                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ricky Tejada,                            :
                   Appellant             :
                                         :   No. 14 C.D. 2015
             v.                          :
                                         :   Submitted: August 14, 2015
Jon D. Fisher, Superintendent            :


BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                       FILED: November 3, 2015


             Ricky Tejada appeals, pro se, from the October 28, 2014 order of the
Court of Common Pleas of Huntingdon County (trial court), granting the motion for
judgment on the pleadings filed by John D. Fisher, Superintendent of S.C.I.
Smithfield, and dismissing Tejada’s complaint. After review of the pleadings, the
trial court opinion, and the arguments raised on appeal, we affirm.
             On July 28, 2014, Tejada, a prisoner at S.C.I. Smithfield, filed a pre-
complaint request for written interrogatories, requests for admissions, an application
to proceed in forma pauperis, and a civil action complaint. (Supplemental Record
(S.R.) at 3b.) In his complaint, Tejada averred that on February 3, 2014, he slipped
and fell on snow and/or ice in the exercise yard at S.C.I. Smithfield, sustaining
muscle spasms and back pain. Tejada alleged that Superintendent Fisher had a duty
to ensure that the exercise yard was clear of snow and/or ice and breached this duty
by failing to physically remove or use salt to melt the snow and/or ice. Tejada
asserted counts for negligence, “dangerous condition to Commonwealth real estate,”
and “personal injury.” Tejada also contended that his claims fell within the real
estate exception to sovereign immunity at section 8522(b)(4) of the Judicial Code, 42
Pa.C.S. §8522(b)(4).1 (S.R. at 6b-9b.)
               On August 15, 2014, the trial court granted Tejada’s application to
proceed in forma pauperis. On August 27, 2014, the sheriff served the complaint on
Superintendent Fisher, but not on the Office of Attorney General as required by
Pa.R.C.P. No. 422(a).2
               On September 5, 2014, Tejada filed a motion for leave to amend the
complaint. On September 29, 2014, Superintendent Fisher filed an answer to the
complaint and new matter, which contained a notice to plead, a verification, and a
certificate of service. (S.R. at 3b.)
               On October 27, 2014, Tejada filed an amended complaint, without
permission by the trial court, see Pa.R.C.P. No. 1033, and also preliminary objections
to Superintendent Fisher’s answer, seeking to strike it for a variety of reasons. (S.R.
at 3b.) Also on October 27, 2014, Superintendent Fisher filed a motion for judgment



       1
       This provision waives sovereign immunity for injuries caused by “[a] dangerous condition
of Commonwealth agency real estate. . . .” 42 Pa.C.S. §8522(b)(4).

       2
           It is unclear why the Attorney General was not served with the complaint. Under
Pennsylvania law, a plaintiff’s failure to serve a copy of the complaint on the Attorney General
renders the plaintiff’s service defective and deprives the trial court of jurisdiction over the state
officials. Reaves v. Knauer, 979 A.2d 404, 410 (Pa. Cmwlth. 2009). Although compliance with the
service requirements may be overlooked where the record demonstrates that the Attorney General
had actual knowledge of the lawsuit, id., it is unknown when the Attorney General obtained actual
knowledge of Tejada’s civil action.



                                                 2
on the pleadings, contending that Tejada’s claims were barred by sovereign
immunity. (S.R. at 3b.)
              The next day, October 28, 2014, the trial court granted Superintendent
Fisher’s motion for judgment on the pleadings. The trial court reasoned:

              The only possible exception to sovereign immunity in this
              case would be the real estate exception. The test for
              determining whether the real estate exception applies is as
              follows: a claim for damages or injuries caused by the
              substance or an object on Commonwealth real estate must
              allege that the dangerous condition derived, originated or
              had as its source the Commonwealth realty itself. . . . Jones
              v. Southeastern Pennsylvania Transportation Authority, 772
              A.2d 435, 443-44 (Pa. 2001).

              To establish that the injuries were caused by a “dangerous
              condition of the real estate” and fall within the exception,
              “the actual defect or flaw in the real estate must cause the
              injury, not some substance on the real property such as ice,
              snow, grease, or debris, unless some substances are there
              because of a design or construction defect.” Raker v.
              Pennsylvania Department of Corrections, 844 A.2d 659,
              662 (Pa. Cmwlth. 2004).

