IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joisse A. Cagey and Dale J. Cagey, :

Appellants :

:

v. : No. 2650 C.D. 2015

: Submitted: May 20, 2016

Commonwealth of Pennsylvania, :

Department of Transportation, :

a Commonwealth Agency :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: July 28, 2016 

Joisse A. Cagey and Dale J. Cagey (Appellants) appeal from a final 

order of the Court of Common Pleas of Beaver County (trial court). The trial court 

granted Appellee Department of Transportation’s (DOT) Motion for Judgment on 

the Pleadings on sovereign immunity grounds. For the reasons discussed below, 

we affirm. 

The factual background of the case is set forth in Appellants’ 

complaint as follows. Appellants were travelling southbound on State Route 551 

when they encountered snow and icy patches on the roadway. Due to the icy road, 

the vehicle spun out of control and left the westerly side of the roadway. The 

vehicle impacted a guardrail adjacent to the road which penetrated the side of the 

car, resulting in substantial injuries to Appellants. Appellants alleged that the 

injuries resulted from (1) DOT’s negligent installation of the guardrail within an 
2

area that should have been transversable, (2) DOT’s negligent installation of a 

“boxing glove” type guardrail,1and (3) DOT’s failure to correct the uncrashworthy 

blunt end of the guardrail.2

DOT filed an answer and new matter on July 9, 2015, raising the 

defense of sovereign immunity. On September 8, 2015, DOT filed a motion for 

judgment on the pleadings, averring that Section 8522 of the Judicial Code, 42 Pa. 

C.S. § 8522, which is often referred to as the Sovereign Immunity Act, bars 

Appellants’ causes of action because they do not fall within any enumerated 

exceptions to the Commonwealth’s sovereign immunity set forth in that section. In 

their reply, Appellants conceded that the trial court was bound by this Court’s 

precedent to grant DOT’s motion for judgment on the pleadings. Appellants do 

not contend on appeal that the trial court judge erred in granting DOT’s motion for 

judgment on the pleadings, nor do Appellants point to a factual distinction between 

the instant case and our prior holdings. Instead, Appellants argue that this Court’s 

prior decisions have improperly expanded our Supreme Court’s holding in Dean v. 

Department of Transportation, 751 A.2d 1130 (Pa. 2000), to eliminate the 

Commonwealth’s waiver of sovereign immunity for a dangerous condition of the 

travelled portion of a roadway. 

Appellants’ argument relates to our prior interpretations of 

Section 8522(b)(4) of the Sovereign Immunity Act, commonly referred to as the 

real estate exception to sovereign immunity, which provides in pertinent part:

 

1

 A “boxing glove” type guardrail is capped by a U-shaped piece of metal. 

2 Appellants also averred that DOT improperly maintained the shoulders and roadsides of 

State Route 551, resulting in the accumulation of water and ice, thereby causing Appellants’

injuries. Appellants, however, do not pursue this argument on appeal.
3

(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 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 [a 

dangerous condition of highways under the 

jurisdiction of a Commonwealth agency 

created by potholes or sinkholes or other 

similar conditions created by natural 

elements].

As noted by Appellants, this Court has repeatedly ruled on whether 

the real estate exception to the Sovereign Immunity Act applies to the maintenance 

and design of guardrails placed alongside Pennsylvania highways. In Dean, our 

Supreme Court held that a failure to erect a guardrail does not constitute a 

dangerous condition of Commonwealth realty and, thus, does not fall under the 

real estate exception to the Sovereign Immunity Act. Dean, 751 A.2d at 1131. 

The Supreme Court in Dean reasoned that the absence of a guardrail was not a 

dangerous condition of Commonwealth realty because it did not “render the 

highway unsafe for the purposes for which it was intended, i.e., travel on the 

roadway.” Id. at 1134. In Fagan v. Department of Transportation, 946 A.2d 1123 

(Pa. Cmwlth. 2008), the appellants urged this Court to construe the Supreme 

Court’s holding in Dean narrowly and to hold that, where a guardrail exists, the 
4

Commonwealth is not immune from suits alleging that the guardrails were 

negligently designed or maintained.3The appellants in Fagan argued that the 

purpose of guardrails is to be impacted by errant vehicles, and, thus, a guardrail 

unsuited for that purpose is unsafe for the purpose for which it was intended. 

Fagan, 946 A.2d at 1126. In Fagan, we declined to so-narrowly construe the 

Supreme Court’s holding, and, in subsequent decisions, this Court has inveterately

held that the real estate exception to sovereign immunity does not extend to 

maintenance and design of guardrails. See, e.g., Lambert v. Katz, 8 A.3d 409 (Pa. 

