             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joisse A. Cagey and Dale J. Cagey,      :
                        Appellants      :
                                        :
             v.                         :   No. 2650 C.D. 2015
                                        :   Submitted: May 20, 2016
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
a Commonwealth Agency                   :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: July 28, 2016

             Joisse A. Cagey and Dale J. Cagey (Appellants) appeal from a final
order of the Court of Common Pleas of Beaver County (trial court). The trial court
granted Appellee Department of Transportation’s (DOT) Motion for Judgment on
the Pleadings on sovereign immunity grounds. For the reasons discussed below,
we affirm.
             The factual background of the case is set forth in Appellants’
complaint as follows. Appellants were travelling southbound on State Route 551
when they encountered snow and icy patches on the roadway. Due to the icy road,
the vehicle spun out of control and left the westerly side of the roadway. The
vehicle impacted a guardrail adjacent to the road which penetrated the side of the
car, resulting in substantial injuries to Appellants. Appellants alleged that the
injuries resulted from (1) DOT’s negligent installation of the guardrail within an
area that should have been transversable, (2) DOT’s negligent installation of a
“boxing glove” type guardrail,1 and (3) DOT’s failure to correct the uncrashworthy
blunt end of the guardrail.2
                DOT filed an answer and new matter on July 9, 2015, raising the
defense of sovereign immunity. On September 8, 2015, DOT filed a motion for
judgment on the pleadings, averring that Section 8522 of the Judicial Code, 42 Pa.
C.S. § 8522, which is often referred to as the Sovereign Immunity Act, bars
Appellants’ causes of action because they do not fall within any enumerated
exceptions to the Commonwealth’s sovereign immunity set forth in that section. In
their reply, Appellants conceded that the trial court was bound by this Court’s
precedent to grant DOT’s motion for judgment on the pleadings. Appellants do
not contend on appeal that the trial court judge erred in granting DOT’s motion for
judgment on the pleadings, nor do Appellants point to a factual distinction between
the instant case and our prior holdings. Instead, Appellants argue that this Court’s
prior decisions have improperly expanded our Supreme Court’s holding in Dean v.
Department of Transportation, 751 A.2d 1130 (Pa. 2000), to eliminate the
Commonwealth’s waiver of sovereign immunity for a dangerous condition of the
travelled portion of a roadway.
                Appellants’ argument relates to our prior interpretations of
Section 8522(b)(4) of the Sovereign Immunity Act, commonly referred to as the
real estate exception to sovereign immunity, which provides in pertinent part:

       1
           A “boxing glove” type guardrail is capped by a U-shaped piece of metal.
       2
          Appellants also averred that DOT improperly maintained the shoulders and roadsides of
State Route 551, resulting in the accumulation of water and ice, thereby causing Appellants’
injuries. Appellants, however, do not pursue this argument on appeal.



                                                2
            (b) Acts which may impose liability.--The following
            acts by a Commonwealth party may result in the
            imposition of liability on the Commonwealth and the
            defense of sovereign immunity shall not be raised to
            claims for damages caused by:
                  …
                  (4) Commonwealth real estate, highways
                  and sidewalks.--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 [a
                  dangerous condition of highways under the
                  jurisdiction of a Commonwealth agency
                  created by potholes or sinkholes or other
                  similar conditions created by natural
                  elements].
            As noted by Appellants, this Court has repeatedly ruled on whether
the real estate exception to the Sovereign Immunity Act applies to the maintenance
and design of guardrails placed alongside Pennsylvania highways. In Dean, our
Supreme Court held that a failure to erect a guardrail does not constitute a
dangerous condition of Commonwealth realty and, thus, does not fall under the
real estate exception to the Sovereign Immunity Act. Dean, 751 A.2d at 1131.
The Supreme Court in Dean reasoned that the absence of a guardrail was not a
dangerous condition of Commonwealth realty because it did not “render the
highway unsafe for the purposes for which it was intended, i.e., travel on the
roadway.” Id. at 1134. In Fagan v. Department of Transportation, 946 A.2d 1123
(Pa. Cmwlth. 2008), the appellants urged this Court to construe the Supreme
Court’s holding in Dean narrowly and to hold that, where a guardrail exists, the

