IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chastity Lesh, :

:

Appellant :

:

v. : No. 549 C.D. 2018

: Argued: October 16, 2018

Erie International Airport :

Services, LLC, t/d/b/a Erie :

International Airport Authority :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: December 17, 2018

Chastity Lesh (Appellant) appeals1from the May 26, 2017 order of the 

Court of Common Pleas of Erie County (trial court) granting the motion for 

summary judgment filed by Erie International Airport Services, LLC, t/d/b/a Erie 

International Airport, and Erie Regional Airport Authority (collectively, ERAA) and 

dismissing Appellant’s civil complaint with prejudice.2 We affirm.

Appellant was employed as a customer service agent for Piedmont 

Airlines, which provided service for U.S. Airways and Delta Airlines flights at the

 

1 This appeal was originally filed with Superior Court, which sua sponte transferred the 

matter to this Court by order dated March 6, 2018.

 

2 According to Appellant’s complaint, appellee Erie International Airport Services, LLC, 

t/d/b/a Erie International Airport, is a Pennsylvania corporation and appellee Erie Regional Airport 

Authority is a Pennsylvania Municipal Authority. Both entities have the same business address. 

The same counsel represents both appellees and refers to them collectively as ERAA. 
2

Erie International Airport. On January 6, 2011, she began work at 4:00 a.m. and was 

responsible for checking in passengers for a Delta flight scheduled to depart at 6:00 

a.m. After the passengers boarded, she walked down the jet way to exchange 

paperwork with the aircraft’s captain. Appellant then noticed that the ground power 

unit (GPU), a power cord running from the aircraft to the jet bridge, had not been 

unplugged. She walked down the jet bridge stairs to the outside ramp, and then 

walked under the jet bridge to the nose of the aircraft to get the captain’s 

authorization to unplug the GPU. The captain gave his approval, and she walked 

approximately ten steps to the GPU and unplugged it. After taking a step or two 

away, she slipped on ice and fell. 

Appellant suffered multiple fractures to her tibia and fibula; she 

underwent three surgeries; and she was subsequently diagnosed with reflex 

sympathetic dystrophy. On December 24, 2012, she filed a complaint against ERAA

seeking damages for injuries she sustained in the slip and fall, alleging that ERAA

was negligent in allowing extremely icy and slippery conditions to exist on the 

premises. Reproduced Record (R.R.) at 2-8. ERAA filed an Answer and New 

Matter, and Appellant filed a Reply to the New Matter. After the close of discovery, 

ERAA filed a motion for summary judgment. The trial court heard argument on the 

motion at a hearing on April 26, 2017. By opinion and order dated May 26, 2017, 

the trial court granted ERAA’s motion for summary judgment and dismissed 

Appellant’s complaint. 

In granting the motion, the trial court determined that Appellant’s 

claim was precluded by the “hills and ridges” doctrine. The trial court further 

concluded that a lease agreement between ERAA and Piedmont Airlines relieved

ERAA of any duty to clear ice and snow from the area. Finally, the trial court 
3

concluded that Appellant failed to establish that her claim fell within an exception 

to immunity under the act commonly known as the Political Subdivision Tort Claims 

Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542. 

On appeal,3 Appellant argues that the trial court erred in granting 

summary judgment. Specifically, Appellant maintains that: the lease agreement did 

not relieve ERAA of the duty to clear ice and snow from the area around the aircraft; 

genuine issues of material fact existed concerning whether generally slippery 

conditions were present, as necessary for application of the hills and ridges doctrine; 

and the facts fall within the real property exception to governmental immunity. 

At the time of Appellant’s fall, a lease agreement between ERAA and 

Piedmont Airlines provided:

 

3 On appeal from a trial court’s order granting or denying summary judgment, our standard 

of review is de novo and our scope of review is plenary. Pentlong Corporation v. GLS Capital, 

Inc., 72 A.3d 818, 823 n.6 (Pa. Cmwlth. 2013). Summary judgment is properly entered only when, 

“after examining the record in the light most favorable to the non-moving party, and resolving of 

all doubts as to the existence of a genuine issue of material fact against the moving party, the 

moving party is clearly entitled to judgment as a matter of law.” Pyeritz v. Commonwealth, 32 

A.3d 687, 692 (Pa. 2011). An appellate court may disturb a trial court’s order granting summary 

judgment only where there has been an error of law or an abuse of discretion. Kilgore v. City of 

Philadelphia, 717 A.2d 514 (Pa. 1998). 

