IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jaime Nardo, :

:

Appellant :

:

v. : No. 2266 C.D. 2015

:

City of Lebanon : Argued: March 7, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: April 6, 2016

Jaime Nardo appeals from the Order of the Court of Common Pleas of 

Lebanon County (common pleas) granting summary judgment to the City of 

Lebanon (City) based on governmental immunity under the act popularly known as 

the Political Subdivision Tort Claims Act1(Tort Claims Act). On appeal, Nardo 

argues that common pleas erred by: (1) refusing to consider Nardo’s allegation 

that the City’s property at issue was a dangerous condition because of its defective 

design; and (2) improperly granting summary judgment where it imposed a higher 

burden on Nardo than required by the standard for summary judgment, record 

evidence exists that demonstrates genuine issues of material fact, and summary 

judgment was premature. Discerning no error, we affirm.

 

1

42 Pa. C.S. §§ 8541-8542.
2

Nardo filed a negligence action (Complaint) against the City alleging that he 

was standing next to a City-owned pool (Pool) when he slipped and fell, his big toe 

caught in a scum gutter, and, as a result, he suffered, inter alia, a broken big toe 

and severe cuts to that toe. (Compl. ¶¶ 8, 12, R.R. at 9a, 11a.) Nardo averred that 

the scum gutter was broken and in an unsafe condition, or presented a dangerous 

condition that the City knew of or should have known of. (Compl. ¶¶ 9-11, R.R. at 

9a-11a.) Specifically, Nardo contended that the City was negligent in: (1) causing 

or permitting the scum gutter to remain significantly broken posing an 

unreasonable risk of injury; (2) causing or permitting the scum gutter to remain 

significantly broken when it knew or should have known that the broken gutter 

posed a hazard to those around the Pool; (3) failing to make a reasonable 

inspection of the Pool, which would have revealed the existence of the broken 

scum gutter, and allowing that dangerous condition to remain; (4) failing to ensure 

that the scum gutter “was maintained in a safe condition to prevent injury”; (5) 

failing to post a warning or other device warning people of the dangerous 

condition; (6) failing to remedy the broken scum gutter to avoid injury; and (7) 

“failing to maintain the [scum] gutter in a reasonably safe condition” to prevent 

slipping and falling, as occurred in this case. (Compl. ¶¶ 10-11, R.R. at 9a-11a.) 

The City filed an Answer with New Matter, in which it asserted, inter alia, 

governmental immunity under the Tort Claims Act. (New Matter ¶¶ 1-2, 6, R.R. at 

20a.) Nardo replied to the New Matter, asserting that, while the Tort Claims Act 

applied, it did not limit Nardo’s claim because his “injuries were caused by a 

dangerous condition to property that [the City] owned, possessed, controlled and/or 

maintained.” (Response to New Matter ¶¶ 1, 6, R.R. at 25a-26a.) Discovery 

ensued and depositions were taken of, inter alia, Nardo, two lifeguards who were 
3

on duty the day of the incident, and the City employee who repaired the scum 

gutter the day after the incident. The City filed its motion for summary judgment 

(Motion) on June 1, 2015, to which Nardo responded. In his response to the 

Motion, Nardo newly asserted that the design of the scum gutter was defective 

rendering it a dangerous condition that caused his injuries. (Response to Motion ¶¶ 

7, 11, 30, 33-34, R.R. at 144a, 146a; Brief in Opposition to Motion at 4-8, R.R. at 

153a-57a.) 

After hearing oral argument, common pleas first concluded that Nardo could 

not rely on a claim of defective design because that claim had not been raised in 

his Complaint, but was asserted for the first time in his response to the Motion. 

Common pleas held that Nardo had consistently asserted that the scum gutter was 

broken prior to his fall and the City was negligent in maintaining the Pool area, but 

he had not previously averred that there was a defect in the scum gutter’s design. 

As there were no facts in the record regarding the after-asserted design defect 

claim, common pleas would not consider that allegation. Reading the real property 

exception of Section 8542(b)(3) of the Tort Claims Act, 42 Pa. C.S. § 8542(b)(3), 

in pari materia with the sidewalk exception (Section 8542(b)(7)), common pleas 

granted summary judgment on the basis that the real property exception did not 

apply. Common pleas stated that under these exceptions, the injury must be caused 

by the defect in the land itself rather than the action of a third party, and the 

depositions of the Pool lifeguards indicated that: the Pool area is routinely checked 

every morning before the Pool opens and throughout the day; if an area is deemed 

a risk, a lifeguard chair or cones were used to warn people to avoid the area, and 

the property manager would be notified; and to the best of their knowledge, the 

scum gutter was not broken prior to Nardo’s fall. Common pleas further observed 
4

that Nardo acknowledged that he did not notice whether the scum gutter was 

broken before he fell. Based on this evidence, common pleas found that Nardo had 

not supported his allegation that the scum gutter was broken before he fell and 

caused his injuries. Therefore, common pleas concluded that Nardo could not 

establish that his injuries were caused by a defect in the City’s real property, i.e., a 

broken scum gutter, and it granted the Motion. Nardo now appeals to this Court.2

When reviewing the grant of summary judgment, we apply the following 

standards. “Summary [j]udgment is appropriate only where there are no genuine 

issues of material fact and the moving party is entitled to judgment as a matter of 

law.” Pritts v. Department of Transportation, 969 A.2d 1, 3 (Pa. Cmwlth. 2009). 

“To successfully challenge a motion for summary judgment, a party must show 

through depositions, interrogatories, admissions or affidavits that there are genuine 

issues of material fact to present at trial.” Id. Stated differently, the “non-moving 

party must adduce sufficient evidence on an issue essential to his case and on 

which he bears the burden of proof such that a jury could return a verdict in his 

favor.” Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). “Failure to 

adduce this evidence establishes that there is no genuine issue of material fact and 

the moving party is entitled to judgment as a matter of law.” Id. When reviewing 

the grant of summary judgment, this Court “must examine the record in a light 

most favorable to the non-moving party, accepting as true all well-pleaded facts 

and reasonable inferences” drawn from those facts. Irish v. Lehigh County 

Housing Authority, 751 A.2d 1201, 1203 n.4 (Pa. Cmwlth. 2000). 

 

2 Our review of an order granting summary judgment is limited to determining whether 

common pleas erred as a matter of law or abused its discretion. Irish v. Lehigh County Housing 

Authority, 751 A.2d 1201, 1203 n.4 (Pa. Cmwlth. 2000). 
5

At issue here is common pleas’ application of the Tort Claims Act to grant 

summary judgment in the City’s favor. The Tort Claims Act provides local 

agencies governmental immunity from liability for any damages they cause to a 

person or property. 42 Pa. C.S. § 8541. Under Section 8542(a), a local agency 

shall be liable for injuries to a person or property if: (1) the damages would be 

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

were caused by a person without immunity under Section 8541; and (2) the injury 

was caused by the negligent acts of the local agency or an employee thereof acting 

within the scope of his office or duties with respect to one of the categories listed 

in subsection (b). 42 Pa. C.S. § 8542(a). At issue here is the real property 

exception in Section 8542(b) providing, in relevant part: 

(b) Acts which may impose liability.—The following acts by a local 

agency or any of its employees may result in the imposition of 

liability on a local agency:

. . . .

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

the possession of the local agency, except that the local agency shall 

not be liable for damages on account of any injury sustained by a 

person intentionally trespassing on real property in the possession of 

the local agency.

42 Pa. C.S. § 8542(b)(3). This exception, like the others, is to be narrowly 

construed. Wilson v. Norristown Area School District, 783 A.2d 871, 875 (Pa. 

Cmwlth. 2001).

Nardo first argues that common pleas erred by finding that Nardo failed to 

plead a claim based on the defective design of the scum gutter and that, in making 

this claim, Nardo was alleging facts not of record to defend against the Motion

where the City did not ask for a more specific pleading, did not formally object or 

raise a defense to the asserted design defect claim, and has not alleged that it would 
6

be prejudiced by having to address this claim. Nardo asserts that his pleadings, 

which aver that he was injured by a dangerous condition on the City’s property and 

that the scum gutter was hazardous, are broad enough to encompass a claim for a 

dangerous condition based on a defective design. He maintains that he is permitted 

to allege alternate theories, and may proceed on an alternate theory if discovery 

provides factual support for such theory so long as the other side is given sufficient 

notice of the theory. Department of Transportation v. Manor Mines, Inc., 565 A.2d 

428, 431 (Pa. 1989); Pennsylvania Rule of Civil Procedure 1020(c), Pa. R.C.P. No. 

1020(c) (causes of action may be pleaded in the alternative). Nardo further asserts 

that he was not adding a new claim, but merely amplifying his existing general 

claim that the scum gutter was hazardous, as permitted by Connor v. Allegheny 

General Hospital, 461 A.2d 600, 602 (Pa. 1983) (stating “if the proposed 

amendment does not change the cause of action but merely amplifies that which 

has already been averred, it should be allowed even though the Statute of 

Limitations has already run.”) (emphasis omitted).

The City responds that common pleas correctly did not consider the design 

defect claim because it was not included in the Complaint and was not raised until 

Nardo’s response to the Motion, seven years after the incident and five years after 

the statute of limitations had run. According to the City, the Complaint alleged 

that Nardo was injured as a result of a dangerous condition that was caused by the 

City’s failure to maintain and/or repair the broken scum gutter or warn its patrons 

of the broken scum gutter. The City argues that Manor Mines and Connor, are 

distinguishable because, in those cases, the plaintiffs were not attempting to add a 

cause of action after the statute of limitations had run but relied on allegations 

either already expressly contained in the complaint or generically included therein.
7

After reviewing the Complaint and the precedent, we conclude that common 

pleas did not err. Our Supreme Court stated, in Aland v. P–G Publishing, 10 A.2d 

5, 7 (Pa. 1940), that “[d]espite the increasing informality of modern practice, there 

has been no substantial departure from the salutary rule that pleadings and proof 

must conform sufficiently to enable a defendant to meet at trial the same cause of 

action disclosed by the statement of claim.” However, this rule cannot be applied 

to limit a plaintiff from choosing to prove only one of two alternate theories of 

liability if the defendant has sufficient notice of both. Manor Mines, 565 A.2d at 

431; Pa. R.C.P. No. 1020(c). 

Nardo’s reliance on Manor Mines and Connor to support his argument that 

he could add the defective design claim in response to the Motion is misplaced 

because these cases are distinguishable. In Manor Mines, DOT’s initial complaint 

alleged that it was entitled to recover contract damages based on strict liability. 

Manor Mines, 565 A.2d at 431. DOT subsequently amended that complaint, after 

Manor Mines submitted new matter, to add a claim based on liability for causing 

particular damage to the road in question and also reasserted the strict liability

theory. Id. This Court granted relief based on strict liability, and Manor Mines

appealed arguing that DOT had waived this theory by making certain admissions

upon which Manor Mines relied to its detriment. The Supreme Court affirmed, 

holding, inter alia, that strict liability had always been an asserted theory in the 

contract action and Manor Mines had sufficient notice to address either theory and 

conduct discovery thereon. Id. at 431-32. In Connor, the Supreme Court held that 

it was error not to allow amendment to the complaint in a medical malpractice 

action and to grant summary judgment because the asserted amendment, which 

occurred prior to trial, did not change the cause of action, but amplified one of the 
8

allegations of the original complaint, which included a general claim that the 

defendants were negligent “in otherwise failing to use due care and caution under 

the circumstances” and that due care in performing a barium enema could include 

improper delay of necessary care. Connor, 461 A.2d at 602-03. 

In both Connor and Manor Mines, the initial complaints contained the 

theory subsequently asserted or a general allegation of negligence against the 

defendants, thereby making those theories and allegations part of the pleadings and 

placing the defendants on notice that they would have to address and conduct 

discovery thereon. Nardo’s defective design claim was not included in his 

Complaint, but asserted only in his response to the Motion. Unlike the initial 

complaint in Connor, which included a general allegation of negligence against the 

defendants upon which the plaintiff later expanded, Nardo did not plead a general 

allegation of negligence against the City, but was very specific in his averments 

regarding the nature of the City’s alleged negligence. Thus, the addition of the 

defective design claim was not amplifying any existing pleading, but adding a new 

basis for recovery after the statute of limitations had run.

Moreover, “[t]o successfully challenge a motion for summary judgment, 

[Nardo had to] show through depositions, interrogatories, admissions or affidavits 

that there are genuine issues of material fact to present at trial.” Pritts, 969 A.2d at 

3. Because the design defect claim was not raised previously, it was not addressed 

in any of the materials elicited during discovery. Thus, there were no facts in the 

record that supported Nardo’s new assertion of defective design for common pleas 

to consider in ruling on the Motion. 

Nardo next argues that common pleas committed errors in granting the 

Motion. First, he asserts that common pleas applied the wrong standard for 
9

summary judgment by essentially requiring him to prove that his injury was caused 

by a defect in the City’s real property. While this would be Nardo’s burden of 

proof at trial, it was not his burden at this stage of the proceedings. Instead, Nardo 

contends, that the City had to establish that there were no genuine issues of 

material fact, and common pleas had to resolve all doubts and all reasonable 

inferences from the evidence, in Nardo’s favor. Nardo points to his deposition 

testimony that his “toe got caught in the gutter . . . that was, like, cracked open, 

so,” and to Lifeguard Nicole Miller’s deposition testimony that her report on the 

day of the injury indicated that a broken gutter cut Nardo’s foot. (Nardo’s Dep. at 

19-20, R.R. at 90a; Miller’s Dep. at 13-16, R.R. at 60a-61a.) This evidence, 

according to Nardo, would support a factual finding, or at least the conflicting 

inference, that the scum gutter was broken prior to Nardo’s fall and precludes 

summary judgment. Finally, Nardo argues that summary judgment here was 

premature because there was no indication that discovery was closed, there were 

no expert reports submitted, and the City did not explain why additional discovery 

or expert reports could not establish the requisite dangerous condition created by 

the alleged defect of the City’s property.

3

The City, for its part, asserts that Nardo’s issues related to applying the 

wrong standard and the timing of the Motion are waived because they were not 

raised in Nardo’s Concise Statement of Errors Complained Of filed pursuant to 

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 

 

3 Nardo also argues that, per Hanna v. West Shore School District, 717 A.2d 626, 629 

(Pa. Cmwlth. 1998), the real property exception and sidewalk exceptions are no longer to be read 

in pari materia. Nardo is correct and, therefore, common pleas should not have considered these 

two exceptions together. However, while common pleas indicated that it was reading the two 

together, it did not rely on the “notice” provision of the sidewalk exception to grant summary 

judgment. Accordingly, any error was harmless.
10

1925(b) (1925(b) Statement). Even if not waived, the City argues that common 

pleas did not misapply the summary judgment standard but held that Nardo could 

not establish that the gutter caused him to fall or that the gutter was broken prior to 

his fall and the Motion was timely filed because, inter alia, all of the written 

discovery had been conducted and, in fact, it had been almost a year since the last 

deposition had been taken when the City filed the Motion. Moreover, the City 

asserts that Nardo would not be entitled to recover under common law, making any

exception inapplicable, because a common law negligence claim would require 

him to prove that the City, the possessor of the land, knew, or by the exercise of 

reasonable care should have known, of the danger. Carrender v. Fitterer, 469 A.2d 

120, 123 (Pa. 1983); Restatement (Second) of Torts § 343 (1965). According to 

the City, Nardo did not establish, based on the evidence presented, that the City or 

any of its employees were aware of the alleged dangerous condition prior to the 

accident or that the City did not act with reasonable care. 

Nardo’s 1925(b) Statement asserted that common pleas erred in holding as a 

matter of law that Nardo’s injury was not caused by a defect in the City’s property 

and granting summary judgment because: (1) “it refused to consider [Nardo’s] 

allegation that the dangerous condition . . . was caused by a design defect”; and (2) 

“material issues of fact remain regarding whether a defect existed in [the City’s] 

property and whether the defect caused [Nardo’s] injuries.” (1925(b) Statement at 

1-2, R.R. at 180a-81a.) Pursuant to Rule 1925(b)(4)(v), “[e]ach error identified in 

the Statement will be deemed to include every subsidiary issue contained therein . . 

. .” Pa. R.A.P. 1925(b)(4)(v). We conclude that the issues the City asserts were 

waived constitute “subsidiary issues [that are] contained” within the issues 

identified in Nardo’s 1925(b) Statement and, therefore, they are not waived. 
11

However, common pleas did not misapply the summary judgment standard,

and the Motion was not untimely. First, common pleas concluded, essentially, that 

Nardo did not adduce sufficient evidence to support a finding that a dangerous 

condition of the City’s property existed at the time of his fall that caused his 

injuries. This is what the non-moving party has to do in order to survive summary 

judgment, Ertel, 674 A.2d at 1042; Pritts, 969 A.2d at 3, and Nardo misunderstands 

the burden on summary judgment. Second, as pointed out by the City, it had been 

almost a year since the last deposition was taken and there was no indication that 

further discovery was going to occur when it filed its Motion. The Motion was 

filed “after the completion of discovery relevant to the motion, including the 

production of expert reports,” and included an assertion that Nardo, “who [bore]

the burden of proof at trial ha[d] 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.” Pennsylvania Rule of Civil Procedure 1035.2(2), Pa. R.C.P. 

No. 1035.2(2). Accordingly, the Motion was not premature. 

This leaves Nardo’s contention that summary judgment was not appropriate 

because there are outstanding genuine issues of a material fact. Although Nardo is 

correct that, in summary judgment proceedings, we must view the record in the 

light most favorable to the non-moving party, Irish, 751 A.2d at 1203 n.4, Nardo 

had to “show through depositions, interrogatories, admissions or affidavits that 

there are genuine issues of material fact to present at trial,” Pritts, 969 A.2d at 3. 

To establish that a genuine issue of material fact existed regarding whether the 

scum gutter was broken prior to his fall, making it a dangerous condition of the 

City’s property, Nardo relies on his deposition testimony indicating that his “toe 

got caught in the gutter . . . that was, like, cracked open, so” and to Lifeguard 
12

Nicole Miller’s deposition testimony that her report on the day of the injury 

indicated that a broken gutter cut Nardo’s foot. (Miller’s Dep. at 13-16, R.R. at 

60a-61a; Nardo’s Dep. at 19-20, R.R. at 90a.) However, this evidence does not 

provide any insight into when the gutter was broken and, thus, would not be 

“sufficient evidence on an issue essential to his case and on which he bears the 

burden of proof such that a jury could return a verdict in his favor.” Ertel, 674 

A.2d at 1042. Nardo did not recall seeing whether the scum gutter was broken 

prior to his fall. (Nardo’s Dep. at 22, R.R. at 91a.) The deposition testimony of 

the lifeguards indicates that the lifeguards inspect the Pool and Pool deck daily to 

identify dangers and, if found, they block the area and contact the property 

manager to make the necessary repairs. (Miller’s Dep. at 11-12, 18-19, R.R. at 

60a, 62a; Dubble’s Dep. at 17-19, R.R. at 77a-78a.) There was no evidence that 

this area was blocked off on the day of the incident or that there had ever been a 

situation where there was a broken scum gutter at the Pool, and the City’s 

maintenance person’s deposition testimony indicated that the only time he ever 

repaired a scum gutter was the day after Nardo’s slip and fall. (Miller’s Dep. at 15,

18-19, R.R. at 61a-62a; Dubble’s Dep. at 14-15, 17-19, R.R. at 77a-78a;

Kleinfelter’s Dep. at 19, R.R. at 128a.) Therefore, there was not any genuine issue 

of material fact regarding whether there was a dangerous condition of the City’s 

property that would preclude common pleas from granting summary judgment

based on the City’s assertion of immunity under the Tort Claims Act.

4

 

4 Because of resolution of this issue, we need not address the City’s assertion that it was 

entitled to summary judgment because Nardo did not establish that he would have had a common 

law negligence claim due to the City’s lack of notice of the alleged dangerous condition.
13

Accordingly, we affirm common pleas’ Order granting the Motion.

________________________________

 RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jaime Nardo, :

:

Appellant :

:

v. : No. 2266 C.D. 2015

:

City of Lebanon :

O R D E R

NOW, April 6, 2016, the Order of the Court of Common Pleas of Lebanon 

County, entered in the above-captioned matter, is hereby AFFIRMED.

________________________________

 RENÉE COHN JUBELIRER, Judge