Berhane v. Southeastern Pennsylvania Transportation Authority

LORD, Senior Judge. Zufran Berhane appeals an order of the Court of Common Pleas of Philadelphia County which granted the Southeastern Pennsylvania Transit Authority’s (SEPTA) motion for summary judgment. Berhane was injured on September 28, 1984, when she slipped while descending the stairs which lead to SEPTA’S subway platform at Broad Street and Allegheny Avenue in Philadelphia. In her deposition, Berhane stated that she slipped on a combination of oil and debris hidden beneath the surface of water which had accumulated on a landing between the steps and on the steps themselves. The landing was apparently one flight of steps down into the stairwell, and Berhane alleged in her complaint that the water accumulated because of a faulty design or maintenance “over the areas directly over the subway stairway and landing” so that there was water “seepage and leakage into the stairway and landing.” The complaint also alleges this created an unsafe or dangerous condition. SEPTA raised the question of its sovereign immunity, Section 8522(b)(4) of the Judicial Code, 42 Pa.C.S. § 8522(b)(4).1 Specifically, the issue we must determine is whether, under these circumstances, the facts alleged presented an issue for the jury as to whether SEPTA, an admitted Commonwealth agency, created a dangerous condition of its real estate so that liability could be then found by that jury. Berhane alleges that the actual defect in the realty is the improper waterproofing and drainage which allowed the water to accumulate, thus creating a dangerous condition. In order to determine whether the trial court made an error of law, we must review its limitations in granting motions for summary judgment. SEPTA presented only a motion for summary judgment with no affidavits. Under these circumstances, the allegations of the plaintiffs pleadings must be taken as true for the purpose of the motion. In Roland v. Kravco, 355 Pa.Superior Ct. 493, 513 A.2d 1029 (1986), our Superior Court discussed Pa.Rule of Civil Procedure No. 1035(b). The Superior Court stated Such a motion should be granted where the pleadings, discovery and affidavits reflect no genuine issue of material fact. Pa.R.C.P. 1035(b). A summary judgment should only be entered in those cases which are clear and free from doubt. The court must accept as true all well pleaded facts in the plaintiffs pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Id. at 499, 513 A.2d at 1033 (citations omitted). The trial court therefore was compelled to assume for the purpose of SEPTA’s motion that the water on the steps existed because of improper design or maintenance causing seepage or leakage. The court is also not permitted to grant a motion for summary judgment unless there is no material issue of fact. Loyal Christian Benefit Association v. Benefit v. Bender, 342 Pa. Superior Ct. 614, 493 A.2d 760 (1985). Section 8522(b), 42 Pa.C.S. § 8522(b), provides that certain expressly described “acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immuni [1270] ty shall not be raised to claims for damages” in those instances. Here, consistent with subsection 8522(b)(4), Berhane has alleged that “[a] dangerous condition of a Commonwealth agency [i.e., SEPTA] real estate [i.e., its subway stairway and landing]” occurred because SEPTA negligently faded to design, construct and maintain the stairway in a way that would “permit runoff ...” and “prevent water seepage and leakage.” (Complaint, paragraph eight.) This conduct, Berhane avers, caused her to suffer injuries. (Complaint, paragraph nine.) A very recent case of this Court has made it clear that the summary judgment granted in this case must be reversed. In Finn v. City of Philadelphia, — Pa. Commonwealth Ct.-, 645 A.2d 320 (1994), the Court en bane reviewed both the sidewalk exception for governmental immunity and the dangerous condition of real estate exception. In that opinion, the Court discussed extensively the cases where it was alleged that the injury was caused by the presence of a foreign substance on the real property involved. In summarizing its holding in Finn, this Court said This Court will no longer impose liability pursuant to either the sidewalk exception to governmental immunity or the real estate exception to sovereign immunity in cases where the plaintiffs injury is not caused by a defect in the sidewalk or the real estate itself. We will not impose liability for injuries caused by a negligent failure of the government entity to remove a foreign substance from the real estate or the sidewalk. Since ice, snow, oil and grease are all foreign substances which can naturally accumulate on the sidewalk or real estate itself, government entities are not liable for injuries caused solely by the presence of these substances on a sidewalk or on real property. However, we will permit the imposition of liability if there is an allegation and proof that the substance on the sidewalk or other real estate was caused to be on the real estate because of an improper design, construction, deterioration, or inherent defect of the real estate itself. In those eases, the dangerous condition emanates from the real estate itself. Under such circumstances, a jury could find that the dangerous condition derived or originated from and had as its source the reality. This interpretation of the sidewalk and real estate exceptions is consistent with our Supreme Court’s mandate in Snyder [v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989) ] and Mascaro [v. Youth Study Center, 514 Pa. 351, 523 A2d 1118 (1987)], that all exceptions to governmental immunity must be narrowly interpreted given the express legislative intent to insulate political subdivisions from tort liability. Id. at-, 645 A.2d at 325. This case fits squarely into that portion of the language quoted above which permits the imposition of liability where there is an allegation that the presence of the water was caused by improper design and maintenance of the real estate itself. We reverse the grant of summary judgment. ORDER AND NOW, this 21st day of July, 1994 the order of the Philadelphia Court of Common Pleas, at No. 4862 September Term, 1986, dated August 2,1991, is hereby reversed, and this matter is remanded to the Court of Common Pleas for further proceedings. Jurisdiction relinquished. Footnotes [1] The issue for our review is whether the real estate exception to sovereign immunity is applicable where a plaintiff is injured after slipping on debris, water and grease which accumulated on the steps of premises owned by a Commonwealth agency as the result of the agency’s negligent design and maintenance of the premises. The issue is a pure question of law. When reviewing an order granting summary judgment, this Court’s scope of review is limited to a determination of whether the trial court committed an error of law or an abuse of discretion. Wilson v. Ridgway Area School District, 141 Pa.Commonwealth Ct. 607, 596 A.2d 1161 (1991), petition for allowance of appeal denied, 530 Pa. 650, 607 A.2d 258 (1992).