Cagey, J., Aplt. v. PennDOT

[J-66-2017]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

JOISSE A. CAGEY AND DALE J. CAGEY, : No. 36 WAP 2016

HER HUSBAND, :

: Appeal from the Order of the

Appellants : Commonwealth Court entered July 28,

: 2016 at No. 2650 CD 2015, affirming

: the Order of the Court of Common

v. : Pleas of Beaver County entered

: December 4, 2015 at No. 10716 of

: 2015.

COMMONWEALTH OF PENNSYLVANIA, :

DEPARTMENT OF TRANSPORTATION, : ARGUED: October 17, 2017

A COMMONWEALTH AGENCY, :

:

Appellee :

OPINION

JUSTICE DONOHUE DECIDED: FEBRUARY 21, 2018

We granted allocatur to determine whether the Pennsylvania Department of

Transportation (“PennDOT”) is liable for injuries caused by negligently and dangerously

designed guardrails erected on Commonwealth real estate. The case presents an

opportunity to clarify the contours of the real estate exception to sovereign immunity,

see 42 Pa.C.S. § 8522(b)(4), especially in light of the Commonwealth Court’s expansive

treatment of our prior decision in Dean v. Dep’t of Transp., 751 A.2d 1130 (Pa. 2000).

In Dean, we held that PennDOT has no duty to erect guardrails alongside

Commonwealth roadways. Id. at 1134. Here, however, the question is whether the

Commonwealth owes a duty of care when PennDOT has in fact installed a guardrail

alleged to be dangerous. Pursuant to the plain language of the Sovereign Immunity

Act, 42 Pa.C.S. §§ 8521-8528 (the “Act”), we find that the General Assembly has

waived PennDOT’s immunity as a bar to damages caused by dangerous guardrails

affixed to Commonwealth real estate. Dean is inapposite and does not control under

the facts presented here. We reverse the decision of the Commonwealth Court and

remand for further proceedings consistent with this Opinion.

The Act was enacted in response to this Court’s decision in Mayle v.

Pennsylvania Dep’t of Highways, 388 A.2d 709 (Pa. 1978), wherein we abolished the

common law doctrine of sovereign immunity. Pursuant to the Act, the Commonwealth

generally enjoys immunity from suit for damages in negligence except under certain

circumstances set forth therein. See 42 Pa.C.S. §§ 8521-8522. Specifically, as

discussed in more detail infra, section 8522(a) of the Act waives immunity in the

instances set forth in section 8522(b) “for damages arising out of a negligent act where

the damages would be recoverable under the common law or a statute creating a cause

of action if the injury were caused by a person not having available the defense of

sovereign immunity.” Id., § 8522(a). Pertinent to the case at bar, the defense of

sovereign immunity may not be raised when the real estate exception, 42 Pa.C.S.

§ 8522(b)(4), applies.

On June 22, 2015, Joisse and Dale Cagey (the “Cageys”) filed a negligence

action against PennDOT. In their complaint, the Cageys alleged that on January 26,

2015, they were travelling southbound on State Route 551 in Beaver County,

Pennsylvania when they encountered snow and ice on the roadway. Cageys’

Complaint at 2. As a result of these conditions, Joisse Cagey (“Mrs. Cagey”), the driver

[J-66-2017] - 2

of the car, lost control of the vehicle, which spun off the roadway and slammed into a

guardrail adjacent to the road. Id. at 3. The guardrail penetrated the side of the vehicle,

resulting in substantial injuries to Mrs. Cagey, including toe, foot and leg fractures. Id.

The Cageys sought damages for Mrs. Cagey’s injuries and for Mr. Cagey’s loss

of consortium. Id. at 6-7. Specifically, they alleged that their damages were the result

of the following: (1) PennDOT’s negligent installation of a guardrail within an area that

should have been traversable by vehicle; (2) PennDOT’s negligent installation of a

dangerous “boxing glove” guardrail that was not “crashworthy”; and (3) PennDOT’s

negligent failure to inspect or correct the “boxing glove” guardrail. Id. at 5. On July 9,

2015, PennDOT filed an answer and new matter in which it raised the defense of

sovereign immunity.

