D. Shirey v. BARTA & Berks County Assoc. for the Blind, Inc. ( 2019 )


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  •           IN THE COMMONEALTH COURT OF PENNSYLVANIA
    David Shirey,                           :
    Appellant                   :
    :
    v.                          : No. 356 C.D. 2017
    : Argued: March 12, 2019
    Berks Area Reading Transportation       :
    Authority and Berks County              :
    Association for the Blind, Inc.         :
    BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
    HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY PRESIDENT JUDGE LEAVITT                                 FILED: April 30, 2019
    David Shirey appeals an order of the Court of Common Pleas of Berks
    County (trial court) granting summary judgment to the Berks Area Reading
    Transportation Authority (BARTA) and the Berks County Association for the Blind
    (Association) in Shirey’s civil action. Shirey sought damages for injuries he
    sustained when he slipped and fell walking from the Association’s building to a
    vehicle operated by BARTA. For the following reasons, we affirm.
    Background
    Shirey’s complaint against BARTA and the Association alleged that on
    February 18, 2010, as he left the Association’s building and walked to BARTA’s
    paratransit van, he slipped and fell “when he was required to walk around a large
    mound of snow and ice which was on the [Association’s] sidewalk.” Complaint, ¶7;
    Reproduced Record at 6a (R.R. __). Shirey, who is partially blind, was employed
    by the Association at the time. His fall caused multiple injuries including facial
    scarring, a right-sided displaced nasal bone fracture, a depressed left frontal sinus
    fracture, and facial lacerations and contusions.
    The complaint asserted that BARTA had a duty to assist Shirey to
    “safely embark and disembark from its paratransit vans[,]” and the Association “was
    responsible for the repair, maintenance, and inspection of the real estate, walkways,
    and buildings … including the removal of snow and ice.” Complaint, ¶¶5-6; R.R.
    6a. However, on the day of Shirey’s fall, BARTA did not provide Shirey the
    assistance he needed to board the paratransit van, and the Association had not cleared
    the walkway of snow and ice so that Shirey could walk safely to the van. Complaint,
    ¶¶9, 12; R.R. 6a-7a. The complaint asserted that these acts and omissions of the
    defendants caused Shirey’s injuries. Complaint ¶¶11, 12; R.R. 7a.
    The complaint further alleged that Shirey underwent surgery which
    involved “a reduction of the nasal fracture and septoplasty” and suffered “injuries to
    his back; headache, fatigue, dizziness, nausea, severe emotional distress,
    embarrassment, loss of self-esteem, anxiety and other injuries which may not yet be
    fully diagnosed or manifested.” Complaint, ¶13; R.R. 7a. Shirey incurred, and
    continues to incur, medical expenses; his inability to “attend to his usual and daily
    duties and employment” contributed to his “financial detriment and loss.”
    Complaint, ¶15; R.R. 7a.       Shirey sought damages against BARTA and the
    Association in excess of $50,000, together with costs.
    On July 31, 2013, the Association filed a motion for summary
    judgment, asserting that Shirey failed to produce evidence that its negligence caused
    his fall. In support, the Association submitted the deposition testimony of Robin
    Armistead, the driver of the paratransit van, which Shirey had sought to board on the
    day of his fall. Armistead has worked for BARTA for 15 years as a van driver
    2
    transporting senior citizens and disabled people “door to door,” meaning, from the
    door of the building to the door of the van and vice versa. Notes of Testimony,
    2/12/2013, at 18 (N.T. __); R.R. 36a. Armistead testified that she had transported
    Shirey “quite a few times.” N.T. 31; R.R. 39a. She would “pull up [the van], go
    into the [Association building,]” and tell Rosann Strauss, Shirey’s supervisor, that
    she was there. N.T. 35; R.R. 40a. Armistead would then return to the vehicle to
    complete paperwork. Shirey would gather his belongings and wait in the lobby for
    Armistead to escort him to the van. Armistead testified that Shirey was “wobbly”
    and “needed somebody to hold his hand.” N.T. 50; R.R. 44a.
