          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jaime Nardo,                             :
                                         :
                             Appellant   :
                                         :
               v.                        :   No. 2266 C.D. 2015
                                         :
City of Lebanon                          :   Argued: March 7, 2016


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                              FILED: April 6, 2016

      Jaime Nardo appeals from the Order of the Court of Common Pleas of
Lebanon County (common pleas) granting summary judgment to the City of
Lebanon (City) based on governmental immunity under the act popularly known as
the Political Subdivision Tort Claims Act1 (Tort Claims Act). On appeal, Nardo
argues that common pleas erred by: (1) refusing to consider Nardo’s allegation
that the City’s property at issue was a dangerous condition because of its defective
design; and (2) improperly granting summary judgment where it imposed a higher
burden on Nardo than required by the standard for summary judgment, record
evidence exists that demonstrates genuine issues of material fact, and summary
judgment was premature. Discerning no error, we affirm.

      1
          42 Pa. C.S. §§ 8541-8542.
      Nardo filed a negligence action (Complaint) against the City alleging that he
was standing next to a City-owned pool (Pool) when he slipped and fell, his big toe
caught in a scum gutter, and, as a result, he suffered, inter alia, a broken big toe
and severe cuts to that toe. (Compl. ¶¶ 8, 12, R.R. at 9a, 11a.) Nardo averred that
the scum gutter was broken and in an unsafe condition, or presented a dangerous
condition that the City knew of or should have known of. (Compl. ¶¶ 9-11, R.R. at
9a-11a.) Specifically, Nardo contended that the City was negligent in: (1) causing
or permitting the scum gutter to remain significantly broken posing an
unreasonable risk of injury; (2) causing or permitting the scum gutter to remain
significantly broken when it knew or should have known that the broken gutter
posed a hazard to those around the Pool; (3) failing to make a reasonable
inspection of the Pool, which would have revealed the existence of the broken
scum gutter, and allowing that dangerous condition to remain; (4) failing to ensure
that the scum gutter “was maintained in a safe condition to prevent injury”; (5)
failing to post a warning or other device warning people of the dangerous
condition; (6) failing to remedy the broken scum gutter to avoid injury; and (7)
“failing to maintain the [scum] gutter in a reasonably safe condition” to prevent
slipping and falling, as occurred in this case. (Compl. ¶¶ 10-11, R.R. at 9a-11a.)
      The City filed an Answer with New Matter, in which it asserted, inter alia,
governmental immunity under the Tort Claims Act. (New Matter ¶¶ 1-2, 6, R.R. at
20a.) Nardo replied to the New Matter, asserting that, while the Tort Claims Act
applied, it did not limit Nardo’s claim because his “injuries were caused by a
dangerous condition to property that [the City] owned, possessed, controlled and/or
maintained.” (Response to New Matter ¶¶ 1, 6, R.R. at 25a-26a.) Discovery
ensued and depositions were taken of, inter alia, Nardo, two lifeguards who were


                                         2
on duty the day of the incident, and the City employee who repaired the scum
gutter the day after the incident. The City filed its motion for summary judgment
(Motion) on June 1, 2015, to which Nardo responded. In his response to the
Motion, Nardo newly asserted that the design of the scum gutter was defective
rendering it a dangerous condition that caused his injuries. (Response to Motion ¶¶
7, 11, 30, 33-34, R.R. at 144a, 146a; Brief in Opposition to Motion at 4-8, R.R. at
153a-57a.)
      After hearing oral argument, common pleas first concluded that Nardo could
not rely on a claim of defective design because that claim had not been raised in
his Complaint, but was asserted for the first time in his response to the Motion.
Common pleas held that Nardo had consistently asserted that the scum gutter was
broken prior to his fall and the City was negligent in maintaining the Pool area, but
he had not previously averred that there was a defect in the scum gutter’s design.
As there were no facts in the record regarding the after-asserted design defect
claim, common pleas would not consider that allegation. Reading the real property
exception of Section 8542(b)(3) of the Tort Claims Act, 42 Pa. C.S. § 8542(b)(3),
in pari materia with the sidewalk exception (Section 8542(b)(7)), common pleas
granted summary judgment on the basis that the real property exception did not
apply. Common pleas stated that under these exceptions, the injury must be caused
by the defect in the land itself rather than the action of a third party, and the
depositions of the Pool lifeguards indicated that: the Pool area is routinely checked
every morning before the Pool opens and throughout the day; if an area is deemed
a risk, a lifeguard chair or cones were used to warn people to avoid the area, and
the property manager would be notified; and to the best of their knowledge, the
scum gutter was not broken prior to Nardo’s fall. Common pleas further observed


                                         3
that Nardo acknowledged that he did not notice whether the scum gutter was
broken before he fell. Based on this evidence, common pleas found that Nardo had
not supported his allegation that the scum gutter was broken before he fell and
caused his injuries. Therefore, common pleas concluded that Nardo could not
establish that his injuries were caused by a defect in the City’s real property, i.e., a
broken scum gutter, and it granted the Motion. Nardo now appeals to this Court.2
       When reviewing the grant of summary judgment, we apply the following
standards. “Summary [j]udgment is appropriate only where there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of
law.” Pritts v. Department of Transportation, 969 A.2d 1, 3 (Pa. Cmwlth. 2009).
“To successfully challenge a motion for summary judgment, a party must show
through depositions, interrogatories, admissions or affidavits that there are genuine
issues of material fact to present at trial.” Id. Stated differently, the “non-moving
party must adduce sufficient evidence on an issue essential to his case and on
which he bears the burden of proof such that a jury could return a verdict in his
favor.” Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). “Failure to
adduce this evidence establishes that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Id. When reviewing
the grant of summary judgment, this Court “must examine the record in a light
most favorable to the non-moving party, accepting as true all well-pleaded facts
and reasonable inferences” drawn from those facts.               Irish v. Lehigh County
Housing Authority, 751 A.2d 1201, 1203 n.4 (Pa. Cmwlth. 2000).


       2
         Our review of an order granting summary judgment is limited to determining whether
common pleas erred as a matter of law or abused its discretion. Irish v. Lehigh County Housing
Authority, 751 A.2d 1201, 1203 n.4 (Pa. Cmwlth. 2000).

                                              4
      At issue here is common pleas’ application of the Tort Claims Act to grant
summary judgment in the City’s favor.         The Tort Claims Act provides local
agencies governmental immunity from liability for any damages they cause to a
person or property. 42 Pa. C.S. § 8541. Under Section 8542(a), a local agency
shall be liable for injuries to a person or property if: (1) the damages would be
recoverable under common law or a statute creating a cause of action if the injury
were caused by a person without immunity under Section 8541; and (2) the injury
was caused by the negligent acts of the local agency or an employee thereof acting
within the scope of his office or duties with respect to one of the categories listed
in subsection (b). 42 Pa. C.S. § 8542(a). At issue here is the real property
exception in Section 8542(b) providing, in relevant part:

      (b) Acts which may impose liability.—The following acts by a local
      agency or any of its employees may result in the imposition of
      liability on a local agency:
      ....
      (3) Real property.—The care, custody or control of real property in
      the possession of the local agency, except that the local agency shall
      not be liable for damages on account of any injury sustained by a
      person intentionally trespassing on real property in the possession of
      the local agency.

42 Pa. C.S. § 8542(b)(3).      This exception, like the others, is to be narrowly
construed. Wilson v. Norristown Area School District, 783 A.2d 871, 875 (Pa.
Cmwlth. 2001).
      Nardo first argues that common pleas erred by finding that Nardo failed to
plead a claim based on the defective design of the scum gutter and that, in making
this claim, Nardo was alleging facts not of record to defend against the Motion
where the City did not ask for a more specific pleading, did not formally object or
raise a defense to the asserted design defect claim, and has not alleged that it would

                                          5
be prejudiced by having to address this claim. Nardo asserts that his pleadings,
which aver that he was injured by a dangerous condition on the City’s property and
that the scum gutter was hazardous, are broad enough to encompass a claim for a
dangerous condition based on a defective design. He maintains that he is permitted
to allege alternate theories, and may proceed on an alternate theory if discovery
provides factual support for such theory so long as the other side is given sufficient
notice of the theory. Department of Transportation v. Manor Mines, Inc., 565 A.2d
428, 431 (Pa. 1989); Pennsylvania Rule of Civil Procedure 1020(c), Pa. R.C.P. No.
1020(c) (causes of action may be pleaded in the alternative). Nardo further asserts
that he was not adding a new claim, but merely amplifying his existing general
claim that the scum gutter was hazardous, as permitted by Connor v. Allegheny
General Hospital, 461 A.2d 600, 602 (Pa. 1983) (stating “if the proposed
amendment does not change the cause of action but merely amplifies that which
has already been averred, it should be allowed even though the Statute of
Limitations has already run.”) (emphasis omitted).
      The City responds that common pleas correctly did not consider the design
defect claim because it was not included in the Complaint and was not raised until
Nardo’s response to the Motion, seven years after the incident and five years after
the statute of limitations had run. According to the City, the Complaint alleged
that Nardo was injured as a result of a dangerous condition that was caused by the
City’s failure to maintain and/or repair the broken scum gutter or warn its patrons
of the broken scum gutter. The City argues that Manor Mines and Connor, are
distinguishable because, in those cases, the plaintiffs were not attempting to add a
cause of action after the statute of limitations had run but relied on allegations
either already expressly contained in the complaint or generically included therein.


                                          6
      After reviewing the Complaint and the precedent, we conclude that common
pleas did not err. Our Supreme Court stated, in Aland v. P–G Publishing, 10 A.2d
5, 7 (Pa. 1940), that “[d]espite the increasing informality of modern practice, there
has been no substantial departure from the salutary rule that pleadings and proof
must conform sufficiently to enable a defendant to meet at trial the same cause of
action disclosed by the statement of claim.” However, this rule cannot be applied
to limit a plaintiff from choosing to prove only one of two alternate theories of
liability if the defendant has sufficient notice of both. Manor Mines, 565 A.2d at
431; Pa. R.C.P. No. 1020(c).
      Nardo’s reliance on Manor Mines and Connor to support his argument that
he could add the defective design claim in response to the Motion is misplaced
because these cases are distinguishable. In Manor Mines, DOT’s initial complaint
alleged that it was entitled to recover contract damages based on strict liability.
Manor Mines, 565 A.2d at 431. DOT subsequently amended that complaint, after
Manor Mines submitted new matter, to add a claim based on liability for causing
particular damage to the road in question and also reasserted the strict liability
theory. Id. This Court granted relief based on strict liability, and Manor Mines
appealed arguing that DOT had waived this theory by making certain admissions
upon which Manor Mines relied to its detriment. The Supreme Court affirmed,
holding, inter alia, that strict liability had always been an asserted theory in the
contract action and Manor Mines had sufficient notice to address either theory and
conduct discovery thereon. Id. at 431-32. In Connor, the Supreme Court held that
it was error not to allow amendment to the complaint in a medical malpractice
action and to grant summary judgment because the asserted amendment, which
occurred prior to trial, did not change the cause of action, but amplified one of the


                                         7
allegations of the original complaint, which included a general claim that the
defendants were negligent “in otherwise failing to use due care and caution under
the circumstances” and that due care in performing a barium enema could include
improper delay of necessary care. Connor, 461 A.2d at 602-03.
      In both Connor and Manor Mines, the initial complaints contained the
theory subsequently asserted or a general allegation of negligence against the
defendants, thereby making those theories and allegations part of the pleadings and
placing the defendants on notice that they would have to address and conduct
discovery thereon.     Nardo’s defective design claim was not included in his
Complaint, but asserted only in his response to the Motion. Unlike the initial
complaint in Connor, which included a general allegation of negligence against the
defendants upon which the plaintiff later expanded, Nardo did not plead a general
allegation of negligence against the City, but was very specific in his averments
regarding the nature of the City’s alleged negligence. Thus, the addition of the
defective design claim was not amplifying any existing pleading, but adding a new
basis for recovery after the statute of limitations had run.
      Moreover, “[t]o successfully challenge a motion for summary judgment,
[Nardo had to] show through depositions, interrogatories, admissions or affidavits
that there are genuine issues of material fact to present at trial.” Pritts, 969 A.2d at
3. Because the design defect claim was not raised previously, it was not addressed
in any of the materials elicited during discovery. Thus, there were no facts in the
record that supported Nardo’s new assertion of defective design for common pleas
to consider in ruling on the Motion.
      Nardo next argues that common pleas committed errors in granting the
Motion.    First, he asserts that common pleas applied the wrong standard for


                                           8
summary judgment by essentially requiring him to prove that his injury was caused
by a defect in the City’s real property. While this would be Nardo’s burden of
proof at trial, it was not his burden at this stage of the proceedings. Instead, Nardo
contends, that the City had to establish that there were no genuine issues of
material fact, and common pleas had to resolve all doubts and all reasonable
inferences from the evidence, in Nardo’s favor. Nardo points to his deposition
testimony that his “toe got caught in the gutter . . . that was, like, cracked open,
so,” and to Lifeguard Nicole Miller’s deposition testimony that her report on the
day of the injury indicated that a broken gutter cut Nardo’s foot. (Nardo’s Dep. at
19-20, R.R. at 90a; Miller’s Dep. at 13-16, R.R. at 60a-61a.) This evidence,
according to Nardo, would support a factual finding, or at least the conflicting
inference, that the scum gutter was broken prior to Nardo’s fall and precludes
summary judgment.         Finally, Nardo argues that summary judgment here was
premature because there was no indication that discovery was closed, there were
no expert reports submitted, and the City did not explain why additional discovery
or expert reports could not establish the requisite dangerous condition created by
the alleged defect of the City’s property.3
       The City, for its part, asserts that Nardo’s issues related to applying the
wrong standard and the timing of the Motion are waived because they were not
raised in Nardo’s Concise Statement of Errors Complained Of filed pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P.

       3
         Nardo also argues that, per Hanna v. West Shore School District, 717 A.2d 626, 629
(Pa. Cmwlth. 1998), the real property exception and sidewalk exceptions are no longer to be read
in pari materia. Nardo is correct and, therefore, common pleas should not have considered these
two exceptions together. However, while common pleas indicated that it was reading the two
together, it did not rely on the “notice” provision of the sidewalk exception to grant summary
judgment. Accordingly, any error was harmless.

                                               9
1925(b) (1925(b) Statement). Even if not waived, the City argues that common
pleas did not misapply the summary judgment standard but held that Nardo could
not establish that the gutter caused him to fall or that the gutter was broken prior to
his fall and the Motion was timely filed because, inter alia, all of the written
discovery had been conducted and, in fact, it had been almost a year since the last
deposition had been taken when the City filed the Motion. Moreover, the City
asserts that Nardo would not be entitled to recover under common law, making any
exception inapplicable, because a common law negligence claim would require
him to prove that the City, the possessor of the land, knew, or by the exercise of
reasonable care should have known, of the danger. Carrender v. Fitterer, 469 A.2d
120, 123 (Pa. 1983); Restatement (Second) of Torts § 343 (1965). According to
the City, Nardo did not establish, based on the evidence presented, that the City or
any of its employees were aware of the alleged dangerous condition prior to the
accident or that the City did not act with reasonable care.
      Nardo’s 1925(b) Statement asserted that common pleas erred in holding as a
matter of law that Nardo’s injury was not caused by a defect in the City’s property
and granting summary judgment because: (1) “it refused to consider [Nardo’s]
allegation that the dangerous condition . . . was caused by a design defect”; and (2)
“material issues of fact remain regarding whether a defect existed in [the City’s]
property and whether the defect caused [Nardo’s] injuries.” (1925(b) Statement at
1-2, R.R. at 180a-81a.) Pursuant to Rule 1925(b)(4)(v), “[e]ach error identified in
the Statement will be deemed to include every subsidiary issue contained therein . .
. .” Pa. R.A.P. 1925(b)(4)(v). We conclude that the issues the City asserts were
waived constitute “subsidiary issues [that are] contained” within the issues
identified in Nardo’s 1925(b) Statement and, therefore, they are not waived.


                                          10
      However, common pleas did not misapply the summary judgment standard,
and the Motion was not untimely. First, common pleas concluded, essentially, that
Nardo did not adduce sufficient evidence to support a finding that a dangerous
condition of the City’s property existed at the time of his fall that caused his
injuries. This is what the non-moving party has to do in order to survive summary
judgment, Ertel, 674 A.2d at 1042; Pritts, 969 A.2d at 3, and Nardo misunderstands
the burden on summary judgment. Second, as pointed out by the City, it had been
almost a year since the last deposition was taken and there was no indication that
further discovery was going to occur when it filed its Motion. The Motion was
filed “after the completion of discovery relevant to the motion, including the
production of expert reports,” and included an assertion that Nardo, “who [bore]
the burden of proof at trial ha[d] failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would require the issues to be
submitted to a jury.” Pennsylvania Rule of Civil Procedure 1035.2(2), Pa. R.C.P.
No. 1035.2(2). Accordingly, the Motion was not premature.
      This leaves Nardo’s contention that summary judgment was not appropriate
because there are outstanding genuine issues of a material fact. Although Nardo is
correct that, in summary judgment proceedings, we must view the record in the
light most favorable to the non-moving party, Irish, 751 A.2d at 1203 n.4, Nardo
had to “show through depositions, interrogatories, admissions or affidavits that
there are genuine issues of material fact to present at trial,” Pritts, 969 A.2d at 3.
To establish that a genuine issue of material fact existed regarding whether the
scum gutter was broken prior to his fall, making it a dangerous condition of the
City’s property, Nardo relies on his deposition testimony indicating that his “toe
got caught in the gutter . . . that was, like, cracked open, so” and to Lifeguard


                                          11
Nicole Miller’s deposition testimony that her report on the day of the injury
indicated that a broken gutter cut Nardo’s foot. (Miller’s Dep. at 13-16, R.R. at
60a-61a; Nardo’s Dep. at 19-20, R.R. at 90a.) However, this evidence does not
provide any insight into when the gutter was broken and, thus, would not be
“sufficient evidence on an issue essential to his case and on which he bears the
burden of proof such that a jury could return a verdict in his favor.” Ertel, 674
A.2d at 1042. Nardo did not recall seeing whether the scum gutter was broken
prior to his fall. (Nardo’s Dep. at 22, R.R. at 91a.) The deposition testimony of
the lifeguards indicates that the lifeguards inspect the Pool and Pool deck daily to
identify dangers and, if found, they block the area and contact the property
manager to make the necessary repairs. (Miller’s Dep. at 11-12, 18-19, R.R. at
60a, 62a; Dubble’s Dep. at 17-19, R.R. at 77a-78a.) There was no evidence that
this area was blocked off on the day of the incident or that there had ever been a
situation where there was a broken scum gutter at the Pool, and the City’s
maintenance person’s deposition testimony indicated that the only time he ever
repaired a scum gutter was the day after Nardo’s slip and fall. (Miller’s Dep. at 15,
18-19, R.R. at 61a-62a; Dubble’s Dep. at 14-15, 17-19, R.R. at 77a-78a;
Kleinfelter’s Dep. at 19, R.R. at 128a.) Therefore, there was not any genuine issue
of material fact regarding whether there was a dangerous condition of the City’s
property that would preclude common pleas from granting summary judgment
based on the City’s assertion of immunity under the Tort Claims Act.4




       4
          Because of resolution of this issue, we need not address the City’s assertion that it was
entitled to summary judgment because Nardo did not establish that he would have had a common
law negligence claim due to the City’s lack of notice of the alleged dangerous condition.

                                                12
Accordingly, we affirm common pleas’ Order granting the Motion.




                                ________________________________
                                 RENÉE COHN JUBELIRER, Judge




                               13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jaime Nardo,                          :
                                      :
                       Appellant      :
                                      :
           v.                         :   No. 2266 C.D. 2015
                                      :
City of Lebanon                       :




                                   ORDER

     NOW, April 6, 2016, the Order of the Court of Common Pleas of Lebanon
County, entered in the above-captioned matter, is hereby AFFIRMED.




                                      ________________________________
                                       RENÉE COHN JUBELIRER, Judge
