A PRIMER FOR PENNSYLVANIA MUNICIPAL …

1 A PRIMER FOR PENNSYLVANIA MUNICIPAL liability ISSUESC arol Ann Murphy, EsquireHARRISBURG OFFICE3510 Trindle RoadCamp Hill, PA 17011717-975-8114 PITTSBURGH OFFICE525 William Penn PlaceSuite 3300 Pittsburgh, PA 15219412-281-4256 SCRANTON OFFICE220 Penn AvenueSuite 305 Scranton, PA 18503570-342-4231 CENTRAL PA Box 628 Hollidaysburg, PA 16648814-695-5064 MARGOLIS EDELSTEINC arol Ann Murphy, Esquire170 S. Independence Mall WestSuite 400 EPhiladelphia, PA 19106-3304(215) 931-5881 FAX (215) NEW JERSEY OFFICE100 Century ParkwaySuite 200 Mount Laurel, NJ 08054856-727-6000 NORTH NEW JERSEY OFFICE300 Connell DriveSuite 6200 Berkeley Heights, NJ 07922908-790-1401 WILMINGTON OFFICE750 Shipyard DriveSuite 102 Wilmington, DE 19801302-888-1112A PRIMER for PENNSYLVANIA MUNICIPAL liability Issues The following is summary of some of the nuances of governmental immunity andmunicipal liability defenses available in the Commonwealth of PENNSYLVANIA .

2 Thisdocument is, essentially an overview of some of the fundamentals with which any riskmanagement or claim professional should be familiar. Questions are welcome via e-mailor telephone. SOVEREIGN AND GOVERNMENTAL IMMUNITYI. TWO STATUTES The first step is to determine if the entity/agency is a Commonwealth/state agencyor a political subdivision/local agency. A. Commonwealth Party 1. 42 Pa. 8501 defines Commonwealth party as "aCommonwealth agency and any employee thereof, but only with respect to an act withinthe scope of his office or employment." 2. In order to determine whether an entity is a Commonwealth or localagency for immunity purposes, the Court looks to the entity's enabling v. Merrymead Farm, Inc., 799 972 (Pa. Cmwlth. 2002). 3. Southeastern PENNSYLVANIA Transit Authority (SEPTA) and the PortAuthority of Allegheny County (PAT) are Commonwealth parties.

3 The PennsylvaniaSupreme Court has held that "while these may both appear to be local agenciesbecause they operate on a local, not statewide, level and both have the names thatsound local, both have been adjudged by the Courts to be Commonwealthagencies for the purpose of immunity. Marshall v. Port Authority of Allegheny Cty,568 931 (Pa. 1990), re-argument denied, Feingold v. SoutheasternPennsylvania Transp. Authority, 517 1270 (Pa. 1968).4. As to independent contractors, it has been held that in determiningwhether a person is independent contractor or employee of government body forpurposes of immunity, the Court is required to consider "control of the manner workis done; responsibility for result only; terms of agreement between parties; natureof the work or occupation; skill required for performance; whether one is engagedin a distinct occupation or business; which party supplied the tools, [method ofpayment] by time or by job; whether work is part of regular business of employer, right to terminate the employment at any time".

4 Schuylkill County v. Maurer,536 479 ( 1988). Section 8501 defines "employees" as:"Any person who is acting or who has acted on behalf of a government unit,whether on a permanent or temporary basis, whether compensated or not and whetherwithin or without the territorial boundaries of the government unit, including any volunteerfiremen or any elected or appointed officer, member of a governing body or other persondesignated to act for the government unit. Independent contractors under contract to thegovernment unit and their employees and agents and persons performing tasks over whichthe government unit has no legal right of control are not employees of the governmentunit." B. Local Agency/Political Subdivision 1. 42 Pa. 8501 defines local agency as: A government unit other than the Commonwealth government. Theterm includes an intermediate unit; municipalities cooperating in theexercise or performance of governmental functions, powers orresponsibilities under 53 Pa.

5 Ch. 23, subch. A (relating tointergovernmental cooperation); and councils of government andother entities created by two or more municipalities under 53 Pa. 23 subch. A. 2. Examples of agencies found to be local agencies include city housingdevelopment corporation (See Weinerman v. City of Philadelphia, , 785 F. Supp. 1174, reconsideration denied; Philadelphia Gas Works(PGW) (See Brennon v. Philadelphia Gas Works, 605 475 (Pa. ) appeal denied 621 582, 533 Pa. 637; and Community College(See Community College of Allegheny County v. Seibert, 601 1348 ( 1992) appeal granted 608 32, 530 Pa. 658, aff'd 622 285,533 Pa. 314. II. PRE-LITIGATION NOTICE 42 Pa. 5522 requires that notice of intention to make a claim against eitherCommonwealth party or political subdivision must be made within six months after thecause of action accrued. Under 42 Pa. 5522(b) (2) "If a statement is not filed, any civil action shall bedismissed and forever barred from proceeding further thereon.)))

6 The court shall excusefailure to comply with this requirement upon a showing of reasonable excuse for failure tofile such statement." However, the notice of claim statute must first be raised by thegovernmental defendant as an affirmative defense, after which a plaintiff may set forth thereasons for his delay, shifting the burden to the defendant to aver specific facts alleged toconstitute prejudice, and the trial court balances reason for the delay against the prejudiceto the defendant. See Thomas v. The City of Philadelphia, 861 1023 (Pa. Cmwlth.,2004). Also see Ramon v. PennDOT, 556 919 (Pa. Cmwlth. 1989) aff'd 573 (Pa. 1989) in which the Court held that if a plaintiff can establish a "reasonable"cause or excuse, the government must then prove it has suffered an undue hardship. SeeYuecheko v. County of Allegheny, 243 372 (Pa. 1968) for discussion of whatconstitutes undue hardship.

7 III. WHAT YOU NEED IN ORDER TO PROCEED AGAINST A SOVEREIGN OR GOVERNMENTAL ENTITY A. Cause of Action First, you need to have cause of action which would allow the recovery ofdamages, at common law, against a tortfeasor not otherwise shielded by governmentalunity. 1. 42 8522(a) provides: liability imposed. - The general assembly, ..does hereby waive, in theinstances set forth in subsection (b) only and only to the extent set forth inthis subchapter and within the limits set forth in subsection 8528 (relating tolimitations on damages), sovereign immunity as a bar to an action againstCommonwealth parties, for damages arising out of a negligent act where thedamages would be recoverable under the common law or a statute creatinga cause of action if the injury were caused by a person not having availablethe defense of sovereign immunity. (Emphasis added).

8 42 Section8522(a). (An example of where the Court found no cause of action is the caseof Bufford v. PennDOT, 670 751 (Pa. Cmwlth. 1996) where plaintiff wasstopped by a police officer and arrested because of a foul-up by PennDOTin erroneously/negligently reporting that the defendant was driving with asignificant number of violations and/or an invalid license. The plaintiff wasarrested falsely and imprisoned and brought suit against PennDOT fornegligently maintaining his driving records. The trial court granted summaryjudgment which the Commonwealth Court affirmed and held that there wasno cause of action stated here nor did it fit within any of the eight categoriesof sovereign immunity.) 2. 42 Pa. 8542 (a) provides: liability imposed A local agency shall be liable for damages on accountof injury to a person within the limits set forth in this subchapter if both of thefollowing conditions are satisfied and the injury occurs as a result of one ofthe acts set forth in subsection (b): (1) The damages would be recoverable under common law or astatute creating a cause of action if the injury were caused by a person nothaving available a defense under 8541 (relating to governmental immunitygeneral) or 8546 (relating to defense of official immunity): and (2) The injury was caused by the negligent acts of the local agencyor an employee thereof acting within the scope of his office or duties withrespect to one of the categories listed in subsection (b).

9 As used in thesubparagraph "negligent acts" shall not include acts or conduct whichconstitutes a crime, actual fraud, actual malice or wilful misconduct.(Emphasis added). 42 Section 8542 (a) (1) & (2) 3. Burden of Proof - Plaintiff seeking to impose liability on a local agency hasthe burden of showing that the common law or a statutory cause of action fornegligence exists and the negligent act falls into one of the exceptions togovernmental immunity enumerated in the code. Tyree v. City of Pittsburgh,669 487, (Pa. Cmwlth. 1995). 4. Examples of where the courts found no cause of action. The Courts haveheld that certain actions do not represent a cause of action and, therefore,their claim fails. In Clark v. SEPTA, 691 988 (Pa. ), theCommonwealth Court held that the plaintiff's allegations of negligence forinjuries sustained during the course of his arrest by SEPTA police officers didnot fall within the exceptions of sovereign immunity.

10 The Court in Clark citedMartz v. SEPTA, 598 580 (Pa. Cmwlth. 1991) for the proposition thatallegations such as these do not constitute a cognizable cause of action inPennsylvania nor would other allegations in the complaint indicating thatSEPTA failed to adequately supervise and control their employees or failedto train and instruct them. Also see Thomas v. City of Philadelphia, 668 (Pa. Cmwlth. 1995) where the plaintiff decedent was killed while workingfor a construction company employed by the City. He was electrocuted whileworking. The trial court granted the City's Motion for Summary Judgmentfinding that there is no cause of action in the Commonwealth because of thespecial risk doctrine whereby the employee or an independent contractor (ashere) can only impose liability on the entity that hired its employer if therewas special risk at issue it did not disclose. The Court indicated that therewas no vicarious liability for negligent acts of independent contractor withinthe framework of governmental Exceptions to the Absolute Bar Secondly, the cause of injury must fit into one of the categories set forth in: 1.