          IN THE COMMONEALTH COURT OF PENNSYLVANIA

David Shirey,                           :
            Appellant                   :
                                        :
            v.                          : No. 356 C.D. 2017
                                        : Argued: March 12, 2019
Berks Area Reading Transportation       :
Authority and Berks County              :
Association for the Blind, Inc.         :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                 FILED: April 30, 2019

            David Shirey appeals an order of the Court of Common Pleas of Berks
County (trial court) granting summary judgment to the Berks Area Reading
Transportation Authority (BARTA) and the Berks County Association for the Blind
(Association) in Shirey’s civil action. Shirey sought damages for injuries he
sustained when he slipped and fell walking from the Association’s building to a
vehicle operated by BARTA. For the following reasons, we affirm.
                                  Background
            Shirey’s complaint against BARTA and the Association alleged that on
February 18, 2010, as he left the Association’s building and walked to BARTA’s
paratransit van, he slipped and fell “when he was required to walk around a large
mound of snow and ice which was on the [Association’s] sidewalk.” Complaint, ¶7;
Reproduced Record at 6a (R.R. __). Shirey, who is partially blind, was employed
by the Association at the time. His fall caused multiple injuries including facial
scarring, a right-sided displaced nasal bone fracture, a depressed left frontal sinus
fracture, and facial lacerations and contusions.
             The complaint asserted that BARTA had a duty to assist Shirey to
“safely embark and disembark from its paratransit vans[,]” and the Association “was
responsible for the repair, maintenance, and inspection of the real estate, walkways,
and buildings … including the removal of snow and ice.” Complaint, ¶¶5-6; R.R.
6a. However, on the day of Shirey’s fall, BARTA did not provide Shirey the
assistance he needed to board the paratransit van, and the Association had not cleared
the walkway of snow and ice so that Shirey could walk safely to the van. Complaint,
¶¶9, 12; R.R. 6a-7a. The complaint asserted that these acts and omissions of the
defendants caused Shirey’s injuries. Complaint ¶¶11, 12; R.R. 7a.
             The complaint further alleged that Shirey underwent surgery which
involved “a reduction of the nasal fracture and septoplasty” and suffered “injuries to
his back; headache, fatigue, dizziness, nausea, severe emotional distress,
embarrassment, loss of self-esteem, anxiety and other injuries which may not yet be
fully diagnosed or manifested.” Complaint, ¶13; R.R. 7a. Shirey incurred, and
continues to incur, medical expenses; his inability to “attend to his usual and daily
duties and employment” contributed to his “financial detriment and loss.”
Complaint, ¶15; R.R. 7a.       Shirey sought damages against BARTA and the
Association in excess of $50,000, together with costs.
             On July 31, 2013, the Association filed a motion for summary
judgment, asserting that Shirey failed to produce evidence that its negligence caused
his fall. In support, the Association submitted the deposition testimony of Robin
Armistead, the driver of the paratransit van, which Shirey had sought to board on the
day of his fall. Armistead has worked for BARTA for 15 years as a van driver


                                          2
transporting senior citizens and disabled people “door to door,” meaning, from the
door of the building to the door of the van and vice versa. Notes of Testimony,
2/12/2013, at 18 (N.T. __); R.R. 36a. Armistead testified that she had transported
Shirey “quite a few times.” N.T. 31; R.R. 39a. She would “pull up [the van], go
into the [Association building,]” and tell Rosann Strauss, Shirey’s supervisor, that
she was there. N.T. 35; R.R. 40a. Armistead would then return to the vehicle to
complete paperwork. Shirey would gather his belongings and wait in the lobby for
Armistead to escort him to the van. Armistead testified that Shirey was “wobbly”
and “needed somebody to hold his hand.” N.T. 50; R.R. 44a.
             Armistead testified that on February 18, 2010, she was scheduled to
pick up Shirey and Christine, his coworker. While she was doing paperwork in her
van, she heard “the door [of the Association] slam[.]” N.T. 50; R.R. 44a. She looked
up and saw Shirey and Christine walking toward the bus. Shortly thereafter, Shirey
fell. Armistead stated that Shirey “landed on the pavement[,]” but she could not
recall the precise location. N.T. 47, 52; R.R. 43a, 44a. An Association employee
called an ambulance. Armistead stated that Strauss never “left [Shirey] walk out by
himself[,]” and she did not know “why that particular day she did not make him wait,
because she knew I always came back in for him[.]” N.T. 36; R.R. 40a.
             Armistead testified that at the time of the accident, there was no snow
or ice on the walkway; there was snow “on the grass.” N.T. 49; R.R. 44a. However,
there was a “little piece [of the sidewalk] that was sticking up,” which she assumed
caused Shirey to trip. N.T. 53; R.R. 45a. Armistead stated that she was not looking
at Shirey’s feet when he fell.
             The Association submitted a report that Armistead had prepared after
the accident, which stated that Shirey “triped [sic] on the side walk[.]” R.R. 59a.


