Loading...
HomeMy WebLinkAbout2019-09014 (5) JESSICA ELLERMEYER, : THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : JAMES and CHRISTINE METCALF, : BOROUGH OF MECHANICSBURG, : MARK WALKER PROPERTIES, MARK : No. 2019-09014 CIVIL TERM WALKER PROPERTIES t/d/b/a M.C. : WALKER REALTY MARK WALKER : PROPERTIES t/d/b/a WALKER : REALTY, and MARK C. WALKER, : Defendants : CIVIL ACTION - LAW OPINION IN RE: DEFENDANT BOROUGH OF MECHANICSBURG’S MOTION FOR SUMMARY JUDGMENT Smith, J., December 6, 2021 Defendant Borough of Mechanicsburg (“Defendant”) moved for summary judgment based on 42 P.S. § 5522 (six-month barring statute) and 42 P.S. §§ 8541– 8542 (governmental immunity). Defendant’s motion for summary judgment is GRANTED based on Defendant’s immunity under 42 P.S. §§ 8541–8542. FACTS On September 4, 2017, Jessica Ellermeyer (“Plaintiff”) fell on a sidewalk located on the eastbound side of West Keller Street in Mechanicsburg, Pennsylvania, and claims she suffered serious and permanent injuries. No pictures were taken of the 1 sidewalk until July 20, 2018. Plaintiff claims that the sidewalk was offset approximately 2 one and a half inches, and that this offset caused her fall. Plaintiff further claims that her injuries are the direct and proximate result of the negligence of the Borough of Mechanicsburg (“Defendant”) because Defendant failed to inspect and maintain the 3 sidewalk in accordance with Mechanicsburg Borough Code. 1 Stipulation Between Plaintiff, Jessica Ellermeyer and Defendant, Borough of Mechanicsburg as to Facts to Be Considered in the Pending Preliminary Objections and Agreement to Proceed on Briefs in Lieu of Oral Argument, Jessica Ellermeyer v. James and Christine Metcalfe, Borough of Mechanicsburg, Mark Walker Properties t/d/b/a M.C. Walker Realty Mark Walker Properties t/d/b/a Walker Realty and Mark C. Walker, No. 2019-09014 (June 11, 2020). 2 Plaintiff’s Response to Defendant Borough of Mechanicsburg’s Motion for Summary Judgment, ¶ 81, Ellermeyer, No. 2019-09014 (June 1, 2021). 3 Plaintiff’s Complaint, 8–9, Ellermeyer, No. 2019-09014 (Nov. 21, 2019). Page 1 of 7 Plaintiff notified Defendant on August 3, 2018, that she intended to file suit. Plaintiff filed her Complaint on November 8, 2019, and on November 17, 2019, Defendant filed Preliminary Objections. On June 11, 2020, Plaintiff and Defendant agreed to a stipulation of facts specifying that the fall occurred on September 4, 2017, and that no pictures were taken of the sidewalk until July 20, 2018. On July 28, 2020, The Honorable Carrie E. Hyams overruled all of Defendant’s Preliminary Objections. On April 30, 2021, Defendant filed a Motion for Summary Judgment. On June 1, 2021, Plaintiff filed a Response to Defendant’s Motion for Summary Judgment. On September 22, 2021, it was discovered that Defendant did not file an Answer, and Defendant requested that the parties stipulate to allow Defendant to file its Answer. On September 23, 2021, Plaintiff gave leave to Defendant to file an Answer, and Defendant filed Answer with New Matter to the Complaint. DISCUSSION Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions and affidavits and other materials demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter 4 summary judgment. Additionally, “a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facia cause of action or defense, and, therefore, 5 there is no issue to be submitted to the jury.” Finally, a genuine issue of material fact exists only if there is enough evidence for 6 the nonmoving party to win at trial. A fact is material if it directly affects the outcome of 7 the case. The failure of a non-moving party to present sufficient evidence on an issue 4 Safe Auto Ins. Co. v. Oriental-Guillermo, 170 A.3d 1170, 1173 (Pa. Super. 2017), aff'd, 214 A.3d 1257 (Pa. 2019), quoting Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007) (citations omitted). 5 McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998). 6 Ertel v. Patriot-New Co., 674 A.2d 1038, 1042 (Pa. 1996). 7 Fortney v. Callenberger, 801 A.2d 594, 597 (Pa. Super. 2002). Page 2 of 7 essential to his case and on which he bears the burden of proof establishes the 8 entitlement of the moving party to judgment as a matter of law. THE SIX-MONTH BARRING STATUTE Defendant’s first argument in support of summary judgment is that Plaintiff’s failure to timely notify Defendant of her claim resulted in prejudice to Defendant such that Plaintiff’s claim is barred under 42 P.S. § 5522. Defendant argues that Plaintiff’s delay caused a “spoliation of evidence” because Defendant could not timely inspect the subject sidewalk. The relevant statute provides that any person who brings a claim against a government unit in Pennsylvania must give notice of such a claim within six months of the claim’s accrual, and that failure to meet this requirement may result in the claim 9 being barred. However, courts have interpreted this statute as an affirmative defense 10 the government must raise in its answer. The plaintiff may respond by establishing “reasonable excuse” for the delay, at which time the government must in turn prove that 11 the plaintiff’s delay resulted in “prejudice” or “undue hardship” to the government. In the Commonwealth Court case of Bissey v. Commonwealth, Department of 12 Transportation, the plaintiff was injured in a motorcycle accident and sued the Pennsylvania Department of Transportation (“PennDOT”), alleging negligence. The suit was filed nearly two years from the date of the incident, well beyond the six-month 13 barring statute’s requirement. The plaintiff appealed the trial court’s granting of PennDOT’s motion for summary judgment based on plaintiff’s failure to file notice of a claim within six months, arguing that a genuine issue of material fact existed as to 14 plaintiff’s showing of reasonable excuse. The Court held that a plaintiff’s ignorance of the notice requirement coupled with a lack of prejudice or undue hardship to the 15 defendant constituted reasonable excuse. The defendant must raise specific facts to 16 establish undue hardship - merely offering a conclusory statement that the 8 Finder v. Crawford, 167 A.3d 40, 44 (Pa. Super. 2017). 9 42 P.S. § 5522. 10 Landis v. City of Philadelphia, 369 A.2d 746, 749 (Pa. Super. 1976) (citing Yurechko v. Allegheny Cty., 243 A.2d 372, 376–77 (Pa. 1968)). 11 Id. 12 Bissey v. Com., Dep't of Transp., 613 A.2d 37, 39–40 (Pa. Commw. Ct. 1992). 13 Id. 14 Id. 15 Id. at 41. Page 3 of 7 17 government was prejudiced by the delay is insufficient to establish undue hardship. In addition, the defendant may not use acts or omissions that occur during the six-month notice period to establish prejudice because they are not attributable to plaintiff’s delay 18 in filing the claim. The Court, however, affirmed the trial court’s grant of summary judgment against the plaintiff because the defendant raised specific facts to support its 19 claim of prejudice. PennDOT was prejudiced by plaintiff’s delay because the motorcycle and helmet used in the accident were sold or given away, and because the plaintiff filed his claim in the wrong county, causing the local PennDOT agency to rely 20 on evidence collected by another local PennDOT agency. Here, Defendant properly raised the affirmative defense of Plaintiff’s failure to timely notify Defendant, and Plaintiff responded by claiming she was ignorant of the notice requirement. Thus, both Defendant and Plaintiff satisfied the first two steps of the reasonable excuse analysis. The third step requires Defendant to raise specific facts to establish undue hardship. Defendant averred it was prejudiced by Plaintiff’s delay, yet Defendant offered no specific facts to support its defense. Defendant failed to raise specific facts to establish undue hardship because—other than a general and unsupported claim of “spoliation of evidence”—Defendant did not allege that some specific act or omission by Plaintiff in the time between approximately March 4, 2018, and August 3, 2018, caused the Defendant undue hardship. Therefore, at least as to its claim under the six-month barring statute, Defendant failed to meet its burden. THE SIDEWALK EXCEPTION TO BOROUGH IMMUNITY However, Defendant’s second argument is that Plaintiff failed to provide evidence establishing an exception to Borough’s governmental immunity under 42 P.S. §§ 8541– 21 8542. The statute provides that a governmental entity is generally immune from 22 liability; however, there are several exceptions. One of those exceptions includes a 23 “dangerous condition of sidewalks.” The claimant must establish that the dangerous 16 Id. 17 Id. 18 Id. 19 Id. at 46. 20 Id. 21 Defendant’s Brief in Support of Motion for Summary Judgment, 11–13, Ellermeyer, No. 2019-09014 (Apr. 30, 2021). 22 42 P.S. § 8541–8542. 23 42 P.S. § 8542(7). Page 4 of 7 24 condition existed and that the local agency had notice of the condition. If the claimant is successful in proving these two elements, the governmental entity may only be held 25 secondarily liable. In the Supreme Court of Pennsylvania case of Finn v. City of Philadelphia, the Court held that a claimant attempting to establish a dangerous condition of sidewalk must establish a defect of the sidewalk, to include a badly maintained, deteriorating, or 26 crumbling sidewalk. Here, contrary to Defendant’s characterizations, Plaintiff has presented some evidence alleging a defect of sidewalk, including the testimony of Plaintiff describing the sidewalk as “uneven,” “broken,” and “cracked,” and photographs 27 of the sidewalk taken in July 2018 showing a one-and-a-half inch offset. Thus, there is sufficient evidence to show that a genuine issue of material fact as to the dangerous condition of the subject sidewalk. However, the government entity still needs notice of the dangerous condition, 28 whether actual or constructive. Plaintiff admits that Defendant did not have actual notice of the alleged dangerous condition of the subject sidewalk but contends that 29 Defendant did have constructive notice. Plaintiff alleges that the poor condition itself provided constructive notice because Defendant had an affirmative duty to maintain the 30 sidewalks in a good state of repair. Current case law suggests there are two ways to find constructive notice: either through facts and circumstances to show that the municipality knew about the dangerous condition, or separately, whether the defect was apparent on “reasonable 31 inspection.” In the former manner, Pennsylvania Commonwealth Court case Ellis v. City of 32 Pittsburgh, the Court held that the plaintiff presented sufficient evidence to conclude that the defendant had constructive notice of the sidewalk’s condition because 24 Id. 25 Id. 26 Finn v. City of Philadelphia, 664 A.2d 1342, 1346 (Pa. 1995). 27 Plaintiff’s Response to Defendant’s Motion for Summary Judgment, Exhibit A, Deposition of Jessica Lynn Ellermeyer, 66, 72, Ellermeyer, No. 2019-09014 (June 1, 2021). 28 42 P.S. § 8542(7); See also Reid v. City of Philadelphia, 957 A.2d 232, 234 n.1 (Pa. 2008). 29 Plaintiff’s Response to Defendant’s Motion for Summary Judgment, ¶ 114, Ellermeyer, No. 2019-09014 (June 1, 2021). 30 Id.; Plaintiff’s Complaint, ¶ 23, Ellermeyer, No. 2019-09014 (Nov. 21, 2019). 31 See Ellis v. City of Pittsburgh, 703 A.2d 593, 594 (Pa. Commw. Ct. 1997); See also Sherman v. City of Pittsburgh, 39 A.2d 156, 157 (Pa. Super. 1944). 32 Ellis v. City of Pittsburgh, 703 A.2d 593, 594 (Pa. Commw. Ct. 1997). Page 5 of 7 significant repairs were completed both before and after the incident and because city workers regularly worked at the location and were under a duty to report any damage to 33 the sidewalk. The Court inferred from the defendant’s repairs of the subject sidewalk 19 months prior to the incident and two months after the incident that the sidewalk 34 suffered a progressive deterioration. In addition, testimony from a city supervisor 35 indicated city employees would visit the subject steps five to six times a year. Finally, the repair that took place after the incident demonstrated the poor condition of the sidewalk at the time of the incident: the city replaced eight missing railings, two missing 36 steps, and repaired five other steps. In the present case, there is no indication that the Defendant repaired the sidewalk either before or after the incident. Plaintiff also failed to present evidence that Defendant’s employees visited the location, unlike the city employees in Ellis. Finally, the alleged sidewalk damage in this case, a one-and-a-half-inch offset, is negligible 37 compared to the serious sidewalk damage in Ellis. In the latter manner, to charge a municipality with constructive notice, the plaintiff 38 must show the dangerous condition was apparent on “reasonable inspection.” A 39 defect is not apparent on reasonable inspection if it is “latent and not observable.” Here, Plaintiff cannot meet her burden to show that the dangerous condition was apparent on reasonable inspection to Defendant because the defect was not even apparent to Plaintiff herself. Plaintiff had walked over the sidewalk a “handful” of times 40 without incident, saying she “never realized it was uneven.” Plaintiff also described the 41 defect as “at an angle where you couldn’t see it,” and that it “didn’t look broken at all.” Defendant cannot be charged with constructive notice for a dangerous condition of sidewalk when Plaintiff admits that the defect was not observable. Accordingly, Plaintiff cannot meet her burden and Defendants’ Motion for Summary Judgment is GRANTED. 33 Ellis v. City of Pittsburgh, 703 A.2d 593, 594 (Pa. Commw. Ct. 1997). 34 Id. 35 Id. 36 Id. 37 Plaintiff’s Response to Defendant’s Motion for Summary Judgment, ¶ 81, Ellermeyer, No. 2019-09014 (June 1, 2021). 38 Sherman v. City of Pittsburgh, 39 A.2d 156, 157 (Pa. Super. 1944). 39 See Id. 40 Plaintiff’s Response to Defendant’s Motion for Summary Judgment, Exhibit A, Deposition of Jessica Lynn Ellermeyer, 66–67, Ellermeyer, No. 2019-09014 (June 1, 2021). 41 Id. Page 6 of 7 By the Court, ______________________________ Matthew P. Smith, J. Olivia Unger Bort, Esq. Schollenberger, Januzzi & Wolfe, LLP 2225 Millennium Way Enola, PA 17025 Gregory S. Hirtzel, Esq. Christopher M. Horn, Esq. 1860 Charter Lane, Suite 201 Lancaster, PA 17601 John A. Statler, Esquire 301 Market Street PO Box 109 Lemoyne, PA 17043-0109 Joshua J. Bovender, Esquire 305 North Front Street PO Box 999 Harrisburg, PA 17108-0999 Page 7 of 7