and as parents and natural guardians of Brendan Hegarty, a minor, Hugh Hegarty, a minor, and John Hegarty, a minor, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW CUMBERLAND V ALLEY SCHOOL DISTRICT, H.E. ROHRER, INC., CHAD T. KOVACH, Defendants NO. 06-5370 CIVIL TERM IN RE: DEFENDANT CUMBERLAND VALLEY SCHOOL DISTRICT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' FIRST AMENDED COMPLAINT and PLAINTIFFS' PRELIMINARY OBJECTION TO DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 23rd day of March, 2007, upon consideration of the Preliminary Objections against the Plaintiffs' First Amended Complaint filed by Defendant Cumberland Valley School District, and of Plaintiffs' Preliminary Objection to Cumberland Valley School District's Preliminary Objections to First Amended Complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The Preliminary Objections against the Plaintiffs' First Amended Complaint filed by Defendant Cumberland Valley School District are denied; 2. Plaintiffs' Preliminary Objection to Cumberland Valley School District's Preliminary Objections to First Amended Complaint is granted; and 3. Defendant Cumberland Valley School District is afforded a period of twenty days from the date of this order within which to file a responsive pleading to Plaintiffs' first amended complaint. BY THE COURT, 1. Wesley Oler, Jr., 1. C. Grainger Bowman, Esquire KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP 17 North Second Street, 18th Floor Harrisburg, P A 17101 Counsel for Plaintiffs Charles E. Haddick, Jr., Esquire Grant W. Schonour, Esquire DICKIE, McCAMEY & CHILCOTE, P.C. Suite 205 1200 Camp Hill Bypass Camp Hill, PA 17011 Counsel for Defendant Cumberland Valley School District Stephen E. Geduldig, Esquire THOMAS, THOMAS, & HAFER, LLP 305 North Front Street Post Office Box 999 Harrisburg, P A 17108 Counsel for Defendants H.E. Rohrer, Inc., and Chad T. Kovach