IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sara Hoover, :

Appellant :

:

v. : No. 532 C.D. 2016

: Argued: October 20, 2016

Seth Allen Stine, Commonwealth of :

Pennsylvania Department of :

Transportation and the Borough of :

Waynesboro :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: November 15, 2016

Sara Hoover (Hoover) appeals the order of the Court of Common 

Pleas of the 39th Judicial District, Franklin County branch (trial court) granting the 

Borough of Waynesboro (Waynesboro) and the Commonwealth of Pennsylvania, 

Department of Transportation’s (PennDOT) motions for summary judgment. For 

the reasons that follow, we affirm.

I.

A.

On the morning of May 20, 2013, Hoover was walking in the 

crosswalk at the T-intersection of West Main Street, a state highway, and Fairway 
2

Avenue in Waynesboro, Franklin County. When Hoover reached the intersection, 

she pressed a button at the crosswalk activating the Rectangular Rapid Flashing 

Beacons (RRFBs) which are “user-actuated amber LEDs that supplement warning 

signs at unsignalized intersections or mid-block crosswalks”1to signal that she was 

crossing the intersection. As the RRFBs were flashing, Hoover began crossing the 

street southbound when a westbound pick-up truck driven by Seth Allen Stine 

(Stine)2approached the intersection, travelling at or below the posted speed limit 

of 35 miles per hour. Failing to notice the RRFBs or Hoover, Stine hit Hoover,

causing her to become air bound and thrown against a utility pole.

Immediately after the accident, Hoover was found unconscious,

bleeding from her mouth and nose, with a deep laceration to her forehead, 

abrasions throughout her body and several chipped teeth. She was airlifted to the 

University of Maryland Shock Trauma center where she was diagnosed with a left 

kidney laceration, a grade 3 splenic laceration, a left femur fracture, a renal 

hematoma, tears of the anterior and posterior cruciate ligaments, and tears of the 

collateral ligament with avulsion of a large fracture fragment from the anterior 

lateral plateau.

 

1

Rectangular Rapid Flash Beacon (RRFB), U.S. Department of Transportation Federal 

Highway Administration, found at 

http://safety.fhwa.dot.gov/intersection/conventional/unsignalized/tech_sum/fhwasa09009/ (last 

visited October 3, 2016).

2

Stine reached a settlement with Hoover and is not a party to this matter. He was 

precluded from filing a brief with this Court.
3

After the accident, the investigating Waynesboro detectives tested the 

RRFBs and found that the lights were operating correctly, stating that “[a]s soon as 

the button is pushed, the lights are activated and they continue to flash for 

approximately thirty seconds.” (Reproduced Record (R.R.) at 716b.)

3 They also 

took measurements to determine the distance between the relevant RRFBs and the 

point at which drivers travelling westbound on West Main Street can initially see 

the RRFBs’ flashing lights. (Id. at 719b.) The detectives found that “while 

operating a motor vehicle, both lights for the crosswalk on the north side of West 

Main Street could not be seen until you were 256.8 feet from the sign.” (Id.) The 

detectives also “discovered that there were numerous other signs and foliage 

blocking the view of the crosswalk sign ... [and] that you could not see a 

pedestrian standing at the crosswalk because of the actual crosswalk sign itself.” 

(Id.) The detectives noted that the “sign was blocking the view of a pedestrian 

waiting to cross from the motor vehicle operators [sic] point of view.” (Id.)

B.

The Vehicle Code4grants PennDOT and local municipalities the 

authority to install traffic signals and other traffic control devices on state roads. 

75 Pa.C.S. § 6122(a). Before installing a traffic control device on a state highway, 

however, a municipality must first obtain approval from PennDOT. 75 Pa.C.S. § 

6122(a)(1). In turn, PennDOT must establish rules and regulations that set forth 

 

3

 Hoover filed two volumes of reproduced record and designated the pagination of 

Volume 1 with an “a” and that of Volume 2 with a “b.” In this opinion, we will use Hoover’s 

reproduced record pagination.

4

75 Pa.C.S. §§ 101-9805.
4

minimum standards and factors to be considered in determining whether a local 

authority shall be given approval for the installation and maintenance of official 

traffic control devices. 75 Pa.C.S. § 6122(b).5PennDOT’s regulations must 

comply with the standards endorsed by the United States Department of 

Transportation Federal Highway Administration (FHWA) and by the FHWA’s

Manual on Uniform Traffic Control Devices (MUTCD).

In July 2008, the FHWA published a memorandum providing interim 

approval for the use of the RRFBs, noting that the interim approval would be 

granted:

[F]or the optional use of the RRFB[s] as a warning 

beacon to supplement standard pedestrian crossing or 

school crossing signs or crosswalks across uncontrolled 

approaches to any jurisdiction that submits a written 

request to the office of transportation operations.

(R.R. at 328a.) In July 2009, PennDOT issued an Interim Approval for the use of 

the RRFBs to reduce pedestrian-vehicle collisions as part of a pilot program. The 

Interim Approval for the use of those flashing beacons required a municipality to,

inter alia, obtain written approval to install the RRFBs from PennDOT. PennDOT 

also promulgated certain physical requirements concerning the design and 

installation of the RRFBs, including that the RRFBs must be installed in a location 

where they are clearly visible to approaching traffic from at least 200 feet away.

 

5

Such factors “shall include, but not be limited to, the volume of traffic and the number 

of accidents that occurred in each of the three preceding years.” 75 Pa.C.S. § 6122(b).
5

PennDOT invited Waynesboro to apply to install the RRFBs at 

crosswalks as part of its pilot program and also offered to finance the costs of the 

project. Waynesboro and PennDOT entered into a contract regarding the 

installation of the RRFBs and associated signage and poles on West Main Street, 

under which Waynesboro agreed to install the RRFBs and associated poles and 

signage, the design and installation of which would all be subject to the ultimate 

approval of PennDOT. Upon completion of installation, Waynesboro would also 

operate and maintain, at its sole cost and expense, all necessary improvements. 

Waynesboro applied for permission to install the RRFBs at four locations in 

Waynesboro, including the crosswalk at issue, and PennDOT granted Waynesboro

permission to proceed in January 2012. Waynesboro submitted a design plan for 

the installation of the RRFBs at the subject crosswalk with associated poles and 

signage and PennDOT, after approving those plans, issued a permit for 

Waynesboro to install the beacons and the associated poles and signage. 

Waynesboro installed the RRFBs and associated poles and signage at the 

intersection of West Main Street and Fairview Avenue on January 18, 2013, and 

the RRFBs were fully operational within one to two days of installation.

II.

A.

In November 2013, Hoover filed suit against Stine,6 Waynesboro and 

PennDOT, alleging generally that she sustained severe damages and injuries as a 

result of the parties’ negligence and carelessness.

 

6 Against Stine, Hoover alleged that as a direct and proximate result of Stine’s negligence 

and carelessness, she suffered extensive and severe injuries which “resulted in pain, suffering, 

(Footnote continued on next page...)
6

With respect to Waynesboro, Hoover contended that it was liable 

because the RRFBs located at the crosswalk were improperly obstructed by a tree 

on the right side of the road and a utility pole on the left side of the road, thereby 

resulting in inadequate sight distance. She argued that that conduct falls within the

“trees and traffic control exception” of the Political Subdivision Tort Claims Act 

(Tort Claims Act)7 which imposes liability on a local government or agency for: 

A dangerous condition of trees, traffic signs, lights or 

other traffic controls, street lights or street lighting 

systems under the care, custody or control of 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.

42 Pa.C.S. § 8542(b)(4) (emphasis added).

 

(continued...)

inconvenience, embarrassment, humiliation, mental anguish and the loss of enjoyment of life and 

life’s pleasures both past and into the future.” (R.R. at 12a, ¶14.) She claimed that for the 

aforementioned injuries, she was required to undergo hospital, medical surgical, nursing care and 

treatment and may continue to need such care into the future. Hoover also claimed that due to 

Stine’s negligent and careless actions, she “has in the past and may in the future be unable to 

attend to and perform the duties of her vocation.” (Id. at 13a, ¶16.)

7

42 Pa.C.S. §§ 8541–8542.
7

As to PennDOT, she alleged that it was negligent in approving the 

installation of the RRFBs by Waynesboro in violation of the sight line standards

with which PennDOT was responsible for ensuring compliance. She argued that 

PennDOT should have discovered the obstructions which created dangerous 

conditions at the intersection either during a site inspection or upon review of 

Waynesboro’s flawed design documents. Hoover alleged that the dangerous 

conditions at the intersection were caused by PennDOT’s faulty and negligent 

approval of traffic controls in violation of its own mandatory minimum sight 

distances and because of Waynesboro’s negligent and careless installation of the 

RRFBs by failing to achieve the minimum proper sight line of 325 feet.8

 

8 Hoover alleged that both Waynesboro and PennDOT’s negligence and carelessness 

consisted of the following:

(a) failure to properly design, construct, locate and place traffic 

signals including the pedestrian crosswalk signs as set forth above;

(b) failure to provide adequate set back from the roadway, the 

placement and location of the pedestrian crosswalk sign;

(c) failure to adhere to applicable PennDOT and applicable 

minimal industry standards and the placement and location of the 

pedestrian crosswalk sign;

(d) placing a pedestrian crosswalk sign in an area where it may 

have been obstructed by foliage including a tree directly in front of 

the traffic crosswalk signs for those operating vehicles in a 

westbound direction;

(e) failing to provide a safe roadway at the intersection of Fairview 

Avenue and Main Street in the borough of Waynesboro;

(f) failure to take proper and necessary measures to provide the 

safety of pedestrians within the crosswalk on Fairview Avenue as 

set forth above;

(Footnote continued on next page...)
8

B.

