F.P. Polesky, Jr. and G. Polesky v. PennDOT and G.M. Smith

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fred Paul Polesky, Jr. and Gabriella :
Polesky, :
Appellants :
:
v. : No. 1250 C.D. 2020
: ARGUED: October 18, 2021
Commonwealth of Pennsylvania, :
Department of Transportation and :
Gene M. Smith :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 10, 2021
Fred Paul Polesky, Jr. and Gabriella Polesky (together, Poleskys) appeal from
the September 2, 2020 Order of the Court of Common Pleas of Beaver County (Trial
Court) granting the Motion for Summary Judgment (Summary Judgment Motion)
filed by the Commonwealth of Pennsylvania, Department of Transportation (DOT).
The Trial Court concluded that DOT was immune from suit under Section 8521(a)
of the Judicial Code, 42 Pa. C.S. § 8521(a), commonly known as the Sovereign
Immunity Act,1 and that the Poleskys failed to prove the applicability of an exception
to DOT’s immunity. We agree and, therefore, affirm the Trial Court’s Order.
1
Section 8521(a) of the Sovereign Immunity Act states: “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.” 42 Pa. C.S. § 8521(a). Our Court has explained the Sovereign Immunity Act’s
applicability to DOT as follows:
Background
On the evening of July 2, 2017, the Poleskys were traveling on State Road
151 (SR 151) in Hopewell, Pennsylvania, when a large tree fell onto the roof of their
sport utility vehicle (SUV). At the time of the accident, Ms. Polesky was driving the
SUV, and her father, Mr. Polesky, was seated in the back seat. Both Ms. Polesky
and her father suffered severe injuries as a result of the accident.
Gene M. Smith owns a parcel of land adjacent to SR 151. DOT had previously
acquired a highway right-of-way from Ms. Smith for SR 151. DOT’s right-of-way
extends 30 feet from the centerline of SR 151 on each side. The tree that fell on the
Poleskys’ vehicle was located on Ms. Smith’s property, three feet beyond DOT’s
right-of-way.
In July 2018, the Poleskys filed a Complaint against DOT and Ms. Smith
(together, Defendants), alleging negligence causes of action against both
Defendants. In their Complaint, the Poleskys averred:
8. . . . [Ms.] Smith was responsible for inspecting and maintaining the
trees and vegetation on [her] property.
9. . . . [DOT] maintained care, custody, ownership, control, and
jurisdiction over SR 151 in Hopewell Township, Beaver County,
Pennsylvania, including the cartway and right-of-way extending on
both sides of the cartway.
“DOT is an administrative agency of the Commonwealth and a ‘Commonwealth
party’ pursuant to [S]ection 8501 of the Judicial Code, 42 Pa.[]C.S. § 8501.
Commonwealth agencies, including DOT, are generally immune from tort liability
pursuant to [S]ection 8521(a) of the Sovereign Immunity Act, 42 Pa.[]C.S. §
8521(a).” Cowell v. Dep’t of Transp., 883 A.2d 705, 708 (Pa.[]Cmwlth.[]2005).
Thus, sovereign immunity is available to DOT as a defense in all actions, except
where the General Assembly has expressly waived it. Powell v. Drumheller, . . .
653 A.2d 619 ([Pa.] 1995).
Bubba v. Pa. Dep’t of Transp., 61 A.3d 313, 316 (Pa. Cmwlth. 2013).
2
10. . . . [DOT] was responsible for inspecting and maintaining the trees
and vegetation on or along SR 151, including the cartway and right-of-
way extending on both sides of the cartway and any trees posing a
danger to drivers on said roadway.
Compl. ¶¶ 8-10. The Poleskys alleged that both Defendants “knew or should have
known of the dead, dying and/or dangerous condition” of the tree. Id. ¶ 21. The
Poleskys further alleged that they suffered severe injuries “[a]s a direct and
proximate result of the individual, joint, several, and/or combined negligence[] [and]
carelessness[] . . . of Defendants . . . in causing, contributing to, and/or failing to
prevent [the tree] from falling onto [the Poleskys’] SUV.” Id. ¶¶ 26, 30; see Stip. to
Amend Compl. ¶ 1.2
In support of their negligence claims against DOT, the Poleskys averred:
39. The dangerous and/or hazardous tree was affixed to the
Commonwealth real estate and/or existed within the Commonwealth
right-of-way and therefore the tree existed on/in and was part of the
Commonwealth real estate, subjecting it to the real estate exception to
the [S]overeign [I]mmunity [A]ct, 42 Pa. C.S. § 8522(b)(4).[3]
2
The Poleskys eventually settled their negligence claims against Ms. Smith. The record
shows that Ms. Smith was 97 years old at the time of the accident, and, although she owned the
property on which the tree was situated, she no longer resided at that property. Reproduced Record
(R.R.) at 128, 353.
3
Section 8522(b)(4) of the Sovereign Immunity Act provides:
(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 shall not be raised to claims for damages caused by:
....
(4) Commonwealth real estate, highways and sidewalks.—A dangerous
condition of Commonwealth agency real estate and sidewalks, including
3
40. [DOT] permitted the existence of a dangerous and hazardous
condition within its right-of-way for SR 151, specifically a decaying,
dying, dead, hazardous, and/or unstable tree and/or limbs that created a
dangerous and hazardous condition for members of the public traveling
on and along SR 151, and is therefore liable for the injuries and
damages described herein.
Compl. ¶¶ 39-40; see id. ¶¶ 47-48.
In January 2018, DOT filed an Answer, New Matter, and Cross-Claim to the
Complaint (Answer). In its Answer, DOT denied the material averments of the
Complaint and averred that it was immune from liability under the Sovereign
Immunity Act. Answer ¶ 63. DOT also averred that none of the enumerated
exceptions to sovereign immunity applied to the Poleskys’ claims and that the
alleged dangerous condition did not derive or originate from Commonwealth realty.
Id. ¶¶ 62, 64.
In June 2020, after the completion of discovery, DOT filed its Summary
Judgment Motion, asserting that the Poleskys’ cause of action was barred by the
Sovereign Immunity Act. DOT alleged that the Poleskys failed to adduce sufficient
evidence to establish that their cause of action fell within an enumerated exception
to sovereign immunity and, therefore, their claims against DOT should be dismissed.
According to DOT, the Poleskys’ claims did not fall within the real estate exception
to sovereign immunity because the tree fell from a property that was owned by a
private individual, Ms. Smith. DOT asserted that for a purportedly dangerous
Commonwealth-owned real property, leaseholds in the possession of a
Commonwealth agency and Commonwealth-owned real property leased by
a Commonwealth agency to private persons, and highways under the
jurisdiction of a Commonwealth agency, except conditions described in
paragraph (5).
42 Pa. C.S. § 8522(b)(4) (emphasis added).
4
condition to fall within the real estate exception, the condition must derive or
originate from the Commonwealth realty itself. Thus, DOT asserted that the
evidence adduced during discovery established that the tree did not derive from
Commonwealth real estate, but was located on privately owned real estate.
In their Response to DOT’s Summary Judgment Motion, the Poleskys
asserted that DOT was not entitled to summary judgment because the real property
exception to sovereign immunity applied. The Poleskys claimed that the hazardous
tree was affixed to Commonwealth realty and/or existed within a Commonwealth
right-of-way, thereby falling within the real estate exception. Specifically, the
Poleskys asserted that the evidence adduced during discovery established that: (1)
the tree was located within DOT’s slope easement for SR 151,4 over which DOT had
custody and control; (2) DOT knew or should have known of the hazardous
condition posed by the decaying tree; and (3) DOT caused the decaying condition of
the tree.
In support of their claims, the Poleskys relied on a March 2020 expert report
prepared by engineer Mark W. Reidenbach. Mr. Reidenbach had conducted a survey
of the tree and roadway “to determine the physical location of [the] tree relative to
the existing right[-]of[-]way and limit of slope easement of [SR 151],” which “is [a]
public road that is maintained by [DOT].” R.R. at 110. In his report, Mr.
Reidenbach opined, to a reasonable degree of engineering and surveying certainty,
that “[t]he tree in question is located . . . 33 feet from [the] centerline [of SR 151].
This location puts the tree within the required limit of [DOT’s] slope easement
4
See Section 210 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended,
36 P.S. § 670-210 (recognizing that the Governor may approve “the condemnation of an easement
for highway purposes from all property within the lines marked as required for right of way and
the condemnation of an easement of support or protection from all property within the lines
marked as required for slopes”) (emphasis added).
5
regarding [SR 151].” Id. The Poleskys also relied on an expert report prepared by
arborist Ray Hicks, Ph.D., who opined that the tree at issue had been damaged
several years before the accident by negligent trimming, which caused the tree to
decay and eventually collapse. Id. at 145.
After briefing and oral argument by the parties, the Trial Court granted DOT’s
Summary Judgment Motion. In its Opinion, the Trial Court concluded:
[DOT] was not the owner of the property [on] which the tree was
situated and[,] as such, it did not have total control of the premises as
required to impose liability for the damages caused by the tree.
[The Poleskys] alleged that [DOT] removed or tended to other
trees that were in a similar condition to the one that fell on [the
Poleskys’] vehicle and within the same area[;] therefore[,] [DOT] was
aware of the dangerous condition. This argument would presume that
liability is predicated on knowledge of a dangerous condition adjacent
to [the] Commonwealth’s land and failing to take preventative action,
which is not supported by any exception to the immunity statute.
....
The incident that gave rise to this matter stems from a tree that
was located on property which is owned by a private individual, [Ms.]
Smith. Since the dangerous condition in this matter existed beyond the
limits of [DOT’s] right[-]of[-]way, coupled with the fact that [DOT]
does not own or control the property [on] which it was located, the real
property exception to the sovereign immunity statute is inapplicable,
which entitles [DOT] to summary judgment as a matter of law.
6
Trial Ct. Op., 9/2/20, at 18-19 (internal citation omitted) (emphasis added).5 The
Poleskys now appeal from that decision.6
Analysis
On appeal, the Poleskys assert that the Trial Court erred in granting DOT’s
Summary Judgment Motion because the evidence established that the tree at issue
was located within DOT’s slope easement for SR 151. The Poleskys contend that
because our case law holds that DOT can be held liable for a dangerous condition
located within its right-of-way, DOT should likewise be held liable for a dangerous
condition located within its roadside slope easement. Specifically, the Poleskys
argue that “th[is] Court’s rationale in applying the real estate exception to a
dangerous tree within a right[-]of[-]way equally applies to a corresponding slope
easement, as [DOT] also maintains control over this area for the protection of the
highway.” Poleskys’ Br. at 6.
In response, DOT asserts that, insofar as the Poleskys abandoned their original
claim that the tree was located within DOT’s right-of-way, their claim that the tree
was located within DOT’s slope easement constitutes a new cause of action that is
barred by the two-year statute of limitations.7 DOT further asserts that, even if the
5
This Court has stated that “[t]he question of what constitutes a dangerous condition [for
purposes of the real estate exception] is a question of fact . . . [;] [h]owever, the determination of
whether an action is barred by sovereign immunity is entirely a matter of law.” Cowell, 883 A.2d
at 708.
6
Our standard of review of a trial court’s grant of summary judgment is de novo, and our
scope of review is plenary. Gior G.P., Inc. v. Waterfront Square Reef, LLC, 202 A.3d 845, 852
n.10 (Pa. Cmwlth. 2019). Summary judgment is appropriate only where the record clearly shows
that there are no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. Id.; see Pa.R.Civ.P. 1035.2.
7
Poleskys’ slope easement claim were not time-barred, a slope easement is a lesser
interest than a highway right-of-way and, thus, is not Commonwealth realty for
purposes of the real estate exception to sovereign immunity.
1. Statute of Limitations
Before we review the merits of the Poleskys’ appeal, we must first address
DOT’s assertion that the Poleskys’ slope easement claim is, in effect, a new cause
of action barred by the two-year statute of limitations.
Our Court has explained:
While amendments to pleadings are liberally granted in general, an
amendment which introduces a new cause of action, i.e., new theory,
will not be permitted after the statute of limitations of that cause of
action has expired. Laursen v. Gen[.] Hosp[.] of Monroe C[nty.], . . .
431 A.2d 237, 239 ([Pa.] 1981). Where, however, the proposed
amendment does not change the cause of action, but merely amplifies
that which has already been averred, the amendment should be
allowed. Id. An amendment states a new cause of action where the
amendment rests on a different legal theory, basis for recovery[,] or
relationship between the parties. Am[. Motorists Ins. Co. v. Farmers
Bank & Tr. Co., 644 A.2d 1232, 135 (Pa. Super. 1994)].
Dep’t of Transp. v. Pa. Indus. for Blind & Handicapped, 886 A.2d 706, 715 (Pa.
