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Deborah Ann Nardella v. Southeastern Pennsylvania Transit Authority

November 30, 2011

DEBORAH ANN NARDELLA, APPELLANT
v.
SOUTHEASTERN PENNSYLVANIA TRANSIT AUTHORITY



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Submitted: July 15, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE COHN JUBELIRER

Deborah Ann Nardella appeals, pro se, from the Order of the Court of Common Pleas of Philadelphia (trial court) that granted the Motion for Summary Judgment (Motion) filed by the Southeastern Pennsylvania Transportation Authority (SEPTA)*fn1 on the basis that SEPTA enjoyed sovereign immunity because Ms. Nardella could not establish that the real estate exception to sovereign immunity, Section 8522(b)(4) of the Act commonly known as the Sovereign Immunity Act (Act), 42 Pa. C.S. § 8522(b)(4), applied in this matter. Ms. Nardella essentially argues that the trial court erred in granting summary judgment because: it improperly relied on the "on/of" test to determine whether the real estate exception applied here; SEPTA is not entitled to immunity because the dangerous condition derived, originated, or had as its source the Commonwealth realty, namely that SEPTA failed to properly maintain its platform by not applying melting agents to melt the ice that had accumulated on the platform; and Ms. Nardella is entitled to a "civil right to personal safety" or "general standard of care" that was not protected through the grant of summary judgment. (Ms. Nardella‟s Br. at 19.)

On or about November 4, 2009, Ms. Nardella filed a Complaint in Civil Action (Complaint) alleging, in relevant part, that she was injured on December 14, 2007, when she slipped and fell "upon ice and/or other underlying defective conditions on the platform" while attempting to board a train from Tacony Station‟s platform. (Compl. ¶ 7.) Ms. Nardella averred that she became lodged between the track and the platform and sustained numerous injuries. (Compl. ¶¶ 7, 10.) The Complaint alleged that SEPTA owned, managed, possessed, controlled, and was otherwise responsible for the maintenance of the platform, including the removal of ice and snow from the platform, and SEPTA was responsible for keeping the platform in good and safe condition so that the platform would not constitute a menace or danger to those lawfully using the platform. (Compl. ¶¶ 4-5.) Ms. Nardella averred that the accident was the sole result of SEPTA‟s recklessness and negligence and that this negligence was the sole and proximate cause of her injuries. (Compl. ¶¶ 8-9.) SEPTA filed an Answer with New Matter to the Complaint (Answer), in which it denied the Complaint‟s factual averments and raised, inter alia, its entitlement to the defense of sovereign immunity under Section 8521 of the Act, 42 Pa. C.S. § 8521. (Answer ¶¶ 22, 25.)

The matter proceeded to discovery, during which SEPTA deposed Ms. Nardella. During her deposition, Ms. Nardella testified that there was a platform and a wooden step that was used to step onto the train. (Nardella Dep. at 12-13, R.R. at 29a.) She stated that when she attempted to board the train on December 14, 2007, she "put [her] right foot up [onto the train from the wooden step] and [her] left foot slid on the ice and went towards under the train." (Nardella Dep. at 13, R.R. at 29a.) Ms. Nardella explained that, after her foot slipped, she landed on her back on platform. (Nardella Dep. at 16-18, R.R. at 30a-31a.) Lenard Malcom, a conductor on the SEPTA train Ms. Nardella attempted to board before falling, testified by deposition that he did not observe Ms. Nardella fall, but witnesses informed him that she slipped on the step, which he observed as being icy or frosty. (Malcom Dep. at 29-33, 38-39, R.R. at 77a-78a, 80a.)

Following Ms. Nardella‟s deposition, SEPTA filed the Motion, in which it conceded that it had sole responsibility for the Tacony Station and its platforms,*fn2 but asserted that, pursuant to Section 8522(b)(4) of the Act and Jones v. Southeastern Pennsylvania Transportation Authority, 565 Pa. 211, 772 A.2d 435 (2001), it was entitled to summary judgment because "[i]ce on a platform does not constitute a defective condition derived or originating from the real estate, and [Ms. Nardella‟s] claim therefore does not fall within any exception to sovereign immunity." (Motion ¶ ¶ 10, 12.)

Ms. Nardella submitted a brief in opposition to the Motion, asserting that summary judgment was not proper where she alleged that the wooden platform was inherently defective because SEPTA failed to properly maintain the platform, resulting in the dangerous condition. (Ms. Nardella‟s Brief in Opposition to Summary Judgment at 4-5, R.R. at 65a-66a.) The trial court agreed with SEPTA that it was immune from suit and, therefore, granted summary judgment in SEPTA‟s favor on October 13, 2010. Ms. Nardella appealed to the Superior Court, which transferred the matter to this Court. Thereafter, the trial court issued an opinion explaining that it granted the Motion because it was clear and free from doubt that the alleged dangerous condition here, an ice accumulation on platform, did not derive, originate or have as its source the Commonwealth‟s realty itself. (Trial Court Op. at 4.) Rather, the trial court held that this condition "derived from precipitation and near freezing temperatures." (Trial Court Op. at 4.) The trial court held that this matter was substantially similar to, inter alia, Lingo v. Philadelphia Housing Authority, 820 A.2d 859, 862 (Pa. Cmwlth. 2003) (holding that debris on a stairway did not fall within the real estate exception as it did not derive, originate or have the Commonwealth‟s realty as its source) and Kahres v. Henry, 801 A.2d 650, 654-55 (Pa. Cmwlth. 2002) (concluding that sovereign immunity was not waived where the plaintiff did not allege or present evidence that the dangerous condition, a snow mound that encroached on a portion of a roadway, had derived, originated, or had the Commonwealth‟s realty as the source of the condition).

Sovereign immunity derives from Article I, Section 11 of the Pennsylvania Constitution, which provides that "[s]uits may be brought against the Commonwealth in such a manner, in such courts and in such cases as the Legislature may by law direct." Pa. Const. Art. I, § 11. Sections 8521 and 8522 of the Act set forth the following regarding sovereign immunity:

§ 8521. Sovereign immunity generally

(a) General rule. -- Except as otherwise provided in this subchapter, no provision of this title shall constitute a waiver of sovereign immunity for the purpose of 1 Pa. C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise.

§ 8522. Exceptions to sovereign immunity . . . .

(b) Acts which may impose liability. -- The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity ...


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