In her deposition taken as part of discovery, Hoover testified that on 

the day of the accident, she arrived at the pedestrian crossing and she pressed the 

button to activate the RRFBs. While she saw at least one person on her right stop 

for her, she could not see anyone to her left, the direction from which Stine hit her. 

She testified that once she made sure that the traffic was either a safe distance 

away or had stopped, she walked maybe three or four steps into the crosswalk 

when she heard the sound of an oncoming car to her left. When she turned her 

head, she saw a blur of red because of how fast the vehicle was going, and then she 

blacked out.

In his deposition, Stine testified that he never noticed the flashing 

RRFBs or Hoover at any point prior to the impact, and he stated that he did not 

know why he did not see the flashing lights at the crosswalk. In fact, Stine stated 

that he did not realize he hit a pedestrian until after he stopped his vehicle to check 

 

(continued...)

(g) improperly locating, constructing and/or maintaining a 

pedestrian crosswalk sign with a flashing signal in a location along 

the roadway that substantially increased the risk of harm to 

pedestrians attempting to cross W. Main Street; [and]

(h) failing to properly and effectively review and/or inspect the 

design, construction and/or maintenance of the traffic control 

devices and roadway appurtenances on W. Main Street in the 

vicinity of Fairview Avenue[.]

(R.R. at 14a-15a, ¶25; R.R. at 16a-17a, ¶32.)
9

on what he thought to be a mechanical failure. He stated that his pickup truck was 

equipped with daytime running lights, and he had no reason to believe that the 

lights were not operating properly as he approached the intersection on the day of 

the accident. Stine acknowledged that he has lived in Waynesboro for over 50 

years, knew there was a crosswalk at that location, had seen people cross at that 

location before the accident, and had previously stopped for pedestrians at that 

crosswalk when the lights were flashing.

In a deposition of an eyewitness who was the driver of the vehicle 

driving a car length behind Stine’s, the eyewitness testified that Stine did not slow 

down or brake even though the RRFBs were flashing. The eyewitness testified 

that she saw the flashing lights of the crosswalk light up on both sides of the street 

and that she had no problem seeing the lights flashing. She stated that she was 

horrified because she could see that Stine was driving towards Hoover with no sign 

of slowing down or stopping.

Hoover also submitted an expert report of Russel J. Kolmus, III, PE, 

which claimed that at a posted speed of 35 miles per hour, as on West Main Street, 

the sight distance required by the MUTCD is 325 feet. Mr. Kolmus opined in his 

report that the sight distances and the RRFBs did not meet engineering standards 

and practice; that Waynesboro’s Engineering Department failed to design the 

accident location or construct the signs and the RRFBs in accordance with 

PennDOT’s and the FHWA’s standards; that PennDOT failed to effectively review 

and critique the design provided to it by Waynesboro because it allowed sight 

distances that failed to meet engineering standards and practice; and that PennDOT 
10

failed to adequately inspect the accident location after its construction because it 

failed to identify sight lines and sight distances from the pedestrian crossing sign 

and the RRFBs to approaching westbound motorists that failed to meet engineering 

standards and practice.

Waynesboro’s expert, Steven M. Schorr, PE, pointed out that the 

RRFBs are optional and supplemental to the existing traffic controls and, thus, the 

325 feet sight distance would not be applicable. In his report, Mr. Schorr stated, 

“The [RRFBs] per the [Federal Highway Administration] memorandum, can be 

considered supplementary to the warning signs, not ‘the’ warning signs. Therefore 

the 325 feet ‘warning sign’ sight distance referred to by Mr. Kolmus would not be 

applicable.” (R.R. at 959b, ¶3.) Mr. Schorr added:

Even if one accepts Mr. Kolmus’ conclusion that the 

required sight distance would be 325 feet and his 

acceptance of the police-noted 256.8 feet sight distance, a 

review of the approach to the intersection indicates that at 

the time of the collision, in addition to the north-side 

pedestrian crossing sign and RRFB’s, a westbound 

vehicle operator had a view of the south-side pedestrian 

crossing sign and RRFB’s, as well as a view of the “old” 

pedestrian crossing sign located over 100 feet east of the 

intersection, and a view of the painted pedestrian 

crossing warnings on the roadway also located east of the 

intersection in question. That is, a review of the site 

establishes that there were pedestrian warning signs and 

markings, independent of the RRFB’s, which would have 

been visible to reasonable prudent westbound vehicle 

operators approaching the intersection in question.

(Id. at ¶4.)
11

After the pleadings were closed, Waynesboro and PennDOT both 

filed motions for summary judgment.

C.

In its motion for summary judgment, Waynesboro contended that 

there was no evidence of it having actual or constructive notice of any dangerous 

condition at the site of the accident which is a prerequisite for a plaintiff to be able 

to recover under the “trees and traffic control exception” contained in the Tort 

Claims Act. It also argued that no evidence suggests that the tree or traffic control 

signals at or near the crosswalk were causal factors in Hoover’s injury because 

Stine never noticed the RRFBs or Hoover. Waynesboro also maintained that it did 

not negligently or intentionally deviate from the design plans approved by 

PennDOT under their contract, which required Waynesboro to install the RRFBs 

and associated poles and signage pursuant to PennDOT-approved design 

specifications. See 42 Pa.C.S. § 8542(b)(4).

PennDOT also moved for summary judgment, arguing that it was 

immune from suit under the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521-8528,

because Hoover could not prove the requisite elements of negligence, her

allegations did not fall within any exceptions to sovereign immunity, particularly 

the “real estate exception,” 42 Pa.C.S. § 8522(b)(4), and because PennDOT did not 

have any actual or constructive notice of any defect. PennDOT also argued that 

“[b]ecause [Stine] did not see [Hoover] when she was in front of him, reasonable 

minds could not differ that a condition of the Commonwealth realty could not have 
12

been the cause of the accident” and, thus, Hoover did not meet her burden of 

establishing the elements of negligence. (Id. at 476b, ¶66.)

The trial court granted Waynesboro and PennDOT’s motions for 

summary judgment. With respect to Waynesboro, the trial court reasoned that the 

record showed that, at a minimum, the RRFBs and a pedestrian standing in the 

crosswalk were visible from at least 256.8 feet, and that in installing the RRFBs, 

Waynesboro relied on PennDOT’s Interim Approval’s requirements, which 

specifically called for a sight distance of 200 feet. As to PennDOT, the trial court 

found that Hoover had not established that the issue of sight distance and the 

location of the RRFBs resulted in dangerous conditions of Commonwealth real 

estate because the crosswalk is not Commonwealth real estate, but rather, the 

crosswalk and the RRFBs are Waynesboro’s responsibility to maintain.

Finding there was no evidence to suggest that either Waynesboro or 

PennDOT had actual or constructive notice of any dangerous conditions of the real 

estate or the traffic control devices, the trial court concluded that both PennDOT 

and Waynesboro were immune from suit for tort liability. In coming to this

conclusion, the trial court noted that there was no evidence that there were similar 

occurrences at the crosswalk in the period of months between the installation of the 

RRFBs and Hoover’s accident.

It further reasoned that there was no evidence of complaints or reports 

of problems or concerns that could be deemed “notice” under the law. Finally, the 

trial court found that Hoover offered no evidence, just mere speculation, as to why 
13

Stine did not see the RRFBs or her crossing the street, thereby not establishing the 

element of causation required for a negligence action. In summary, the trial court 

explained:

Even if the Court were to conclude that there is a genuine 

issue of material fact with respect to the required sight 

distance for RRFB[s] resulting in a dangerous condition 

of the Commonwealth realty and/or traffic-control device 

and requisite notice thereof thereby overcoming a 

defense of sovereign immunity, the uncontested facts of 

record render any debate over the regulatory 

requirements moot. Certainly, an additional 125 feet of 

sight distance could have permitted Stine additional time 

[to] react, to brake, and to ultimately avoid collision with 

[Hoover]. However, there is no evidence of record to 

permit this Court to find that it would have made any 

difference in this case. There is no evidence that 

additional time or distance within which to react or apply 

the brakes would have changed the unfortunate outcome. 

No matter the required sight distance, Stine’s deposition 

testimony was clear that he did not see the RRFB[s] at 

any distance – 325 feet, 256.8 feet or 200 feet or fewer. 

Based on Stine’s testimony, reasonable minds cannot 

conclude that an additional 125 feet of sight distance 

would have altered the outcome in this case. Reasonable 

minds cannot conclude that the placement of the 

RRFB[s], whether consistent with MUTCD requirements 

or not, was the cause of this tragic event. It is clear that 

Stine did not see the RRFB, and more importantly, he did 

not see [Hoover] crossing the road at any point in his 

approach to the crosswalk prior to striking her.

(Trial Court’s Opinion dated February 12, 2016 at 12) (emphasis in original). 

Hoover filed the instant appeal.

9

 

9 Our review of a trial court order granting summary judgment is limited to determining 

whether the trial court abused its discretion or committed an error of law. Manley v. Fitzgerald, 

(Footnote continued on next page...)
14

III.

Hoover argues that the trial court erred in determining that the 

diminished sight distance was not a substantial contributing factor to the cause of 

her accident.

In order to maintain an action against a Commonwealth party or a local 

agency, a plaintiff must establish that he or she has a statutory cause of action or that 

it was one maintainable at common law and that conduct falls within one of the 

exceptions to immunity. Peak v. Petrovich, 636 A.2d 1248, 1252 (Pa. Cmwlth. 

1994). Hoover brought a common law negligence action contending that both 

Waynesboro and PennDot were negligent in installing the RRFBs. In establishing

common law negligence, the following elements must be generally met:

1. A duty or obligation recognized by the law, requiring 

the actor to conform to a certain standard of conduct, for 

the protection of others against unreasonable risks;

2. A failure on his part to conform to the standard 

required;

3. A reasonably close causal connection between the 

conduct and the resulting injury;

4. Actual loss or damage resulting to the interests of 

another.

 

(continued...)

997 A.2d 1235, 1238 n. 2 (Pa. Cmwlth. 2010). Summary judgment may only be granted when, 

after examining the record in the light most favorable to the non-moving party, the record clearly 

demonstrates that there are no genuine issues of material fact and the moving party is entitled to 

judgment as a matter of law. Id.
15

Farber v. Engle, 525 A.2d 864, 867 (Pa. Cmwlth. 1987) (emphasis added).

PennDOT’s Interim Approval required that the minimum sight 

distance be 200 feet, and the police-noted 256.8 foot sight distance at the 

intersection is greater than that. Although Hoover’s expert opined that at 35 miles 

per hour the sight distance should be 325 feet, because the RRFBs are optional, 

supplemental safety measures in an area where there were already pedestrian 

warning signs and markings, independent of the RRFBs visible to vehicle 

operators, vehicle operators would have had sufficient warning even without the 

RRFBs.

Not only were the RRFBs supplemental to other pedestrian warning 

signs, but Stine admitted that despite being familiar with the intersection, he never

saw the RRFBs or even Hoover until after he hit her. He also stated that he did not 

know why he did not see the RRFBs or Hoover, just that he did not. Meanwhile, 

the eyewitness driving behind Stine testified to never seeing him slow down or 

brake as he approached the intersection, even though she herself could see Hoover. 

As the trial court aptly noted:

There is no evidence that additional time or distance 

within which to react or apply the brakes would have 

changed the unfortunate outcome. No matter the 

required sight distance, Stine’s deposition testimony was 

clear that he did not see the RRFB[s] at any distance –

325 feet, 256.8 feet or 200 feet or fewer.

(Trial Court’s Opinion dated February 12, 2016 at 12) (emphasis in original).

Even if Hoover could make out a duty or that there was failure to conform to the 
16

standard, all the evidence shows that there was not a reasonably close causal 

connection between Waynesboro or PennDOT’s conduct and the resulting injury,

even if the sight distance should have been 325 feet.

IV.

A.

Not only has Hoover failed to establish that Waynesboro or

PennDOT’s purported negligence caused her injuries, she has failed to establish 

that the alleged negligence fell within any exception to immunity. Relying on Tate 

v. Commonwealth, 84 A.3d 762 (Pa. Cmwlth. 2014)10 and Bendas v. Township of 

 

10 In Tate v. Commonwealth, 84 A.3d 762 (Pa. Cmwlth. 2014), a motor vehicle collision 

occurred at the intersection of two state roads, only one of which had stop signs. The drivers and 

passengers of the vehicles sued PennDOT, arguing that the absence of a traffic signal at the 

intersection was a substantial factor in causing the accident and that PennDOT failed to maintain 

its roads in a safe manner. PennDOT moved for summary judgment, claiming it had no duty to 

install a traffic signal, but rather, one driver’s high speed was the superseding cause of the 

accident. The trial court denied summary judgment and a jury found the high speed driver to be 

67 percent liable and PennDOT to be 33 percent liable. PennDOT filed a motion for post-trial 

relief, which the trial court denied.

On appeal to this Court, PennDOT argued that: first, it has adopted a regulation that 

transferred the duty to install traffic signals on state roads to local municipalities, and second, the 

high speed driver’s excessive speed was the superseding cause of the accident. Although we 

agreed that under the Vehicle Code, PennDOT is not required to install traffic control devices, 

we found that PennDOT still has “a duty to ensure that its highways are safe for their reasonably 

foreseen uses,” and that “no agency can, by regulation, relieve itself of a duty of care or expand 

its own sovereign immunity beyond the scope allowed by the legislature.” Tate, 84 A.3d at 767. 

Reasoning that “the failure to remedy a dangerous condition amounts to a breach of PennDOT’s 

duty of care” and that a jury is charged with determining what constitutes a dangerous condition, 

we held that the trial court did not err in denying PennDOT’s motion for judgment 

notwithstanding the verdict. Id.

With regard to whether the high speed driver’s operation of the vehicle was reckless and 

constituted an unforeseeable use of the highway, we found that because expert testimony 

(Footnote continued on next page...)
17

White Deer, 611 A.2d 1184 (Pa. 1992),11 Hoover argues that the “real estate 

exception” to sovereign immunity, 42 Pa.C.S. § 8522(b)(4), applies because the 

violation of the minimum sight line requirement created a dangerous condition of a 

highway and not, as the trial court incorrectly referred to it, a crosswalk.

The Sovereign Immunity Act protects the Commonwealth from civil 

suit for tort liability unless the General Assembly specifically waives immunity. 1 

Pa.C.S. § 2310.12 See also 42 Pa.C.S. § 8521(a).13 “Sovereign immunity is only 

 

(continued...)

established that speeding was a common problem and that there had been 45 motor vehicle 

accidents at the intersection over a ten-year period, the speeding vehicle was foreseeable.

11 In Bendas v. Township of White Deer, 611 A.2d 1184 (Pa. 1992), a motor vehicle 

accident occurred at the intersection of a state highway and a township road and both roads 

lacked traffic control devices or signs. The drivers sued PennDOT, alleging that it had either 

negligently failed to erect traffic control devices at the intersection or failed to correct a 

dangerous condition. PennDOT moved for summary judgment, arguing that it did not owe a 

duty of care to the plaintiffs. The trial court denied the motion, and we affirmed.

On appeal, the Pennsylvania Supreme Court identified two issues: first, whether 

PennDOT had a duty to make state roads safe for their intended purpose and, second, whether 

PennDOT's failure to satisfy that duty was actionable under an exception to sovereign immunity. 

Citing to Snyder v. Harmon, 562 A.2d 307, 312 (Pa.1989), a case in which the Court construed 

Section 8522(b)(4) of the Sovereign Immunity Act to mean that PennDOT must maintain a state 

highway in a condition that is “safe for the activities for which it is regularly used, intended to be

used or reasonably foreseen to be used,” the Court found that PennDOT owed a duty of care. As 

to the “real estate exception,” the Supreme Court held that the question of what is or is not a 

“dangerous condition” of a highway is one of fact that “must be answered by the jury.” Bendas, 

611 A.2d at 1187. Accordingly, the Court affirmed the trial court's refusal to grant summary 

judgment to PennDOT.

12 1 Pa.C.S. § 2310 provides:

(Footnote continued on next page...)
18

waived for damages arising out of a negligent act where the common law or a 

statute would permit recovery if the injury were caused by a person not protected 

by sovereign immunity and the cause of action falls under one of the specifically 

 

(continued...)

Pursuant to section 11 of Article 1 of the Constitution of 

Pennsylvania, it is hereby declared to be the intent of the General 

Assembly that the Commonwealth, and its officials and employees 

acting within the scope of their duties, shall continue to enjoy 

sovereign immunity and official immunity and remain immune 

from suit except as the General Assembly shall specifically waive 

the immunity. When the General Assembly specifically waives 

sovereign immunity, a claim against the Commonwealth and its 

officials and employees shall be brought only in such manner and 

in such courts and in such cases as directed by the provisions of 

Title 42 (relating to judiciary and judicial procedure) or 62 

(relating to procurement) unless otherwise specifically authorized 

by statute.

13 Section 8521(a) of the Sovereign Immunity Act, 42 Pa.C.S. § 8521(a), states:

Except as otherwise provided in this subchapter, no provision of 

this title shall constitute a waiver of sovereign immunity for the 

purpose of 1 Pa.C.S. § 2310 (relating to sovereign immunity 

reaffirmed; specific waiver) or otherwise.

Section 8522(a), 42 Pa.C.S. § 8522(a), states:

The General Assembly, pursuant to section 11 of Article I of the 

Constitution of Pennsylvania, does hereby waive, in the instances 

set forth in subsection (b) only and only to the extent set forth in 

this subchapter and within the limits set forth in section 8528 

(relating to limitations on damages), sovereign immunity as a bar 

to an action against Commonwealth parties, for damages arising 

out of a negligent act where the damages would be recoverable 

under the common law or a statute creating a cause of action if the 

injury were caused by a person not having available the defense of 

sovereign immunity.
19

enumerated exceptions to immunity.” Page v. City of Philadelphia, 25 A.3d 471, 

475 (Pa. Cmwlth. 2011) (emphasis added). The exceptions to sovereign immunity 

must be strictly construed because “the clear intent of the legislature is to insulate 

the government from exposure to tort liability.” Clark v. Pennsylvania Department 

of Transportation, 962 A.2d 692, 694 (Pa. Cmwlth. 2008).

Here, as acknowledged by Hoover, the only possible exception under 

the Sovereign Immunity Act is the “real estate exception” which allows the 

imposition of liability on a Commonwealth party and precludes it from raising a 

defense of sovereign immunity when a claim for damages is caused by:

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].

42 Pa.C.S. § 8522(b)(4). This “dangerous condition must derive, originate from or 

have as its source the Commonwealth realty.” Clark, 962 A.2d at 694 (quoting 

Snyder v. Harmon, 562 A.2d 307, 311 (Pa. 1989)) (emphasis in Clark).14

 

14 Similar to the Sovereign Immunity Act’s application to the Commonwealth, the Tort 

Claims Act provides that local agencies are generally immune from tort liability unless immunity 

is expressly waived. 42 Pa.C.S. § 8541. Under Section 8542(a) of the Tort Claims Act, 42 

Pa.C.S. § 8542(a), immunity is waived where the following conditions are satisfied: (1) damages 

would be recoverable under statutory or common law if the injury were caused by a person not 

(Footnote continued on next page...)
20

PennDOT argues that although West Main Street is a highway, the 

crosswalk and the RRFBs at the intersection are not part of Commonwealth realty 

because they are installed, owned and maintained by Waynesboro, for which it 

cannot be liable under the “real estate exception.” PennDOT further argues that it 

cannot be held liable under the “real estate exception” for an alleged failure to 

inspect, thereby allowing the sight distance to be less than the 325 feet that 

Hoover’s expert believed was appropriate as that is not a condition of the 

exception.

 

(continued...)

protected by governmental immunity; (2) the local agency’s negligent act caused the injury; and 

(3) the local agency’s alleged negligence falls within one of the eight enumerated exceptions to 

governmental immunity listed in 42 Pa.C.S. § 8542(b).

The sole exception that could be applied to Waynesboro’s defense of immunity is the one 

entitled “Trees, traffic controls and street lighting” which permits the imposition of liability on a 

local agency with the following act:

A dangerous condition of trees, traffic signs, lights or other traffic 

controls, street lights or street lighting systems under the care, 

custody or control of 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.

42 Pa. C.S. § 8542(b)(4).

Although Waynesboro raises the defense of governmental immunity and the trial court 

addresses it in its opinion, Hoover does not mention immunity as applied to Waynesboro in her 

1925(b) Statement or her brief. Accordingly, we will not examine the application of 

governmental immunity as applied to Waynesboro in this opinion.
21

In Ryles v. City of Philadelphia, 848 A.2d 1101 (Pa. Cmwlth. 2004), 

this Court addressed a claim of sovereign immunity where the City of Philadelphia 

and PennDOT argued over which had jurisdiction over a crosswalk at an 

intersection. Concluding that the alleged dangerous conditions of the crosswalk 

did not overcome PennDOT’s claim of sovereign immunity, we explained that:

We find Glenn [v. Horan, 765 A.2d 426 (Pa. Cmwlth.

2001)] instructive here. As stated by the court in Glenn, 

a traffic control has as its central role the regulation of 

traffic, whether pedestrian, vehicular or both. In this 

case, the z-bricks and concrete headers clearly 

established the path for pedestrian egress across the 

highway, just as the painted crosswalk did in Glenn, 

thereby serving the express dual purposes, of “guiding 

pedestrians” and “warning motorists” of pedestrian 

traffic across the road.... The crosswalk in question falls 

within this language and clearly acts to regulate traffic. 

Because the crosswalk regulates traffic, it is 

distinguishable from the median in Slough [v. City of 

Philadelphia, 686 A.2d 62 (Pa. Cmwlth. 1996)], which 

we found served only a negligible traffic control 

function. Under our analysis in Slough, although the 

crosswalk does form the surface of the roadway, given its 

traffic control function, it is the City's responsibility to 

maintain.

Our conclusion is buttressed by other facts in this case. 

For example, the Philadelphia Code provides for the City 

to maintain crosswalks. In fact, the Philadelphia Code 

uses similar language to 67 Pa. Code § 211.1 to provide 

that, “The [City Department of Streets] may designate 

and maintain, by appropriate devices, markings, or lines 

upon the surface of the roadway, crosswalks at 

intersections.” Philadelphia Code § 12-1205. It further 

provides that the Department “shall place and maintain 

all necessary traffic-control signs, signals, devices and 

markings.”

***
22

Further, under the contract pertaining to the Market 

Street improvements, the City agreed to maintain signage 

and traffic controls at the intersection involved. 

Although the agreement did not specifically include the 

word “crosswalk,” it clearly did provide for the City to 

maintain signalized intersections at several intersections, 

including the one involved in this case. [Penn]DOT 

correctly notes that crosswalks are a component of 

signalized intersections. See 67 Pa. Code § 211.1174(a).