                                         3
The report also included a drawing done by Armistead that showed the location of
the Association building relative to the van and the sidewalks. The diagram also
showed a line of snow encroaching onto the walkway and the street.
             The Association submitted the deposition testimony of Strauss, who has
been employed by the Association for 22 years. She stated that the Association
“depended on BARTA to come and get [Shirey]” because Shirey “was a BARTA-
transportation person.” N.T. 49; R.R. 114a. She would not let Shirey leave the
building “until the BARTA person was in the building[.]” Id. Strauss testified that
she did not see Shirey leave the building on February 18, 2010, and did not see him
fall. When someone “yelled [Shirey] fell[,]” she ran outside and saw Shirey laying
“on the walk[way] close to the curb area.” N.T. 49-50; R.R. 114a. Strauss could
not recall whether there was any snow on the sidewalk or “any of the environment
at the time.” N.T. 50-51; R.R. 114a.
             The Association also supported its motion with the deposition
testimony of Pamela Coldren, Shirey’s sister and legal guardian. Coldren testified
that she asked Shirey what happened and “[h]e just said he fell.” N.T. 14; R.R. 65a.
Coldren asked him if he “pick[ed] up [his] feet” and whether he was “looking
straight ahead or down at the ground[,]” and Shirey stated that “he thought he was
looking the right way.” N.T. 14-15; R.R. 65a. Shirey did not tell Coldren why he
fell. Shirey was not deposed due to a short-term memory loss issue.
             In support of its summary judgment motion, the Association asserted
that Shirey produced no evidence that snow and ice caused him to trip and fall; thus,
there were no genuine issues of material fact to be submitted to a fact-finder.
             BARTA filed a motion for summary judgment on August 21, 2013,
raising governmental immunity as an affirmative defense. BARTA argued that


                                          4
Shirey could not establish that BARTA’s alleged negligent acts fell within one of
the eight enumerated categories of acts for which immunity has been waived under
what is commonly referred to as the Political Subdivision Tort Claims Act (Tort
Claims Act), 42 Pa. C.S. §§8541-8564.1 Further, BARTA argued that Shirey’s claim
for pain and suffering had to be dismissed because he did not sustain a “permanent
loss of a bodily function.” 42 Pa. C.S. §8553(c)(2)(ii).2 In support, BARTA
submitted a portion of Coldren’s deposition testimony, which indicated that Shirey
has recovered from the injuries he sustained on February 18, 2010. BARTA also
submitted an independent medical examination (IME) report of Dr. Menachem
Meller, who opined that Shirey did not sustain a permanent injury or loss of bodily
function due to the accident.

1
 Section 8542(b) of the Tort Claims Act lists a series of exclusions to governmental immunity for
specific categories of tort claims: (1) vehicle liability; (2) care, custody or control of personal
property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities;
(6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa. C.S. §8542(b).
2
 Section 8553(c) of the Tort Claims Act limits recoverable damages to the following six categories
of losses:
        (1) Past and future loss of earnings and earning capacity.
        (2) Pain and suffering in the following instances:
                (i) death; or
                (ii) only in cases of permanent loss of a bodily function,
                permanent disfigurement or permanent dismemberment where the
                medical and dental expenses referred to in paragraph (3) are in
                excess of $1,500.
        (3) Medical and dental expenses including the reasonable value of reasonable and
        necessary medical and dental services, prosthetic devices and necessary ambulance,
        hospital, professional nursing, and physical therapy expenses accrued and
        anticipated in the diagnosis, care and recovery of the claimant.
        (4) Loss of consortium.
        (5) Loss of support.
        (6) Property losses.
42 Pa. C.S. §8553(c) (emphasis added).
                                                     5
                Shirey answered both motions for summary judgment and submitted an
affidavit by Steven B. Coldren, Shirey’s nephew (Nephew). Attached to this
affidavit were photographs of the area where the accident had occurred, which
showed snow and ice encroaching onto the sidewalk. Nephew stated that he took
those photographs on February 19, 2010, the day after the accident, and, “[i]f called
to testify, [he] would testify that the conditions as shown in the attached photographs
accurately reflect the conditions as they existed at or near the location of [Shirey’s]
accident.” R.R. 120a.
                Shirey also filed a motion for leave to amend his complaint. On
November 18, 2013, the trial court granted Shirey’s motion and directed that the
amended complaint be filed within 20 days from the date of the order. Shirey did
not file the amended complaint until August 4, 2014.3 By order dated August 4,
2014, the trial court granted the Association’s motion for summary judgment. By
order dated September 14, 2016, the trial court granted BARTA’s motion for
summary judgment. Shirey appealed the trial court’s order on October 13, 2016.4
                                      Trial Court Opinion
                The trial court filed an opinion pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, PA. R.A.P. 1925(a). The opinion
explained that as a local agency, BARTA is entitled to governmental immunity
unless the alleged acts of negligence fall within one of the eight categories set forth


3
  The amended complaint alleged, inter alia, that Shirey slipped and fell “at or near the sidewalk
at the [premises of the Association]; the [Association] and/or BARTA assum[ed] the responsibility
for escorting Shirey down the sidewalk to the waiting BARTA van[;]” and the Association “had a
responsibility to see to it that its business invitees were safe on its property, especially those having
the physical challenges of Shirey.” Amended Complaint at 3-4, ¶¶ 10, 13, 14; R.R. 141a, 146a.
4
  Shirey first appealed to the Superior Court. By order dated February 16, 2017, the Superior Court
transferred the matter to this Court.
                                                   6
in Section 8542(b) of the Tort Claims Act, 42 Pa. C.S. §8542(b). Shirey did not
establish that BARTA’s alleged negligence fell within any of those categories.
Further, Shirey’s damages for pain and suffering were not recoverable under Section
8553(c) of the Tort Claims Act, which requires proof of “permanent loss of a bodily
function, permanent disfigurement or permanent dismemberment[.]” 42 Pa. C.S.
§8553(c). Alternatively, the trial court explained that Shirey did not establish that
BARTA was negligent because Shirey “voluntarily failed to wait for his escort and
deviated from the normal practice between the parties.” Trial Court 1925(a) op. at
5. For these reasons, the trial court held that BARTA was entitled to summary
judgment.
              The trial court held that Shirey did not timely appeal the August 4,
2014, order granting summary judgment to the Association. In any case, Shirey
presented no genuine issues of material fact. Because Nephew did not witness the
accident, the trial court dismissed his affidavit and photographs as “worthless.” Trial
Court 1925(a) op. at 5-6. Likewise, Strauss did not observe Shirey fall; Shirey did
not tell Strauss or his sister what happened; and Strauss testified that she did not
observe any ice or snow. Id. at 6. Simply, Shirey did not present sufficient evidence
on causation, and “[a] fact-finder cannot engage in speculation to find an answer[.]”
Id. at 6. The trial court did not consider Shirey’s amended complaint because it was
filed after the trial court’s 20-day deadline. Id.
                                           Appeal
              On appeal,5 Shirey argues that the trial court erred by granting summary
judgment to BARTA and the Association because there exists a genuine issue of

5
  This Court’s standard of review of a grant of summary judgment is de novo, and our scope of
review is plenary. We apply the same standard for summary judgment as the trial court. Cochrane
v. Kopko, 975 A.2d 1203, 1205 (Pa. Cmwlth. 2005). A grant of summary judgment is only
                                              7
material fact about the cause of his fall. Armistead’s testimony that there was no
snow or ice on the sidewalk was contrary to the diagram she drew immediately after
the accident, which showed snow and ice encroaching on the sidewalk. Armistead
further testified that there was an obstruction on the Association’s sidewalk when
Shirey fell. Nephew’s affidavit and photographs also support Shirey’s allegation
that Shirey’s fall was caused by the snow encroaching on the sidewalk. Further,
both Armistead and Strauss testified that Shirey should not have been walking
unescorted due to his visual impairment. Shirey asserts that there is ample evidence
on which the factfinder could conclude that the acts or omissions of BARTA and the
Association caused Shirey’s injuries.
              Shirey further argues that the trial court erred by concluding that his
appeal of the August 4, 2014, order granting summary judgment to the Association
was untimely. Only a “final order,” which “ends the litigation, or alternatively
disposes of the entire case[,]” is appealable. Shirey Brief at 12 (quoting Pugar v.
Greco, 394 A.2d 542, 544 (Pa. 1978)). Shirey asserts that it was not until the trial
court granted summary judgment to BARTA that the order in favor of the
Association became appealable.
              The Association responds that Shirey’s evidence consisted of “mere
speculation,” as opposed to “direct proof,” of the cause of his fall. Association Brief
at 7. Further, a jury cannot be permitted to engage in speculation or guess the cause
of Shirey’s fall. The trial court thus did not err by granting summary judgment to




