S. Essington, Administrator of the Estate of D. Essington v. Monroe County Transit Authority v. J. Acevedo-Soltren

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean Essington, Administrator of the :

Estate of David Essington, deceased, :

Appellant : No. 1081 C.D. 2022

:

v. : Argued: June 6, 2023

:

Monroe County Transit Authority, :

A Pocono Country Place Property :

Owners Association, Inc. a/k/a :

A Pocono Country Place Property :

Owners Association and :

Commonwealth of Pennsylvania, :

Department of Transportation :

:

v. :

:

Joaquin Acevedo-Soltren :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: July 11, 2023

Sean Essington, Administrator of the Estate of David Essington,

deceased, (Appellant), appeals from three orders entered by the Court of Common

Pleas of Monroe County (trial court) on August 15, 2022, granting summary

judgment in favor of Monroe County Transit Authority (Authority), Commonwealth

of Pennsylvania, Department of Transportation (PennDOT), and A Pocono Country

Place Property Owners Association, Inc. (Property Owners Association or

Association), and dismissing Appellant’s complaint. Appellant also appeals from a

fourth order entered by the trial court on December 16, 2020, sustaining the

preliminary objections of the Authority as to the assertion of liability under the real

estate exception to what is commonly known as the Political Subdivision Tort

Claims Act1 (Tort Claims Act), 42 Pa. C.S. § 8542(b)(3), and dismissing Count II

(violation of the Pennsylvania Constitution) of Appellant’s complaint.2 Upon

careful review, we affirm in part, and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 30, 2017, at approximately 8:30 p.m., 17-year-old David

Essington (the decedent) was struck by an oncoming car while crossing State Road

196 (SR-196) near its intersection with Woodside Drive, in Coolbaugh Township,

Monroe County. (Reproduced Record (R.R.) 490a, 508a-09a.) The decedent

suffered multiple traumatic injuries and died a few hours after the accident. Id. at

1078a.

SR-196 is a two-lane highway running north and south, with a dividing

double-yellow line, and a posted speed limit of 45 miles per hour (m.p.h.). Id. at

440a-91a. Each lane is about 10 feet wide, with a shoulder on each side of about 2.5

feet, which is marked off by white lines. Id. at 491a, 545a. In this “very rural area”

there are no sidewalks, no street lighting, and no pedestrian crosswalk. Id. at 440a,

491a, 547a, 1676a. To the east of the accident site are woods. Id. at 440a.

1

The parties agree that the Authority is a local agency for immunity purposes. See also

Flaxman v. Burnett, 574 A.2d 1061, 1065 (Pa. Super. 1990) (concluding that the Authority is a

local agency). The parties also agree that as a local agency, the Authority is immune from liability

for personal injury and property damage claims unless the claim falls within one of the exceptions

to immunity specified in 42 Pa. C.S. § 8542.

2

The orders appealed from are final and appealable orders.

2

A Pocono Country Place (the Development) is a large, gated, residential

development consisting of over 4,000 single-family homes. Id. at 545a, 660a. The

Development is a private community intended for residents and their guests only.

The Development has two gated entrances, known as the Main Gate and the K-L

Gate. There are also emergency-access only gates located at Brentwood Drive,

Woodside Drive and Millwood Overlook Drive where they intersect with SR-196.

Although no vehicular traffic can access the Development at the emergency gates,

pedestrians can access the Development through the emergency gates. The accident

that occurred in this case occurred on SR-196 at the intersection of Woodside Drive.

Just prior to the accident, the decedent had been riding a bus operated

by the Authority. Id. at 510a. The Authority had established a bus stop on the

northbound side of SR-196 at its intersection with Woodside Drive many years

before the accident (Woodside Drive Bus Stop). Riders getting off the bus at the

Woodside Drive Bus Stop would be required to cross SR-196 if they wanted to enter

at the gated Woodside Drive entrance. No improvements were made at the

Woodside Drive Bus Stop, other than a sign noting an Authority bus stop at the

location.

The Authority had five bus stops to service residents of the

Development. Pursuant to a 2010 license agreement between the Association and

the Authority, the Association permitted the Authority to construct three of the five

bus stops, with shelters, on the Association’s property. The Woodside Drive Bus

Stop, which was located on SR-196, did not have a shelter.

Riders did not have to get off at the Woodside Drive Bus Stop and cross

SR-196 to access the Development at Woodside Drive. They could wait until the

bus turned around at the K-L Gate, and disembark on the same side of the

3

Development. Authority buses are required to let riders off at whatever location they

choose.

On the night of the accident, the decedent got off the bus at the

Woodside Drive Bus Stop. Id. at 508a, 877a. Another bus passenger, Taimar

Mosley, exited the bus in front of the decedent. Id. at 508a. They both proceeded

toward the rear of the bus, as required by the Authority. Id. at 926a, 1066a. The bus

merged back onto SR-196, and Mosley stepped into the street, with the decedent

following behind him. Id. at 508a, 1066a.

Meanwhile, Joaquin Acevedo-Soltren (hereinafter the Driver) had left

his home at A Pocono Country Place and was heading toward Wal-Mart in his 2004

Hyundai Elantra. Id. at 499a, 1129a, 1180a. The Driver was proceeding south along

SR-196 with his car’s high-beam headlights illuminated. Id. at 509a, 1137a-39a.

The Driver came out of a curve into a straightway of about 100 yards. Id. at 528a-

31a, 543a, 1156a. The Driver saw the bus, about 150 yards ahead on SR-196, and

switched to his low-beam headlights so as not to blind the bus driver. Id. at 1137a-

38a, 1141a-42a.

According to the Driver, the bus driver, Everette Grant, had his high-

beam headlights on but did not switch to his low-beam headlights, a fact which the

bus driver disputes. Id. at 932a, 1134a. The glare from the bus’s bright headlights

temporarily blinded the Driver, causing him to glance down at the car’s speedometer

for a “split second.” Id. at 1134a, 1144a. The Driver was going about 45 m.p.h. but

had his foot on the brake. Id. at 1145a-51a. Once the Driver recovered his sight, he

quickly glanced over at the bus driver. Id. at 1147a. About a second or two later,

the Driver turned his attention back to the road. There, only 30 to 50 feet in front of

him, was the decedent. Id. at 1134a, 1147a, 1166a, 1183a.

4

By this point, Mosley had already crossed SR-196. Id. at 1066a.

Moments earlier, Mosley had started crossing the street. He looked both ways and

did not see any oncoming cars. Id. at 1066a-67a. Once the bus was farther up the

road and Mosley was halfway across the street, he looked right again and saw “a car

really close.” Id. at 1066a-67a. He rushed across the street and turned back to see

if the decedent had made it. Id. at 1066a-67a. The Driver did not see Mosley

crossing the street. Id. at 1164a.

