A. Adcock v. Telford Borough and A. Clemens

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Adcock :
:
v. :
:
Telford Borough and Alice Clemens :
: No. 2730 C.D. 2015
Appeal of: Telford Borough : Argued: October 17, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE FILED: February 22, 2017

Telford Borough, Appellant, appeals from the November 30, 2015
order of the Montgomery County Court of Common Pleas (trial court) denying its
motion for summary judgment. Upon review, we quash the present appeal as
interlocutory.
Alice Adcock, Appellee, filed an action against Appellant and
landowner, Defendant Alice Clemens, for injuries sustained in a slip and fall.
Appellee settled with Defendant Clemens and signed a joint tortfeasor release
releasing Defendant Clemens from liability. (Appellant’s Reproduced Record
(RR) at 78-81.) Appellant filed a motion for summary judgment that alleged
governmental immunity under Section 8541 of what is commonly called the
Political Subdivision Tort Claims Act. 1 Appellant argued it could only be
1
42 Pa.C.S. § 8541.
secondarily liable for Ms. Adcock’s injuries under the Sidewalks Exception2 to its
governmental immunity. Appellant therefore concluded that, as Defendant
Clemens was the primarily-liable party and was released, all claims against
Appellant, the secondarily-liable party, were extinguished as a matter of law.
Without opinion, the trial court denied Appellant’s motion for summary judgment
by its November 30, 2015 order.
On December 14, 2015, Appellant filed a motion to amend the trial
court’s order for certification of the order denying summary judgment for an
interlocutory appeal by permission.3 The trial court did not act on the motion and,
therefore, it was deemed denied. (Pa.R.A.P. 1311(b).) On December 30, 2015,

2
42 Pa.C.S. § 8542 establishes exceptions to governmental immunity. In pertinent part,
Section 8542 states:

(b) Acts which may impose liability.--The following acts by a local agency or any
of its employees may result in the imposition of liability on a local agency:

....

(7) Sidewalks.--A dangerous condition of sidewalks within the
rights-of-way of streets owned by the local agency, except that the
claimant to recover must establish that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which
was incurred and that the local agency had actual notice or could
reasonably be charged with notice under the circumstances of the
dangerous condition at a sufficient time prior to the event to have
taken measures to protect against the dangerous condition. When a
local agency is liable for damages under this paragraph by reason
of its power and authority to require installation and repair of
sidewalks under the care, custody and control of other persons, the
local agency shall be secondarily liable only and such other
persons shall be primarily liable.

42 Pa.C.S. § 8542(b)(7).

3
See 42 Pa.C.S. §702(b); Pa.R.A.P. 1311.

2
Appellant filed with this Court what is labeled “Petition For Review of Telford
Borough Under Pa. R.A.P. 313 and 1511 et seq.” Determining that Appellant was
attempting to appeal the order denying summary judgment as a collateral order, the
Chief Clerk advised the Prothonotary of the trial court that Appellant was
attempting to appeal, and directed the Prothonotary to process the “petition” as a
notice of appeal. (Pa.R.A.P. 905.)

On appeal,4 Appellant raises two issues:

1) Whether the Trial Court's November 30, 2015 Order is appealable
under the collateral order doctrine.

2) Whether the Trial Court committed an error of law and/or abused
its discretion in holding that Appellant Telford Borough is not
entitled to judgment as a matter of law.

(Appellant’s Brief at 1-2.)

Before addressing the merits of Appellant’s appeal, we must
determine whether this matter is properly before us since we do not have
jurisdiction over non-appealable orders. “In determining appealability of orders,
Pennsylvania courts adhere to the ‘final judgment rule,’ which holds that an appeal
will lie only from a final order unless otherwise permitted by statute or rule.”
Bollinger by Carraghan v. Obrecht, 552 A.2d 359, 361 (Pa. Cmwlth. 1989) (citing
Fried v. Fried, 501 A.2d 211 (Pa. 1985); Pa.R.A.P. 341(a)). Additionally, our
courts have followed Cohen v. Beneficial Industrial Loan Corporation, 337 U.S.
541 (1949) which created an exception, referred to as the collateral order doctrine,

4
Our scope of review of a grant or denial of summary judgment is limited to determining
whether the trial court committed an error of law or abused its discretion. Bullard v. Lehigh-
Northampton Airport Authority, 668 A.2d 223, 225 n. 2 (Pa. Cmwlth. 1995).

3
to the finality requirement for certain orders which are collateral to the main cause
of action. See Bollinger, 552 A.2d at 362.
Under the collateral order doctrine, such orders are deemed appealable
if “(a) the order is separable and collateral to the main cause of action; (b) the right
involved is too important to be denied review; and (c) the issue is such that, if the
resolution would be postponed until final judgment, it would be lost.” Gwiszcz v.
City of Philadelphia, 550 A.2d 880, 881 (Pa. Cmwlth. 1988). All three prongs
must be met in order for the rule to apply. Fried, 501 A.2d at 214. As explained
by our Supreme Court, we follow the United States Supreme Court in interpreting
this rule narrowly.

The United States Supreme Court has stated that the “collateral order
doctrine” must be narrowly applied lest it be allowed to swallow the
general rule, and has characterized the requirements for an appealable
collateral order as “stringent.” Although in Pennsylvania the doctrine
has been reduced from case law and set forth in our Rules of
Appellate Procedure as establishing a class of orders that may be
appealed as of right, it nevertheless remains a specialized, practical
application of the general rule that only final orders are appealable as
of right.

Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999) (citations omitted).

The first prong of the collateral order doctrine “ensures that the order
is sufficiently removed from the main cause of action so that the appellate court
does not review matters which are ingredients of the underlying case.” Bollinger,
552 A.2d at 362. Therefore, “we must inquire whether the claimed rights affected
by the order are also ingredients of the main cause of action.” Id. The claimed
right must be “independent and conceptually distinct” from what is to be decided
in the underlying case. Id. at 362.

4
 Regarding the first prong, Appellant argues, without clarification, “the
issue addressed by the Order is separate from the underlying negligence lawsuit
because it is conceptually distinct from the merits of Adcock’s claim.”
(Appellant’s Brief at 7-8.) In its reply brief, Appellant again argues that “whether
all claims against the Borough were extinguished upon [release of the primarily-
liable party] is purely a legal question that does not require analysis of the merits of
[Appellee’s] negligence claim.” (Appellant’s Reply Brief at 2.)
In the underlying case, Appellee alleged Appellant had primary
liability under the Real Property Exception 5 and secondary liability under the
Sidewalks Exception. (Appellee’s Brief at 9-10.) Appellee argues Appellant could
be liable under the Real Property Section if it is determined “the poorly designed
and installed sidewalk constituted a dangerous condition arising from care,
custody, and control of the real property.” (Appellee’s Brief at 10.) Appellee
further argues Appellant is liable under the Real Property Exception as the portion
of the pavement which caused her fall was improperly designed. (Appellee’s Brief
at 10.)
5
(b) Acts which may impose liability.--The following acts by a local agency or
any of its employees may result in the imposition of liability on a local agency:
....

(3) Real property.--The care, custody or control of real property in
the possession of the local agency, except that the local agency
shall not be liable for damages on account of any injury sustained
by a person intentionally trespassing on real property in the
possession of the local agency. As used in this paragraph, “real
property” shall not include:
....

(iv) sidewalks.

42 Pa.C.S. § 8542(b)(3)(iv).

5
 Appellant asserts it cannot be liable under the Real Property exception
as the language of the exception excludes sidewalks from its application.
(Appellant’s Brief at 6.) Appellant further argues it is immune to Appellee’s suit
as, pursuant to the Sidewalks Exception, it can only be secondarily-liable and,
under Pennsylvania law, “all claims against the secondarily-liable party are
extinguished upon release of the primarily-liable party.” (Appellant’s Brief at 5-6.)
Appellant’s liability under the Real Property Exception or the
Sidewalks Exception has not yet been determined. For this Court to do so would
require evaluation of whether Appellee’s improper ramp design allegation falls
under the Real Property Exception to Appellant’s governmental immunity. As
such, deciding Appellant’s immunity claim requires reviewing factual and legal
issues, or ingredients, to be decided in the main cause of action. In other words, it
is not independent and conceptually distinct from what must be decided in the
underlying case. Accordingly the instant order is not separable and collateral to
the main cause of action.
Because we hold it does not satisfy the first element of the collateral
order doctrine, we need not decide whether the claimed right is too important to be
denied review or whether postponement of appeal will cause an irreparable loss of
rights. Fried, 501 A.2d at 214. As we determine the present appeal to be
interlocutory, we do not reach the merits of Appellant’s second issue.
Accordingly, we quash this appeal.

___________________________
JOSEPH M. COSGROVE, Judge

6
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Adcock :
:
v. :
:
Telford Borough and Alice Clemens :
: No. 2730 C.D. 2015
Appeal of: Telford Borough :

ORDER

AND NOW, this 22nd day of February, 2017, the appeal of Telford
Borough is hereby quashed.

___________________________
JOSEPH M. COSGROVE, Judge