S. Wise v. Huntingdon County Housing Development Corp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Wise, :

Appellant :

:

v. :

:

Huntingdon County Housing :

Development Corporation, Housing :

Authority of the County of Huntingdon, :

Chestnut Terrace Resident’s Association :

and Weatherization Inc., a Non Profit :

Corporation d/b/a Huntingdon County : No. 1387 C.D. 2018

Housing Services : Argued: May 7, 2019

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE COVEY FILED: June 12, 2019

Sharon Wise (Wise) appeals from the Huntingdon County Common

Pleas Court’s (trial court) February 10, 2017 order granting the Housing Authority of

the County of Huntingdon’s (HACH) Summary Judgment Motion (Motion) and

dismissing Wise’s Complaint. Wise raises two issues for this Court’s review: (1)

whether the trial court erred by holding that the real estate exception to what is

commonly referred to as the Sovereign Immunity Act (Act)1 did not apply to Wise’s

1

42 Pa.C.S. §§ 8521-8527. “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.” Cagey v. Commonwealth, 179 A.3d 458, 460 (Pa. 2018). Section

8522 of the Act provides, in pertinent 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 [S]ection

claim that HACH was negligent by failing to provide adequate outdoor lighting; and

(2) whether there exists a genuine issue of material fact as to the adequacy of the

outdoor lighting.

On March 9, 2015, Wise filed the Complaint in the trial court, alleging

that she fell at approximately 12:10 a.m. on May 9, 2013, while walking on a

sidewalk in the Chestnut Terrace public housing complex (Chestnut Terrace) HACH

owned.2 Wise, a Chestnut Terrace resident, was returning home with her sister after

visiting another resident when she fell. Although Wise alleges in her Complaint that

“insufficient lighting and demarcation of the . . . sidewalk, and/or along with a defect

within the sidewalk itself caused her to trip and fall, resulting in serious injuries[,]”

8528 [of the Judicial Code] (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) [(relating to

potholes and other dangerous conditions)].

42 Pa.C.S. § 8522 (emphasis added).

2

Wise filed her complaint against four defendants: (1) Huntingdon County Housing

Development Corporation (Housing Corporation); (2) HACH; (3) Chestnut Terrace Resident’s

Association; and (4) Weatherization, Inc., a non-profit corporation d/b/a Huntingdon County

Housing Services (Weatherization).

2

Wise admitted in a deposition that she did not see any defect of the sidewalk where

she fell. Reproduced Record (R.R.) at 10a. In a letter to HACH’s counsel, Wise’s

attorney described the incident as follows:

[T]his accident took place near midnight, and the outside

lighting at the housing development was poor, if not non-

existent. While my client attempted to stay on the sidewalk

that night to get to her car[,] she simply could not see to

delineate the sidewalk from the ground, hit the edge of the

sidewalk with her foot and rolled her ankle causing the

fracture. Hence, the ‘defect’ so to speak with [sic] not with

the sidewalk itself, but the inadequate outdoor lighting.

R.R. at 89a. Similarly, in her brief to this Court, Wise acknowledges that “[she]

testified that the area was dark, and her inability to see where she was going caused

her to fall.” Wise Br. at 5. According to Wise, light from an outdoor pole light

located a “significant distance” from where she fell was the only light source, and the

light was obstructed by a large tree. Wise Br. at 5. As a result, Wise contends she

could not see the edge of the sidewalk.

On October 17, 2016, HACH filed the Motion, wherein it asserted that

Wise’s action was barred by the Act and governmental immunity. On February 10,

2017, the trial court granted the Motion, dismissed the action and entered judgment in

HACH’s favor.3 Wise appealed from the trial court’s dismissal to the Pennsylvania

Superior Court, which transferred the action to this Court. The trial court filed its

3

The trial court’s February 10, 2017 order stated: “[U]pon consideration of the Motion for

Summary Judgment, it is hereby ORDERED, ADJUDGED and DECREED that said Motion is

GRANTED. Judgment is hereby entered in favor of [HACH] and against [Wise] and this case is

DISMISSED.” Notably, the trial court entered judgment in favor of only HACH against Wise and

not the other defendants. Wise filed a Praecipe to Discontinue Action in the trial court,

withdrawing with prejudice all claims against the Housing Corporation, Chestnut Terrace

Resident’s Association and Weatherization.