The decedent was dressed entirely in black—hat, shirt, and shorts. Id.

at 1168a. He had a headphone in one ear (a fact confirmed on the Authority’s video)

and a phone in his hand. Id. at 509a, 522a, 1134a, 1168a, 1186a. The decedent

appeared to be looking down at the phone. Id. at 1185-86a. The Driver slammed on

the brakes and turned to the left, but he could not avoid hitting the decedent. Id. at

1134a.

The Complaint

Appellant instituted this suit by filing a complaint in the United States

District Court for the Middle District of Pennsylvania against the Authority,

PennDOT and the Association. Id. at 27a-67a. The Authority joined the Driver as

an additional defendant. Id. The remaining defendants filed cross-claims against

each other. On September 24, 2020, the matter was transferred to the trial court

pursuant to 42 Pa. C.S. § 5103.3

In Count II, (Violation of Pennsylvania Constitution), it is alleged that

the Authority permitted the decedent to disembark at the Woodside Drive Bus Stop

knowing that it was unsafe and that its conduct resulted in a state-created danger to

3

The U.S. District Court dismissed Count I brought pursuant to 42 U.S.C § 1983, against

the Authority, which alleged federal civil rights violations (State-created danger). The remaining

state law claims were dismissed without prejudice.

5

the decedent in violation of the substantive due process rights to bodily integrity

secured by article 1, § I of the Pennsylvania Constitution, PA. CONST. Id. at 47a-

49a.

In Count III (Negligent Operation of a Motor Vehicle), Appellant

asserts that the Authority negligently operated the bus in such a manner so as to

require the decedent to disembark the bus onto the narrow, unprotected shoulder of

northbound SR-196 at a point without sufficient sightlines, sight distances and/or

unobstructed views of oncoming traffic, and without signs, guardrails, bus shelters,

pull-offs, roadway cutouts, or any other feature or mechanism that would provide

safety or protection for the decedent. Id. at 51a-53a. Appellant further alleges that

the Authority operated the bus in such a manner that required the decedent to

disembark the bus at an unreasonably dangerous location, blocked the view of the

decedent from observing oncoming traffic while crossing SR-196, and prevented

vehicles proceeding southbound on SR-196 from observing the decedent crossing

the roadway. Id. Appellant also alleges that the Authority (1) operated the bus in

such a manner that its headlights obstructed the view of oncoming vehicles; and (2)

failed to warn the decedent of oncoming vehicles or warn oncoming vehicles that

the decedent had just disembarked. Id.

In Count IV (Negligent Maintenance of Real Property), Appellant

asserts that PennDOT and the Authority are liable under the real property exception

to the grant of immunity under the Sovereign Immunity Act4 and the Tort Claims

Act. The complaint alleges that PennDOT and the Authority acted negligently in

allowing a dangerous condition to occur on SR-196 and by failing to erect signs,

lights, guiderails, bus shelters, crosswalks, traffic control devices, warning signals,

4

42 Pa. C.S. § 8522.

6

or other features to protect disembarking bus passengers. Appellant alleges that the

failure to provide any type of safety protection exposed disembarking passengers to

an unreasonable risk of being struck from oncoming vehicles. The complaint further

alleges that PennDOT and the Authority failed to inspect, discover and correct the

dangerous condition. Id. at 54a-56a.

In Count V (Negligence), Appellant avers that the Property Owners

Association knew that pedestrian use of the Woodside Drive entrance to the

Development was unreasonably dangerous. Appellant further argues that, although

the Property Owners Association facilitated and encouraged its residents to ride

Authority buses, it unreasonably denied the Authority’s request to operate its buses

inside the gated community. Appellant contends that this route would have

eliminated the need for members of the Association to disembark on SR-196.

Appellant contends that the Association breached the duty of care it owed to the

decedent by subjecting him to the risk of being struck by oncoming vehicles and this

resulted in harm to the decedent. Id. at 58a-62a.

Count VI alleges a cause of action under the Pennsylvania Wrongful

Death Act, 42 Pa. C.S. § 8301, against all defendants. Id. at 62a-65a.

Count VII alleges a survival action under the Survival Act, 42 Pa. C.S.

§ 8302, against all defendants. Id. at 65a-66a.

The Authority’s Preliminary Objections

On October 14, 2020, the Authority filed preliminary objections to the

complaint, arguing that Count II, alleging a cause of action under the Pennsylvania

Constitution, should be dismissed because other remedies exist, such as negligence,

that could support recovery. The Authority also argued that the complaint failed to

7

plead causes of action against the Authority under the motor vehicle and real

property exceptions to liability under the Tort Claims Act. Id. at 68a-73a.

In an order dated December 16, 2020, the trial court sustained the

Authority’s preliminary objection as to Count II. It also sustained the Authority’s

preliminary objection to Appellant’s assertion of liability under the real estate

exception to the Tort Claims Act but overruled its objection to the assertion of

liability under the motor vehicle exception. In sustaining the Authority’s

preliminary objection as to the real property exception to liability, the trial court

reasoned that the Authority neither owned, maintained nor controlled the real estate

where the bus stopped, and that the Authority had no duty, as alleged by Appellant,

to build a shelter at the location of the bus stop. Id. at 206a-18a.

II. DEPOSITIONS AND EXPERT REPORTS

In the crash reconstruction report from the Pocono Mountain Regional

Police Department, Trooper Daniel Jones attributed the accident to several factors:

the glare from the bus’s headlights temporarily blinded the Driver; the 32-foot bus

both obscured the Driver from the decedent and the decedent from the Driver; the

lack of artificial lighting, combined with the dark clothing the decedent was wearing;

and the decedent’s use of an ear bud along with the sound of the bus engine may

have masked the sound of the Driver’s approaching car. Id. at 483a-531a. Trooper

Jones concluded that these factors combined “to make [the decedent] a low contrast

silhouette” and that consequently, the Driver “could not have perceived, reacted to

and avoided” the collision. Id. Trooper Jones also found that both the Driver and

the decedent had violated Pennsylvania law. The Driver’s brakes were deficient, id.

at 504a, 519a, and the decedent failed to yield the right-of-way to the Driver. Id. at

519a, citing 75 Pa. C.S. §§ 3543, 3544.

8

Authority Assistant Executive Director Richard Schlameuss testified at

his deposition that the Woodside Drive Bus Stop had been there for as long as he

was employed by the Authority—at least 13 years. Id. at 870a, 874a. Schlameuss

recounted that prior to 1991, little consideration was given where to locate a bus

stop. Id. at 871a-72a. When the Authority places a bus stop on a state road in

PennDOT’s right-of-way, PennDOT is not notified. Id. at 872a. Prior to the

accident, the Authority had no safety concerns about the Woodside Drive Bus Stop.

