E. King v. Pittsburgh Water and Sewer Authority

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth King, :

Appellant :

: No. 1155 C.D. 2015

v. : Argued: April 12, 2016

:

Pittsburgh Water and Sewer :

Authority :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION

BY JUDGE SIMPSON FILED: May 27, 2016

This appeal raising a spoliation issue involves the notice requirement

of the “Utility service facilities” exception to local agency immunity set forth in

Section 8542(b)(5) of the statute commonly known as the Political Subdivision

Tort Claims Act (Tort Claims Act). 42 Pa. C.S. §8542(b)(5).

More particularly, Elizabeth King (King) asks whether the Court of

Common Pleas of Allegheny County1 (trial court) erred in denying her post-trial

motions after a non-jury verdict in favor of the Pittsburgh Water and Sewer

Authority (Authority) in her negligence suit against the Authority. King alleged

she suffered injuries when her leg fell through a broken and corroded sewer grate,

which, she averred, the Authority negligently failed to maintain. King argues the

trial court erred in failing to grant her motion for judgment non obstante veredicto

(judgment n.o.v.) or a new trial as a sanction for the Authority’s spoliation of

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The Honorable Michael E. McCarthy presided.

evidence, where the Authority purposefully destroyed the sewer grate that injured

King after it received notice the sewer grate was connected to a “law claim.” She

further asserts the trial court’s failure to issue a sanction against the Authority for

its purposeful spoliation of evidence was contrary to public policy. Upon review,

we affirm.

I. Background

In November 2012, King filed suit against the Authority in the trial

court.2 Through her complaint, King alleged that, in August 2012, she attempted to

enter a vehicle parked along the curb near the intersection of Greenfield Avenue

and Frank Street in the City of Pittsburgh (City). As she opened the front

passenger vehicle door and attempted to enter the vehicle, her right foot and leg

fell through a hole in a sewer grate located on Frank Street near its intersection

with Greenfield Avenue. King alleged that prior to August 2012 the grate was

allowed to fall into a state of disrepair in that it was rusty and contained a hole that

she fell through. As a result, King alleged, she suffered a large laceration on her

right leg.

King averred the Authority owned, possessed or controlled the

premises located at the corner of Greenfield Avenue and Frank Street, including

the sewer grate. Thus, she alleged, the Authority was responsible to maintain the

premises and the sewer grate. King alleged a dangerous condition existed on the

premises in that a hole existed in the sewer grate. She alleged the Authority

2

King’s suit also named the City of Pittsburgh as a defendant; however, the City was

later dismissed from the suit by stipulation of the parties.

2

negligently failed to maintain the sewer grate, thereby allowing a hole to form and

creating a dangerous condition. King further averred the Authority had actual or

constructive notice of the dangerous condition and negligently failed to remedy it.

She alleged that, had the Authority exercised reasonable care in the maintenance

and inspection of the dangerous condition, it could have made the condition safe.

The Authority responded by filing an answer with new matter. In its

new matter, the Authority averred it was immune from liability under the Tort

Claims Act. Among other things, the Authority alleged it had no actual or

constructive notice of the allegedly dangerous condition related to the sewer grate

prior to the incident alleged in King’s complaint. King filed a reply to the

Authority’s new matter.

The case then proceeded to arbitration, after which a board of

arbitrators found in favor of the Authority and against King. King appealed to the

trial court. She waived her right to a jury trial. The parties conducted discovery.

Thereafter, the Authority filed a motion for summary judgment, which the trial

court denied.

In May 2015, the trial court held a non-jury trial. At trial, King

testified on her own behalf and submitted documentary evidence, including a

photograph of the damaged sewer grate. Additionally, Rick Obermeier, an

Authority employee, testified.

3

After the trial, the trial court entered a non-jury verdict in favor of the

Authority and against King. King filed post-trial motions in which she asserted the

crux of the case was whether the facts established liability against the Authority

under the utility service facilities exception to local agency immunity. King

acknowledged that this exception required her to prove the Authority had actual or

constructive notice of the dangerous condition of the sewer grate as a prerequisite

to establishing liability. King conceded she did not present evidence of actual

notice of the broken sewer grate, but rather she presented evidence of constructive

notice of the dangerous condition in the form of testimony and documents showing

the Authority was in the vicinity of the broken sewer grate six times in the two-

and-a-half years preceding her injury.

King further argued that Obermeier testified the Authority destroyed

the sewer grate after it received actual notice that the grate was broken and

connected to a “law claim.” Reproduced Record (R.R.) at 87a. She asserted the

trial court questioned Obermeier regarding the Authority’s general practice of

preserving evidence after receiving notice of a “law claim,” and Obermeier

confirmed it was not the Authority’s practice to “bag and tag” or preserve

evidence. Id. King further averred that, at closing argument, her counsel argued

that, within the concept of constructive notice was the notion that after a defective

condition exists for a certain period of time, the entity responsible for maintaining

the alleged hazard “could reasonably be charged with notice,” and that argument

strengthens with each day, month or year the condition exists. Id.

4

King asserted the Authority’s standard practice of spoliation, which

occurred here, deprived her of the ability to test the broken grate for a scientific,

definitive determination as to how long the grate was broken before her injury.

Thus, she argued, the Authority based its entire defense on the concept of notice

and engaged in spoliation that prevented her from gathering evidence as to that

notice. As such, King asserted the Authority’s spoliation of the sewer grate

mandated a finding of liability against the Authority.

King further asserted that in Schroeder v. Department of

Transportation, 710 A.2d 23 (Pa. 1998), the Pennsylvania Supreme Court, adopting

the Third Circuit’s approach in Schmid v. Milwaukee Electric Tool Corp., 13 F.3d

76 (3d Cir. 1994), held that, in determining the proper penalty for spoliation of

evidence, a court should consider: (1) the degree of fault of the party who

destroyed the evidence; (2) the degree of prejudice suffered by the opposing party;

and, (3) the availability of a lesser sanction that will protect the opposing party’s

rights and deter future similar conduct.

Here, King argued, the testimony indicated, not only did the Authority

destroy the sewer grate, but it was the Authority’s practice to destroy such

evidence in every case. King maintained the resulting prejudice to her and all

other similarly situated plaintiffs was, and will be, severe because this spoliation

prevents plaintiffs from establishing the length of time an alleged defect exists,

which directly relates to proving constructive notice. King asserted that, in such

circumstances, had the Authority preserved and inspected the evidence, it would

have been determined that the defective condition existed for a sufficient amount

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of time to establish constructive notice against the Authority. Thus, King

requested the trial court vacate its verdict in favor of the Authority and enter

judgment n.o.v. in her favor. Alternatively, King sought a new trial in which the

trial court would foreclose the Authority from asserting a notice defense as a

sanction for spoliation of evidence.

The Authority filed a response to King’s post-trial motions. The

parties also filed briefs. Thereafter, the trial court issued an order denying King’s

post-trial motions. King appealed, and the trial court directed her to file a concise

statement of the errors complained of on appeal pursuant to Pa. R.A.P. 1925(b),

which she did. The trial court then issued an opinion pursuant to Pa. R.A.P.

1925(a).

In its opinion, the trial court explained this matter arose from a

personal injury claim pursued under the utility service facilities exception to local

agency immunity. The trial court stated the Authority acknowledged that it

“controls water and catch basin main lines and other related appurtenances” within

the City, and it admitted in its answer and new matter that it maintained the catch

basin grate located near the corner of Frank Street and Greenfield Avenue. Tr. Ct.,

Slip Op., 9/2/15, at 3 (citing the Authority’s Answer and New Matter at ¶21). The

Authority does not regularly or routinely inspect catch basin grates within its

service area. Rather, it reacts to reports of apparent disrepair or of any hazards

presented by catch basin grates when reports are received from the public or

Authority personnel who incidentally observe such hazards or disrepair in the

course of performing other assignments.

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The trial court stated, to avail herself of the utility service facilities

exception, an injured plaintiff must establish the local agency either had actual

notice or could reasonably be charged with notice under the circumstances of a

dangerous condition at a sufficient time prior to the event to have taken measures

to protect against the dangerous condition.

The trial court explained King did not establish the Authority received

any complaints, damage reports, repair orders or other records pertinent to the

condition of the catch basin grate located near Frank Street and Greenfield Avenue

at any time prior to the accident that occurred here. King correctly observed,

however, that notice could also be established inferentially. Thus, where the

record reveals a hazard existed over a substantial period, a court may reasonably

presume the predicate of notice.

The trial court explained that King asserted the Authority’s

destruction of the catch basin grate deprived her of the opportunity to prove the

grate was likely damaged for some time and that an inference of notice of such

damage was appropriate. King “insist[ed] that an inspection of the catch basin

grate may have revealed that the grate was badly corroded and broken for a long

time, such that [the Authority] knew or should have known of the hazard[.]” Tr.

Ct., Slip Op., at 4 (quoting King’s Pa. R.A.P. 1925(b) Statement at 2). King

further maintained that, because the Authority disposed of the catch basin grate—

“apparently melted it down”—after receiving notice of King’s legal claim, the

Authority should reasonably be charged with notice of a dangerous condition under

42 Pa. C.S. §8542(b)(5) as an appropriate sanction. Id. That sanction, King

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argued, should take the form of either judgment in her favor or a new trial in which

the Authority was barred from advancing a notice defense.

The trial court explained that spoliation, by definition, is the non-

preservation or significant alteration of evidence that is pertinent to pending or

future litigation. PTSI, Inc. v. Haley, 71 A.3d 304 (Pa. Super. 2013). In its most

obvious form, spoliation occurs in the context of pending litigation when a party

breaches a court’s preservation of evidence order. In that context, a court may

reasonably presume that if evidence subject to an order is later lost, altered or

destroyed, that evidence, had it remained available and fully preserved, would have

established facts adverse to the party that had possession or control of the evidence

while subject to the order. In such instances, an appropriate spoliation sanction

may be one that accepts as true any factual allegation that the evidence would have

been offered to prove had it not been destroyed.

Nevertheless, the trial court stated, the more common penalty for

spoliation is less severe. It does not result in declaring the non-offending party’s

allegation true, but rather merely permits an inference that the missing evidence

would have been unfavorable to the party that destroyed it. See Schroeder. The

trial court stated that has been the view of our courts for some time. See McHugh

v. McHugh, 40 A. 410 (Pa. 1898). Thus, in McHugh, the Supreme Court stated:

The spoliation of papers and the destruction or withholding of

evidence which a party ought to produce gives rise to a

presumption unfavorable to him, as his conduct may properly

be attributed to his supposed knowledge that the truth would

operate against him. This principle has been applied in a great

variety of cases, and it is now so well established that it is

unnecessary to do more than state it.

8

Id. at 411.

Here, the trial court explained, King had no need to rely on a claim of

spoliation in order to establish the catch basin grate was broken and resulted in

injury to her. The Authority did not vigorously dispute King’s account of the event

or her injuries. Instead, it argued that, regardless of any injury King suffered from

a broken catch basin grate, she could not recover because the record contained no

evidence that the Authority had prior actual or constructive notice of any

hazardous condition. As such, the Authority asserted, King did not establish the

exception to local agency immunity under 42 Pa. C.S. §8542(b)(5).

The trial court further stated, although King argued that an inspection

of the grate by an expert after the injury might have revealed the grate was badly

corroded or broken for a substantial period of time, she offered no competent

testimony to that effect. Nor was any testimony or case law provided that

corrosion and decay may be presumed to occur over time and that, on that basis,

notice may be inferred. The trial court stated the mere passage of time does not

give rise to an inference that a structure might be impaired or unsafe, so as to

impute notice of a hazard. See generally Walden v. City of Hawkinsville, Georgia,

191 Fed Appx. 836 (11th Cir. 2006) (culvert had been in place for 100 years or

more).

If spoliation occurred, the trial court stated, when considering a proper

sanction, a court must weigh three factors: (1) the degree of fault of the party who

destroyed the evidence; (2) the degree of prejudice suffered by the opposing party;

and, (3) whether there is a lesser sanction that will avoid substantial unfairness to

9

the opposing party and, where the offending party is seriously at fault, will deter

similar conduct by others in the future. See PTSI.

Here, the trial court stated, King did not establish the second factor,

prejudice. Because King has not—or cannot—establish that, had the grate been

preserved, she could have shown both the approximate date of any damage to the

grate and the fact of notice or even constructive notice to the Authority of such

damage, King did not establish prejudice. Rather, the trial court stated, King

asked, in effect, that some degree of prejudice be presumed because the grate could

not be examined. However, the trial court explained, King presented no evidence

that any expert examination of the grate would result in a determination that the

Authority would have had notice of the broken grate in advance of her injury.