On September 8, 2015, PennDOT filed a motion for judgment on the pleadings,

in which it argued that the Act barred the Cageys’ claims. PennDOT argued that the

Cageys’ causes of action did not fall within any of the enumerated exceptions to its

sovereign immunity. On October 13, 2015, the Cageys filed a reply in which they

conceded that the trial court was bound by existing Commonwealth Court decisions

interpreting Dean. Thus, on December 4, 2015, the trial court granted PennDOT’s

motion for judgment on the pleadings.

The Cageys timely appealed to the Commonwealth Court where they argued that

its prior decisions have improperly expanded this Court’s holding in Dean. In Dean, we

specifically held that the “failure to erect a guardrail on the highway is not encompassed

by the real estate exception to sovereign immunity.” Dean, 751 A.2d at 1134 (observing

that “the lack of a guardrail does not render the highway unsafe for the purposes for

[J-66-2017] - 3

which it was intended, i.e., travel on the roadway”). While our decision in Dean was

limited to the question of whether PennDOT has an obligation to install guardrails,

subsequent Commonwealth Court decisions expanded our ruling to provide sovereign

immunity protection in circumstances where the Commonwealth installed guardrails but

did so in an allegedly negligent manner. For example, in Fagan v. Commonwealth,

Dep’t of Transp., 946 A.2d 1123 (Pa. Commw. 2006), the plaintiff argued that the

Commonwealth was not immune from suit where the complaining party alleged that

guardrails were negligently designed or maintained. See id. at 1125-26. Declining to

limit Dean to its facts (i.e. the absence of a guardrail), the Commonwealth Court in

Fagan determined that “where a guardrail existed, the failure to design it differently or

the failure to maintain it were not dangerous conditions of roadways for which immunity

was waived either for the Commonwealth or for local government.” Id. at 1127-28.

In the case sub judice, the Commonwealth Court acknowledged that it had

consistently applied the holding in Fagan to other similar cases. Cagey v.

Commonwealth, Dep’t of Transp., 2650 C.D. 2015, at 4 (Pa. Commw. July 28, 2016)

(unreported opinion) (citing, e.g., Lambert v. Katz, 8 A.3d 409, 417 (Pa. Commw. 2010);

Stein v. Pa. Tpk. Comm’n, 989 A.2d 80, 88 (Pa. Commw. 2010)). On the basis of this

precedent, the Commonwealth Court affirmed the trial court’s order granting PennDOT’s

motion, explaining that its decisions following Dean “represent a logical and reasonable

application of principles set forth by our Supreme Court, which have gone

uncontradicted by our legislature.” See Cagey, 2650 C.D. 2015 at 6.

In reaching its conclusion, the Commonwealth Court rejected the Cageys’

argument that its interpretation of the real estate exception to sovereign immunity is

[J-66-2017] - 4

contrary to the common law duty of a possessor of land. Ostensibly ignoring the

statutory requirement set forth at section 8522(a) of the Act, the Commonwealth Court

held that “where a Commonwealth agency enjoys immunity from tort liability, it is

irrelevant that a private person would be liable for a similar act.” Id. (citing Page v. City

of Phila., 25 A.3d 471, 476 (Pa. Commw. 2011)).

On appeal, the Cageys argue that Dean is inapplicable to the facts of this case

because Dean establishes only that the Commonwealth’s failure to install a guardrail

does not give rise to a waiver of sovereign immunity under section 8522(b)(4). Cageys’

Brief at 5 (citing Dean, 751 A.2d at 1133). They posit that the Commonwealth Court

has “erroneously extrapolated” from Dean that a “dangerous defective guardrail” is

legally and logically equivalent to the absence of a guardrail. Id. at 7-11. The Cageys

also argue that section 8522(b)(4) creates a single real estate exception – not separate

“highway” and “real estate” exceptions – imposing liability for injuries caused by any and

all dangerous conditions of Commonwealth realty. Id. at 13. In this regard, they

disapprove of the Commonwealth Court’s focus, which follows Dean, on whether a

guardrail renders “the highway unsafe for its intended purpose of travel.” Id. at 12