Cmwlth. 2010); Stein v. Pa. Tpk. Comm’n, 989 A.2d 80 (Pa. Cmwlth. 2010); see 

also Svege v. Interstate Safety Serv., Inc., 862 A.2d 752 (Pa. Cmwlth. 2004) 

(considering application of real estate exception to sovereign immunity to concrete 

barriers along state highways).

In support of their argument, Appellants suggest that this Court’s 

interpretation of the real estate exception is contrary to the common law duty of a 

possessor of land.4 See Palange v. City of Philadelphia, 640 A.2d 1305 (Pa. 

Super. 1994), appeal denied sub nom. Palange v. Priori’s Bar and Rest., 666 A.2d 

 

3 Appellants specifically request that this Court overrule its holding in Fagan, an en banc

decision of this Court. Pursuant to Pennsylvania Rule of Appellate Procedure 3103 (b), an en 

banc decision of this Court is binding on any subsequent panel. Pa. R.A.P. 3103 (b). 

4 A possessor of land held open to the public is subject to liability only if he or she,

(a) knows or by the exercise of reasonable care would discover the 

condition, and should realize that it involves an unreasonable risk of harm 

to such invitee, and

(b) should expect that they will not discover or realize the danger, or will 

fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983); RESTATEMENT (SECOND) OF TORTS, § 343.
5

1057 (Pa. 1995). Where a Commonwealth agency enjoys immunity from tort 

liability, it is irrelevant that a private person would be liable for a similar act. Page 

v. City of Philadelphia, 25 A.3d 471, 476 (Pa. Cmwlth. 2011). The very purpose 

of sovereign immunity is that it precludes a litigant from asserting a claim against a 

Commonwealth agency that might otherwise be meritorious if asserted against a 

private party. State Workmen’s Ins. Fund, Cmwlth. Dep’t of Labor and Indus. v. 

Caparo Real Estate, Inc., 635 A.2d 705, 707 (Pa. Cmwlth. 1993). Further, the 

Supreme Court has instructed “[b]ecause of the clear intent to insulate government 

from exposure to tort liability, the exceptions to immunity are to be strictly 

construed.” Dean, 751 A.2d at 1132. Accordingly, we must interpret any 

exceptions to sovereign immunity narrowly, to the exclusion of new causes of 

action, rather than broadly as Appellants suggest. 

Additionally, Appellants urge that the real estate exception is 

unambiguous and that a plain reading of that statute requires this Court to consider 

guardrails as a “dangerous condition . . . of highways under the jurisdiction of a 

Commonwealth agency.” See 42 Pa. C.S. § 8522(b)(4). The Supreme Court, 

however, has interpreted the language of Section 8522(b)(4) of the Sovereign 

Immunity Act to include only the traversable portion of the roadway itself rather 

than conditions ancillary to travel on the highway. Dean, 751 A.2d at 1134 

(“Similar to the absence of lighting and the deceptive appearance of the shoulder of 

the road . . . , the absence of a guardrail cannot be said to be a dangerous condition 

of the real estate that resulted in a reasonably foreseeable injury to Appellee.”). 

For example, if the paved portion of the road were negligently constructed, the real 

estate exception may apply. See Smith v. Dep’t of Transp., 700 A.2d 587, 591 (Pa. 

Cmwlth. 1997). As we have previously noted, 
6

the General Assembly can correct any misinterpretation 

of the immunity provisions by amending the statute so as 

to explicitly waive immunity for dangerous conditions of 

guardrails. . . . Absent such legislative directive, 

however, we conclude that the real estate exception does 

not apply to the failure to install a guardrail. To date, 

however, the General Assembly has not responded to the 

invitation to “correct” the Supreme Court’s construction 

of the real estate exception to sovereign immunity as it 

relates to guardrails.

Stein, 989 A.2d at 85 (internal citations omitted). Rather than being an 

unwarranted expansion of the holding in Dean, Fagan and its progeny represent a 

logical and reasonable application of principles set forth by our Supreme Court,

which have gone uncontradicted by our legislature. 

For the reasons discussed above, we affirm the order of the trial court.

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joisse A. Cagey and Dale J. Cagey, :

Appellants :

:

v. : No. 2650 C.D. 2015

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

a Commonwealth Agency :

O R D E R

AND NOW, this 28th day of July, 2016, the order of the Court of 

Common Pleas of Beaver County is hereby AFFIRMED.

 

 P. KEVIN BROBSON, Judge