City of Philadelphia v. Middleton

Dissenting Opinion by

President Judge Crumlish, Jr.:

I respectfully dissent from the majority’s holding that the City of Philadelphia’s ordinance remains in force and effect despite the General Assembly’s enactment of the Political Subdivision Tort Claims Act.

Section 802(c) of the Act as originally enacted1 provided that “ [a]ll other acts or parts of acts are re*367pealed to the extent of any inconsistency.” Even in the absence of this express legislative desire to strike down contrary laws, it is well-settled that a local ordinance cannot be sustained to the extent it contradicts, or is inconsistent with, a state law. United Tavern Owners of Philadelphia v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971). An ordinance conflicts with a statute when it permits that which the statute prohibits. MeQuillen, Municipal Corporations, §23.07 (1980).

The majority concludes that the City’s waiver of immunity for suits involving negligent or unlawful police conduct resulting in bodily injury or death is not inconsistent with the Act. It reaches this result by noting that the legislative history reveals “no indication ... that the eight exceptions listed in the Act were intended to be exclusive or that local municipalities were forbidden to waive the immunity granted by the Act. ’ ’ This inexplicably ignores a clear, unambiguous statement of legislative intent.

Section 8541 of the Judicial Code2 states: “Except as otherwise provided in this subchapter (Subchapter C, Actions Against Local Parties), 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 any employee thereof or any other person.” (Emphasis added.) This section goes beyond merely clothing local governments with an immunity defense subject to waiver. It plainly forbids any damage recoveries against political subdivisions outside the parameters of the exceptions enumerated in Section 8542 of the Code.3 The City ordinance authorizes the imposition of damages in situations that do not come within Section 8542. Therefore, the ordinance *368permits what the Act expressly prohibits, and it is thus invalid.

While the City’s officials are to be lauded for attempting to deal with perceived shortcomings in police conduct, the method chosen by them encroaches upon an area that is purely a subject of legislative direction. The route to the attainment of this remedy lies not in grafting piecemeal local appendages onto the existing legislative design, but in seeking statutory amendments to create a more flexible governmental liability umbrella.

Accordingly, I would reverse the trial court’s denial of the City’s post-trial motions.

Judge Doyle joins in this dissent.

42 Pa. C. S. §8541.

42 Pa. C. S. §8542.