Cmwlth. 2005) (footnotes omitted) (emphasis added). However, “[a]n amendment
[to a pleading] which just sets forth, with more particularity, the averments of the
original cause of action may be permitted even after the statute of limitations has run
on the underlying claim.” Galindo ex rel. Gomez v. Crozier-Keystone Health Sys.,
973 A.2d 4, 9 n.5 (Pa. Cmwlth. 2009).
7
See 42 Pa. C.S. § 5524(2) (providing a two-year statute of limitations for “[a]n action to
recover damages for injuries to the person . . . caused by the wrongful act or neglect or unlawful
violence or negligence of another”). The two-year statute of limitations on the Poleskys’
negligence cause of action expired in July 2019; they asserted their slope easement claim for the
first time in 2020, after the completion of discovery.
8
The Poleskys concede that their Complaint contains no factual averments
regarding DOT’s slope easement because they did not learn of the easement’s
existence, or of the tree’s location within the easement, until discovery. The
Poleskys did not seek to amend their Complaint; rather, they asserted this claim for
the first time in their Brief in Opposition to DOT’s Summary Judgment Motion.
We addressed a similar situation in DeRitis v. City of Philadelphia, 582 A.2d
738 (Pa. Cmwlth. 1990). In DeRitis, the plaintiff asserted a new theory of recovery
for her negligence cause of action in response to the City of Philadelphia’s (City)
summary judgment motion. In her original complaint, the plaintiff had alleged that
a defective bleacher owned by the City caused her injuries. However, at the
summary judgment stage of the proceedings, the plaintiff alleged that the City’s
police officers were negligent in controlling the crowds on the bleachers, causing
her injuries. In rejecting the plaintiff’s new legal theory, this Court stated:
[The plaintiff’s] second argument concerns her allegation that the
City’s police were negligent in their control of the crowd on the
bleachers at the parade. This allegation, however, was not set forth in
[her] complaint. [The plaintiff] first raised this issue in response to the
City’s motion for summary judgment. No petition to amend the
complaint was filed, and the City argues that [the plaintiff] is raising a
new cause of action well beyond the two-year statute of limitations
applicable to this case. [The plaintiff] contends, however, that her
allegation of police negligence is merely an amplification of her
general allegations of negligence against the City set forth in her
complaint. [Her] complaint, however, sets forth no material facts
regarding police conduct. Therefore, her allegation states not an
amplification of existing allegations[,] but a new cause of action. See
Bendas v. T[wp.] of White Deer, . . . 569 A.2d 1000 ([Pa.Cmwlth.]
1990) (a party raises a new cause of action where there exist no specific
facts alleged in the complaint regarding a theory which the party raises
at a later stage in the proceedings); Shaffer v. P[a.] Assigned Claims
Plan Ins. Co. of N[.] Am[.], . . . 518 A.2d 1213 ([Pa. Super.] 1986) (a
party raises a new cause of action if it rests on a different theory, basis
9
for recovery, or relationship between the parties than did the original
pleading). [The plaintiff] improperly raised her new cause of action in
“new matter” in opposition to the City’s motion for summary judgment;
and, thus, the lower court correctly refused to address the contentions
set forth in that document. See E-Z Parks, Inc. v. Larson, . . . 498 A.2d
1364 ([Pa. Cmwlth.] 1985), aff’d, . . . 503 A.2d 931 ([Pa.] 1986)
(wherein this Court refused to address the merits of allegations raised
improperly in “new matter” filed in response to preliminary objections).
Id. at 741 (some internal citations omitted) (emphasis added).
Applying these considerations to the facts of this case, we conclude that the
Poleskys’ slope easement claim does not constitute a new cause of action, but is
merely an amplification of their original negligence claims against DOT. Unlike
DeRitis, where the plaintiff attempted to assert an entirely different basis for the
City’s negligence, here the Poleskys’ contention that the tree was located within
DOT’s slope easement for SR 151 is consistent with its allegations that the tree was
“affixed to Commonwealth real estate” and “existed on/in and was part of the
Commonwealth real estate,” thereby falling within the real estate exception to
sovereign immunity. Compl. ¶¶ 39, 47. The fact that, during discovery, the Poleskys
obtained new information regarding the precise location of the tree relative to DOT’s
right-of-way and slope easement did not in any way alter the basis of their negligence
claims against DOT. Their allegation that the tree was located within DOT’s slope
easement merely “sets forth, with more particularity, the averments of the[ir]
original cause of action.” Galindo, 973 A.2d at 9 n.5.
Moreover, DOT was plainly on notice of the Poleskys’ pursuit of this theory
and had the opportunity to defend against it, as DOT directly addressed the slope
easement issue, as well as Mr. Reidenbach’s expert report, in its Summary Judgment
Motion. See Viener v. Jacobs, 834 A.2d 546, 560 (Pa. Super. 2003) (“Amendment
will not be permitted if it introduces a new theory of liability against a party without
10
sufficient time for the party to defend against that theory.”) (emphasis added).
Therefore, we conclude that the Poleskys’ slope easement claim was not barred by
the statute of limitations.
2. Real Estate Exception to Sovereign Immunity
The Poleskys assert that the Trial Court erred in granting summary judgment
in DOT’s favor because material issues of fact exist regarding DOT’s liability under
the real estate exception to sovereign immunity.
To prevail in a negligence cause of action against a Commonwealth agency,
such as DOT, the plaintiffs must establish that: (a) their injuries would be
recoverable under the common law or a statute creating a cause of action if they had
been caused by a person not subject to sovereign immunity; and (b) the cause of
action falls within one of the enumerated exceptions to sovereign immunity in
Section 8522(b) of the Sovereign Immunity Act. Dean v. Dep’t of Transp., 751
A.2d 1130, 1132 (Pa. 2000).8 However, “because of the clear intent to insulate the
government from liability, the exceptions to sovereign immunity must be strictly
construed.” Cowell, 883 A.2d at 709 (emphasis added).
In this case, the Poleskys attempt to invoke the real estate exception, which
waives sovereign immunity for damages caused by “[a] dangerous condition of
Commonwealth agency real estate . . . , including Commonwealth-owned real
property, . . . and highways under the jurisdiction of a Commonwealth agency.” 42
Pa. C.S. § 8522(b)(4) (emphasis added). Our courts have held that for the real estate
exception to apply, the alleged “dangerous condition must derive [from], originate
from, or have its source in Commonwealth realty.” Snyder v. Harmon, 562 A.2d
307, 311 (Pa. 1989) (emphasis added); see Dean, 751 A.2d at 1133 (“[S]overeign
It is undisputed that the Poleskys’ claims for damages would be recoverable under the
8
common law had their injuries been caused by a person not subject to sovereign immunity.
11
immunity is waived . . . where it is alleged that the artificial condition or defect of
the land itself causes an injury to occur.”) (emphasis added). However, mere
proximity between a state highway and a hazardous condition located outside of
DOT’s right-of-way is insufficient to invoke the real estate exception. Snyder, 562
A.2d at 311-12.
This Court has addressed the applicability of the real estate exception to a
hazardous tree in close proximity to a state highway in several prior cases. For
example, in Marker v. Department of Transportation, 677 A.2d 345 (Pa. Cmwlth.
1996), the decedent was driving on a state highway when a tree fell on her car and
caused her death. Her husband filed a negligence action against DOT, asserting
negligent maintenance of the highway and adjacent property, and the jury found in
his favor. Id. at 346-47. DOT filed a post-trial motion seeking judgment
notwithstanding the verdict, which the trial court denied. Id. at 347. The trial court
rejected DOT’s contention that the property from which the tree grew was outside
of DOT’s right-of-way and, thus, not Commonwealth realty. Id.On appeal, however, this Court concluded:
[C]ontrary to the trial court’s opinion . . . the characterization of the real
estate from which a dangerous condition derives or originates from is
material. If the real estate in question from which the dangerous
condition derives, originates from or has as its source is not
Commonwealth realty, then the Commonwealth cannot be held liable
under the real estate exception to sovereign immunity.
Id. at 348 (emphasis added). We specifically noted that, in that case, “[t]here was
no record evidence which established that the tree was located within the legal right-
of-way.” Id. (emphasis added). Therefore, because the plaintiff failed to establish
that the tree was located on Commonwealth realty, we reversed and remanded for
the entry of judgment in DOT’s favor. Id.; see also Clark v. Pa. Dep’t of Transp.,
12
962 A.2d 692, 698 (Pa. Cmwlth. 2008) (holding that DOT was immune from suit
where the tree that injured a motorist was located beyond DOT’s right-of-way, even
though the tree had a limb overhanging DOT’s right-of-way); but cf. Patton v. Dep’t
of Transp., 669 A.2d 1090, 1092 (Pa. Cmwlth. 1996) (holding that DOT was liable
for injuries to a motorist on a state highway caused by an overhanging tree limb that
fell on the motorist’s vehicle, where the tree itself was located within DOT’s right-
of-way), rev’d on other grounds, 686 A.2d 1302 (Pa. 1997).
Here, the evidence of record – including the report of the Poleskys’ own
engineering expert – established that the tree at issue was located 33 feet from the
centerline of SR 151, which was three feet beyond DOT’s required right-of-way.
See R.R. at 110-11. It is also undisputed that the property from which the tree fell
was owned by Ms. Smith and, thus, was not Commonwealth-owned realty under
Section 8522(b)(4) of the Sovereign Immunity Act. Therefore, under this Court’s
precedent, DOT cannot be held liable for the allegedly dangerous condition of the
tree. Accord Clark, 962 A.2d at 697 (concluding, as a matter of law, that the
plaintiffs failed to prove the real estate exception to sovereign immunity, where “the
evidence established that the tree separated from its trunk and fell as a single unit
from [a private individual’s] property, well outside [of] DOT’s right-of-way”).
Recognizing that the record does not support their original claim that the tree
was located within DOT’s right-of-way, the Poleskys assert, based on Mr.
Reidenbach’s expert report, that DOT is not immune from liability because the tree
was located within DOT’s slope easement for SR 151. In essence, the Poleskys
contend that a slope easement is the equivalent of a highway right-of-way for
purposes of the real estate exception to sovereign immunity. Poleskys’ Br. at 7. The
13
Poleskys, however, cite no legal authority to support this contention, nor have we
found any.
Our Supreme Court has explained that “an easement is not the equivalent of
owning the land. An easement is merely ‘a liberty, privilege, or advantage which
one may have in the lands of another . . . [which] cannot be an estate or interest in
the land itself, or a right to any part of it.’” Coffin v. Old Orchard Dev. Corp., 186
A.2d 906, 910 (Pa. 1962) (emphasis added) (citation omitted). While it is true that
a right-of-way, by definition, is a form of easement, that does not mean that a
highway right-of-way and a slope easement are treated the same for purposes of the
Sovereign Immunity Act.
DOT appended to its Summary Judgment Motion portions of an internal DOT
document titled, “Publication 14M, Design Manual Part 3, Plans Presentation”
(Design Manual). Chapter 3 of the Design Manual, titled “Right-of-Way Plans,”
specifically identifies a slope easement as a “lesser interest” than a highway right-
of-way, as follows:
N. Slope Easements. Land necessary for slopes is normally included
within the required right-of-way on all limited access highway facilities
and free access highway facilities in other than built up areas. When
designated on the [state highway] plan as [a] required slope easement,
[DOT] acquires the lesser interest for support and protection (see 36
P.S. [§] 670-210) as defined on the plan. The easement allows [DOT]
to contour the area for necessary support of the highway and to
construct and maintain drainage facilities as necessary to protect the
highway. . . .
....
SLOPE EASEMENT. AN EASEMENT FOR THE SUPPORT AND
PROTECTION OF THE HIGHWAY, INCLUDING THE RIGHT TO
CONSTRUCT, INSPECT, MAINTAIN, REPAIR, RECONSTRUCT
14
AND ALTER DRAINAGE FACILITIES AND THE CONTOUR OF
THE LAND. THE EASEMENT SHALL NOT PREVENT THE
PROPERTY OWNER FROM MAKING ANY LEGAL USE OF THE
AREA WHICH IS NOT DETRIMENTAL TO THE NECESSARY
SUPPORT AND PROTECTION OF THE HIGHWAY RIGHT-OF-
WAY AND THE SAFETY OF THE TRAVELING PUBLIC.
R.R. at 114-15 (capitalization in original; emphasis added); see DOT’s Br. at 21
(explaining that the Design Manual provides that DOT may acquire a lesser interest
in land owned by another for a specific, limited purpose and a slope easement is one
such lesser interest). The limited purpose of a slope easement is to permit DOT to
“contour the area for necessary support of the highway and to construct and maintain
drainage facilities as necessary to protect the highway.” R.R. at 114; see 36 P.S. §
670-210 (referring to a slope easement as “an easement of support or protection from
all property within the lines marked”). The owner of the property on which a slope
easement exists retains the right to use the sloped area for any purpose consistent
with the support and protection of the highway right-of-way. R.R. at 115.
DOT’s Design Manual further states that “[l]and necessary for slopes is
normally included within the required right-of-way.” Id. at 114 (emphasis added).
Presumably, then, if a slope easement is included within DOT’s required right-of-
way, a dangerous condition located within the slope easement could potentially
waive DOT’s immunity under our Court’s precedent. Cf. Trenco, Inc. v. Dep’t of
Transp., 560 A.2d 285, 287-88 (Pa. Cmwlth. 1989) (where a landslide damaged
trucks traveling on a state highway, this Court concluded that the dangerous
condition fell within the real estate exception because the landslide originated on a
steep slope adjacent to the highway within DOT’s right-of-way). Here, however, the
record shows that the slope easement on which the tree was situated was not within
DOT’s required right-of-way for SR 151; rather, it was located three feet beyond
15
DOT’s right-of-way. See R.R. at 110-11. Furthermore, when asked how a slope
adjacent to a state highway is taken into account in determining whether a roadside
tree is within DOT’s right-of-way, DOT’s District Roadside Specialist, Phillip
Mannarelli, testified: “Right-of-way is determined on a linear plane, absent of any
slope.” Mannarelli Dep., 6/27/19, at 22 (emphasis added); see R.R. at 111 (showing
the line demarcating “Required Right-of-Way” as extending 30 linear feet from the
center of SR 151, and the line demarcating “Required Limit of Slope” several feet
above the “Required Right-of-Way” line).
In this case, the tree that injured the Poleskys was located on the property of
a private individual and beyond the outer limit of DOT’s required right-of-way.
Indeed, Robert C. Houston, DOT’s Assistant Highway Maintenance Manager,
testified that the “tree was so far off the roadway, you couldn’t see it from the road”
and that DOT would not have trimmed “[a] tree that far off the road.” Houston Dep.,
9/13/19, at 49-50. Because we must narrowly construe the exceptions to sovereign
immunity, see Cowell, 883 A.2d at 709, we decline to extend the real estate
exception to a situation where the alleged dangerous condition did not derive or
originate from Commonwealth-owned realty and was located outside of DOT’s
right-of-way. Therefore, we conclude that the Poleskys failed to establish that the
real estate exception to sovereign immunity applies in this case.9
9
We further note that the Poleskys devote a significant portion of their appellate brief to
arguing that DOT was “in possession” of the land on which the tree was situated, arguing that “[a]s
a possessor of the real estate[,] [DOT] can be liable for a dangerous condition on the property as
the real estate exception to sovereign immunity applies.” Poleskys’ Br. at 11; see id. at 10 (arguing
that “an [e]asement holder is subject to the same liability as any other possessor of the premises”).
It appears that the Poleskys have conflated the requirements for waiving immunity under the
Sovereign Immunity Act, which applies to DOT, with the requirements for waiving immunity
under the statute commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act),
42 Pa. C.S. §§ 8541-42, which applies to local agencies. The real estate exception of the Sovereign
16
Conclusion
Because we conclude that DOT is immune from suit under the doctrine of
sovereign immunity and that the Poleskys have failed to prove the applicability of
the real estate exception to DOT’s immunity, we affirm the Trial Court’s Order.
__________________________________
ELLEN CEISLER, Judge
Immunity Act requires that, to impose liability on a state agency, a dangerous condition must
derive from, originate from, or have its source in Commonwealth realty. See 42 Pa. C.S. §
8522(b)(4); Snyder, 562 A.2d at 311. On the contrary, the Tort Claims Act imposes liability on a
local agency for “[t]he care, custody or control of real property in the possession of the local
agency.” 42 Pa. C.S. § 8542(b)(3) (emphasis added). Whether DOT “possessed” the property on
which the tree was located, as a slope easement holder or otherwise, is irrelevant to the applicability
of the real estate exception to sovereign immunity.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fred Paul Polesky, Jr. and Gabriella :
Polesky, :
Appellants :
:
v. : No. 1250 C.D. 2020
:
Commonwealth of Pennsylvania, :
Department of Transportation and :
Gene M. Smith :
ORDER
AND NOW, this 10th day of November, 2021, we hereby AFFIRM the
September 2, 2020 Order of the Court of Common Pleas of Beaver County.
__________________________________
ELLEN CEISLER, Judge