(quoting and criticizing Stein v. Pa. Tpk. Comm’n, 989 A.2d 80). Finally, highlighting our

rules governing statutory construction, the Cageys assert that the plain language of the

Act waives sovereign immunity for any “dangerous condition” of Commonwealth real

estate for which there would be a common law duty of care owed. Id. at 13-17 (citing

42 Pa.C.S. § 8522(a)). Because, at common law, a possessor of land would be liable

for the installation of a dangerous guardrail adjacent to a highway, see, e.g.,

Restatement (Second) of Torts §§ 307, 368; Scarborough v. Lewis, 565 A.2d 122, 126

[J-66-2017] - 5

(Pa. 1988), the Cageys contend that the General Assembly clearly intended PennDOT

to be liable in the case at bar. Cageys’ Brief at 16-17.

PennDOT argues that our decision in Dean compels the result reached by the

Commonwealth Court. The agency posits that Dean “did not turn on the absence of an

‘artificial condition,’ but [instead on] … the fact that the failure to install a [guardrail] had

nothing to do with the safety of travel on the roadway.” PennDOT’s Brief at 13.

Because the guardrail in this case “had no effect on the Cageys’ ability to travel safely

on the roadway,” PennDOT urges it cannot be liable for injuries caused by the guardrail

regardless of whether it was negligently designed and installed on Commonwealth real

estate. See id. PennDOT insists that there is a distinction between its “general duty to

keep property safe for its intended use,” which extends to all Commonwealth real

estate, and the “specific duty to keep property safe for vehicular travel,” which extends

only to “the traveled portion of the highway” and therefore does not apply here. Id. at 14

(emphasis original). While conceding that the holding in Dean “is precisely that

PennDOT does not have a duty to install guardrails,” PennDOT argues that the

“underpinning” of that holding is that PennDOT does not have a duty to ensure the

safety of vehicles careening off the roadway. Id. at 15 (emphasis original).

The instant action requires us to engage in statutory interpretation. Pursuant to

the Statutory Construction Act, “the object of all interpretation and construction of

statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.

§ 1921(a). It is well settled that the best indication of the General Assembly’s intent

may be found in a statute’s plain language. See id., § 1921(b). Thus, “when the

language of a statute is plain and unambiguous and conveys a clear and definite

[J-66-2017] - 6

meaning,” we must give the statute this plain and obvious meaning. Mohamed v.

Commonwealth Dep’t of Transp., 40 A.3d 1186, 1194 (Pa. 2012).

The Act provides, in relevant part:

(a) Liability imposed.--The General Assembly, pursuant to

section 11 of Article I of the Constitution of Pennsylvania,

does hereby waive, in the instances set forth in subsection

(b) only and only to the extent set forth in this subchapter

and within the limits set forth in section 8528 (relating to

limitations on damages), sovereign immunity as a bar to an

action against Commonwealth parties, for damages arising

out of a negligent act where the damages would be

recoverable under the common law or a statute creating a

cause of action if the injury were caused by a person not

having available the defense of sovereign immunity.

(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, including Commonwealth-owned

real property, leaseholds in the possession of a

Commonwealth agency and Commonwealth-

owned real property leased by a

Commonwealth agency to private persons, and

highways under the jurisdiction of a

Commonwealth agency, except conditions

described in paragraph (5).

42 Pa.C.S. § 8522(a), (b)(4).1 Accordingly, in order for liability to be imposed on

PennDOT, three statutory requirements must be met. First, the injury must have

1 Paragraph five of section 8522(b) provides:

(5) Potholes and other dangerous conditions.--A dangerous condition of highways

under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or

other similar conditions created by natural elements, except that the claimant to recover

(continued…)

[J-66-2017] - 7

resulted from a “dangerous condition.” Id., § 8522(b)(4). Second, the dangerous

condition must be a condition “of Commonwealth agency real estate.” Id. Third, the

damages must be recoverable under common law “if the injury were caused by a

person not having available the defense of sovereign immunity." Id., § 8522(a).

