Article: The Appellate Ladder Looks Inviting For Plaintiffs

The below article of mine appeared in the July 24, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion

The Appellate Ladder Looks Inviting for Plaintiffs


July 24, 2025

By

Daniel E. Cummins

Recent decisions from the Pennsylvania Supreme confirm that plaintiffs continue to a pendulum shift in their favor. Over the past year, the Pennsylvania Supreme Court was beginning to show signs of moderation relative to their previous line of trailblazing decisions that overturned years of precedent in a plaintiff-favorable manner.

However, with its recent decisions, the Pennsylvania Supreme Court has again expanded the rights of injured parties to recover and have even telegraphed to the plaintiffs bar how to secure additional victories in the future.

Recent Decisions by Pa. Supreme Court to Expand Ability to Recover

For nearly the past decade, the Pennsylvania Supreme Court has issued one decision after another in favor of plaintiffs' causes. The plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court overruled the then-12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa. Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Prior to Cagey, PennDOT was largely protected from any liability exposure relative to accidents involving guide rails. This decision expanded the ability of parties injured in highway accidents to include PennDOT in the lawsuit in the effort to seek an additional compensation.

In 2018, the Pennsylvania Supreme Court also expanded the ability of injured parties to seek recoveries by handing down another significant reversal of long-standing precedent. In the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Supreme Court liberalized the ability of injured parties to seek recoveries from governmental agencies.

The Supreme Court in Balentine overturned 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1). This ruling expanded the number of cases that would therefore fall within the scope of the exception to immunity. In other words, the ruling by the Pennsylvania Supreme Court allows more injured parties to seek a recovery against negligent governmental agencies.

A recent example of the Pennsylvania Supreme Court actually going too far in overturning long-standing defense-favorable precedent can be seen in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019). In Gallagher, the Pennsylvania Supreme Court overturned 20 years of precedent and held that the household exclusion found under automobile insurance policies was completely unenforceable as a matter of law across the board.

The Pennsylvania Supreme Court reiterated its plaintiffs-friendly stance on the household exclusion in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021). In Donovan, the court reaffirmed its previous decision in Gallagher v. GEICO and again held that plaintiffs need not worry about the household exclusion provision as it was invalid and, therefore, unenforceable.

The Gallagher decision threw the lower state and federal courts into a tizzy of conflicting decisions on whether the household exclusion should still be found to be enforceable under different factual scenarios.

Thereafter, without overtly acknowledging that the Gallagher decision went too far, the Pennsylvania Supreme Court walked back Gallagher’s complete eradication of the enforceability of the household exclusion in the case of Erie Insurance Exchange v. Mione, 289 A.3d 524 (Pa. 2023). In Mione, the Pennsylvania Supreme Court limited the Gallagher decision to its facts and agreed that the household exclusion did indeed remain valid and enforceable in at least certain circumstances.

The Pennsylvania Supreme Court also recently expanded the right of injured parties to recover in arbitration matters. In 2022, the court promulgated a new Rule that amended Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings. Under the new Rule 1311.1, the Pennsylvania Supreme Court increased the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” In most counties in Pennsylvania, the arbitration jurisdictional limit is $50,000. As such, the Pennsylvania Supreme Court essentially doubled the amount of money injured parties can potentially recover at trials following an appeal from an arbitration.

Recent Decisions That Limited Certain Defenses

In recent years, in addition to expanding avenues of recoveries for injured parties, the Pennsylvania Supreme Court has also benefited plaintiffs by limiting the scope of a wide variety of defenses in civil litigation matters.

In the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs were successful in convincing the Pennsylvania Supreme Court to limit the application of the sudden emergency doctrine. With this decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly where a plaintiff darts out within a crosswalk.

The Pennsylvania Supreme Court has also limited venue defenses by liberalizing the rules governing where a plaintiff may file their lawsuit.

In another the limitation of venue defenses, the Pennsylvania Supreme Court, in the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the Pennsylvania Supreme Court ruled that, given that the internet is available essentially everywhere, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file such claims in the most liberal courts in Pennsylvania if they deem that appropriate.

Back in 2022, the Pennsylvania Supreme Court undid a 20-year-old Rule of Civil Procedure and approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, plaintiffs now have wider options in terms of where they can file their medical malpractice lawsuits.

Hints at Moderation

In three recent decisions, all of which were expected to result in plaintiffs-favorable rulings, the Pennsylvania Supreme Court somewhat surprisingly went the other way.

As noted above, in the case of Erie Insurance Exchange v. Mione, 289 A.3d 525 (Pa. Feb. 15, 2023), the Pennsylvania Supreme Court limited its previous decision in Gallagher v. GEICO on the household exclusion to the facts of that case. The court in Mione instead held that the household exclusion could still be enforced under limited circumstances.

Another example of a recent Pennsylvania Supreme Court decision that seemed to signal moderation was the case of first impression of Franks v. State Farm Mutual Automobile Insurance, ___ A.3d ___ No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.). In Franks, the court addressed issues of the stacking of UIM coverage in the automobile insurance personal injury actions. The court ruled that an insurance company is not required to secure another written waiver of stacked coverage from an insured in certain circumstances and rejected the plaintiff’s argument to the contrary.

Also, in a 2024 decision that was surprising to some, the Pennsylvania Supreme Court upheld the continuing validity of the regular use exclusion in the case of Rush v. Erie Insurance Exchange, ___ A.3d ___, 77 MAP 2023 (Pa. 2024).

Not So Fast

Despite hints at moderation, other recent cases again confirm that the overall orientation of the Pennsylvania Supreme Court is to favor plaintiff’s causes in most civil litigation matters.

This is confirmed, in part, by the court’s decision in the case of Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). With this decision, the Pennsylvania Supreme Court greatly expanded the ability of plaintiffs to bring lawsuits against construction contractors for personal injuries sustained at a construction site. The court in Brown allowed such claims to be brought even if the contractor had completed his or her work on the property years before.

Also, in its recent decision in the case of Steets v. Celebration Fireworks (Workers' Compensation Appeals Board), No. 3 MAP 2024 (Pa. May 30, 2025), the Pennsylvania Supreme Court overturned decades of precedent regarding whether specific loss benefits are payable after an employee’s death from causes related to a work injury. In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect specific loss benefits.

Then, just last month, in the case of Jakmian v. City of Philadelphia, No. 266 EAL 2024 (Pa. June 11, 2025), the Pennsylvania Supreme Court denied an allowance of an appeal in a civil litigation matter, but Justice Kevin Dougherty issued a concurring opinion that invited plaintiffs to attempt to bring issues regarding the analysis of an exception to sovereign immunity back up the appellate ladder again so that the court could properly review the law on this topic.

In Jakmian, the plaintiff suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that had been out of use for decades. The claims presented raised issues related to applicability of the real estate exception to the Sovereign Immunity Act.

In his concurring opinion, Dougherty seemed to signal that, if the issue were properly before the court, he would have ruled in a fashion that favored the injured party. However, he felt “constrained to agree that an allowance of an appeal is not warranted here.” Yet, Dougherty also wrote “nevertheless, I note my future willingness to explore the issues implicated herein if they arise in a more appropriate case.”

In the end, a review of recent jurisprudence in Pennsylvania confirms that the Pennsylvania Supreme Court is not only routinely ruling in favor of plaintiff’s causes but also seemingly inviting the plaintiffs bar to bring more issues up the appellate ladder for the court to consider. Now’s the time for the plaintiffs bar to get whatever important issues they can up to the Supreme Court as often as they can so as to make “good” law. Now is also the time for the defense bar and the carriers to resolve as many of those cases before they reach the Pennsylvania Supreme Court so as to avoid the creation of “bad” law.

Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.

Reprinted with permission from the July 24, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Commonwealth Court Rejects Plaintiffs Efforts to Place the Actions of SEPTA Officials As Being Outside of the Protections of Sovereign Immunity

In the case of White v. McGill, No. 186 C.D. 2024 (Pa. Cmwlth. June 30, 2025 Fizzano Cannon, J., Wolf, J., and Leadbetter, S.J.) (Op. by Fizzano Cannon, J.), the Commonwealth Court reversed a trial court’s Orders following a trial and remanded the case back to the trial court for a substantial molding downward of the verdict.

In this case, the appellate court cut a $4.65 million dollar bus crash verdict by 90% and reduced the award to $485,000.

According to the Opinion, this case arose out of an incident during which a mother and her son were struck by a SEPTA bus while walking across the street. The Plaintiffs alleged that the accident, which resulted in fatal injuries to the mother and injuries to the son, was caused by the bus driver’s negligence.  The Plaintiffs also claimed negligence on the part of SEPTA officers who allegedly allowed the continued use of an allegedly dangerous mirror system on the buses that created blind spots for its drivers.

The Plaintiffs otherwise contended that their claims against the officers of SEPTA were not subject to the sovereign immunity that would ordinarily limit the agency’s civil liability.

The appellate court rejected the Plaintiff’s argument that SEPTA and its officers had acted outside the scope of their statutory authority and were, therefore, not entitled to a protections usually afforded to state agencies under Pennsylvania’s Sovereign Immunity Act.

Anyone wishing to review a copy of this decision may click this LINK.

Source: Article – “Philadelphia Appeals Court Slashes $4.65M Bus Crash Verdict By 90% By Aleza Furman of The Legal Intelligencer (July 1, 2025).

Source of image:  Photo by Nellie Adamyan on www.unsplash.com.

Pennsylvania Supreme Court Rules that NJ Transit is Entitled to Sovereign Immunity

In the case of Galette v. New Jersey Transit, No. 4 EAP 2024 (Pa. March 12, 2025) (Op. by Brobson, J.), the Pennsylvania Supreme Court addressed a denial of a Motion to Dismiss filed by Defendant, New Jersey Transit, based upon a claim of interstate sovereign immunity.

According to the Opinion, the Plaintiff commenced a lawsuit against certain Defendants that included New Jersey Transit in the Court of Common Pleas of Philadelphia County.

The Plaintiff alleged that he was injured when a vehicle he was in was struck by a New Jersey Transit vehicle during an accident that occurred in Philadelphia.

After the lawsuit was filed, New Jersey Transit, as an instrumentality of the State of New Jersey, filed a Motion to Dismiss the suit and invoked interstate sovereign immunity.

The trial court denied the motion. On appeal to the Superior Court, the Superior Court affirmed the trial court’s decision after finding that New Jersey Transit was not instrumentality or arm of the State of New Jersey and, therefore, was not entitled to sovereign immunity protections.

The Pennsylvania Supreme Court reversed and found that New Jersey Transit was indeed an arm of the State of New Jersey and, therefore, an instrumentality of that state. The court noted the statutory classification of New Jersey Transit as an instrumentality of the State of New Jersey, the degree of control that the state exercised over New Jersey transit, and the Defendant’s core function of providing public transportation, which is a governmental function.

The case was remanded for further proceedings.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Michael Cognetti and Kristin Mutzig for bringing this case to my attention.

Is There Liability Against PennDOT if a Tree Falls on a Passing Motorist?

In the case of Schmidt v. Pennsylvania Dept. of Transp., No. 33 C.D. 2023 (Pa. Cmwlth. Oct. 11, 2024 Jubelirer, P.J., Dumas, J., and Wolf, J.) (Op. by Dumas, J.), the Pennsylvania Commonwealth Court reversed a trial court Order and remanded the case with instructions that summary judgment be entered in favor of PennDOT based upon sovereign immunity. 

According to the Opinion, the subject accident involved a Plaintiff who sustained fatal injuries after the branch of a large tree, which was overhanging the roadway, fell and crushed his vehicle as the Plaintiff drove by.

According to the Opinion, the tree was planted on property owned by the Southeastern Pennsylvania Transportation Authority. The court noted that, although the branches of the tree extended over the road and PennDOT’s right-of-way, the base of the tree was located outside of PennDOT’s right-of-way.

Accordingly, the appellate court found that PennDOT was entitled to sovereign immunity under claims against it where the tree did not derive, originate from, or have as its source any PennDOT real estate.

The court held that the case therefore did not fall under the real estate exception to the sovereign immunity allowed for under the Sovereign Immunity Act, 42 Pa. C.S.A. §8501-8564.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Nov. 5, 2024).

Source of image:  Photo by Efrem Efre on www.pexels.com.

Vehicle Exception to Commonwealth Immunity Reviewed by Commonwealth Court

In the case of Brown-Boyd v. SEPTA, No. 1167 C.D. 2022 (Pa. Cmwlth. July 15, 2024 Wojcik, J., Wallace, J., Leavitt, S.J.) (Op. by Wallace, J.), the Commonwealth Court affirmed the trial court’s decision denying SEPTA's Motion for Summary Judgment which was based on an argument that SEPTA was immune from suit under the Political Subdivision Tort Claims Act.  

In this case, the Plaintiff prevailed in convincing both the trial court, and the Commonwealth Court on appeal, that the facts implicated the vehicle exception to the immunity provided by the Act.

The vehicle exception to the general rule of immunity for municipal defendants provides that a Commonwealth entity may be found liable for acts resulting in damages caused by the "operation of any motor vehicle in the possession of a Commonwealth party."  See 42 Pa.C.S.A. Section 8522(b)(1).

The appellate court here affirmed the trial court's finding that the defendant bus driver was “operating” a bus for purposes of the motor vehicle exception of the sovereign immunity statute when the bus driver stopped to allow the Plaintiff to exit and allegedly refused to lower the bus’s handicap ramp which allegedly resulted in the Plaintiff falling and being injured. 

The appellate court noted that, under established case law, the “operation” of a motor vehicle covers more than simply moving the vehicle. Instead, this term also covers a variety of activities as well as the decision-making processes related to moving a vehicle.

The court primarily relied upon the plain language of the statute and the Pennsylvania Supreme Court’s discussion of the statute in the case of Balentine v. Chester Water Auth., 191 A.3d 799 (Pa. 2018). 

The court noted that, under this legal authority, the “operation” of a vehicle under this exception would include both acts and failures to act, including the Defendant bus driver’s allegedly failure in this case to lower the handicap ramp for the benefit of the Plaintiff.  In the end, the court found that the Defendant bus driver was “operating” the bus when the bus driver stopped to allow the Plaintiff to exit and allegedly refused to lower the handicap ramp.

As such, the appellate court concluded that the trial court did not err in denying the Defendants’ summary judgment motion pursuant to the vehicle exception to the sovereign immunity law.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert,” ww.Law.com (July 31, 2024).

Applicability of Jerk and Jolt Doctrine Addressed by Court

In the case of Thomas v. SEPTA, June Term, 2020 No. 1431 (C.P. Phila. Co. Feb. 7, 2024 Powell, Jr., J.), the court addressed the applicability of the “jerk and jolt” doctrine in a case involving a Plaintiff who fell on a SEPTA bus when the bus stopped abruptly and her leg was caught in a baby stroller that was in the aisle.

The court generally noted the jerk and jolt doctrine applies as an exception to sovereign immunity when an individual testifies that they were injured when a car or bus jerked suddenly or violently. Under this doctrine, the Plaintiff must show that the jerk or jolt had an extraordinarily disturbing effect on other passengers or that the manner or occurrence of the accident or its effect on the Plaintiff inherently established the unusual or extraordinary character of the jerk or jolt.

In this Rule 1925 Opinion addressed to the Superior Court, the trial court stated that, in this case, the Plaintiff testified that the stroller caused her to fall after the bus driver slammed on the brakes and the Plaintiff’s foot got caught in the stroller.

The trial court concluded that the jerk and jolt doctrine did not apply and that it was up to the jury to otherwise decide if SEPTA was negligent in deciding whether the bus was safe to operate with the aisle obstructed.

In its Rule 1925 Opinion, the trial court requested the Commonwealth Court to affirm its decision that the jerk and jolt doctrine did not apply and that the trial court had not abused its discretion in denying SEPTA’s Motions for Judgment Notwithstanding the Verdict entered by the jury.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Law.com: “The Legal Intelligencer Common Pleas Alert” (May 15, 2024).

Commonwealth Court Allows Pro Se Prisoner's Slip and Fall Claim To Go Forward

In the case of Pritchard v. Meintell, No. 49 C.D. 2022 (Pa. Cmwlth. Jan. 10, 2024 Jubelirer, P.J., Cannon, J., and Ceisler, J.) (Op. by Jubelirer, P.J.), the Pennsylvania Commonwealth Court reversed in part and affirmed in part a lower court’s decision sustaining a Defendant’s demurrer to a prisoner pro se Plaintiff’s slip and fall action on the basis of sovereign immunity.

According to the Opinion, the appellate court found that the trial court erred in finding that the real estate exception did not apply. The trial court was also found to have erred in ruling that sovereign immunity barred the pro se prisoner’s action for his slip and fall injuries.

The court noted that, in alleging that the Defendants failed to maintain the slip/resistant surface on which he slipped, the inmate had adequately alleged an injury that was caused by a dangerous condition of Commonwealth real estate.

The court otherwise found that the inmate’s other negligence claim that were not connected to the negligent maintenance claim were barred under Pennsylvania law.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 30, 2024).

Alleged Negligence Regarding Pedestrian Crossing Sign Found to Fall Within Real Estate Exception to Sovereign Immunity

In the case of Estate of Patterson v. Rockefeller Group Int. Inc., No. 2022-CV-0060 (C.P. Leh. Co. Aug. 22, 2022 Johnson, P.J.), the court found that a Plaintiff’s wrongful death claim against PennDOT was not barred by the sovereign immunity doctrine where the Plaintiff alleged that an artificial condition in the form of an allegedly non-functioning pedestrian crossing sign along a highway that was allegedly under the control of PennDOT was the cause of the Plaintiff’s injuries.

The Preliminary Objections filed by PennDOT in his case were denied in part and sustained in part.

The Plaintiff alleged that the decedent was struck and killed by a motor vehicle while crossing an intersection on a street undergoing a road-widening project. The Plaintiff alleged that the decedent was crossing the road in an area that PennDOT was responsible for and in which the pedestrian crossing sign had inoperable flashing yellow lights that were covered.

In response to PennDOT’s efforts to have the case dismissed under the Sovereign Immunity Act, the court found that the Plaintiff’s allegations of a breach of the Defendant’s duty to properly maintain a pedestrian crossing sign was an action in negligence that satisfied the first prong for defeating the Defendant’s assertion of sovereign immunity, i.e., the statement of a valid cause of action for negligence.

The court found that the second prong under the Sovereign Immunity Act required the Plaintiff to establish that the negligent act complained of fell within any of ten (10) exceptions to sovereign immunity.

Among its claims, the Plaintiff alleged that the Defendant PennDOT installed an item as part of its real estate, namely a pedestrian crossing sign adjacent to a public highway, in a manner that created a hazardous condition.

The court found that this allegation was sufficient to invoke the real estate exception to sovereign immunity. As such, the court found that the Plaintiff had stated a valid cause of action which was not subject to dismissal.

PennDOT also asserted that the Plaintiff’s claims of recklessness and willful indifference should be stricken because the Sovereign Immunity Act only allowed claims for negligence in certain circumstances.

The court found that the Defendant was correct in arguing that the Plaintiff’s claims are recklessness and willful indifference were legally invalid. Under the express terms the Sovereign Immunity Act, sovereign immunity is only waived in actions against the Commonwealth for damages arising out of negligent acts.

The court also reviewed the remainder of the Plaintiff’s allegations which allege various failures to act on the part of PennDOT. The court found that those claims were barred as it was well-established that claims against the Commonwealth based upon a failure to act are barred by the sovereign immunity doctrine.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 11, 2023).

Source of image:  Photo by Lukas Hartman on www.pexels.com.

Real Estate Exception to Immunity to PennDOT Applied in Case Where Tree Fell on Passing Motorist

In the case of Schmidt v. Penn. Dep’t. of Transp., No. 2019-CV-12057 (C.P. Montg. Co. Feb. 27, 2023 Saltz, J.), the court denied a Motion to Dismiss filed by PennDOT in a case involving a tree that fell upon a passing vehicle on a Commonwealth owned road.

PennDOT filed a Motion to Dismiss asserting sovereign immunity.

The court reviewed the real estate exception to sovereign immunity cases involving fallen trees.

The court noted that, while the Commonwealth of Pennsylvania is generally immune from suit, the Pennsylvania legislature had waived that immunity in certain limited instances as outlined in 42 Pa. C.S.A. §8522(b).  The exception applicable in this case applied to alleged dangerous conditions on the Commonwealth’s real estate, highways, and sidewalks.

In this matter, the court found that the applicability of the real estate exception depending not on the characteristics of the portion of the tree that constituted the dangerous condition, but on the location of that portion of the tree with respect to the Commonwealth’s property.

The court determined that the Plaintiff had properly asserted that the tree fell within the Defendant’s right-of-way.  As such, the court rejected PennDOT’s argument that the exception did not apply because only a portion of the tree fell within that right-of-way.

The court additionally noted that the Plaintiff’s evidence presented to date, which included expert testimony, implicated the real estate exception to the sovereign immunity afforded to the Commonwealth of Pennsylvania in this case.

As such, the Defendant’s Motion for Summary Judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 21, 2023).

Pennsylvania Superior Court Finds That NJ Transit Not Entitled To Sovereign Immunity Relative To Bus Accident in Pennsylvania

In the case of Galette v. N.J. Transit, No. 2210 EDA 2021 (Pa. Super. March 21, 2023 Bowes, J., Lazarus, J., and Olson, J.) (Op. by Bowes, J.), the court addressed whether the New Jersey Transit Corporation was entitled to sovereign immunity from a personal injury motor vehicle accident lawsuit arising out of an accident that occurred in Philadelphia.

The trial court had denied the Motion to Dismiss filed by N.J. Transit based upon an argument that that Defendant was an arm of the State of New Jersey and was protected by the state afforded governmental and sovereign immunities such that the Plaintiff’s Complaint was barred and should be dismissed.

On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the motion to dismiss.

N.J. Transit had asserted that the case against it should have been dismissed for lack of jurisdiction where N.J. Transit, as a foreign state entity, did not provide consent to be sued in another state and where that Defendant had rightfully asserted its state sovereign immunity protections under the United States Constitution.

After reviewing the history of the legal doctrine of sovereign immunity, which dates back to English common law, and after examining the relevant case law, including United States Supreme Court precedent, the Pennsylvania Superior Court rejected N.J. Transit’s arguments that it should be dismissed from the case.

The Superior Court noted that the issue of sovereign immunity often rises in the context of interstate lawsuits. The court noted that, under the law, it was not automatically incumbent upon one State to recognize the sovereign immunity of another State.

The court also noted that, although the State of New Jersey was not directly named as a Defendant in this suit, well-settled law holds that sovereign immunity does also extend to entities which are agents or instrumentalities of a state such that a lawsuit brought against the entity would, for all practical purposes, be considered to be a suit against the state itself.

As such, the court addressed the issue of whether N.J. Transit was an instrumentality of the State of New Jersey as it alleged.

The Superior Court noted that N.J. Transit relied upon a previous decision out of the Third Circuit Court of Appeals which had previously held that N.J. Transit does indeed qualify as an instrumentality of the State of New Jersey for purposes of sovereign immunity.

However, the Superior Court noted that the holdings of the Third Circuit are not binding upon the Pennsylvania Superior Court.

Turning to Pennsylvania’s own 6-part test on whether sovereign immunity should be applied, the court in this Galette case ultimately found that that test was not dispositive on the question.

As such, the court noted that it was required to address whether allowing N.J. Transit to be sued would thwart the two principal purposes of the Eleventh Amendment, that is, the protection of New Jersey’s dignity as a sovereign State and the protection of New Jersey’s Treasury against involuntary depletion of funds by virtue of lawsuits brought by private persons.

In coming to its ruling, the Pennsylvania Superior Court analogized cases that are brought against SEPTA, or the Southeastern Pennsylvania Transit Authority, in Pennsylvania. 

The court noted that, in such lawsuits, those suits proceed against SEPTA alone, as a wholly independent entity and without the involvement of the Commonwealth of Pennsylvania. As such, the Commonwealth cannot be subject to any Order of Court as a result of such a personal injury suit. Therefore, no right or interests of the Commonwealth would be affected by the outcome of any lawsuit against SEPTA in Pennsylvania courts. Consequently, personal injury lawsuits against SEPTA do not pose any danger that the Commonwealth itself would be involuntarily subject to and controlled by the mandates of the courts, without its consent, at the instance of private parties.

Based upon this analysis, the court in this Galette case found that the particulars of N.J. Transit’s status with respect to the State of New Jersey was similar. N.J. Transit was noted to be a distinct legal entity that is empowered to sue and to be sued in a capacity that is independent from the State of New Jersey.

The court found that there was no risk to the sovereign dignity of the State of New Jersey in permitting a suit against N.J. Transit to proceed. The court also noted that any potential judgment against N.J. Transit would not have any discernible impact on the New Jersey Treasury.

Based upon this analysis, the court found that the Plaintiff’s personal injury lawsuit posed no threat either to the sovereign dignity or the State Treasury of New Jersey. As such, the court concluded that N.J. Transit was not an arm of the State of New Jersey in this context. 

Consequently, the court ruled that N.J. Transit was not entitled to protections of sovereign immunity which it had asserted. Accordingly, the trial court’s denial of N.J. Transit’s Motion to Dismiss was affirmed by the Pennsylvania Superior Court in this Galette case.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Pennsylvania Civil Law Case Alerts,” Fastcase.com as provided by Pennsylvania Bar Association.

ARTICLE: Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes

This article of mine was recently published in the Pennsylvania Law Weekly on January 19, 2023 and is republished here with permission.

Pa. Supreme Court Decisions and Rule Changes Continue to Favor Plaintiff's Causes


By Daniel E. Cummins | January 19, 2023


For over the past five years or so, the plaintiffs bar has realized one important victory after another at the Pennsylvania Supreme Court level in terms of plaintiffs-friendly precedent and rule changes.

Like a well-oiled machine, after putting forth a sustained and organized effort to help to secure their favored candidates an election to the Pennsylvania Supreme Court, the plaintiffs bar has followed up by litigating issues important to plaintiffs up the appellate ladder to what has become the promised land for them in terms of repeated victories on issues important to injured parties.

With the pendulum of judicial thought at the Pennsylvania Supreme Court level having swung so far in the plaintiffs favor, it appears that the sky’s the limit for the plaintiffs bar to continue to alter the legal landscape in Pennsylvania for the benefit of injured parties for the foreseeable future, all of which is much to the dismay and chagrin of members of the defense bar.

Repeatedly Overturning Decades-Long Precedent

While the defense bar has realized some recent victories at the Pennsylvania Supreme Court level in terms of the overturning the scope of the long-arm jurisdiction statute, the limitation of discovery of peer review records in medical malpractice cases, and the limitation of attorney malpractice cases by the court’s adoption of the “occurrence” rule of liability, those victories have been blips on the radar as compared to the wealth of victories secured by plaintiffs. With this Pennsylvania Supreme Court and its judicial perspective, the plaintiffs bar has been repeatedly successful in convincing the court to overturn decades-long precedent that previously favored defendants.

For example, in Cagey v. PennDOT, 179 A.3d 458 (Pa. 2018), the plaintiffs bar convinced the Pennsylvania Supreme Court to overrule the long-followed and then 12-year-old Pennsylvania Commonwealth Court decision in Fagan v. Department of Transportation, 946 A.2d 1123 (Pa.Cmwlth. 2006), to hold that PennDOT should only be immune from suit in guide rail claims in limited circumstances. Under the prior Fagan decision there was essentially no liability on any claims against PennDOT relative to claims of negligence with respect to guide rails in state highway motor vehicle accident matters.

Ever since the Pennsylvania Supreme Court decision in the Cagey case, when PennDOT has installed a guide rail, sovereign immunity is waived if it is established by the plaintiff that the agency’s negligent installation and design created a dangerous condition that caused or contributed to the happening of a motor vehicle accident. This decision by the Pennsylvania Supreme Court kicked the door wide open for plaintiffs to again sue PennDOT in personal injury matters. While this decision is favorable for plaintiffs, the concern is that it will also continue to contribute to the ongoing increases of taxes and toll rates in order to pay for these additional personal injury lawsuits and awards against PennDOT.

In another reversal from a few years ago in the case of Balentine v. Chester Water Authority, 191 A.3d 799 (Pa. 2018), the Pennsylvania Supreme Court again assisted the plaintiffs bar in generating additional potential lawsuits by overturning 30 years of precedent with its holding that the involuntary movement of a vehicle can constitute an “operation” of a motor vehicle for purposes of the vehicle liability exception to governmental immunity under 42 Pa. C.S.A. Section 8542(b)(1).

In Balentine, the plaintiff’s decedent was working as a contractor on a water system project just off to the side of a roadway. A government inspector pulled up to the scene and parked his car and left it running. A third car struck the parked, stationary government inspector’s car and propelled that stationary vehicle into the decedent, resulting in fatal injuries.

The majority of the Pennsylvania Supreme Court reviewed the law behind the Tort Claims Act and held that movement of a vehicle, whether voluntary or involuntary, is not required by the statutory language of the vehicle liability exception in order for that exception to apply. With this ruling in favor of the plaintiff, the Pennsylvania Supreme Court eradicated 30 years of precedent going the other way and thereby exposed governmental agencies to additional litigation and liability, the costs of which will likely be passed on to citizens in the form of higher taxes.

As another example, in 2019, the plaintiffs bar finally realized success at the Pennsylvania Supreme Court level in their sustained efforts to overturn the household exclusion found in automobile insurance policies. After 20 years of failed attempts to secure a decision finding that the exclusion was invalid and therefore unenforceable, the plaintiffs bar finally prevailed in convincing this Pennsylvania Supreme Court to issue a stunning decision to overturn that long-standing precedent in the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019).

In an opinion with language that was seemingly hostile toward the insurance industry, the Pennsylvania Supreme Court did not limit its decision to the facts of the case before it, but rather, in a plaintiffs-friendly fashion attempted to set up its decision in Gallagher v. GEICO as entirely eradicating the household exclusion across the board.

While federal court judges addressing the validity of the household exclusion ever since Gallagher have largely followed the Pennsylvania Supreme Court’s mandate in favor of plaintiffs in this regard, some state court appellate and trial judges have limited the Gallagher v. GEICO decision to its facts and have noted that the household exclusion still remains valid and enforceable in certain circumstances.

Yet, the Pennsylvania Supreme Court has since reiterated its plaintiffs-friendly stance in the case of Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021), by reaffirming its previous decision in Gallagher v. GEICO and again ruling that plaintiffs need not worry about the household exclusion provision as it is invalid and, therefore, unenforceable. Whether other state and federal courts will follow this effort at the complete eradication of the exclusion or will, again, limit the Pennsylvania Supreme Court’s decision(s) to its facts, remains to be seen.

Sudden Emergency Doctrine

The plaintiffs bar rolled on to other areas of the law with additional successes at the Supreme Court level. With the case of Graham v. Check, 243 A.3d 153 (Pa. 2020), the plaintiffs convinced the Pennsylvania Supreme Court to somewhat limit the application of the sudden emergency rule in a manner that favors plaintiffs.

Under the long-standing sudden emergency doctrine, a defendant motorist is required to use an honest judgment in response to being faced with a sudden emergency on the roadway, such as a pedestrian negligently darting out from an area of safety and running out into the path of an oncoming vehicle without looking.

In Graham, which involved a pedestrian who was struck by the defendant motorist while the pedestrian was within a crosswalk, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine. The court stated that the evidence in the case failed to lay a foundation for the provision of that instruction to the jury.

In light of this plaintiffs-favorable decision by the Pennsylvania Supreme Court, it is likely that the application of the sudden emergency doctrine will no longer be automatically applied in dart-out pedestrian cases, particularly in the case of a pedestrian who was within a crosswalk at the time of an incident. As such, with this decision, the plaintiffs bar has been successful in securing a limitation of the application of this defense in motor vehicle accident matters.

Forum Shopping by Plaintiffs Permitted

In addition to limiting the defenses of tortfeasors and expanding the types of claims plaintiffs may seek a monetary recovery for, the plaintiffs bar has also been successful in convincing the Pennsylvania Supreme Court to repeatedly expand opportunities for plaintiffs to shop for the best forum to obtain the most liberal recovery possible.

In the case of Fox v. Smith, 263 A.3d 555 (Pa. 2021), the plaintiffs bar was successful in litigating the issue of proper venue in internet defamation cases and convinced the Pennsylvania Supreme Court to rule that internet-based defamation claims can be filed anywhere that the defamatory statements were viewed and understood as defamatory.

Since the internet is anywhere and everywhere, it appears that, under this ruling by the Pennsylvania Supreme Court, an internet defamation case may be filed anywhere in Pennsylvania, thereby allowing the plaintiffs to file in the most liberal courts in Pennsylvania, if desired.

As noted below, the Pennsylvania Supreme Court also supported the expansion of the plaintiffs’ ability to engage in forum shopping sprees in medical malpractice cases.

Plaintiffs-Friendly Rule Changes

In addition to securing the above-referenced plaintiffs-friendly decision on venue from the Pennsylvania Supreme Court, the plaintiffs bar has also had great success in convincing the Court to issue changes to long-standing Pennsylvania Rules of Civil Procedure on venue.

Under a Pennsylvania Supreme Court Order recently issued on Aug. 25, 2022, the court approved plaintiffs-favorable amendments to the medical malpractice venue rules. Under the new medical malpractice litigation venue rules, that went into effect on Jan. 1, plaintiffs will now be able to go on potentially lucrative forum shopping trips in terms of where they file their medical malpractice lawsuits.

These amendments undo a 20 year old Rule of Civil Procedure. Under the old rule, plaintiffs were required in medical malpractice cases to sue their medical providers in the counties where the treatment was completed.

Under the new rules, plaintiffs will be allowed to sue providers in any of the counties where the providers regularly do business or have significant contacts. With medical systems advertising on television and on the internet all across the commonwealth of Pennsylvania and also having satellite offices in many areas, the Pennsylvania Supreme Court has opened the door for Plaintiffs to choose to file their medical malpractice claims in courts that are considered to have the most liberal, plaintiffs-friendly jurors.

Commentators have noted a concern that this Rule change may result in higher insurance premiums for medical providers, which may lead or force some doctors to leave the commonwealth to practice medicine elsewhere. There is also a concern that medical provider defendants who may not be responsible will be added to lawsuits for the sole purpose of triggering jurisdiction in a liberal venue. Another concern is that the Philadelphia County and Allegheny County Courts of Common Pleas will now again face a deluge of medical malpractice cases involving treatment that was performed elsewhere.

The Supreme Court of Pennsylvania has also recently approved other plaintiffs-friendly changes to the Pennsylvania Rules of Civil Procedure. In an order that went into effect on July 1, 2022, the Pennsylvania Supreme Court put into place a new rule amending Pennsylvania Rule of Civil Procedure 1311.1, which applies to appeals from courthouse arbitration proceedings.

Under the new Rule 1311.1, the Pennsylvania Supreme Court upped the maximum limit on the amount of money that a plaintiff can recover in money damages at trial on appeal from an arbitration award.

Under the old rule, that limit was set at $25,000. Under the new rule, the maximum limit has been changed to “an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed.” While different judicial districts have differing jurisdictional limits for arbitration, most counties have their limit is capped at a maximum $50,000 under Section 7361 of the Judicial Code.

The Sky’s the Limit

With this Pennsylvania Supreme Court, it appears that the sky’s the limit for the plaintiffs bar to try to effectuate additional changes in Pennsylvania law for the benefit of plaintiffs.

What other decades long-standing precedent and rules that may be changed by the Pennsylvania Supreme Court for the benefit of plaintiffs remains to be seen. The plaintiffs bar has raised challenges to the Fair Share Act in terms of whether it should be applied to innocent plaintiffs who bear no contributory negligence with regards to the happening of an accident. The plaintiffs bar also has their sights set on overturning the regular use exclusion found in motor vehicle policies and that issue is currently pending before the Pennsylvania Supreme Court.

Relative to the current makeup and judicial perspective of the Pennsylvania Supreme Court, there certainly has never been a better time to be a plaintiff or a plaintiffs lawyer in Pennsylvania. Only time will tell what additional expansions of the avenues of recovery for injured parties and what limitations on defenses the plaintiffs bar will be able to accomplish and realize at the Supreme Court level while the pendulum remains so far over on their side of the bar.


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

Judge Williamson of Monroe County Finds that Transit Authority Had No Duty Where Plaintiff Assumed Risk of Injury

In another decision out of the case of Essington v. Monroe County Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority in a matter where a Plaintiff was injured after exiting a bus at a bus stop and being struck by an oncoming vehicle under nighttime conditions.

According to the Opinion, the Plaintiff alleged that the Defendant, Monroe County Transit Authority, was negligent relative to the selection of the location of the bus stop which was allegedly inherently dangerous.

The court applied the Sovereign Immunity Act, 42 Pa. C.S.A. §8542.

Under the Sovereign Immunity Act, local governmental agencies are not liable for damages unless (1) the damages would be recoverable under common law, and (2) the injury was caused by a negligent act of the local government of its agent that fell within one of the enumerated exceptions to tort immunity. 

One of the exceptions under 42 Pa. C.S.A. §8542(b)(1) includes accidents caused by the operation of any motor vehicle.

The Plaintiff based their claims for a recovery based upon an allegation that the location of the bus stop was dangerous and that the harm to the Plaintiff was a foreseeable risk.

The court agreed that the stopping of the bus at the bus stop for passengers to disembark was part of the operation of the bus that was owned by the governmental agency.

However, the court found that, based upon the evidence presented, the acts or omissions by the Monroe County Transit Authority were not the proximate cause of the decedent’s harm. While the Defendant chose the location of the bus stop, that Defendant was not responsible for the narrow shoulder, the lack of guardrails, sidewalks, lights, bus shelters, or cut-a-ways in the roadway for passengers to the cross the street.

Rather, the road was owned by PennDOT and the Monroe County Transit Authority had no control over the conditions of the roadway.

The court also noted that the record before the court also showed the decedent was wearing dark clothing during this nighttime accident and was also wearing headphones plugged into his phone when he was crossing street. 

As such, the court found that the allegedly defective conditions at the site did not cause the Plaintiff’s death. The court noted that wider shoulders, guardrails, sidewalks, lighting, a bus shelter, or a road cut-a-way would not have protected the decedent from the accident. 

Rather, the court stated, the accident occurred, according to the facts gathered during discovery, because the decedent was distracted and crossed the road in front of an oncoming vehicle under nighttime conditions. The court also noted that there was no evidence that better lighting in the area would have prevented the accident.

The court also agreed with the Defendant, Monroe County Transit Authority, that the bus stop was generally safe. There was no prior notice of any other accidents at the stop or that the bus stop was dangerous in any way.

The court additionally noted that the decedent did not have to get off at this stop. There were a total of five (5) stops in the area where the Plaintiff had disembarked. As such, the court found that the decedent assumed the risk of getting off at this particular stop, when he could have gotten off at other stops. As such, the court found that any duty that the Defendant, Monroe County Transit Authority may have had in this matter was extinguished by the actions of the decedent and his assumption of the risk of his injury.

As such, for these multiple reasons, Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority.

Anyone wishing to review a copy of this case may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 3, 2022).

Source of image: Photo by Darren Viollet from www.pexels.com.

Sovereign Immunity Supports Summary Judgment In Favor Of PennDOT Relative to Claims Regarding Placement of a Bus Stop

In the case of Essington v. Monroe County Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motion for Summary Judgment filed by the Defendant, PennDOT, in a case involving a pedestrian Plaintiff who had exited a bus and was struck while crossing the roadway under nighttime conditions.

The Plaintiff alleged that PennDOT was negligent by allowing a dangerous condition to occur on its property, i.e., the roadway. More specifically, the Plaintiff alleged that PennDOT was negligent in the planning, designing, controlling, locating, and designation of a bus stop on a state road in a manner that created dangerous conditions.

The Plaintiff also faulted PennDOT for failing to erect signs, lights, guardrails, bus shelters, crosswalks, or other features to protect disembarking bus passengers.

In granting the Motion for Summary Judgment, the court relied upon the Sovereign Immunity Act under 42 Pa. C.S.A. §8522(b). 

The court found that none of the exceptions under that Act were applicable to the case presented. The court emphasized that, in order for liability to attach to PennDOT, a dangerous condition must derive, originate, or have its source that the Commonwealth realty. This is also known as the real estate exception to Sovereign Immunity.

Judge David J. Williamson noted that the Plaintiff’s allegations did not implicate any alleged defects on the land itself. The court noted that, had PennDOT installed the items noted by the Plaintiff, and those items were defective in some manner, then PennDOT could be held liable. However, under Pennsylvania law, the failure to install the items noted by the Plaintiff did not implicate an exception to the immunity afforded the governmental agency under Pennsylvania law.

The court additionally noted that where the Co-Defendant, Monroe County Transit Authority, chose to have a bus stop was not a material defect of the real estate itself and was not a condition created by PennDOT. 

Rather, the Co-Defendant, Monroe County Transit Authority, was the entity that chose where to have their bus stops. The court noted that the Plaintiff did not produce any evidence that PennDOT played any part in the decision to allow the bus stop in the area or any evidence that the business was a dangerous condition of the real estate itself.

The court also rejected the Plaintiff’s argument that PennDOT was negligent for allowing the bus stop to exist and in failing to take steps to inspect, discover, or correct any defects, or to ensure that the real estate was safe for its regular and intended use as a bus stop. The court ruled that the real property exception to the Sovereign Immunity Act only applies to a dangerous condition of Commonwealth real estate and not to negligent policies or activities regarding real estate. The court noted that a failure to inspect has been previously ruled in Pennsylvania to be a policy or an activity which is not within the real estate exception to the immunity statute.

The court also noted that the intended use of the road was as a roadway for vehicular traffic and not for the placement of bus stops. As such, any allegations by the Plaintiff regarding a lack of lighting, narrow shoulders, or safe pedestrian accommodations such as crosswalks, sidewalks, or pedestrian crossing signs, were found not to relate to the design of the roadway itself or to its use as a roadway. As such, those allegations did not serve to defeat PennDOT’s Motion for Summary Judgment. In sum, the court found that the Plaintiff’s expert had not offered any opinion that the roadway itself as designed, caused the accident.

For all of these reasons, and others, the court granted summary judgment in favor of PennDOT.

Anyone wishing to review this decision may click this LINK    


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 3, 2022).

Denial of Defense of Sovereign Immunity Immediately Appealable

In the case of Brooks v. Ewing Cole, Inc., No. 4 EAP 2021 (Pa. Sept. 22, 2021)(Op. by Mundy, J,), the Pennsylvania Supreme Court ruled that a claim of sovereign immunity was immediately appealable under the collateral order doctrine given that sovereign immunity was a complete production from suit, not just liability for damages.   

The court noted that the benefit of the immunity provided to a government agency would be irreparably lost if that entity were forced to litigate all the way through to a final judgment and then seek appellate review on its immunity claim.   

As such, the Pennsylvania Supreme Court ruled that a trial court order denying summary judgment on the issue of sovereign immunity was immediately appealable as a collateral Order.

Anyone wishing to review this decision may click this LINK.

Source: "Digests of Recent Opinions." Pennsylvania Law Weekly (Oct. 19, 2021).

Insufficient Lighting Found To Fall Under Real Estate Exception to Sovereign Immunity Where Tree Blocks Light from Light Pole

In the case of Wise v. Huntingdon County Housing Dev. Corp., No. 97 MAP 2019 (Pa. April 28, 2021 (Majority Op. by Baer, J.), the court ruled that insufficient lighting on a Commonwealth property relative to a slip and fall event could constitute a “dangerous condition” of the property for purposes of the real estate exception of sovereign immunity under 42 Pa. C.S.A. §8522(b)(4).   

According to the Opinion, the Plaintiff alleged that there was insufficient lighting on the property that occurred because of the location of a light pole near a tree, which was blocking the light from the light pole.  

Anyone wishing to review a copy of the Majority Opinion of this decision may click this LINK.

The Concurring Opinion by Justice Donohue can be viewed HERE.

The Concurring Opinion by Justice Wecht can be viewed HERE.

Snow/Ice is Not On/Of Real Estate for Real Estate Exception to Sovereign Immunity to Apply

Judgment was entered in favor of the Defendant in the case of Temple v. Housing Auth. of City of Meadville, No. AD 2020-243 (C.P. Crawford, Co. March 18, 2021 St. John, S.J.), which involved a slip and fall incident due to wintry conditions on the property of the Housing Authority of the City of Meadville. 

The Plaintiff allegedly fell on a driveway in her aunt’s housing complex due to snow that had allegedly come upon the driveway after being blown there by a snowblower operated by an employee of the Defendant.

The Housing Authority moved for summary judgment on the grounds that, as a Commonwealth of Pennsylvania agency, it had immunity from any tort claims under the Sovereign Immunity Act.

The Court emphasized within the opinion that the Plaintiff had conceded that the Housing Authority qualified as a Commonwealth entity and that the Sovereign Immunity Act, 42 Pa.C.S.A. Section 8521, et seq., applied.

The Plaintiff attempted to have this case read as falling under the real estate exception to immunity for the Defendant.

The Court analyzed the “on/of” distinction  under the real estate exception under the Sovereign Immunity Act as it related to snow and ice that had accumulated on the Housing Authority’s property. 

The Court noted that the case law of Pennsylvania has not interpreted the language of the Act regarding a “dangerous condition of Commonwealth agency real estate” to include substances, like ice or snow, that were merely lying on the real estate. The Court noted that the inapplicability of the real estate exception was the same even if the snow came upon the surface by being thrown there by a snowblower operated by an employee.

Ultimately, the Court determined the Plaintiff offered no facts that could prove that the snow and ice derived, originated from, or had the Commonwealth realty as its source.  Accordingly, the real estate exception to the immunity provided by the Act was found not to be implicated by the facts of the accident.

As a result, the Court ruled the Plaintiff’s claims and evidence were insufficient to abrogate the Housing Authority’s immunity under the Sovereign Immunity act.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Brian J. Murren and Attorney Jon McAnney of the Lemoyne, PA law firm of Tucker Arensberg, P.C. for bringing this case to my attention.

Supreme Court Reverses Law and Rules that PennDOT Not Immune From Suit For Negligent Installation of Guiderail

In the case of Cagey v. PennDOT, No. 36 WAP 2016 (Pa. Feb. 21, 2018)(Maj. Op. by Donohue, J.), handed down by the Pennsylvania Supreme Court yesterday, the Court expressly overruled Fagan and its progeny and held that PennDOT is only immune when it fails to install a guardrail.  The Court held that when PennDOT installs a guardrail, sovereign immunity is waived if the agency’s negligent installation and design creates a dangerous condition that causes or contributes to an accident. 

Although there are two Concurring Opinions, it appears that all of the Justices agreed on the ultimate holding of the case set forth above. 

Anyone wishing to review the Majority Opinion written by Justice Christine Donohue may click this LINK.

The Concurring Opinion written by Chief Justice Thomas G. Saylor can be viewed HERE.

The Concurring Opinion written by Justice David Wecht can be viewd HERE.

I send thanks to Attorney Scott Cooper for bringing this decision to my attention.

 

Summary Judgment Denied in Missing Stop Sign Case

In a recent trial court decision in the case of Tesla v. Neshanock Twp., No. 10647 of 2013, C.A. (C.P. Lawrence Co. Jan. 19, 2017 Motto, J.), the court found that a township was not entitled to summary judgment in an auto accident case where the township was found to have had constructive notice that a stop sign was missing prior to the time the accident occurred.  

 

According to the Opinion, due to the missing stop sign, a vehicle did not stop at the intersection, resulting in the Plaintiff’s vehicle being broadsided in the course of an automobile accident. 

 

The Plaintiff filed suit, in part, against the township, alleging that the township was negligent in failing to adequate inspect its traffic signs, failing to reinstall or replace the stop sign, failing to position the stop sign so that it would not be knocked down, and failing to install adequate lighting at the intersection.  

 

When the township claimed sovereign immunity, the Plaintiffs asserted that this case fell under an exception to that immunity law which exception applies if the government entity had actual or constructive notice of the alleged defect.  

 

According to the court's opinion, there was evidence in this case that the investigating police officer told the Plaintiff’s daughter at the scene of the accident that the stop sign had been missing because it had been knocked over by a truck earlier in the day, that this was a dangerous intersection, and that the police officer regularly patrolled the area.  The court found that the police officer was an agent of the township and, as such, his statements will be admissible.  

 

The court also found that, once the township had knowledge of the missing stop sign, the need to take steps to protect against this dangerous condition was immediate.   The dangers brought on by a missing stop sign due to the possibility that a driver would not be aware that the intersection was previously controlled by a stop sign was so great that the intersection needed to be protected immediately.  

 

There was also evidence presented in this case that the missing stop sign was a reoccurring situation at this particular intersection as it was a tight turn for trucks, which had caused multiple vehicles to knock over the stop sign previously. 

 

In light of all of these findings, including the finding that this was a busy intersection and that the stop sign had been down for a number of hours before the accident, the court found that there was sufficient evidence from which a jury could find that the township had constructive notice of the defect.  Accordingly, the township’s Motion for Summary Judgment was denied.    

Anyone wishing to review a copy of this case may click this LINK. 

 

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (February 14, 2017).