           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ronhilde J. Gillingham,                   :
                           Appellant      :
                                          :
            v.                            :      No. 2532 C.D. 2015
                                          :      Argued: October 20, 2016
County of Delaware                        :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE BROBSON                               FILED: February 14, 2017

            In   this     negligence   action,     Appellant   Ronhilde     Gillingham
(Gillingham) appeals from an order of the Court of Common Pleas of Delaware
County (trial court), which granted the County of Delaware’s (County) motion for
summary judgment and dismissed Gillingham’s personal injury complaint with
prejudice. In so doing, the trial court concluded that the County was immune from
liability for the injuries Gillingham sustained after a fall in the Delaware County
Recorder of Deeds Office. For the reasons set forth below, we affirm.
                                I. BACKGROUND
            For purposes of summary judgment, the undisputed material facts are
as follows. On November 12, 2012, Gillingham visited the County Recorder of
Deeds Office to conduct title searches. Gillingham sat to conduct searches at a
County computer, and her foot became entangled in the computer cables and wires
under the computer cubicle. With her foot still entangled in the computer cables,
Gillingham stood up to walk away from the computer, tripped, and fell.
            In a complaint filed on October 9, 2014, Gillingham named the
County and the Recorder of Deeds as separate defendants. (Reproduced Record
(R.R.) at 7a-12a.)    The County filed preliminary objections on behalf of the
Recorder of Deeds, arguing that the Recorder of Deeds cannot be sued as an entity
distinct from the County. (Id. at 15a-16a.) Gillingham amended her complaint,
dropping the Recorder of Deeds as a defendant and re-alleging that the County’s
negligence directly and proximately caused her injuries.         (Id. at 44a-49a.)
Specifically, Gillingham alleged that the County was negligent by its failure to
inspect and maintain the floor and failure to make safe or remove the foreign
substance—i.e., the computer cables—from the floor.              (Id. at 11a-12a,
Compl. ¶ 19.)
            The County filed an answer and new matter, denying the material
allegations of Gillingham’s complaint and asserting that the County was immune
under what is commonly referred to as the Political Subdivision Tort Claims Act
(Tort Claims Act), 42 Pa. C.S. §§ 8541-8542. (Id. at 51a-58a.)
            On September 25, 2015, following the completion of discovery, the
County filed a motion for summary judgment, in which it again argued that the
County was immune under the Tort Claims Act. (Id. at 61a-65a.) The County
attached to its motion the affidavit of Joseph DeVuono, who placed the computers
in their location at the Recorder of Deeds Office. (Id. at 203a.) In his affidavit,
Mr. DeVuono states:
            The computers and cubicles may be moved for repairs or
            for cleaning. There is no hardwiring of the computers at
            the individual stations and nothing at the computer
            station is bolted or attached to the floor or walls. The
            computer station cubicle itself as well as each computer
            are fully moveable and are not affixed in anyway [sic] to
            the floor or wall.

                                        2
(Id. at 203a.) The County argued that the “real property exception” is not viable in
this case because “none of [the computer cables] are affixed or wired to the real
estate.” (Id. at 74a.) In response, Gillingham argued that it is not necessary for her
to show that a fixture to the real property caused the injuries. (Id. at 225a-31a.)
Instead, Gillingham contended, under the approach from our Supreme Court’s
decision in Grieff v. Riesinger, 693 A.2d 195 (Pa. 1997), it is sufficient for
Gillingham to show that the County was negligent in its care, custody, or control of
the real property. (Id. at 226a.) Gillingham argued that the County was negligent
in its maintenance of the real property, namely, the floor in the Recorder of Deeds
Office. (Id. at 230a.)
               On November 17, 2015, the trial court granted the County’s motion
for summary judgment and dismissed Gillingham’s complaint against the County
with prejudice. Gillingham filed a notice of appeal with this Court, and the trial
court issued an opinion pursuant to Pa. R.A.P 1925(a) on May 16, 2016. In
explaining its ruling, the trial court cited prior cases from this Court and appears to
have concluded that the approach from Blocker v. City of Philadelphia,
763 A.2d 373 (Pa. 2000), is more applicable than the approach set forth in Grieff.
               On appeal,1 Gillingham essentially argues that the trial court erred in
applying     the    Blocker     approach      rather     than    the    Grieff    approach      to
Section 8542(b)(3) of the Tort Claims Act, 42 Pa. C.S. § 8542(b)(3). Gillingham
contends that the trial court erred because she alleged that the County’s negligent
care, custody, or control of the floor in the Recorder of Deeds Office, rather than

       1
         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.



                                                3
the computer cables, caused her injuries. Thus, Gillingham argues, the approach
from the Grieff line of cases is the most applicable analysis. Gillingham also
appears to argue that the maintenance of an object of personalty can fall within
Section 8542(b)(3)’s exception for real property.
                                    II. DISCUSSION
           A. The Real Property Exception to Governmental Immunity
              “Generally, local agencies are immune from tort liability under
Section 8541 of the Tort Claims 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 Tort Claims Act.
              At issue in this appeal is whether Gillingham failed to state a claim
under Section 8542(b)(3) of the Tort Claims Act, which is referred to as the “real
property exception” to governmental immunity.2 Section 8542(b)(3) of the Tort
Claims Act provides:


       2
          There has been some confusion, both in this case and in Pennsylvania precedent, about
the shorthand name to be used for Section 8542(b)(3) of the Tort Claims Act. For clarity, we
will refer to the exception in Section 8542(b)(3) of the Tort Claims Act as the “real property
exception,” because “real property” is the language used in the statute. We will refer to
Section 8522(b)(4) of the Sovereign Immunity Act, 42 Pa. C.S. § 8522(b)(4), on the other hand,
as the “real estate exception,” because that is the language that the General Assembly used in
that statute. Part of the confusion may stem from the joint origin of sovereign immunity and
governmental immunity prior to the enactment of their corresponding statutes. See Dorsey v.
Redman, 96 A.3d 332, 340 (Pa. 2014). Regardless, the Supreme Court of Pennsylvania has held
that because the statutory language in these two distinct exceptions “varies markedly” from one
(Footnote continued on next page…)

                                              4
               (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;
                            (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).



(continued…)

another, they should not be interpreted “in lockstep.” Jones v. Se. Pennsylvania Transp. Auth.,
772 A.2d 435, 444 (Pa. 2001).



                                              5
             There are two approaches that can be used to determine whether to
apply the real property exception to immunity under the Tort Claims Act—the
Grieff approach and the Blocker approach.         Repko v. Chichester Sch. Dist.,
904 A.2d 1036, 1040 (Pa. Cmwlth. 2006). Both approaches have been applied by
the courts. Id. We acknowledge that “at times, deciding which approach to apply
under a given set of facts is challenging.” Id. In deciding which approach to
apply, this Court determines which line of cases has more analogous facts
pertaining to causation.
             Under the Grieff approach, the determinative inquiry is whether the
injury is caused by the care, custody, or control of the real property itself. Id. In
Grieff, our Supreme Court held that the real property exception applied to injuries
caused by the alleged negligent care of a fire association’s property.        Grieff,
693 A.2d at 197. There, the fire chief poured paint thinner onto the floor to
remove paint from the floor. Id. at 196. The paint thinner spread across the floor
and caught fire under a refrigerator, causing severe injuries to a bystander. Id. The
Court explained that the fire chief’s alleged negligence was in the paint removal,
and paint removal clearly fell within the exception’s language of the care of the
property. Id. at 197. The Supreme Court held, therefore, that the real property
exception applied, and the chief and fire association were not immune. Id.
             In cases that followed the model set forth in Grieff, the cause of the
injury was clearly related to the maintenance of the real property. For instance, in
Hanna v. West Shore School District, 717 A.2d 626 (Pa. Cmwlth. 1998), this Court
held that the real property exception applied to the allegedly negligent cleaning of
a school hallway.    Hannah, 717 A.2d at 629.        Likewise in Snyder v. North
Allegheny School District, 722 A.2d 239 (Pa. Cmwlth. 1998), this Court held that


                                         6
the real property exception also defeated immunity where a school allegedly failed
to care for the landing at the top of a set of stairs, where a visitor slipped and fell
on ice and snow. Snyder, 722 A.2d at 240.
              Turning to Blocker, the other seminal case in the realm of the real
property exception, the Supreme Court addressed the exception in an action where
a concert attendee sustained injuries after the bleachers on which she was sitting
collapsed. Blocker, 763 A.2d at 374. This Court held that a question existed as to
whether the City intended the bleachers to be part of the realty. Id. at 375. The
Supreme Court reversed this Court’s determination, holding that an owner’s
intention with regard to chattel is only relevant where the chattel is, in fact, affixed
to the realty. Id. The Supreme Court concluded that the bleachers were clearly
personalty.    Id.   The Supreme Court held, therefore, that the real property
exception did not apply to the concert attendee’s injuries. Id.
              The Supreme Court provided the guidelines for determining if the
object that causes an injury is real or personalty:
              Chattels used in connection with real estate are of three
              classes: First, those which are manifestly furniture, as
              distinguished from improvements, and not peculiarly
              fitted to the property with which they are used; these
              always remain personalty. . . . Second, those which are
              so annexed to the property that they cannot be removed
              without material injury to the real estate or to themselves;
              these are realty, even in the face of an expressed intention
              that they should be considered personalty. . . . Third,
              those which, although physically connected with the real
              estate, are so affixed as to be removable without
              destroying or materially injuring the chattels themselves,
              or the property to which they are annexed; these become
              part of the realty or remain personalty, depending upon
              the intention of the parties at the time of the annexation;
              in this class fall such chattels as boilers and machinery


                                           7
               affixed for the use of an owner or tenant but readily
               removable.
Id. (emphasis and citations omitted) (quoting Clayton v. Lienhard, 167 A. 321, 322
(Pa. 1933)).
               Under the Blocker approach, the determinative inquiry is whether the
injury is caused by personalty, which is not attached to the real estate, or by a
fixture, which is attached. Repko, 904 A.2d at 1040. Thus, under a Blocker
analysis, if the injury is caused by the real property, including a fixture, the real
property exception overrides governmental immunity. Mandakis v. Borough of
Matamoras, 74 A.3d 301, 305 (Pa. Cmwlth. 2013), appeal denied, 84 A.3d 1065
(Pa. 2014). If the injury is caused by personalty that is merely on the real property,
however, the political subdivision remains immune. Id.
                                       B. Application
               Gillingham essentially contends that the trial court erred by applying
the analysis from Blocker rather than the analysis from Grieff.3 She argues that the

       3
           Gillingham also challenges the trial court’s reliance on Moon v. Dauphin County,
129 A.3d 16 (Pa. Cmwlth. 2015), appeal denied, 138 A.3d 7 (Pa. 2016). In Moon, the claimant,
a resident of a work release center, slipped and fell on a fenced-in walkway covered by ice while
exiting the center. The claimant filed an action for personal injuries, averring, in part, that
Dauphin County was negligent in restricting entry and exit from the center to an area open to the
elements, because of the likelihood of hazardous conditions developing during certain times of
the year, and also was negligent in designing of the layout of the center. The claimant further
averred that Dauphin County’s negligent design constituted the direct and proximate cause of his
fall, because ice had accumulated on the walkway outside the only entrance/exit that residents of
the center were permitted to use. The claimant’s negligent design claim appeared to be based on
his assertion that the design of the center was flawed, because it provided only one entrance/exit
for residents of the center, and, therefore, residents had no option regarding which route to take
during inclement weather. Specifically, because of the fenced-in nature of the walkway
associated with the single entrance/exit, the claimant contended that he had no ability to go left
or right; instead, he had to pass through the gate into icy/slippery conditions. The trial court,
analyzing the matter under the real estate exception to sovereign immunity (as opposed to the
(Footnote continued on next page…)

                                                8
(continued…)

real property exception to governmental immunity), determined that the claimant’s slip and fall
was the result of wintry weather and that Dauphin County did not have actual or constructive
notice of a dangerous condition. As a result, the trial court concluded that the claim failed under
the “hills and ridges doctrine.” The trial court, addressing the claimant’s negligent design claim,
then concluded that the lack of an additional walkway did not constitute a “dangerous condition”
of real estate.
         On appeal to this Court, we concluded that the claimant failed to satisfy the requirement
of Section 8542(a)(1) of the Tort Claims Act due to application of the hills and ridges doctrine,
“which protects an owner or occupier of land from liability for generally slippery conditions
resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably
accumulate in ridges or elevation.” Moon, 129 A.3d at 22-23 (quoting Morin v. Traveler’s Rest
Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997)). Pursuant to Section 8542(a)(1) of the Tort
Claims Act, in order for a local agency to be liable for damages, the damages must “be
recoverable under common law or a statue creating a cause of action if the injury were caused by
a person not having available a defense” of governmental or official immunity. We then
considered whether the claimant’s negligent design claim fell within the real property exception
to immunity set forth in the Tort Claims Act. In analyzing that issue, the Court, when
summarizing the law surrounding the real property exception, admittedly did not incorporate the
holding of Grieff into its summary and considered cases involving both the real property and real
estate exception and pre-Grieff case law. Ultimately, however, our analysis was simple—the
claimant’s injury was caused by the walkway, and, therefore, any “design flaw must be of the
walkway and not the failure to have an alternate route.” Moon, 129 A.3d at 25 (emphasis added).
We then observed that the claimant did not contend that there was defect “of” the walkway and
did not contend that the slippery condition “on” the walkway was caused by the walkway. Id. at
25-26. Nevertheless, even if we had considered the slippery condition on the walkway, our
result would have been the same, because under the hills and ridges doctrine there could be no
liability based on the icy conditions under the circumstances in Moon.
        Here, the trial court appears to have interpreted our decision in Moon as an implicit
overruling or abandonment of the Supreme Court’s holding in Grieff and its progeny. See
Snyder v. N. Allegheny Sch. Dist., 722 A.2d 239, 245 (Pa. Cmwlth. 1998) (applying Grieff to
hold that “a dangerous condition or defect when located ‘on’ real property could fall within the
real property exception contained in Section 8542(b)(3) of the Tort Immunity Act” and setting
forth list of other cases holding that pre-Grieff “on-of” distinction no longer applies). As noted
above, under the Grieff approach, the determinative inquiry is whether the injury is caused by the
care, custody, or control of the real property itself. Moreover, the inquiry encompasses both the
dangerous conditions of the real property and the maintenance or care of the real property. Our
decision in Moon does not address Grieff and its progeny. Clearly, our Court cannot overrule the
(Footnote continued on next page…)

                                                9
County was negligent in its care, custody, or control of the real property of the
Recorder of Deeds Office by failing to make the floor safe. Gillingham further
suggests that it was the floor, rather than the actual computer cables, that caused
her injuries.      Our recent cases Repko and Sanchez-Guardiola v. City of
Philadelphia, 87 A.3d 934 (Pa. Cmwlth. 2014), are instructive.
              In Repko, a table that was placed on its side in a school gymnasium
fell onto a student and injured her. Repko, 904 A.2d at 1037. The student alleged
that she sustained the injuries as a result of the school’s negligent maintenance of
real property under its care, custody, and control—the gymnasium. Id. at 1037-38.
This Court rejected the student’s attempt to take a Blocker factual scenario and
assess it under a Grieff analysis: “[A]lthough Repko frames the issue in terms of
the negligent care of the gymnasium, which is real property, in fact, Repko was
injured by a table that fell on her in the gymnasium.” Id. at 1042 (emphasis
omitted).



(continued…)

Supreme Court’s decision in Grieff. Furthermore, panel decisions of this Court, such as Snyder
and the cases cited in Snyder, can only be overruled by an en banc panel of this Court.
See Commonwealth Court IOP § 257. Thus, Grieff remains valid law, and Grieff and Moon must
be interpreted, as best they can, to give effect to each other. Perhaps the main distinction
between the two is the application of the hills and ridges doctrine in Moon, which effectively
precluded liability for certain weather conditions and thereby negated the “on” real property
portion of any analysis.
        Any tension that may exist between our holding in Moon and our decisions applying
Grieff does not affect our analysis. As discussed above, Moon involved a negligent design claim
following a slip-and-fall on an icy, outdoor walkway. Moon, 129 A.3d at 18. Conversely, in this
case, Gillingham tripped and fell on an item of personalty, specifically computer cables. Moon,
therefore, does not provide any guidance for the Court in this case.



                                              10
             Similarly, in Sanchez-Guardiola, this Court rejected the applicability
of the real property exception when a traveler fell in the airport.
Sanchez-Guardiola, 87 A.3d at 941. There, the traveler tripped after she walked
between two flower pots, which blocked from view an unmarked platform that was
similar in appearance to the surrounding carpet. Id. at 936. This Court rejected the
argument that the platform or stage constituted a dangerous condition of the real
property. Id. at 939. Instead, this Court held that because the moveable platform
was not affixed or attached to the surrounding floor, it was an item of personalty
akin to furniture and not part of the real property. Id. at 941.
             Here, despite Gillingham’s attempt to couch the cause of her injury as
a problem with the care, custody, or control of the floor, she was not injured as a
result of the floor being negligently maintained. Rather, she tripped because her
foot was entangled in computer cables when she tried to stand up and walk away
from a computer cubicle. The uncontroverted evidence on record, including the
affidavit from Joseph DeVuono, shows that the computer cables were not affixed
to the real property. Gillingham attempted to frame the issue as negligent care of
the Recorder of Deeds Office floor, just as the student in Repko alleged negligent
care of the gymnasium and the traveler in Sanchez-Guardiola alleged negligent
care of the airport floor. As in those cases, however, the cause of Gillingham’s
injury was the personalty—i.e., the computer cables—rather than the surrounding
real property.
             Gillingham also cites Martin By & Through Martin v. City of
Philadelphia, 696 A.2d 909 (Pa. Cmwlth. 1997) (Martin by Martin), for support of
the argument that “an object or substance on a local agency’s property might fall
within the real property exception post-Grieff.” (Gillingham Br. at 29.) In Martin


                                          11
by Martin, a minor football player tripped and fell onto a metal pipe at a
recreational park. Martin by Martin, 696 A.2d at 910. The metal pipe was not
affixed to the property at the time that the minor football player fell onto it. Id.
This Court remanded to the trial court to resolve the factual discrepancy as to
whether the pipe was placed in the park by third parties or previously affixed to the
property. Id. at 912. Thus, the case would only proceed if the metal pipe was at
one point affixed to the property. See Mandakis, 74 A.3d at 305 n.5 (discussing
our holding in Martin by Martin). Importantly, Martin by Martin does not stand
for the proposition that negligent care, custody, or control of personalty falls within
the real property exception.
             Accordingly, Martin by Martin does not provide any support to
Gillingham in this case. If the metal pipe in Martin by Martin was in fact affixed
to the property, which this Court did not determine, that fact alone distinguishes it
from the computer cables in this case. Gillingham’s suggestion that an object or
substance on a local government’s property can fall within the real property
exception is not an accurate reflection of the law because the inclusion of the word
“object” implies that personalty can fall within the exception. An object on a
political subdivision’s real property does not fall within the exception unless it is a
fixture. Mandakis, 74 A.3d at 305. The computer cables were not affixed to the
Recorder of Deeds Office and are not part of the real property.
                                III. CONCLUSION
             Because the real property exception applies only to real property,
Gillingham’s injury from computer cables does not fall within the exception. The




                                          12
County, therefore, is immune under the Tort Claims Act. The order of the trial
court is affirmed.




                             P. KEVIN BROBSON, Judge




                                     13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronhilde J. Gillingham,                 :
                          Appellant     :
                                        :
            v.                          :   No. 2532 C.D. 2015
                                        :
County of Delaware                      :




                                      ORDER


            AND NOW, this 14th day of February, 2017, the order of the Court of
Common Pleas of Delaware County is AFFIRMED.




                               P. KEVIN BROBSON, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronhilde J. Gillingham,                :
                   Appellant           :
                                       :
            v.                         :    No. 2532 C.D. 2015
                                       :    Argued: October 20, 2016
County of Delaware                     :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT                              FILED: February 14, 2017

            Respectfully, I dissent.       The majority holds that if an item of
personalty is present in the chain of causation, then the plaintiff cannot pursue a
tort claim under the real property exception to the Political Subdivision Tort
Claims Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542. This overstates the real
property exception, as construed by our Supreme Court. The ultimate question is
whether Ronhilde Gillingham’s injury was caused by the County’s negligent
maintenance of the floor or its negligent maintenance of the computer cords. The
resolution of this question should be made by a jury.
            Gillingham sustained injuries in the Delaware County Recorder of
Deeds Office when her foot became entangled in computer cables located on the
floor under a computer station. When Gillingham attempted to walk away from
the computer station, her foot remained entangled in the computer cables, causing
her to trip and fall. Gillingham filed suit against the County, alleging it was
negligent because it did not inspect and maintain the floor. The County denied the
allegations, and asserted that it was immune under the Tort Claims Act.
             Local government agencies are generally immune from tort liability
under the Tort Claims Act. 42 Pa. C.S. §8541.          There are, however, several
exceptions to this grant of immunity, which allows an injured party to recover in
tort from a local agency provided that:

             (1) the damages would be otherwise recoverable under
             common law or statute creating a cause of action if the injury
             were caused by a person not having available a defense under
             Section 8541; (2) the injury was caused by the negligent acts of
             the local agency or an employee thereof acting within the scope
             of his official duties; and (3) the negligent act of the local
             agency falls within one or more of the eight enumerated
             categories of exceptions to immunity found in subsection (b).
             42 Pa. C.S. §8542(a)(1), (2).

Sellers v. Township of Abington, 67 A.3d 863, 869 (Pa. Cmwlth. 2013). The
exception relevant here is the “real property exception” found in 42 Pa. C.S.
§8542(b)(3). The real property exception states:

             (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;

                                       MHL-2
                          (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.

42 Pa. C.S. §8542(b)(3) (emphasis added).
             In determining whether the real property exception to the Tort Claims
Act is applicable, two approaches have emerged: the Blocker approach and the
Grieff approach. We have explained the difference as follows:

             Under the Blocker approach, the determinative inquiry is
             whether the injury is caused by personalty, which is not
             attached to the real estate, or by a fixture, which is attached.
             Under the Grieff approach, the determinative inquiry is whether
             the injury is caused by the care, custody or control of the real
             property itself. Both approaches have been applied by the
             courts.

Repko v. Chichester School District, 904 A.2d 1036, 1040 (Pa. Cmwlth. 2006). In
deciding which approach to follow, the court is tasked with determining which line
of cases is more analogous in terms of causation. Admittedly, “deciding which
approach to apply under a given set of facts is challenging.” Id.
             In Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000), the
plaintiff sustained injuries when the bleacher on which she was sitting collapsed.
Our Supreme Court agreed that the City was negligent in the maintenance of the
bleacher. However, because the bleacher was not attached to the floor of the




                                        MHL-3
concert hall, it was an item of personalty.1             Accordingly, the Supreme Court
concluded that the real property exception did not apply to the plaintiff’s claim for
damages. Under the Blocker approach, the relevant question is whether the injury
is caused by an item of personalty, which is not attached to the real estate, or by a
fixture, which is attached.
               The second approach stems from Grieff v. Reisinger, 693 A.2d 195
(Pa. 1997). In Grieff, a bystander was burned when paint thinner, being used to
remove paint from the floor, spread and caught fire under a refrigerator. Our
Supreme Court held that the negligence related to “care of real property” and, thus,
fell within the real property exception. Accordingly, the plaintiff was able to
recover for her injuries. The relevant inquiry under the Grieff approach is whether
the injury was caused by the care, custody, or control of the real property, even
where personalty, i.e. paint thinner, was implicated in the causation of the
plaintiff’s injuries.


1
 In Blocker, the Supreme Court reiterated the guidelines for determining if the object that causes
an injury is realty or personalty:
        Chattels used in connection with real estate are of three classes: First, those which
        are manifestly furniture, as distinguished from improvements, and not peculiarly
        fitted to the property with which they are used; these always remain personalty....
        Second, those which are so annexed to the property that they cannot be removed
        without material injury to the real estate or to themselves; these are realty, even in
        the face of an expressed intention that they should be considered personalty-to
        them the ancient maxim “Quicquid plantatur solo, solo cedit” applies in full
        force.... Third, those which, although physically connected with the real estate, are
        so affixed as to be removable without destroying or materially injuring the
        chattels themselves, or the property to which they are annexed; these become part
        of the realty or remain personalty, depending upon the intention of the parties at
        the time of the annexation; in this class fall such chattels as boilers and machinery
        affixed for the use of an owner or tenant but readily removable....
Blocker, 763 A.2d at 375 (quoting Clayton v. Leinhard, 267 A. 321, 322 (Pa. 1933)).


                                            MHL-4
              As the majority observes, deciding which approach to apply to
Gillingham’s injury requires an examination of the line of cases that have followed
Blocker and Grieff. The subtle distinctions between Blocker and Grieff and their
progeny have produced jurisprudence that can only be described as hair splitting.
              This would have been a Blocker case had Gillingham been
electrocuted by the computer lines or if the computer monitor had fallen on her
foot. The County’s negligence could only be related to the care of personalty. But
those are not the facts.       The computer lines were arranged in a fashion that
impeded her ability to walk away from the work station without falling, which can
be reasonably characterized as maintenance of the real property, under the Grieff
analysis.
              The decision of whether to apply Blocker or Grieff, which results in a
drastically different result for Gillingham, turns on the nature of the negligence.
Whether the County’s maintenance of the computer cables constituted negligence
in its maintenance of the floor is a question for the jury. This is consistent with our
Supreme Court’s directive, for example, that the question of whether an agency has
constructive notice of a dangerous condition is a question for the jury, and a court
may decide the issue “only when reasonable minds could not differ as to the
conclusion.” Department of Transportation v. Patton, 686 A.2d 1302, 1305 (Pa.
1997). Here, whether Gillingham’s injury resulted from negligent care of the floor
in the Recorder of Deeds Office or negligent care of the computer cables is too
close to call. Reasonable minds can disagree.2

2
  The concurrence would hold that had the computer wires been negligently placed across a
walkway, a different conclusion would be reached. In that scenario, the walkway could be
deemed unsafe for its intended purpose, and thus an injury to a pedestrian would be the result of
the local agency’s “care, custody and control of real property.” Whether under a desk or across a
(Footnote continued on the next page . . .)
                                            MHL-5
              For these reasons, summary judgment is not appropriate here. “Only
when the facts are so clear that reasonable minds could not differ can a trial court
properly enter summary judgment.” Kvaerner Metals Division of Kvaerner U.S.,
Inc. v. Commercial Union Insurance Company, 908 A.2d 888, 896 (Pa. 2006).
Because there is a material question of fact as to whether Gillingham’s injuries
resulted from negligent maintenance of the floor or negligent maintenance of the
computer cords, I would reverse the trial court and remand for further proceedings.


                                        _____________________________________
                                        MARY HANNAH LEAVITT, President Judge




(continued . . .)
walkway, the computer cords remain on the floor of the Recorder of Deeds office. Under our
current two-approach analysis, this location difference, which may amount to inches, could
change the analysis from one that falls indisputably under Blocker to one that falls indisputably
under Grieff.


                                            MHL-6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ronhilde J. Gillingham,                :
                   Appellant           :
                                       :
             v.                        : No. 2532 C.D. 2015
                                       : Argued: October 20, 2016
County of Delaware                     :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


CONCURRING OPINION BY
SENIOR JUDGE PELLEGRINI                      FILED: February 14, 2017


             The issue in this case is whether a person using a county computer to
conduct title searches whose foot becomes entangled in computer cables and wires
under the computer cubicle when she stood up causing her to fall and injure herself
can maintain an action under the real property exception to governmental immunity.
That provision provides that a local agency, like the county, can be held liable for its
actions or that of its employees involving negligence related to the “care, custody or
control of real property in the possession of the local agency.”         42 Pa.C.S. §
8542(b)(3). While I agree with the majority that the negligence here does not fall
within the real property exception, I disagree that the local agency is immune merely
because the injury is caused by local agency personal property.


             There is no dispute that the local agency personal property exception
does not apply because that exception is limited to the loss or damage of the personal
property of others that is within the control of the local agency.                   42 Pa.C.S. §
8542(b)(2).1 The question here is whether it falls within the local agency real property
exception.


               The local agency exception for real property language of “care, custody or
control” is different from the language in the sovereign immunity exception that waives
immunity for “dangerous conditions of real property.” Notwithstanding the difference
in language, under both exceptions, the test originally employed to determine whether
an action was maintainable was dependent on “a 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.” Finn v. City of Philadelphia, 664 A.2d 1342, 1346 (Pa. 1995). This is
known as the “on-off” standard, i.e., the physical defect “of” the property itself must
have caused the damages to fall within the exception. Mascaro v. Youth Study Center,
523 A.2d 1118 (Pa. 1987).


               That changed with our Supreme Court’s decision in Grieff v. Reisinger,
693 A.2d 195 (Pa. 1997). In that case, a fire chief poured paint thinner to remove
paint from the floor when the paint thinner spread across the floor and caught fire
under a refrigerator, causing severe injuries to a bystander.                   Recognizing the
difference in language between the Tort Immunity and Sovereign Immunity Acts, our


       1
         The personal property exception under the Sovereign Immunity Act for a commonwealth
party is much broader. While commonwealth parties are also liable for property they hold for
others, with the exception of nuclear or radioactive devices, immunity has also been waived for
negligence arising for injuries that result out of the negligent care, custody or control of personal
property. 42 Pa. C.S. §8522(b)(3).



                                             DRP - 2
Supreme Court abandoned the on-off distinction for the real property exception for
local agencies only and found that the paint removal was an activity that fell within
the local agency real property exception because it involved the caring of the real
property. The implication of this opinion is that the “care, custody or control” language
requires the local agency to keep its property safe for its intended purpose from all sorts
of negligent conditions, not just those that originate of the property. See also Snyder v.
North Allegheny School District, 722 A.2d 239 (Pa. Cmwlth. 1998).


             Other cases cited by the majority do not involve a different test than set
forth in Grieff, but instead focus on whether the injury involved the care, custody and
control of real property or personal property. In Blocker v. City of Philadelphia, 763
A.2d 373 (Pa. 2000), a concert attendee was injured when bleachers she was sitting
on collapsed. The court held that because they were not affixed to the realty, the
bleachers were personal property and not real property so the real property exception
did not apply. Notably, if they were affixed like those in a stadium, the local agency
would be liable. In Repko v. Chichester School District, 904 A.2d 1036 (Pa. Cmwlth.
2006), a student who was playing basketball during gym class went to retrieve a
basketball when a table leaning on its side against the bleachers fell over causing the
student to sustain a deep cut. Because the injury was caused by the way the table was
placed against the bleachers and did not involve the care, custody or control of the
real property, we held that exception did not apply.


             The question in this case is when the plaintiff stood up to walk away
from the computer and fell on the wires on the floor under the computer terminal
involved, did that involve negligence involving personal property – the computer – or



                                         DRP - 3
negligence involving the care, custody and control of real property – the floor.
Because the plaintiff’s injuries directly flowed from her use and the county’s care of
the computer, i.e., personal property, I also hold that the real property exception does
not apply because any purported local agency negligence involved the care, custody
and control of personal property and not real property. However, if those computer
wires were negligently placed across a walkway making the real property unsafe for
its intended purpose and a pedestrian was injured, I would hold that would involve
the local agency’s care, custody and control of real property.


             For the foregoing reasons, I concur.



                                       _________________________________
                                       DAN PELLEGRINI, Senior Judge




                                       DRP - 4
