           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jewel Lee Camacho,                           :
                Appellant                    :
                                             :
               v.                            : No. 390 C.D. 2017
                                             : ARGUED: December 4, 2017
West Chester Area School                     :
District                                     :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE J. WESLEY OLER, JR., Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE OLER, JR.                          FILED: December 27, 2017



               Jewel Lee Camacho appeals from the March 1, 2017 order of the Court
of Common Pleas of Chester County (trial court) that granted West Chester Area
School District’s (School District) motion for summary judgment pursuant to what
is commonly known as the Political Subdivision Tort Claims Act (Act), 42 Pa. C.S.
§§ 8541 - 8542.1 We affirm.


               On January 18, 2014, Camacho was leaving her granddaughter’s
cheerleading competition when she tripped and fell over a concrete parking barrier


       1
          Section 8541 of the Act provides that “except as otherwise provided in this sub-chapter,
no local agency shall be liable for any damages on account of injury to a person or property caused
by any act of the local agency or an employee thereof or any other person.” 42 Pa. C.S. § 8541.
or parking spot bumper that was located horizontally across a walkway on the
campus of West Chester East High School (Campus) in West Chester, Pennsylvania.
Camacho is alleged to have sustained significant and permanent injuries to her leg,
including a fractured tibia.


              The Campus parking barriers are not attached to the surface. They are
freely movable and removable. The barriers were designed to be removable so as
not to damage plows that are used to clear the drive areas. The students on Campus
move the parking barriers as pranks. Two people can easily move one parking
barrier. After the accident, in the spring of 2014, the School District removed the
parking barriers from the Campus parking lot.


              On June 10, 2015, Camacho filed a civil action in the trial court. On
November 22, 2016, the School District filed a motion for summary judgment. On
December 28, 2016, Camacho filed a response in opposition to the School District’s
motion. On January 18, 2017, the School District filed a sur reply to Camacho’s
response. On March 2, 2017, the trial court entered an order dated March 1, 2017
which granted the School District’s motion for summary judgment. Camacho now
appeals to this Court.2




       2
         Our standard of review is de novo and our scope of review is plenary. Leibensperger v.
Carpenter Technologies, Inc., 152 A.3d 1066, 1072 n. 6 (Pa. Cmwlth. 2016). Summary judgment
is proper when the record demonstrates that no genuine issue of material fact exists after an
examination of the record in the light most favorable to the non-moving party. Green Valley Dry
Cleaners, Inc. v. Westmoreland County Industrial Development Corp., 832 A.2d 1143, 1150 n. 5
(Pa. Cmwlth. 2003).
                                              2
             Initially, Camacho contends that the trial court erred in entering
summary judgment in favor of the School District when it determined that the
parking barrier at issue was not real property under Section 8542(b)(3) of the Act,
which provides for a real property exception to governmental immunity for injuries
arising out of “[t]he care, custody or control of real property in the possession of the
local agency.” 42 Pa. C.S. § 8542(b)(3).


             The real property exception applies when the actions of a “local agency
or its employees make the property unsafe for the activities for which it is regularly
used, for which it is intended to be used or for which it may reasonably be foreseen
to be used.” Moles v. Borough of Norristown, 780 A.2d 787, 791 (Pa. Cmwlth.
2001). This Court must look at the facts of the present case and, inter alia, compare
them to the facts of both Grieff v. Reisinger, 693 A.2d 195 (Pa. 1997) and Blocker
v. City of Philadelphia, 763 A.2d 373 (Pa. 2000), to determine which of their
approaches should be applied. Gillingham v. County of Delaware, 154 A.3d 875,
878-79 (Pa. Cmwlth. 2017).


             In Grieff, the Supreme Court looked at whether the injury was caused
by the care, custody, or control of the real property itself. The Supreme Court
determined that injuries caused by a fire chief’s negligence in removing paint by
spreading paint thinner across the floor, which caught fire and injured a bystander,
was within the real property exception to immunity as “care” of the property. Grieff,
693 A.2d at 197. Grieff is clearly concerned with the maintenance of the real
property itself. Id.




                                           3
             In Blocker, the Supreme Court determined that a bleacher that plaintiff
was sitting on when it collapsed was not a permanent fixture of the real estate but
was personalty and, thus, the immunity exception for real property in Section
8542(b)(3) of the Act did not apply. Blocker, 763 A.2d at 374-76. “Absent an
attachment to realty, a chattel remains personalty.” Id. at 375. Further, “only where
personalty has been attached to realty does the question of the parties’ intent become
relevant.” Id.


             Here, the facts of the case are more analogous to those of Blocker. The
injury did not involve maintenance of real property but an item placed on the real
property. Neither party suggests that the parking barrier was affixed to the realty. It
remained freely moveable and removable. “Absent an attachment to realty, a chattel
remains personalty.” Blocker, 763 A.2d at 375. Thus, because the parking barrier
was not affixed to the property, it remained personalty and the trial court did not err
in determining that the real property exception to governmental immunity in Section
8542(b)(3) of the Act did not apply.


             Next, Camacho contends that the trial court erred in entering summary
judgment in favor of the School District when it determined that the parking barrier
at issue was not a traffic sign or traffic control device under Section 8542(b)(4) of
the Act. 42 Pa. C.S. § 8542(b)(4).


             Section 8542(b)(4) of the Act provides an exception to governmental
immunity for:

             [a] dangerous condition of trees, traffic signs, lights or
             other traffic controls, street lights or street lighting systems
                                            4
             under the care, custody or control of the local agency,
             except that the claimant to recover must establish that the
             dangerous condition created a reasonably foreseeable risk
             of the kind of injury which was incurred and that the local
             agency had actual notice or could reasonably be charged
             with notice under the circumstances of the dangerous
             condition at a sufficient time prior to the event to have
             taken measures to protect against the dangerous condition.


42 Pa. C.S. § 8542(b)(4). “Official traffic-control devices” are defined in Section
102 of the Vehicle Code as “Signs, signals, markings and devices not inconsistent
with this title placed or erected by authority of a public body or official having
jurisdiction, for the purpose of regulating, warning or guiding traffic.” 75 Pa. C.S.
§ 102. A “traffic-control signal” is defined in Section 102 of the Vehicle Code as
“A device, whether manually, electrically or mechanically operated, by which traffic
is alternately directed to stop and permitted to proceed.” 75 Pa. C.S. § 102.


             Section 8542(b)(4) of the Act refers to traffic “signs” and “controls,”
not “devices.” 42 Pa. C.S. § 8542(b)(4); 75 Pa. C.S. § 102; see Pettineo v. City of
Philadelphia Law Department-Claims Division, 721 A.2d 65, 67-68 (Pa. Cmwlth.
1998). This Court determined in Pettineo that yellow nylon rope tied between trees
“to prevent travel altogether onto [the] Street” controlled traffic and was, therefore,
representative of an exception to immunity pursuant to Section 8542(b)(4) of the
Act. Pettineo, 721 A.2d at 68.


             Further, in Glenn v. Horan, 765 A.2d 426, 429-30 (Pa. Cmwlth. 2001),
this Court determined that a crosswalk was a traffic control device because the




                                          5
Vehicle Code3 defines “‘official traffic control devices’ as ‘…markings … for the
purpose of regulating, warning or guiding traffic.’” This Court concluded that a
crosswalk’s painted lines warn motorists that pedestrians may be crossing and, thus,
a crosswalk constitutes a traffic control within the meaning of Section 8542(b)(4) of
the Act. Id. In Ryals v. City of Philadelphia, 848 A.2d 1101 (Pa. Cmwlth. 2004),
this Court held, in accordance with Glenn, that the concrete headers and z-bricks that
form a crosswalk are a traffic control device.


                   On the other hand, in Garrett v. Moyston, 562 A.2d 386, 390-91 (Pa.
Cmwlth. 1989), this Court determined that a negligently designated bus stop does
not constitute a “traffic control” within the meaning of Section 8542(b)(4) of the Act
because a driver “cannot ‘obey the instructions of’ a bus stop.” In Miseo v. Ross
Township Police Department, 607 A.2d 806 (Pa. Cmwlth. 1992), this Court
determined that a flare is not an official traffic control device because it does not
specify any particular action that a driver must perform.


                   Importantly, this Court has further determined in Slough v. City of
Philadelphia, 686 A.2d 62 (Pa. Cmwlth. 1996), that a defective highway median,
which a pedestrian upon alighting from a bus tripped on, was not a traffic control
device pursuant to Section 8542(b)(4) of the Act. This Court stated that “[a] median
or island is a ‘traffic control’ in only the broadest sense of the term, acting merely as
a means of keeping one lane of travel from running into another.” Slough, 686 A.2d
at 65.




         3
             75 Pa. C.S. § 102.
                                             6
             In the present case, the concrete parking barrier is not situated on a
public roadway. Further, the concrete barrier, like the concrete median in Slough, is
a traffic control only in the broadest sense of the term, as its function is to delineate
the end of a parking space in a parking lot. The barrier is not a sign, signal, marking,
or device that was erected to regulate, warn, or guide traffic. It is merely placed as
a means of keeping one vehicle from protruding too far into another area or parking
space. The trial court did not err in determining that the parking barrier was not a
traffic sign or a traffic control device under Section 8542(b)(4) of the Act.


             Accordingly, we affirm the trial court’s order granting the School
District’s motion for summary judgment.



                                         __________________________________
                                         J. WESLEY OLER, JR., Senior Judge




                                           7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jewel Lee Camacho,                    :
                Appellant             :
                                      :
               v.                     : No. 390 C.D. 2017
                                      :
West Chester Area School              :
District                              :


                                    ORDER


               AND NOW, this 27th day of December, 2017, the order of the Chester
County Court of Common Pleas, dated March 1, 2017, in the above-captioned matter
is affirmed.




                                      __________________________________
                                      J. WESLEY OLER, JR., Senior Judge
