author: Justice STEVENS. Justice SAYLOR, Justice TODD,

text:
    106 A.3d 679
    Celeste SELLERS and Richard K. Sellers, Individually and as Administrators of the Estate of Joshua David Sellers, Deceased, Appellants, v. TOWNSHIP OF ABINGTON and Officer Edward Howley, Individually and as an Employee of Township of Abington and Lt. Karl Knott, Individually and as an Employee of Township of Abington, Appellees.
    Supreme Court of Pennsylvania.
    Argued May 7, 2014.
    Decided Dec. 29, 2014.

      Laurence M. Kelly, Esq., Kelly Law Offices for Pennsylvania Association for Justice, Amicus Curiae.
    Jane Bossard Marton, Esq., Selah Tenet Nancy Wyche, Esq., Kornblau, Kornblau & Solomon, PC, for Celeste Sellers & Richard Sellers, Individually and Administrators of Estate of Joshua Sellers.
    Christopher Paul Boyle, Esq., John Jacob Hare, Carol Ann VanderWoude, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, P.C., for Township of Abington; Officer Edward Howley; Lt. Karl Knott.
    Scott Everett Coburn, Esq., PA State Association of Township Supervisors, for Co. Commissioners Assoc, of PA, PA Municipal League, PA St. Assoc, of Boroughs, et al.
    David Lee Schwalm, Esq., Thomas, Thomas & Hafer, L.L.P., for Fraternal Order of Police-PA State Lodge, Fraternal Order of Police-Lodge No. 5, et al.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
   OPINION

Justice STEVENS.

This is an appeal from a Commonwealth Court Opinion which affirmed the trial court’s entry of summary judgment and dismissal of Appellants’ wrongful death and survival action. The central issue presented is whether a local agency owes a common law or statutory duty of care to a passenger of a fleeing vehicle, whose existence or relationship to the fleeing driver is unknown to the pursuing police officer. We affirm.

I. Background

On the evening of December 23, 2006, Scott Simons (Simons), Matthew Senger (Senger) and Joshua Sellers (decedent) met at the home of a mutual friend on Jenkintown Road in Abington Township. Simons had been drinking all day prior to this engagement, but testified that he did not drink at the Jenkintown Road residence. Senger, however, testified that all three men drank beer while at the Jenkintown Road residence.

In the early morning hours of December 24, 2006, Senger and decedent asked Simons for a ride home, and it was agreed that Simons would drive Senger home and decedent would spend the night at Simons’ residence. Senger rode in the front passenger seat, while decedent sat in the back rear passenger seat. None of the men fastened their seatbelts. Simons testified that he was, in fact, drunk when he left the party, and admitted that this was not the first time he had driven his friends home drunk.

According to Simons, while driving west on Jenkintown Road at between 40 and 45 mph in a 30 mph zone, he noticed a police car pass him travelling east. Simons testified that the police car made a U-turn and began following Simons with its lights and siren activated. Simons admitted that instead of pulling over, he fled, as he was “scared of getting a DUI.” Deposition of Scott Simons, 9/10/2009 at 18. Senger testified that when Simons initially “floored his car,” he was not aware that police were pursuing the car. Deposition of Matthew Senger, 12/4/2009 at 28. Senger estimated that Simons was driving “well over 100” miles per hour. Id. at 34. Simons then arrived at Senger’s home, and as goodbyes were exchanged, Senger noticed reflections of police lights in the windows of nearby homes. Before Senger could exit the vehicle, Simons again floored it and shut off his headlights. Senger testified that both he and decedent then asked Simons to slow down, as they were aware of a dip in the road ahead. Simons, however, continued at a high rate of speed and ultimately hit the dip in the road. The car was sent airborne and crashed into trees and a parked pickup truck. Simons and Senger suffered minor injuries, while decedent was ejected from the vehicle and thrown 20 feet therefrom, suffering a catastrophic brain injury, along with other injuries.

Officer Edward Howley of the Abington Township Police Department testified that on the night in question he was travelling westbound on Jenkintown Road, when he heard the sound of a loud exhaust, and saw the taillights of a vehicle far in the distance proceeding in the same direction as his patrol car. Officer Howley testified that he attempted to gain ground on the vehicle, and when he himself accelerated to over the posted speed limit of 30 mph, he activated his lights and siren, at which time the in-car camera system automatically began to record.

The in-car camera recording corroborated Officer Howley’s account and established that at approximately 3:49 a.m., Officer Howley first observed a vehicle in the distance, travelling westbound, in the same direction as the officer. Approximately thirty seconds later, Officer Howley activated his overhead lights and siren. The vehicle is then seen turning onto Garfield Avenue, as Officer Howley radioed in that he was pursuing a red Mustang travelling northbound on Garfield. This is the last time the Mustang is seen on the video. Officer Howley made the turn onto Garfield and reported that the car had been traveling at a high rate of speed, and he suspected the driver was driving under the influence. Lt. Karl Knott, Officer Howley’s supervising officer, ordered Officer Howley to stay with the Mustang. At approximately 3:50 a.m., Officer Howley radioed that he had lost the car. At approximately 3:51 a.m., Officer Howley received a radio call indicating that the Mustang had crashed into a house on Meyer Avenue. Officer Howley arrived at the scene shortly thereafter and immediately radioed for EMS to respond to the scene. The video established that seventy-four seconds passed between the moment Officer Howley activated his lights until he deactivated the lights. Simons’ car, however, was only visible on the recording for sixteen seconds.

Celeste and Richard Sellers, parents of decedent (Appellants) filed a wrongful death and survival action against the Township of Abington, Officer Edward Howley, and Lieutenant Karl Knott (Appellees) asserting claims for negligence and punitive damages. Appellants alleged that Appellees caused the death of decedent when Officer Howley negligently, recklessly, and willfully initiated and failed to terminate a high speed pursuit of Simons’ vehicle. After the completion of discovery, Appellees moved for summary judgment based upon governmental immunity, citing to the Political Division Tort Claims Act (Tort Claims Act), 42 Pa.C.S. § 8541, which states “[ejxcept 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 person.” 42 Pa.C.S. § 8541.

The trial court granted Appellees’ motion, reasoning they enjoyed Section 8541 governmental immunity. The trial court found that Appellees did not fall under any of the enumerated exceptions to immunity set forth in 42 Pa.C.S. § 8542, in which a local agency may still be liable for injuries caused by a local agency or its employees. The trial court emphasized that 42 Pa.C.S. § 8542 specifically states that governmental liability may not attach for official negligence occurring while plaintiff was in flight or fleeing apprehension or resisting arrest by police. Additionally, the court concluded, that Officer Howley acted reasonably throughout the entire pursuit.

Appellants appealed the trial court’s determination to the Commonwealth Court, which affirmed the trial court’s order in a published opinion. The en banc Commonwealth Court panel concluded that, while police owe a duty to innocent third parties, see Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997), such a duty does not extend to “unknown passengers” of a fleeing vehicle. Sellers v. Twp. of Abington, 67 A.3d 863, 871 (Pa.Cmwlth.2013). In reaching this conclusion, the Commonwealth Court applied the factors informing the duty analysis set forth in Althaus ex rel. v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000), which this Court applied in Lindstrom v. City of Corry, 563 Pa. 579, 763 A.2d 394 (2000) to conclude that police officers do not owe a duty of care to fleeing suspects. These factors include:

(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

Lindstrom, supra at 397, citing Althaus, supra at 1169. In analyzing these factors, this Court stated in Lindstrom:

As to the first factor, regarding the relationship between the parties, a law enforcement officer is a protector of all members of the public. The officer’s relationship to the fleeing suspect must be viewed in light of the broader relationship to the safety of the community he or she serves. Any duty of protection the officer has is lessened as soon as the driver flees rather than complying with a request to stop. The second factor weighs against imposing a duty, as the social utility of a police officer’s attempt to apprehend a person suspected of violating the law is beyond dispute. Turning to the third factor, it is evident that there is a risk of injury to the fleeing driver, and it is foreseeable that drivers who refuse to pull over when alerted to do so may be injured in their attempt to elude an officer. Fourth, the consequences of imposing a duty upon officers are burdensome, as that may prevent the apprehension of dangerous criminals and further encourage flight. Finally, the public has a preeminent interest in ensuring that roadways remain safe from dangerous drivers and criminals and that police officers are empowered to enforce the law.

Id.

The Commonwealth Court applied these factors to the instant case and found that they weighed against imposing a duty of care to unknown passengers in a fleeing vehicle. Accordingly, the Commonwealth Court held that because Appellees owed no duty to decedent, negligence could not attach, and summary judgment was appropriate as a matter of law.

Judge Leavitt authored an extensive dissenting opinion, expressing concern that the majority’s holding improperly extended existing common law and the rationale of Lindstrom. Sellers v. Township of Abington, 67 A.3d 863, 872 (Pa.Cmwlth. 2013) (Leavitt, J., dissenting). Moreover, Judge Leavitt reasoned that summary judgment was not appropriate even when applying the majority’s standard, as the standard requires factual findings as to the officer’s awareness of the passengers. Id. at 880.

Appellants filed a Petition for Allowance of Appeal with this Court, which was limitedly granted on December 20, 2013. We accepted the following issues, as framed by Appellants, for review:

a) Whether the Pennsylvania Commonwealth Court should have properly reversed the trial court’s erroneous granting of summary judgment on the basis that police officers do not owe a duty of care to innocent bystanders in a fleeing vehicle which is in direct conflict with this Court’s decision in Jones v. Chieffo, [549 Pa. 46, 700 A.2d 417 (1997) ] and the Commonwealth Court’s decision in Aiken v. Borough of Blaumox, 747 A.2d 1282 (Pa.Cmwlth.2000)?
b) Whether the Pennsylvania Commonwealth Court should have properly reversed the trial court’s erroneous resolution of questions of fact whether the passenger in a fleeing vehicle was an innocent bystander to whom a duty of care was owed?
c) Whether the Pennsylvania Commonwealth Court should have properly reversed the trial court’s erroneous granting of summary judgment on the basis that police officers do not owe a duty of care to innocent bystanders in a fleeing vehicle which is in direct conflict with Black v. Shrewsburgy [Shrewsbury] Borough, 675 A.2d 381 (Pa. Cmwlth.1996)?
d) Whether the Pennsylvania Commonwealth Court should have properly reversed the trial court’s erroneous extension to innocent bystander passengers of the limited immunity of 42 Pa.C.S. § 8542(b)(1) which only applies to fleeing suspects and which is a matter of first impression unauthorized by existing law?
e) Whether the Pennsylvania Commonwealth Court should have properly reversed the trial court’s erroneous blanket application of 42 Pa.C.S. § 8542 without first requiring a jury determination whether plaintiffs decedent, an innocent passenger, was aiding or abetting the fleeing driver?
f) Whether the Pennsylvania Commonwealth Court should have reversed the trial court’s granting of summary judgment where the trial court improperly decided as a matter of law that no duty was owed without first requiring a jury determination of the disputed questions of fact whether the officer knew or should have known of the existence of innocent passengers in the vehicle and therefore whether the police pursuit was negligently initiated and maintained?
g) Whether the Commonwealth Court should have reversed the trial court’s creation of a new rule of law which eliminates a police officer’s duty of care to the public, including passengers in a fleeing vehicle, regardless of the police officer’s intent, motive, or circumstances surrounding the police pursuit in violation of public policy which is an absurd and unreasonable result threatening the lives of the public, including all innocent bystanders/passengers?

Sellers v. Twp. of Abington & Howley, 623 Pa. 247, 82 A.3d 430 (2013).

In reviewing a grant of summary judgment, an appellate court may disturb the decision only if there has been an error of law or a manifest abuse of discretion. Jones, supra at 419, n. 2. Summary judgment is appropriate “only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (2010). The question of whether there are genuine issues of material fact presents a question of law, and therefore, our standard of review on that question is de novo. Id.

II. Arguments

Appellants present a multi-faceted attack against the Commonwealth Court’s decision and urge this Court to find that Appellees owed a duty of care to decedent. Appellants first contend that Section 3105(e) of the Vehicle Code, commonly referred to as the “emergency vehicle doctrine,” imposes upon officers a duty “to drive with due regard for the safety of all persons,” and that the Commonwealth Court erred by creating a question of duty. 75 Pa.C.S. § 3105(e).

Appellants next maintain that the Commonwealth Court’s holding that officers do not owe a duty of care to unknown passengers in a fleeing car is in direct conflict with this Court’s holding in Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997) and the Commonwealth Court’s holding in Aiken v. Borough of Blawnox, 747 A.2d 1282 (Pa.Cmwlth.2000). Appellants argue that the holdings in Jones and Aiken “show the preference of Pennsylvania courts to protect the rights and safety of innocent bystanders by allowing them to maintain an action against a municipality and its officers for negligent ... high speed pursuits ...” Appellants’ Brief at 26.

In Jones, an innocent third party was injured when a car fleeing from police collided with the car of the third party. This Court found that when an innocent third party is injured as a result of a police pursuit, “a governmental party is not immune from liability when its negligence, along with a [fleeing driver’s] negligence, causes harm.” Jones, supra at 420. This Court further determined that the question of whether defendant police officers were jointly liable with the driver and whether their negligence was a substantial factor in causing the third party’s injuries, should be left to a jury. Id.

Similarly, in Aiken, the Commonwealth Court held that an innocent bystander, injured when his car was struck by a car fleeing from police, could maintain an action against the government alleging that officers were negligent in maintaining a high-speed pursuit. Aiken, supra at 1285. The Commonwealth Court further held in Aiken that “a jury must decide whether Appellees’ alleged negligence was a substantial factor causing Appellant’s harm and whether the fleeing suspect’s actions were a superseding cause.” Id.

Appellants next contend that the Commonwealth Court’s holding eliminated two genuine issues of material fact from jury determination. First, Appellants suggest that the holding provides an incentive for police officers who engage in negligent and/or reckless high-speed chases to he and claim ignorance of the existence of passengers in a vehicle, and therefore ehminate any culpability. Second, Appellants argue that the new rule eliminates the prerequisite to a police officer’s immunity from liability in a high-speed chase established in 42 Pa.C.S. § 8542(b)(1), that the passenger is aiding and abetting the flight from police. Appellants contend that the record is devoid of any factual findings that would suggest decedent was aiding or abetting flight, and at the very least, this question should have been decided by a jury.

Appellants further allege that the Commonwealth Court disregarded its own ruling in Black v. Shrewsbury Borough, 675 A.2d 381 (Pa.Cmwlth.1996), where the Commonwealth Court found that a police officer owed a duty of care to passengers in a vehicle involved in a police pursuit. In Black, officers began a pursuit of a vehicle driven by Joseph Black, with probable cause to believe that Black had committed multiple violations of the Vehicle Code. The police report in Black indicated that the officers knew the identity of the driver and knew that there were passengers in the vehicle. The Commonwealth Court ultimately decided that it was within the province of the jury to decide if Black’s conduct was a superseding cause of the passenger’s injuries. Black v. Shrewsbury Borough, 675 A.2d 381, 385 (Pa.Cmwlth.1996).

Appellants next contend that the Commonwealth Court erroneously relied on Ferguson v. Commonwealth, 2009 U.S. Dist. LEXIS 20099 (W.D.Pa., Mar. 13, 2009), which Appellants argue is factually distinguishable from the case sub judice. The Commonwealth Court cited with approval to Ferguson in which it was determined that officers did not owe a duty to the passenger of a fleeing vehicle who was injured as the result of a police pursuit. Appellants assert that officers in Ferguson believed that both the driver and the passenger were engaged in criminal activity, whereas instantly there is no evidence to suggest that decedent was in any way involved in any criminal activity.

Appellants argue that expanding the statutory framework of the Tort Claims Act to include innocent passengers in Section 8542(b)(1) is inappropriate, as Pennsylvania’s legislature and courts have only created two classes of individuals who could be injured as a result of a police chase: innocent bystanders and fleeing suspects and their accomplices. Appellants argue that by making a finding of aiding and abetting a prerequisite to granting immunity to defendants as a matter of law, the legislature has made clear the intention that innocent passengers are to be protected. Moreover, Appellants cite to Judge Leavitt’s dissent for the contention that under the Commonwealth Court’s holding, officers have no duty to innocent bystanders such as kidnap victims present in fleeing vehicles. Appellants further contend that the Commonwealth Court’s holding “allows police officers to engage in reckless and dangerous police pursuits throughout the entirety of Pennsylvania ...” Appellants’ Brief at 53.

Finally, Appellants advocate adopting the approach of the Michigan Supreme Court in Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), which Judge Leavitt cited to with approval in her dissenting opinion. Robinson placed the burden of proof on the plaintiff to establish that the passenger of the fleeing vehicle was an innocent passenger who was owed a duty by the pursuing police. Appellants ask that this Court hold that a police officer involved in a police pursuit should always assume that there are at least two persons in the fleeing vehicle, one of whom is not aiding and abetting.

Conversely, Appellees argue that the Commonwealth Court properly held that Appellees owed no common law duty of care to decedent, and therefore contend that the Commonwealth Court’s opinion should stand. First, Appellees outline the applicable policies of the Tort Claims Act, which provides that “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.” 42 Pa.C.S. § 8541. Appellees acknowledge 42 Pa. C.S. § 8542 provides, in part, that an injured party may recover in tort from a local agency if:

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection.

42 Pa.C.S. § 8542(a). Appellees explain that this Court has instructed that “[t]hese exceptions must be construed strictly because of the clear legislative intent to insulate government from exposure to tort liability.” Lindstrom, supra at 397.

Appellees next argue that Appellants’ contention that “a prerequisite to a police officer’s immunity from liability in a high-speed chase is a determination that the passenger is aiding and abetting the flight from police,” is a misapprehension of the Tort Claims Act. Appellees’ Brief at 28, quoting Appellants’ Brief at 28. Appellees contend that the vehicle liability exception may not even be invoked until a plaintiff establishes that damages would be recoverable under common law. See Lindstrom, supra at 397 (“Initially, we must determine if Appellees can meet the threshold requirement of 42 Pa.C.S. § 8542(a)(1), namely, whether Appellants owed [decedent] a common law duty”). Appellees argue that because Appellants did not meet the duty requirement, the vehicle liability exception of the Torts Claim Act is not applicable.

Appellees further contend that Appellants’ claim that a jury must determine whether a police pursuit was negligent demonstrates a misunderstanding of basic negligence law. Appellees maintain that where, as here, there is no duty of care, there can be no negligence as a matter of law. T.A. v. Allen (Appeal of Allen), 447 Pa.Super. 302, 669 A.2d 360, 362 (1995).

Appellees further maintain that the Commonwealth Court’s reasoning that to impose a duty of care to unknown passengers in a fleeing vehicle would be unworkable in the field of law enforcement, is consistent with this Court’s rationale in Lindstrom, where this Court found that officers do not owe a duty of care to fleeing drivers. Appellees argue that Appellants largely ignored Lindstrom in their brief to this Court.

Appellees next argue that the Commonwealth Court properly found that Jones and Aiken are inapposite to the instant case. Appellees explain that while the injured parties in each case were permitted to maintain an action against the government alleging negligent high-speed pursuits, the plaintiffs of each case were occupants of vehicles which were not involved in the pursuit. Appellees contend that decedent should not be considered an innocent bystander, as he willingly accepted a ride home from an intoxicated driver.

Appellees further argue that Appellants’ reliance on Black is misplaced, as Black involved an appeal from a trial court order sustaining preliminary objections and dismissing plaintiffs complaint without discovery, while the instant case involves an appeal from a summary judgment ruling on a developed record, with extensive discovery. Additionally, Appellees contend that the Commonwealth Court did not decide the issue of whether officers owe a duty to passengers of a fleeing vehicle, but rather the court only addressed the issue of whether the conduct of the fleeing driver was the unforeseeable and superseding cause of the accident.

Finally, Appellees contend that Appellants’ claim that “material issues in dispute should have been placed in the hands of the jury” is misguided. Appellants argue that evidence is “conflicting” as to whether police knew that there were passengers in the vehicle, as Simons claims that Officer Howley passed the vehicle on the opposite side of the road before pursuing the vehicle. Appellees argue, however, that Simons’ testimony is blatantly contradicted by the in-car camera footage, which shows Officer Howley travelling in the same direction as Simons at all relevant times. Appellees argue that Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) stands for the proposition that “witness accounts seeking to contradict an unambiguous video recording do not create a triable issue of fact.” Appellees’ Brief at 41.

III. Analysis

We granted allocatur on seven issues as framed by Appellants. These issues are inter-related and will be treated as such infra. Local agencies of this Commonwealth are immunized from liability “for 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.” 42 Pa.C.S. § 8541. There are, however, exceptions to this statutory grant of immunity. 42 Pa.C.S. § 8542 states, in relevant part:

(a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property ■within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
(b) 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 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.

42 Pa.C.S. § 8542(a), (b)(1).

We must first determine, therefore, whether Appellants have met the threshold requirement of 42 Pa.C.S. § 8542(a)(1), specifically, whether Appellees owe a common law or statutory duty of care to passengers in a fleeing vehicle whose existence, or whose connection to the driver, is unknown to the officer at the time of the pursuit. The assessment of whether a duty of care is owed to a particular individual or class of individuals is a matter for the courts to decide, not juries. Seebold v. Prison Health Servs., 618 Pa. 632, 57 A.3d 1232, 1247 (2012).

Appellants contend that Section 3105(e) of the Vehicle Code establishes an actionable statutory duty on the part of the pursuing officer that satisfies the threshold requirement of 42 Pa.C.S. § 8542(a)(1). This contention is misguided. Section 3105(e) of the Vehicle Code states, in relevant part, “This section does not relieve the driver of an emergency-vehicle from the duty to drive with due regard for the safety of all persons.” 75 Pa.C.S. § 3105(e). Mindful that when construing a statute, we presume the legislature “intends to favor the public interest as against any private interest,” we find that Section 3105(e) of the Vehicle Code does not create a statutory duty to unknown passengers in a vehicle. 1 Pa.C.S. § 1922(5). Section 3105(e) does not create a separate statutory duty on emergency vehicle drivers, but rather recognizes that emergency vehicle drivers still owe a common law duty to the public at large, i.e. innocent bystanders.

Having determined that Section 3105(e) does not create a statutory duty to unknown passengers in a fleeing vehicle, we must now determine whether such a common law duty exists. This Court has explained that “[t]he legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society.” Althaus, supra at 1169. In Althaus, this Court established the following five factors which must be weighed to determine if a duty of care exists:

(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

Althaus, supra at 1169. We will now utilize these factors to determine if police owe a duty of care to unknown passengers in a fleeing vehicle.

First, as we indicated in Lindstrom, “a law enforcement officer is a protector of all members of the public.” Lindstrom, supra at 397. We must, therefore, view the first factor, the relationship between the officers and passengers in a fleeing vehicle, in the broader context of the relationship the officer has to the community he or she serves. Id. An officer’s relationship to the community he or she serves hinges on the officer’s ability to keep the members of the community safe from criminals, including dangerous drivers. Accordingly, where, as here, the officer was unaware of the presence of a passenger in a fleeing vehicle, this first factor weighs against imposing a duty.

As we found in Lindstrom, the second factor weighs against imposing a duty, as “the social utility of a police officer’s attempt to apprehend a person suspected of violating the law is beyond dispute.” Id. This social utility is not curtailed by the addition of an unknown passenger in a fleeing vehicle.

As to the third factor, we acknowledge that we found in Lindstrom that it is foreseeable that a fleeing driver may be injured in his attempt to elude an officer. Id. Instantly, because injury to an unknown passenger is not foreseeable, we find that the nature of the risk imposed and the foreseeability of the harm incurred to an unknown passenger weighs against imposing a duty on pursuing officers.

The fourth factor weighs heavily against imposing a duty on officers. Imposing a duty on officers to unknown passengers in a fleeing vehicle would present an unworkable burden on officers, essentially halting police pursuits. The decision to pursue a fleeing vehicle is one that must be made in a matter of seconds. To require officers to not only establish the presence of passengers, but also discover the relationship of the passengers to the fleeing driver, would be unmanageable in the necessarily fast-paced environment of law enforcement. Moreover, officers, fearing the risk of civil liability, would be less likely to initiate pursuit, which would likely encourage criminals to flee.

Finally, as we found in Lindstrom, “the public has a preeminent interest in ensuring that roadways remain safe from dangerous drivers and criminals and that police officers are empowered to enforce the law.” Id. These factors, when weighed against one another, militate heavily against imposing a duty on officers to unknown passengers in a fleeing vehicle. Appellants fail to meet the threshold requirement of the Tort Claims Act, and therefore, we need not determine whether this claim falls within the vehicle liability exception found in 42 Pa.C.S. § 8542(b)(1). See, Lindstrom, supra at 398.

As this case was decided on summary judgment, there have not been factual determinations made by a judge or jury. As discussed supra, Appellants’ version of events of the night in question differ greatly from Officer Howley’s version. Appellants claim that Officer Howley was driving in the opposite direction as Simons, and therefore Officer Howley likely saw decedent and Senger in the vehicle. The in-car camera recording, however, blatantly contradicts this assertion, revealing that Officer Howley was driving behind Simons, travelling in the same direction, when he initiated the pursuit, and therefore summary judgment was appropriate. See, Scott v. Harris, supra at 380,127 S.Ct. 1769 (where the United States Supreme Court found that when video evidence blatantly contradicts the opposing party’s version of events, a court should not adopt the opposing party’s version of facts for purposes of ruling on a summary judgment).

For the aforementioned reasons, we affirm the order of the Commonwealth Court.

Former Justice McCAFFERY did not participate in the decision of this case.

Chief Justice CASTILLE and Justices EAKIN and BAER join the opinion.

Justice SAYLOR files a concurring opinion.

Justice TODD files a concurring opinion.

Justice SAYLOR,

concurring.

I agree with the majority’s determination that, as a threshold matter, Section 8542(a)(1) of the Judicial Code requires the existence of a statutory or common law duty of care (in this case, to unknown passengers in a fleeing vehicle), and that the Vehicle Code does not establish such a duty on the part of a pursuing officer. See Majority Opinion, at 345-47, 106 A.3d at 687-89 (citing 42 Pa.C.S. § 8542(a)(1); 75 Pa.C.S. § 3105). However, my reasoning in support of affirmance rests on grounds different from those expressed by the majority. In particular, it is my view that, prior to the utilization of the Althaus factors, see Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000), the litigants must first present record-based advocacy and comprehensive discussion of the competing policy matters implicated by the imposition of a new affirmative duty. See Lance v. Wyeth, 624 Pa. 231, 264-65, 85 A.3d 434, 454 (2014). As they have not done so here, I find more appropriate the Court’s approach to the duty question as employed in Lance and Seebold v. Prison Health Services, Inc., 618 Pa. 632, 57 A.3d 1232 (2012).

The Court has observed that the “task of rendering duty versus no-duty decisions ... is one to which we are the least well suited,” as such an inquiry “entails wading through ‘shifting sands [with] no fit foundation.’ ” Seebold, 618 Pa. at 652-53, 57 A.3d at 1245 (quoting Dean William L. Prosser, Palsgraf Revisited, 52 Mich. L.Rev. 1, 14-15 (1953)); see also Althaus, 562 Pa. at 553, 756 A.2d at 1169 (“[T]he legal concept of duty of care is necessarily rooted in often amorphous public policy considerations.... ”). In this regard, the Legislature is in a superior position to assess social policy questions, given its ability to conduct investigations and hearings. See Seebold, 618 Pa. at 653, 57 A.3d at 1245. Accordingly, the Court has adopted the “default position that, unless the justifications for and consequences of judicial policymaking are reasonably clear with the balance of factors favorably predominating, we will not impose new affirmative duties.” Id. at 653-54, 57 A.3d at 1245. Stated another way, it must be reasonably clear and certain that any change to the landscape of common law duties will serve the best interests of society. See Cafazzo v. Cent. Med. Health Servs., Inc., 542 Pa. 526, 537, 668 A.2d 521, 527 (1995) (quoting Hoven v. Kelble, 79 Wis.2d 444, 256 N.W.2d 379, 391 (1977)). Thus, it is imperative that litigants engage in “a comprehensive discussion of the competing policies and present the sort of record (including empirical information) which would support an informed, legislative-type judgment, again, grounded in a clear predominance of justifications.” Lance, 624 Pa. at 265, 85 A.3d at 454 (citing Seebold, 618 Pa. at 657-62 & n. 24, 57 A.3d at 1248-51 & n. 24).

In my view, the present matter is emblematic of the type of policy balancing to which the adjudicatory process is ill suited, see id. at 264, 85 A.3d at 454, (“[T]he adjudicatory process does not translate readily into the field of broad-scale policy-making.” (citing Seebold, 618 Pa. at 652-53, 57 A.3d at 1245)), and this difficulty is magnified by the parties’ failure to provide “a full and balanced record covering the range of relevant policy matters.” Id. at 266, 85 A.3d at 455. Instead, they offer only a cursory treatment of the implications of extending the common law duty of care to unknown passengers. In particular, Appellants only briefly discuss the policy concerns relative to the increased threat to human life if immunity is extended to officers engaging in high-risk pursuits premised on minor traffic violations. See Brief for Appellants at 51, 52-53. As for Appellees, they merely observe that there is a preeminent public interest in law enforcement’s ability to ensure roadway safety; they assert that the imposition of a duty of care to passengers would effectively eliminate police pursuits. See Brief for Appellees at 23, 26.

In this way, the parties fail to effectively consider the spectrum of scenarios and possible attendant duties that may depend on such factors as the identity of a passenger, see, e.g., Brief for Appellees at 34 (dismissing, as not relevant to this case, the notion that policy considerations may weigh in favor of imposing a duty in kidnapping or child-involved situations), or the availability and effectiveness of current and emerging technologies available to police to avoid high-speed pursuits in the first instance. See, e.g., Benjamin Buchwalter, Return to “Reasonable” in Section 1983 Police Pursuit Excessive Force Litigation, 65 Hastings L.J. 1665, 1679-81 (2014) (discussing new technologies designed to identify fleeing suspects and halt pursued vehicles without the need for a chase). Additionally, Appellants apparently recognized the importance of empirical evidence, as they introduced into the record an expert report opining, based on empirical analysis, that the pursuit in this case was improper. However, and as noted, the parties’ narrow focus on the facts of this matter neglects the wider evidentiary perspective and discussion required for a broad-scale duty determination, notwithstanding that seemingly relevant information is publicly available.

Thus, to my mind, the present advocacy falls critically short of “supporting] an informed, legislative-type judgment ... grounded in a clear predominance of justifications” that could warrant the extension of a duty of care to unknown passengers. Lance, 624 Pa. at 265, 85 A.3d at 454 (citing Seebold, 618 Pa. at 657-62 & n. 24, 57 A.3d at 1248-51 & n. 24). Moreover, I believe that this same deficiency deprives the Court of any ability, presently, to reasonably assess the broad policy issues posed by the Althaus factors. It is on this basis that I would reject Appellants’ proffer favoring the judicial creation of a duty of care to unknown passengers in a fleeing vehicle.

As pertains to the evidentiary issue on which we granted review, I disagree with the majority’s characterization of the in-car camera recording as “blatantly contradict[ing]” Appellants’ claim that Officer Howley was driving in the opposite direction of the Ford Mustang prior to initiating the pursuit and, at that time, observed passengers in the vehicle. Majority Opinion, at 349, 106 A.3d at 689-90. The camera captured only 30 seconds of video before the officer engaged his emergency lights, and thus, the recording does not indicate in what direction the police car was previously traveling or whether it had passed the Mustang. Accordingly, I believe the generally applicable rule of summary judgment, that review of the record is conducted in the light most favorable to the non-moving party, should control in this instance. See Young v. Commonwealth, Dep’t of Transp., 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000). In any event, given that the resolution of the duty question is not dependent on whether the officer knew of other occupants in the vehicle, I consider this issue to be moot.

Justice TODD,

concurring.

I concur with the majority that the Superior Court’s order must be affirmed, as I agree that a balancing of the Althaus factors weighs against the imposition of a duty of care to “unknown passengers” in a fleeing vehicle, where the term “unknown passengers” includes both “passengers whose presence in the vehicle or connection to the driver is unknown to the pursuing officer.” See Majority Opinion at 336 n. 5, 106 A.3d at 682 n. 5 (emphasis added). I write separately, however, because I conclude the Althaus analysis is more nuanced than that offered by the majority, which is, in some respects, erroneous on its own terms.

As noted by the majority, a prerequisite to the determination of immunity for damages resulting from alleged negligent acts by a local agency is the establishment of a common law or statutory duty of care owed to the injured party. See Majority Opinion at 345-47, 106 A.3d at 687-89; 42 Pa.C.S.A. § 8542(a). Further, as this Court explained in Althaus, in determining whether a common law duty exists in a particular case, a court must weigh a number of factors, including: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. 756 A.2d at 1169. The majority concludes that these factors, “when weighed against one another, militate heavily against imposing a duty on officers to unknown passengers in a fleeing vehicle.” Majority Opinion at 349, 106 A.3d at 690. Overall, I agree with this assessment.

I disagree, however, with the majority’s analysis of the first Althaus factor — the relationship between the parties. In Lindstrom v. City of Corry, this Court explained:

[A] law enforcement officer is a protector of all members of the public. The officer’s relationship to the fleeing suspect must be viewed in light of the broader relationship to the safety of the community he or she serves. Any duty of protection the officer has is lessened as soon as the driver flees rather than complying with a request to stop.

563 Pa. 579, 763 A.2d 394, 397 (2000).

After quoting Lindstrom, the majority reasons:

An officer’s relationship to the community he or she serves hinges on the officer’s ability to keep the members of the community safe from criminals, including dangerous drivers. Accordingly, where, as here, the officer was unaware of the presence of a passenger in a fleeing vehicle, this first factor weighs against imposing a duty.

Majority Opinion at 348, 106 A.3d at 689. However, this analysis does not fully account for the majority’s own definition of “unknown passengers” as including both “passengers whose presence in the vehicle or connection to the driver is unknown to the pursuing officer.” See Majority Opinion at 336 n. 5, 106 A.3d at 682 n. 5. The majority expressly conditions its assessment of this factor on the fact that “the officer was unaware of the presence of a passenger,” but does not indicate whether it would reach the same conclusion if the presence of a passenger was known, but the relationship of the passenger to the driver was not known.

While it is reasonable to conclude, as the majority does, that the first Althaus factor counsels against the imposition of a duty when a police officer is unaware that there is a passenger in a fleeing vehicle, in my view, the balance does not weigh as heavily against the imposition of a duty where the officer is aware of the presence of a passenger, but does not know the passenger’s relationship to the driver. As noted above, in Lindstrom, we held that police officers were protectors of all members of the public, but concluded that an officer’s duty to a driver is lessened when the driver flees. As a passenger is not in control of the fleeing vehicle, a police officer arguably has a greater duty of protection to the passenger than to the driver. Yet, a police officer’s relationship with a passenger whose presence in a fleeing vehicle is known to the officer, but whose relationship to the driver is not, still must be considered in light of the broader relationship to the safety of the community at large. In my view, where the passenger’s relationship to the driver is unknown, and the officer has no reason to believe the passenger’s presence in the car is not voluntary, an officer’s duty to protect the members of the public and the community he serves predominates. For this reason, I conclude the first Althaus factor weighs slightly against the imposition of a duty either to passengers whose presence in the vehicle is unknown to police or to passengers whose connection to the driver is unknown to police.

I also disagree with the majority’s analysis regarding the third Althaus factor — the nature of the risk imposed and foreseeability of the harm incurred. The majority states:

[W]e acknowledge that we found in Lindstrom that it is foreseeable that a fleeing driver may be injured in his attempt to elude an officer. Id. Instantly, because injury to an unknown passenger is not foreseeable, we find that the nature of the risk imposed and the foreseeability of the harm incurred to an unknown passenger weighs against imposing a duty on pursuing officers.

Majority Opinion at 348, 106 A.3d at 689.

Again, this analysis does not account for the majority’s definition of “unknown passenger,” which includes passengers whose presence is known to police, but whose relationship to the driver is not. Moreover, having recognized in Lindstrom that it is foreseeable that a fleeing driver may be injured when attempting to evade a police officer, in my view, it is no less foreseeable that any “unknown passengers” in the vehicle, which, under the majority’s definition, includes both passengers whose presence is unknown or whose connection to the driver is unknown, might also be injured during the pursuit. Thus, I conclude the third factor weighs in favor of the imposition of a duty.

Nevertheless, when balancing the third factor against the remaining factors, I agree with the majority’s ultimate conclusion that police officers do not owe a duty to an unknown passenger. See, e.g., Seebold v. Prison Health Services, 618 Pa. 682, 57 A.3d 1232, 1249 (2012) (noting that, in certain instances, this Court has prioritized other policy factors over foreseeability). Indeed, I place great weight on the fourth Althaus factor — the consequences of imposing a duty on the police. As the majority aptly observes:

Imposing a duty on officers to unknown passengers in a fleeing vehicle would present an unworkable burden on officers, essentially halting police pursuits. The decision to pursue a fleeing vehicle is one that must be made in a matter of seconds. To require officers to not only establish the presence of passengers, but also discover the relationship of the passengers to the fleeing driver, would be unmanageable in the necessarily fast-paced environment of law enforcement. Moreover, officers, fearing the risk of civil liability, would be less likely to initiate pursuit, which would likely encourage criminals to flee.

Majority Opinion at 348, 106 A.3d at 689.

As I agree that a balancing of the Althaus factors does not support the imposition of a duty of care by police to passengers whose presence in a fleeing vehicle, or whose relationship to the driver of the fleeing vehicle, is unknown to police, I find the majority’s discussion as to whether the police vehicle camera recording suggests the officers should have been aware of the presence of passengers in the vehicle to be unnecessary. As there was no suggestion the officers knew the relationship of the driver and passenger, I would simply hold that the Commonwealth Court’s affirmance of the trial court’s grant of summary judgment was proper under the circumstances.

      . All testimony contained herein was taken by deposition.

      . The in-car camera system automatically activates when the lights and siren are turned on, and the previous thirty to forty-five seconds of footage is saved on the recording.

      . Officer Howley testified that he did not know the car was a Mustang until he saw the vehicle make the turn onto Garfield.

      . 42 Pa.C.S. § 8542 states, in relevant part:

        § 8542. Exceptions to governmental immunity.
      (a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
      (1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
      The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
      (b) 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 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.
      42 Pa.C.S. § 8542(a), (b)(1).

      . The term "unknown passengers” will be used throughout this Opinion to describe passengers whose presence in the vehicle or connection to the driver is unknown to the pursuing officer.

      . The Commonwealth Court briefly noted that the trial court may have "improperly conducted fact-finding” with respect to the reasonableness of Officer Howley's conduct based on the in-car camera footage. Sellers, supra at 872, n. 11. The court set forth, however, its prerogative to affirm on any ground. Id., citing Concord Township Appeal, 439 Pa. 466, 268 A.2d 765, 766 (1970).

      . In the reply brief, Appellants maintain that this argument is erroneous, as the Black court need not decide whether a duty is owed to passengers in a fleeing vehicle, as that duty had already been codified in 75 Pa.C.S. § 3105(e), and reinforced in Jones.

      . Appellants have completely disregarded Commonwealth Court precedents which have found, in accordance with Lindstrom, that Section 3105(e) "does not create a duty not otherwise existing; rather it recognizes the residual duty of drivers of emergency vehicles.” Frazier v. Commonwealth, 845 A.2d 253, 260 (Pa.Cmwlth.2004).

      . There have been no allegations that the in-car camera recording was altered.

      . Following the convention of the majority opinion, I use the term “unknown passengers” to indicate passengers whose presence in the vehicle or connection to the fleeing driver is unknown to the pursuing officer. See Majority Opinion, at 336 n. 5, 106 A.3d at 682 n. 5.

      . See, e.g., Pennsylvania State Police Bureau of Research and Development, Pennsylvania Police Pursuits Annual Report 9 (unnumbered pages) (2007), available at http://www.paucrs.pa.gov/UCR/Reporting/Pursui1/ AnnuaI/2007_AnnuaLReport.pdf (“The basic dilemma associated with high-speed police pursuit of fleeing individuals is deciding whether the benefits of potential apprehension outweigh the risks to police officers, the public, and the violator(s). The detailed analysis in this report can be used to help identify both positive and negative factors influencing the outcome of vehicular pursuits, validate or refute the merits of pursuit policies and apprehension techniques, and to recognize training successes and deficiencies. It is intended that the statistics gathered will enable police departments throughout the Commonwealth to enhance the safety of their officers and the public they serve.”).

      . Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000).

      . While Appellants repeatedly asserted in their Amended Complaint that the decedent was ah innocent passenger in the fleeing vehicle, see e.g., Amended Complaint, 12/11/08, at ¶ 8 (decedent "was an innocent rear seat passenger"); id. at ¶ 18 (decedent "was at all relevant times an innocent passenger”), they did not allege that the officer knew or should have known of the relationship between the decedent and the driver.


source: Caselaw Access Project

author:
Justice EAKIN.
      Justice SAYLOR,

license: Public Domain

text:
    106 A.3d 695
    COMMONWEALTH of Pennsylvania, Appellant v. Andrew Keith ENIMPAH, Appellee.
    Supreme Court of Pennsylvania.
    Argued May 7, 2014.
    Decided Dec. 29, 2014.

      David J. Arnold Jr., Esq., Nichole Lynn Eisenhart, Esq., Lebanon County District Attorney’s Office, for Commonwealth of Pennsylvania.
    Scott Louis Grenoble, Esq., Buzgon Davis Law Offices, Lebanon, for Andrew Keith Enimpah.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
   OPINION

Justice EAKIN.

Does a motion to suppress evidence demand proof by the accused of a reasonable expectation of privacy in the area in which the evidence is found before the Commonwealth’s burden of production is triggered? Here, the Commonwealth refused to present any evidence at appellee’s suppression hearing, claiming its obligation was not in force until appellee met this “threshold” burden. The trial court accordingly suppressed the evidence; the Superior Court affirmed. We affirm that decision and reiterate that which should now be clear: “In all cases, the burden of production is [ ] upon the Commonwealth.” Pa.R.Crim.P. 581 cmt.

Appellee was a passenger in a car stopped by police; he was asked to step out of the vehicle, and as he did so, a plastic bag fell from his lap. The driver consented to a search of the car and police seized the bag, which contained cocaine; naturally, all occupants denied knowledge of the bag, but appellee was charged. He moved to suppress, challenging the constitutionality of the detention that led to the search. At the suppression hearing, the prosecutor refused to offer evidence until appellee met the “threshold” stated above. After much debate, the trial court informed the prosecutor it would be obliged to grant the motion if she failed to present any evidence. The prosecutor maintained her position, stating, “If I’m wrong[,] the [a]ppellate courts will tell me that[;] then I will respect that decision.” N.T. Suppression Hearing, 1/4/12, at 13.

The Superior Court noted Pa.R.Crim.P. 581 requires a defendant to plead a suppression motion with sufficient particularity to frame the issue(s). The court noted our decision in Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680 (2005), held a defendant must show a legitimate privacy interest to “ ‘prevail upon a suppression motion[.]’ ” Commonwealth v. Enimpah, 62 A.3d 1028, 1032 (Pa.Super.2013) (emphasis added) (quoting Millner, at 692). However, the court observed the burdens of production and persuasion are both on the Commonwealth, and rejected the Commonwealth’s contention that the absence of such proof means “the burden never shifts to the Commonwealth to establish the lawfulness of the police conduct.” Id. (citation, emphasis, and internal quotation marks omitted).

Moreover, the court emphasized that Pennsylvania’s automatic standing rule involves a defendant’s “right to have the merits of his suppression motion adjudicated without a preliminary showing of ownership or possession in the premises or effects seized.” Id. (citation, emphasis, and internal quotation marks omitted). Thus, the court affirmed the suppression order, holding that when a defendant properly presents a suppression motion, “it is not enough for the Commonwealth to simply sit on its hands as it did here, but rather it must meet a burden of production, and bring its evidence before the suppression court, which can then make a fully informed decision.” Id., at 1033.

The Commonwealth sought allowance of appeal; we granted review to consider when the Commonwealth’s burden of production is triggered. The Commonwealth acknowledges that these are possessory offenses, giving appellee automatic standing, and further concedes it bears both the burden of production and the burden of persuasion. However, the Commonwealth contends that “[a]bsent a showing of a reasonable expectation of privacy in an area searched or items seized, the burden never shifts to the Commonwealth to establish the lawfulness of the police conduct.” Commonwealth’s Brief, at 15 (citations omitted).

The Commonwealth observes Millner at one point characterized the defendant’s burden to show a legitimate privacy interest as a “preliminary” one, a term it then defines as “ ‘coming before and usually forming a necessary prelude to something else.’ ” Id., at 20. The Commonwealth further notes the Millner Court stated “ ‘there was no need for the Commonwealth to establish the lawfulness of the police entry into the vehicle and the seizure of the [evidence], and there was no basis upon which the lower courts could properly order its suppression^]’ ” when nothing in the evidence of the Commonwealth or the defendant showed the defendant had a legitimate expectation of privacy in the area searched. Id., at 15 (alteration in original) (citation omitted). The Commonwealth also cites Commonwealth v. Boulware, 876 A.2d 440 (Pa.Super.2005), where the Superior Court held, “Any shifting of the burden onto the Commonwealth of going forward with evidence pursuant to Pa.R.Crim.P. 581(H), can not occur until and unless an accused has made a preliminary showing of his standing and expectation of privacy.” Id., at 443 (citation omitted). The Commonwealth contends that since the “situation present here is exactly like that presented in Boulware[, t]he result must be the same.” Commonwealth’s Brief, at 21.

Appellee concedes he must establish he had a reasonable expectation of privacy to ultimately succeed but contends it is not a threshold issue that must be established before the Commonwealth’s burden of production is triggered. Rather, he argues the “reasonable expectation of privacy” issue is part of the merits analysis conducted after the parties have presented their evidence. Appellee’s Brief, at 9 (noting Millner concluded expectation of privacy must be proven to “prevail” on suppression motion). He suggests Millner and Boulware are distinguishable because in those cases, the Commonwealth actually presented evidence, allowing the suppression court to reach the merits of the privacy expectation inquiry.

Further, appellee maintains that adopting the Commonwealth’s interpretation would, in many cases, conflict with a defendant’s right to remain silent under the Pennsylvania and United States Constitutions. He contests the Commonwealth’s argument that a defendant can establish a reasonable expectation of privacy through the testimony of others, noting this argument, while not inconceivable, would not apply in all scenarios. Appellee suggests the burden on the Commonwealth “is not great or overly burdensome,” and notes the trial court gave the prosecutor repeated notice that he would suppress the evidence if she failed to call any witnesses. Id., at 12-13.

Generally, to have standing to pursue a suppression motion under Pa.R.Crim.P. 581, the defendant’s own constitutional rights must have been infringed. However, it is well settled that a defendant charged with a possessory offense in this Commonwealth has “automatic standing” because “the charge itself alleges an interest sufficient to support a[ ] claim [under Article I, § 8].” Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 468 (1983) (citation and internal quotation marks omitted). This rule entitles a defendant to a review of the merits of his suppression motion without a preliminary showing of ownership or possession in the premises or items seized, Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615, 617 (1993), and as noted above, the Commonwealth does not challenge appellee’s standing. In addition to standing, though, a defendant must show that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable. Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265, 267 (1998) (citation omitted).

While cursorily similar, standing and privacy interest are different concepts serving different functions. Standing is a legal interest that “empowers a defendant to assert a constitutional violation and thus seek to exclude or suppress the government’s evidence pursuant to the exclusionary rules under the Fourth Amendment of the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Id., at 266 (citations omitted). It ensures a defendant is asserting a constitutional right of his own. See id., at 269 (citations omitted) (noting this Court’s refusal to recognize vicarious assertions of constitutional rights). The expectation of privacy is an inquiry into the validity of the search or seizure itself; if the defendant has no protected privacy interest, neither the Fourth Amendment nor Article I, § 8 is implicated. See Commonwealth v. White, 459 Pa. 84, 327 A.2d 40, 42 (1974). In essence, while a defendant’s standing dictates when a claim under Article I, § 8 may be brought, his privacy interest controls whether the claim will succeed — once a defendant has shown standing, “[h]e must, in short, having brought his claim, demonstrate its merits by a showing of his reasonable and legitimate expectation of privacy in the premises.” Peterson, at 618 (citation omitted).

As noted supra, the Commonwealth relies on the Superior Court’s decision in Boulware to support its contention that the defendant’s burden to establish his privacy interest temporally precedes its burden of production. It maintains the result here must be the same as the situation is “exactly like” that in Boulware. Commonwealth’s Brief, at 21. This argument is without merit, and we of course are not bound by precedent from a panel of the Superior Court. In Boulware, the defendant was charged with robbery and filed a motion to suppress evidence, which included a sweatshirt seized from his home. At the suppression hearing, he presented no evidence, and had no automatic standing as robbery was not a possessory crime. The Commonwealth presented no evidence pertaining to his arrest or seizure of the sweatshirt — accordingly, the trial court suppressed the evidence, and the Superior Court reversed, noting, inter alia, the defendant had not shown standing.

The Commonwealth is correct that the Boulware panel opined that a defendant must prove his privacy interest before the Commonwealth’s burden of production is triggered — for the reasons discussed infra, that holding is disapproved. Regardless, the error was harmless, as the defendant was not entitled to reach the merits of his suppression claim because he failed to establish standing. Thus, this case is not “exactly like” or analogous to Boulware. Moreover, Boulware preceded our decision in Millner, after which the Superior Court recognized, “Whether [a] defendant has a legitimate expectation of privacy is a component of the merits analysis of the suppression motion ... made upon evaluation of the evidence presented by the Commonwealth and the defendant.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super.2009) (en banc) (citation omitted).

In Millner, the defendant filed a motion to suppress the evidence behind possessory charges involving cocaine and a firearm. The arresting officer, investigating reports of gunfire, saw the defendant place a handgun in a car, and saw an accomplice throw a bag on the ground containing what was determined to be drugs. After finding the drugs, the officers searched the defendant, discovering 41 packets of cocaine. An officer found the handgun in plain view, and testified nothing in the car appeared to belong to the defendant, nor did the defendant have a key to the car, which was not registered to him. The defendant testified to his version of events, but provided no testimony suggesting any connection to the vehicle, instead stating it belonged to his cohort.

The Commonwealth argued the defendant failed to demonstrate a reasonable expectation of privacy in the vehicle, but the trial court granted the suppression motion. The Superior Court affirmed, finding the defendant’s testimony credibly showed police had no probable cause or reasonable suspicion to arrest or search him, his cohort, or the vehicle. Millner, at 685. While it conceded the defendant had no reasonable expectation of privacy, the court opined it need not address that argument because the Commonwealth failed to show a possessory connection between the defendant and the firearm. Id.

On appeal, we noted it was undisputed that the gun came from the vehicle and the defendant offered no evidence to establish a reasonable expectation of privacy therein:

[Ijnstead, he stated that the vehicle was not his, but was owned by Kenny Parker. [The defendant] did not claim that he had a right to use or access the vehicle, or to exclude others (such as the police) from it. Moreover, the Commonwealth’s uncontradicted evidence demonstrated that the vehicle was registered to someone other than [the defendant] (or Parker) and that no key, papers or other identification were found which would have indicated that [the defendant] had any legitimate connection to the vehicle.

Id., at 686. We observed that “a defendant cannot prevail upon a suppression motion unless he demonstrates that the challenged police conduct violated his own, personal privacy interests.” Id., at 692. Accordingly, we found the Superior Court erred in deeming it unnecessary to assess whether the defendant had a protected privacy interest. Id., at 693-94.

The Commonwealth contends the Millner Court’s characterization of the burden as “preliminary” signifies it must precede the presentation of other evidence. See id., at 686, 689 (referring to “defendant’s preliminary burden” (citations omitted)). At first blush, without proper context, the word “preliminary” might support the Commonwealth’s position. See id., at 692 (noting that where there was no evidence establishing defendant’s privacy interest, “there was no need for the Commonwealth to establish the lawfulness of the police entry into the vehicle and the seizure of the firearm, and there was no basis upon which the lower courts could properly order its suppression” (citation omitted)); Hawkins, at 268 n. 3 (“[0]ur cases place the burden squarely upon the defendant seeking suppression to establish a legitimate expectation of privacy as an essential element of his case[.]”); Peterson, at 618 (“Without such expectation of privacy, police entry into the store front would have constituted no intrusion, and the exigent circumstances which are posited to justify police action need not be advanced.”).

However, “preliminary” in context refers to analytical order, not a temporal order of proof. Privacy expectations are “preliminary” in the sense that their absence renders all that follows irrelevant. Indeed, in all of these cases, the Commonwealth presented evidence sufficient to allow disposition of the defendant’s claim — in each case, the Commonwealth’s evidence showed the defendant lacked any protected privacy interest, and the defendant failed to effectively rebut that evidence. We were not dealing with the peculiar situation in which the Commonwealth refused to call a single witness. Rather, each case dealt with the court’s post-hearing analysis of a claim’s merits and the significance of a defendant’s privacy interest in conducting that inquiry. None of these cases involved the order in which evidence is presented, or the shifting of burdens, and one should not read them as commenting on those issues.

Unlike these cases, there was no evidence presented whatsoever — here, neither party called a single witness. Consequently, the court was forced to decide the motion based solely on which party bore the burden of production, the burden of “going forward with the evidence,” which, as the Superior Court noted, are basically synonymous terms. The allocation of that burden is clear — the Commonwealth must prove the constitutional rights of the accused were not violated by the search. The allegation is that unlawful detention led to the search, but if the evidence shows there was no expectation of privacy in the area searched, the prosecution has met its burden and need not go further. The lawfulness of the detention becomes irrelevant, as constitutional error cannot inure to the benefit of the expectation-less accused. To overcome that result, the accused has the burden of showing such an expectation did exist. If the accused does so, the search is again at issue, and the prosecution must prove its constitutionality.

To be sure, under our jurisprudence, the defendant bears the burden of persuasion with respect to his privacy interest. See Commonwealth v. Gordon, 546 Pa. 65, 683 A.2d 253, 256 (1996) (citation omitted). However, the defendant’s ability to meet this burden is not a prerequisite to the Commonwealth’s initial burden of production, a burden it must satisfy in all cases. See Pa.R.Crim.P. 581 cmt. Rule 581(H) clearly states it is the Commonwealth’s burden to present evidence that the defendant’s constitutional rights were not infringed. The Commonwealth may concede the privacy interest, choosing to contest only the legality of police conduct; if it does so, the defendant’s “reasonable expectation of privacy” need not be established. However, if the evidence of the Commonwealth, the party with the burden of production, shows the defendant lacked such a privacy interest, the burden of establishing the contrary is on the defendant.

While we reject the Commonwealth’s interpretation of the “preliminary” nature of this burden, it is worth noting that in analyzing the merits of a suppression motion, the trial court may, indeed, treat the defendant’s privacy interest as a “threshold” or “preliminary” matter. That is to say, if the evidence shows there was no privacy interest, the Commonwealth need prove no more; in terms of the court’s review, it need go no further if it finds the defendant has not proven a reasonable expectation of privacy. However, as it relates to the parties’ presentation of evidence, our cases and the Rules of Criminal Procedure make clear that the Commonwealth has the burden of production, to give the court evidence allowing that conclusion. Once it places the issue before the court, as a basis for denying suppression, the defendant may prove the contrary. If that proof is found to meet defendant’s burden, then the search itself may be examined with the burden on the prosecution to show it was not unconstitutional.

Our decision today is consistent with our reasoning in Sell. There, we refused to follow the United States Supreme Court’s abandonment of the automatic standing doctrine in United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The same day Salvucci was filed, the High Court released its decision in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), where it refined the standard articulated in Rakas v. Illinois, 439 U.S. 128, 99 5.Ct. 421, 58 L.Ed.2d 387 (1978), and merged the requirement of standing, which it defined as the “reasonable expectation of privacy,” into the merits of a Fourth Amendment claim, see id., at 139, 99 S.Ct. 421 (“[W]e think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.”). This Court “decline[d] to undermine the clear language of Article I, [S]ection 8 by making the Fourth Amendment’s amorphous ‘legitimate expectation of privacy’ standard a part of our state guarantee against unreasonable searches and seizures.” Sell, at 468. We did so:

not only because we f[ound] the United States Supreme Court’s analytical distinction between “standing” and “threshold substantive question,” unhelpful to our interpretation of Article I, [S]ection 8’s protection, but also because we believe[d] the United States Supreme Court’s current use of the “legitimate expectation of privacy” concept needlessly detracts from the critical element of unreasonable governmental intrusion.

Id. (internal citation omitted).

In this case, we are not asked to review the propriety of requiring defendants to establish a “legitimate expectation of privacy” before they can succeed on a motion to suppress that has been properly contested by the Commonwealth. Appellee concedes this point and does not ask us to revisit it. However, we cannot ignore the clear import of the Sell decision: our state constitution does not allow for a “reasonable expectation of privacy” inquiry to serve as a prerequisite to bringing a motion to suppress evidence before the court. Were we to adopt the position of the Commonwealth, Sell would be nullified, as the Commonwealth could merely “sit on its hands,” as it did here, and force the defendant to testify to his connection to the contraband or the area searched.

A criminal defendant with standing to pursue a motion to suppress in this Commonwealth has a right to compel the prosecution to prove its evidence was not obtained in violation of his constitutional rights, without having to present evidence of his own. If the Commonwealth shows he lacks a reasonable expectation of privacy, it need do no more, absent proof to the contrary from the accused himself. Where the Commonwealth cannot, or will not, present any evidence at all, the defendant’s motion must be granted, regardless of whether he could ultimately establish a reasonable expectation of privacy.

Accordingly, we affirm the ruling of the Superior Court.

Order affirmed; case remanded; jurisdiction relinquished.

Former Justice McCAFFERY did not participate in the decision of this case.

Chief Justice CASTILLE, Justices BAER, TODD and STEVENS join the opinion.

Justice SAYLOR files a concurring opinion, footnote 2 of which is joined by Chief Justice CASTILLE.

Justice SAYLOR,

concurring.

I agree with the majority’s conclusion that the burden of production at a suppression hearing is on the Commonwealth (as premised on Rule of Criminal Procedure 581(H)), and that the Commonwealth failed to carry its burden in this case. I write separately, however, to express my reservations about some of the majority’s rationale, in particular, the manner in which the Court expresses the burden imposed upon defendants concerning privacy expectations.

Initially, I have difficulty to the extent that the majority portrays the inquiries into a defendant’s standing to challenge a search and into the defendant’s reasonable expectations of privacy as substantively distinct. See Majority Opinion, at 364, 106 A.3d at 698-99. Standing and merits inquiries frequently overlap. See William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 229 (1988) (“The essence of a true standing question is the following: Does the plaintiff have a legal right to judicial enforcement of an asserted legal duty? This question should be seen as a question of substantive law, answerable by reference to the statutory or constitutional provision whose protection is invoked.”). Moreover, much of the reasoning which caused the Court to preserve the doctrine of automatic standing in association with Pennsylvania constitutional doctrine, over and against the United States Supreme Court’s decision to abandon it for purposes of Fourth Amendment jurisprudence, is in tension with ensuing developments in Pennsylvania law. Compare, e.g., Commonwealth v. Sell, 504 Pa. 46, 66, 470 A.2d 457, 468 (1983) (justifying the preservation of automatic standing in the Commonwealth based, in part, on the rationale that “[w]e decline to undermine the clear language of Article I, section 8 by making the Fourth Amendment’s amorphous ‘legitimate expectation of privacy’ a part of our state guarantee against unreasonable searches and seizures”), with Commonwealth v. Hawkins, 553 Pa. 76, 81-82, 718 A.2d 265, 267 (1998) (explaining that subsequent decisions of this Court require defendants to prove “a legitimate expectation of privacy” to prevail in the suppression context under the federal and state constitutions). On account of such disharmony, and while I acknowledge that the doctrine of automatic standing maintains its validity in Pennsylvania, I find it unhelpful to try to explain its continuing longevity on the substantive terms employed by the majority.

Additionally, while I support the majority’s conclusion that the burden of production is with the Commonwealth, which resolves this case, I am more circumspect about the comments referencing the defendant’s burden to demonstrate privacy expectations. In this regard, I would note that courts are often imprecise when addressing burdens of proof. See generally John Calvin Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in Criminal Law, 88 Yale L.J. 1325, 1329 n. 8 (1979) (commenting that the term “burdens of proof’ is sometimes used indiscriminately to refer either to burdens of production or persuasion and that, sometimes, unfortunately, burdens are misaligned on account of such loose usage). Thus, this Court’s previous depictions of a burden upon defendants to “prove” a legitimate expectation of privacy should not necessarily be regarded as a fully realized elaboration of the nature and extent of that burden, particularly in the absence of a developed explanation. Certainly, it would be more consistent with this Court’s admonition that the burden of persuasion rests on the Commonwealth, In re L.J., 622 Pa. 126, 146-47, 79 A.3d 1073, 1085 (2013), to treat the defendant’s burden in addressing privacy expectations as one of going forward with the evidence (or as one of production contingent on the Commonwealth’s previous satisfaction of its burden of production), rather than as a “judicially created exception to the general rule that the burden of persuasion is on the Commonwealth.” Majority Opinion, at 368 n. 5, 106 A.3d at 701 n. 5. Accordingly, and given the limited arguments presently before the Court, I would expressly reserve such consideration for another day.

Chief Justice CASTILLE joins footnote 2 of this concurring opinion.

      . Though Peterson made clear that the defendant’s privacy interest involved the merits of a suppression claim, the Superior Court did not find this fact significant to the allocation of burdens and the presentation of evidence until our decision in Millner.

      . The court also reasoned, " ‘But for the illegal detention and search of [the defendant,] the police would never have searched the vehicle at all. The search of the vehicle was a mere extension of the already illegal search.’ ” Id.

      . In fact, this Court has characterized the situation presently before us as "virtually inconceivable.” Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426, 428 (1968).

      . For example, in Millner, given the Commonwealth's uncontradicted evidence showing the defendant had no expectation of privacy in the vehicle, we concluded the defendant could not prevail on the merits of his motion and, as a result, "there was no need for the Commonwealth to establish the lawfulness of the police [conduct,]” Millner, at 692 (citation omitted), i.e., it did not matter whether the Commonwealth had ultimately proven that its evidence was obtained through legal means.

      . This is a judicially created exception to the general rule that the burden of persuasion is on the Commonwealth, and appellee does not argue for its abandonment.

      . Although the defendant will typically present his own evidence to satisfy this burden, he is not required to do so. Indeed, he may succeed without presenting any evidence at all. See 6 Wayne R. LaFave, Search & Seizure § 11.2(b), at 50 (5th ed.2012) (noting “even if the burden of proof is on one party, it may happen that the burden is actually met in a particular case by evidence given by the other party”).

      . A concurrence in Commonwealth v. Peterson, 408 Pa.Super. 22, 596 A.2d 172 (1991), aff’d by 535 Pa. 492, 636 A.2d 615 (1993), opined Sell "directfed] that a review shall be made of the reasonableness of a governmental intrusion even in cases where the particular defendant’s rights were not affected not by the intrusion itselff,]” noting the rationale for the Sell decision was “that respect for the particular defendant's 'legitimate expectation of privacy’ (the focus of Rakas) is not the only reason justifying inquiry in these cases: [under] Article I, § 8, there also is an abiding interest to ensure review of the 'critical element’ of whether the governmental intrusion was unreasonable.” Id., at 187 (Hoffman, J., concurring) (citation omitted). This Court rejected this analysis, stating it "failed to distinguish between the necessity for a preliminary demonstration of proprietary or possessory interest, a necessity which does not exist in Pennsylvania, and the necessity of demonstrating the merits of a suppression claim.” Peterson, at 618. In Millner, we reviewed Sell on this point and found Peterson and later cases made clear a defendant charged with a possessory offense must still establish a reasonable expectation of privacy. Millner, at 690-92.

      . See Ronald J. Allen, Burdens of Proof, Uncertainty, and Ambiguity in Modem Legal Discourse, 17 Harv. J.L. & Pub. Pol'y 627, 640 (1994) ("Assume that party A has the burden of production and persuasion on some fact X, and that neither party has any evidence relevant to that fact. If the burden of persuasion on fact X is shifted to party B, party A still has the burden of production. But party A has no evidence of X. Consequently, party A cannot meet its burden of production and will lose, even though party B could not possibly meet its burden of persuasion.").

      . As the majority observes, it may be the case that the Commonwealth’s evidence demonstrates a defendant’s privacy interest, for example, where an officer testifies that he removed contraband from the defendant’s person. See Majority Opinion, at 369 n. 6, 106 A.3d at 702 n. 6. On the other hand, if, in satisfying its initial burden of production, the Commonwealth demonstrates that contraband was remote from the defendant and his property, the defendant should be required to at least go forward with evidence demonstrating his privacy interest. This sort of burden-shifting paradigm is common in the adjudicatory setting. See, e.g., 500 James Hance Ct. v. Pa. Prevailing Wage Appeals Bd., 613 Pa. 238, 272-73, 33 A.3d 555, 575-76 (2011) ("When the party bearing the burden of [persuasion] establishes a prima facie case, the adversary has the burden of going forward, that is, offering evidence to contradict the prima facie case[J” (quoting 31A C.J.S, Evidence § 199 (2011))).

      . I would also note that there is a good argument to be made that a threshold focus, before assessing hearing burdens, should be on the sufficiency of the suppression motion in the first instance. See generally William E. Ringel, Searches and Seizures Arrests and Confessions § 20:12 (2d ed.2014) (discussing hearing burdens allocated ‘‘[i]f the moving papers provide sufficient information to require a suppression hearing”). Additionally, most jurisdictions distinguish between warrant-based searches and warrantless ones, in terms of burden allocation. See id. ("A defendant generally has the burden of showing a constitutional infirmity if a search or seizure was carried out pursuant to a warrant, while the burden of proof is on the prosecution if the police acted without a warrant.”). It is an unfortunate consequence of the nature of the adjudicatory process that the Court is most often unable to assess regimes with interrelated facets in a comprehensive fashion, toward the end of enhancing fairness and efficiency. To the degree that burdens of proof are an appropriate subject of rulemaking, perhaps that forum might offer a better change for a broader assessment of available options.