                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
