           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vanessa Martin,                       :
                         Appellant    :
                                      :
             v.                       :      No. 285 C.D. 2015
                                      :      Argued: February 8, 2016
City of Philadelphia and Brian Mussaw :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: March 2, 2016

            Appellant Vanessa Martin (Martin) appeals from an order of the Court
of Common Pleas of Philadelphia County (trial court), which granted the City of
Philadelphia’s (City) motion for summary judgment. In so doing, the trial court
concluded that the City was immune from liability for the injuries Martin sustained
in a motor vehicle accident involving one of the City’s vehicles. We now affirm.
            For purposes of summary judgment, the undisputed material facts are
as follows. On March 16, 2011, Michael Ferrill (Ferrill), a City employee, was
operating a truck equipped with a snow plow at the Philadelphia International
Airport (Airport). Ferrill noticed that a door at one of the Airport’s terminals was
either open or broken. Ferrill exited the truck to close the door, leaving the truck
unlocked and running.      While Ferrill was closing the door, Brian Mussaw
(Mussaw)1 absconded with the truck. Ferrill attempted to contact the police by
using a courtesy phone at the terminal, but could only hear a busy signal.
Ultimately, Ferrill used his cell phone to call for help. Mussaw left the Airport in
the City’s truck and proceeded north on U.S. Interstate 95. Mussaw collided with
Martin’s vehicle, causing Martin to sustain severe injuries.
              In a complaint filed on January 28, 2013, Martin alleged that the City
and Mussaw’s negligence directly and proximately caused her injuries.
(Reproduced Record (R.R.) at 4-5, Compl. ¶ 9.) With respect to the City, Martin
alleged that the City’s negligence in leaving the truck unattended allowed for
Mussaw to take possession of the truck and cause Martin’s injuries. Martin also
claimed that the City negligently entrusted its vehicle to Ferrill and that the City’s
actions constituted gross negligence or willful misconduct so as to justify the
imposition of punitive damages. The City filed preliminary objections concerning
Martin’s claim for punitive damages, which the trial court overruled. The City
filed an answer and new matter, denying the material allegations of Martin’s
complaint and asserting, inter alia, that Martin’s claims were barred by the
applicable statute of limitations, Martin failed to state a cause of action against the
City, and Mussaw alone was liable to Martin for her damages. The City did not
assert governmental immunity as a defense.
              On August 4, 2014, following the completion of discovery, the City
filed a motion for summary judgment, in which it argued that the City breached no



       1
        Although Mussaw is named as an Appellee, he has not participated in the instant matter.
As a result of his failure to file a timely brief, by order dated December 30, 2015, this Court
precluded Mussaw from filing a brief or participating in oral argument.



                                              2
duty to Martin, because Mussaw’s actions were not foreseeable. Shortly after
filing its motion for summary judgment, the City moved to amend its answer and
new matter to assert the defense of governmental immunity pursuant to
Section 8541 of what is commonly referred to as the “Political Subdivision Tort
Claims Act” (Act), 42 Pa. C.S. § 8541. The City also filed a supplement to its
motion for summary judgment, arguing that it was immune from liability. The trial
court granted the City’s motion to amend its answer and new matter, and it ordered
Martin to respond to the City’s supplemental arguments. Martin argued that the
City was liable to Martin for her injuries pursuant to Section 8542(b)(3) of the
Act,2 which is referred to as the “real property exception” to governmental
immunity. Specifically, Martin argued that the negligent conduct of the City
concerning the care, custody, or control of its real property—namely, the courtesy
phone busy signal and the open or broken terminal door—constituted a defect of
the property, which led to Mussaw purloining the City’s truck and injuring Martin.
                On November 17, 2014, the trial court granted the City’s motion for
summary judgment and dismissed Martin’s complaint against the City with
prejudice. Martin filed a notice of appeal with this Court, and the trial court issued
an opinion explaining its decision on December 11, 2014.3 In so doing, the trial




       2
           42 Pa. C.S. § 8542(b)(3).
       3
         The trial court did not order Martin to file a statement of errors complained of on
appeal. In a subsequent opinion, the trial court explained that the original trial court judge
resigned from his position on December 31, 2014. (Trial Ct. Op., Sept. 10, 2015, at 2.) The trial
court reviewed the summary judgment motions and answers, and adopted the original judge’s
December 11, 2014 opinion. (Id.)



                                               3
court concluded that the City was immune from liability as the real property
exception was not applicable to the matter.4 The trial court explained:
               [T]he real property exception is not applicable to the
               facts in this case. Neither the open terminal door at the
               [A]irport nor the busy signal on the courtesy phone
               caused this accident. This accident was caused by the
               actions of a mentally unstable man, . . . Mussaw, who
               stole a City vehicle and proceeded to drive onto Interstate
               95 striking a number of cars. Furthermore, unlike her
               vehicle exception argument, [Martin] has put forth no
               facts or allegations in her [c]omplaint to support her new
               theory that . . . [the] City . . . is liable under the real
               property exception.
(Trial Ct. Op., Dec. 11, 2014, at 8.)
               On appeal to this Court,5 Martin first argues that the trial court erred
in granting the City’s motion to amend its answer and new matter. Martin next
contends that the trial court erred in holding that Martin failed to timely raise the
real property exception. Last, Martin argues that the trial court erred in granting
the City’s motion for summary judgment on the basis that the City is immune from
liability, because the City is liable for damages pursuant to the real property
exception to governmental immunity.
               We first address Martin’s argument that the trial court erred in
granting the City’s motion to amend its answer and new matter. Martin appears to
contend that the City’s filing of its amended answer and new matter and

       4
         The trial court also held that the vehicle exception to governmental immunity,
Section 8542(b)(1) of the Act, was not applicable to the matter. Martin does not contest this
holding on appeal.
       5
         This Court’s standard of review of a trial court’s order granting summary judgment is
de novo, and our scope of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692
(Pa. 2011). Under this standard, we may reverse a trial court’s order only for an error of law. Id.



                                                4
supplemental motion for summary judgment was an attempt to circumvent the
pre-trial motion deadline established in the trial court’s case management order.
(R.R. at 142.) The crux of the argument is that the City, knowing that its motion to
amend would not be decided prior to the pre-trial motion deadline, improperly filed
its supplemental motion for summary judgment without waiting for an order from
the trial court concerning its motion to amend. This process, Martin argues,
violates the Pennsylvania Rules of Civil Procedure. Thus, Martin contends that the
trial court erred in granting the City’s motion to amend.6
               The Pennsylvania Rules of Civil Procedure provide:
               A party, either by filed consent of the adverse party or by
               leave of court, may at any time change the form of action,
               add a person as a party, correct the name of a party, or
               otherwise amend the pleading. The amended pleading
               may aver transactions or occurrences which have
               happened before or after the filing of the original
               pleading, even though they give rise to a new cause of
               action or defense.
Pa. R.C.P. No. 1033 (emphasis added). “The right to amend pleadings is ordinarily
a matter resting in the sound discretion of the trial court.” Bevans v. Hilltown
Twp., 457 A.2d 977, 979 (Pa. Cmwlth. 1983). “The right to amend should be

       6
          Although Martin contends that the process outlined above “is simply not within the
spirit and letter of the Pennsylvania Rules of Civil Procedure,” Martin fails to cite a specific rule
or relevant case law in support of her position. The City argues that Martin has waived this
argument due to her failure to cite to relevant legal authority in her brief. Although such a
failure may constitute waiver in certain circumstances, see, e.g., American Rock Mechanics, Inc.
v. Workers’ Compensation Appeal Board (BIK and Lehigh Concrete Technologies), 881 A.2d
54, 56 (Pa. Cmwlth.), appeal denied, 891 A.2d 734 (Pa. 2005), this Court “has considered the
merits of particular cases where defects in the brief did not preclude meaningful appellate review
or result in waiver of issues.” Russell v. Unemployment Comp. Bd. of Review, 812 A.2d
780, 783 n.3 (Pa. Cmwlth. 2002). As we are able to discern Martin’s argument despite the lack
of specific legal authority, we will discuss the merits.



                                                 5
granted at any stage of the proceedings unless there is resulting prejudice to the
other party or where the amendment is against a positive rule of law.” James A.
Mann, Inc. v. Upper Darby Sch. Dist., 513 A.2d 528, 530 (Pa. Cmwlth. 1986).
             Here, the trial court had the discretion to allow the City to amend its
answer and new matter unless the amendment resulted in prejudice to Martin. In
her brief, Martin fails to explain how she was prejudiced by the trial court’s
allowance of the City’s amendment of its answer and new matter. Instead, Martin
takes issue with the position in which the City put the trial court: “The [City] had
two (2) years to fix its pleading problems, and if it had acted timely, they [sic]
would not have had to put the [trial] court in the position that it put the [trial] court,
all because the [City] dropped the ball.” (Martin Br. at 29.) Any prejudice to the
trial court that may have resulted from the City’s motion to amend is not relevant
to the consideration of whether such a motion was properly granted. Because
Martin has failed to establish how she was prejudiced by the trial court’s actions,
we reject her argument that the trial court erred in granting the City’s motion to
amend its answer and new matter.
             We next address Martin’s argument that the trial court erred in
holding that Martin failed to timely raise the real property exception. Martin takes
issue with the trial court’s statement, in its order granting summary judgment,
(Trial Ct. Order, Nov. 14, 2014), and the body of its opinion (Trial Ct. Op.,
Dec. 11, 2014, at 6-8), that Martin did not plead the real property exception in her
complaint.    Martin contends that she did not initially argue the real property
exception to governmental immunity because the City did not raise governmental
immunity until it filed its amended answer and new matter and supplemental
motion for summary judgment. Despite Martin’s contentions to the contrary, the


                                            6
trial court’s statement concerning Martin’s failure to plead the real property
exception in her complaint was not essential to the trial court’s holding. Rather,
the trial court’s holding that the real property exception did not apply was based on
its conclusion that Mussaw caused Martin’s injuries, rather than the courtesy phone
or the terminal door. We, therefore, discern no reversible error.
               We next address Martin’s argument that the trial court erred in
granting the City’s motion for summary judgment on the basis that the City is
immune from liability, because the City is liable for damages pursuant to the real
property exception to governmental immunity.7 Martin argues that her injuries
arose from the negligent care, custody, or control of the City’s real property. The
condition of the terminal door and the courtesy phone, Martin contends, constitute
defects of the real property. Martin argues that had Ferrill been able to contact the
police by using the courtesy phone, Mussaw would not have been able to drive the
truck off Airport property and onto U.S. Interstate 95. Similarly, Ferrill “having to
get out of his truck to fix this ‘broken’ door put all of the events in motion here and
ultimately led to [Martin]’s injuries.” (Martin Br. at 17-18.) Martin takes issue
with the trial court’s conclusion that Mussaw’s actions, rather than the City’s
negligent care, custody, and control of its real property, were the cause of her


       7
          Summary judgment is appropriately granted only when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. 401 Fourth St., Inc.
v. Investors Ins. Grp., 879 A.2d 166, 175 n.4 (Pa. 2005); Pa. R.C.P. No. 1035.2. A party is
entitled to judgment as a matter of law only where the entire record, including all pleadings,
depositions, answers to interrogatories, admissions, affidavits, and expert reports, establishes that
the moving party’s right is “clear and free from doubt.” LJL Transp., Inc. v. Pilot Air Freight
Corp., 962 A.2d 639, 647 (Pa. 2009). We examine the record in the light most favorable to the
non-moving party, and any doubts as to the existence of a genuine issue of material fact must be
resolved against the moving party. Id.



                                                 7
injuries, and argues that a jury should have determined whether the City’s actions
were a substantial contributing cause of her injury. Further, Martin argues that a
jury should have decided whether Mussaw’s actions constituted a superseding
cause of her injury so as to relieve the City of liability for its alleged negligence.
Accordingly, Martin contends that these issues represent genuine issues of material
fact, and, therefore, the trial court improperly granted the City’s motion for
summary judgment.
             We note that “[g]enerally, local agencies are immune from tort
liability under Section 8541 of the . . . Act.” Gibellino v. Manchester Twp.,
109 A.3d 336, 342 (Pa. Cmwlth. 2015). A local agency may, however, be liable
for damages that are: (1) recoverable under common law or a statute creating a
cause of action; (2) caused by the negligent act of the local agency or its employees
acting within the scope of their employment; and (3) caused by one of the specific
acts enumerated in Section 8542(b) of the Act.            Section 8542(a) of the Act.
Section 8542(b)(3) of the Act provides:
             (b) Acts which may impose liability.-- The following
             acts by a local agency or any of its employees may result
             in the imposition of liability on a local agency:
                    ...
                    (3) Real property.-- The care, custody or control
                    of real property in the possession of the local
                    agency, except that the local agency shall not be
                    liable for damages on account of any injury
                    sustained by a person intentionally trespassing on
                    real property in the possession of the local agency.
                    As used in this paragraph, “real property” shall not
                    include:
                           (i) trees, traffic signs, lights and other traffic
                           controls, street lights and street lighting
                           systems;


                                            8
                             (ii) facilities of steam, sewer, water, gas and
                             electric systems owned by the local agency
                             and located within rights-of-way;
                             (iii) streets; or
                             (iv) sidewalks.
This exception applies “where acts of the local agency or its employees make the
property unsafe for the activities for which it is regularly used, for which it is
intended to be used or for which it may reasonably be foreseen to be used.” Moles
v. Borough of Norristown, 780 A.2d 787, 791 (Pa. Cmwlth. 2001). “Because of
the clear intent to insulate government from exposure to tort liability, the
exceptions to immunity are to be strictly construed.” Lockwood v. City of
Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000).
              Martin relies on the Supreme Court of Pennsylvania’s holdings in
Crowell v. City of Philadelphia, 613 A.2d 1178 (Pa. 1992), and Powell v.
Drumheller, 653 A.2d 619 (Pa. 1995), in support of her argument that the issues of
“superseding cause” and “substantial contributing cause” should have been decided
by a jury. In Crowell, the Crowell family was travelling in their car when they
were involved in a head-on collision with an intoxicated driver’s vehicle. The
intoxicated driver had entered into the family’s lane as a result of a directional
arrow that was misplaced by the City. The Crowells filed actions against both the
intoxicated driver and the City, arguing that the City was liable under
Section 8542(b)(4) of the Act,8 because its negligence in misplacing the arrow



       8
         Section 8542(b)(4) of the Act provides that a local agency may be liable for injuries
which result from a dangerous condition of trees, traffic controls, and street lighting under the
local agency’s care, custody, or control, provided that “the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred,” and that the agency had
(Footnote continued on next page…)

                                               9
resulted in the accident. The matter proceeded to trial, and a jury found “that the
City’s action did not merely facilitate the injuries but was in fact a substantial
contributing cause of them.” Crowell, 613 A.2d at 1181 (emphasis in original).
The City filed a motion for judgment notwithstanding the verdict, which the trial
court denied.         On appeal, this Court reversed and entered judgment
notwithstanding the verdict in favor of the City, relying on the Pennsylvania
Supreme Court’s holding in Mascaro v. Youth Study Center, 523 A.2d 1118
(Pa. 1987). The central holding of Mascaro, as identified in Crowell, was that “the
real [property] exception can be applied only to those cases where it is alleged that
the artificial condition or defect of the land itself causes the injury, not merely
when it facilitates the injury by the acts of others, whose acts are outside the
[Act]’s scope of liability.”       Id. at 1183 (quoting Mascaro, 523 A.2d at 1124
(emphasis in original)).       We concluded that the City could not be liable for
damages caused jointly with a third party.                The Crowells appealed to the
Pennsylvania Supreme Court, which reversed. In so doing, the Supreme Court
explained that the Mascaro Court recognized “that the [Act] precludes the
imposition of liability upon a governmental unit based upon a theory of vicarious
liability.” Crowell, 613 A.2d at 1183. The Mascaro holding was grounded in
statutory interpretation and was not intended to extend to joint tortfeasor liability.
The Supreme Court thus held that “a governmental unit can be subjected to
liability despite the presence of an additional tortfeasor if the governmental unit’s


(continued…)

notice of “the dangerous condition at a sufficient time prior to the event to have taken measures
to protect against the dangerous condition.”



                                               10
actions would be sufficient to preclude it from obtaining indemnity from another
for injuries rendered to a third person.” Id. at 1184. In applying its holding to the
facts of the matter, the Supreme Court concluded:
               [T]he jury here found unequivocally that the actions of
               the City’s employee were a substantial contributing cause
               of the action. Thus, since the basis of the jury’s verdict
               was the active negligence of the City’s employee
               misplacing the directional sign, and not merely the City’s
               status along the chain of causation, the verdict against the
               City was proper, and this Court’s decision in Mascaro is
               not a basis for the City’s assertion of immunity.[9]
Id. at 1184-85 (footnote omitted).
               The Supreme Court in Crowell also addressed the issue of superseding
cause. In a footnote, the Supreme Court explained that the criminal conviction of
the intoxicated driver did not “rise to the level” of a superseding cause so as to
protect the City from the imposition of liability, because the driver’s actions were
“foreseeable.” Id. at 1185 n.12. The Supreme Court expanded upon this principle
three years later in Powell. There, in deciding whether the criminal acts of an
intoxicated driver were, as a matter of law, a superseding cause that would relieve
the Pennsylvania Department of Transportation of liability for an alleged defect in
the design of a highway, the Supreme Court explained that “the proper focus is not
on the criminal nature of the negligent act, but instead on whether the act was so
extraordinary as not to be reasonably foreseeable.” Powell, 653 A.2d at 624.

       9
          In her brief, Martin contends that the holding of Mascaro was “expressly done away
with” in Crowell. (Martin Br. at 20.) As described above, however, the Supreme Court simply
clarified that Mascaro is not applicable to matters involving joint tortfeasor liability rather than
vicarious liability. The Supreme Court has since reaffirmed that the Mascaro holding was
intended “to apply in similar cases where third parties cause the harm.” Grieff v. Reisinger,
693 A.2d 195, 197 (Pa. 1997).



                                                11
Although such a determination is usually a question for the jury, the Supreme
Court noted that the undisputed facts of a matter may demonstrate that certain
conduct is “so ‘extraordinary’ as to constitute a superseding cause as a matter of
law.” Id. The Supreme Court was unable to determine from the facts of Powell
whether the driver’s conduct was sufficiently extraordinary as a matter of law, and,
therefore, the issue of superseding cause was a question for the jury to decide.
             Here, Martin contends that pursuant to the holdings in Crowell and
Powell, a jury should have determined whether the City’s actions concerning the
care, custody, and control of its property were a substantial contributing cause of
the accident and whether Mussaw’s actions constituted a superseding cause so as
to relieve the City from the imposition of liability. We disagree. In Kiley by Kiley
v. City of Philadelphia, 645 A.2d 184 (Pa. 1994), the Supreme Court, citing
Crowell and Mascaro, explained:
             We have consistently maintained our view that the focus
             of the negligent act involving a use of government owned
             or controlled land . . . must be the actual defect of the
             land itself and that the rule of immunity can be waived
             only in those cases where it is alleged that the artificial
             condition or defect of the land itself causes the injury.
Kiley, 645 A.2d at 187 (emphasis added). Here, it was not necessary for a jury to
decide the questions of superseding and substantial contributing cause, because
Martin cannot establish that the courtesy phone and the terminal door themselves
caused her injuries. Rather, as the trial court correctly noted, the accident was
caused by Mussaw’s actions. This Court considered a similar issue in Williams v.
Philadelphia Housing Authority, 873 A.2d 81 (Pa. Cmwlth. 2005). There, the
Williams family alleged that the City and the Philadelphia Housing Authority
negligently failed to provide security at a housing project the family was visiting
when one family member was shot by a resident of the housing project. This Court
                                         12
concluded that the family “did not allege facts to show that the shooting . . .
resulted from a defect in the property; at best, the complaint averred that dangerous
condition in the real property facilitated . . . [the] criminal assault.” Williams,
873 A.2d at 87; see also Burns v. Blair Cnty., 112 A.3d 690, 700 (Pa. Cmwlth.)
(holding that real property exception did not apply where complaint alleged that
failure to take proper security measures led to criminal assault by third party),
appeal denied, 125 A.3d 1203 (Pa. 2015). But see Wilson v. Phila. Hous. Auth.,
735 A.2d 172, 175-76 (Pa. Cmwlth. 1999) (holding that real property exception
applied where third party pushed plaintiff into dangerous condition of real
property, causing injury). Here, as in Williams, Martin has at most established that
the courtesy phone and the terminal door allowed for Mussaw to abscond with the
City’s truck. In other words, the alleged defects of the City’s property merely
facilitated Mussaw in injuring Martin, and “such acts are outside the scope of the
exceptions to the . . . Act.” Kiley, 645 A.2d at 187. We, therefore, reject Martin’s
argument that the trial court erred in granting the City’s motion for summary
judgment on the basis that the City is immune from liability, as the real property
exception is not applicable in the instant matter.10
              Accordingly, we affirm the trial court’s order.




                                    P. KEVIN BROBSON, Judge

       10
          Within this argument, Martin appears to argue that the courtesy phone was affixed to
the Airport property so as to constitute a defect of the property within the meaning of the real
property exception. Because Martin failed to establish that her injury was caused by a defect of
the property itself, we need not address this argument.



                                              13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vanessa Martin,                       :
                         Appellant    :
                                      :
             v.                       :   No. 285 C.D. 2015
                                      :
City of Philadelphia and Brian Mussaw :


                                 ORDER


           AND NOW, this 2nd day of March, 2016, the order of the Court of
Common Pleas of Philadelphia County is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge
