IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronhilde J. Gillingham, :

Appellant :

:

v. : No. 2532 C.D. 2015

: Argued: October 20, 2016

County of Delaware :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON FILED: February 14, 2017 

In this negligence action, Appellant Ronhilde Gillingham

(Gillingham) appeals from an order of the Court of Common Pleas of Delaware

County (trial court), which granted the County of Delaware’s (County) motion for 

summary judgment and dismissed Gillingham’s personal injury complaint with 

prejudice. In so doing, the trial court concluded that the County was immune from 

liability for the injuries Gillingham sustained after a fall in the Delaware County 

Recorder of Deeds Office. For the reasons set forth below, we affirm.

I. BACKGROUND

For purposes of summary judgment, the undisputed material facts are 

as follows. On November 12, 2012, Gillingham visited the County Recorder of 

Deeds Office to conduct title searches. Gillingham sat to conduct searches at a 

County computer, and her foot became entangled in the computer cables and wires 

under the computer cubicle. With her foot still entangled in the computer cables, 

Gillingham stood up to walk away from the computer, tripped, and fell. 
2

In a complaint filed on October 9, 2014, Gillingham named the 

County and the Recorder of Deeds as separate defendants. (Reproduced Record 

(R.R.) at 7a-12a.) The County filed preliminary objections on behalf of the 

Recorder of Deeds, arguing that the Recorder of Deeds cannot be sued as an entity 

distinct from the County. (Id. at 15a-16a.) Gillingham amended her complaint, 

dropping the Recorder of Deeds as a defendant and re-alleging that the County’s 

negligence directly and proximately caused her injuries. (Id. at 44a-49a.)

Specifically, Gillingham alleged that the County was negligent by its failure to 

inspect and maintain the floor and failure to make safe or remove the foreign 

substance—i.e., the computer cables—from the floor. (Id. at 11a-12a, 

Compl. ¶ 19.) 

The County filed an answer and new matter, denying the material 

allegations of Gillingham’s complaint and asserting that the County was immune 

under what is commonly referred to as the Political Subdivision Tort Claims Act 

(Tort Claims Act), 42 Pa. C.S. §§ 8541-8542. (Id. at 51a-58a.) 

On September 25, 2015, following the completion of discovery, the 

County filed a motion for summary judgment, in which it again argued that the 

County was immune under the Tort Claims Act. (Id. at 61a-65a.) The County

attached to its motion the affidavit of Joseph DeVuono, who placed the computers 

in their location at the Recorder of Deeds Office. (Id. at 203a.) In his affidavit, 

Mr. DeVuono states: 

The computers and cubicles may be moved for repairs or 

for cleaning. There is no hardwiring of the computers at 

the individual stations and nothing at the computer 

station is bolted or attached to the floor or walls. The 

computer station cubicle itself as well as each computer 

are fully moveable and are not affixed in anyway [sic] to 

the floor or wall.
3

(Id. at 203a.) The County argued that the “real property exception” is not viable in 

this case because “none of [the computer cables] are affixed or wired to the real 

estate.” (Id. at 74a.) In response, Gillingham argued that it is not necessary for her 

to show that a fixture to the real property caused the injuries. (Id. at 225a-31a.) 

Instead, Gillingham contended, under the approach from our Supreme Court’s 

decision in Grieff v. Riesinger, 693 A.2d 195 (Pa. 1997), it is sufficient for 

Gillingham to show that the County was negligent in its care, custody, or control of 

the real property. (Id. at 226a.) Gillingham argued that the County was negligent 

in its maintenance of the real property, namely, the floor in the Recorder of Deeds 

Office. (Id. at 230a.)

On November 17, 2015, the trial court granted the County’s motion 

for summary judgment and dismissed Gillingham’s complaint against the County 

with prejudice. Gillingham filed a notice of appeal with this Court, and the trial 

court issued an opinion pursuant to Pa. R.A.P 1925(a) on May 16, 2016. In 

explaining its ruling, the trial court cited prior cases from this Court and appears to 

have concluded that the approach from Blocker v. City of Philadelphia, 

763 A.2d 373 (Pa. 2000), is more applicable than the approach set forth in Grieff.

On appeal,1 Gillingham essentially argues that the trial court erred in

applying the Blocker approach rather than the Grieff approach to 

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

contends that the trial court erred because she alleged that the County’s negligent 

care, custody, or control of the floor in the Recorder of Deeds Office, rather than 

 

1

This Court’s standard of review of a trial court’s order granting summary judgment is 

de novo, and our scope of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 

(Pa. 2011). Under this standard, we may reverse a trial court’s order only for an error of law. Id.
4

the computer cables, caused her injuries. Thus, Gillingham argues, the approach 

from the Grieff line of cases is the most applicable analysis. Gillingham also 

appears to argue that the maintenance of an object of personalty can fall within 

Section 8542(b)(3)’s exception for real property.

II. DISCUSSION

A. The Real Property Exception to Governmental Immunity

“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). A local agency may, however, be liable for damages 

that are: (1) recoverable under common law or a statute creating a cause of action; 

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

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

enumerated in Section 8542(b) of the Act. Section 8542(a) of the Tort Claims Act. 

At issue in this appeal is whether Gillingham failed to state a claim 

under Section 8542(b)(3) of the Tort Claims Act, which is referred to as the “real 

property exception” to governmental immunity.

2

Section 8542(b)(3) of the Tort 

Claims Act provides:

 

2

There has been some confusion, both in this case and in Pennsylvania precedent, about 

the shorthand name to be used for Section 8542(b)(3) of the Tort Claims Act. For clarity, we 

will refer to the exception in Section 8542(b)(3) of the Tort Claims Act as the “real property

exception,” because “real property” is the language used in the statute. We will refer to 

Section 8522(b)(4) of the Sovereign Immunity Act, 42 Pa. C.S. § 8522(b)(4), on the other hand, 

as the “real estate exception,” because that is the language that the General Assembly used in 

that statute. Part of the confusion may stem from the joint origin of sovereign immunity and 

governmental immunity prior to the enactment of their corresponding statutes. See Dorsey v. 

Redman, 96 A.3d 332, 340 (Pa. 2014). Regardless, the Supreme Court of Pennsylvania has held 

that because the statutory language in these two distinct exceptions “varies markedly” from one 

(Footnote continued on next page...)
5

(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. 

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.

This exception applies “where acts of the local agency or its employees make the 

property unsafe for the activities for which it is regularly used, for which it is 

intended to be used or for which it may reasonably be foreseen to be used.” 

Moles v. Borough of Norristown, 780 A.2d 787, 791 (Pa. Cmwlth. 2001). 

“Because of the clear intent to insulate government from exposure to tort liability, 

the exceptions to immunity are to be strictly construed.” Lockwood v. City of 

Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000).

 

(continued...)

another, they should not be interpreted “in lockstep.” Jones v. Se. Pennsylvania Transp. Auth., 

772 A.2d 435, 444 (Pa. 2001). 
6

There are two approaches that can be used to determine whether to 

apply the real property exception to immunity under the Tort Claims Act—the 

Grieff approach and the Blocker approach. Repko v. Chichester Sch. Dist., 

904 A.2d 1036, 1040 (Pa. Cmwlth. 2006). Both approaches have been applied by 

the courts. Id. We acknowledge that “at times, deciding which approach to apply 

under a given set of facts is challenging.” Id. In deciding which approach to 

apply, this Court determines which line of cases has more analogous facts 

pertaining to causation.

Under the Grieff approach, the determinative inquiry is whether the 

injury is caused by the care, custody, or control of the real property itself. Id. In 

Grieff, our Supreme Court held that the real property exception applied to injuries 

caused by the alleged negligent care of a fire association’s property. Grieff, 

693 A.2d at 197. There, the fire chief poured paint thinner onto the floor to 

remove paint from the floor. Id. at 196. The paint thinner spread across the floor 

and caught fire under a refrigerator, causing severe injuries to a bystander. Id. The 

Court explained that the fire chief’s alleged negligence was in the paint removal, 

and paint removal clearly fell within the exception’s language of the care of the 

property. Id. at 197. The Supreme Court held, therefore, that the real property 

exception applied, and the chief and fire association were not immune. Id.

In cases that followed the model set forth in Grieff, the cause of the 

injury was clearly related to the maintenance of the real property. For instance, in 

Hanna v. West Shore School District, 717 A.2d 626 (Pa. Cmwlth. 1998), this Court

held that the real property exception applied to the allegedly negligent cleaning of 

a school hallway. Hannah, 717 A.2d at 629. Likewise in Snyder v. North

Allegheny School District, 722 A.2d 239 (Pa. Cmwlth. 1998), this Court held that 
7

the real property exception also defeated immunity where a school allegedly failed 

to care for the landing at the top of a set of stairs, where a visitor slipped and fell 

on ice and snow. Snyder, 722 A.2d at 240. 

Turning to Blocker, the other seminal case in the realm of the real 

property exception, the Supreme Court addressed the exception in an action where 

a concert attendee sustained injuries after the bleachers on which she was sitting 

collapsed. Blocker, 763 A.2d at 374. This Court held that a question existed as to 

whether the City intended the bleachers to be part of the realty. Id. at 375. The 

Supreme Court reversed this Court’s determination, holding that an owner’s 

intention with regard to chattel is only relevant where the chattel is, in fact, affixed 

to the realty. Id. The Supreme Court concluded that the bleachers were clearly 

personalty. Id. The Supreme Court held, therefore, that the real property 

exception did not apply to the concert attendee’s injuries. Id. 

The Supreme Court provided the guidelines for determining if the 

object that causes an injury is real or personalty:

Chattels used in connection with real estate are of three 

classes: First, those which are manifestly furniture, as 

distinguished from improvements, and not peculiarly 

fitted to the property with which they are used; these 

always remain personalty. . . . Second, those which are 

so annexed to the property that they cannot be removed 

without material injury to the real estate or to themselves; 

these are realty, even in the face of an expressed intention 

that they should be considered personalty. . . . Third, 

those which, although physically connected with the real 

estate, are so affixed as to be removable without 

destroying or materially injuring the chattels themselves, 

or the property to which they are annexed; these become 

part of the realty or remain personalty, depending upon 

the intention of the parties at the time of the annexation; 

in this class fall such chattels as boilers and machinery 
8

affixed for the use of an owner or tenant but readily 

removable.

Id. (emphasis and citations omitted) (quoting Clayton v. Lienhard, 167 A. 321, 322 

(Pa. 1933)). 

Under the Blocker approach, the determinative inquiry is whether the 

injury is caused by personalty, which is not attached to the real estate, or by a 

fixture, which is attached. Repko, 904 A.2d at 1040. Thus, under a Blocker

analysis, if the injury is caused by the real property, including a fixture, the real 

property exception overrides governmental immunity. Mandakis v. Borough of 

Matamoras, 74 A.3d 301, 305 (Pa. Cmwlth. 2013), appeal denied, 84 A.3d 1065 

(Pa. 2014). If the injury is caused by personalty that is merely on the real property, 

however, the political subdivision remains immune. Id. 

B. Application

Gillingham essentially contends that the trial court erred by applying 

the analysis from Blocker rather than the analysis from Grieff.