Our standard of review over a decision sustaining a judgment on the pleadings

requires us to determine whether, on the facts averred, the law makes recovery

impossible. Emerich v. Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032, 1034 (Pa.

1998).2 Accordingly, we must review the Cageys’ complaint to determine whether they

have sufficiently alleged the three above-listed statutory requirements for waiver of

sovereign immunity under sections 8522(a) and 8522(b)(4) of the Act. We begin with

the first requirement that their injuries resulted from a “dangerous condition.”

42 Pa.C.S. § 8522(b)(4). The term “dangerous condition” is unambiguous and plainly

(…continued)

must establish that the dangerous condition created a reasonably foreseeable risk of

the kind of injury which was incurred and that the Commonwealth agency had actual

written notice of the dangerous condition of the highway a sufficient time prior to the

event to have taken measures to protect against the dangerous condition. Property

damages shall not be recoverable under this paragraph.

42 Pa.S.C. § 8522(b)(5).

2 We have explained that the same principles apply to a judgment on the pleadings as

apply to a preliminary objection in the nature of a demurrer:

All material facts set forth in the complaint as well as all

inferences reasonably deducible therefrom are admitted as

true for the purpose of this review. The question presented

by the demurrer is whether on the facts averred the law says

with certainty that no recovery is possible. Where a doubt

exists as to whether a demurrer should be sustained, this

doubt should be resolved in favor of overruling it.

Emerich, 720 A.2d at 1034 (internal citations omitted).

[J-66-2017] - 8

encompasses any condition that presents a danger. See id. The Cageys averred that

the guardrail causing their injuries was a “dangerous condition” in that it was defective,

negligently-installed and uncrashworthy. Cageys’ Complaint at 5. Specifically, they

alleged that a dangerous “blunt end” or “boxing glove” terminal end treatment of the

guardrail speared and penetrated the driver’s side door, resulting in “significantly more

severe injuries” to Mrs. Cagey than if she had not been speared by the “boxing glove”

end treatment. Id. at 4-5. Thus, on the facts averred, it cannot be said that the law

would, with certainty, prevent recovery.

Next, with respect to the second statutory requirement, the Cageys averred that

the allegedly defectively designed guardrail installed adjacent to a highway under

PennDOT’s jurisdiction is a condition “of Commonwealth agency real estate.”

42 Pa.C.S. § 8522(b)(4). We find this statutory requirement to be unambiguous as well.

As an initial matter, we note that the real estate exception to sovereign immunity is

broad in that it applies to dangerous conditions of all Commonwealth real estate, not

just dangerous conditions of highways. See id. While highways are specifically

mentioned in section 8522(b)(4), it is clear from the word “including” that the General

Assembly intended to indicate that highways are merely one form of Commonwealth

real estate for the purposes of this exception. Given the breadth of this exception, it is

largely irrelevant whether the guardrails are, technically, on the highway itself or are

instead affixed to Commonwealth real estate adjacent thereto. The operative question

is whether the guardrail at issue was a dangerous condition of Commonwealth real

estate, not whether it was a dangerous condition on a highway.

[J-66-2017] - 9

It is a well settled tenet of property law that whatever is annexed to the land

becomes land. See Clayton v. Lienhard, 167 A. 321, 322 (Pa. 1933) (citing the ancient

maxim – quicquid plantatur solo, solo cedit – and concluding that “all fixtures whilst

attached to the freehold are, for the time being, a part of the realty”). Here, PennDOT

undertook to permanently install guardrails alongside the highway. Accordingly, the

guardrails, which are physically attached to the land, became fixtures thereof and thus

part of the land itself. Compare In re Sheetz, Inc., 657 A.2d 1011, 1013-14 (Pa.

Commw. 1995) (holding that canopies over gas pumps were “fixtures” of gas station

property and therefore “real estate” (albeit for purposes other than the Sovereign

Immunity Act) because they were affixed by bolts to the land, thereby evidencing an

“intent of permanence” by the owner), with Blocker v. City of Phila., 763 A.2d 373, 374-

76 (Pa. 2000) (finding that a bleacher was not a “fixture” of real property for purposes of

Philadelphia’s immunity under the Tort Claims Act3 because “it rested on, but was not

attached to, the ground”); see also Dean, 751 A.2d at 1135 (Nigro, J., dissenting)

(expressing the view that a guardrail is “an obvious part of the highway”).

Because the guardrail at issue was affixed to Commonwealth real estate, making

it legally indistinguishable from the land upon which it was erected, the Cageys

3 The Tort Claims Act provides: “Except as otherwise provided in this subchapter, no

local agency shall be liable for any damages on account of any injury to a person or

property caused by any act of the local agency or an employee thereof or any other

person.” 42 Pa.C.S. § 8541. One exception to local agency immunity is for “the care,

custody or control of real property in the possession of the local agency.” Id.,

§ 8542(b)(3). Recognizing that the Tort Claims Act and the Sovereign Immunity Act

deal with the same subject matter, this Court has sought to interpret the two statutes

consistently, while also acknowledging that “the plain language chosen by the

legislature cannot be ignored in doing so.” Jones v. Se. Pa. Transp. Auth., 772 A.2d

435, 440-42 (Pa. 2001) (internal citations omitted).

[J-66-2017] - 10

sufficiently alleged that the dangerous condition (the negligently installed “boxing glove”-

style guardrail) was a condition “of Commonwealth agency real estate.” 42 Pa.C.S.

§ 8522(b)(4); see also Snyder v. Harmon, 562 A.2d 307, 311-13 (Pa. 1989) (explaining

that the “unambiguous language” of section 8522(b)(4) indicates that the dangerous

condition must be an “artificial condition or a defect of the land itself” and “must derive,

originate from or have as its source the Commonwealth realty”) 4; Jones v. Se. Pa.

Transp. Auth., 772 A.2d 435, 443-44 (Pa. 2001) (holding that salt scattered upon a

SEPTA train platform was not a dangerous condition “of Commonwealth agency real

estate” because the “substance or object” on Commonwealth real estate was not

alleged to be “the result of a defect in the property or in its construction, maintenance,

repair or design”).

Regarding the third and final requirement that the alleged damages be

recoverable at common law, see 42 Pa.C.S. § 8522(a), it is well settled that possessors

of land (here, as discussed, to include the guardrail) owe a duty to protect invitees5 from

4 We noted in Snyder that “the critical word in the statutory language is the word ‘of’,”

and we set forth the following dictionary definition for this preposition: “used to indicate

derivation, origin or source.” See Snyder, 562 A.2d at 311, n. 5.

5 In Atkins v. Urban Redevelopment Auth. of Pittsburgh, 414 A.2d 100, 103 n.2 (Pa.

1980), this Court endorsed the definition of “invitee” as set forth in the Restatement

(Second) of Torts § 332. An “invitee” is, inter alia, “a person who is invited to enter or

remain on land as a member of the public for a purpose for which the land is held open

to the public.” See Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 83 n.4 (Pa.

Super. 2015) (quoting Restatement (Second) of Torts § 332). This provision of the

Restatement explains that “where land is held open to the public, there is an invitation to

the public to enter for the purpose for which it is held open. Any member of the public

who enters for that purpose is an invitee… .” Restatement (Second) of Torts § 332,

Comment d. By way of example:

(continued…)

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foreseeable harm. See Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). In

Carrender, we discussed section 343 of the Restatement (Second) of Torts with

approval and explained that pursuant to that provision, a possessor of land is liable for

harm caused by a condition on the land if he:

(a) knows or by the exercise of reasonable care would

discover the condition, and should realize that it involves an

unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against

the danger.

Id. (quoting Restatement (Second) of Torts § 343 (1965)).

(…continued)

Where a strip of private land abutting upon the public

sidewalk is so paved that it is indistinguishable from the

sidewalk, the possessor holds it open to the public as

provided for public use for the purpose of passage, and

anyone so using it is an invitee. The possessor's duty to use

reasonable care to keep such land in proper and safe

condition is not far removed from his obligation to the public

upon the highway itself, or to those who stray a few feet from

it in the course of travel.

Id. In their brief, the Cageys mischaracterize themselves as “licensees” without

substantial explanation. See Cageys’ Brief at 15. As discussed infra, however, their

pleadings are sufficient to satisfy the requirements for liability as to “invitees.” See

Cageys’ Complaint at 5.

Similarly, the Cageys rely on section 368 of the Restatement (Second) of Torts, see

Cageys’ Brief at 16, which sets forth the duty of care owed by a possessor of land with

respect to dangerous conditions adjacent to highways. Specifically, section 368

provides that a possessor of land is subject to liability when “he realizes or should

realize” that the condition he created near a highway involves an unreasonable risk to

persons traveling on or foreseeably deviating from the highway. See Restatement

(Second) of Torts § 368. This standard is consistent with that reserved for an invitee

rather than a licensee.

[J-66-2017] - 12

Thus, at common law, a possessor of land is liable for harm caused by a

dangerous condition that he would have discovered through the exercise of reasonable

care. Id. The Cageys alleged in their complaint that PennDOT negligently failed to

“inspect, detect and correct the uncrashworthy blunt end and/or ‘boxing glove’ terminal

end treatment on the [guardrail].” Cageys’ Complaint at 5. This allegation satisfies the

foregoing common law requirement. See Carrender, 469 A.2d at 123. Moreover, the

defective guardrail is not the kind of obvious condition a possessor of land should

expect an invitee to discover independently. See id. To the contrary, an invitee on

Commonwealth real estate would expect a guardrail alongside the road to prevent or

minimize harm, not to “spear” her and cause “significantly more severe injuries.”

Cageys’ Complaint at 5. The averments of fact set forth in the Cageys’ complaint meet

the requirement of section 8522(a).

Accordingly, there is no question that the Cageys sufficiently alleged, pursuant to

the plain and unambiguous language of sections 8522(a) and 8522(b)(4), that a

“dangerous condition of Commonwealth agency real estate” caused their injuries, and

that damages would have been recoverable at common law absent the protections of

sovereign immunity. See 42 Pa.C.S. § 8522(a), (b)(4). Sovereign immunity is therefore

waived and PennDOT may be held liable for any damages caused by the negligent

installation or design of the guardrails at issue in this matter.

In so ruling, we reject PennDOT’s contention that our prior decision in Dean has

any applicability under the facts presented here. In Dean, we held only that a

“dangerous condition of Commonwealth agency real estate” must be an artificial

condition or defect of the land itself, as opposed to the absence of such a condition.

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Moreover, based on the plain language of the Act, we reject PennDOT’s insistence that

Dean requires the alleged condition to make travel “on the roadway” dangerous. We

have not been asked to overrule Dean6 but we clarify today that our holding in Dean is

limited to the facts presented there, namely, a circumstance in which PennDOT failed to

6 We reject the suggestion in Justice Wecht’s concurring opinion that we overrule

Dean, for several reasons. First, the Cageys have not asked us to overrule Dean, and

the parties have not presented the Court with any sustained argument or advocacy on

which to do so. While it is true that the Cageys referenced the possibility of doing so in

their reply brief, Cagey’s Reply Brief at 3, they did so only if the “safe for travel on the

roadway” language in Dean was determined to be “one of the decisional rationales

supporting the decision.” Id. Herein, however, we have rejected Dean’s “safe for travel

on the roadway” rationale entirely (without overruling Dean), thus plainly demonstrating

that it was not a “decisional rationale” of significance to the holding in Dean.

In this regard, we note that the lack of advocacy with respect to overruling Dean is

hardly surprising, as we were not asked to and we did not grant allocatur to consider

this issue. Instead, we granted allocatur to decide whether the Commonwealth Court

had “improperly expanded this Court’s holding” in Dean. As such, the focus of the

parties, both in their briefs and at oral argument, was whether the present case could be

distinguished from Dean and whether the legal principles referenced in Dean regarding

the lack of a guardrail did, or did not, apply equally to a situation in which negligently

designed guardrails were installed. As set forth herein, we conclude that Dean decided

a fundamentally different question than the one under consideration here, and that, as

such, it has no application to the facts presented in the present case.

Dean was decided based upon this Court’s determination that the “dangerous condition

of Commonwealth agency real estate” refers to either an artificial condition or a defect

of the land itself, and that the lack of a guardrail does not fit into either of these

categories. Whether that rationale has continued vitality is for another day because

here, an installed guardrail is clearly an artificial condition and thus no similar question

exists in the present context. For this reason, presumably, Justice Wecht agrees that

Dean “does not control the outcome of this case.” Concurring Op. at 1. Accordingly, no

principled reason exists to overrule Dean at this time. We are not persuaded by the

argument that our decision would incentivize the Commonwealth to forego the

installation of needed guardrails merely to avoid potential future liability, as we will not

assume that the Commonwealth would act negligently, or even recklessly, for such a

purpose.

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install a guardrail. When PennDOT installs a guardrail, sovereign immunity is waived if

the agency’s negligent installation and design creates a dangerous condition.7

Finally, PennDOT posits that this Court’s per curiam order in Baer v.

Commonwealth, Dep’t of Transp., 770 A.2d 287 (Pa. 2001), “had the practical effect” of

giving notice to the lower courts that Dean should be interpreted broadly to preserve

sovereign immunity even where PennDOT has erected a faulty guardrail on

Commonwealth real estate. See PennDOT’s Brief at 16-17. Because the General

Assembly has failed to amend the Act in light of the numerous lower court decisions

barring liability in this context, PennDOT urges us to find that the Commonwealth

Court’s interpretation was “in accord with the legislative intent” of the real estate

exception and should not be disturbed. See id. at 18-20 (quoting Fonner v. Shandon,

Inc., 724 A.2d 903, 906 (Pa. 1999)). We find PennDOT’s argument unpersuasive.

In Baer, we affirmed an order of the Commonwealth Court “solely on the basis of

our decision in Dean.” Baer, 770 A.2d 287. While we cannot say whether Baer had a

“practical effect” upon the lower courts, we have unequivocally explained on multiple

occasions that “the legal significance of per curiam decisions is limited to setting out the

law of the case” and that such decisions are not precedential, even when they cite to

binding authority. See Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009)

(citing cases). We have described the rationale behind this rule as “simple and

compelling” – no stare decisis effect is warranted because per curiam orders “do not set

out the facts and procedure of the case nor do they afford the bench and bar the benefit

7 We expressly overrule Fagan and its progeny.

[J-66-2017] - 15

of the Court’s rationale.” Id. at 937-38.8 Because Baer carries no precedential value,9

its purported “practical effect” upon the lower courts is irrelevant to our decision today,

which expressly disavows the application of Dean to cases involving the negligent

installation or design of guardrails. For the same reason, we decline to view the

General Assembly’s subsequent failure to amend the Act as a “seal of approval”

regarding Dean’s application to defective guardrail cases. See PennDOT’s Brief at 17;

see also Commonwealth v. Wanamaker, 296 A.2d 618, 624 (Pa. 1972) (indicating that

inaction by the General Assembly is relevant only as to decisions wherein this Court

construed a statute).

Having found that the Cageys’ allegations fit squarely within the Sovereign

Immunity Act’s real estate exception, we conclude that PennDOT is not immune from

suit. Accordingly, we reverse the decision of the Commonwealth Court and remand for

further proceedings consistent with this Opinion.

Chief Justice Saylor and Justices Baer, Todd, Dougherty and Mundy join the

opinion.

Chief Justice Saylor files a concurring opinion.

Justice Wecht files a concurring opinion.

8 Our case law recognizes one narrow exception to this rule. If a per curiam order

expressly affirms a lower court opinion on the basis of that lower court opinion, we give

the order precedential force, but only as to the holding of the case. See Commonwealth

v. Tilghman, 673 A.2d 898, 904 (Pa. 1996) (explaining that under no circumstances

should a per curiam opinion be interpreted as an endorsement by this Court of the lower

court’s reasoning as to dicta). Our order in Baer does not fit into this narrow exception

as it did not affirm the lower court’s decision on the basis of that court’s opinion. As

such, Baer carries no precedential value.

9 To the extent that the per curiam order in Baer could be construed to have any

precedential value, it is overruled.

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