A party is entitled to summary judgment as a matter of law: (1) whenever there is no 

genuine issue of any material fact as to a necessary element of the cause of action or defense which 

could be established by additional discovery; or (2) if, after the completion of discovery relevant 

to the motion, an adverse party who will bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or defense which in a jury trial would require the 

issues to be submitted to a jury. Pa. R.C.P. No. 1035.2. 

The moving party has the burden of proving the nonexistence of any genuine issue of 

material fact. Kilgore. The moving party may make the showing necessary to support the grant 

of summary judgment by showing that the non-moving party “is unable to satisfy a necessary 

element of his cause of action.” Shipley Fuels Marketing, LLC v. Medrow, 37 A.3d 1215, 1217 

(Pa. Super. 2012). The court must view the record in the light most favorable to the non-moving 

party, and all doubts as to the existence of a genuine issue of material fact must be resolved against 

the moving party. Kilgore. Summary judgment is granted only where the right to it is clear and 

free from doubt. Id.
4

MAINTENANCE. Airline shall at all times maintain its 

exclusive leased areas, the ramp under and around its 

aircraft when in use by it, and the areas immediately 

adjacent to either, in a neat, clean, safe and orderly 

condition; excluding the janitorial service provided in the 

terminal common area by the Authority and major 

ramp/apron maintenance. 

R.R. at 46. 

Appellant argues that the trial court erred in relying on the lease 

agreement to conclude that ERAA did not have possession and control over the area 

when she fell. Appellant maintains that a determination of who is a possessor of 

land is a question of fact to be decided by a jury. She relies on the definition of a 

possessor of land in Restatement (Second) of Torts §328E:

A possessor of land is (a) a person who is in occupation of 

the land with the intent to control it; or (b) a person who 

has been in occupation of land with intent to control it, if 

no other person has subsequently occupied it with intent 

to control it; or (c) a person who is entitled to immediate 

occupation of land, if no other person is in possession 

under clauses (a) or (b). 

Appellant contends that occupation and control, i.e., physical 

possession, rather than legal title, determines possession for purposes of §328E. 

Appellant emphasizes that under the lease, ERAA had possession and control of the 

area at issue both before an aircraft was parked at the gate and after an aircraft left 

the gate. Appellant also asserts that, regardless of the lease, ERAA created a duty 

to clear ice and snow from the premises by its course of conduct in clearing ice and 

snow. According to Appellant, testimony offered by witnesses concerning the 

removal of ice and snow by ERAA employees creates an issue of material fact 

precluding summary judgment.
5

ERAA argues that this latter argument is waived because Appellant did 

not raise it before the trial court. Supplemental Reproduced Record at 14b-24b. 

ERAA further contends that, in any event, the testimony cited by Appellant is 

insufficient to create a genuine issue of material fact as to whether ERAA had a duty 

to remove ice or snow at the time of her fall. We agree. 

A “possessor of land” is a person who occupies land with intent to 

control it. Restatement (Second) of Torts §328E. Appellant correctly notes that 

whether a party is a “possessor of land” is a determination to be made by the trier of 

fact. Blackman v. Federal Realty Investment Trust, 664 A.2d 139 (Pa. Super. 1995). 

Nevertheless, where the alleged “possessor of land” has filed a motion for summary 

judgment and asserted that the non-moving party has not produced evidence to 

establish that the moving party is a “possessor of land,” the non-moving party must 

identify evidence establishing that fact in its response to the motion. See Pa. R.C.P. 

No. 1035.3(a)(2). 

Here, Appellant offered no evidence to establish facts that would bring 

ERAA within the definition of possessor of land in §328E. The terms of the lease 

reflect that ERAA did not have the “intent to control” the area. Rather, the lease 

agreement states that the airline was required “at all times [to] maintain its exclusive 

leased areas, the ramp under and around its aircraft when in use by it, and the areas 

immediately adjacent to either, in a neat, clean, safe and orderly condition.” R.R. at 

46. Moreover, there is no dispute that the aircraft was parked at the gate overnight, 

and Appellant admits that ERAA employees were limited in their access to the area 

for snow and ice removal when the aircraft was at the gate. Appellant’s brief at 19 

(citing the maintenance provisions of the lease, R.R. at 46). Thus, ERAA did not 

have access to the area beginning the night before Appellant’s fall, while rain and/or 
6

snow was falling. The record supports the trial court’s determination that ERAA did 

not have possession and control over the area at the relevant time. 

Appellant further argues that the trial court erred in applying the hills 

and ridges doctrine. In Moon v. Dauphin County, 129 A.3d 16 (Pa. Cmwlth. 2015), 

we explained: 

The [‘hills and ridges doctrine’] as defined and applied by 

the courts of Pennsylvania, is a refinement or clarification 

of the duty owed by a possessor of land and is applicable 

to a single type of dangerous condition, i.e., ice and snow. 

It protects an owner or occupier of land from liability for 

generally slippery conditions resulting from ice and snow 

where the owner has not permitted the ice and snow to 

unreasonably accumulate in ridges or elevations. 

The [hills and ridges doctrine] provides that an owner or 

occupier of land is not liable for general slippery 

conditions, for to require that one’s walks be always free 

of ice and snow would be to impose an impossible burden 

in view of the climatic conditions in this hemisphere. 

Snow and ice upon a pavement create merely transient 

danger, and the only duty upon the property owner or 

tenant is to act within a reasonable time after notice to 

remove it when it is in a dangerous condition.

Thus, in order to recover for a fall on ice or snow, an 

injured party must prove the following factual elements:

(1) that snow and ice had accumulated on the sidewalk in 

ridges or elevations of such size and character as to 

unreasonably obstruct travel and constitute a danger to 

pedestrians travelling thereon; (2) that the property owner 

had notice, either actual or constructive, of the existence 

of such a condition; and (3) that it was the dangerous 

accumulation of snow and ice which caused the plaintiff 

to fall.
7

129 A.3d at 22-23 (emphasis in original and citations and internal quotations 

omitted).

Appellant contends that an exception to the hills and ridges doctrine 

was recognized in Williams v. Shultz, 240 A.2d 812, 813-14 (Pa. 1968), and applies 

in this case. In Williams, the appellant was walking along a sidewalk that from all 

outward appearances was free from ice and snow. A portion of the sidewalk was 

covered by leaves. When the appellant stepped on the leaves, she slipped and fell 

on a patch of ice hidden underneath them. The relevant weather records in Williams

showed that the last snow fell 11 days before the accident and the last rain fell 5 days 

before. Additionally, the evidence showed that the entire area was generally free of 

ice or snow. The Supreme Court reversed the trial court’s grant of compulsory 

nonsuit on the basis that the appellant failed to establish the existence of hills and 

ridges of ice on the sidewalk. In doing so, the Court stated that, “where a specific, 

localized, isolated patch of ice exists, it is comparatively easy for a property owner 

to take the necessary steps to alleviate the condition, while at the same time 

considerably more difficult for the pedestrian to avoid it even using the utmost care.” 

240 A.2d at 814. Because those circumstances were found to exist, the Court held 

in Williams that the appellant was not required to prove the existence of hills and 

ridges. 

ERAA argues that Williams does not apply, because the uncontroverted 

testimony of all witnesses, including Appellant, establishes that conditions around 

the ramp and in the area were generally slippery, there was patchy ice all over, and 

there was precipitation the day before and the day of Appellant’s accident. We 

agree.
8

Viewing the record in the light most favorable to Appellant, the record 

establishes that when Appellant went outside earlier that morning, there was patchy 

ice all over the area at issue. As the trial court noted, the Record of Climatological 