II. Issues

On appeal,3 King argues the trial court erred in failing to grant her

motion for judgment n.o.v. or a new trial as a sanction for the Authority’s

3

As to the denial of a motion for judgment n.o.v., we must consider the evidence,

together with all favorable inferences drawn therefrom, in a light most favorable to the verdict

winner. Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010). We will reverse a trial court’s

denial only when we find an abuse of discretion or an error of law that controlled the outcome of

the case. Id.

There are two bases on which judgment n.o.v. can be entered: one, the movant is entitled

to judgment as a matter of law; or two, the evidence is such that no two reasonable minds could

disagree that the outcome should have been rendered in favor of the movant. Id. With the first,

the court reviews the record and concludes that, even with all factual inferences decided adverse

to the movant, the law nonetheless requires a verdict in his favor. Id. With the second, the court

reviews the record and concludes the evidence was such that a verdict for the movant was

beyond peradventure. Id.

In addition, in responding to a request for a new trial, a trial court must follow a two-step

process. Daddona v. Thind, 891 A.2d 786 (Pa. Cmwlth. 2006). First, it must decide whether one

or more mistakes occurred at trial. Id. Second, if the court concludes a mistake occurred, it must

determine whether the mistake was a sufficient basis for granting a new trial. Id. The harmless

(Footnote continued on next page…)

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spoliation of evidence, where the Authority purposefully destroyed the sewer grate

that injured her after it received notice the sewer grate was connected to a “law

claim.” King also contends the trial court’s failure to issue a sanction against the

Authority for its purposeful spoliation of evidence was in error as contrary to

public policy.

III. Discussion

A. Judgment n.o.v. or New Trial as Spoliation Sanction

1. Contentions

King first argues this Court should reverse the trial court’s order that

denied her motion for judgment n.o.v. or, alternatively, a new trial in which the

Authority was precluded from offering a notice defense. She asserts the trial court

reached an erroneous finding that the Authority’s spoliation of evidence did not

warrant a sanction under the three-factor test adopted by our Supreme Court in

Schroeder. Specifically, King contends, the trial court improperly held that King

did not establish she was prejudiced by the Authority’s spoliation.

(continued…)

error doctrine underlies every decision to grant or deny a new trial. Id. A new trial is not

warranted merely because some irregularity occurred during the trial or another trial judge would

rule differently; the moving party must show prejudice resulting from the mistake. Id.

As an appellate court, to review the two-step process of the trial court for granting a new

trial, we also employ a two prong analysis. Id. First, we examine the decision of the trial court

that a mistake occurred. In so doing, we must apply the appropriate standard of review. Id. If

the alleged mistake involved an error of law, we must scrutinize for legal error. Id. If, on the

other hand, the alleged mistake involved a discretionary act, we must review for an abuse of

discretion. Id. If there were no mistakes at trial, we must affirm a decision by the trial court to

deny a new trial as the court cannot order a new trial where no error of law or abuse of discretion

occurred. Id.

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King maintains she was prejudiced by the Authority’s purposeful

destruction of the sewer grate because without an examination of it, King was

unable to offer any testimony as to how long the grate may have been in a state of

disrepair. King argues that, being unable to present an opinion as to the period of

time the grate may have been broken or badly corroded prevented her from

rebutting the Authority’s notice defense and establishing an inference that the

Authority had constructive notice of the grate’s condition prior to her injury. Thus,

King contends, her inability to examine and present at trial the only piece of

physical evidence that could be used to establish constructive notice substantially

prejudiced her case-in-chief.

King points out that in Schroeder, our Supreme Court “recognized

that a common penalty for spoliation is a jury instruction allowing an inference that

the missing evidence would have been unfavorable to the party that destroyed it.”

Id. at 26-27 (citing Schmid, 13 F.3d at 78). King argues that the Schmid analysis,

adopted by our Supreme Court in Schroeder, was applied in Pia v. Perrotti, 718

A.2d 321 (Pa. Super. 1998), where a warehouse owner sued an electrical

contracting firm after the destruction of her warehouse by an electrical fire. Upon

an investigation of the warehouse after the fire, the owner preserved only the

electrical equipment she deemed relevant to the cause of the fire. The common

pleas court gave the jury a spoliation instruction. The Superior Court upheld the

instruction, finding the warehouse owner was at fault for failing to preserve all of

the electrical equipment and the defendant electrical contracting firm was

prejudiced in its inability to present alternative causes of the fire.

12

Under the Schmid analysis, King contends, the first prong is

established where a party knows litigation is pending or likely, and it is foreseeable

that discarding the evidence will prejudice the opposing party. Mt. Olivet

Tabernacle Church v. Edwin L Wiegard Div., 781 A.2d 1263 (Pa. Super. 2001).

Here, King argues, under the first prong, the Authority bears complete fault for

destroying the evidence. She asserts the Authority admittedly destroyed the sewer

grate. See Tr. Ct., Non-Jury Trial, Notes of Testimony (N.T.), 5/5/15, at 29; R.R.

at 53a. Moreover, the Authority knew litigation was likely because it had actual

notice that the grate was connected to a “law claim,” and, therefore, it was also

aware that destroying the grate would prejudice King to a high degree. Further, the

Authority’s testimony established it is the Authority’s practice to destroy such

evidence in every case. N.T. at 41; R.R. at 65a.

King maintains the Authority’s conduct is more egregious than that of

the offending party in Pia because, unlike in Pia where the evidence thought

relevant by the offending party was preserved, here no attempt was made to

preserve the sewer grate. Even worse, King argues, while the offending party in

Pia ostensibly acted in good faith by preserving the evidence she believed was

relevant, the Authority here had notice the grate was likely to be the subject of

litigation and nonetheless purposefully destroyed it. Thus, King contends, the

Authority bears complete fault for destruction of the sewer grate.

Under the second prong, King asserts, the court must measure the

degree of prejudice suffered by the opposing party. In its opinion, the trial court

wrote that King did not satisfy this prong because no evidence was provided that

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an examination of the grate “might have revealed that the grate had been badly

corroded or broken for a substantial period of time” nor how such an examination

“would have resulted in a determination that [the Authority] would have had notice

of the broken grate ….” Tr. Ct., Slip Op. at 5-6. To support the point, the trial

court added, “[no] testimony or case law was provided to the effect that corrosion

and decay may be presumed to occur over time and that, on that basis, notice may

be inferred.” Id.

King argues the trial court’s reasoning puts the “cart before the

horse.” Br. of Appellant at 16. To begin, King asserts, the reason she was unable

to show an examination of the grate “might have revealed that the grate had been

badly corroded or broken for a substantial period of time” was because of the

Authority’s act of spoliation. Id. (quoting Tr. Ct., Slip Op., at 5). King maintains

this is precisely the reason she was so prejudiced by the spoliation. She contends

an examination of the grate itself was the only means through which such a

determination could be made—when the Authority destroyed the grate, it also

destroyed any chance for King to prove the grate was in a state of disrepair for a

substantial amount of time. In short, King argues, the fact that she was unable to

show through any alternative means that the grate may have been in a state of

disrepair for a substantial period prior to the incident directly reflects the prejudice

she suffered as a result of its spoliation.

King further asserts the trial court supplemented its opinion by stating,

even if King could show the grate was badly corroded or broken for a substantial

period, such evidence would still be insufficient to prove the Authority should be

14

charged with notice. This is because “[t]he mere passage of time does not give rise

to an inference that a structure might be impaired or unsafe, so as to impute notice

of a hazard.” Br. of Appellant at 17 (quoting Tr. Ct., Slip Op. at 6). In support of

this statement, the trial court cited Walden, an Eleventh Circuit opinion that is not

binding here.

Regardless of any Eleventh Circuit precedent, King maintains,

Pennsylvania law is clear that the amount of time a defect or dangerous condition

exists is an important consideration in charging a party with constructive notice.

See Rogers v. Horn & Hardart Baking Co., 127 A.2d 762, 764 (Pa. Super. 1956).

Further, King argues, the trial court’s point that “no testimony or case

law [was] provided to the effect that corrosion and decay may be presumed to

occur over time and that, on that basis, notice may be inferred,” Br. of Appellant

at 18 (quoting Tr. Ct., Slip Op. at 5-6), should not defeat King’s ability to satisfy

the second prong. King contends, if the Authority did not destroy the grate, an

expert could have examined it and from that examination could have formulated an

opinion as to how the corrosion and decay process occurs generally and how it

occurred specifically to this grate. However, because of the Authority’s spoliation,

King was barred from having an expert examine the grate.

Therefore, King asserts, under the second prong, she was prejudiced

by the Authority’s intentional action of spoliation. Discarding the sewer grate

destroyed the only available physical evidence. Absent an examination of the

15

grate, King contends she had no way to prove the length of time the defect existed,

which, under Pennsylvania law, goes directly to constructive notice.

Lastly, King maintains, under the third prong, the only proper

sanction at this point is for this Court to reverse the trial court’s denial of King’s

post-trial motions. King argues the Authority stripped her of her right and ability

to prove constructive notice when it intentionally destroyed the sewer grate. As a

bench trial, King asserts, she was offered no recourse in the form of a jury

instruction, nor was she provided any alternative relief in the form of some other

sanction. King contends that, because she established: (1) the Authority destroyed

the evidence when it had notice it was connected to a “law claim”; (2) it was

foreseeable that the destruction would prejudice King in pursuing that claim; and,

(3) that the destruction did, in fact, prejudice King’s case-in-chief, she should now

be granted a sanction against the Authority.

2. Analysis

Generally, a local agency is immune from suit for injuries to person or

property. See Section 8541 of the Judicial Code, 42 Pa. C.S. §8541. However,

liability may be imposed where (1) damages would be recoverable at common law

or under a statute creating a cause of action if the injury were caused by a person

not protected by immunity, and (2) the claim falls within one of the statutory

exceptions to governmental immunity in Section 8542(b) of the Judicial Code. 42

Pa. C.S. §8542; Mandakis v. Borough of Matamoras, 74 A.3d 301 (Pa. Cmwlth.

2013). Of relevance here is Section 8542(b)(5), which provides an exception to

immunity for:

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(5) Utility service facilities.--A dangerous condition of the

facilities of steam, sewer, water, gas or electric systems owned

by the local agency and located within rights-of-way, except

that the claimant to recover must establish that the dangerous

condition created a reasonably foreseeable risk of the kind of

injury which was incurred and that the local agency had actual

notice or could reasonably be charged with notice under the

circumstances of the dangerous condition at a sufficient time

prior to the event to have taken measures to protect against the

dangerous condition.

42 Pa. C.S. §8542(b)(5) (emphasis added). Exceptions to immunity are narrowly

construed. Lory v. City of Phila., 674 A.2d 673 (Pa. 1996).

The central issue here is whether the Authority had notice of the

allegedly dangerous condition of the sewer grate at a sufficient time prior to the

incident to have taken measures to protect against the dangerous condition. Before

the trial court, King conceded she did not present evidence that the Authority had

actual notice of the allegedly dangerous condition. See N.T. at 56; R.R. at 80a;

R.R. at 87a (King’s Motion for Post-Trial Relief). Rather, King argued the

Authority had constructive notice.

“Spoliation of evidence is the non-preservation or significant

alteration of evidence for pending or future litigation.” Pyeritz v. Commonwealth,

32 A.3d 687, 692 (Pa. 2011). The doctrine of spoliation provides that a party may

not benefit from its own destruction or withholding of evidence. Manson v.

Southeastern Pa. Transp. Auth., 767 A.2d 1 (Pa. Cmwlth 2001).

“When a party to a suit has been charged with spoliating evidence in

that suit (sometimes called ‘first-party spoliation’), [our Supreme Court] [has]

17

allowed trial courts to exercise their discretion to impose a range of sanctions

against the spoliator.” Pyeritz, 32 A.3d at 692 (citing Schroeder). The decision of

whether, and how, to sanction a party rests within the sound discretion of the trial

court. Creazzo v. Medtronic, Inc., 903 A.2d 24 (Pa. Super. 2006). Thus, when

reviewing a court’s decision to grant or deny a spoliation sanction, we must

determine whether the court abused its discretion. Mt. Olivet Tabernacle Church.

An abuse of discretion exists when the trial court renders a judgment

that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,

or was motivated by partiality, prejudice, bias, or ill will. Harman ex rel. Harman

v. Borah, 756 A.2d 1116 (Pa. 2000). A finding by an appellate court that it would

have reached a different result than the trial court does not constitute a finding of

an abuse of discretion. Id. “Where the record adequately supports the trial court’s

reasons and factual basis, the court did not abuse its discretion.” Id. at 1123

(citations omitted).

In Schroeder, our Supreme Court, adopting the Third Circuit’s

approach in Schmid, held that, in determining the proper penalty for spoliation of

evidence, a court should consider: (1) the degree of fault of the party who altered

or destroyed the evidence; (2) the degree of prejudice suffered by the opposing

party; and, (3) the availability of a lesser sanction that will protect the opposing

party’s rights and deter future similar conduct. After a court conducts this three-

factor analysis, it is in a better position to determine what sanction is appropriate.

Troup v. Tri-Cnty. Confinement Sys., Inc., 708 A.2d 825 (Pa. Super. 1998).

18

In Tri-County Confinement, the Superior Court noted that sanctions

available to a trial court under the spoliation doctrine are: dismissal; striking out

pleadings or portions of pleadings; prohibiting the introduction of evidence; and,

permitting the inference at trial that the destroyed evidence would have been

harmful to the offending party. See Schroeder.

Here, in rejecting King’s intertwined assertions relating to spoliation

and constructive notice under the “utility service facilities” exception to local

agency immunity, the trial court explained (with emphasis added):

To avail [herself] of the exception stated in §8542(b)(5),

an injured claimant must establish that the local agency either

had actual notice of the dangerous condition at a sufficient time

in advance of the event causing the injury to have either

effected repairs or taken other adequate measures to protect

against such injuries or could reasonably be charged with such

notice. [King] concedes that proof of actual or constructive

notice of a dangerous condition notice is a necessary element of

her claim.

[King] did not establish that any complaints, damage

reports, repair orders or other records pertinent to the condition

of the catch basin grate at the Frank Street and Greenfield

Avenue location had been received by [the Authority] at any

time in advance of the accident and injury that resulted in this

case. [King] correctly observes, however, that notice may also

be established inferentially. Where a record demonstrates that a

hazard has existed over a substantial length of time, a court may

reasonably presume the predicate of notice.

In the matter at hand, [King] argues that [the Authority’s]

destruction of the catch basin grate deprived [King] of the

opportunity to demonstrate to the court that the grate had likely

been damaged for some time and that an inference of notice of

such damage was appropriate. [King] insists that an inspection

of the catch basin grate ‘may have revealed that the grate was

badly corroded and broken for a long time such that [the

19

Authority] knew or should have of the hazard[.]’” [King’s

1925(b) Statement at 2]. Because [the Authority] disposed of

the catch basin grate – apparently ‘melted it down’ – after

receiving notice of [King’s] legal claim, [King] maintains that

[the Authority] should reasonably be charged with notice of a

dangerous condition under [42 Pa. C.S. §8542(b)(5)] as an

appropriate sanction. That sanction, [King] argues, should take

the form of either judgment in [King’s] favor or a new trial in

which [the Authority] is barred from advancing a notice

defense. …

In its most obvious form, spoliation occurs in the context of

current litigation when a party breaches a preservation of

evidence order that has been put in place by the court. In that

context, a court may reasonably presume that if evidence that is

subject to such an order is subsequently lost, altered or

destroyed, that evidence, had it remained available and fully

preserved, would have established facts adverse to the party that

had possession or control of the evidence while subject to the

preservation order. In such instances, an appropriate spoliation

sanction may be one that accepts as true any factual allegation

that the evidence would have been offered to prove had it not

been destroyed.

The more common penalty for spoliation, however, is

less severe. It does not result in declaring the non-offending

party’s allegation true, but merely permits an inference that the

missing evidence would have been unfavorable to the party that

destroyed it. [See Schroeder]. …

In the matter at hand, [King] has no need to rely upon a

claim of spoliation to establish that the catch basin grate … was

broken and resulted in an injury to [King]. [The Authority]

does not vigorously dispute [King’s] account of events or her

injuries. [The Authority] instead argues that, irrespective of any

injury resulting to [King] from a broken catch basin grate, she

cannot recover against [the Authority] because the record

provides no evidence that [the Authority] had actual or

constructive advance notice of any hazardous condition.

Therefore, plaintiff failed to establish any exception to

governmental immunity under [42 Pa. C.S. §8542(b)(5)].

20

Although [King] contends that an inspection of the grate

by an expert after the fact of the injury might have revealed that

the grate had been badly corroded or broken for a substantial

period of time, [King] offered no competent testimony to that

effect. Nor was any testimony or case law provided to the

effect that corrosion and decay may be presumed to occur over

time and that, on that basis, notice may be inferred. The mere

passage of time does not give rise to an inference that a

structure might be impaired or unsafe, so as to impute notice of

a hazard. [See generally Walden].

If spoliation has occurred, then, when considering an

appropriate sanction for such conduct, a trial court must weigh

three factors …. In this case, the second of those essential

factors has not been established by [King]. Because [King] has

not - or cannot -- establish that, had the grate been preserved,

[King] could then have demonstrated both the approximate date

of any damage to the grate and the fact of notice or even

constructive notice to [the Authority] of such damage, prejudice

to [King’s] case has not been established. Rather, [King] asks,

in effect, that some degree of prejudice be presumed because

the grate cannot be examined. No evidence was provided that

any expert examination of the grate would have resulted in a

determination that [the Authority] would have had notice of the

broken grate in advance of [King’s] accident and injury.

Tr. Ct., Slip Op., at 3-6. No abuse of discretion is apparent in the trial court’s

denial of King’s requested spoliation sanction of either judgment n.o.v. or a new

trial based on the Authority’s spoliation of the sewer grate.

To that end, our review of the record supports the trial court’s

determination that King did not offer any evidence that an inspection of the grate

by an expert may have revealed the grate was badly corroded or broken for a

substantial period, or that the effect of any such corrosion or decay could be

presumed to occur over time and, on that basis, notice could be inferred. Indeed,

King did not identify a materials expert as a possible witness or assert that she ever

21

contacted one. Additionally, King offers no explanation as to why she could not

have provided such opinion evidence based on the large, color photograph of the

damaged sewer grate she presented at trial. See Certified Record, Non-Jury Trial,

5/5/15, Plaintiff’s Ex. 5; Br. of Appellant, Ex. B. at 5. Thus, because King did not

present any competent proof that, had the grate been preserved, she could show

both the approximate date of any damage and the fact of constructive notice to the

Authority, she did not establish prejudice, the second prong of the Schroeder

analysis. Rather, as the trial court indicated, King asked, in effect, that the trial

court presume prejudice.