Id. at 879a. After the accident, the Authority removed this bus stop. Id. at 879a.

That decision was based on the “slight curve” in the road, and “shallow shoulder,”

which is near “[i]naccessible vegetation.” Id. Those conditions made this “not quite

the ideal bus stop.” Id.

The Authority produced an expert report by Frank Costanzo, an

accident reconstructionist. Id. at 541a-58a. Costanzo concluded that the “actions

and inactions” of the decedent and the Driver contributed to the occurrence of the

accident. Id. at 541a-58a. He opined that the decedent “had the ability to clearly

see” the Driver’s oncoming car and yet “carelessly entered” the southbound lane of

SR-196. Id. at 541a-58a. Costanzo also noted that the Driver had not maintained

the brakes of his vehicle, in violation of three Pennsylvania statutes, but he also said

that the Driver had insufficient time to complete his perception/reaction phase and

avoid the collision. Id. at 558a.

Appellant presented the expert testimony of Timothy Reilly, a

professional engineer. Mr. Reilly noted that, based on the deposition testimony of

Schlameuss, the Authority did not use a “bus stop checklist” (guidelines) to evaluate

this area as a safe place for a bus stop. Id. at 537a. Further, Mr. Reilly stated the

Authority did not consult with PennDOT to aid in its evaluation of this area as a bus

9

stop. Id.

Mr. Reilly concluded that the accident was caused by the designation

of Woodside Drive Bus Stop without “pedestrian accommodations,” such as a

crosswalk and “adequate lighting.” Id. at 538a-39a. If it was necessary for the

Authority to designate this area as a bus stop, it should have advocated to PennDOT

or Coolbaugh Township for these safety features. Id. at 538a. If these safety

features could not be placed in this area, then the Authority should not have

permitted passengers to exit here. Id. Instead, the Authority should have restricted

the bus stop to the southbound side of SR-196 (the other side of the street). Id. Thus,

Mr. Reilly concluded, the Authority’s decision to allow the decedent to exit at the

Woodside Drive Bus Stop was a “significant contributing factor” of the accident.

Id. Mr. Reilly agreed with a conclusion of Trooper Jones in his crash reconstruction

report that the bus was a “large visual impediment” obstructing the decedent’s view

of the Driver’s car, and the Driver’s view of the decedent. Id. Mr. Reilly concluded,

however, that there were no geometric sight distances from the built environment

impacting the ability of either of the involved parties to view one another. Id. at

441a.

PennDOT’s District Traffic Engineer, Derrick Herrman, testified that,

pursuant to the Pennsylvania Code, the placement of bus stops does not require

PennDOT’s approval. Id. at 480a. With one limited exception not applicable here,

the Authority can put a bus stop wherever it desires. Id. at 480a-81a.

The Property Owners Association presented evidence that in 2016, the

Authority, desirous of increasing ridership on its buses, proposed a fixed route within

the development which would have allowed the buses to enter the gated community

to pick up and drop off riders. Following an open board meeting, during which

10

residents in attendance were overwhelmingly opposed to the proposal, the board of

directors of the Association voted against allowing Authority buses into the gated

community. (R.R. 646a, 672a-673a.)

III. TRIAL COURT OPINIONS

Upon completion of discovery, the Authority, PennDOT and the

Property Owners Association each moved for summary judgment. On August 15,

2022, by separate opinions and orders, the trial court granted each of the motions

and dismissed Appellant’s complaint in its entirety.

The Authority

The Authority moved for summary judgment on the remaining cause of

action against the Authority in Count III, which asserts that the Authority breached

its duty of care by allowing the decedent to disembark at a bus stop that was

inherently dangerous. (R.R. 300a-21a.)

To begin, the trial court agreed with Appellant that allowing the

decedent to disembark at the Woodside Drive Bus Stop was part of the operation of

the bus as contemplated by the Tort Claims Act, 42 Pa. C.S. § 8542(b)(1). The trial

court went on to conclude, however, that the Authority’s conduct was not the

proximate cause of the decedent’s harm. (Trial Court Authority Opinion (Authority

op.) at 6.)

The trial court reasoned that although the Authority chose to put a stop

at Woodside Drive, it was not responsible for the narrow shoulder, lack of guardrails,

sidewalks, lights, bus shelters, or cutaways in the state roadway. The road was

owned by PennDOT, which chose not to make these improvements to the rural road.

The trial court further held that, in any event, there was no evidence adduced during

discovery that any of these conditions, which were related to the conditions of the

11

bus stop itself, caused the harm to the decedent. Id. Wider shoulders, guardrails,

sidewalks, lighting, a bus shelter or road cutaway would not have protected the

decedent from the accident, which occurred in the middle of the southbound lane.

The trial court also rejected Appellant’s claim that the decedent had no choice but to

cross SR-196 when he did in order to protect himself from oncoming vehicles

traveling northbound because there was no evidence produced that there were any

oncoming vehicles approaching the decedent along the northbound lane that he had

to avoid. The accident, the trial court concluded, occurred because the decedent

was wearing dark clothing, was distracted and crossed the lane of traffic in front of

an oncoming car. Id. The trial court noted that no evidence was presented that a

streetlight at the location would have prevented the accident and that Appellant’s

claim in this regard was merely a presumption which is inadequate for the necessary

proof of proximate cause. Further, there was no evidence presented that established

that better lighting at the intersection would have prevented the accident because the

Driver of the other vehicle said he was momentarily blinded by the bus’s headlights.

The trial court agreed with the Authority that the bus stop was generally safe because

the Authority had no prior notice of any other accidents at the stop, or that the stop

was dangerous in any way.

The trial court concluded that the Authority was not negligent by letting

the decedent off at a bus stop with the physical conditions that existed. Id. at 7. The

trial court also concluded that there was no evidence to support that the bus operator

negligently operated the bus itself or its headlights. It rejected Appellant’s claim

that the Authority was negligent by stopping at this location due to the bus itself

being such a large visual impediment, reasoning that this condition is not any

different than any other start or stop of a bus, and because there was no evidence that

12

the stop itself made the bus a more dangerous impediment than usual. Finally, the

trial court noted that the decedent did not have to get off at this stop. He could have

stayed on the bus until it turned around a few miles later and disembarked on the

same side of the road as the Development. Id. at 9.

PennDOT

PennDOT moved for summary judgment based on sovereign

immunity.5 (R.R. 454a-69a.) PennDOT argued that the accident was not caused by

any dangerous artificial condition arising out of SR-196 itself. Id. at 460a-67a. It

maintained that Appellant’s claims, which are based on the absence of lighting and

other pedestrian accommodations, fall outside the real estate exception to sovereign

immunity. PennDOT further argued that it had no duty to install lighting or traffic

control devices at the Woodside Drive Bus Stop, and that it had no involvement in

designating the location of the bus stop. PennDOT also emphasized that sovereign

immunity barred Appellant’s claim for wrongful death damages. See 42 Pa. C.S. §

8301. Id. at 468a-69a.

The trial court granted PennDOT’s motion for summary judgment.

(PennDOT Opinion (PennDOT op.) at 8.) The trial court noted that the evidence

showed that PennDOT had no role in designating the Woodside Drive Bus Stop. Id.

at 5. Further, Appellant’s allegations that PennDOT failed to install certain safety

features on SR-196 was “not a defect on the land itself,” nor was it a condition

created by PennDOT. Id. at 5. The trial court noted that the real estate exception

applies to a condition of the Commonwealth real estate itself, and not to negligent

policies or activities (such as failure to inspect) regarding the real estate.

5

42 Pa. C.S. §§ 8521-8528.

13

Considering the foregoing, the trial court concluded that PennDOT was entitled to

sovereign immunity. Id. at 3-7.

The trial court also addressed the issue of damages for wrongful death.

Id. at 8. The trial court concluded that sovereign immunity barred Appellant, who

is the decedent’s parent, from pursuing damages for non-pecuniary loss, future

services, financial support, and medical bills. Id.

The Property Owners Association

The Property Owners Association also moved for summary judgment

on Appellant’s claim that it was negligent in facilitating residents’ use of a bus stop

outside of the community and failing to ensure that it was safe, and that it was

negligent in failing to allow the Authority inside the gated community to pick up and

drop off residents.

The trial court granted the Property Owners Association’s motion for

summary judgment. The trial court found no evidence that the Property Owners

Association encouraged the use of the Authority as transportation, and that even if

it did, that was insufficient to find it legally responsible for the decedent’s harm.

(Trial Court Association Opinion (Association op.) at 6.) The trial court further

found that the Association had no control over the number and locations of the bus

stops into its Development and consequently no duty to the decedent to ensure a

safer bus stop. The trial court rejected Appellant’s assertion that the Association

breached its duty to decedent by denying the Authority access to have a dedicated

bus route inside the Development. The trial court found that the Association’s

decision not to allow a route that would have brought non-residents into the

community was reasonable, and in any event not a proximate cause of the accident.

Id. at 8-9.

14

Appellant now appeals.6

IV. ANALYSIS

A. The Authority

Appellant argues that the trial court erred in granting summary

judgment in favor of the Authority because questions of material fact exist as to

whether the negligent operation of the bus by the Authority was a proximate cause

of decedent’s death, specifically whether the Authority breached its duty by: (1)

discharging the decedent onto the unprotected side of SR-196, at night, at a location

that required him to cross both the northbound and southbound lanes of travel and

which provided no cover, shelter or other means of protecting himself; and (2)

improper use of its highlights. Appellant also asserts that the trial court erred in

sustaining the preliminary objections7 of the Authority and dismissing Count II of

the complaint which alleged negligence under the real estate exception of the Tort

Claims Act.

6

The standard in reviewing the grant of summary judgment is de novo and the scope of

review is plenary. Chanceford Aviation Properties, LLP. v. Chanceford Township Board of

Supervisors, 923 A.2d 1099, 1103 (Pa. 2007). The court “must 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.” Id. Summary judgment is to be entered

only in the clearest of cases where there is not the slightest doubt as to the absence of a triable

issue of fact. Trowbridge v. Scranton Artificial Limb Co., 747 A.2d 862, 864 (Pa. 2000).

7

In reviewing a trial court’s grant of preliminary objections, this Court’s standard of review

is de novo and its scope of review is plenary. Mazur v. Trinity Area School District, 961 A.2d 96

(Pa. 2008). This Court must accept as true all well-pleaded material facts in the complaint and all

inferences reasonably deducible therefrom. Connor v. Archdiocese of Philadelphia, 975 A.2d

1084 (Pa. 2009). The Court may sustain preliminary objections only when, based on the facts

pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally

sufficient to establish a right to relief. Mazur, 961 A.2d at 101.

15

Obviously Perilous Point

Appellant contends that the Authority’s act of allowing the decedent to

disembark at an obviously perilous point subjects it to liability under the vehicle

liability exception of the Tort Claims Act.

The law imposes upon a common carrier the duty to allow passengers

to alight from a vehicle in a safe manner. It must give passengers a safe place to

alight and to pass out of danger. Homa v. Wilkes-Barre Transit Corporation, 147

A.2d 377, 378 (Pa. 1959) (quoting Stevens v. Reading Street Railroad Co., 121 A.2d

128, 132 (Pa. 1956)). A bus company has a duty to not only carry its passengers

safely, but to afford them an opportunity to safely alight. Tyler v. Insurance Co. of

North America, 457 A.2d 95, 98 (Pa. Super. 1983). See also Stewart v. Loughman,

80 A.2d 715, 717 (Pa. 1951) (“It is the duty of a common carrier of passengers to

exercise the highest practical degree of care and to afford them a safe means of

ingress and egress to and from the car or other vehicle of transportation.”).

The carrier cannot discharge passengers at an “obviously perilous

point.” Curry v. Napolitano, 8 Pa. D. & C. 2d 544, 548 (1956), aff’d, 133 A.2d 555

(Pa. 1957) (citing O’Malley v. Laurel Line Bus Co., 166 A. 868 (Pa. 1933); Brown

v. Ambridge Yellow Cab Co., 97 A.2d 377 (Pa. 1953)). After a passenger alights,

the common carrier’s duty ends, and it is generally not liable for any injuries

sustained as a result of being struck by another motor vehicle while walking across

the street. Harris v. De Felice, 109 A.2d 174 (Pa. 1954); Knoud v. Galante, 696

A.2d 854 (Pa. Super. 1997).

In Reid v. Scranton Transit Co., 12 A.2d 553 (Pa. 1940), a passing car

struck the plaintiff’s foot and leg while he was leaving the defendant’s streetcar in

mid-afternoon. The plaintiff argued that the streetcar company was negligent by

16

discharging him in the middle of a street, at a place that was not safe because of

traffic, and without warning him of the danger. The trial court entered a compulsory

nonsuit and held that the streetcar company was not negligent. The Supreme Court

affirmed, holding that the evidence showed that traffic passed on both sides of the

streetcar, whose driver could not be expected to anticipate that the driver of a vehicle

would disregard the law against passing streetcars.

In Troy v. Scranton Transit Co., 81 A.2d 547 (Pa. 1951), the plaintiff

stepped off a bus approximately 100 to 150 feet beyond the usual stop. As the bus

moved away, plaintiff ran across the road and was struck by a motorist after crossing

the road’s centerline. She charged the bus company with negligence for permitting

her to get off the bus at a place other than the usual bus stop. The Supreme Court

affirmed the grant of a compulsory nonsuit, holding that no evidence showed that

the location at which the plaintiff disembarked from the bus was dangerous.

In Harris, the plaintiff asked the operator of a streetcar to let him off

opposite an inn, which was not a regular stop, at approximately two o’clock a.m.

The driver obliged, and the departing passenger waited until the vehicle moved off

before proceeding into the roadway. The plaintiff walked to the middle of the road,

looked for traffic, then proceeded across the remainder of the road. Before reaching

his destination, he was struck by a car. The Supreme Court held that the streetcar

company did not discharge the plaintiff at a “manifestly dangerous place,” and,

therefore, it was not liable for his injuries. 109 A.2d at 177.

In Lehman v. Lebanon Coach Co., 38 Pa. D. & C. 4th 470, 487-88

(1998), aff’d, 788 A.2d 1038 (Pa. Super 2001) (Table), a minor disembarked from a

public transit bus and was struck by a car while crossing a street to get to her school.

The court held that the location at which the bus company discharged the plaintiff

17

was not an “obviously perilous point” or a “manifestly dangerous place.” Id. at 487-

88. “To the contrary, this discharge site had apparently been a regular stop on this

particular public transit bus run. [The p]laintiff and her friends in fact exited the bus

without incident and were safely proceeding on the sidewalk for some distance prior

to the accident en route to their final destination.” Id. at 488. The court concluded

that the law does not impose upon the common carrier the duty to ensure that its

passenger arrive at his or her destination safely, and it only imposes a duty to refrain

from allowing a passenger to disembark at a manifestly dangerous place. Id.

Here, Appellant failed to adduce any evidence that would have

established that the Woodside Drive Bus Stop was an “obviously perilous point” or

a “manifestly dangerous place.” In an attempt to meet this burden, Appellant argues

that there was no adequate street lighting illuminating the roadway/intersection

where the accident took place. Appellant also argues that the shoulder areas of SR-

196 at that location are narrow, and relies on the testimony of the Authority’s

corporate designee, Mr. Schlameuss, who testified that “there’s a slight curve,

there’s a shallow shoulder, you know and not far from the shoulder is inaccessible

vegetation” so “it’s not quite the ideal bus stop.” (R.R. at 879a.) Appellant argues

that notwithstanding the dangerous condition of the roadway at this location, the

Authority made the decision to utilize this location as a bus stop. Appellant further

relies on the testimony of Trooper Jones, who determined that “[t]he existing

roadway design does not provide a safe area for pedestrians to walk along the

northbound lane of travel and provides a minimal area beyond the edge line (fog

line) for pedestrians.” (R.R. 851a.) Appellant argues that the narrow shoulder forced

the decedent to quickly cross SR-196 so as not to be struck by northbound traffic.

18

Having reviewed the record, and considering the evidence in a light

most favorable to Appellant, we are unable to conclude that the trial court erred in

granting summary judgment in favor of the Authority. First, we agree with the trial

court that Appellant failed to establish that the Woodside Drive Bus Stop was

necessarily a perilous or dangerous place to discharge passengers. Appellant’s focus

on the lack of wider shoulders, guardrails, sidewalks, lighting, a bus shelter, or road

cutaway misses the mark because these features would not have protected the

decedent from the accident. The accident did not occur at or near the bus stop, or

along the side of the northbound lane. It occurred after the decedent left the area of

the bus stop and was in the middle of the southbound lane. He had already left the

bus stop, the northbound lane, and was in the process of crossing the southbound

lane when he was struck. There was no evidence that the decedent was unable to

stand on the shoulder and wait at the Woodside Drive Bus Stop until the road was

clear before he attempted to cross SR-196. Moreover, the location where the

decedent crossed SR-196 is perfectly straight. The fact that there was a slight curve

approximately two-tenths of a mile north of the bus stop did not render it dangerous,

especially in light of Appellant’s expert, who testified that there were no geometric

sight distances from the built environment impacting the ability of either of the

involved parties to view one another. (R.R. 441a.) To the extent Appellant argues

that the narrow shoulder “forced” the decedent to cross SR-196 at the moment he

did and into the path of the Driver, there was no evidence that he moved from the

shoulder so as not to be struck by northbound traffic or that there were any cars

following the bus in the northbound lanes at a close enough distance to put the

decedent in peril. In Harris, the Supreme Court rejected a similar argument. There,

after the plaintiff got off the bus, he attempted to cross two lanes of traffic. Harris,

19

109 A.2d at 176. When he was about three-quarters of the way across the road, he

was struck by an automobile. Like Appellant here, the plaintiff contended that the

place of discharge was obviously perilous because there was no place to stand in

safety on the southerly side of the street. He testified that “[i]f [he] stayed where

[he] was, a car might have come down the other way and hit [him], because there

was nothing there but a little curb.” Id. The Supreme Court rejected this argument

as mere conjecture as the “only conceivable way that the plaintiff would be

endangered if he remained where he was standing would be the wholly fortuitous

circumstance of an automobile leaving the highway at that point.” Id. at 177.

Moreover, the trial court did not err in concluding that the Woodside

Drive Bus Stop was not unsafe based on the lack of any prior accidents. In Reid, 12

A.2d at 553-54, the Supreme Court held that the fact that defendant had discharged

its passengers at the same point for approximately four years without incident was

an element in favor of the proposition that the location was not obviously perilous.

Appellant also argues that the Authority’s bus itself created a visual

obstruction not only to the passengers who were just discharged and attempting to

cross to safety, but also to any oncoming vehicle traveling in a southbound direction.

Appellant’s expert, Mr. Reilly, testified that “the presence of the subject [Authority]

bus would have acted as a large visual impediment blocking the oncoming driver’s

“ability to see [the decedent.]” (R.R. 1266a.) Clearly, the fact that the bus might

obstruct the view of a departing passenger or an oncoming car does not itself render

the bus stop manifestly dangerous. If it did, then all bus stops would be perilous

because all buses are large vehicles that obstruct someone’s field of vision.

20

Improper Use of High Beams

Next, Appellant contends that the trial court erred by entering summary

judgment on his claim that the driver of the Authority’s bus was negligent by

improperly utilizing the bus’s high beams. Appellant points to disputed evidence

that the Driver of the car that struck the decedent was temporarily blinded by the

bus’s high beams and this was the cause of the collision.

There remains a question of fact as to whether the bus driver was

negligent by improperly utilizing his high beams. During discovery in this matter,

the Authority’s witness testified that the bus driver “did nothing wrong” and that

“from watching the video” he “did everything that was proper.” (R.R. 728a.)

The Driver of the vehicle which struck the decedent, however, testified

during his deposition that he was unable to see the decedent prior to striking him due

to the position of the bus, along with the fact that the operator of the bus had the high

beams improperly activated as he drove towards him and passed him, thus

obstructing the Driver’s view. He testified in this regard, as follows:

[The bus] was coming at me, and it had its, you know, high

beam lights on. And it temporarily blinded me.

It passed me and it temporarily blinded me. So I looked

down at my speedometer. And I recovered my vision,

cleared my eyes. And not to long after that, I’d probably

say three seconds, I had one second to look, focus, and see

a figure on the road. I had another second to say, oh, God,

and slammed on my brakes and immediately turned left.

And I wound up connecting with this person.

(R.R. 1133a-34a.)

Thereafter, the Driver was asked upon what he based his testimony that

the bus had its high beams activated, to which the Driver responded:

21

It’s very clear. They’ll blind the crap out of you when

you’re looking right at them. You just can’t avoid it. You

have to just kind of turn your head sideways or something

because you will feel the effect of those lights.

(R.R. 1138a.)

Following the accident, a Crash Reconstruction Report was completed

by Trooper Daniel Jones. (R.R. 853a.) The Crash Reconstruction Report of Trooper

Jones concluded that the glare from the bus headlights temporarily blinded the

Driver, which reduced his ability to observe the decedent.

The Authority’s bus driver had a statutory duty to dim or lower the

beam of the bus’s headlights on meeting the automobile driven by Driver. Section

4306(a) of the Vehicle Code, 75 Pa. C.S. § 4306(a), provides: “Whenever the driver

of a vehicle approaches an oncoming vehicle within 500 feet, the driver shall use the

low beam of light.” Our Supreme Court has held that the plain legislative intent of

section 4306(a) “was to prevent motorists from facing excessive glare, so as to

reduce the obvious safety hazard that exists when a driver suffers momentary

blindness upon being subjected even very briefly to the intense brightness of high

beam lamps.” Commonwealth v. Beachey, 728 A.2d 912, 913 (Pa. 1999).

Whether the bus driver operated the bus in violation of section 4306(a)

and whether that violation was a proximate cause of the collision is a question of

fact reserved for the jury. See Biehl v. Rafferty, 37 A.2d 729, 732 (Pa. 1944) (unless

the facts are undisputed the question of proximate cause and intervening agency are

for the jury). See also, 8 Am. Jur. 2d Automobiles § 803 (Accidents involving

vehicles proceeding in opposite directions, generally; failure to dim lights).

Contrary to the trial court’s conclusion, Appellant put forth evidence

that the Authority’s bus driver very well may have not dimmed his headlamps as he

was approaching the Driver’s vehicle, causing the Driver to be temporarily blinded

22

by the glare and the Authority’s conduct in that regard created the foreseeable risk

of serious injury or death to the decedent. A jury must determine whether any

negligence by the Authority in this regard was a substantial factor in causing the

decedent’s harm. Rabutino v. Freedom State Realty Co., 809 A.2d 933, 941 (Pa.

Super. 2002) (“[w]hether a defendant’s conduct has been a ‘substantial factor’ in

causing plaintiff's harm is ordinarily a question of fact for the jury”).

Thus, the evidence, viewed in the light most favorable to Appellant,

demonstrates that the Authority, if it in fact operated the bus in violation of section

4306(a), increased the risk of physical harm to the decedent; as such, Appellant has

established a jury question that the Authority’s negligence was a substantial factor

in causing the decedent’s injuries.

We conclude that the trial court erred in granting the Authority’s motion

for summary judgment in this respect.

The Real Estate Exception (Preliminary Objections)

Appellant argues that we should reverse the grant of the Authority’s

preliminary objections because the trial court improperly held that the cause of

action asserted in the complaint does not fit into the real estate exception to immunity

found in 42 Pa. C.S. § 8542(b)(3).

To reiterate, the complaint avers:

(a) The Authority planned, designed, controlled, located,

engineered, constructed, maintained, scheduled,

designated, inspected, and/or repaired the bus stop in such

a manner that rendered it unsafe for its intended use.

(b) The Authority undertook to install, utilize and control

a bus stop at the intersection of SR-196 and Woodside

Drive.

23

(c) The Authority failed to ensure that the property was

safe for the activities for which it is regularly used, namely

a bus stop.

(d) The failure of the Authority to provide any type of

safety protection on property that it chose, designated,

utilized and controlled as a bus stop resulted in harm in

this matter.

(e) The failure of the Authority to properly care for its

property caused the decedent to be in the roadway as there

was no place for passengers to take any sort of cover or

otherwise protect themselves.

(f) This failure on the part of the Authority was a

substantial factor in the harm to the decedent.

(R.R. 27a-67a.)

Appellant maintains that these allegations, when taken as true, are

sufficient to establish a claim under the real estate exception to immunity.

In Pennsylvania, the real estate exception to immunity is set forth at

section 8542(b)(3) of the Tort Claims Act and waives immunity for damages caused

by the “care, custody or control of real property in the possession of the local

agency.” 42 Pa. C.S. § 8542(b)(3). In order to fall within the real property

exception, “the injured party must show that (a) the injury resulted from a dangerous

condition that (b) stemmed from the care, custody or control of real property, not

personalty.” Taylor v. Northeast Bradford School District, 101 A.3d 144, 148 (Pa.

Cmwlth. 2014); Mellon v. City of Pittsburgh Zoo, 760 A.2d 921, 924 (Pa. Cmwlth.

2000). A claim “may be predicated on either an affirmative act, or the failure to act,

resulting in negligence in the care, custody, or control of the real property.”

Brewington for Brewington v. City of Philadelphia, 199 A.3d 348 (Pa. 2018).

The trial court held that the real estate exception is inapplicable because

24

[the Authority] neither owned, maintained nor controlled

the real estate where the bus stopped. Nor did [the

Authority] have a duty to build a shelter of some kind at

the location of the bus stop. [The Authority] had control

of where it chose to stop the bus, or stated another way, to

have a bus stop. However, it had no duty as to the actual

real estate itself, nor has [Appellant] alleged sufficiently

that an artificial condition or defect of the land itself

caused the injury.

[Authority opinion, 12/16/20, pp. 9-10]

Appellant relies heavily on Brewington in which our Supreme Court

held that an unpadded concrete gymnasium wall could be found to be a defective

and dangerous condition of the premises because it was not safe for use in a relay

race during gym class. In Brewington, the concrete gymnasium wall caused the

student’s injury. The Supreme Court held that the plaintiff properly pled negligence

regarding the “care” of the real property, as that term is commonly understood, to

include attention to possible dangers to minimize and reduce risk such as applying

padding to concrete gym walls. There, the school district actually owned, possessed

and controlled the elementary school and the concrete wall, which caused the minor

plaintiff’s head injury. In this case, the Authority stopped its bus along a state

highway. It had the right to do so, but the undisputed evidence established that the

Authority did not own or possess or control the real estate upon which the decedent

disembarked.

