           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyshun Warrington                           :
                                            :
              v.                            : No. 359 C.D. 2017
                                            : Argued: October 17, 2017
Commonwealth of Pennsylvania                :
and City of Philadelphia                    :
                                            :
Tyshun Warrington                           :
                                            :
              v.                            :
                                            :
Commonwealth of Pennsylvania,               :
Department of Transportation                :
                                            :
Appeal of: Tyshun Warrington                :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                     FILED: November 14, 2017


              Tyshun Warrington (Plaintiff) appeals from an order of the Court of
Common Pleas of Philadelphia County (trial court) granting the Commonwealth of
Pennsylvania, Department of Transportation’s (PennDOT)1 motion for summary

       1
          Plaintiff originally commenced a negligence action against the Commonwealth of
Pennsylvania and the City of Philadelphia, but the trial court ultimately dismissed both parties
prior to granting PennDOT’s motion for summary judgment. Consequently, the only remaining
defendant on appeal is PennDOT.
judgment because Plaintiff failed to demonstrate that PennDOT received actual
written notice of a pothole that allegedly caused her injuries, as required by the
“pothole exception” to sovereign immunity, 42 Pa.C.S. § 8522(b)(5). For the
following reasons, we affirm.


                                               I.
              On May 6, 2016, Plaintiff filed a one-count negligence complaint
against PennDOT alleging that “[o]n or about September 28, 2015 at
approximately 9:30 p.m., [Plaintiff], while exiting a SEPTA bus on Belmont
Avenue in the City of Philadelphia, PA, fell into a deep hole located in the
roadway, severely and permanently injuring herself.” (Reproduced Record (R.R.)
at 52a.) However, because Plaintiff failed to demonstrate that PennDOT received
written notice in accordance with the “pothole exception” to sovereign immunity,
42 Pa.C.S. § 8522(b)(5), PennDOT moved for summary judgment.2




        2
         A plaintiff seeking to come within the “pothole exception” to sovereign immunity, 42
Pa.C.S. § 8522(b)(5), must specifically plead and prove sufficient prior written notice of the
allegedly dangerous condition of the roadway. Stevens v. Department of Transportation, 492
A.2d 490, 493 (Pa. Cmwlth. 1985). Additionally, the statute requires a plaintiff to establish two
elements of notice in order to fall within the exception:

              (1) that the Commonwealth agency had actual written notice of the
              dangerous condition; and (2) that the actual written notice had been
              given sufficiently prior to the incident giving rise to plaintiff's
              claim so that the Commonwealth agency had a reasonable
              opportunity to remedy the situation.

Id. at 493.




                                               2
              In response to PennDOT’s motion for summary judgment, Plaintiff
contended that the written notice requirement of the pothole exception should not
apply because “what occurred was that [Plaintiff] stepped down off the bus with
her left foot and then stepped onto the brick with her right foot twisted which
caused her to fall. Thus, the pothole exposed the brick but the brick was the
immediate cause of the injury.”          (R.R. at 195a.)       Contending that PennDOT
received constructive notice of the exposed brick, Plaintiff asserted that the man-
made hazard fell within the “real estate exception” to sovereign immunity, 42
Pa.C.S. § 8522(b)(4).


              Finding that the bottom of a pothole3 – whether a man-made substance
or not – is still part of a pothole, and that Plaintiff failed to demonstrate that written
notice was provided to PennDOT in accordance with 42 Pa.C.S. § 8522(b)(5), the
trial court granted PennDOT’s motion for summary judgment. As the trial court
explained:

              [Plaintiff] offers no evidence or law for the conclusion
              that the bottom of the pothole at issue in this case is not a
              part of the pothole. [Her] contention appears to be that, if
              the bottom of the pothole is a man-made substance such
              as brick or asphalt, then that presents another dangerous
              condition separate from the pothole itself, and this
              contention is without support in Pennsylvania law.
              Further, [her] contention runs counter to the requirement
              that the waivers of sovereign immunity be read narrowly.

       3
         As we have explained, the terms “potholes or sinkholes, as used in Section 8522(b)(5),
are intended to encompass any such holes in the roadway caused by deterioration resulting from
a combination of water, freezing and thawing and traffic.” Cressman v. Department of
Transportation, 538 A.2d 992, 994 (Pa. Cmwlth. 1988).




                                              3
                The dangerous conditions over which Appellant-Plaintiff
                tripped was a “condition[] created by natural elements.”
                42 Pa.C.S. § 8522(b)(5). There is no dispute that the
                surface asphalt had broken away down to brick – this is a
                pothole. Thus, the requirement of actual prior written
                notice under 42 Pa.C.S. § 8522(b)(5) applies. [Plaintiff]
                failed to offer evidence of actual prior written notice.


(Trial Court’s 1925(a) Opinion at 12.) This appeal followed.4


                                               II.
                On appeal, Plaintiff once again contends that the exposed brick
revealed by the pothole constitutes a man-made hazard that is distinct from that
pothole and, consequently, falls within the “real estate exception” to sovereign
immunity, 42 Pa.C.S.§ 8522(b)(4). Accordingly, she contends that the trial court
erred in granting summary judgment, given that PennDOT had constructive notice
of the man-made hazard.


                The Sovereign Immunity Act (Act) protects the Commonwealth from
civil suit for tort liability unless the General Assembly specifically waives
immunity.       1 Pa.C.S. § 2310.5       See also 42 Pa.C.S. § 8521(a).6            “Sovereign


       4
         Our review of a trial court order granting summary judgment is limited to determining
whether the trial court abused its discretion or committed an error of law. Manley v. Fitzgerald,
997 A.2d 1235, 1238 n.2 (Pa. Cmwlth. 2010). Summary judgment may only be granted when,
after examining the record in the light most favorable to the non-moving party, the record clearly
demonstrates that there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Id.

       5
           1 Pa.C.S. § 2310 provides:

(Footnote continued on next page…)

                                                4
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
Philadelphia, 25 A.3d 471, 475 (Pa. Cmwlth. 2011) (emphasis added).                        The


(continued…)

              Pursuant to section 11 of Article 1 of the Constitution of
              Pennsylvania, it is hereby declared to be the intent of the General
              Assembly that the Commonwealth, and its officials and employees
              acting within the scope of their duties, shall continue to enjoy
              sovereign immunity and official immunity and remain immune
              from suit except as the General Assembly shall specifically waive
              the immunity. When the General Assembly specifically waives
              sovereign immunity, a claim against the Commonwealth and its
              officials and employees shall be brought only in such manner and
              in such courts and in such cases as directed by the provisions of
              Title 42 (relating to judiciary and judicial procedure) or 62
              (relating to procurement) unless otherwise specifically authorized
              by statute.

       6
         Section 8521(a) of the Act states, “Except as otherwise provided in this subchapter, no
provision of this title shall constitute a waiver of sovereign immunity for the purpose of 1
Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise.” 42
Pa.C.S. § 8521(a). Section 8522(a), 42 Pa.C.S. § 8522(a), states:

              The General Assembly, pursuant to section 11 of Article I of the
              Constitution of Pennsylvania, does hereby waive, in the instances
              set forth in subsection (b) only and only to the extent set forth in
              this subchapter and within the limits set forth in section 8528
              (relating to limitations on damages), sovereign immunity as a bar
              to an action against Commonwealth parties, for damages arising
              out of a negligent act where the damages would be recoverable
              under the common law or a statute creating a cause of action if the
              injury were caused by a person not having available the defense of
              sovereign immunity.




                                               5
exceptions to sovereign immunity must be strictly construed because “the clear
intent of the legislature is to insulate the government from exposure to tort
liability.” Clark v. Pennsylvania Department of Transportation, 962 A.2d 692,
694 (Pa. Cmwlth. 2008).


            In certain enumerated circumstances, the Act waives sovereign
immunity “for damages arising out of a negligent act where the damages would be
recoverable under the common law or a statute creating a cause of action if the
injury were caused by a person not having available the defense of sovereign
immunity.” 42 Pa.C.S. § 8522(a). Relevant, here, are the “pothole” and “real
estate” exceptions, which provide:

            (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 conditions described in paragraph (5).

                  (5) Potholes and other dangerous conditions.--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, except that the claimant to recover

                                      6
              must establish that the dangerous condition created a
              reasonably foreseeable risk of the kind of injury which
              was incurred and that the Commonwealth agency had
              actual written notice of the dangerous condition of the
              highway a sufficient time prior to the event to have taken
              measures to protect against the dangerous condition.
              Property damages shall not be recoverable under this
              paragraph.


42 Pa.C.S. §§ 8522(b)(4),(5) (emphases added). These exceptions “are clearly
written and create a very narrow exception to the defense of sovereign immunity
for damages caused by potholes.” Stevens, 492 A.2d at 493.


              By asserting that the “real estate exception” should apply, what
Plaintiff is actually contending is that a naturally occurring pothole must be treated
as distinct from the brick it happens to expose because, unlike that pothole, the
brick is man-made. However, what that ignores is that the brick only became
capable of causing Plaintiff’s injury after the naturally occurring pothole exposed
it. In other words, the exposed brick is “[a] dangerous condition of highways . . .
created by [a] pothole . . . created by natural elements . . . .” 42 Pa.C.S. §
8522(b)(5). Because the purported hazard derived from a naturally occurring
pothole, it falls within the ambit of 42 Pa.C.S. § 8522(b)(5). See Lacava v.
Southeastern Pennsylvania Transportation Authority, 157 A.3d 1003 (Pa. Cmwlth.
2017) (holding, in part, that an exposed trolley track was not a dangerous condition
of realty, but rather constituted a dangerous condition derived from a pothole).7

       7
           In her Reply Brief, Plaintiff contends that Lacava is inapposite because that case
involved a “purportedly dangerous condition derived from the depressed pavement, not from the
rail itself[,]” whereas here, the exposed brick is a dangerous condition that was a contiguous
cause of her injuries. 157 A.3d at 1015. However, the exposed track in Lacava was obviously a
(Footnote continued on next page…)

                                              7
              Accordingly, because Plaintiff failed to demonstrate that PennDOT
received actual prior written notice of the pothole or exposed brick in accordance
with 42 Pa.C.S. § 8522(b)(5), we affirm the trial court’s order granting PennDOT’s
motion for summary judgment.



                                            ________________________________
                                            DAN PELLEGRINI, Senior Judge




(continued…)

contiguous cause of the injuries alleged given that the case involved a scooter driver who was
injured when the wheels of his scooter struck an exposed trolley track. In any event, the exposed
brick, like the exposed track in Lacava, constitutes “[a] dangerous condition . . . created by a
pothole . . . .” 42 Pa.C.S. § 8522(b)(5).



                                               8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyshun Warrington                  :
                                   :
            v.                     : No. 359 C.D. 2017
                                   :
Commonwealth of Pennsylvania       :
and City of Philadelphia           :
                                   :
Tyshun Warrington                  :
                                   :
            v.                     :
                                   :
Commonwealth of Pennsylvania,      :
Department of Transportation       :
                                   :
Appeal of: Tyshun Warrington       :




                                  ORDER


            AND NOW, this 14th day of November, 2017, it is hereby ordered
that the order of the Court of Common Pleas of Philadelphia County entered on
February 21, 2017, is affirmed.



                                   ________________________________
                                   DAN PELLEGRINI, Senior Judge
