If the Pennsylvania Supreme Court decides a municipal agency cannot be held liable for damages caused by the involuntary movement of a government vehicle, then the motor vehicle exception to governmental immunity under the Tort Claims Act is dead, an attorney told a full complement of the high court Wednesday.

Attorney Michael Shaffer of Shaffer & Gaier made the argument in the case Balentine v. Chester Water Authority on behalf of the estate of a man killed in a two-vehicle accident involving a Chester Water Authority truck. The Water Authority truck had been parked on the street with its motor and strobe light running, but the driver had not been inside the vehicle when it was hit by the second vehicle, which caused the truck to pin the decedent.

Last year, the Commonwealth Court determined those circumstances did not fit the motor vehicle exception to governmental immunity because the truck’s movement was involuntary, and tossed the case.

As part of his effort to revive the claims, Shaffer told the justices that considerations about whether the movement was voluntary or involuntary are questions of fact that should be put to a jury.

“If this court finds that the car has to be voluntarily moved, then there goes the vehicle exception,” Shaffer said. “Someone didn’t intend to crash into a car, or run a red light. They did it by accident.”

Over the past few years, according to attorneys, appellate courts have increasingly been grappling with the motor vehicle exception to governmental immunity. So far, the rulings have established a high hurdle for plaintiffs looking to bring suits.

During the argument session Wednesday, the justices sought to focus on the definition of “operation” in the Tort Claims Act, and peppered both sides with numerous hypotheticals, narrowing the arguments to whether the engine needed to be running, the wheels needed to be moving, or the driver needed to be in the vehicle.

Justice Max Baer gave several hypotheticals to probe the differences if the car had been stopped at a stop sign versus rolling downhill, or if the driver had been stopped along the side of the road examining a ditch from the passenger seat,

“This is not that hard, but we lawyers, we can really make things hard,” Baer said.

The justices also looked to the Supreme Court’s 1988 decision in Love v. City of Philadelphia, which has served as the basis for several Commonwealth Court decisions on the motor vehicle exception to the Tort Claims Act.

“Maybe this is an archetypal case of precedential creep,” Justice David Wecht said.

Shaffer said he agreed, and said the Commonwealth Court has muddied the issue by “improperly and unfairly” adding language to the governmental immunity statute, such as “involuntary movement.”

“We need a rule to guide us about what ‘operation’ is,” Shaffer added.

According to Shaffer, operation should hinge on whether the car was running.

Chief Justice Thomas Saylor told Shaffer the problem with his argument comes with the court’s duty to narrowly interpret the motor vehicle exception.

However, when speaking to the municipality’s counsel, Scott Gottel of Holsten & Associates, Saylor asked if the Commonwealth Court’s definition of operation had become “too constrained, too artful.”

According to Gottel, specific language in the statute indicated the exemption can only apply to “acts by a local agency,” which he argued clearly showed the driver needed to control the movement.

“It’s in operation if the vehicle is put in motion by the local agency,” Gottel said, saying the language is clear in Love.