Abella v. City of Philadelphia

• Decision Date: 31 October 1997
• Citation: 703 A.2d 547
• Parties: Mary Ann ABELLA, Appellant, v. CITY OF PHILADELPHIA, Commonwealth of Pennsylvania and General State Authority.
• Court: Pennsylvania Commonwealth Court

Page 547

703 A.2d 547

Mary Ann ABELLA, Appellant, v. CITY OF PHILADELPHIA, Commonwealth of Pennsylvania and General State Authority.

Commonwealth Court of Pennsylvania.

Argued Oct. 9, 1997.

Decided Oct. 31, 1997.

Thomas B. Grier, Bensalem, for appellant.

Janet Selden, Senior Deputy Attorney General, Philadelphia, for appellees.

Before FLAHERTY and LEADBETTER, JJ., and LORD, Senior Judge.

LORD, Senior Judge.

Mary Ann Abella appeals a Philadelphia County Common Pleas Court order granting a motion to dismiss her claims against the Commonwealth of Pennsylvania and the General State Authority (collectively, the Commonwealth).

This case began when Abella filed a complaint seeking to hold the Commonwealth and the City of Philadelphia (City) liable for injuries she sustained on February 1, 1994. Abella alleged that she slipped and fell on hills and ridges of ice and snow while leaving the State Office Building, located in the City at the southwest corner of Broad and Spring Garden Streets. She averred, inter alia, that the site of the accident was possessed, controlled and maintained by the Commonwealth, which was negligent in causing, permitting or allowing hills and ridges of ice, snow and water to accumulate and remain on the walkway adjacent to the building; in failing to warn of defects; and in failing to maintain, repair and keep the sidewalk free of defects.

The trial court granted the City's preliminary objections and dismissed the City from the case. The court subsequently sustained the Commonwealth's motion to dismiss based on the inapplicability of the real estate exception to the Commonwealth's sovereign immunity. See Section 8522(b)(4) of the Judicial Code, 42 Pa.C.S. § 8522(b)(4). Abella now appeals the latter decision to this Court.

The sole issue presented to us is whether the trial court erred in holding that the real estate exception to the Commonwealth's sovereign immunity is inapplicable to this case.

Although we think that the most recent case law in this area reveals that Abella is not frivolous in contending that the real estate exception permits her claim, we conclude, for the reasons set forth below, that the trial court's decision is properly affirmed.

Preliminary, there is no dispute that the Commonwealth has sovereign immunity from liability here unless the following real estate exception applies:

(b) Acts which may impose liability.--The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

....

(4) Commonwealth real estate, highways and sidewalks.--A dangerous condition of Commonwealth agency real estate and sidewalks....

42 Pa.C.S. § 8522(b)(4) (emphasis added).

While the City is not a party in this case, it is important to our discussion to note that, pursuant to statutory provisions found at Sections 8541 and 8542 of the Judicial Code, or what is commonly referred to as the Political Subdivision Tort Claims Act, the City is also afforded immunity from liability in various circumstances, subject to certain exceptions. As a local agency, the City has governmental immunity, which in relevant part is subject to the following two separate exceptions, for real property and for sidewalks (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:

....

(3) Real property.--The care, custody or control of real property in the possession of the local agency.... "[R]eal property" shall not include ... (iv) sidewalks....

....

(7) Sidewalks.--A dangerous condition of sidewalks....

42 Pa.C.S. § 8542(b)(3), (7) (emphasis added).

Abella contends in this appeal that her claim logically fits within the exception to the Commonwealth's sovereign immunity for "[a] dangerous condition of Commonwealth agency real property and sidewalks...." 42 Pa.C.S. § 8522(b)(4). She argues that the courts have created an illogical and tortured construction of the real estate exception in holding that ice "on" a sidewalk is not a defect "of" the sidewalk itself, thus straining to limit the Commonwealth's liability. See Finn v. Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995). Abella submits that Finn is distinguishable and therefore not controlling of her case and that the viability of Finn has been undermined by the Supreme Court's recent decision in Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997).

Before Grieff was filed, this case would readily be decided in favor of the Commonwealth with only a brief explanation. This is because in Finn, a governmental immunity case, the Supreme Court essentially held that (1) the governmental immunity statute and the sovereign immunity statute are to be construed together; and (2) in considering the pertinent question of whether a dangerous condition of real estate or sidewalks exists, a foreign substance on a sidewalk does not fall within an immunity exception. The Supreme Court rendered its decision over a dissent which vigorously disagreed with the "of"/"on" distinction apparently reaffirmed by the majority of the Court. Specifically, the majority stated:

Because the legislature's intent was to provide immunities, we have held that the exceptions to immunity must be strictly construed.... Moreover, this court has held that the two statutes dealing with governmental and sovereign immunities, viz., the Political Subdivision Tort Claims Act and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter....

Within those very general guidelines, this court has decided cases involving the real estate and sidewalk exceptions which provide more specific guidance for the question presented in this case, that is, whether an accumulation of grease on a sidewalk is a dangerous condition of the sidewalk. In Snyder v. Harmon [522 Pa. 424, 562 A.2d 307 (1989) ], we construed the words "[a] dangerous condition of Commonwealth agency real estate" as follows: "These key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty." Snyder, 522 Pa. at 433, 562 A.2d at 311. "[T]here must be negligence which makes the real property itself unsafe for activities for which it is used." Id. at 434, 562 A.2d at 312. Mascaro [v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) ] reiterated this rule: "We ... hold that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute's scope of liability." 514 Pa. at 363, 523 A.2d at 1124 (emphasis in original). And again, "We have consistently maintained our view that the focus of the negligent act involving a use of government owned or controlled land (including streets and sidewalks) must be the actual defect of the land itself and that the rule of immunity can be waived only in those cases where it is alleged that the artificial condition or defect of the land itself causes the injury." Kiley by Kiley [v. Philadelphia, 537 Pa. 502, 645 A.2d 184 (1994) ].

Finn, 541 Pa. at 601-602, 664 A.2d at 1344-1345 (emphasis added).

After this review of the relevant law, the Supreme Court upheld our decision in Finn, where we had said:

This Court will no longer impose liability pursuant to either the sidewalk exception to governmental immunity or...