appropriate where the “record clearly shows that there are no genuine issues of material fact and
that the moving party is entitled to judgment as a matter of law.” Farabaugh v. Pennsylvania
Turnpike Commission, 911 A.2d 1264, 1267 n.3 (Pa. 2006) (quoting P.J.S. v. Pennsylvania State
Ethics Commission, 723 A.2d 174, 176 (Pa. 1999)).
                                               8
the Association because the mere occurrence of an accident does not establish
negligent conduct.
             BARTA responds that the trial court correctly held that Shirey’s
negligence claim was barred by governmental immunity under Section 8541 of the
Tort Claims Act, 42 Pa. C.S. §8541, because BARTA is a local agency. Further,
Shirey’s damages for pain and suffering were not recoverable under Section 8553(c)
of the Tort Claims Act because Shirey presented no evidence that he suffered a
permanent loss of a bodily function.
                        I. BARTA’s Summary Judgment
             We first address the trial court’s grant of summary judgment to
BARTA. On appeal, Shirey does not challenge the trial court’s ruling that BARTA
was entitled to governmental immunity under Section 8541 of the Tort Claims Act,
or that his damages for pain and suffering were not recoverable under Section
8553(c). Shirey argues, instead, that his evidence “developed to this point” indicates
that “[e]ither one or both of the Defendants’ activities were the causation for [his]
injuries such that a fact-finder could easily find negligence.” Shirey Brief at 12.
             Because Shirey’s complaint did not allege that BARTA’s action fell
under an enumerated exception to governmental immunity under Section 8542(b) of
the Tort Claims Act, and he does not raise any issue as to the trial court’s ruling on
governmental immunity, we affirm the trial court’s order granting summary
judgment to BARTA.




                                          9
                    II. The Association’s Summary Judgment
                              A. Timeliness of Appeal
             The trial court stated in its 1925(a) opinion that Shirey did not timely
appeal its August 4, 2014, order granting summary judgment to the Association.
This was error.
             The Pennsylvania Rules of Appellate Procedure state that “an appeal
may be taken as of right from any final order of a governmental unit or trial court.”
PA. R.A.P. 341(a). The purpose of limiting appellate review to final orders is “to
prevent piecemeal determinations and the consequent protraction of litigation.”
Hionis v. Concord Township, 973 A.2d 1030, 1034 (Pa. Cmwlth. 2009). A final
order is defined as any order that:

             (1) disposes of all claims and of all parties; or
             (2) RESCINDED

             (3) is entered as a final order pursuant to paragraph (c) of this
             rule.

PA. R.A.P. 341(b). Paragraph (c) provides in pertinent part:

             When more than one claim for relief is presented in an action,
             whether as a claim, counterclaim, cross-claim, or third-party
             claim or when multiple parties are involved, the trial court or
             other government unit may enter a final order as to one or more
             but fewer than all of the claims and parties only upon an express
             determination that an immediate appeal would facilitate
             resolution of the entire case. Such an order becomes appealable
             when entered. In the absence of such a determination and entry
             of a final order, any order or other form of decision that
             adjudicates fewer than all the claims and parties shall not
             constitute a final order.



                                         10
PA. R.A.P. 341(c) (emphasis added).6
               Here, Shirey’s complaint asserted negligence claims against both
BARTA and the Association. The trial court’s August 4, 2014, order granting
summary judgment to the Association was not a final order because it did not
“dispose[] of all claims and of all parties[.]” PA. R.A.P. 341(b)(1). Further, the trial
court did not expressly identify it as a final order pursuant to PA. R.A.P. 341(c). The
August 4, 2014, order did not become appealable until the trial court granted
summary judgment in favor of BARTA on September 14, 2016.
               Because Shirey’s notice of appeal was filed within 30 days of the
September 14, 2016, order, it was timely filed.7 Accordingly, the merits of both
orders of the trial court are properly before this Court.
                           B. Genuine Issues of Material Fact
               Finally, Shirey argues that the trial court erred by granting summary
judgment to the Association because there exists a genuine issue of material fact as
to the cause of his fall. “A motion for summary judgment may be granted only when
there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law.” Flood v. Silfies, 933 A.2d 1072, 1074 (Pa. Cmwlth. 2007). A
fact is material if it directly affects the disposition or the outcome of a case.
Department of Environmental Protection v. Delta Chemicals, Inc., 721 A.2d 411,
416 (Pa. Cmwlth. 1998). A record that supports summary judgment will either



6
  Likewise, the note to PA. R.A.P. 341 states: “Paragraph (c) permits an immediate appeal from an
order dismissing less than all claims or parties from a case only upon an express determination that
an immediate appeal would facilitate resolution of the entire case.” PA. R.A.P. 341, Note.
7
  The note to PA. R.A.P. 341 further states, “[a] party needs to file only a single notice of appeal
to secure review of prior non-final orders that are made final by the entry of a final order[.]” PA.
R.A.P. 341, Note (citing Betz v. Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012)).
                                                11
              (1) show the material facts are undisputed or (2) contain
              insufficient evidence of facts to make out a prima facie cause of
              action or defense, and, therefore, there is no issue to be submitted
              to the fact-finder.

Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1084-85 (Pa. Super. 2016)
(quoting DeArmitt v. N.Y. Life Insurance Company, 73 A.3d 578, 585-86 (Pa. Super
2013)). The right to judgment must be clear and free from doubt. In reviewing the
grant of a motion for summary judgment, this Court must “view the record in the
light most favorable to the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the moving party.” Flood,
933 A.2d at 1074 (quotations omitted).
              Here, Shirey’s complaint alleged that the Association was negligent in
failing to clear the snow and ice from the sidewalk, which caused Shirey to trip and
fall as he walked to the BARTA bus.8 Shirey referred to Armistead’s accident report,
which included a diagram she drew showing snow encroaching onto the walkway
and street. Further, Armistead testified that there was a “little piece [of the sidewalk]
that was sticking up[,]” which she assumed caused Shirey to trip. N.T. 53; R.R. 45a.
Shirey also submitted Nephew’s affidavit with photographs he took the day after the
accident, which showed snow and ice encroaching onto the sidewalk.
              In Pennsylvania, the elements of negligence are: a duty “to conform to
a certain standard of conduct for the protection of others against unreasonable risks;”
the defendant’s failure to conform to that standard; “a causal connection between the
conduct and the resulting injury;” and actual loss or damages to the plaintiff. R.W.




8
 Shirey’s complaint did not allege that his fall was caused by a lack of supervision by the
Association.
                                            12
v. Manzek, 888 A.2d 740, 746 (Pa. 2005). The claim may be predicated on either an
affirmative act, or a failure to act, that causes an injury.
               It is undisputed that at the time of the accident, Shirey was a business
invitee, to whom the Association, as the owner of land, had a duty of care. Shirey
produced evidence that, at the time of the accident, there was some snow and ice on
the sidewalk.9 However, Shirey did not produce evidence that the snow and ice
caused him to fall. This lack of evidence of causation was fatal to his case.
               In Houston v. Republican Athletic Association, 22 A.2d 715 (Pa. 1941),
the decedent died after falling down stairs at an athletic club. No one witnessed the
fall; his widow sued and claimed that a splinter of wood on the edge of one of the
steps caught the decedent’s foot, causing the fall. At the close of the plaintiff’s case,
the trial court entered a compulsory nonsuit. Our Supreme Court affirmed, stating:

               In the absence of any direct proof as to the manner in which the
               accident occurred, the burden was on appellant to produce

9
  We conclude that the grant of summary judgment is independently supported by the well-settled
hills and ridges doctrine, which, as defined and applied by the courts of Pennsylvania, “is a
refinement or clarification of the duty owed by a possessor of land and is applicable to a single
type of dangerous condition, i.e., ice and snow.” Moon v. Dauphin County, 129 A.3d 16, 22 (Pa.
Cmwlth. 2015) (quoting Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super.
1997)). The hills and ridges doctrine “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 elevations.” Moon, 129 A.3d at 22-23
(quoting Morin, 704 A.2d at 1087). To recover for a fall on ice or snow, an injured party must
prove the following 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; and (3) that it was the
       dangerous accumulation of snow and ice which caused the plaintiff to fall.
Moon, 129 A.3d at 23 (quoting Mahanoy Area School District v. Budwash, 604 A.2d at 1156, 1158
(Pa. Cmwlth. 1992)). Here, Shirey did not present evidence that the Association had permitted
snow and ice to accumulate over a period of time, or that it had created an unnatural accumulation.
                                               13
             evidence of circumstances “so strong as to preclude the
             possibility of injury in any other way, and provide as the only
             reasonable inference the conclusion” that her husband’s death
             was caused by the negligence of appellees in the manner
             alleged.... “Proving that an accident happened, or the existence
             of an opportunity for it to happen, in the manner alleged, is
             entirely insufficient to establish negligence…. Plaintiff must go
             further, and show not only defendant’s negligence, but that the
             injuries complained of were the result of such negligence….”
             While it may be that appellant’s hypothesis as to the cause of this
             regrettable accident is a plausible one, for all that appears from
             the evidence, the circumstances relied upon are at least equally
             consistent with theories of the case attributing the accident to a
             variety of causes, not excluded by the evidence, for none of
             which any of appellees could conceivably be held liable, as the
             court below has pointed out, including the possibility that the
             deceased may simply have tripped or stumbled, without such
             tripping or stumbling having any connection whatever with the
             defects in the steps complained of. Under these circumstances,
             a finding that the fatal injuries of appellant’s husband resulted
             from the negligence alleged would, at most, represent nothing
             but a mere guess or conjecture…. “Where a defendant is liable
             for only one of two or more equally probable causes and to say
             which is a mere guess, there can be no recovery.”

Id. at 716 (emphasis added) (quotations omitted).
             Here, as in Houston, no one witnessed Shirey fall. Neither Shirey nor
Christine, the individual walking with him at the time of the accident, offered
testimony on the mechanics of the accident. Shirey presented no other direct
evidence to support the allegation that he fell due to snow and ice on the sidewalk.
The circumstantial evidence, including Nephew’s photographs, is not “so strong as
to preclude the possibility of injury in any way.” Id. The circumstantial evidence
“represent[s] nothing but a mere guess or conjecture[]” to the cause of Shirey’s fall.
Id. A plaintiff cannot survive summary judgment when mere speculation would be


                                         14
required for the jury to find in plaintiff’s favor. DuBois v. City of Wilkes-Barre, 189
A.2d 166, 167 (Pa. 1963); see also Fitzpatrick v. Natter, 961 A.2d 1229, 1241-42
(Pa. 2008).
              Because Shirey’s evidence did not establish causation, he did not make
a prima facie case of negligence. Stated otherwise, “there is no issue to be submitted
to the fact-finder.” Dibish, 134 A.3d at 1085. The trial court thus did not err in
granting summary judgment to the Association.
                                      Conclusion
              Because Shirey’s complaint did not allege that BARTA’s action fell
under an enumerated exception to governmental immunity under the Tort Claims
Act, and he does not challenge the trial court’s ruling on governmental immunity,
we affirm the trial court’s order of September 14, 2016, granting summary judgment
to BARTA. Further, because Shirey has not demonstrated a genuine issue of
material fact as to the cause of his fall, we affirm the trial court’s order of August 4,
2014, as made final by the order of September 14, 2016, which granted summary
judgment to the Association.
                                     _____________________________________
                                     MARY HANNAH LEAVITT, President Judge




                                           15
          IN THE COMMONEALTH COURT OF PENNSYLVANIA

David Shirey,                         :
            Appellant                 :
                                      :
           v.                         : No. 356 C.D. 2017
                                      :
Berks Area Reading Transportation     :
Authority and Berks County            :
Association for the Blind, Inc.       :


                                    ORDER

           AND NOW, this 30th day of April, 2019, the order of the Court of
Common Pleas of Berks County, dated September 14, 2016, in the above-captioned
matter, is AFFIRMED.


                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