              Tejada alleges that he slipped and fell on ice, and as such,
              [he] has failed to plead that his injury was caused by an
              actual defect or flaw in the real estate, and therefore the
              dismissal at the close of the pleadings was appropriate. . . .
(Trial court op. at 1-2.)
              On appeal to this Court,3 Tejada argues that the trial court erred in
granting Superintendent Fisher judgment on the pleadings without first ruling on his


       3
         Our scope of review of a trial court’s grant of a motion for judgment on the pleadings is
limited to determining whether the trial court committed an error of law or whether there are any
unresolved questions of material fact. Pfister v. City of Philadelphia, 963 A.2d 593, 596 n. 7 (Pa.
Cmwlth. 2009).



                                                3
preliminary objections to strike the answer and his motion for leave to amend the
complaint. Although the trial court should have affirmatively decided the issues
raised in Tejada’s preliminary objections and his motion to amend, we discern no
reversible error in its failure to do so.
              Tejada first contends that Superintendent Fisher’s answer was filed
untimely and therefore should have been stricken.
              Pursuant to Pa.R.C.P. No. 1026, an answer should be filed within 20
days of service of the complaint.

              As a general rule, however, the late filing of an answer will
              be ignored where the plaintiff has not acted to take a
              judgment by default. This rule is based on the theory that
              the plaintiff could not be prejudiced by the delay, and that
              his neglect to take a default judgment against the defendant
              operated as an extension of the period for filing the answer.
Colonial School District v. Romano’s School Bus Service, 545 A.2d 473, 475-76 (Pa.
Cmwlth. 1988) (citations omitted).
              Accordingly, “[e]stablished procedure does not permit the opposing
party to sit idly and then move to strike the untimely answer. Instead, that party must
take affirmative action to secure a judgment by default.” Id. at 475 (citation omitted).
Absent a showing of prejudice, failure to take action to secure a judgment by default
extends the time within which a defendant is permitted to file an answer. Id. In order
to demonstrate prejudice, a party must show that the delay hampered the party in the
preparation or litigation of its case. Id. at n.4. See Davis v. Liquor Control Board,
568 A.2d 270, 272 (Pa. Cmwlth. 1989) (en banc).
              Here, the complaint was served on Superintendent Fisher on August 27,
2014, and an answer was filed on September 29, 2014. Assuming that the Attorney
General had knowledge of the suit on the date Superintendent Fisher was served, see


                                            4
supra n.2, the delay in filing the answer was minimal (thirteen days) and Tejada
never motioned for entry of a default judgment. In addition, Tejada has not alleged
that he sustained prejudice as a result of the short delay, thereby enlarging the time in
which to file an answer.
             Tejada also argues that the answer was not verified in accordance with
the Rules of Civil Procedure. “Every pleading containing an averment of fact not
appearing of record in the action or containing a denial of fact shall state that the
averment or denial is true upon the signer’s personal knowledge or information and
belief and shall be verified.” Pa.R.C.P. No. 1024(a). Contrary to Tejada’s assertion,
the record establishes that Superintendent Fisher properly verified his answer and
new matter. (Certified Record (C.R.) at #8.)
             Therefore, Tejada’s allegations of error fail, and the trial court had no
legal basis upon which to strike Superintendent Fisher’s answer.
             Next, Tejada contends that the averments in his amended complaint
would have established that the real property exception is applicable.
             Our legislature has waived sovereign immunity for injuries caused by
“[a] dangerous condition of Commonwealth agency real estate. . . .” 42 Pa.C.S.
§8522(b)(4). “For an injury to be caused by a ‘dangerous condition of the real estate’
and fall within the real estate exception, the actual defect or flaw in the real estate
itself must cause the injury, not some substance on the real property such as ice,
snow, grease, or debris, unless such substances are there because of a design or
construction defect.” Raker, 844 A.2d at 662.
             In Nardella v. Southeastern Pennsylvania Transportation Authority, 34
A.3d 300 (Pa. Cmwlth. 2011), the plaintiff slipped and fell on snow and ice while
standing on a platform owned by a transportation authority. In her complaint, the



                                           5
plaintiff alleged that the transportation authority “was responsible for the
maintenance of the platform, including the removal of ice and snow from the
platform, and . . . for keeping the platform in [a] good and safe condition so that the
platform would not constitute a menace or danger to those lawfully using the
platform.” Id. at 301. The trial court granted summary judgment in favor of the
transportation authority on grounds of sovereign immunity. On appeal, this Court
affirmed, concluding that the plaintiff’s averments were insufficient to meet the real
estate exception. More specifically, we determined that the plaintiff’s “allegations of
improper maintenance did not result from a defect in the real property itself” and
stressed that there was no evidence “that the ice on which she slipped was derived,
originated from, or had as its source a design or construction defect in the platform
itself.” Id. at 304-05. See also Kahres v. Henry, 801 A.2d 650, 654-55 (Pa. Cmwlth.
2002) (concluding that the real property exception was inapplicable where the
plaintiff did not allege or present evidence that the dangerous condition, a snow
mound that encroached on a portion of a roadway, had derived, originated, or had the
Commonwealth’s realty as the source of the condition).
             Here, the averments in Tejada’s original complaint are indistinguishable
from those in Nardella and are insufficient to meet the requirements for the real
property exception. In his proposed amended complaint, Tejada, in an attempt to
prove the applicability of the real property exception, sought to include the allegation
that there was a “defect in the property or in its construction, maintenance, design or
repair.” (C.R. at #10.)
             However, this averment is a boilerplate conclusion of law, see Raker,
844 A.2d at 662, that cannot be accepted as true when ruling on a motion for
judgment on the pleadings. Mellon Bank, NA v. National Union Insurance Co. of



                                           6
Pittsburgh, 768 A.2d 865, 868 (Pa. Super. 2001). Rather than simply plead the
generic legal elements of the real estate exception as stated in Raker, it was Tejada’s
obligation to plead material facts establishing that there was a specific design or
construction defect on the realty that caused the snow and/or ice to be on the exercise
yard. See Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1025 (Pa. Cmwlth.
2014) (“Blind suspicions and unsupported accusations simply do not state a cause of
action pursuant to any theory of tort recovery. Even our present liberalized system of
pleading requires that the material facts upon which a cause of action is premised be
pled with sufficient specificity so as to set forth the prima facie elements of the tort or
torts alleged.”). Tejada did not include such averments in his proposed amended
complaint. Therefore, Tejada’s amended complaint does not prove the real estate
exception to sovereign immunity, and any further amendment would have been futile.
See Weaver v. Franklin County, 918 A.2d 194, 203 (Pa. Cmwlth. 2007) (“Plaintiff’s
state claims fail on the basis of immunity. An amendment will not cure this defect. . .
. Thus, remand to the trial court for amendment of Plaintiff’s complaint would only
delay inevitable dismissal.”).
             In addition, Tejada makes two other arguments that need only be
addressed briefly. Tejada baldly asserts, without any factual basis, that the trial court
was biased. However, our Supreme Court has held that adverse rulings alone do not
establish the requisite bias warranting recusal. Commonwealth v. Abu-Jamal, 720
A.2d 79, 90 (Pa. 1998). Tejada further contends that he was entitled to discovery
prior to the dismissal of his complaint. To the contrary, Tejada’s discovery requests
were premature because Superintendent Fisher had not yet filed an answer, thereby
depriving him of the opportunity to challenge the merits of Tejada’s complaint based
upon its averments. See also Beardell v. Western Wayne School District, 496 A.2d



                                            7
1373, 1375-76 (Pa. Cmwlth. 1985) (differentiating a motion for judgment on the
pleadings, based on the averments in the pleadings, and a motion for summary
judgment, based on discovery responses and an evidentiary record).                 More
importantly, Tejada has first-hand knowledge of the accident and the accident’s site,
yet he fails to explain how responses to his requests would have aided in the
development of his complaint. See also Manzetti v. Mercy Hospital of Pittsburgh,
776 A.2d 938, 950-51 (Pa. 2001) (concluding that judgment was properly entered
where the plaintiffs failed on appeal to “explicitly state how additional discovery
would have aided them.”). Therefore, we find no reversible error on the part of the
trial court in granting Superintendent Fisher’s motion for judgment on the pleadings.
             Having concluded that Tejada’s claims against Superintendent Fisher are
barred by sovereign immunity and that Tejada did not suffer demonstrable prejudice
from any procedural irregularity that may have occurred in the case, we conclude that
there is no legal ground to upset the trial court’s grant of judgment on the pleadings in
favor of Superintendent Fisher.
             Accordingly, we affirm.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ricky Tejada,                         :
                  Appellant           :
                                      :    No. 14 C.D. 2015
            v.                        :
                                      :
Jon D. Fisher, Superintendent         :



                                   ORDER


            AND NOW, this 3rd day of November, 2015, the October 28, 2014
order of the Court of Common Pleas of Huntingdon County is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