Observations at Erie International Airport for January 6, 2011, reflects that in a 

twenty-four hour period, the maximum temperature was 28 degrees; the minimum 

temperature was 20 degrees; .26 inches of rain/melted snow had accumulated; and 

3.6 inches of snow/ice pellets/ hail had accumulated, with a trace amount of snow/ice 

pellets/ice being observed on the ground. R.R. at 1. Appellant stated that she saw 

“patchy ice all over.” R.R. at 624-25, 632, 636, 642, 646. Thus, Appellant’s own 

testimony establishes that ERAA did not permit ice to unreasonably accumulate in 

ridges or elevations that caused her to fall and that the ice on which she fell was not 

a “localized, isolated patch.” Consequently, the trial court ruled that the action was 

precluded by the “hills and ridges” doctrine.

Generally, local agencies are immune from tort liability under Section 

8541 of the Tort Claims Act. Gibellino v. Manchester Twp., 109 A.3d 336, 342 (Pa. 

Cmwlth. 2015). However, a local agency may be liable for damages if the damages: 

(1) would be recoverable under common law or a statute creating a cause of action; 

(2) were caused by the negligent act of the local agency or its employees acting 

within the scope of their employment; and (3) were caused by one of the specific 

acts enumerated in Section 8542(b) of the Act. 

Section 8542(b)(3) of the Tort Claims Act states: 

(b) Acts which may impose liability.-- The following 

acts by a local agency or any of its employees may result 

in the imposition of liability on a local agency:

. . .

(3) Real property.-- The care, custody or control of real 

property in the possession of the local agency, except that 
9

the local agency shall not be liable for damages on account 

of any injury sustained by a person intentionally 

trespassing on real property in the possession of the local 

agency. As used in this paragraph, ‘real property’ shall 

not include:

(i) trees, traffic signs, lights and other traffic controls, 

street lights and street lighting systems;

(ii) facilities of steam, sewer, water, gas and electric 

systems owned by the local agency and located within 

rights-of-way;

(iii) streets; or

(iv) sidewalks.

42 Pa.C.S. §8542(b)(3) (emphasis added). The determinative inquiry under the real 

property exception to governmental immunity is whether the injury was caused by 

the care, custody, or control of the real property itself. Grieff v. Reisinger, 693 A.2d 

195 (Pa. 1997).4 

Appellant argues that the trial court erred in concluding that the real 

property exception to governmental immunity does not apply in this case. In support 

of this argument, she asserts that ERAA employees were responsible for 

maintenance around the ramp and the plane before the plane was parked at the gate, 

while there was precipitation, and she asserts that this alone is sufficient to establish 

ERAA’s liability. Appellant also cites testimony that it was common practice for 

ERAA’s union employees to maintain the ramp area. 

However, for purposes of the real property exception to governmental 

immunity, “possession” means total control over the premises. City of Pittsburgh v. 

Estate of Stahlman, 677 A.2d 384, 387 (Pa. Cmwlth. 1996). “[L]imited control or 

mere occupation of the premises for a limited period is insufficient to impose 

 

4 The trial court and ERAA incorrectly state that the injury must arise from a dangerous 

condition of the real property itself. 
10

liability.” Id. The trial court correctly concluded that Appellant failed to present 

evidence demonstrating that ERAA had total control of the property. 

In sum, the trial court correctly held that the hills and ridges doctrine 

precluded Appellant’s claims because (1) no evidence was presented to establish an 

accumulation of snow or ice in ridges and (2) the uncontradicted evidence 

established icy conditions existed all around the jet way area where the aircraft had 

been parked overnight. Additionally, the trial court correctly concluded that ERAA

was not in possession of the area, based on the terms of the lease agreement as well 

as testimony establishing that ERAA did not have total possession of the area. 

Consequently, Appellant did not prove that damages are recoverable under common 

law or statute, or that her injuries resulted from negligent acts of agency employees,

as required under the Tort Claims Act. 

Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chastity Lesh, :

:

Appellant :

:

v. : No. 549 C.D. 2018

: 

Erie International Airport :

Services, LLC, t/d/b/a Erie :

International Airport Authority :

O R D E R

AND NOW, this 17th day of December, 2018, the order of the Court of 

Common Pleas of Erie County, dated May 26, 2017, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge