*1 Fayette County, Pennsylvania at Pleas G.D., deny-
Civil Division No. 1478 of 1998 HEREBY
ing mandamus is REVERSED proceedings
and remanded for further con- opinion
sistent with the attached to this
order. non-
This order shall not enforce 11,
statutory provision July of the ap- dispute pending
contract as that is
peal in this at No. 2020 C.D.1999. relinquished.
Jurisdiction
Crystal JONES, Appellant,
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION
AUTHORITY. McCabe, Philadelphia, ap- F. John for pellant. of Pennsylvania. Commonwealth Court Zubras, Philadelphia, appel- A. for Joan Argued May 1999. lee. Decided Feb. 2000. DOYLE, Judge, Before President Reargument Request for Hearing NARICK, SMITH, J., Judge. Senior April Denied
SMITH, Judge.
Crystal appeals from the order of the Court of Common Pleas of summary judg- phia County granted Pennsylvania ment to the Southeastern (SEPTA) Authority Transportation damages.1 her civil action for dismissed her claims meet questions whether sovereign immunity conditions of dangerous in Section provided estate as Code, 42 Judicial complaint against Jones filed alleging that she suffered May injuries on Decem- permanent serious and slipped when she and fell on ber reassigned opinion writer on October This case was to this *2 1272 motion, summary platform
rock train relevant judgment salt on the SEPTA’s City Fern in the if “an appropriate party Rock Station of is also adverse timely phia. filed a answer with will proof SEPTA who the burden of at trial bear asserting immunity new un- matter either evidence facts produce has failed to of der of Sections 8541-8564 the Judicial or essential of action defense cause Code, 8541-8564, §§ relating 42 Pa.C.S. which trial would jury require agency immunity, or local or issues to to a Pa. jury.” be submitted 8521-8528, under 42 1035.2(2). Sections entry An R.C.P. No. of sum 8521-8528, §§ relating to immu- mary may granted only be judgment nity. that deposition In her Jones testified right cases is clear where the and free that she on the rock salt was slid Brennan, from v. A.2d doubt. Davis 698 fell; platform any floor and she did not see (Pa.Cmwlth.1997). party 1382 The moving floor, holes in the testi- or defects and her proving has the burden of non-exis mony that she slid and fell of was because of any tence issue of material fact. genuine the rock salt. seeking imposi Id. to avoid the Parties summary judgment tion of must show summary a motion for
SEPTA filed specific depositions, in their facts answers judgment on March not- SEPTA admissions or interrogatories, affidavits ed that it that has held issue genuine there is a for trial. agency is a to which (Pa. A.2d Shaughnessy, Sovich v. 705 942 immunity provisions of the Judi- Cmwlth.1998).2 Feingold apply, citing cial Code v. South- Pennsylvania Transportation Au- eastern by indirectly begins acknowl thority, Pa. 517 A.2d 512 1270 did edging recognize that former case law It only exception that the to sov- asserted dangerous the distinction between condi ereign immunity under which claim Jones’ tions “on” for property, real which Com fall is that arguably Section immune, monwealth were and dan parties 8522(b)(4), 8522(b)(4), 42 Pa.C.S. gerous property, conditions “of’ liability damages authorizes liable. they for which could be Jones con of dangerous “[a] condition Commonwealth tends, however, that the Court’s agency real estate and sidewalks...Be- Reisinger, decisions in 548 Pa. Grieff v. complaint alleged injury cause only Jones’ (1997), A.2d v. City 693 195 of platform due to rather rock salt “on” Philadelphia, 22, 717 553 Pa. platform than some defect “of’ (1998),have rendered the distinc “on”/“of’ argued that she failed to state abrogated legal tion outdated and stan falling a cause of action within Section sub dard has been overruled silentio. any immunity excep- or other City employees were asserts agreed tion. The trial court with SEPTA’s the rock negligent by placing salt on position granted summary judgment platform days it snowed several be when in its complaint favor and dismissed Jones’ failing injury fore her and then to remove April 29, of prejudice by with order in a timely it manner. Summary judgment properly a visitor to a volunteer fire is genuine company paint is no thinner granted where “there issue burned when necessary that was to clean the floor ran being material fact as used a refrigerator ignited. of action under The Su- element of the cause or defense preme Court visitor which could established additional held be report.” R.C.P. stated cause of action Section discovery expert or Pa. 1035.2(1). discovery relating agency close to local No. After the City grant law or of discretion. v. review of a trial court’s an abuse Beitler The Court’s (Pa.Cmwlth. determining 37 summary judgment Philadelphia, is limited 738 A.2d 1999). court error of whether the trial committed an
1273
deci
property exceptions
several
It distin-
Center,
v.
Griejf.
In Abella
Study
sions since
guished Mascaro
Youth
(Pa.Cmwlth.
(1987),
This Court has addressed the
8522(b)(4)
plaintiff alleged
where the
the sover-
tion
proper interpretation
of the
dining
in a
working
while
immunity that she fell
eign
Dist.,
require-
“dangerous condition of sidewalks”
Snyder
Allegheny School
v. North
1998),
(Pa.Cmwlth.
apply,
on
ment would
or
other
landing
slipped and fell on ice on a concrete
Concluding that the
district.
of the school
high
adjacent
top
stairs
at the
of a set of
sidewalk,
part
was not
site of the accident
driveway
a function at the
after she left
school
school. The
liability for
Court held that the broader
inquiry was
Court's initial
care, custody
negligence
or control
in the
happened
a "side
the accident
on
whether
property applied.
walk,"
Section
in which case the
of all these cases
common theme
leaked
The
contents of a kettle
facility because
first, on the
liability depends,
floor).
is that
onto the
injury was
that an
legal determination
rationale
The stated
a condition
language
proper
of the real
turned
from,
originating
deriving,
realty
ty exception
source, and,
realty
as its
having
or
prop
of the real
different from that
that is
then, the factual determination
only
sovereign immunity, and
exception to
erty
dangerous.
the condition was
consistently has held
this Court
therefore,
necessary,
pierce
isWhat
apply
continues
distinction
“of’/“on”
immunity is
agency’s
the Commonwealth
case,
did
present
In the
the latter.
property]
proof
[real
of a defect
deposition
in her
testify
or
plead
not
include an im-
proof might
itself. Such
*4
“of’ the floor where
there was
defect
sidewalk,
improp-
an
properly designed
fell;
alleged that
contrary,
to the
she
she
sidewalk,
badly
or a
erly constructed
“on”
by rock salt
the
fall was caused
her
maintained,
crumbling
deteriorating,
Therefore,
trial court cor
the
platform.
sidewalk.
judgment to SEP
rectly granted summary
605,
Finn,
A.2d at 1346.
Pa. at
664
541
8522(b)(4) of the
to Section
pursuant
TA
Kiley City
v.
Kiley by
also
See
Judicial Code.
(1994).
Pa.
DOYLE, dissenting. Judge, President (1997), and Kil Pa. 548 553 Pa. City Philadelphia, gore v. majority’s dissent to the respectfully I (1998), involved 514 both of which 717 A.2d analysis, estab- holding that the “of/on” exception real estate the in Finn v. Supreme Court lished our view, my Kilgore controls In Pa. 664 A.2d Philadelphia, 541 City of case. of the instant the outcome (1995), apply continues Sovereign Immunity, injured at plaintiff was Kilgore, In the § 42 Pa.C.S. he was Airport when Philadelphia the which went “tug,” aby motorized struck Finn, injuries sustained the of an accumula- as a result out of control grease an accumulation of when she fell on prop- Airport’s ice and snow on tion of part As of its Philadelphia sidewalk. on a Court, without dis- erty. The exception, of the sidewalk discussion recognizing even cussing or on/of § Finn, determined analysis articulated a claim to fit in order for concluded property the real fell within that the claim or the either the sidewalk within immunity: exception to property inju- damages for Kilgores claim 8542(b)(3), plain- [T]he immunity, 42 Pa.C.S. City negligence of the ries that he or she tiff must establish its it maintained in the manner in which property by a defect They claim realty. property. on the rather than a defect snow obligation to remove breached reasoned: The immunity, I nonetheless roadway area. Under tión and ice from applicable Kilgores meet conclude that is both alleged, the facts as light bring controlling, especially the two threshold conditions to since, principle governmen- under the Act under com- action well-established law, if Mr. Kil- are to they mon could recover statutes tal and gore private property, fallen on that such a consistently, provided be read City’s negli- alleged it is active ignore plain language not reading does gence was a direct cause of this acci- Accord- Assembly. chosen the General Additionally, alleged ... it is dent. Kilgore, I conclude ingly, based on City’s failure to remove ice and snow is constrained to reverse that this Court related to following an earlier storm was and re- Pleas Court’s order the Common ‘care, custody and control of real mand for trial.1 this case in possession agen- of the local ... and was a direct cause of the cy’
accident.... at
Kilgore, 553 Pa. at
(citations omitted). dissenting opinion,
In a Justice Castille *5 plaintiff’s that Finn the
argued
barred
claim,
emphatically
and he
asserted
Petitioner,
KUTNYAK,
Mark
by failing
acknowledge
prior
to
decision
Finn,
Supreme
the
has “sub si-
Court
CORRECTIONS,
DEPARTMENT OF
it,
doing,
in so
has
lentio overruled
and
Respondent.
the
stare decisis.”
principle
abandoned
Kilgore,
nouncement of Court April Denied Reargument the of the law in the area of ing state immunity. Although Kilgore involved immunity and the
governmental issue excep-
present case involves the real estate the out an to recognize recently applied borne has carved 1. I that this Court Township, statutory and Cambridge symmetry Finn in Osborne v. overall scheme (Pa.Cmwlth.1999), essentially dichotomy between has created holds that the distinction continues immunity which immunity governmental on/of exceptions apply to immuni- Legislature nor intended never language provid- ty specific that contain Kilgore. Court Grieff ing immunity "dangerous is waived for body of this reasons stated in the For the subject improvement. condition of” fails dissenting opinion, I believe that Osborne property exception to Since the real change the law properly consider language immunity contains core "dan- this created Osborne, of”, Grieff gerous condition Supreme Court reverses Kilgore. Unless the apply to this distinction on/of law, Osborne violates other established case also. The Osborne Court noted that the exceptions rule the well-established immunity property exception governmental im- language, but rather does not contain core consistently, interpreted munity are to be injuries is waived for states that again pointing out that the "care, custody, by the or control” prop- specifically concluded that the real has away explains and therefore is to erty exception to Supreme Court’s decision to abandon consistent a manner that is be construed in Kilgore. I dis- distinction on/of agree Kiley. exceptions with the other analysis this and believe that Os- with