3

memorandum opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)

(1925(a) Opinion) on April 21, 2017.4

Wise argues that the trial court erred when it granted the Motion and

concluded that the Act shields HACH from liability for Wise’s negligence claims.

Initially,

[s]ummary judgment will be entered only where there is no

genuine issue as to any material fact and it is clear that the

moving party is entitled to a judgment as a matter of law.

Summary judgment is proper in cases in which ‘an adverse

party who will bear the burden of proof at trial has failed to

produce evidence of facts essential to a cause of action or

defense in which a jury trial would require the issues be

submitted to a jury.’ [Pennsylvania Rule of Civil Procedure

No.] 1035.2(2). We view the record in the light most

favorable to the non-moving party, and all doubts as to the

existence of a genuine issue of material fact must be

resolved against the moving party.

Jones v. Se. Pa. Transp. Auth., 772 A.2d 435, 438 (Pa. 2001) (citations omitted).

This Court has explained:

Commonwealth agencies are generally immune from civil

suit for tort liabilities unless the General Assembly waives

sovereign immunity. See 1 Pa.C.S. § 2310; [] 42 Pa.C.S. §

8521. Section 8522(a) of the [Act], 42 Pa.C.S. § 8522(a), . .

. authorizes the imposition of liability against

Commonwealth agencies 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 [sic] caused by a person to whom

the defense of sovereign immunity is not available. To

meet the threshold requirement under Section 8522(a) of the

[Act], a plaintiff must prove the requisite elements of

4

“Our scope of review of a trial court’s order granting or denying summary judgment is

plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is

established that the court committed an error of law or abused its discretion.” Jones v. Se. Pa.

Transp. Auth., 772 A.2d 435, 438 (Pa. 2001) (citation omitted).

4

negligence: (1) the defendant’s duty[5] or obligation

recognized by law; (2) a breach of that duty; (3) a causal

connection between the defendant’s conduct and the

resulting injury; and (4) actual damages. Talarico v.

Bonham, . . . 650 A.2d 1192 ([Pa. Cmwlth.] 1994).

Even if the plaintiff can establish a prima facie case for

negligence, a Commonwealth agency will not be liable

unless the breach of its duty coincides with an exception

to Section 8522(a) of the [Act]. Bendas v. Twp. of White

Deer, . . . 611 A.2d 1184, 1186 ([Pa.] 1992). To defeat the

defense of sovereign immunity, the plaintiff must also

establish that his or her allegations fall within one of the

nine enumerated exceptions to sovereign immunity set forth

in Section 8522(b) of the [Act]. Dean v. Dep’t of Transp., .

. . 751 A.2d 1130, 1132 ([Pa.] 2000). Because of our

General Assembly’s clear intent to insulate government

from exposure to tort liability, courts must strictly construe

the exceptions to sovereign immunity. Id. A dangerous

condition of Commonwealth agency real estate and

sidewalks, including, but not limited to, highways under the

jurisdiction of a Commonwealth agency [(i.e., real estate

exception)], is one of the specifically enumerated

circumstances for which our General Assembly has waived

sovereign immunity.

Manning v. Dep’t of Transp., 144 A.3d 252, 256 (Pa. Cmwlth. 2016) (emphasis

added). Further, “the question of what constitutes a dangerous condition is one of

fact[.]” Bendas, 611 A.2d at 1186-87.

The Pennsylvania Supreme Court clarified the application of the real

property exception in Snyder v. Harmon, 562 A.2d 307 (Pa. 1989) in the context of

whether the absence of lighting constituted an artificial condition or a defect of the

land itself. In Snyder, a driver stopped along the berm of a road. The driver and

passengers were unaware that a strip mine was located directly adjacent to the berm.

5

“The corresponding duty of care a Commonwealth agency owes to those using its real

estate, is such as to require that the condition of the property is safe for the activities for which it is

regularly used, intended to be used or reasonably foreseen to be used.” Snyder v. Harmon, 562

A.2d 307, 312 (Pa. 1989).

5

Several passengers left the vehicle, climbed an embankment located outside the right-

of-way and fell into the strip mine. One passenger died, and three others were

severely injured. Three of the passengers sued the Pennsylvania Department of

Transportation (DOT) and the Pennsylvania Department of Environmental Resources

(DER) (now the Department of Environmental Protection), alleging, inter alia, that

DOT and DER had failed to warn the public of the strip mine either by lighting the

area, or by erecting a barrier along the right-of-way. The common pleas court

granted summary judgment because sovereign immunity barred the action. This

Court reversed on appeal, concluding that the plaintiffs had pled facts sufficient to

establish a dangerous condition. On appeal, the Pennsylvania Supreme Court

considered the term “dangerous condition of Commonwealth agency real estate,”

42 Pa.C.S. § 8522(b)(4), and reasoned: “These key words indicate that a dangerous

condition must derive, originate from or have as its source the Commonwealth

realty.” Snyder, 562 A.2d at 311 (emphasis added). The Court held:

The [plaintiffs] . . . assert that the close proximity between

[the highway] and the deep chasm, and the unlit and

deceptive appearance of the shoulder of the road presented

an inherently dangerous condition. Thus, liability is not

predicated on a defective condition on Commonwealth land,

but rather the knowledge of an inherently dangerous

condition contiguous with Commonwealth property which

the Commonwealth knows or should reasonably know and

takes no action to prevent any harm from occurring. While

this theory appears attractive, it is not supported by any

exception to our immunity statute.

It is uncontroverted that the strip mine highwall, at the

points where the appellees fell, was some distance from the

edge of [DOT’s] right-of-way. Furthermore, the absence

of lighting so as to create a deceptive appearance of the

shoulder of the road cannot be said to be either an

artificial condition or a defect of the land itself.

Accordingly, we conclude that Section 8522(b)(4) [of the

Act] is inapplicable to this cause of action.

6

Snyder, 562 A.2d at 312-13 (emphasis added); see also Dean.

In Jones, the Pennsylvania Supreme Court considered whether rock salt

on a train platform constituted a defect of real property within the real property

exception. The Jones Court held:

[G]uided by Snyder, we conclude that a claim for damages

for injuries caused by a substance or an object on

Commonwealth real estate must allege that the

dangerous condition ‘derive[d], originate[d] or ha[d] as

its source the Commonwealth realty’ itself, if it is to fall

within the [Act’s] real estate exception. Snyder, 562 A.2d

at 311[, 311] n.5. In other words, assuming all other

requirements of the [real estate] exception . . . are met, the

Commonwealth may not raise the defense of sovereign

immunity when a plaintiff alleges, for example, that a

substance or an object on Commonwealth realty was the

result of a defect in the property or in its construction,

maintenance, repair or design.

Jones, 772 A.2d at 443-44 (emphasis added).

More recently, in Cagey v. Commonwealth, 179 A.3d 458 (Pa. 2018), the

Pennsylvania Supreme Court further clarified the real estate exception in the context

of an alleged defectively-designed and dangerous guardrail installed adjacent to a

highway, stating:

[I]n order for liability to be imposed on [DOT], three

statutory requirements must be met. First, the injury must

have resulted from a ‘dangerous condition.’ [42 Pa.C.S. §

8522(a)], § 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 [sic] caused by a person not having

available the defense of sovereign immunity.’ [42 Pa.C.S.]

§ 8522(a).

Cagey, 179 A.3d at 463. Regarding the first factor, the Court explained that “[t]he

term ‘dangerous condition’ is unambiguous and plainly encompasses any condition

that presents a danger. The [plaintiffs] averred that the guardrail causing their

7

injuries was a ‘dangerous condition’ in that it was defective, negligently-installed and

uncrashworthy.” Cagey, 179 A.3d at 464 (citation omitted). With respect to the

second factor, the Cagey Court held that because the guardrails were physically

attached to Commonwealth property, they were fixtures and part of the realty. The

Court stated:

Because the guardrail at issue was affixed to

Commonwealth real estate, making it legally

indistinguishable from the land upon which it was erected,

the [plaintiffs] 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], . . . 562

A.2d [at] 311-13 . . . (explaining that the ‘unambiguous

language’ of [S]ection 8522(b)(4) [of the Act] 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’); [Jones], 772

A.2d [at] 443-44 . . . (holding that salt scattered upon a

[Southeastern Pennsylvania Transportation Authority

(]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’).

Cagey, 179 A.3d at 465 (footnote omitted). The Cagey Court also concluded that the

plaintiffs satisfied the third factor, stating:

[A]t 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. The

[plaintiffs] alleged in their complaint that [DOT]

negligently failed to ‘inspect, detect and correct the

uncrashworthy blunt end and/or ‘boxing glove’ terminal

end treatment on the [guardrail].’ [Plaintiffs]’ Complaint at

5. This allegation satisfies the foregoing common law

requirement. Moreover, the defective guardrail is not the

kind of obvious condition a possessor of land should expect

an invitee to discover independently. To the contrary, an

invitee on Commonwealth real estate would expect a

8

guardrail alongside the road to prevent or minimize harm,

not to ‘spear’ her and cause ‘significantly more severe

injuries.’ [Plaintiffs]’ Complaint at 5. The averments of

fact set forth in the [Plaintiffs]’ complaint meet the

requirement of [S]ection 8522(a) [of the Act].

Cagey, 179 A.3d at 466 (citations omitted). Consequently, the Court found that the

allegations fell within the real estate exception to sovereign immunity.

In contrast, in Donnelly v. Southeastern Pennsylvania Transportation

Authority, 708 A.2d 145 (Pa. Cmwlth. 1998), Donnelly, a painter/sandblaster was

injured when he allegedly tripped over equipment and fell from a scaffold to the

street below. Donnelly and his wife filed an action against SEPTA, wherein

Donnelly alleged that he was unable to see the equipment because the Philadelphia

Electric Company (PECO) had disconnected electrical lighting attached to the

understructure of overhead rail lines used to illuminate streets, to prevent workers’

electrocution. Donnelly averred that SEPTA was negligent in failing to provide

adequate lighting, and ensuring that the scaffold and jobsite were safe. SEPTA

moved for summary judgment based on sovereign immunity. The trial court denied

the summary judgment motion, but permitted SEPTA to file an interlocutory appeal

to this Court. On review, this Court first concluded that Donnelly could not establish

a common law cause of action against SEPTA. Further, this Court concluded that the

Act’s real estate exception did not apply:

Liability under the real estate exception depends, first, on

the legal determination that an injury was caused by a

condition of government realty itself, deriving, originating

from, or having the realty as its source, and, only then, the

factual determination that the condition was dangerous.

Thus, to pierce SEPTA’s immunity, there must be a

dangerous defect of SEPTA’s realty.

The [plaintiffs] argue that the understructure overhead

lighting, disconnected under SEPTA’s authority to prevent

electrocution, is the defective realty which brings this case

within the real estate exception. The [plaintiffs] claim that

9

the unsafe scaffold coupled with the inadequate lighting

caused Donnelly’s fall. However, our courts have held a

scaffold is personalty, not realty, for purposes of

immunity, Maloney v. City of Phila[.], . . . 535 A.2d 209

([Pa. Cmwlth.] 1987), . . . and that the absence of lighting

cannot be considered a defect of land itself. Snyder . . . .

Because Donnelly was not harmed by a defect of SEPTA’s

real estate, [Section] 8522(b)(4) [of the Act] is inapplicable

to this cause of action.

Donnelly, 708 A.2d at 149-50 (citation and footnote omitted; bold and underline

emphasis added).

Wise contends the trial court erred by ruling that sovereign immunity

barred her claim because whether inadequate outdoor lighting constitutes a dangerous

condition of Commonwealth property is a question for the fact finder. Wise relies on

Peterson v. Philadelphia Housing Authority, 623 A.2d 904 (Pa. Cmwlth. 1993), and

Floyd v. Philadelphia Housing Authority, 623 A.2d 901 (Pa. Cmwlth. 1993).

In Peterson, the plaintiff was severely injured when he slipped on debris

in a Philadelphia Housing Authority (PHA) building stairwell, attempted to grab a

missing bannister and fell down a flight of stairs. The plaintiff filed a complaint

alleging that the PHA had negligently failed to maintain the stairs and illuminate the

property. The trial court granted summary judgment, concluding that the real

property exception to sovereign immunity did not apply because the bannister was

not a fixture.

On appeal, the plaintiff asserted that the trial court erred because “both

the bannister and the stairwell lighting system constitute ‘fixtures,’ and are, therefore,

real property.” Id. at 906. This Court explained:

[The plaintiff] relies upon the real property exception and

bases his claim upon the [PHA’s] failure to maintain the

bannister and properly illuminate the stairs. [The plaintiff]

contends that both the bannister and the stairwell lighting

system constitute ‘fixtures,’ and are, therefore, real

property.

10

In Gore v. Bethlehem Area School District, . . . 537 A.2d

913 [(Pa. Cmwlth. 1988)] . . . , we noted (citing Black’s

Law Dictionary 574 (5th [e]d. 1979)) that a ‘fixture’ is an

article in the nature of personal property that has been so

annexed to the realty that it is regarded as part and parcel of

the land. Id. at . . . 915. The factors that determine whether

a chattel is a fixture when affixed to the land include (a) the

manner in which it is physically attached or installed; (b)

the extent to which it is essential to the permanent use of the

building or other improvement; and (c) the intention of the

parties who attached or installed it. [McCloskey v. Abington

Sch. Dist., 515 A.2d 642, 644 (Pa. Cmwlth. 1986)6]. In

McCloskey . . . , we also noted that the third factor, the

intended use of the property by the parties, is a matter

for the fact finder rather than something that can be

decided as a matter of law by this Court. Id. . . . at 645.

We realize that it can hardly be argued that a stairwell

bannister and stairwell lighting system are not physically

integrated and installed as parts of the building or not

essential to the permanent use of the building.

Nevertheless, the intended use of the property by the parties

is a question for the trier of fact and the trial court erred

in ruling, as a matter of law, that the bannister and

stairwell lighting system are not fixtures, and thus not

real property as contemplated by the real property

exception.

In summary, we conclude that the questions of: (1) whether

the missing bannister constitutes a defect in the real

property itself and is therefore a dangerous condition of the

[PHA’s] real estate as contemplated by [Section] 8522(b)(4)

[of the Act][;] and (2), whether the inadequate stairwell

lighting constitutes a defect in the real property and is

therefore a dangerous condition of the [PHA’s] real estate

as contemplated by [Section] 8522(b)(4) [of the Act], are

expressly questions of fact to be determined by the trier of

fact.

Peterson, 623 A.2d at 906 (emphasis added, footnote omitted). In Peterson, the

questions for the fact finder were whether the missing bannister and stairwell lighting

6

McCloskey was vacated on other grounds. See McCloskey v. Abington Sch. Dist., 537 A.2d

329 (Pa. 1988).

11

systems were fixtures, such that their defective condition constituted defects of

Commonwealth real property.

In Floyd, a factually similar case to Peterson, an eleven-year-old girl

was injured when she tripped and fell over debris in an unlit stairwell on the PHA’s

property. The plaintiffs alleged that the injuries resulted from the PHA’s failure to

maintain and properly illuminate the stairwell. Specifically, the plaintiffs

“contend[ed] that the abandoned lighting system in the stairwell constitute[d] a defect

in the real property itself and thus a dangerous condition of the [PHA’s] real estate.”

Floyd, 623 A.2d at 903. Relying on Peterson, the Floyd Court explained:

This inquiry involves the intent of the [PHA] when the

lighting system was installed, specifically, whether it was

intended to become a ‘fixture.’ Peterson, . . . 623 A.2d at

906-[]07. As in Peterson, we hold that the trial court in the

present case also erred in ruling as a matter of law that the

inadequate lighting in the stairwell is not a defect in the

[PHA’s] real property.

Floyd, 623 A.2d at 903 (emphasis added). The Floyd Court also rejected the PHA’s

reliance on Snyder, stating:

The [PHA] also cites Snyder . . . for the proposition that the

absence of artificial lighting constitutes neither a defect of

the land itself nor an artificial condition. The [PHA’s]

position is untenable. In Snyder[,] several people were

injured when they fell off a highwall and into a mining pit

located approximately twelve feet from a Commonwealth

highway. Because the highwall was some distance from the

edge of the Commonwealth right-of-way, the Supreme

Court held that the absence of lighting on the

Commonwealth property was neither an artificial condition

of nor defect in the land itself. However, in the present

case, the absence of lighting in the fire stairwell is clearly

on the [PHA’s] property, and the rationale in Snyder is not

applicable.

Floyd, 623 A.2d at 903 (citation omitted). Accordingly, as in Peterson, the question

for the fact finder in Floyd was whether the stairwell’s inoperable, abandoned

12

lighting system was a fixture such that its defective condition was a defect of

Commonwealth realty.

In the instant matter, the trial court concluded that Peterson and Floyd

were inapposite, explaining:

Both cases . . . miss the mark. [Wise] attempts to broaden

the holdings of those cases to encompass all types of

lighting, even outside lighting. For the real estate exception

to apply, the defect must derive, originate, or have its

source as the Commonwealth realty itself. [Jones], 772

A.2d [at] 443 . . . (citation omitted). There was no defect in

the sidewalk in the case at bar. Plaintiff seeks to expand the

real estate exception to encompass lighting, and we are not

inclined to do so.

Trial Ct. 1925(a) Op. at 2.

Wise contends that the trial court erroneously created a distinction

between inside and outside lighting. She further argues that Peterson and Floyd

support her assertion that whether inadequate lighting constitutes a dangerous

condition of Commonwealth property is a question for the fact finder, and,

accordingly, the trial court erred when it dismissed her Complaint. In addition, Wise

asserts that because both the obscured light and the sidewalk from which she fell

were Commonwealth property, her situation is indistinguishable from Floyd and

Peterson.

Initially, this Court emphasizes the distinction between the duty of

care a Commonwealth agency owes to those using its property, and the

sovereign immunity defense. Sovereign immunity bars an action against the

Commonwealth even where the Commonwealth has breached its duty to those using

its property, so long as an exception to sovereign immunity does not apply. Thus,

Wise may credibly argue that the Commonwealth breached its duty because the

“condition of the property [was not] safe for the activities for which it [was] regularly

13

used, intended to be used or reasonably foreseen to be used[,]” since it was

foreseeable that the property would be used at night. Snyder, 562 A.2d at 312.

Nonetheless, even assuming arguendo that such is true, the Commonwealth’s

breach of its duty does not remove the sovereign immunity bar precluding

Wise’s action against the Commonwealth, unless she establishes that her claim

comes within one of the exceptions. See Manning.

In Floyd and Peterson, factual questions existed regarding whether the

missing bannister and defective lights were fixtures, and if so, were a dangerous

condition of Commonwealth realty. Here, Wise does not claim that the pole light was

inoperable or that it did not light the area directly adjacent to and below it – only that

the pole light was a significant distance away from where she fell, the light therefrom

was obscured by a tree, and there was insufficient lighting in the area where she fell.

Wise does not contend that during daylight hours the Commonwealth realty is in any

manner defective. In addition, Wise does not assert that the tree directly injured her.

Nor does she aver that she fell into the tree or that the tree fell on her. In fact, Wise

does not allege that the tree was defective in any way; only that its location

obstructed the light coming from the pole light. Rather, Wise claims that the

darkness caused her fall. She argues that the defect of the Commonwealth’s

property was that there was darkness at the location where she fell, notwithstanding

that darkness is a natural exterior condition at midnight (the time of her fall). Wise’s

characterization of the defect as insufficient lighting due to a tree on the

property obstructing the pole light’s illumination, ignores that, but for the

natural nighttime darkness, there is no alleged defect, i.e., the property only

becomes allegedly defective when there is insufficient natural light. In other words,

Wise’s complaint is that the Commonwealth failed to alter the natural state of

nighttime darkness which, thereby, caused her fall. Thus, Peterson and Floyd are

also distinguishable in that, here, Wise asserts that either a defect existed because an

14

allegedly necessary fixture – additional lighting – should have been installed, or a

tree (that was not itself defective) should have been removed since, according to

Wise, it obstructed artificial light from illuminating a naturally dark exterior

area at midnight.

This Court contrasts Wise’s allegations with the situations in Peterson

and Floyd wherein the enclosed building stairwell blocked natural light causing the

artificial condition of darkness, and plaintiffs alleged that the housing authority failed

to ensure that the lights which were installed to cure the artificially dark area were

operative. Unlike in Floyd and Peterson, where the lack of natural light was

caused by the enclosed stairwell structures,7 here, the lack of exterior light

naturally occurs at night. Wise cannot contend that the nighttime darkness was

caused by the Commonwealth realty. Rather, she asserts that the Commonwealth

should have taken steps to ameliorate the darkness on its property at midnight. In

Page v. City of Philadelphia, 25 A.3d 471 (Pa. Cmwlth. 2011), this Court clarified

the distinction between natural and artificial conditions. The Page Court explained

On appeal, [the plaintiff] relies on Commonwealth v.

Weller, . . . 574 A.2d 728 ([Pa. Cmwlth.] 1990), in which

our Court concluded that DOT’s sovereign immunity was

waived when an artificial condition or defect of the land

7

Wise argues in her brief: “As an initial matter, the fire stairwell in Floyd -- inasmuch as it

is designed to provide safe egress during a building fire -- was presumably located on the outside

of the building in question.” Wise Br. at 13 (emphasis added). Thus, Wise contends that Floyd is

directly applicable to the instant matter and binding precedent. There is nothing in Floyd describing

the stairwell as being on the outside of the building. Wise simply presumes such on the basis that,

according to Wise, a fire stairwell is “designed to provide safe egress during a building fire.” A

review of Floyd reveals that there is no description, representation or any other indication that the

stairs were outside. The Floyd Court described the fall location as an “unlit fire stairwell[,]” not a

fire escape. Floyd, 623 A.2d at 902 (emphasis added). Merriam-Webster’s Collegiate Dictionary

(11th ed. 2004) (Merriam-Webster’s) defines “stairwell” as a “vertical shaft in which stairs are

located.” Id. at 1214. Further, Merriam-Webster’s defines “shaft,” in relevant part, as “a vertical

opening or passage through the floors of a building.” Id. at 1142 (emphasis added). Thus, based

on the Floyd Court’s description, the stairwell was in the interior of the building.

15

itself caused an injury to occur. In Weller, the facts

establish that DOT plowed snow so that it formed a ramp

over a berm and guardrail, which decedent’s vehicle

ascended. Weller, however, is inapplicable to the situation

now before this Court for the reasons discussed by this

Court in Miller [v. Kistler, 582 A.2d 416 (Pa. Cmwlth.

1990)].

In Miller, we specifically distinguished between the type of

situation involving a natural accumulation of ice and snow

that resulted after a roadway was plowed from the type of

situation in Weller, where snow was piled up to form a

ramp, thereby constituting an artificial accumulation which

rendered the installation of the guardrail ineffective. We

concluded that DOT cannot be held liable for the

accumulation of snow or ice as a result of improper

plowing. In so doing, we rejected the plaintiff’s argument

that improper plowing by DOT ‘created an artificial

accumulation of snow and ice’ on a sidewalk which caused

the plaintiff’s injuries. [Miller, 582 A.2d at 418]. Relying

on our decision in Vitelli v. City of Chester, . . . 545 A.2d

1011 ([Pa. Cmwlth.] 1988), we reasoned that plaintiff

incorrectly characterized the accumulation of snow and ice

as an ‘artificial condition.’ Id. We explained:

In Vitelli, . . . , we held that ‘[s]hoveled snow is

a natural incident of the snowfall which cannot

be separated from the snowfall itself. The fact

that snow has been shoveled into the street

does not change its character from ‘natural’ to

‘artificial.’’ Although Vitelli was decided

under Section 8542 of the Judicial Code, 42

Pa.C.S. § 8542 ([commonly referred to as the

Political Subdivision Tort Claims Act,] relating

to [local agency] governmental immunity), this

Court, by implication, has extended the

reasoning of Vitelli to cases arising under

Section 8522 [of the Act] (relating to sovereign

immunity).

Furthermore, the Supreme Court has held

that sovereign immunity is waived pursuant

to Section 8522(b)(4) [of the Act] only when

it is alleged that the artificial condition itself

caused the injury to occur. Because the

16

reasoning of Vitelli also applies to the real

property exception to sovereign immunity, . .

. we hold that any improper plowing by DOT

did not create an artificial condition for which

DOT can be held liable. A contrary conclusion

would allow DOT to avoid liability for leaving

roads unplowed but expose DOT to liability

whenever it attempts to clear these same roads.

Id. (citations omitted).

Page, 25 A.3d at 477-78 (citations omitted; bold and underline emphasis added).

Unlike the circumstances in Floyd and Peterson, where the enclosed stairwells along

with the missing and/or inoperable fixtures created the darkness which led to the

plaintiffs’ injuries, exterior nighttime darkness on Commonwealth property is not

an artificial condition. Thus, whether the tree or pole light are fixtures is

irrelevant since they did not cause the natural exterior nighttime darkness. Like

the snow in Miller, the Commonwealth’s failure to adequately remove or alter a

naturally occurring condition – exterior darkness – is not a situation for which

the General Assembly waived sovereign immunity. Although the

Commonwealth might have a duty to illuminate a naturally dark exterior area,

sovereign immunity bars Commonwealth liability for such alleged failure.

Wise acknowledged that she saw no physical defect in the sidewalk.

Contrary to Wise’s contention, the significantly distant pole light and the tree situated

between the pole light and her fall location did not create the already existing natural

darkness. There was no artificial change to the Commonwealth’s realty from the day

to nighttime. Given the earth’s natural rotation from light to darkness, the alleged

dangerous condition – darkness – did not “derive, originate from or have as its source

the Commonwealth realty.” Snyder, 562 A.2d at 311. Like falling snow, nighttime

darkness visits Commonwealth property naturally. Also like snow, the

Commonwealth’s failure to properly or completely ameliorate natural exterior

17

nighttime darkness does not create an artificial condition. Therefore, HACH’s

alleged failure to adequately illuminate the sidewalk area during hours of darkness

did not create an artificial condition or defect of Commonwealth realty for which

HACH may be held liable.

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sharon Wise, :

Appellant :

:

v. :

:

Huntingdon County Housing :

Development Corporation, Housing :

Authority of the County of Huntingdon, :

Chestnut Terrace Resident’s Association :

and Weatherization Inc., a Non Profit :

Corporation d/b/a Huntingdon County : No. 1387 C.D. 2018

Housing Services :

ORDER

AND NOW, this 12th day of June, 2019, the Huntingdon County

Common Pleas Court’s February 10, 2017 order is affirmed.

___________________________

ANNE E. COVEY, Judge