                                        3
Commonwealth is not immune from suits alleging that the guardrails were
negligently designed or maintained.3 The appellants in Fagan argued that the
purpose of guardrails is to be impacted by errant vehicles, and, thus, a guardrail
unsuited for that purpose is unsafe for the purpose for which it was intended.
Fagan, 946 A.2d at 1126. In Fagan, we declined to so-narrowly construe the
Supreme Court’s holding, and, in subsequent decisions, this Court has inveterately
held that the real estate exception to sovereign immunity does not extend to
maintenance and design of guardrails. See, e.g., Lambert v. Katz, 8 A.3d 409 (Pa.
Cmwlth. 2010); Stein v. Pa. Tpk. Comm’n, 989 A.2d 80 (Pa. Cmwlth. 2010); see
also Svege v. Interstate Safety Serv., Inc., 862 A.2d 752 (Pa. Cmwlth. 2004)
(considering application of real estate exception to sovereign immunity to concrete
barriers along state highways).
                 In support of their argument, Appellants suggest that this Court’s
interpretation of the real estate exception is contrary to the common law duty of a
possessor of land.4 See Palange v. City of Philadelphia, 640 A.2d 1305 (Pa.
Super. 1994), appeal denied sub nom. Palange v. Priori’s Bar and Rest., 666 A.2d

       3
         Appellants specifically request that this Court overrule its holding in Fagan, an en banc
decision of this Court. Pursuant to Pennsylvania Rule of Appellate Procedure 3103 (b), an en
banc decision of this Court is binding on any subsequent panel. Pa. R.A.P. 3103 (b).
       4
           A possessor of land held open to the public is subject to liability only if he or she,
                 (a) knows or by the exercise of reasonable care would discover the
                 condition, and should realize that it involves an unreasonable risk of harm
                 to such invitee, and
                 (b) should expect that they will not discover or realize the danger, or will
                 fail to protect themselves against it, and
                 (c) fails to exercise reasonable care to protect them against the danger.
Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983); RESTATEMENT (SECOND) OF TORTS, § 343.



                                                    4
1057 (Pa. 1995). Where a Commonwealth agency enjoys immunity from tort
liability, it is irrelevant that a private person would be liable for a similar act. Page
v. City of Philadelphia, 25 A.3d 471, 476 (Pa. Cmwlth. 2011). The very purpose
of sovereign immunity is that it precludes a litigant from asserting a claim against a
Commonwealth agency that might otherwise be meritorious if asserted against a
private party. State Workmen’s Ins. Fund, Cmwlth. Dep’t of Labor and Indus. v.
Caparo Real Estate, Inc., 635 A.2d 705, 707 (Pa. Cmwlth. 1993). Further, the
Supreme Court has instructed “[b]ecause of the clear intent to insulate government
from exposure to tort liability, the exceptions to immunity are to be strictly
construed.”    Dean, 751 A.2d at 1132.         Accordingly, we must interpret any
exceptions to sovereign immunity narrowly, to the exclusion of new causes of
action, rather than broadly as Appellants suggest.
              Additionally, Appellants urge that the real estate exception is
unambiguous and that a plain reading of that statute requires this Court to consider
guardrails as a “dangerous condition . . . of highways under the jurisdiction of a
Commonwealth agency.” See 42 Pa. C.S. § 8522(b)(4). The Supreme Court,
however, has interpreted the language of Section 8522(b)(4) of the Sovereign
Immunity Act to include only the traversable portion of the roadway itself rather
than conditions ancillary to travel on the highway.         Dean, 751 A.2d at 1134
(“Similar to the absence of lighting and the deceptive appearance of the shoulder of
the road . . . , the absence of a guardrail cannot be said to be a dangerous condition
of the real estate that resulted in a reasonably foreseeable injury to Appellee.”).
For example, if the paved portion of the road were negligently constructed, the real
estate exception may apply. See Smith v. Dep’t of Transp., 700 A.2d 587, 591 (Pa.
Cmwlth. 1997). As we have previously noted,


                                           5
            the General Assembly can correct any misinterpretation
            of the immunity provisions by amending the statute so as
            to explicitly waive immunity for dangerous conditions of
            guardrails. . . . Absent such legislative directive,
            however, we conclude that the real estate exception does
            not apply to the failure to install a guardrail. To date,
            however, the General Assembly has not responded to the
            invitation to “correct” the Supreme Court’s construction
            of the real estate exception to sovereign immunity as it
            relates to guardrails.

Stein, 989 A.2d at 85 (internal citations omitted).         Rather than being an
unwarranted expansion of the holding in Dean, Fagan and its progeny represent a
logical and reasonable application of principles set forth by our Supreme Court,
which have gone uncontradicted by our legislature.
            For the reasons discussed above, we affirm the order of the trial court.




                               P. KEVIN BROBSON, Judge




                                         6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joisse A. Cagey and Dale J. Cagey,   :
                        Appellants   :
                                     :
           v.                        :   No. 2650 C.D. 2015
                                     :
Commonwealth of Pennsylvania,        :
Department of Transportation,        :
a Commonwealth Agency                :


                                 ORDER


           AND NOW, this 28th day of July, 2016, the order of the Court of
Common Pleas of Beaver County is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge
