IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth King, :

Appellant :

: No. 1155 C.D. 2015

v. : Argued: April 12, 2016

:

Pittsburgh Water and Sewer :

Authority :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION

BY JUDGE SIMPSON FILED: May 27, 2016

This appeal raising a spoliation issue involves the notice requirement 

of the “Utility service facilities” exception to local agency immunity set forth in 

Section 8542(b)(5) of the statute commonly known as the Political Subdivision 

Tort Claims Act (Tort Claims Act). 42 Pa. C.S. §8542(b)(5).

More particularly, Elizabeth King (King) asks whether the Court of 

Common Pleas of Allegheny County1(trial court) erred in denying her post-trial 

motions after a non-jury verdict in favor of the Pittsburgh Water and Sewer 

Authority (Authority) in her negligence suit against the Authority. King alleged 

she suffered injuries when her leg fell through a broken and corroded sewer grate, 

which, she averred, the Authority negligently failed to maintain. King argues the 

trial court erred in failing to grant her motion for judgment non obstante veredicto

(judgment n.o.v.) or a new trial as a sanction for the Authority’s spoliation of 

 

1

The Honorable Michael E. McCarthy presided.
2

evidence, where the Authority purposefully destroyed the sewer grate that injured 

King after it received notice the sewer grate was connected to a “law claim.” She 

further asserts the trial court’s failure to issue a sanction against the Authority for 

its purposeful spoliation of evidence was contrary to public policy. Upon review, 

we affirm.

I. Background

In November 2012, King filed suit against the Authority in the trial 

court.2 Through her complaint, King alleged that, in August 2012, she attempted to 

enter a vehicle parked along the curb near the intersection of Greenfield Avenue 

and Frank Street in the City of Pittsburgh (City). As she opened the front 

passenger vehicle door and attempted to enter the vehicle, her right foot and leg 

fell through a hole in a sewer grate located on Frank Street near its intersection 

with Greenfield Avenue. King alleged that prior to August 2012 the grate was 

allowed to fall into a state of disrepair in that it was rusty and contained a hole that 

she fell through. As a result, King alleged, she suffered a large laceration on her 

right leg.

King averred the Authority owned, possessed or controlled the 

premises located at the corner of Greenfield Avenue and Frank Street, including 

the sewer grate. Thus, she alleged, the Authority was responsible to maintain the 

premises and the sewer grate. King alleged a dangerous condition existed on the 

premises in that a hole existed in the sewer grate. She alleged the Authority 

 

2 King’s suit also named the City of Pittsburgh as a defendant; however, the City was 

later dismissed from the suit by stipulation of the parties.
3

negligently failed to maintain the sewer grate, thereby allowing a hole to form and 

creating a dangerous condition. King further averred the Authority had actual or 

constructive notice of the dangerous condition and negligently failed to remedy it. 

She alleged that, had the Authority exercised reasonable care in the maintenance 

and inspection of the dangerous condition, it could have made the condition safe.

The Authority responded by filing an answer with new matter. In its 

new matter, the Authority averred it was immune from liability under the Tort 

Claims Act. Among other things, the Authority alleged it had no actual or 

constructive notice of the allegedly dangerous condition related to the sewer grate 

prior to the incident alleged in King’s complaint. King filed a reply to the 

Authority’s new matter.

The case then proceeded to arbitration, after which a board of 

arbitrators found in favor of the Authority and against King. King appealed to the 

trial court. She waived her right to a jury trial. The parties conducted discovery. 

Thereafter, the Authority filed a motion for summary judgment, which the trial 

court denied.

In May 2015, the trial court held a non-jury trial. At trial, King 

testified on her own behalf and submitted documentary evidence, including a 

photograph of the damaged sewer grate. Additionally, Rick Obermeier, an 

Authority employee, testified.
4

After the trial, the trial court entered a non-jury verdict in favor of the 

Authority and against King. King filed post-trial motions in which she asserted the 

crux of the case was whether the facts established liability against the Authority 

under the utility service facilities exception to local agency immunity. King 

acknowledged that this exception required her to prove the Authority had actual or 

constructive notice of the dangerous condition of the sewer grate as a prerequisite 

to establishing liability. King conceded she did not present evidence of actual 

notice of the broken sewer grate, but rather she presented evidence of constructive 

notice of the dangerous condition in the form of testimony and documents showing 

the Authority was in the vicinity of the broken sewer grate six times in the twoand-a-half years preceding her injury.

King further argued that Obermeier testified the Authority destroyed 

the sewer grate after it received actual notice that the grate was broken and 

connected to a “law claim.” Reproduced Record (R.R.) at 87a. She asserted the 

trial court questioned Obermeier regarding the Authority’s general practice of 

preserving evidence after receiving notice of a “law claim,” and Obermeier 

confirmed it was not the Authority’s practice to “bag and tag” or preserve 

evidence. Id. King further averred that, at closing argument, her counsel argued 

that, within the concept of constructive notice was the notion that after a defective 

condition exists for a certain period of time, the entity responsible for maintaining 

the alleged hazard “could reasonably be charged with notice,” and that argument 

strengthens with each day, month or year the condition exists. Id.
5

King asserted the Authority’s standard practice of spoliation, which 

occurred here, deprived her of the ability to test the broken grate for a scientific, 

definitive determination as to how long the grate was broken before her injury. 

Thus, she argued, the Authority based its entire defense on the concept of notice 

and engaged in spoliation that prevented her from gathering evidence as to that 

notice. As such, King asserted the Authority’s spoliation of the sewer grate 

mandated a finding of liability against the Authority.

King further asserted that in Schroeder v. Department of 

Transportation, 710 A.2d 23 (Pa. 1998), the Pennsylvania Supreme Court, adopting 

the Third Circuit’s approach in Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 

76 (3d Cir. 1994), held that, in determining the proper penalty for spoliation of 

evidence, a court should consider: (1) the degree of fault of the party who 

destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; 

and, (3) the availability of a lesser sanction that will protect the opposing party’s 

rights and deter future similar conduct.

Here, King argued, the testimony indicated, not only did the Authority 

destroy the sewer grate, but it was the Authority’s practice to destroy such 

evidence in every case. King maintained the resulting prejudice to her and all 

other similarly situated plaintiffs was, and will be, severe because this spoliation 

prevents plaintiffs from establishing the length of time an alleged defect exists, 

which directly relates to proving constructive notice. King asserted that, in such 

circumstances, had the Authority preserved and inspected the evidence, it would 

have been determined that the defective condition existed for a sufficient amount 
6

of time to establish constructive notice against the Authority. Thus, King 

requested the trial court vacate its verdict in favor of the Authority and enter 

judgment n.o.v. in her favor. Alternatively, King sought a new trial in which the 

trial court would foreclose the Authority from asserting a notice defense as a 

sanction for spoliation of evidence.

The Authority filed a response to King’s post-trial motions. The 

parties also filed briefs. Thereafter, the trial court issued an order denying King’s 

post-trial motions. King appealed, and the trial court directed her to file a concise 

statement of the errors complained of on appeal pursuant to Pa. R.A.P. 1925(b), 

which she did. The trial court then issued an opinion pursuant to Pa. R.A.P. 

1925(a).

In its opinion, the trial court explained this matter arose from a 

personal injury claim pursued under the utility service facilities exception to local 

agency immunity. The trial court stated the Authority acknowledged that it 

“controls water and catch basin main lines and other related appurtenances” within 

the City, and it admitted in its answer and new matter that it maintained the catch 

basin grate located near the corner of Frank Street and Greenfield Avenue. Tr. Ct., 

Slip Op., 9/2/15, at 3 (citing the Authority’s Answer and New Matter at ¶21). The 

Authority does not regularly or routinely inspect catch basin grates within its 

service area. Rather, it reacts to reports of apparent disrepair or of any hazards 

presented by catch basin grates when reports are received from the public or 

Authority personnel who incidentally observe such hazards or disrepair in the 

course of performing other assignments.
7

The trial court stated, to avail herself of the utility service facilities 

exception, an injured plaintiff must establish the local agency either had actual 

notice or could reasonably be charged with notice under the circumstances of a 

dangerous condition at a sufficient time prior to the event to have taken measures 

to protect against the dangerous condition.

The trial court explained King did not establish the Authority received 

any complaints, damage reports, repair orders or other records pertinent to the 

condition of the catch basin grate located near Frank Street and Greenfield Avenue 

at any time prior to the accident that occurred here. King correctly observed, 

however, that notice could also be established inferentially. Thus, where the 

record reveals a hazard existed over a substantial period, a court may reasonably 

presume the predicate of notice.

The trial court explained that King asserted the Authority’s 

destruction of the catch basin grate deprived her of the opportunity to prove the 

grate was likely damaged for some time and that an inference of notice of such 

damage was appropriate. King “insist[ed] that an inspection of the catch basin 

grate may have revealed that the grate was badly corroded and broken for a long 

time, such that [the Authority] knew or should have known of the hazard[.]” Tr. 

Ct., Slip Op., at 4 (quoting King’s Pa. R.A.P. 1925(b) Statement at 2). King 

further maintained that, because the Authority disposed of the catch basin grate—

“apparently melted it down”—after receiving notice of King’s legal claim, the 

Authority should reasonably be charged with notice of a dangerous condition under 

42 Pa. C.S. §8542(b)(5) as an appropriate sanction. Id. That sanction, King 
8

argued, should take the form of either judgment in her favor or a new trial in which 

the Authority was barred from advancing a notice defense.

The trial court explained that spoliation, by definition, is the nonpreservation or significant alteration of evidence that is pertinent to pending or 

future litigation. PTSI, Inc. v. Haley, 71 A.3d 304 (Pa. Super. 2013). In its most 

obvious form, spoliation occurs in the context of pending litigation when a party 

breaches a court’s preservation of evidence order. In that context, a court may 

reasonably presume that if evidence subject to an order is later lost, altered or 

destroyed, that evidence, had it remained available and fully preserved, would have 

established facts adverse to the party that had possession or control of the evidence 

while subject to the order. In such instances, an appropriate spoliation sanction 

may be one that accepts as true any factual allegation that the evidence would have 

been offered to prove had it not been destroyed.

Nevertheless, the trial court stated, the more common penalty for 

spoliation is less severe. It does not result in declaring the non-offending party’s 

allegation true, but rather merely permits an inference that the missing evidence 

would have been unfavorable to the party that destroyed it. See Schroeder. The 

trial court stated that has been the view of our courts for some time. See McHugh 

v. McHugh, 40 A. 410 (Pa. 1898). Thus, in McHugh, the Supreme Court stated:

The spoliation of papers and the destruction or withholding of 

evidence which a party ought to produce gives rise to a 

presumption unfavorable to him, as his conduct may properly 

be attributed to his supposed knowledge that the truth would 

operate against him. This principle has been applied in a great 

variety of cases, and it is now so well established that it is 

unnecessary to do more than state it.
9

Id. at 411.

Here, the trial court explained, King had no need to rely on a claim of 

spoliation in order to establish the catch basin grate was broken and resulted in 

injury to her. The Authority did not vigorously dispute King’s account of the event 

or her injuries. Instead, it argued that, regardless of any injury King suffered from 

a broken catch basin grate, she could not recover because the record contained no 

evidence that the Authority had prior actual or constructive notice of any 

hazardous condition. As such, the Authority asserted, King did not establish the 

exception to local agency immunity under 42 Pa. C.S. §8542(b)(5).

The trial court further stated, although King argued that an inspection 

of the grate by an expert after the injury might have revealed the grate was badly 

corroded or broken for a substantial period of time, she offered no competent 

testimony to that effect. Nor was any testimony or case law provided that 

corrosion and decay may be presumed to occur over time and that, on that basis, 

notice may be inferred. The trial court stated the mere passage of time does not 

give rise to an inference that a structure might be impaired or unsafe, so as to 

impute notice of a hazard. See generally Walden v. City of Hawkinsville, Georgia, 

191 Fed Appx. 836 (11th Cir. 2006) (culvert had been in place for 100 years or 

more).

If spoliation occurred, the trial court stated, when considering a proper 

sanction, a court must weigh three factors: (1) the degree of fault of the party who 

destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; 

and, (3) whether there is a lesser sanction that will avoid substantial unfairness to 
10

the opposing party and, where the offending party is seriously at fault, will deter 

similar conduct by others in the future. See PTSI.

Here, the trial court stated, King did not establish the second factor, 

prejudice. Because King has not—or cannot—establish that, had the grate been 

preserved, she could have shown both the approximate date of any damage to the 

grate and the fact of notice or even constructive notice to the Authority of such 

damage, King did not establish prejudice. Rather, the trial court stated, King 

asked, in effect, that some degree of prejudice be presumed because the grate could 

not be examined. However, the trial court explained, King presented no evidence 

that any expert examination of the grate would result in a determination that the 

Authority would have had notice of the broken grate in advance of her injury.

II. Issues

On appeal,3 King argues the trial court erred in failing to grant her

motion for judgment n.o.v. or a new trial as a sanction for the Authority’s 

 

3 As to the denial of a motion for judgment n.o.v., we must consider the evidence, 

together with all favorable inferences drawn therefrom, in a light most favorable to the verdict 

winner. Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010). We will reverse a trial court’s 

denial only when we find an abuse of discretion or an error of law that controlled the outcome of 

the case. Id.

There are two bases on which judgment n.o.v. can be entered: one, the movant is entitled 

to judgment as a matter of law; or two, the evidence is such that no two reasonable minds could 

disagree that the outcome should have been rendered in favor of the movant. Id. With the first, 

the court reviews the record and concludes that, even with all factual inferences decided adverse 

to the movant, the law nonetheless requires a verdict in his favor. Id. With the second, the court 

reviews the record and concludes the evidence was such that a verdict for the movant was 

beyond peradventure. Id.

In addition, in responding to a request for a new trial, a trial court must follow a two-step 

process. Daddona v. Thind, 891 A.2d 786 (Pa. Cmwlth. 2006). First, it must decide whether one 

or more mistakes occurred at trial. Id. Second, if the court concludes a mistake occurred, it must 

determine whether the mistake was a sufficient basis for granting a new trial. Id. The harmless

(Footnote continued on next page...)
11

spoliation of evidence, where the Authority purposefully destroyed the sewer grate 

that injured her after it received notice the sewer grate was connected to a “law 

claim.” King also contends the trial court’s failure to issue a sanction against the 

Authority for its purposeful spoliation of evidence was in error as contrary to 

public policy.

III. Discussion

A. Judgment n.o.v. or New Trial as Spoliation Sanction

1. Contentions

King first argues this Court should reverse the trial court’s order that 

denied her motion for judgment n.o.v. or, alternatively, a new trial in which the 

Authority was precluded from offering a notice defense. She asserts the trial court 

reached an erroneous finding that the Authority’s spoliation of evidence did not 

warrant a sanction under the three-factor test adopted by our Supreme Court in 

Schroeder. Specifically, King contends, the trial court improperly held that King 

did not establish she was prejudiced by the Authority’s spoliation.

 

(continued...)

error doctrine underlies every decision to grant or deny a new trial. Id. A new trial is not 

warranted merely because some irregularity occurred during the trial or another trial judge would 

rule differently; the moving party must show prejudice resulting from the mistake. Id.

As an appellate court, to review the two-step process of the trial court for granting a new 

trial, we also employ a two prong analysis. Id. First, we examine the decision of the trial court 

that a mistake occurred. In so doing, we must apply the appropriate standard of review. Id. If 

the alleged mistake involved an error of law, we must scrutinize for legal error. Id. If, on the 

other hand, the alleged mistake involved a discretionary act, we must review for an abuse of 

discretion. Id. If there were no mistakes at trial, we must affirm a decision by the trial court to 

deny a new trial as the court cannot order a new trial where no error of law or abuse of discretion 

occurred. Id.
12

King maintains she was prejudiced by the Authority’s purposeful 

destruction of the sewer grate because without an examination of it, King was 

unable to offer any testimony as to how long the grate may have been in a state of 

disrepair. King argues that, being unable to present an opinion as to the period of 

time the grate may have been broken or badly corroded prevented her from 

rebutting the Authority’s notice defense and establishing an inference that the 

Authority had constructive notice of the grate’s condition prior to her injury. Thus, 

King contends, her inability to examine and present at trial the only piece of 

physical evidence that could be used to establish constructive notice substantially 

prejudiced her case-in-chief.

King points out that in Schroeder, our Supreme Court “recognized 

that a common penalty for spoliation is a jury instruction allowing an inference that 

the missing evidence would have been unfavorable to the party that destroyed it.” 

Id. at 26-27 (citing Schmid, 13 F.3d at 78). King argues that the Schmid analysis, 

adopted by our Supreme Court in Schroeder, was applied in Pia v. Perrotti, 718 

A.2d 321 (Pa. Super. 1998), where a warehouse owner sued an electrical 

contracting firm after the destruction of her warehouse by an electrical fire. Upon 

an investigation of the warehouse after the fire, the owner preserved only the 

electrical equipment she deemed relevant to the cause of the fire. The common 

pleas court gave the jury a spoliation instruction. The Superior Court upheld the 

instruction, finding the warehouse owner was at fault for failing to preserve all of 

the electrical equipment and the defendant electrical contracting firm was 

prejudiced in its inability to present alternative causes of the fire.
13

Under the Schmid analysis, King contends, the first prong is 

established where a party knows litigation is pending or likely, and it is foreseeable 

that discarding the evidence will prejudice the opposing party. Mt. Olivet 

Tabernacle Church v. Edwin L Wiegard Div., 781 A.2d 1263 (Pa. Super. 2001). 

Here, King argues, under the first prong, the Authority bears complete fault for 

destroying the evidence. She asserts the Authority admittedly destroyed the sewer 

grate. See Tr. Ct., Non-Jury Trial, Notes of Testimony (N.T.), 5/5/15, at 29; R.R. 

at 53a. Moreover, the Authority knew litigation was likely because it had actual 

notice that the grate was connected to a “law claim,” and, therefore, it was also 

aware that destroying the grate would prejudice King to a high degree. Further, the 

Authority’s testimony established it is the Authority’s practice to destroy such 

evidence in every case. N.T. at 41; R.R. at 65a.

King maintains the Authority’s conduct is more egregious than that of 

the offending party in Pia because, unlike in Pia where the evidence thought 

relevant by the offending party was preserved, here no attempt was made to 

preserve the sewer grate. Even worse, King argues, while the offending party in 

Pia ostensibly acted in good faith by preserving the evidence she believed was 

relevant, the Authority here had notice the grate was likely to be the subject of 

litigation and nonetheless purposefully destroyed it. Thus, King contends, the 

Authority bears complete fault for destruction of the sewer grate.

Under the second prong, King asserts, the court must measure the 

degree of prejudice suffered by the opposing party. In its opinion, the trial court 

wrote that King did not satisfy this prong because no evidence was provided that 
14

an examination of the grate “might have revealed that the grate had been badly 

corroded or broken for a substantial period of time” nor how such an examination 

“would have resulted in a determination that [the Authority] would have had notice 

of the broken grate ....” Tr. Ct., Slip Op. at 5-6. To support the point, the trial 

court added, “[no] testimony or case law was provided to the effect that corrosion 

and decay may be presumed to occur over time and that, on that basis, notice may 

be inferred.” Id.

King argues the trial court’s reasoning puts the “cart before the

horse.” Br. of Appellant at 16. To begin, King asserts, the reason she was unable 

to show an examination of the grate “might have revealed that the grate had been 

badly corroded or broken for a substantial period of time” was because of the 

Authority’s act of spoliation. Id. (quoting Tr. Ct., Slip Op., at 5). King maintains 

this is precisely the reason she was so prejudiced by the spoliation. She contends 

an examination of the grate itself was the only means through which such a 

determination could be made—when the Authority destroyed the grate, it also 

destroyed any chance for King to prove the grate was in a state of disrepair for a 

substantial amount of time. In short, King argues, the fact that she was unable to 

show through any alternative means that the grate may have been in a state of 

disrepair for a substantial period prior to the incident directly reflects the prejudice 

she suffered as a result of its spoliation.

King further asserts the trial court supplemented its opinion by stating, 

even if King could show the grate was badly corroded or broken for a substantial 

period, such evidence would still be insufficient to prove the Authority should be 
15

charged with notice. This is because “[t]he mere passage of time does not give rise 

to an inference that a structure might be impaired or unsafe, so as to impute notice 

of a hazard.” Br. of Appellant at 17 (quoting Tr. Ct., Slip Op. at 6). In support of 

this statement, the trial court cited Walden, an Eleventh Circuit opinion that is not 

binding here.

Regardless of any Eleventh Circuit precedent, King maintains, 

Pennsylvania law is clear that the amount of time a defect or dangerous condition 

exists is an important consideration in charging a party with constructive notice. 

See Rogers v. Horn & Hardart Baking Co., 127 A.2d 762, 764 (Pa. Super. 1956).

Further, King argues, the trial court’s point that “no testimony or case 

law [was] provided to the effect that corrosion and decay may be presumed to 

occur over time and that, on that basis, notice may be inferred,” Br. of Appellant 

at 18 (quoting Tr. Ct., Slip Op. at 5-6), should not defeat King’s ability to satisfy 

the second prong. King contends, if the Authority did not destroy the grate, an 

expert could have examined it and from that examination could have formulated an 

opinion as to how the corrosion and decay process occurs generally and how it 

occurred specifically to this grate. However, because of the Authority’s spoliation, 

King was barred from having an expert examine the grate.

Therefore, King asserts, under the second prong, she was prejudiced 

by the Authority’s intentional action of spoliation. Discarding the sewer grate 

destroyed the only available physical evidence. Absent an examination of the 
16

grate, King contends she had no way to prove the length of time the defect existed, 

which, under Pennsylvania law, goes directly to constructive notice.

Lastly, King maintains, under the third prong, the only proper 

sanction at this point is for this Court to reverse the trial court’s denial of King’s 

post-trial motions. King argues the Authority stripped her of her right and ability 

to prove constructive notice when it intentionally destroyed the sewer grate. As a 

bench trial, King asserts, she was offered no recourse in the form of a jury 

instruction, nor was she provided any alternative relief in the form of some other 

sanction. King contends that, because she established: (1) the Authority destroyed 

the evidence when it had notice it was connected to a “law claim”; (2) it was 

foreseeable that the destruction would prejudice King in pursuing that claim; and, 

(3) that the destruction did, in fact, prejudice King’s case-in-chief, she should now 

be granted a sanction against the Authority.

2. Analysis

Generally, a local agency is immune from suit for injuries to person or 

property. See Section 8541 of the Judicial Code, 42 Pa. C.S. §8541. However, 

liability may be imposed where (1) damages would be recoverable at common law 

or under a statute creating a cause of action if the injury were caused by a person 

not protected by immunity, and (2) the claim falls within one of the statutory 

exceptions to governmental immunity in Section 8542(b) of the Judicial Code. 42 

Pa. C.S. §8542; Mandakis v. Borough of Matamoras, 74 A.3d 301 (Pa. Cmwlth. 

2013). Of relevance here is Section 8542(b)(5), which provides an exception to 

immunity for:
17

(5) Utility service facilities.--A dangerous condition of the 

facilities of steam, sewer, water, gas or electric systems owned 

by the local agency and located within rights-of-way, 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.

42 Pa. C.S. §8542(b)(5) (emphasis added). Exceptions to immunity are narrowly 

construed. Lory v. City of Phila., 674 A.2d 673 (Pa. 1996).

The central issue here is whether the Authority had notice of the 

allegedly dangerous condition of the sewer grate at a sufficient time prior to the 

incident to have taken measures to protect against the dangerous condition. Before 

the trial court, King conceded she did not present evidence that the Authority had

actual notice of the allegedly dangerous condition. See N.T. at 56; R.R. at 80a; 

R.R. at 87a (King’s Motion for Post-Trial Relief). Rather, King argued the 

Authority had constructive notice.

“Spoliation of evidence is the non-preservation or significant 

alteration of evidence for pending or future litigation.” Pyeritz v. Commonwealth, 

32 A.3d 687, 692 (Pa. 2011). The doctrine of spoliation provides that a party may 

not benefit from its own destruction or withholding of evidence. Manson v. 

Southeastern Pa. Transp. Auth., 767 A.2d 1 (Pa. Cmwlth 2001).

“When a party to a suit has been charged with spoliating evidence in 

that suit (sometimes called ‘first-party spoliation’), [our Supreme Court] [has] 
18

allowed trial courts to exercise their discretion to impose a range of sanctions 

against the spoliator.” Pyeritz, 32 A.3d at 692 (citing Schroeder). The decision of 

whether, and how, to sanction a party rests within the sound discretion of the trial 

court. Creazzo v. Medtronic, Inc., 903 A.2d 24 (Pa. Super. 2006). Thus, when 

reviewing a court’s decision to grant or deny a spoliation sanction, we must 

determine whether the court abused its discretion. Mt. Olivet Tabernacle Church.

An abuse of discretion exists when the trial court renders a judgment

that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, 

or was motivated by partiality, prejudice, bias, or ill will. Harman ex rel. Harman 

v. Borah, 756 A.2d 1116 (Pa. 2000). A finding by an appellate court that it would

have reached a different result than the trial court does not constitute a finding of 

an abuse of discretion. Id. “Where the record adequately supports the trial court’s 

reasons and factual basis, the court did not abuse its discretion.” Id. at 1123 

(citations omitted).

In Schroeder, our Supreme Court, adopting the Third Circuit’s 

approach in Schmid, held that, in determining the proper penalty for spoliation of 

evidence, a court should consider: (1) the degree of fault of the party who altered 

or destroyed the evidence; (2) the degree of prejudice suffered by the opposing 

party; and, (3) the availability of a lesser sanction that will protect the opposing 

party’s rights and deter future similar conduct. After a court conducts this threefactor analysis, it is in a better position to determine what sanction is appropriate. 

Troup v. Tri-Cnty. Confinement Sys., Inc., 708 A.2d 825 (Pa. Super. 1998).
19

In Tri-County Confinement, the Superior Court noted that sanctions 

available to a trial court under the spoliation doctrine are: dismissal; striking out 

pleadings or portions of pleadings; prohibiting the introduction of evidence; and, 

permitting the inference at trial that the destroyed evidence would have been 

harmful to the offending party. See Schroeder.

Here, in rejecting King’s intertwined assertions relating to spoliation 

and constructive notice under the “utility service facilities” exception to local 

agency immunity, the trial court explained (with emphasis added):

To avail [herself] of the exception stated in §8542(b)(5), 

an injured claimant must establish that the local agency either 

had actual notice of the dangerous condition at a sufficient time 

in advance of the event causing the injury to have either 

effected repairs or taken other adequate measures to protect 

against such injuries or could reasonably be charged with such 

notice. [King] concedes that proof of actual or constructive 

notice of a dangerous condition notice is a necessary element of 

her claim.

[King] did not establish that any complaints, damage 

reports, repair orders or other records pertinent to the condition 

of the catch basin grate at the Frank Street and Greenfield 

Avenue location had been received by [the Authority] at any 

time in advance of the accident and injury that resulted in this 

case. [King] correctly observes, however, that notice may also 

be established inferentially. Where a record demonstrates that a 

hazard has existed over a substantial length of time, a court may 

reasonably presume the predicate of notice.

In the matter at hand, [King] argues that [the Authority’s] 

destruction of the catch basin grate deprived [King] of the 

opportunity to demonstrate to the court that the grate had likely 

been damaged for some time and that an inference of notice of 

such damage was appropriate. [King] insists that an inspection 

of the catch basin grate ‘may have revealed that the grate was 

badly corroded and broken for a long time such that [the 
20

Authority] knew or should have of the hazard[.]’” [King’s 

1925(b) Statement at 2]. Because [the Authority] disposed of 

the catch basin grate – apparently ‘melted it down’ – after 

receiving notice of [King’s] legal claim, [King] maintains that 

[the Authority] should reasonably be charged with notice of a 

dangerous condition under [42 Pa. C.S. §8542(b)(5)] as an 

appropriate sanction. That sanction, [King] argues, should take 

the form of either judgment in [King’s] favor or a new trial in 

which [the Authority] is barred from advancing a notice 

defense. ...

In its most obvious form, spoliation occurs in the context of 

current litigation when a party breaches a preservation of 

evidence order that has been put in place by the court. In that 

context, a court may reasonably presume that if evidence that is 

subject to such an order is subsequently lost, altered or 

destroyed, that evidence, had it remained available and fully 

preserved, would have established facts adverse to the party that 

had possession or control of the evidence while subject to the 

preservation order. In such instances, an appropriate spoliation 

sanction may be one that accepts as true any factual allegation 

that the evidence would have been offered to prove had it not 

been destroyed.

The more common penalty for spoliation, however, is 

less severe. It does not result in declaring the non-offending 

party’s allegation true, but merely permits an inference that the 

missing evidence would have been unfavorable to the party that 

destroyed it. [See Schroeder]. ...

In the matter at hand, [King] has no need to rely upon a 

claim of spoliation to establish that the catch basin grate ... was 

broken and resulted in an injury to [King]. [The Authority] 

does not vigorously dispute [King’s] account of events or her 

injuries. [The Authority] instead argues that, irrespective of any 

injury resulting to [King] from a broken catch basin grate, she 

cannot recover against [the Authority] because the record 

provides no evidence that [the Authority] had actual or 

constructive advance notice of any hazardous condition. 

Therefore, plaintiff failed to establish any exception to 

governmental immunity under [42 Pa. C.S. §8542(b)(5)].
21

Although [King] contends that an inspection of the grate 

by an expert after the fact of the injury might have revealed that 

the grate had been badly corroded or broken for a substantial 

period of time, [King] offered no competent testimony to that 

effect. Nor was any testimony or case law provided to the 

effect that corrosion and decay may be presumed to occur over 

time and that, on that basis, notice may be inferred. The mere 

passage of time does not give rise to an inference that a 

structure might be impaired or unsafe, so as to impute notice of 

a hazard. [See generally Walden].

If spoliation has occurred, then, when considering an 

appropriate sanction for such conduct, a trial court must weigh 

three factors .... In this case, the second of those essential 

factors has not been established by [King]. Because [King] has 

not - or cannot -- establish that, had the grate been preserved, 

[King] could then have demonstrated both the approximate date 

of any damage to the grate and the fact of notice or even 

constructive notice to [the Authority] of such damage, prejudice 

to [King’s] case has not been established. Rather, [King] asks, 

in effect, that some degree of prejudice be presumed because 

the grate cannot be examined. No evidence was provided that 

any expert examination of the grate would have resulted in a 

determination that [the Authority] would have had notice of the 

broken grate in advance of [King’s] accident and injury.

Tr. Ct., Slip Op., at 3-6. No abuse of discretion is apparent in the trial court’s 

denial of King’s requested spoliation sanction of either judgment n.o.v. or a new 

trial based on the Authority’s spoliation of the sewer grate.

To that end, our review of the record supports the trial court’s 

determination that King did not offer any evidence that an inspection of the grate 

by an expert may have revealed the grate was badly corroded or broken for a 

substantial period, or that the effect of any such corrosion or decay could be 

presumed to occur over time and, on that basis, notice could be inferred. Indeed, 

King did not identify a materials expert as a possible witness or assert that she ever 
22

contacted one. Additionally, King offers no explanation as to why she could not 

have provided such opinion evidence based on the large, color photograph of the 

damaged sewer grate she presented at trial. See Certified Record, Non-Jury Trial, 

5/5/15, Plaintiff’s Ex. 5; Br. of Appellant, Ex. B. at 5. Thus, because King did not 

present any competent proof that, had the grate been preserved, she could show 

both the approximate date of any damage and the fact of constructive notice to the 

Authority, she did not establish prejudice, the second prong of the Schroeder

analysis. Rather, as the trial court indicated, King asked, in effect, that the trial 

court presume prejudice.

In addition, while the trial court did not expressly address the first 

prong of the Schroeder analysis, the degree of fault of the party who destroyed the 

evidence, we note, evaluation of that prong requires consideration of two 

components: the extent of the offending party’s duty to preserve the evidence, and 

the presence or absence of bad faith. Creazzo. The duty prong, in turn, is 

established where: the offending party knows litigation against it is pending or 

likely; and, it is foreseeable that discarding the evidence would be prejudicial. Id.

Here, Authority employee Obermeier acknowledged that, when the 

Authority inspected the sewer grate in October 2012, it knew the grate was 

connected to a “law claim.” N.T. at 29; R.R. at 53a. Nevertheless, the sewer grate 

was “scrapped” and replaced by the Authority. Id.; N.T. at 39; R.R. at 63a.

Further, Obermeier confirmed it was not the Authority’s practice to “bag and tag” 

or preserve evidence. N.T. at 41; R.R. at 65a. However, despite the Authority’s 

knowledge that the grate was connected to a “law claim,” the record does not 
23

clearly show the Authority was aware that discarding and replacing the damaged 

sewer grate would be prejudicial. And, as set forth above, the trial court’s 

supported determination reveals that King did not prove prejudice to her case as a 

result of the destruction of the grate.

In addition, as to the second component of fault, i.e., bad faith, neither 

at trial nor in her post-trial motions did King assert the Authority acted in bad faith 

in destroying the sewer grate. Thus, consideration of the first prong of the 

Schroeder analysis, fault, particularly when coupled with the trial court’s supported 

finding of lack of prejudice, does not warrant the severe spoliation sanction King 

seeks.

Nevertheless, King cites Pia, in which the Superior Court upheld a 

trial court’s decision to charge a jury that it could draw a spoliation inference 

against a plaintiff where the plaintiff did not preserve all electrical equipment 

related to a fire in a warehouse she owned. King argues the Authority’s conduct 

here is more egregious than the plaintiff in Pia, warranting a more severe sanction.

However, in neither Pia nor any other case King cites did a court 

determine that a grant of judgment n.o.v. or a new trial in a party’s favor was an 

appropriate spoliation sanction. Indeed, as the Superior Court in Mount Olivet 

Tabernacle Church, pointed out, even in a case where the offending party was 

highly culpable and prejudice to the non-offending party was severe, a federal trial 

court declined to dismiss the offending party’s case because it considered such a 

sanction too punitive. Id. at 1273 n.9 (citing Henkel Corp. v. Polyglass USA, Inc., 
24

194 F.R.D. 454, 456-457 (E.D. N.Y. 2000)); see also Baliotis v. McNeil, 870 

F.Supp. 1285, 1289 (M.D. Pa. 1994) (“A sanction that has the ‘drastic’ result of 

judgment being entered against the party who has lost or destroyed evidence, must 

be regarded as a ‘last resort,’ to be imposed only ‘if no alternative remedy by way 

of a lesser, but equally efficient sanction is available.’”) (internal citations 

omitted); Thompson v. Workers’ Comp. Appeal Bd. (USF&G Co.), 781 A.2d 

1146, 1149 n. 4 (Pa. 2001) (“It bears noting that barring a claim entirely ... is the 

most extreme of sanctions and not one ineluctably commanded by Schmid.”).

In short, based on the trial court’s supported determination that King 

did not suffer prejudice, the second prong of the Schroeder analysis, and the 

absence of bad faith by the Authority in destroying the grate, we discern no abuse 

of discretion in the trial court’s decision not to grant King’s post-trial motions. 

Further, although King requested such relief in her post-trial motions, in her 

closing argument to the trial court she merely asserted she was entitled to a 

spoliation inference as a sanction for destruction of the sewer grate. N.T. at 55-56; 

R.R. at 79a-80a.

As a final point, King cites the Superior Court’s 1956 decision in 

Rogers for the proposition that: “What constitutes constructive notice must depend 

on the circumstances of each case, but one of the most important factors to be 

taken into consideration is the time elapsing between the origin of the defect or 

hazardous condition and the accident.” Id. at 764. However, Rogers does not 

support King’s position. In that case, which did not involve an immunity statute, 

the Superior Court reversed a common pleas court’s grant of judgment n.o.v. in 
25

favor of a plaintiff who suffered a slip and fall at a restaurant allegedly caused by 

the existence of liquid on the floor. Among other things, the Court determined the 

plaintiff presented no evidence from which the fact-finder could infer that the 

owner had actual or constructive notice of the existence of the alleged hazardous 

condition that it negligently failed to correct as “there [was] no testimony as to 

how or when this slippery substance came to be on the floor.” Id. at 764. Thus, 

there was nothing to show that the liquid was there for a sufficient period of time 

to place the restaurant on notice.

Similar to the plaintiff in Rogers, King presented no evidence here

from which the trial court could infer that the Authority had constructive notice of 

the alleged defect in the sewer grate. King offered no evidence, expert or 

otherwise, as to the age of the grate or the length of time the defective condition 

existed, and, while she attributed this failure to the Authority’s destruction of the 

grate, she did not establish that, had the grate been preserved, she could have 

demonstrated both the approximate date of any damage to the grate and the fact of 

constructive notice of such damage to the Authority. Thus, King presented no 

evidence that any expert examination of the grate would have resulted in a 

determination that the Authority had notice of the broken grate at a sufficient time 

in advance of the incident to have taken measures to protect against the dangerous 

condition. Rather, King relied on the argument of her attorney that she suffered 

prejudice as a result of the Authority’s destruction of the sewer grate. However, an 

attorney’s statements or questions at trial are not evidence. Commonwealth v. La 

Cava, 666 A.2d 221 (Pa. 1995); Anderson v. Dep’t of Transp., Bureau of Driver 

Licensing, 744 A.2d 825 (Pa. Cmwlth. 2000). Similarly, statements in briefs do 
26

not constitute evidence of record. Sch. Dist. of Pittsburgh v. Provident Charter 

Sch. for Children with Dyslexia, ___ A.3d ___ (Pa. Cmwlth., No. 598 C.D. 2015, 

filed February 26, 2016).

In addition, King offers no explanation as to why an expert could not 

have provided testimony regarding the length of time the damage to the grate 

existed or how that could have placed the Authority on constructive notice based 

on the large, color photograph of the damaged sewer grate she presented rather 

than the grate itself. See Plaintiff’s Ex. 5; Br. of Appellant, Ex. B. at 5. Thus, we 

discern no basis upon which to disturb the trial court’s determination on this issue.

B. Notice/Public Policy

1. Contentions

King also argues that failing to issue an appropriate sanction against 

the Authority for its policy of spoliation—which is carried out even after it 

receives actual notice that key evidence in its possession is connected to a “law 

claim”—offends public policy as it rewards the Authority’s conduct. To that end, 

King asserts: (1) the Authority is a public agency and its property exists for the 

public to walk and drive on; (2) nevertheless, the Authority admits it does not 

inspect its property; (3) the Authority only inspects and performs maintenance after 

someone complains or is hurt, N.T. at 22; R.R. at 46a; (4) the Authority then 

disclaims any notice of a dangerous condition of its property; and, (5) the 

Authority destroys evidence that could be used to establish constructive notice, 

N.T. at 41; R.R. at 65a.
27

King contends these practices are contrary to the “utility service 

facilities” exception to local agency immunity as well as public policy more 

broadly. She acknowledges that it is clear from the language of the exception that 

proof of notice is required for a plaintiff to recover. See 42 Pa. C.S. §8542(b)(5). 

However, she argues the statute is equally clear that actual notice is not required;

rather, a plaintiff may recover if she can establish the agency “could reasonably be 

charged with notice under the circumstances.” Id. In other words, if all other 

elements of liability are proven, a plaintiff will recover if she shows the agency had 

constructive notice of the dangerous condition.

King contends that, by including the constructive notice provision in 

this exception, it is evident the General Assembly sought to impose a duty on local 

agencies that own sewer facilities to take reasonable measures to inspect and 

maintain those facilities, even when not given actual notice that a defect or 

dangerous condition exists. See 1 Pa. C.S. §1921. King argues this makes sense 

because (1) the facilities are put in place for the protection and benefit of the 

public; and, (2) as a public utility, the Authority is charged under Pennsylvania law 

with a duty to inspect its property to ensure it is in a safe condition. See Section 

1501 of the Public Utility Code, 66 Pa. C.S. §1501 (“Every public utility shall 

furnish and maintain adequate, efficient, safe, and reasonable service and facilities, 

and shall make all such repairs, changes, alterations, substitutions, extensions, and 

improvements in or to such service and facilities as shall be necessary or proper for 

the accommodation, convenience, and safety of its patrons, employees, and the 

public. ...”). King argues the Authority’s conduct here is in derogation of its duties 

as a property owner and a public utility agency.
28

King asserts that, unless the Authority receives actual notice of a 

dangerous condition and fails to remedy the condition within a reasonable time 

after which an injury results, the Authority could never be held liable under the 

utility service facilities exception. In other words, King contends, the Authority’s 

policy of non-inspection renders the constructive notice provision of the exception 

meaningless.

King further maintains that, even assuming the Authority’s policy of 

non-inspection does not render the constructive notice provision superfluous in and 

of itself, the Authority’s policy of spoliation most certainly does. This is because 

even if the Authority could be charged with constructive notice through proof that 

a particular condition existed for a long period, a plaintiff could never make such a 

showing based on the Authority’s policy of spoliation. King argues this is 

particularly relevant in the context of injuries arising from sewer grates because 

through no other means, besides actually examining the grate, can an inference of 

constructive notice be shown.

Lastly, King urges this Court to consider the broader impacts an 

affirmation of the trial court’s ruling may have on the public. To that end, she 

argues, although her injuries were by no means minor, there is no doubt they could 

have been far worse. King asserts the next victim may be elderly or adolescent and 

may suffer injuries far more severe than those King sustained. Under such 

circumstances, she argues, it would offend our society’s common sense notion of 

justice to deny relief to the victim merely because the Authority owns a lot of 

sewer grates, has no policy for regular inspection, and destroys any and all 
29

evidence that could otherwise be used to establish liability. King contends the 

sanction she now advocates for is necessary to deter the intentional practice of 

spoliation currently used by the Authority. If left unsanctioned, King argues, the 

Authority will continue to employ its practice of spoliation, thereby prejudicing all 

future similarly situated plaintiffs by preventing them from establishing the length 

of time an alleged defect exists, which goes directly to proving constructive notice.

2. Analysis

Initially, we reject the Authority’s argument that King waived the 

issue regarding the Authority’s constructive notice of the damaged sewer grate. As 

the Authority acknowledges, King filed her Pa. R.A.P. 1925(b) Statement prior to 

the trial court’s issuance of its opinion here. Thus, at the outset of her 1925(b) 

Statement, King stated: “The trial court has not written an opinion. Therefore, 

[King] cannot readily discern the basis for the trial court’s decision. Accordingly, 

[King] will identify the errors complained of in general terms pursuant to Pa. 

R.A.P. 1925(b)(4)(vi).” See Br. for Appellee, App. C. In turn, Pa. R.A.P. 

1925(b)(4)(vi) provides:

If the appellant in a civil case cannot readily discern the basis 

for the judge’s decision, the appellant shall preface the 

Statement with an explanation as to why the Statement has 

identified the errors in only general terms. In such a case, the 

generality of the Statement will not be grounds for finding 

waiver.

Id. Thus, under the circumstances presented here, King was permitted to express 

her claims of error in general terms. Further, although the Authority argues that, in 

a case such as this, where the Authority’s principal defense at trial was the lack of 

prior constructive notice, it is not mere “generality” to omit reference to the 
30

Authority’s lack of prior constructive notice, our review of King’s 1925(b) 

Statement reveals King did, in fact, briefly address the issue of constructive notice. 

See Br. for Appellee, App. C at 2. As such, King did not waive the issue of 

whether the Authority had constructive notice of the alleged dangerous condition 

of the sewer grate.

Notably, however, aside from King’s argument that the Authority’s 

destruction of the sewer grate prevented her from proving notice, in both her 

1925(b) Statement and her brief to this Court, King does not clearly present a 

stand-alone argument that the City had constructive notice of the alleged dangerous 

condition of the sewer grate.

In any event, regardless of the Authority’s claims of waiver, as

explained above, the trial court correctly explained that King did not establish the 

Authority had actual or constructive notice of the allegedly dangerous condition of 

the sewer grate at issue at a sufficient time prior to the incident to have taken 

measures to protect against the dangerous condition. To that end, although at trial 

King presented six notification forms that documented complaints the Authority 

received concerning its water or sewer facilities at various locations within blocks 

of the sewer grate at issue, see N.T. at 25-27; R.R. at 49a-51a, King presented no 

evidence that the Authority received any complaints regarding either the sewer 

grate at issue or any other sewer grates at the intersection of Frank Street and 

Greenfield Avenue prior to the incident. N.T. at 28-29; R.R. at 52a-53a; N.T. at 

32-34; R.R. at 56a-58a; N.T. at 35-36; R.R. at 59a-60a.
31

Further, the following exchange occurred during King’s counsel’s 

cross-examination of Obermeier, the Authority’s witness:

Q. And to your knowledge, there wasn’t any investigation as 

to what caused the [sewer grate at issue] to break, 

correct?

A. No, there would be no way how we could -- a car could 

have drove over it and broke it, whatever, you know.

Q. And there would have been no investigation by the 

[Authority] as to how long that grate may have been 

broken before you received the complaint about [King’s] 

injury, correct?

A. We would have no way of knowing that.

N.T. at 29; R.R. at 53a.

In short, because notice was an essential element to King’s suit, 

without proof of notice King could not recover under the utility service facilities 

exception to local agency immunity. See, e.g., Gramlich v. L. Southampton Twp., 

838 A.2d 843 (Pa. Cmwlth. 2003) (rejecting plaintiffs’ assertions that township 

had constructive notice under “streets” exception to local agency immunity of 

dangerous condition arising out of open drainage pipe constructed by homeowner 

adjacent to paved portion of public street based on township’s repair of similar 

problems for other property owners and because road was previously paved); 

Kennedy v. City of Phila., 635 A.2d 1105 (Pa. Cmwlth. 1993), aff’d per curiam, 

658 A.2d 788 (Pa. 1995) (rejecting plaintiffs’ assertions that city had constructive 

notice of dangerous condition arising out of absence of pedestrian lane on street 

under “traffic controls” exception to local agency immunity where plaintiffs’ 

evidence did not show city had knowledge of specific dangerous condition, i.e., 
32

lack of dotted lines separating area for pedestrian and vehicle lanes); Fenton v. 

City of Phila., 561 A.2d 1334 (Pa. Cmwlth. 1989), aff’d, 585 A.2d 1003 (Pa. 1991) 

(rejecting plaintiff’s assertion that city had constructive notice of dangerous 

condition under “traffic controls” or “streets” exceptions to local agency immunity 

arising out of city’s failure to paint left hand turning lane on street, where none of 

plaintiff’s evidence dealt with specific problem of lack of a left hand turning lane 

on street or that city was informed of such a problem).

In addition, contrary to what King characterizes as the Authority’s 

policy of “non-inspection” of its sewer grates, Authority employee Rick Obermeier 

testified that the Authority conducts inspections of its sewer grates in response to 

complaints, and that, when it responds to such complaints, it also inspects other 

sewer grates in the same intersection for damage. N.T. at 22-23; R.R. at 46a-47a. 

In Gramlich, this Court, interpreting the constructive notice language in the “streets 

exception,” observed: “[I]t is unreasonable to require a municipality to patrol its 

streets every day for possible defects created by its citizens that may subject it to 

liability.” Id. at 847, n.3; see also Brautigam v. Allegheny Cnty., (Pa. Cmwlth., 

No. 480 C.D. 2008, filed January 28, 2009) (unreported), slip op. at 23, 2009 WL 

9102313 at *10 (“[I]t is unreasonable to require [c]ounty employees to survey 

every remote area of a large park in search of dangerous conditions.”)4 This 

statement is particularly true here where the record reveals there are approximately 

25,000 sewer catch basins in the City. N.T. at 30; R.R. at 54a.

 

4

Pursuant to Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code 

§69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited 

for its persuasive value.
33

Finally, although King advances several policy arguments, this Court 

must apply the language of the statute as written. See, e.g., Herd Chiropractic 

Clinic, P.C. v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058, 1067 (Pa. 2013) (“in 

the absence of a demonstrated constitutional infirmity, courts generally must apply 

plain terms of statutes as written; they are to confine efforts to effectuate legislative 

intent—above and beyond the prescriptions of written laws—to ambiguous 

provisions; and they are to enforce the longstanding responsibility allocated to the 

policymaking branch to provide for [a particular remedy], when it is deemed 

appropriate, through explicit pronouncements.”). And, as indicated above, “[i]n 

accordance with the General Assembly’s expressed intent to insulate local agencies 

from tort liabilities, the statutory language of the exceptions to governmental 

immunity contained in Subsection 8542(b) of the Tort Claims Act must be 

construed narrowly; immunity remains the rule.” Gale v. City of Phila., 86 A.3d 

318, 320 (Pa. Cmwlth. 2014) (emphasis added) (citation omitted).

Based on the foregoing, we affirm.

 

ROBERT SIMPSON, Judge

Judge Wojcik did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth King, :

Appellant :

: No. 1155 C.D. 2015

v. :

:

Pittsburgh Water and Sewer :

Authority :

O R D E R

AND NOW, this 27th day of May, 2016, the order of the Court of 

Common Pleas of Allegheny County is AFFIRMED.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elizabeth King, :

Appellant :

:

v. : No. 1155 C.D. 2015

: Argued: April 12, 2016

Pittsburgh Water and Sewer :

Authority :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

CONCURRING OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: May 27, 2016

I concur in the majority’s holding that Elizabeth King is not entitled to 

judgment non obstante veredicto or a new trial for the reason that the Pittsburgh 

Water and Sewer Authority destroyed the rusted sewer grate through which she 

fell, resulting in bodily injury. She was required to prove prejudice by the 

Authority’s destruction of relevant evidence, and she did not do so.1

I write separately to clarify what is required for a local agency’s 

notice of a dangerous condition. A specific complaint to the Authority about the 

disintegration of the sewer grate was not necessary to establish notice. To the 

extent this is suggested by the majority, I disagree with that suggestion. See

majority slip op. at 31-32 (citing Kennedy v. City of Philadelphia, 635 A.2d 1105 

(Pa. Cmwlth. 1993), and Fenton v. City of Philadelphia, 561 A.2d 1334 (Pa. 

Cmwlth. 1989)). Instructive is our Supreme Court’s decision in Department of 

Transportation v. Patton, 686 A.2d 1302 (Pa. 1997), which held that a local 

 

1 King needed evidence that with the grate, she could have shown that the dangerous condition of 

the grate was apparent upon reasonable inspection. Alternatively, she needed to show that an 

expert could not provide such testimony solely on the basis of a photograph. 
MHL-2

agency can be found to have constructive notice where the evidence shows that the 

dangerous condition was “apparent upon a reasonable inspection.” Id. at 1304. In 

short, constructive notice does not require a prior complaint about the dangerous 

conditions. 

As an aside, I believe the Authority should reconsider its policy of 

destroying property involved in a personal injury when it knows that the property 

may be relevant to a legal claim against it. Spoliation of relevant evidence does 

not inspire public confidence in government or governmental authorities. The next 

case of Authority spoliation may result in the sanction that it managed to avoid this 

time.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge