                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Melvin Mitchell,                           :
                             Appellant     :
                                           :
                      v.                   :
                                           :
Department of Corrections                  :
of the Commonwealth of                     :   No. 1844 C.D. 2016
Pennsylvania                               :   Submitted: May 19, 2017


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: August 24, 2017

               Melvin Mitchell (Mitchell) appeals, pro se, from the Fayette County
Common Pleas Court’s (trial court) October 20, 2016 order granting the
Commonwealth of Pennsylvania, Department of Corrections’ (Department) Summary
Judgment Motion (Motion). Mitchell presents two issues for this Court’s review: (1)
whether the Doctrine of Hills and Ridges applies to the real estate exception to what
is commonly referred to as the Sovereign Immunity Act;1 and (2) whether the trial
court erred in requiring medical expert testimony when Mitchell’s action is for
ordinary negligence, not medical malpractice. After review, we affirm.
               Mitchell is incarcerated at the State Correctional Institution at Fayette
(SCI-Fayette). On January 9, 2013, Mitchell slipped and fell on ice which had
accumulated on the sidewalk from a dripping awning gutter when exiting an SCI-
Fayette dining hall. Mitchell sustained a broken ankle. Mitchell filed a grievance

      1
          42 Pa.C.S. §§ 8521-8527.
regarding the incident and his injury. The grievance and all subsequent appeals
therefrom were denied. On December 9, 2014, Mitchell filed a complaint against the
Department (Complaint) alleging a dangerous condition of flawed real estate and
sidewalks and defective awning construction, and negligence for the improper care of
his injury. Mitchell filed his certificate of merit on April 13, 2015, stating that expert
testimony was unnecessary to establish the harm suffered. On July 28, 2016, the
Department filed its Motion.          On October 20, 2016, the trial court granted the
Department’s Motion. Mitchell appealed to this Court.2
              In his Complaint, Mitchell is seeking relief pursuant to the real estate
exception to sovereign immunity contained in Section 8522(b)(4) of the Sovereign
Immunity Act. That Section prohibits the Commonwealth from raising a sovereign
immunity defense to claims for damages caused by

              [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


              2

             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 abuse of
             discretion or error of law. Id. In reviewing a trial court’s grant of
             summary judgment, we consider whether any material issues of fact
             remain as to the necessary elements of the cause of action pleaded.
             Id.; Pa.[]R.C.P. No. 1035.2(1). Moreover, summary judgment is
             appropriate only when, after viewing the record in the light most
             favorable to the non-moving party and resolving any doubt regarding
             issues of fact against the moving party, it is clear that the moving
             party is entitled to judgment as a matter of law. Id.
Pentlong Corp. v. GLS Capital, Inc., 72 A.3d 818, 823-24 n.6 (Pa. Cmwlth. 2014).


                                                 2
            paragraph (5) [(relating to a foreseeable risk of which the
            department had written notice thereof)].

42 Pa.C.S. § 8522(b)(4) (emphasis added). Mitchell alleged that because of the
Department’s negligence in not fixing the awning, ice formed on the sidewalk that
caused him to slip and fall. However, “[s]overeign immunity is only waived for
damages arising out of a negligent act where the common law or a statute would
permit recovery if the injury were caused by a person not protected by sovereign
immunity and the cause of action falls under one of the specifically[-]enumerated
exceptions to immunity.” Page v. City of Phila., 25 A.3d 471, 475 (Pa. Cmwlth.
2011) (emphasis added). The trial court found that since the Doctrine of Hills and
Ridges would prevent Mitchell from recovering against the Department, he cannot
meet the threshold requirement.

            The [D]octrine of [H]ills and [R]idges provides
                that an owner or occupier of land is not liable for
                general slippery conditions, for to require that
                one’s walks be always free of ice and snow would
                be to impose an impossible burden in view of the
                climatic conditions in this hemisphere. Snow and
                ice upon a pavement create merely transient danger,
                and the only duty upon the property owner or
                tenant is to act within a reasonable time after
                notice to remove it when it is in a dangerous
                condition.
            Harmotta v. Bender, . . . 601 A.2d 837, 841 ([Pa. Super.]
            1992) (emphasis added) (quoting Gilligan v. Villanova
            Univ., . . . 584 A.2d 1005, 1007 ([Pa. Super.] 1991)). Thus,
            in order to recover for a fall on ice or snow, an injured party
            must prove the following factual elements:
                (1) that snow and ice had accumulated on the
                sidewalk in ridges or elevations of such size and
                character as to unreasonably obstruct travel and
                constitute a danger to pedestrians travelling thereon;
                (2) that the property owner had notice, either actual
                or constructive, of the existence of such a condition;

                                          3
                and (3) that it was the dangerous accumulation of
                snow and ice which caused the plaintiff to fall.
            Mahanoy Area Sch. Dist. v. Budwash, . . . 604 A.2d 1156,
            1158 ([Pa. Cmwlth.] 1992) (quoting Rinaldi v. Levine, . . .
            176 A.2d 623, 625-26 ([Pa.] 1962)).

Moon v. Dauphin Cnty., 129 A.3d 16, 23 (Pa. Cmwlth. 2015).
            Mitchell argues that the trial court erred in applying the Doctrine of Hills
and Ridges, and cites Tonik v. Apex Garages, Inc., 275 A.2d 296 (Pa. 1971) to
support his position. The Tonik Court held:

            Proof of ‘hills and ridges’ is necessary only when it
            appears that the accident occurred at a time when
            general slippery conditions prevailed in the community .
            . . . Where . . . a specific, localized patch of ice exists on a
            sidewalk otherwise free of ice and snow, the existence of
            ‘hills and ridges’ need not be established.

Id. at 298 (emphasis added).
            Here, Mitchell’s only timing allegation states: “When [Mitchell] left A-
unit he experienced the temperature’s chillness [sic] below freezing, less than 28
degrees; he notice[d] there had been no recent or over[]night rain or snow.
[Mitchell] still looked where he placed each step, to avoid freezing precipitation that
might be upon the walk-ways. . . .” Complaint at 2 ¶8 (emphasis added). That
averment appears to raise an issue of fact (regarding whether the Doctrine of Hills
and Ridges applies to the instant matter) that would preclude summary judgment.
However, “[a]ssuming that [Mitchell] could establish that damages for negligence
would be recoverable at common law or under statute, [he] still ha[s] to prove that the
real estate exception to sovereign immunity . . . is applicable in this case.” Hall v.
Sw. Pa. Water Auth., 87 A.3d 998, 1001 (Pa. Cmwlth. 2014).
            “In construing the real estate exception, Pennsylvania courts have held
that the ‘dangerous condition must derive, originate from, or have as its source the
Commonwealth realty.’ Snyder v. Harmon, . . . 562 A.2d 307, 311 ([Pa.] 1989). The
                                           4
exception is strictly construed.” Hall, 87 A.3d at 1000. “[S]ubstances such as ice,
snow, or debris on the real estate do not qualify . . . .” Nardella v. Se. Pa. Transp.
Auth., 34 A.3d 300, 305 (Pa. Cmwlth. 2011). “[T]he focus must be on whether there
is proof of a defect in the real property itself.” Id. at 304. Here, because Mitchell
claims that an ice patch on the sidewalk rather than the sidewalk itself caused his fall,
the real estate exception does not apply.
               Moreover, despite Mitchell’s allegations that the ice patch was caused by
the Department’s defective gutter,3 he did not also claim, as is necessary, that the
Department had notice of said defect or that the dangerous condition had existed for a
length of time. Our Supreme Court has declared:

               ‘Gutters along the edges of eaves will clog up from ice and
               snow and overflow under certain weather conditions. This
               is inherent in the nature of eaves and gutters, just as it is in
               roofs without them, and their maintenance could not
               ordinarily be held negligent.’ To charge the owner or
               occupier with culpability in such a case it must not only
               appear that the condition existed for so long a time as to
               visit him with knowledge of it, but must also appear that the
               danger was sufficiently obvious that he should have realized
               that someone might be injured because of it.

Hutchison v. Montgomery Ward & Co., 70 A.2d 838, 840 (Pa. 1950) (quoting Richey
v. Armor, 141 A. 841, 841 (Pa. 1928)).
               Because Mitchell failed to aver any facts that his fall was due to a
dangerous condition of the sidewalk itself, and/or that the Department had notice of a
defective gutter that caused a dangerous condition, the trial court properly granted the
Department’s Motion with respect to Mitchell’s real estate exception claim.4

       3
          Mitchell alleged the “[i]ce [] existed because of liquid that spilled off the awning, a
substance which source had streamed through its gutter seams and created the hazard, and the
dangerous conditions.” Complaint at 2 ¶11.
        4
          “An appellate court may affirm the trial court for grounds different than those relied upon
by the trial court where other grounds for affirmance exist.” Phila. Fed’n of Teachers v. Sch. Dist.
of Phila., 109 A.3d 298, 321 n.35 (Pa. Cmwlth. 2015), aff’d, 144 A.3d 1281 (Pa. 2016).
                                                 5
             Relative to Mitchell’s second issue, the trial court concluded that he
could not proceed with his “medical malpractice” claim because Mitchell’s certificate
of merit stated that no medical testimony is necessary. Trial Court Op. at 4-5.
Mitchell argues that he can proceed with his ordinary negligence claim despite his
waiver of medical expert testimony in his certificate of merit because his claim is not
a medical malpractice action.
             Initially, Pennsylvania Rule of Civil Procedure No. (Rule) 1042.3(a)
provides in relevant part:
             In any action based upon an allegation that a licensed
             professional deviated from an acceptable professional
             standard, the attorney for the plaintiff, or the plaintiff if not
             represented, shall file with the complaint or within sixty
             days after the filing of the complaint, a certificate of merit
             signed by the attorney or party that either
             (1) an appropriate licensed professional has supplied a
             written statement that there exists a reasonable probability
             that the care, skill or knowledge exercised or exhibited in
             the treatment, practice or work that is the subject of the
             complaint, fell outside acceptable professional standards
             and that such conduct was a cause in bringing about the
             harm, or
             (2) the claim that the defendant deviated from an acceptable
             professional standard is based solely on allegations that
             other licensed professionals for whom this defendant is
             responsible deviated from an acceptable professional
             standard, or
             (3) expert testimony of an appropriate licensed professional
             is unnecessary for prosecution of the claim.

Pa.R.C.P. No. 1042.3(a) (emphasis added; notes omitted).               In addition, Rule
1042.1(a) states in pertinent part: “The rules of this chapter govern a civil action in
which a professional liability claim is asserted by or on behalf of a patient or client of




                                            6
the licensed professional against (1) a licensed professional[.]”      Pa.R.C.P. No.
1042.1.
            Here, Mitchell averred:
            On January 9, 2013, Plaintiff was and at all relevant times
            has remained under the instructions and commands of the
            [Department] through agents, staff, officials, and officers’
            custodian requisite to perform as described by the
            Department[’s] . . . :
                  a)     Mission Statement;
                  b)     Administrative Directives;
                  c)     Administrative Policies;
                  d)     Designated Facility’s Management; and
                  e)     Designated Facility’s Operations
            to provide care and protection, for [Mitchell] and others; to
            keep safe by regiment of inspection to remove dangerous
            conditions that creates foreseeable risk at SCI[-]Fayette, and
            when neglect has produced harm to ensure relevant
            resources, proper medical standards, to effect recovery.
            [Mitchell’s] suffering is compounded with the
            continuous mental distress that he must also endure,
            sustained when the series of proper medical standards
            and care were neglected, and continues to be negligible,
            by SCI[-]Fayette medical staff. A horrific culture of
            unaccountability rooted in the chain of command, [the
            Department’s] responsibilities, to implement the series
            of applicable policies and directives. [Mitchell’s] pain
            and suffering is predicated upon the [Department’s]
            negligence to have put into effect such standards and to
            provide duly care, the protection of applicable
            Department . . . guidelines.

Complaint at 6 ¶¶46-47 (italic and bold emphasis added). Thus, Mitchell is asserting
both a medical malpractice action, i.e., a professional negligence claim against a
licensed professional for deviating from an acceptable standard, and an ordinary


                                          7
negligence claim against the Department for allegedly breaching its duty of care to
him by not implementing policies and directives to insure proper care pursuant to the
Department’s guidelines.
               Notwithstanding,

               [f]or a party to prevail in a negligence action, ordinary or
               professional, the elements are identical: the plaintiff must
               establish the defendant owed a duty of care to the plaintiff,
               that duty was breached, the breach resulted in the plaintiff’s
               injury, and the plaintiff suffered an actual loss or damages.

Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009). Moreover,
               to prevail in a medical malpractice action, a plaintiff must
               ‘establish a duty owed by the physician to the patient, a
               breach of that duty by the physician, that the breach was the
               proximate cause of the harm suffered, and the damages
               suffered were a direct result of the harm.’ Hightower-
               Warren [v. Silk, 698 A.2d 52, 54 (Pa. 1997)]. Because the
               negligence of a physician encompasses matters not
               within the ordinary knowledge and experience of
               laypersons a medical malpractice plaintiff must present
               expert testimony to establish the applicable standard of
               care, the deviation from that standard, causation and
               the extent of the injury.

Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1040, 1145 (Pa. 2003) (emphasis
added). Accordingly, because Mitchell’s certificate of merit stated that no medical
testimony is necessary, the trial court properly concluded that Mitchell could not
proceed with his medical malpractice claim; and since Mitchell did not allege any
facts that the Department’s failure to issue policies or directives breached a duty it
owed to Mitchell which resulted in his injuries, the trial court properly granted the
Department’s Motion with respect to Mitchell’s second claim.5




      5
          See Phila. Fed’n of Teachers v. Sch. Dist. of Phila., 109 A.3d 298 (Pa. Cmwlth. 2015).
                                                  8
For all of the above reasons, the trial court’s order is affirmed.


                           ___________________________
                           ANNE E. COVEY, Judge




                               9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Melvin Mitchell,                        :
                         Appellant      :
                                        :
                   v.                   :
                                        :
Department of Corrections               :
of the Commonwealth of                  :   No. 1844 C.D. 2016
Pennsylvania                            :


                                     ORDER

            AND NOW, this 24th day of August, 2017, the Fayette County Common
Pleas Court’s October 20, 2016 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
