[J-59-2017][M.O. – Mundy, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                      MIDDLE DISTRICT


VICTORIA BALENTINE, INDIVIDUALLY              :   No. 119 MAP 2016
AND AS ADMINISTRATRIX OF THE                  :
ESTATE OF EDWIN OMAR MEDINA-                  :   Appeal from the Order of the
FLORES, DECEASED,                             :   Commonwealth Court dated 6/3/16 at
                                              :   No. 1859 CD 2015 affirming the Order
                                              :   of the Delaware County Court of
               Appellant                      :   Common Pleas, Civil Division, dated
                                              :   9/2/15 at No. 13-11179
                                              :
                  v.                          :
                                              :
CHESTER WATER AUTHORITY, WYATT                :
A. ROLAND, MICHAEL W. ROLAND AND              :
CHARLES MATTHEWS,                             :
                                              :
               Appellees                      :   ARGUED:     September 13, 2017


                                DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                    DECIDED: August 21, 2018


         The majority opinion appears to accept that the uncontrolled movement of a

driverless vehicle stricken from behind is not “operation of a motor vehicle” under the

governing precedent in Love v City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988).

Nevertheless, favoring the rationale of the Love dissent and its close cousin in Warrick

v. Pro Cor Ambulance, Inc., 559 Pa. 44, 45-49 739 A.2d 127, 127-29 (1999) (Newman,

J., dissenting), the majority proceeds to overrule Love on the basis that “for the General

Assembly to have intended the abrogation of governmental immunity based on the

random factor of motion is an absurd or unreasonable result.” Majority Opinion, slip op.

at 16.
       In Love, this Court implemented its duty to narrowly construe exceptions to

sovereign immunity by adopting a construction of the word “operation” connoting actual

operation, i.e., movement of the vehicle under the direction of an operator. See id. at

374-75, 543 A.2d at 532-33.1 Significantly, the General Assembly amended the motor

vehicle exception in 1995 but did not provide further guidance concerning the definition

of operation; accordingly, the Legislature signaled its approval of the Love Court’s

construction. See 1 Pa.C.S. §1922(4); Hunt v. PSP, 603 Pa. 156, 173, 983 A.2d 627,

637 (2009) (reiterating that, when the General Assembly revisits a statutory provision,

but does not amend it contrary to this Court’s prior interpretation, it signifies its

satisfaction with the prevailing construction).

       Furthermore, other jurisdictions applying the rule of strict construction have held

that “operation” encompasses activities that are directly associated with driving a motor

vehicle. See, e.g., Chandler v. County of Muskegon, 652 N.W.2d 224, 228 (Mich. 2002)

(“[T]he common usage of the term ‘operation’ refers to the ordinary use of the vehicle as

a motor vehicle, namely, driving the vehicle.” (emphasis in original)); Texas Juv. Justice

Dep’t v. PHI, Inc., 537 S.W.3d 707, 716 (Tex. Ct. App. 2017) (applying the concept of

“active operation” in connection with strict construction of an immunity statute (emphasis

in original)). I do not regard their jurisprudence as being absurd and unreasonable.

1 In this regard, and abiding by the requirement of narrow construction, I agree with the
line of Commonwealth Court decisions holding that causality is also assessed in terms
of present operation. See, e.g., PSP v. Robinson, 123 Pa. Cmwlth. 401, 403-404, 554
A.2d 172, 174 (1989) (observing that, even if the placement of the vehicle may have a
causal relationship to the injury, the motor vehicle exception does not apply unless the
vehicle is actually in motion at the time of the injury); City of Phila. v. Melendez, 156 Pa.
Cmwlth. 271, 275, 627 A.2d 234, 236 (1993) (determining that, because the vehicle was
not being parked at the time of the collision, but rather, was already parked, it was no
longer in operation); accord Mickle v. City of Philadelphia, 550 Pa. 539, 543, 707 A.2d
1124, 1126 (1998) (observing that “operation at the time of the accident [is] required by
Love” (emphasis added)).


                             [J-59-2017][M.O. – Mundy, J.] - 2
Rather, I find that it derives rationally and directly from an accustomed understanding of

the notion of “operation” and application of the requirement of narrow construction.

       Nor do I deem the ostensible tension between Mickle and Love, see Majority

Opinion, slip op. at 10-11, to be material.         There will always be accretions and

observable inconsistencies in this Court’s decisions, as they are often a product of

shifting majorities formed amongst fundamentally different approaches expressed with

deep conviction. The primary stabilizing influence is the doctrine of stare decisis, which

is the principle upon which I rely here. In this regard, I simply do not agree that binding

precedent should be overturned based on the majority’s bare assertion that the Love

Court’s definition “has impeded the development of consistent and logical case law,”

Majority Opinion, slip op. at 12. See generally Hunt, 603 Pa. at 174, 983 A.2d at 637–

38 (“[F]or purposes of stability and predictability that are essential to the rule of law, the

forceful inclination of courts should favor adherence to the general rule of abiding by

that which has been settled. Moreover, stare decisis has ‘special force’ in matters of

statutory, as opposed to constitutional, construction, because in the statutory arena the

legislative body is free to correct any errant interpretation of its intentions[.]” (citation

omitted)).

       To me, it is not so much Love, per se, that seems to be in issue, but rather, the

underlying precept that exceptions to sovereign and governmental immunity are to be

narrowly construed. See Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d
1118, 1123 (1987); Snyder v. Harmon, 522 Pa. 424, 433-34, 562 A.2d 307, 312 (1989).

Given the tremendous hostility of the Court to sovereign immunity manifested in its

decisions in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d
709 (1978), and Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d
877 (1973), one might have thought that the Court would have cemented a contrary


                             [J-59-2017][M.O. – Mundy, J.] - 3
rule, at least in the absence of explicit legislative direction. But, again, we are where we

are, and, from my point of view, the issue of whether the longstanding precedent should

now be displaced should be left to the Legislature, consistent with stare decisis and

governing principles of statutory construction.

       Finally, I respectfully disagree that the Love Court’s definition of operation is

“untethered to the narrow question addressed” therein and, therefore, constitutes dicta.

Concurring Opinion at 2 (Baer, J.). The central issue in Love -- whether entering into or

alighting from a motor vehicle constitutes operation -- could not have been resolved

without first defining the term “operation.” See Seminole Tribe of Florida v. Florida, 517
U.S. 44, 67 116 S. Ct. 1114, 1129 (1996) (“We adhere . . . not to mere obiter dicta, but

rather to the well-established rationale upon which the Court based the results of its

earlier decisions. When an opinion issues . . . it is not only the result but also those

portions of the opinion necessary to that result by which we are bound.”); accord

Engweiler v. Persson, 316 P.3d 264, 270 (Or. 2013) (declining to treat a court’s prior

construction of a term as dicta because it was a predicate to the ultimate resolution of

that case); Bellar v. National Motor Fleets, Inc., 450 S.W.2d 312, 314 (Tenn. 1970) (“On

principle and reason . . . a case construing the particular words of a statute could hardly

ever be dictum in a later case involving the same statut[ory] language.”). I fail to see

how trial courts and intermediate courts are to differentiate between controlling

precedent and dicta if the definition of a term that is essential to the resolution of a case

is treated as dictum.

       For the above reasons, I respectfully dissent.




                            [J-59-2017][M.O. – Mundy, J.] - 4