In addition, while the trial court did not expressly address the first

prong of the Schroeder analysis, the degree of fault of the party who destroyed the

evidence, we note, evaluation of that prong requires consideration of two

components: the extent of the offending party’s duty to preserve the evidence, and

the presence or absence of bad faith. Creazzo. The duty prong, in turn, is

established where: the offending party knows litigation against it is pending or

likely; and, it is foreseeable that discarding the evidence would be prejudicial. Id.

Here, Authority employee Obermeier acknowledged that, when the

Authority inspected the sewer grate in October 2012, it knew the grate was

connected to a “law claim.” N.T. at 29; R.R. at 53a. Nevertheless, the sewer grate

was “scrapped” and replaced by the Authority. Id.; N.T. at 39; R.R. at 63a.

Further, Obermeier confirmed it was not the Authority’s practice to “bag and tag”

or preserve evidence. N.T. at 41; R.R. at 65a. However, despite the Authority’s

knowledge that the grate was connected to a “law claim,” the record does not

22

clearly show the Authority was aware that discarding and replacing the damaged

sewer grate would be prejudicial. And, as set forth above, the trial court’s

supported determination reveals that King did not prove prejudice to her case as a

result of the destruction of the grate.

In addition, as to the second component of fault, i.e., bad faith, neither

at trial nor in her post-trial motions did King assert the Authority acted in bad faith

in destroying the sewer grate. Thus, consideration of the first prong of the

Schroeder analysis, fault, particularly when coupled with the trial court’s supported

finding of lack of prejudice, does not warrant the severe spoliation sanction King

seeks.

Nevertheless, King cites Pia, in which the Superior Court upheld a

trial court’s decision to charge a jury that it could draw a spoliation inference

against a plaintiff where the plaintiff did not preserve all electrical equipment

related to a fire in a warehouse she owned. King argues the Authority’s conduct

here is more egregious than the plaintiff in Pia, warranting a more severe sanction.

However, in neither Pia nor any other case King cites did a court

determine that a grant of judgment n.o.v. or a new trial in a party’s favor was an

appropriate spoliation sanction. Indeed, as the Superior Court in Mount Olivet

Tabernacle Church, pointed out, even in a case where the offending party was

highly culpable and prejudice to the non-offending party was severe, a federal trial

court declined to dismiss the offending party’s case because it considered such a

sanction too punitive. Id. at 1273 n.9 (citing Henkel Corp. v. Polyglass USA, Inc.,

23

194 F.R.D. 454, 456-457 (E.D. N.Y. 2000)); see also Baliotis v. McNeil, 870

F.Supp. 1285, 1289 (M.D. Pa. 1994) (“A sanction that has the ‘drastic’ result of

judgment being entered against the party who has lost or destroyed evidence, must

be regarded as a ‘last resort,’ to be imposed only ‘if no alternative remedy by way

of a lesser, but equally efficient sanction is available.’”) (internal citations

omitted); Thompson v. Workers’ Comp. Appeal Bd. (USF&G Co.), 781 A.2d

1146, 1149 n. 4 (Pa. 2001) (“It bears noting that barring a claim entirely … is the

most extreme of sanctions and not one ineluctably commanded by Schmid.”).

In short, based on the trial court’s supported determination that King

did not suffer prejudice, the second prong of the Schroeder analysis, and the

absence of bad faith by the Authority in destroying the grate, we discern no abuse

of discretion in the trial court’s decision not to grant King’s post-trial motions.

Further, although King requested such relief in her post-trial motions, in her

closing argument to the trial court she merely asserted she was entitled to a

spoliation inference as a sanction for destruction of the sewer grate. N.T. at 55-56;

R.R. at 79a-80a.

As a final point, King cites the Superior Court’s 1956 decision in

Rogers for the proposition that: “What constitutes constructive notice must depend

on the circumstances of each case, but one of the most important factors to be

taken into consideration is the time elapsing between the origin of the defect or

hazardous condition and the accident.” Id. at 764. However, Rogers does not

support King’s position. In that case, which did not involve an immunity statute,

the Superior Court reversed a common pleas court’s grant of judgment n.o.v. in

24

favor of a plaintiff who suffered a slip and fall at a restaurant allegedly caused by

the existence of liquid on the floor. Among other things, the Court determined the

plaintiff presented no evidence from which the fact-finder could infer that the

owner had actual or constructive notice of the existence of the alleged hazardous

condition that it negligently failed to correct as “there [was] no testimony as to

how or when this slippery substance came to be on the floor.” Id. at 764. Thus,

there was nothing to show that the liquid was there for a sufficient period of time

to place the restaurant on notice.

Similar to the plaintiff in Rogers, King presented no evidence here

from which the trial court could infer that the Authority had constructive notice of

the alleged defect in the sewer grate. King offered no evidence, expert or

otherwise, as to the age of the grate or the length of time the defective condition

existed, and, while she attributed this failure to the Authority’s destruction of the

grate, she did not establish that, had the grate been preserved, she could have

demonstrated both the approximate date of any damage to the grate and the fact of

constructive notice of such damage to the Authority. Thus, King presented no

evidence that any expert examination of the grate would have resulted in a

determination that the Authority had notice of the broken grate at a sufficient time

in advance of the incident to have taken measures to protect against the dangerous

condition. Rather, King relied on the argument of her attorney that she suffered

prejudice as a result of the Authority’s destruction of the sewer grate. However, an

attorney’s statements or questions at trial are not evidence. Commonwealth v. La

Cava, 666 A.2d 221 (Pa. 1995); Anderson v. Dep’t of Transp., Bureau of Driver

Licensing, 744 A.2d 825 (Pa. Cmwlth. 2000). Similarly, statements in briefs do

25

not constitute evidence of record. Sch. Dist. of Pittsburgh v. Provident Charter

Sch. for Children with Dyslexia, ___ A.3d ___ (Pa. Cmwlth., No. 598 C.D. 2015,

filed February 26, 2016).

In addition, King offers no explanation as to why an expert could not

have provided testimony regarding the length of time the damage to the grate

existed or how that could have placed the Authority on constructive notice based

on the large, color photograph of the damaged sewer grate she presented rather

than the grate itself. See Plaintiff’s Ex. 5; Br. of Appellant, Ex. B. at 5. Thus, we

discern no basis upon which to disturb the trial court’s determination on this issue.

B. Notice/Public Policy

1. Contentions

King also argues that failing to issue an appropriate sanction against

the Authority for its policy of spoliation—which is carried out even after it

receives actual notice that key evidence in its possession is connected to a “law

claim”—offends public policy as it rewards the Authority’s conduct. To that end,

King asserts: (1) the Authority is a public agency and its property exists for the

public to walk and drive on; (2) nevertheless, the Authority admits it does not

inspect its property; (3) the Authority only inspects and performs maintenance after

someone complains or is hurt, N.T. at 22; R.R. at 46a; (4) the Authority then

disclaims any notice of a dangerous condition of its property; and, (5) the

Authority destroys evidence that could be used to establish constructive notice,

N.T. at 41; R.R. at 65a.

26

King contends these practices are contrary to the “utility service

facilities” exception to local agency immunity as well as public policy more

broadly. She acknowledges that it is clear from the language of the exception that

proof of notice is required for a plaintiff to recover. See 42 Pa. C.S. §8542(b)(5).

However, she argues the statute is equally clear that actual notice is not required;

rather, a plaintiff may recover if she can establish the agency “could reasonably be

charged with notice under the circumstances.” Id. In other words, if all other

elements of liability are proven, a plaintiff will recover if she shows the agency had

constructive notice of the dangerous condition.

King contends that, by including the constructive notice provision in

this exception, it is evident the General Assembly sought to impose a duty on local

agencies that own sewer facilities to take reasonable measures to inspect and

maintain those facilities, even when not given actual notice that a defect or

dangerous condition exists. See 1 Pa. C.S. §1921. King argues this makes sense

because (1) the facilities are put in place for the protection and benefit of the

public; and, (2) as a public utility, the Authority is charged under Pennsylvania law

with a duty to inspect its property to ensure it is in a safe condition. See Section

1501 of the Public Utility Code, 66 Pa. C.S. §1501 (“Every public utility shall

furnish and maintain adequate, efficient, safe, and reasonable service and facilities,

and shall make all such repairs, changes, alterations, substitutions, extensions, and

improvements in or to such service and facilities as shall be necessary or proper for

the accommodation, convenience, and safety of its patrons, employees, and the

public. ...”). King argues the Authority’s conduct here is in derogation of its duties

as a property owner and a public utility agency.

27

King asserts that, unless the Authority receives actual notice of a

dangerous condition and fails to remedy the condition within a reasonable time

after which an injury results, the Authority could never be held liable under the

utility service facilities exception. In other words, King contends, the Authority’s

policy of non-inspection renders the constructive notice provision of the exception

meaningless.

King further maintains that, even assuming the Authority’s policy of

non-inspection does not render the constructive notice provision superfluous in and

of itself, the Authority’s policy of spoliation most certainly does. This is because

even if the Authority could be charged with constructive notice through proof that

a particular condition existed for a long period, a plaintiff could never make such a

showing based on the Authority’s policy of spoliation. King argues this is

particularly relevant in the context of injuries arising from sewer grates because

through no other means, besides actually examining the grate, can an inference of

constructive notice be shown.

Lastly, King urges this Court to consider the broader impacts an

affirmation of the trial court’s ruling may have on the public. To that end, she

argues, although her injuries were by no means minor, there is no doubt they could

have been far worse. King asserts the next victim may be elderly or adolescent and

may suffer injuries far more severe than those King sustained. Under such

circumstances, she argues, it would offend our society’s common sense notion of

justice to deny relief to the victim merely because the Authority owns a lot of

sewer grates, has no policy for regular inspection, and destroys any and all

28

evidence that could otherwise be used to establish liability. King contends the

sanction she now advocates for is necessary to deter the intentional practice of

spoliation currently used by the Authority. If left unsanctioned, King argues, the

Authority will continue to employ its practice of spoliation, thereby prejudicing all

future similarly situated plaintiffs by preventing them from establishing the length

of time an alleged defect exists, which goes directly to proving constructive notice.

2. Analysis

Initially, we reject the Authority’s argument that King waived the

issue regarding the Authority’s constructive notice of the damaged sewer grate. As

the Authority acknowledges, King filed her Pa. R.A.P. 1925(b) Statement prior to

the trial court’s issuance of its opinion here. Thus, at the outset of her 1925(b)

Statement, King stated: “The trial court has not written an opinion. Therefore,

[King] cannot readily discern the basis for the trial court’s decision. Accordingly,

[King] will identify the errors complained of in general terms pursuant to Pa.

R.A.P. 1925(b)(4)(vi).” See Br. for Appellee, App. C. In turn, Pa. R.A.P.

1925(b)(4)(vi) provides:

If the appellant in a civil case cannot readily discern the basis

for the judge’s decision, the appellant shall preface the

Statement with an explanation as to why the Statement has

identified the errors in only general terms. In such a case, the

generality of the Statement will not be grounds for finding

waiver.

Id. Thus, under the circumstances presented here, King was permitted to express

her claims of error in general terms. Further, although the Authority argues that, in

a case such as this, where the Authority’s principal defense at trial was the lack of

prior constructive notice, it is not mere “generality” to omit reference to the

29

Authority’s lack of prior constructive notice, our review of King’s 1925(b)

Statement reveals King did, in fact, briefly address the issue of constructive notice.

See Br. for Appellee, App. C at 2. As such, King did not waive the issue of

whether the Authority had constructive notice of the alleged dangerous condition

of the sewer grate.

Notably, however, aside from King’s argument that the Authority’s

destruction of the sewer grate prevented her from proving notice, in both her

1925(b) Statement and her brief to this Court, King does not clearly present a

stand-alone argument that the City had constructive notice of the alleged dangerous

condition of the sewer grate.

In any event, regardless of the Authority’s claims of waiver, as

explained above, the trial court correctly explained that King did not establish the

Authority had actual or constructive notice of the allegedly dangerous condition of

the sewer grate at issue at a sufficient time prior to the incident to have taken

measures to protect against the dangerous condition. To that end, although at trial

King presented six notification forms that documented complaints the Authority

received concerning its water or sewer facilities at various locations within blocks

of the sewer grate at issue, see N.T. at 25-27; R.R. at 49a-51a, King presented no

evidence that the Authority received any complaints regarding either the sewer

grate at issue or any other sewer grates at the intersection of Frank Street and

Greenfield Avenue prior to the incident. N.T. at 28-29; R.R. at 52a-53a; N.T. at

32-34; R.R. at 56a-58a; N.T. at 35-36; R.R. at 59a-60a.

30

Further, the following exchange occurred during King’s counsel’s

cross-examination of Obermeier, the Authority’s witness:

Q. And to your knowledge, there wasn’t any investigation as

to what caused the [sewer grate at issue] to break,

correct?

A. No, there would be no way how we could -- a car could

have drove over it and broke it, whatever, you know.

Q. And there would have been no investigation by the

[Authority] as to how long that grate may have been

broken before you received the complaint about [King’s]

injury, correct?

A. We would have no way of knowing that.

N.T. at 29; R.R. at 53a.

In short, because notice was an essential element to King’s suit,

without proof of notice King could not recover under the utility service facilities

exception to local agency immunity. See, e.g., Gramlich v. L. Southampton Twp.,

838 A.2d 843 (Pa. Cmwlth. 2003) (rejecting plaintiffs’ assertions that township

had constructive notice under “streets” exception to local agency immunity of

dangerous condition arising out of open drainage pipe constructed by homeowner

adjacent to paved portion of public street based on township’s repair of similar

problems for other property owners and because road was previously paved);

Kennedy v. City of Phila., 635 A.2d 1105 (Pa. Cmwlth. 1993), aff’d per curiam,

658 A.2d 788 (Pa. 1995) (rejecting plaintiffs’ assertions that city had constructive

notice of dangerous condition arising out of absence of pedestrian lane on street

under “traffic controls” exception to local agency immunity where plaintiffs’

evidence did not show city had knowledge of specific dangerous condition, i.e.,

31

lack of dotted lines separating area for pedestrian and vehicle lanes); Fenton v.

City of Phila., 561 A.2d 1334 (Pa. Cmwlth. 1989), aff’d, 585 A.2d 1003 (Pa. 1991)

(rejecting plaintiff’s assertion that city had constructive notice of dangerous

condition under “traffic controls” or “streets” exceptions to local agency immunity

arising out of city’s failure to paint left hand turning lane on street, where none of

plaintiff’s evidence dealt with specific problem of lack of a left hand turning lane

on street or that city was informed of such a problem).

In addition, contrary to what King characterizes as the Authority’s

policy of “non-inspection” of its sewer grates, Authority employee Rick Obermeier

testified that the Authority conducts inspections of its sewer grates in response to

complaints, and that, when it responds to such complaints, it also inspects other

sewer grates in the same intersection for damage. N.T. at 22-23; R.R. at 46a-47a.

In Gramlich, this Court, interpreting the constructive notice language in the “streets

exception,” observed: “[I]t is unreasonable to require a municipality to patrol its

streets every day for possible defects created by its citizens that may subject it to

liability.” Id. at 847, n.3; see also Brautigam v. Allegheny Cnty., (Pa. Cmwlth.,

No. 480 C.D. 2008, filed January 28, 2009) (unreported), slip op. at 23, 2009 WL

9102313 at *10 (“[I]t is unreasonable to require [c]ounty employees to survey

every remote area of a large park in search of dangerous conditions.”)4 This

statement is particularly true here where the record reveals there are approximately

25,000 sewer catch basins in the City. N.T. at 30; R.R. at 54a.

4

Pursuant to Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code

§69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited

for its persuasive value.

32

Finally, although King advances several policy arguments, this Court

must apply the language of the statute as written. See, e.g., Herd Chiropractic

Clinic, P.C. v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058, 1067 (Pa. 2013) (“in

the absence of a demonstrated constitutional infirmity, courts generally must apply

plain terms of statutes as written; they are to confine efforts to effectuate legislative

intent—above and beyond the prescriptions of written laws—to ambiguous

provisions; and they are to enforce the longstanding responsibility allocated to the

policymaking branch to provide for [a particular remedy], when it is deemed

appropriate, through explicit pronouncements.”). And, as indicated above, “[i]n

accordance with the General Assembly’s expressed intent to insulate local agencies

from tort liabilities, the statutory language of the exceptions to governmental

immunity contained in Subsection 8542(b) of the Tort Claims Act must be

construed narrowly; immunity remains the rule.” Gale v. City of Phila., 86 A.3d

318, 320 (Pa. Cmwlth. 2014) (emphasis added) (citation omitted).

Based on the foregoing, we affirm.

ROBERT SIMPSON, Judge

Judge Wojcik did not participate in the decision in this case.

33

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth King, :

Appellant :

: No. 1155 C.D. 2015

v. :

:

Pittsburgh Water and Sewer :

Authority :

ORDER

AND NOW, this 27th day of May, 2016, the order of the Court of

Common Pleas of Allegheny County is AFFIRMED.

ROBERT SIMPSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth King, :

Appellant :

:

v. : No. 1155 C.D. 2015

: Argued: April 12, 2016

Pittsburgh Water and Sewer :

Authority :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

CONCURRING OPINION

BY PRESIDENT JUDGE LEAVITT FILED: May 27, 2016

I concur in the majority’s holding that Elizabeth King is not entitled to

judgment non obstante veredicto or a new trial for the reason that the Pittsburgh

Water and Sewer Authority destroyed the rusted sewer grate through which she

fell, resulting in bodily injury. She was required to prove prejudice by the

Authority’s destruction of relevant evidence, and she did not do so.1

I write separately to clarify what is required for a local agency’s

notice of a dangerous condition. A specific complaint to the Authority about the

disintegration of the sewer grate was not necessary to establish notice. To the

extent this is suggested by the majority, I disagree with that suggestion. See

majority slip op. at 31-32 (citing Kennedy v. City of Philadelphia, 635 A.2d 1105

(Pa. Cmwlth. 1993), and Fenton v. City of Philadelphia, 561 A.2d 1334 (Pa.

Cmwlth. 1989)). Instructive is our Supreme Court’s decision in Department of

Transportation v. Patton, 686 A.2d 1302 (Pa. 1997), which held that a local

1

King needed evidence that with the grate, she could have shown that the dangerous condition of

the grate was apparent upon reasonable inspection. Alternatively, she needed to show that an

expert could not provide such testimony solely on the basis of a photograph.

agency can be found to have constructive notice where the evidence shows that the

dangerous condition was “apparent upon a reasonable inspection.” Id. at 1304. In

short, constructive notice does not require a prior complaint about the dangerous

conditions.

As an aside, I believe the Authority should reconsider its policy of

destroying property involved in a personal injury when it knows that the property

may be relevant to a legal claim against it. Spoliation of relevant evidence does

not inspire public confidence in government or governmental authorities. The next

case of Authority spoliation may result in the sanction that it managed to avoid this

time.

______________________________________

MARY HANNAH LEAVITT, President Judge

MHL-2