    Armistead testified that on February 18, 2010, she was scheduled to
    pick up Shirey and Christine, his coworker. While she was doing paperwork in her
    van, she heard “the door [of the Association] slam[.]” N.T. 50; R.R. 44a. She looked
    up and saw Shirey and Christine walking toward the bus. Shortly thereafter, Shirey
    fell. Armistead stated that Shirey “landed on the pavement[,]” but she could not
    recall the precise location. N.T. 47, 52; R.R. 43a, 44a. An Association employee
    called an ambulance. Armistead stated that Strauss never “left [Shirey] walk out by
    himself[,]” and she did not know “why that particular day she did not make him wait,
    because she knew I always came back in for him[.]” N.T. 36; R.R. 40a.
    Armistead testified that at the time of the accident, there was no snow
    or ice on the walkway; there was snow “on the grass.” N.T. 49; R.R. 44a. However,
    there was a “little piece [of the sidewalk] that was sticking up,” which she assumed
    caused Shirey to trip. N.T. 53; R.R. 45a. Armistead stated that she was not looking
    at Shirey’s feet when he fell.
    The Association submitted a report that Armistead had prepared after
    the accident, which stated that Shirey “triped [sic] on the side walk[.]” R.R. 59a.
    3
    The report also included a drawing done by Armistead that showed the location of
    the Association building relative to the van and the sidewalks. The diagram also
    showed a line of snow encroaching onto the walkway and the street.
    The Association submitted the deposition testimony of Strauss, who has
    been employed by the Association for 22 years. She stated that the Association
    “depended on BARTA to come and get [Shirey]” because Shirey “was a BARTA-
    transportation person.” N.T. 49; R.R. 114a. She would not let Shirey leave the
    building “until the BARTA person was in the building[.]” 
    Id. Strauss testified
    that
    she did not see Shirey leave the building on February 18, 2010, and did not see him
    fall. When someone “yelled [Shirey] fell[,]” she ran outside and saw Shirey laying
    “on the walk[way] close to the curb area.” N.T. 49-50; R.R. 114a. Strauss could
    not recall whether there was any snow on the sidewalk or “any of the environment
    at the time.” N.T. 50-51; R.R. 114a.
    The Association also supported its motion with the deposition
    testimony of Pamela Coldren, Shirey’s sister and legal guardian. Coldren testified
    that she asked Shirey what happened and “[h]e just said he fell.” N.T. 14; R.R. 65a.
    Coldren asked him if he “pick[ed] up [his] feet” and whether he was “looking
    straight ahead or down at the ground[,]” and Shirey stated that “he thought he was
    looking the right way.” N.T. 14-15; R.R. 65a. Shirey did not tell Coldren why he
    fell. Shirey was not deposed due to a short-term memory loss issue.
    In support of its summary judgment motion, the Association asserted
    that Shirey produced no evidence that snow and ice caused him to trip and fall; thus,
    there were no genuine issues of material fact to be submitted to a fact-finder.
    BARTA filed a motion for summary judgment on August 21, 2013,
    raising governmental immunity as an affirmative defense. BARTA argued that
    4
    Shirey could not establish that BARTA’s alleged negligent acts fell within one of
    the eight enumerated categories of acts for which immunity has been waived under
    what is commonly referred to as the Political Subdivision Tort Claims Act (Tort
    Claims Act), 42 Pa. C.S. §§8541-8564.1 Further, BARTA argued that Shirey’s claim
    for pain and suffering had to be dismissed because he did not sustain a “permanent
    loss of a bodily function.” 42 Pa. C.S. §8553(c)(2)(ii).2 In support, BARTA
    submitted a portion of Coldren’s deposition testimony, which indicated that Shirey
    has recovered from the injuries he sustained on February 18, 2010. BARTA also
    submitted an independent medical examination (IME) report of Dr. Menachem
    Meller, who opined that Shirey did not sustain a permanent injury or loss of bodily
    function due to the accident.
    1
    Section 8542(b) of the Tort Claims Act lists a series of exclusions to governmental immunity for
    specific categories of tort claims: (1) vehicle liability; (2) care, custody or control of personal
    property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities;
    (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa. C.S. §8542(b).
    2
    Section 8553(c) of the Tort Claims Act limits recoverable damages to the following six categories
    of losses:
    (1) Past and future loss of earnings and earning capacity.
    (2) Pain and suffering in the following instances:
    (i) death; or
    (ii) only in cases of permanent loss of a bodily function,
    permanent disfigurement or permanent dismemberment where the
    medical and dental expenses referred to in paragraph (3) are in
    excess of $1,500.
    (3) Medical and dental expenses including the reasonable value of reasonable and
    necessary medical and dental services, prosthetic devices and necessary ambulance,
    hospital, professional nursing, and physical therapy expenses accrued and
    anticipated in the diagnosis, care and recovery of the claimant.
    (4) Loss of consortium.
    (5) Loss of support.
    (6) Property losses.
    42 Pa. C.S. §8553(c) (emphasis added).
    5
    Shirey answered both motions for summary judgment and submitted an
    affidavit by Steven B. Coldren, Shirey’s nephew (Nephew). Attached to this
    affidavit were photographs of the area where the accident had occurred, which
    showed snow and ice encroaching onto the sidewalk. Nephew stated that he took
    those photographs on February 19, 2010, the day after the accident, and, “[i]f called
    to testify, [he] would testify that the conditions as shown in the attached photographs
    accurately reflect the conditions as they existed at or near the location of [Shirey’s]
    accident.” R.R. 120a.
    Shirey also filed a motion for leave to amend his complaint. On
    November 18, 2013, the trial court granted Shirey’s motion and directed that the
    amended complaint be filed within 20 days from the date of the order. Shirey did
    not file the amended complaint until August 4, 2014.3 By order dated August 4,
    2014, the trial court granted the Association’s motion for summary judgment. By
    order dated September 14, 2016, the trial court granted BARTA’s motion for
    summary judgment. Shirey appealed the trial court’s order on October 13, 2016.4
    Trial Court Opinion
    The trial court filed an opinion pursuant to Rule 1925(a) of the
    Pennsylvania Rules of Appellate Procedure, PA. R.A.P. 1925(a). The opinion
    explained that as a local agency, BARTA is entitled to governmental immunity
    unless the alleged acts of negligence fall within one of the eight categories set forth
    3
    The amended complaint alleged, inter alia, that Shirey slipped and fell “at or near the sidewalk
    at the [premises of the Association]; the [Association] and/or BARTA assum[ed] the responsibility
    for escorting Shirey down the sidewalk to the waiting BARTA van[;]” and the Association “had a
    responsibility to see to it that its business invitees were safe on its property, especially those having
    the physical challenges of Shirey.” Amended Complaint at 3-4, ¶¶ 10, 13, 14; R.R. 141a, 146a.
    4
    Shirey first appealed to the Superior Court. By order dated February 16, 2017, the Superior Court
    transferred the matter to this Court.
    6
    in Section 8542(b) of the Tort Claims Act, 42 Pa. C.S. §8542(b). Shirey did not
    establish that BARTA’s alleged negligence fell within any of those categories.
    Further, Shirey’s damages for pain and suffering were not recoverable under Section
    8553(c) of the Tort Claims Act, which requires proof of “permanent loss of a bodily
    function, permanent disfigurement or permanent dismemberment[.]” 42 Pa. C.S.
    §8553(c). Alternatively, the trial court explained that Shirey did not establish that
    BARTA was negligent because Shirey “voluntarily failed to wait for his escort and
    deviated from the normal practice between the parties.” Trial Court 1925(a) op. at
    5. For these reasons, the trial court held that BARTA was entitled to summary
    judgment.
    The trial court held that Shirey did not timely appeal the August 4,
    2014, order granting summary judgment to the Association. In any case, Shirey
    presented no genuine issues of material fact. Because Nephew did not witness the
    accident, the trial court dismissed his affidavit and photographs as “worthless.” Trial
    Court 1925(a) op. at 5-6. Likewise, Strauss did not observe Shirey fall; Shirey did
    not tell Strauss or his sister what happened; and Strauss testified that she did not
    observe any ice or snow. 
    Id. at 6.
    Simply, Shirey did not present sufficient evidence
    on causation, and “[a] fact-finder cannot engage in speculation to find an answer[.]”
    
    Id. at 6.
    The trial court did not consider Shirey’s amended complaint because it was
    filed after the trial court’s 20-day deadline. 
    Id. Appeal On
    appeal,5 Shirey argues that the trial court erred by granting summary
    judgment to BARTA and the Association because there exists a genuine issue of
    5
    This Court’s standard of review of a grant of summary judgment is de novo, and our scope of
    review is plenary. We apply the same standard for summary judgment as the trial court. Cochrane
    v. Kopko, 
    975 A.2d 1203
    , 1205 (Pa. Cmwlth. 2005). A grant of summary judgment is only
    7
    material fact about the cause of his fall. Armistead’s testimony that there was no
    snow or ice on the sidewalk was contrary to the diagram she drew immediately after
    the accident, which showed snow and ice encroaching on the sidewalk. Armistead
    further testified that there was an obstruction on the Association’s sidewalk when
    Shirey fell. Nephew’s affidavit and photographs also support Shirey’s allegation
    that Shirey’s fall was caused by the snow encroaching on the sidewalk. Further,
    both Armistead and Strauss testified that Shirey should not have been walking
    unescorted due to his visual impairment. Shirey asserts that there is ample evidence
    on which the factfinder could conclude that the acts or omissions of BARTA and the
    Association caused Shirey’s injuries.
    Shirey further argues that the trial court erred by concluding that his
    appeal of the August 4, 2014, order granting summary judgment to the Association
    was untimely. Only a “final order,” which “ends the litigation, or alternatively
    disposes of the entire case[,]” is appealable. Shirey Brief at 12 (quoting Pugar v.
    Greco, 
    394 A.2d 542
    , 544 (Pa. 1978)). Shirey asserts that it was not until the trial
    court granted summary judgment to BARTA that the order in favor of the
    Association became appealable.
    The Association responds that Shirey’s evidence consisted of “mere
    speculation,” as opposed to “direct proof,” of the cause of his fall. Association Brief
    at 7. Further, a jury cannot be permitted to engage in speculation or guess the cause
    of Shirey’s fall. The trial court thus did not err by granting summary judgment to
    appropriate where the “record clearly shows that there are no genuine issues of material fact and
    that the moving party is entitled to judgment as a matter of law.” Farabaugh v. Pennsylvania
    Turnpike Commission, 
    911 A.2d 1264
    , 1267 n.3 (Pa. 2006) (quoting P.J.S. v. Pennsylvania State
    Ethics Commission, 
    723 A.2d 174
    , 176 (Pa. 1999)).
    8
    the Association because the mere occurrence of an accident does not establish
    negligent conduct.
    BARTA responds that the trial court correctly held that Shirey’s
    negligence claim was barred by governmental immunity under Section 8541 of the
    Tort Claims Act, 42 Pa. C.S. §8541, because BARTA is a local agency. Further,
    Shirey’s damages for pain and suffering were not recoverable under Section 8553(c)
    of the Tort Claims Act because Shirey presented no evidence that he suffered a
    permanent loss of a bodily function.
    I. BARTA’s Summary Judgment
    We first address the trial court’s grant of summary judgment to
    BARTA. On appeal, Shirey does not challenge the trial court’s ruling that BARTA
    was entitled to governmental immunity under Section 8541 of the Tort Claims Act,
    or that his damages for pain and suffering were not recoverable under Section
    8553(c). Shirey argues, instead, that his evidence “developed to this point” indicates
    that “[e]ither one or both of the Defendants’ activities were the causation for [his]
    injuries such that a fact-finder could easily find negligence.” Shirey Brief at 12.
    Because Shirey’s complaint did not allege that BARTA’s action fell
    under an enumerated exception to governmental immunity under Section 8542(b) of
    the Tort Claims Act, and he does not raise any issue as to the trial court’s ruling on
    governmental immunity, we affirm the trial court’s order granting summary
    judgment to BARTA.
    9
    II. The Association’s Summary Judgment
    A. Timeliness of Appeal
    The trial court stated in its 1925(a) opinion that Shirey did not timely
    appeal its August 4, 2014, order granting summary judgment to the Association.
    This was error.
    The Pennsylvania Rules of Appellate Procedure state that “an appeal
    may be taken as of right from any final order of a governmental unit or trial court.”
    PA. R.A.P. 341(a). The purpose of limiting appellate review to final orders is “to
    prevent piecemeal determinations and the consequent protraction of litigation.”
    Hionis v. Concord Township, 
    973 A.2d 1030
    , 1034 (Pa. Cmwlth. 2009). A final
    order is defined as any order that:
    (1) disposes of all claims and of all parties; or
    (2) RESCINDED
    (3) is entered as a final order pursuant to paragraph (c) of this
    rule.
    PA. R.A.P. 341(b). Paragraph (c) provides in pertinent part:
    When more than one claim for relief is presented in an action,
    whether as a claim, counterclaim, cross-claim, or third-party
    claim or when multiple parties are involved, the trial court or
    other government unit may enter a final order as to one or more
    but fewer than all of the claims and parties only upon an express
    determination that an immediate appeal would facilitate
    resolution of the entire case. Such an order becomes appealable
    when entered. In the absence of such a determination and entry
    of a final order, any order or other form of decision that
    adjudicates fewer than all the claims and parties shall not
    constitute a final order.
    10
    PA. R.A.P. 341(c) (emphasis added).6
    Here, Shirey’s complaint asserted negligence claims against both
    BARTA and the Association. The trial court’s August 4, 2014, order granting
    summary judgment to the Association was not a final order because it did not
    “dispose[] of all claims and of all parties[.]” PA. R.A.P. 341(b)(1). Further, the trial
    court did not expressly identify it as a final order pursuant to PA. R.A.P. 341(c). The
    August 4, 2014, order did not become appealable until the trial court granted
    summary judgment in favor of BARTA on September 14, 2016.
    Because Shirey’s notice of appeal was filed within 30 days of the
    September 14, 2016, order, it was timely filed.7 Accordingly, the merits of both
    orders of the trial court are properly before this Court.
    B. Genuine Issues of Material Fact
    Finally, Shirey argues that the trial court erred by granting summary
    judgment to the Association because there exists a genuine issue of material fact as
    to the cause of his fall. “A motion for summary judgment may be granted only when
    there is no genuine issue of material fact and the moving party is entitled to judgment
    as a matter of law.” Flood v. Silfies, 
    933 A.2d 1072
    , 1074 (Pa. Cmwlth. 2007). A
    fact is material if it directly affects the disposition or the outcome of a case.
    Department of Environmental Protection v. Delta Chemicals, Inc., 
    721 A.2d 411
    ,
    416 (Pa. Cmwlth. 1998). A record that supports summary judgment will either
    6
    Likewise, the note to PA. R.A.P. 341 states: “Paragraph (c) permits an immediate appeal from an
    order dismissing less than all claims or parties from a case only upon an express determination that
    an immediate appeal would facilitate resolution of the entire case.” PA. R.A.P. 341, Note.
    7
    The note to PA. R.A.P. 341 further states, “[a] party needs to file only a single notice of appeal
    to secure review of prior non-final orders that are made final by the entry of a final order[.]” PA.
    R.A.P. 341, Note (citing Betz v. Pneumo Abex LLC, 
    44 A.3d 27
    , 54 (Pa. 2012)).
    11
    (1) show the material facts are undisputed or (2) contain
    insufficient evidence of facts to make out a prima facie cause of
    action or defense, and, therefore, there is no issue to be submitted
    to the fact-finder.
    Dibish v. Ameriprise Financial, Inc., 
    134 A.3d 1079
    , 1084-85 (Pa. Super. 2016)
    (quoting DeArmitt v. N.Y. Life Insurance Company, 
    73 A.3d 578
    , 585-86 (Pa. Super
    2013)). The right to judgment must be clear and free from doubt. In reviewing the
    grant of a motion for summary judgment, this Court must “view the record in the
    light most favorable to the non-moving party, and all doubts as to the existence of a
    genuine issue of material fact must be resolved against the moving party.” 
    Flood, 933 A.2d at 1074
    (quotations omitted).
    Here, Shirey’s complaint alleged that the Association was negligent in
    failing to clear the snow and ice from the sidewalk, which caused Shirey to trip and
    fall as he walked to the BARTA bus.8 Shirey referred to Armistead’s accident report,
    which included a diagram she drew showing snow encroaching onto the walkway
    and street. Further, Armistead testified that there was a “little piece [of the sidewalk]
    that was sticking up[,]” which she assumed caused Shirey to trip. N.T. 53; R.R. 45a.
    Shirey also submitted Nephew’s affidavit with photographs he took the day after the
    accident, which showed snow and ice encroaching onto the sidewalk.
    In Pennsylvania, the elements of negligence are: a duty “to conform to
    a certain standard of conduct for the protection of others against unreasonable risks;”
    the defendant’s failure to conform to that standard; “a causal connection between the
    conduct and the resulting injury;” and actual loss or damages to the plaintiff. R.W.
    8
    Shirey’s complaint did not allege that his fall was caused by a lack of supervision by the
    Association.
    12
    v. Manzek, 
    888 A.2d 740
    , 746 (Pa. 2005). The claim may be predicated on either an
    affirmative act, or a failure to act, that causes an injury.
    It is undisputed that at the time of the accident, Shirey was a business
    invitee, to whom the Association, as the owner of land, had a duty of care. Shirey
    produced evidence that, at the time of the accident, there was some snow and ice on
    the sidewalk.9 However, Shirey did not produce evidence that the snow and ice
    caused him to fall. This lack of evidence of causation was fatal to his case.
    In Houston v. Republican Athletic Association, 
    22 A.2d 715
    (Pa. 1941),
    the decedent died after falling down stairs at an athletic club. No one witnessed the
    fall; his widow sued and claimed that a splinter of wood on the edge of one of the
    steps caught the decedent’s foot, causing the fall. At the close of the plaintiff’s case,
    the trial court entered a compulsory nonsuit. Our Supreme Court affirmed, stating:
    In the absence of any direct proof as to the manner in which the
    accident occurred, the burden was on appellant to produce
    9
    We conclude that the grant of summary judgment is independently supported by the well-settled
    hills and ridges doctrine, which, as defined and applied by the courts of Pennsylvania, “is a
    refinement or clarification of the duty owed by a possessor of land and is applicable to a single
    type of dangerous condition, i.e., ice and snow.” Moon v. Dauphin County, 
    129 A.3d 16
    , 22 (Pa.
    Cmwlth. 2015) (quoting Morin v. Traveler’s Rest Motel, Inc., 
    704 A.2d 1085
    , 1087 (Pa. Super.
    1997)). The hills and ridges doctrine “protects an owner or occupier of land from liability for
    generally slippery conditions resulting from ice and snow where the owner has not permitted the
    ice and snow to unreasonably accumulate in ridges or elevations.” 
    Moon, 129 A.3d at 22-23
    (quoting 
    Morin, 704 A.2d at 1087
    ). To recover for a fall on ice or snow, an injured party must
    prove the following elements:
    (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of
    such size and character as to unreasonably obstruct travel and constitute a danger
    to pedestrians travelling thereon; (2) that the property owner had notice, either
    actual or constructive, of the existence of such a condition; and (3) that it was the
    dangerous accumulation of snow and ice which caused the plaintiff to fall.
    
    Moon, 129 A.3d at 23
    (quoting Mahanoy Area School District v. 
    Budwash, 604 A.2d at 1156
    , 1158
    (Pa. Cmwlth. 1992)). Here, Shirey did not present evidence that the Association had permitted
    snow and ice to accumulate over a period of time, or that it had created an unnatural accumulation.
    13
    evidence of circumstances “so strong as to preclude the
    possibility of injury in any other way, and provide as the only
    reasonable inference the conclusion” that her husband’s death
    was caused by the negligence of appellees in the manner
    alleged.... “Proving that an accident happened, or the existence
    of an opportunity for it to happen, in the manner alleged, is
    entirely insufficient to establish negligence…. Plaintiff must go
    further, and show not only defendant’s negligence, but that the
    injuries complained of were the result of such negligence….”
    While it may be that appellant’s hypothesis as to the cause of this
    regrettable accident is a plausible one, for all that appears from
    the evidence, the circumstances relied upon are at least equally
    consistent with theories of the case attributing the accident to a
    variety of causes, not excluded by the evidence, for none of
    which any of appellees could conceivably be held liable, as the
    court below has pointed out, including the possibility that the
    deceased may simply have tripped or stumbled, without such
    tripping or stumbling having any connection whatever with the
    defects in the steps complained of. Under these circumstances,
    a finding that the fatal injuries of appellant’s husband resulted
    from the negligence alleged would, at most, represent nothing
    but a mere guess or conjecture…. “Where a defendant is liable
    for only one of two or more equally probable causes and to say
    which is a mere guess, there can be no recovery.”
    
    Id. at 716
    (emphasis added) (quotations omitted).
    Here, as in Houston, no one witnessed Shirey fall. Neither Shirey nor
    Christine, the individual walking with him at the time of the accident, offered
    testimony on the mechanics of the accident. Shirey presented no other direct
    evidence to support the allegation that he fell due to snow and ice on the sidewalk.
    The circumstantial evidence, including Nephew’s photographs, is not “so strong as
    to preclude the possibility of injury in any way.” 
    Id. The circumstantial
    evidence
    “represent[s] nothing but a mere guess or conjecture[]” to the cause of Shirey’s fall.
    
    Id. A plaintiff
    cannot survive summary judgment when mere speculation would be
    14
    required for the jury to find in plaintiff’s favor. DuBois v. City of Wilkes-Barre, 
    189 A.2d 166
    , 167 (Pa. 1963); see also Fitzpatrick v. Natter, 
    961 A.2d 1229
    , 1241-42
    (Pa. 2008).
    Because Shirey’s evidence did not establish causation, he did not make
    a prima facie case of negligence. Stated otherwise, “there is no issue to be submitted
    to the fact-finder.” 
    Dibish, 134 A.3d at 1085
    . The trial court thus did not err in
    granting summary judgment to the Association.
    Conclusion
    Because Shirey’s complaint did not allege that BARTA’s action fell
    under an enumerated exception to governmental immunity under the Tort Claims
    Act, and he does not challenge the trial court’s ruling on governmental immunity,
    we affirm the trial court’s order of September 14, 2016, granting summary judgment
    to BARTA. Further, because Shirey has not demonstrated a genuine issue of
    material fact as to the cause of his fall, we affirm the trial court’s order of August 4,
    2014, as made final by the order of September 14, 2016, which granted summary
    judgment to the Association.
    _____________________________________
    MARY HANNAH LEAVITT, President Judge
    15
    IN THE COMMONEALTH COURT OF PENNSYLVANIA
    David Shirey,                         :
    Appellant                 :
    :
    v.                         : No. 356 C.D. 2017
    :
    Berks Area Reading Transportation     :
    Authority and Berks County            :
    Association for the Blind, Inc.       :
    ORDER
    AND NOW, this 30th day of April, 2019, the order of the Court of
    Common Pleas of Berks County, dated September 14, 2016, in the above-captioned
    matter, is AFFIRMED.
    _____________________________________
    MARY HANNAH LEAVITT, President Judge