Furthermore, the real estate exception only applies where the artificial

condition or defect of the land itself causes the injury, not when it facilitates injury

by a third party. Combs v. Borough of Ellsworth, 615 A.2d 462, 465 (Pa. Cmwlth.

1992). The decedent’s death was proximately caused by a third party’s motor

vehicle, not the bus stop. See Farber v. Pennsbury School District, 571 A.2d 546

25

(Pa. Cmwlth. 1990) (school district’s negligent failure to supervise a school-

sponsored sporting event, resulting in injuries, did not fall within the real property

exception).

Accordingly, we find the trial court did not err by sustaining the

Authority’s preliminary objections and concluding that the real estate exception to

governmental immunity was not applicable to the Authority.

B. PennDOT

Next, Appellant argues that the trial court erred in granting summary

judgment in favor of PennDOT because questions of fact exist sufficient to establish:

(1) that the real estate exception to sovereign immunity applies to PennDOT; and (b)

that PennDOT owed the decedent a duty to render SR-196 at its intersection with

Woodside Drive safe for its regular and intended use as a bus stop.

As a general rule, the Sovereign Immunity Act8 grants the

Commonwealth immunity from negligence claims. 42 Pa. C.S. § 8521(a); see also

PA. CONST., art. I, § 11. The Act provides specific exceptions to this general rule.

42 Pa. C.S. § 8522(b)(1)-(10). One such exception pertains to “Commonwealth real

estate.” 42 Pa. C.S. § 8522(b)(4). The “real estate exception” waives the

Commonwealth’s immunity in cases involving “[a] dangerous condition of

Commonwealth agency real estate . . . . ” Id.9

8

42 Pa. C.S. §§ 8521-8528.

9

Specifically, the statute provides:

(4) 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

(Footnote continued on next page…)

26

The Pennsylvania Supreme Court recently summarized the contours of

the real estate exception in Wise v. Huntingdon County Housing Development

Corporation, 249 A.3d 506, 517 (Pa. 2021). There, the Court reaffirmed that a

dangerous condition “‘must derive, originate from or have as its source the

Commonwealth realty.’” Id. (quoting Snyder v. Harmon, 562 A.2d 307, 311 (Pa.

1989). In other words, if the dangerous condition results from “‘a defect in the

property or in its construction, maintenance, repair or design,’” immunity is waived.

Id. (quoting Jones v. Southern Pennsylvania Transportation Authority, 772 A.2d

435, 444 (Pa. 2001)). The dangerous condition must “be an artificial condition or

defect of the land itself, as opposed to the absence of such a condition, and that

artificial condition or defect must be the cause, or a concurrent cause, of the injury.”

Id. (citing Snyder, 562 A.2d at 312); see also Cagey v. Department of

Transportation, 179 A.3d 458, 463 (Pa. 2018) (outlining elements).

The plaintiff’s allegation in Wise fell within the real estate exception.

She alleged that she tripped and fell while walking on a sidewalk because available

outdoor lighting was obscured, due to the arrangement of the sidewalk, the pole light,

and a tree. 249 A.3d at 509, 518. The sidewalk, pole light, and tree were all part of

the real property and so the plaintiff “identified a dangerous condition that results

from a defect in the property or in its construction, maintenance, repair, or design.”

Id. at 518 (citation omitted).

In contrast, allegations of the absence of a safety feature falls outside

the real estate exception. Thus, when the allegation is that state-owned real estate

Commonwealth agency, except conditions described in paragraph

(5).

42 Pa. C.S. § 8522(b)(4).

27

lacks lighting or guardrails, sovereign immunity attaches. See Wise, 249 A.2d at

515-516, 518 (discussing Dean v. Department of Transportation, 751 A.2d 1130,

1134 (Pa. 2000)); Snyder, 562 A.2d at 312-13.

As with all exceptions to sovereign immunity, the real estate exception

“must be strictly construed.” Page v. City of Philalphia, 25 A.3d 471, 476 (Pa.

Cmwlth. 2011); see Wise, 249 A.3d at 514. Such a construction is necessary to give

effect to “the legislature’s clear intent to insulate government from exposure to tort

liability.” Page, 25 A.3d at 476.

Here, Appellant contends that it was the absence of safety features on

the road, “pedestrian accommodations,” such as a crosswalk or “adequate lighting”

that caused the accident. However, the lack of these safety features does not trigger

the real estate exception to sovereign immunity. See Dean, 751 A.2d at 1134;

Snyder, 562 A.2d at 312-313.

Appellant also argues that there were multiple dangerous conditions in

SR-196: the “slight curve,” and the “shallow shoulder,” which is “not far from . . .

[i]naccessible vegetation.” (R.R. 879a; Appellant’s Brief at 59, 61-62, 65-66.) This

argument also fails. First, as we concluded above, these road conditions were not

the cause of the accident. The slight curve is approximately 100 yards from the

accident site. (R.R. at 528a.) The “shallow shoulder” and nearby “[i]naccessible

vegetation” are on the side of the road. This accident happened in the middle of the

southbound lane. See Wise, 249 A.3d at 517 (“artificial condition or defect must be

the cause, or a concurrent cause, of the injury”). Again, there was no evidence of

record to establish that the decedent was forced to cross the road at the moment he

did, rather than waiting at the shoulder.

28

Next, Appellant argues that PennDOT “allowed” and “facilitated the

erection and installation” of the Woodside Drive Bus Stop. (Appellant’s Brief at 58-

60.) This argument lacks any support in the record. To the contrary, the undisputed

evidence established that the Authority was not required even to notify PennDOT

that a certain area had been designated a bus stop, let alone seek its approval. (R.R.

480a, 872a.) The Authority can establish a bus stop wherever it desires. (R.R. 480a-

81a.)

Appellant’s contention that PennDOT is not entitled to immunity

because it maintains SR-196 and, therefore, “is in control of the area,” is also flawed.

(Appellant’s Brief at 60-61.) Mere control of the area, as in regularly plowing the

road of snow or cutting the nearby grass, is not enough to negate sovereign

immunity. There must be evidence that the improper maintenance flowed “from a

defect in the real property itself.” Nardella v. Southern Pennsylvania Transportation

Authority, 34 A.3d 300, 304 (Pa. Cmwlth. 2011) (SEPTA’s failure to apply melting

agents to accumulating ice did not fall within real estate exception as “[t]hese

allegations of improper maintenance did not result from a defect in the real property

itself”).

Accordingly, based on the foregoing, we conclude that the trial court

correctly entered summary judgment in favor of PennDOT.10

C. The Property Owners Association

Appellant next argues that the trial court erred by granting summary

judgment in favor of the Property Owners Association. Appellant contends that the

10

Since PennDOT is immune from liability in this instance, the issue of whether Appellant

is precluded from recovering damages from PennDOT for the decedent’s medical bills is moot.

See Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 290 (Pa. Super. 2013) (where jury

did not find defendants liable, damages issue was moot).

29

Association was negligent in creating, encouraging and facilitating the use of

Woodside Drive as a bus stop where no safety measures were implemented for the

protection of the passengers getting off at that location. Appellant further alleges

that the Association unreasonably refused the request of the Authority to establish a

fixed route within the gated development, which arguably would have eliminated

the need for the decedent to use the Woodside Drive Bus Stop.

We find the trial court properly granted summary judgment in favor of

the Property Owners Association.

A property owners association owes duties to the members of its

common interest community, including:

(1) To use ordinary care and prudence in managing the

property, and financial affairs of the community that

are subject to its control;

(2) To treat members fairly;

(3) To act reasonably in the exercise of its discretionary

powers including rule making, enforcement, and

design control power;

(4) To provide members with reasonable access to

information about the association, the common

property and the financial affairs of the association.

Restatement (Third) of Property (Servitudes), § 6.13 (American Law Institute 2000);

McMahon v. Pleasant Valley West Association, 852 A.2d 731 (Pa. Cmwlth. 2008).

Appellant maintains that the duties set forth in (1) and (4) of Section

6.13 required the Association to ensure that the Woodside Drive Bus Stop was safe.

As the trial court observed, however, the bus stop was established by the Authority,

with no involvement of the Association. The Woodside Drive Bus Stop was,

therefore, not in the control of the Association. Accordingly, we agree with the trial

30

court that the Association did not have a duty with respect to managing the Woodside

Drive Bus Stop.

Appellant also argues that by allowing the Authority to construct

shelters at three of the five stops on SR-196, a duty was somehow created on behalf

of the Association to ensure that all of the stops, including the Woodside Drive Bus

Stop, were safe. Appellant relies on Restatement (Second) of Torts § 323 (American

Law Institute), pertaining to the negligent performance of a gratuitous undertaking

to render services. This reliance is misplaced.

In Newell v. Montana West, Inc., 154 A.3d 819 (Pa. Super. 2017), the

administrator of the estate of a nightclub patron who was struck by a car and killed

while crossing the highway next to the nightclub to reach his car sued owners and

operators of the nightclub for negligence, alleging that the defendants provided

insufficient parking for their patrons. The trial court granted summary judgment for

defendants. Affirming, the Superior Court held that a landowner could not be held

liable to a business invitee for injuries that occurred to the invitee on an adjoining

highway or other property as a result of a breach by the landowner of an alleged duty

to provide sufficient parking on its own premises. The court reasoned, in part, that

the lack of sufficient parking did not impose a duty on defendants to protect their

patrons from parking elsewhere under Restatement (Second) of Torts § 323, which

provided liability for negligently undertaking to provide services for the protection

of another. Id. at 826-828, 834, 838.

Here, the Association permitted the Authority to construct and operate

three bus shelters on the Association’s property to protect riders from the weather.

The Association was not rendering services to its residents by allowing the Authority

to erect bus stops on its property. The trial court properly found that the Association,

31

by allowing some shelters on its land, did not impose a duty to ensure that all of the

bus stops were safe, including the Woodside Drive Bus Stop, which was not located

on the Association’s property but rather on SR-196.

Appellant next argues that the board of directors of the Property Owners

Association unreasonably denied the proposal of the Authority to allow its buses

inside the private, gated community and that this constituted a breach of the duties

it owed to its members, including the decedent. This argument fails as well.

Proximate cause does not exist where the defendant’s alleged

negligence was so remote that the defendant cannot be held legally responsible as a

matter of law for the harm done. Brown v. Philadelphia College of Osteopathic

Medicine, 760 A.2d 863, 868 (Pa. Super. 2000). Proximate cause is a legal question.

Proximate cause must be established before the question of actual cause may be put

to the jury. Reilly v. Tiergarten, Inc., 633 A.2d 208, 210 (Pa. Super. 1993).

Here, the trial court properly determined that other factors, most

significantly the fact that the decedent tried to cross SR-196 at night with oncoming

traffic, and the failure of the Driver who struck the decedent to observe and/or avoid

the decedent were both the legal and factual cause of the accident. Conversely, the

refusal of the Association to allow Authority buses into the development or its

alleged duty to ensure that the Woodside Drive Bus Stop was safe was not the

proximate cause of the accident. Accordingly, we conclude that the trial court

properly found that the alleged acts and omissions of the Property Owners

Association were too far removed from the accident to be the legal or proximate

cause of the decedent’s harm.

32

V. CONCLUSION

For the foregoing reasons, the trial court did not err in granting

summary judgment in favor of PennDOT and the Property Owners Association, and

in sustaining the preliminary objections of the Authority. However, the trial court

did err in granting summary judgment in favor of the Authority on Appellant’s claim

of negligence pertaining to the bus driver’s use of the bus’s high beams.

Accordingly, we must reverse the trial court to this limited extent and remand for

further proceedings consistent with this Opinion. Jurisdiction is relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge

Judge Fizzano Cannon did not participate in this decision.

33

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean Essington, Administrator of the :

Estate of David Essington, deceased, :

Appellant : No. 1081 C.D. 2022

:

v. :

:

Monroe County Transit Authority, :

A Pocono Country Place Property :

Owners Association, Inc. a/k/a :

A Pocono Country Place Property :

Owners Association and :

Commonwealth of Pennsylvania, :

Department of Transportation :

:

v. :

:

Joaquin Acevedo-Soltren :

ORDER

AND NOW, this 11th day of July, 2023, the August 15, 2022 orders

entered by the Court of Common Pleas of Monroe County (trial court), granting

summary judgment in favor of the Commonwealth of Pennsylvania, Department of

Transportation, and A Pocono Country Place Property Owners Association, Inc., and

dismissing the complaint filed by Sean Essington, Administrator of the Estate of

David Essington, deceased, as against these two defendants, are hereby AFFIRMED.

The August 15, 2022 order entered by the trial court granting summary

judgment in favor of Monroe County Transit Authority (Authority) is hereby

REVERSED to the extent it granted summary judgment to the Authority on Sean

Essington’s claim of negligent operation of high beams. The case is REMANDED

to the trial court for further proceedings consistent with this Opinion.

The trial court’s December 16, 2020 order sustaining the preliminary

objections of the Authority is hereby AFFIRMED.

Jurisdiction is relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge