          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Billie Jo Raker,                        :
                   Appellant            :
                                        :
             v.                         :
                                        :
Pennsylvania Department of              :
Transportation, a/k/a PENNDOT           :   No. 1582 C.D. 2018
and Keystone Blind Association          :   Argued: October 3, 2019



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ROBERT SIMPSON, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: October 24, 2019


             Billie Jo Raker (Appellant) appeals from the Court of Common Pleas
of Venango County’s (trial court) December 18, 2017 order that granted summary
judgment to Keystone Blind Association (Keystone) and the trial court’s July 31,
2018 order that granted summary judgment to the Pennsylvania Department of
Transportation (DOT). Upon review, we affirm.
             On January 4, 2012, Appellant fell and suffered injuries when she
stepped off a curb on the premises of Rest Stop 21 on Interstate 80 Eastbound in
Venango County, Pennsylvania (the rest stop). On June 13, 2014, Appellant brought
suit against DOT, the owner of the rest stop, and Keystone, a DOT contractor hired
to maintain certain portions of the rest stop, alleging DOT’s and Keystone’s
negligent ownership and inspection of the rest stop caused Appellant’s injuries.
Following discovery, both DOT and Keystone moved for summary judgment
pursuant to Pa.R.C.P. No. 1035.2.1 On December 18, 2017 and July 31, 2018, the
trial court granted summary judgment in favor of Keystone and DOT, respectively,
determining that Appellant had failed to establish a negligence cause of action as to
either defendant, and further determining that DOT was insulated from Appellant’s
lawsuit by sovereign immunity, 1 Pa.C.S. § 2310.2 Appellant timely appealed.3




       1
           Rule 1035.2 permits summary judgment where:

                after the completion of discovery relevant to the motion, including
                the production of expert reports, an adverse party who will bear the
                burden of proof at trial has failed to produce evidence of facts
                essential to the cause of action or defense which in a jury trial would
                require the issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2.
       2
           Pennsylvania Consolidated Statutes Section 2310 provides:

                Pursuant to section 11 of Article 1 of the Constitution of
                Pennsylvania, it is hereby declared to be the intent of the General
                Assembly that the Commonwealth, and its officials and employees
                acting within the scope of their duties, shall continue to enjoy
                sovereign immunity and official immunity and remain immune from
                suit except as the General Assembly shall specifically waive the
                immunity. When the General Assembly specifically waives
                sovereign immunity, a claim against the Commonwealth and its
                officials and employees shall be brought only in such manner and in
                such courts and in such cases as directed by the provisions of Title
                42 (relating to judiciary and judicial procedure) or 62 (relating to
                procurement) unless otherwise specifically authorized by statute.

1 Pa.C.S. § 2310.
       3
         Appellant initially appealed to the Superior Court, which transferred the matter to this
Court by order dated November 29, 2018.



                                                  2
               On appeal,4 Appellant claims that the trial court erred by determining
Appellant failed to meet her burden to put forth a prima facie case of negligence
against DOT and Keystone because she did not proffer adequate evidence to
demonstrate the existence of a dangerous condition at the rest stop. See Appellant’s
Brief at 3 & 9-15. Appellant also claims that the trial court erred by finding that
Appellant failed to prove that DOT and Keystone had notice of the alleged dangerous
condition. See Appellant’s Brief at 3 & 15-22. Lastly, Appellant claims that the
trial court erred because Appellant proffered evidence that Keystone breached a
contractual duty. See Appellant’s Brief at 3-4 & 22-27.
               Initially, as this Court has explained:

               Summary Judgment is appropriate only where there are no
               genuine issues of material fact and the moving party is
               entitled to judgment as a matter of law. To successfully
               challenge a motion for summary judgment, a party must
               show through depositions, interrogatories, admissions or
               affidavits that there are genuine issues of material fact to
               present at trial.

Pritts v. Dep’t of Transp., 969 A.2d 1, 3 (Pa. Cmwlth. 2009) (internal citation
omitted). When reviewing the grant of summary judgment, this Court “must
examine the record in a light most favorable to the non-moving party, accepting as
true all well-pleaded facts and reasonable inferences to be drawn therefrom.” Irish
v. Lehigh Cty. Hous. Auth., 751 A.2d 1201, 1203 (Pa. Cmwlth. 2000). Further,

               a non-moving party must adduce sufficient evidence on an
               issue essential to his case and on which he bears the burden
               of proof such that a jury could return a verdict in his favor.

       4
         “Our review of a trial court order granting summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion.” Stuski v. Phila. Auth. for
Indus. Dev., 162 A.3d 1196, 1199 n.2 (Pa. Cmwlth. 2017).
                                                  3
             Failure to adduce this evidence establishes that there is no
             genuine issue of material fact and the moving party is
             entitled to judgment as a matter of law.

Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). As this Court has also
noted, “[t]he jury may not be permitted to reach its verdict on the basis of speculation
or conjecture; there must be evidence upon which its conclusion may be logically
based.” Mitchell v. Milburn, 199 A.3d 995, 1002 (Pa. Cmwlth. 2018) (quoting
Cuthbert v. City of Philadelphia, 209 A.2d 261, 264 (Pa. 1965)).
             Regarding premises liability, our Supreme Court has repeatedly cited
with approval the Restatement (Second) of Torts, which explains that a possessor of
land is liable for harm caused by a condition on the land only if the possessor:

             (a) knows or by the exercise of reasonable care would
             discover the condition, and should realize that it involves
             an unreasonable risk of harm to such invitees, and

             (b) should expect that they will not discover or realize the
             danger, or will fail to protect themselves against it, and

             (c) fails to exercise reasonable care to protect them against
             the danger.

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (quoting Restatement (Second)
of Torts § 343 (1965)); see also Cagey v. Commonwealth, 179 A.3d 458, 466 (Pa.
2018). Thus, the Supreme Court has explained, “at common law, a possessor of land
is liable for harm caused by a dangerous condition that he would have discovered
through the exercise of reasonable care.” Cagey, 179 A.3d at 466.
             Additionally, our Superior Court has explained that “[a]n invitee must
prove either the proprietor of the land had a hand in creating the harmful condition,
or he had actual or constructive notice of such condition.” Estate of Swift v. Ne.

                                           4
Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. 1997). The Superior Court has stated
the following regarding the required notice of dangerous conditions to landowners:

             [I]f the harmful transitory condition is traceable to the
             possessor [of land] or his agent’s acts, (that is, a condition
             created by the possessor or those under his authority), then
             the plaintiff need not prove any notice in order to hold the
             possessor accountable for the resulting harm. In a related
             context, where the condition is one which the owner
             knows has frequently recurred, the jury may properly find
             that the owner had actual notice of the condition, thereby
             obviating additional proof by the invitee that the owner
             had constructive notice of it. Where however, the
             evidence indicated that the transitory condition is traceable
             to persons other than those for whom the owner is, strictly
             speaking, ordinarily accountable, the jury may not
             consider the owner’s ultimate liability in the absence of
             other evidence which tends to prove that the owner had
             actual notice of the condition or that the condition existed
             for such a length of time that in the exercise of reasonable
             care the owner should have known of it.

Porro v. Century III Assocs., 846 A.2d 1282, 1285–86 (Pa. Super. 2004).
             The evidence of record regarding the happening of the incident wherein
Appellant was injured in the instant matter comes exclusively from Appellant’s
deposition testimony. See Transcript of Deposition of Billie Jo Raker, November 1,
2016 (Appellant’s Deposition). During her deposition testimony, Appellant stated
multiple times that she was injured when she stepped down off a curb at the rest stop
into what she stated “felt like” or what she “thought” was a hole. See Appellant’s
Deposition at 36, 40-41, 91, 98 & 100. At one point, Appellant testified that “I know
I stepped into a hole.” See Appellant’s Deposition at 99. Appellant conceded that
the pictures marked as Exhibits 8 & 9 during her deposition testimony, which she
herself took some time after her injury, do not appear to show a hole where Appellant
                                           5
claims to have stepped off the curb and fallen. See Appellant’s Deposition at 98-99.
Further, Appellant noted the chipping of the curbing from which she stepped, but
testified that she was injured when she stepped down into a hole below the curb, not
as a result of tripping over anything or as a result of the curb chipping. Appellant’s
Deposition at 100.
             Additionally, the only evidence in the record of notice received by the
defendants of any allegedly dangerous condition(s) at the rest stop consists of two
Quality Assurance Evaluation forms completed by a Keystone employee in
September and October of 2011 that note that “Curb in truck lot is chipped away[.]”
Bureau of Maintenance and Operations Quality Assurance Evaluation dated
September 27, 2011, Reproduced Record (R.R.) at 537a; Bureau of Maintenance and
Operations Quality Assurance Evaluation dated October 14, 2011, R.R. at 538a.
             The trial court expressly found that “the photographs taken by
[Appellant] and entered into evidence as Defense Exhibits are absent of any defect
in the land which could possibly be construed as a ‘dangerous condition.’” Trial
Court Opinion dated December 18, 2017, at 8 n.1; Trial Court Opinion dated July
31, 2018, at 8 n.1. Additionally, based on the evidence adduced, the trial court
stated:

                   In analyzing [Appellant’s] sparse evidence adduced
             during pleadings and discovery, testimony that
             [Appellant] “felt like I stepped into a hole,” and the
             photographs taken by [Appellant] months after the
             accident happened, she fails to satisfy her burden in
             proving her negligence cause of action against
             Defendant[s Keystone and DOT].




                                          6
Trial Court Opinion dated December 18, 2017, at 8; Trial Court Opinion dated July
31, 2018, at 8. The trial court then arrived at conclusions based on this evidence.
As to Keystone, the trial court concluded:

            Because of the lack of evidence provided by [Appellant]
            in establishing a dangerous condition caused or known by
            Defendant Keystone, even in a light most favorable to her,
            this [c]ourt finds that she has not met her burden in
            alleging a prima facie case of negligence as she has not
            sufficiently alleged breach of duty. . . . [Appellant] has not
            provided sufficient evidence to sufficiently allege a
            dangerous condition was in existence at the rest stop, and
            therefore this [c]ourt finds that, as a matter of law,
            [Appellant] has not established facts sufficient to defeat
            Defendant’s Motion for Summary Judgment.

Trial Court Opinion dated December 18, 2017, at 8. Likewise, as to DOT, the trial
court concluded:

            Because of the lack of evidence provided by [Appellant]
            in establishing a dangerous condition was caused or
            known by Defendant [DOT], even in a light most
            favorable to her, this [c]ourt finds that she has not met her
            burden in alleging a prima facie case of negligence as she
            has not sufficiently alleged breach of duty. . . . [Appellant]
            has not provided sufficient evidence to sufficiently allege
            a dangerous condition was in existence at the rest stop, and
            therefore this [c]ourt finds that, as a matter of law,
            [Appellant] has not established facts sufficient to defeat
            Defendant [DOT’s] Motion for [S]ummary [J]udgment.

Trial Court Opinion dated July 31, 2018, at 8.
            The trial court continued to conclude the following as to both Keystone
and DOT:


                                          7
             [I]n review of the record in [a] light most favorable to
             [Appellant] this [c]ourt finds that she has failed to submit
             any evidence that Defendant[s] had either actual or
             constructive knowledge of the alleged dangerous
             condition at [the rest stop]. Because [Appellant] has failed
             to offer any evidence which tends to prove that
             Defendant[s] had actual or constructive notice of the
             dangerous condition, [Appellant] has failed to raise a
             factual dispute and summary judgment is appropriate.

Trial Court Opinion dated December 18, 2017 at 8; Trial Court Opinion dated July
31, 2018, at 8-9.
             We agree with the trial court’s conclusion that summary judgment was
appropriate. Appellant’s testimony indicated that her fall and injury were caused by
what she perceived to have been a hole in the ground. However, we need not address
whether Appellant’s testimony that she fell after stepping into what “felt like” or
what she “thought” was a hole, together with the photographic evidence, sufficiently
raised a factual issue as to the existence of a dangerous condition at the rest stop.
Even assuming that such testimony amounted to prima facie evidence of a hole
where Appellant fell, no evidence of record illustrates that either DOT or Keystone
had notice of the alleged hole. The evidence adduced – the quality assurance forms
– indicated that each defendant had only notice of a chipped sidewalk somewhere at
the rest stop, not notice of a hole. In fact, the quality assurance forms Appellant
relies on as evidence of notice to both Keystone and DOT make no reference
whatsoever to a hole or subsidence of any kind. Additionally, no evidence indicated
how long the hole existed, if at all. Further, Appellant’s own testimony indicates the
reported curb chipping did not contribute to her fall, which she attributed entirely to
the alleged hole in the ground.



                                          8
              Accordingly, even accepting that a dangerous condition in the form of
a hole existed at the rest stop, because Appellant did not adduce evidence that either
DOT or Keystone had notice of the alleged hole into which Appellant alleges to have
fallen, she cannot prove a necessary element of her case, and both DOT and
Keystone were entitled to judgment as a matter of law. Thus, the trial court neither
erred nor abused its discretion in granting summary judgment in their favor.
              For this reason, we affirm the orders of the trial court.5




                                           __________________________________
                                           CHRISTINE FIZZANO CANNON, Judge




       5
         Because Appellant does not reach the threshold requirement of a recoverable claim, we
need not investigate whether sovereign immunity applies in this matter.
                                              9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Billie Jo Raker,                       :
                   Appellant           :
                                       :
             v.                        :
                                       :
Pennsylvania Department of             :
Transportation, a/k/a PENNDOT          :   No. 1582 C.D. 2018
and Keystone Blind Association         :



                                   ORDER


             AND NOW, this 24th day of October, 2019, the orders of the Court of
Common Pleas of Venango County dated December 18, 2017 and July 31, 2018 are
AFFIRMED.




                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