Ryles, 848 A.2d at 1106-07.

The RRFBs were implemented to better regulate traffic, “a warning 

beacon to supplement standard pedestrian crossing....” (R.R. at 328a.) Although 

PennDOT had to approve Waynesboro’s installation plans and PennDOT dictated 

certain physical requirements of the RRFBs, under the parties’ contract, 

Waynesboro was responsible for installing, operating and maintaining the RRFBs. 

Because the crosswalk is not PennDOT’s real estate, Hoover has not met her 

burden of establishing that the “real estate exception” negates PennDOT’s 

sovereign immunity.

B.

Hoover also argues that Waynesboro had actual and constructive 

notice of the dangerous condition of the crosswalk on West Main Street and 

Fairway Avenue that contributed to her serious accident and that the trial court 

erred in concluding otherwise.

The Tort Claims Act provides that the plaintiff bears the burden of 

establishing that the local agency that purportedly contributed to a dangerous 
23

condition of trees or traffic controls “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)(4).

Hoover contends that Waynesboro had notice of the dangerous 

condition because when it installed the RRFBs at the intersection, it was required 

to know and comply with the sight line standards. Because it did not adhere to the 

correct standard of meeting a sight line of 325 feet, it “would have been aware that 

the sight line that existed was well shy of the required minimum sight line due to 

visual obstructions on both sides of the roadway.” (Hoover’s Brief at 22.)

Despite Hoover’s speculations that Waynesboro had notice through its

design, installation and approval of the RRFBs, there is no evidence of any notice. 

After the warning lights had been installed, there were no accidents involving the 

crosswalk until Hoover’s. There was no evidence of poor visibility of the RRFBs, 

no evidence that the RRFBs were not working, that trees or utility poles obstructed 

the RRFBS or other related complaints. In fact, the RRFBs were installed to 

improve upon the safety measures already in place. Without evidence to the 

contrary, the parties would have had absolutely no reason to believe, or have 

notice, that the safety measures could actually be “dangerous conditions.” 

Moreover, the sight distance being less than 325 feet is not a reason for 

Waynesboro or PennDOT to have notice of a potential dangerous condition 
24

because PennDOT’s Interim Approval required that the minimum sight distance be 

200 feet, with which the RRFBs were in compliance.15

Given the lack of accidents at the crosswalk or any complaints with 

the RRFBs or visibility issues or the like, there was no evidence to indicate that 

Waynesboro had notice of any alleged dangerous condition. As such, the trial court 

correctly determined the issue of notice.

 

15 Hoover also claims that PennDOT had notice of the dangerous condition of the 

intersection through its responsibility of granting Waynesboro its permits to install the RRFBs, 

which requires that PennDOT examine Waynesboro’s designs and then visit the actual site for 

the purpose of ensuring compliance with sight line standards. Hoover explains, “Notably, here, 

not only did the design documents received by [PennDOT] display the sight line obstructions 

(the tree and utility pole), PennDOT, indeed, performed the site inspection, at which time it 

actually had the opportunity to observe the obstructions and inadequate sight lines.” (Hoover’s 

Brief at 23.)

Unlike the exception for local agencies, the Commonwealth agency highway exception 

does not specifically provide for actual or constructive notice of the dangerous condition of the 

highway. However, because it is a prerequisite that an action must be maintainable at common 

law, and at common law the action required such notice, the Commonwealth agency must have 

actual or constructive notice of the dangerous condition to maintain an action under the 

exception. Under the common law formulation, apart from faulty construction work, the liability 

of the governmental entity for injuries suffered as a result of defects in the highway arose only 

when it had either actual or constructive notice of the dangerous condition. For the 

governmental entity to be charged with constructive notice of the dangerous condition of a 

roadway, that condition had to be apparent upon reasonable inspection. Patton v. 

Commonwealth of Pennsylvania, 669 A.2d 1090 (Pa. Cmwlth. 1996); Fidanza v. Department of 

Transportation, 655 A.2d 1076 (Pa. Cmwlth. 1995).

Even if we had not held that the conduct could fall within the highway exception at all, 

the claimed negligence would not fall within this exception because, as explained above, there 

was no reason to believe that the RRFBs were designed or installed negligently.
25

V.

Accordingly, for the foregoing reasons, we affirm the trial court’s 

order.

________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sara Hoover, :

Appellant :

:

v. : No. 532 C.D. 2016

:

Seth Allen Stine, Commonwealth of :

Pennsylvania Department of :

Transportation and the Borough of :

Waynesboro :

O R D E R

AND NOW, this 15th day of November, 2016, the order of the Court 

of Common Pleas of the 39th Judicial District, Franklin County branch, dated 

February 12, 2016, at No. 2013-4467, is affirmed.

________________________________

DAN PELLEGRINI, Senior Judge