*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), 703 A.2d 547 Philadelphia, 514 Pa. denied, Harmon, 1997), Pa. 725 A.2d appeal Pa. Snyder v. (1998), (1989), allegedly slipped by stating that Mascaro *3 and ridges to where hills and of ice snow progeny apply were intended and fell on in Phila Kilgore Building the harm. In parties third caused outside the State Office City-owned property Philadelphia went out a vehicle on After the of delphia. case, ice and only of control because of accumulated re from the was dismissed plaintiff. The Su- snow and struck the real was whether maining question plaintiffs that the cause preme immunity Court held to property of 8522(b)(4) of action met the threshold conditions applied. The Court in Section recovery could stating a claim for which be although distinc stated “of’/“on” enjoying immunity not against one regard tion abolished to had been local alleging negligence defense and of immunity ex property real governmental Further, the court agency employees. ruling had been no from ception, there al- complaint properly that the concluded displaced that it had been “care, leged relating conduct to the custo- immunity except regard to the dy property” or control of real under Sec- ion.3 tion recently, Murphy More v. Common that Kil- acknowledges Griejf and wealth, Department Transportation, 733 of under the to gore were decided (Pa.Cmwlth.1999), on A.2d the issue immunity agency property. for local real appeal whether the the merits of the was asserts, however, that She allegations that she was plaintiffs repeatedly Court has stated that the sov- when she swerved an automobile crash immunity ereign governmental excep- a muffler a state to avoid discarded identical, interpretation tions are and their cognizable a claim that roadway stated was well, citing should be identical as Finn which, 8522(b)(4), in addition under Section City Philadelphia, 541 Pa. of sidewalks, applies also to to real estate response empha- In highways ... dangerous condition of “[a] Griejf sizes that were decided jurisdiction of a under the Commonwealth gov- under the to property exception real The Court concluded that agency....” 8542(b)(3), ernmental in Section to apply continued to distinction “of’/“on” “care, negligence relating custo- 8522(b)(4) af claims under Section dy property, or control” of real rather than firmed the order of the trial court sustain objections filed the De ing preliminary immunity in re- Section Transportation of on basis. partment a condition of quires proof “dangerous of Stroudsburg Uni also Tallada v. East See agency estate and real (Pa. Pennsylvania, versity of sidewalks....” Cmwlth.1999) a state univer (holding that liability under Sec question sity immune from

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. 645 A.2d 184 phia, 537 govern- Finn was decided While ORDER analysis law, the same mental Supreme employed by the been had NOW, February, day 15th AND this cases. Court of the Court of Common the order Harmon, 424, 562 A.2d 522 Pa. Snyder v. County is affirmed. Philadelphia Pleas 307 Judge by President Dissenting opinion decided, However, the since Finn was DOYLE. rejected the Supreme Court has on/of cases, Reisinger, analysis two

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, 553 Pa. at 717 A.2d at 518 Pennsylvania. Commonwealth Court (Castille, Justice, dissenting). Briefs Submitted on Oct. case, present In the I that this believe obligated pro- Court is to follow the latest Decided Feb. our indicat- Supreme

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