3

 She argues that the 

 

3 Gillingham also challenges the trial court’s reliance on Moon v. Dauphin County, 

129 A.3d 16 (Pa. Cmwlth. 2015), appeal denied, 138 A.3d 7 (Pa. 2016). In Moon, the claimant, 

a resident of a work release center, slipped and fell on a fenced-in walkway covered by ice while 

exiting the center. The claimant filed an action for personal injuries, averring, in part, that 

Dauphin County was negligent in restricting entry and exit from the center to an area open to the 

elements, because of the likelihood of hazardous conditions developing during certain times of 

the year, and also was negligent in designing of the layout of the center. The claimant further 

averred that Dauphin County’s negligent design constituted the direct and proximate cause of his 

fall, because ice had accumulated on the walkway outside the only entrance/exit that residents of 

the center were permitted to use. The claimant’s negligent design claim appeared to be based on 

his assertion that the design of the center was flawed, because it provided only one entrance/exit 

for residents of the center, and, therefore, residents had no option regarding which route to take 

during inclement weather. Specifically, because of the fenced-in nature of the walkway 

associated with the single entrance/exit, the claimant contended that he had no ability to go left 

or right; instead, he had to pass through the gate into icy/slippery conditions. The trial court, 

analyzing the matter under the real estate exception to sovereign immunity (as opposed to the 

(Footnote continued on next page...)
9

 

(continued...)

real property exception to governmental immunity), determined that the claimant’s slip and fall 

was the result of wintry weather and that Dauphin County did not have actual or constructive 

notice of a dangerous condition. As a result, the trial court concluded that the claim failed under 

the “hills and ridges doctrine.” The trial court, addressing the claimant’s negligent design claim, 

then concluded that the lack of an additional walkway did not constitute a “dangerous condition”

of real estate. 

On appeal to this Court, we concluded that the claimant failed to satisfy the requirement 

of Section 8542(a)(1) of the Tort Claims Act due to application of the hills and ridges doctrine, 

“which 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 elevation.” Moon, 129 A.3d at 22-23 (quoting Morin v. Traveler’s Rest 

Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997)). Pursuant to Section 8542(a)(1) of the Tort 

Claims Act, in order for a local agency to be liable for damages, the damages must “be 

recoverable under common law or a statue creating a cause of action if the injury were caused by 

a person not having available a defense” of governmental or official immunity. We then 

considered whether the claimant’s negligent design claim fell within the real property exception 

to immunity set forth in the Tort Claims Act. In analyzing that issue, the Court, when 

summarizing the law surrounding the real property exception, admittedly did not incorporate the 

holding of Grieff into its summary and considered cases involving both the real property and real 

estate exception and pre-Grieff case law. Ultimately, however, our analysis was simple—the 

claimant’s injury was caused by the walkway, and, therefore, any “design flaw must be of the 

walkway and not the failure to have an alternate route.” Moon, 129 A.3d at 25 (emphasis added). 

We then observed that the claimant did not contend that there was defect “of” the walkway and 

did not contend that the slippery condition “on” the walkway was caused by the walkway. Id. at 

25-26. Nevertheless, even if we had considered the slippery condition on the walkway, our 

result would have been the same, because under the hills and ridges doctrine there could be no 

liability based on the icy conditions under the circumstances in Moon. 

Here, the trial court appears to have interpreted our decision in Moon as an implicit 

overruling or abandonment of the Supreme Court’s holding in Grieff and its progeny. See

Snyder v. N. Allegheny Sch. Dist., 722 A.2d 239, 245 (Pa. Cmwlth. 1998) (applying Grieff to 

hold that “a dangerous condition or defect when located ‘on’ real property could fall within the 

real property exception contained in Section 8542(b)(3) of the Tort Immunity Act” and setting 

forth list of other cases holding that pre-Grieff “on-of” distinction no longer applies). As noted 

above, under the Grieff approach, the determinative inquiry is whether the injury is caused by the 

care, custody, or control of the real property itself. Moreover, the inquiry encompasses both the 

dangerous conditions of the real property and the maintenance or care of the real property. Our 

decision in Moon does not address Grieff and its progeny. Clearly, our Court cannot overrule the 

(Footnote continued on next page...)
10

County was negligent in its care, custody, or control of the real property of the 

Recorder of Deeds Office by failing to make the floor safe. Gillingham further 

suggests that it was the floor, rather than the actual computer cables, that caused 

her injuries. Our recent cases Repko and Sanchez-Guardiola v. City of 

Philadelphia, 87 A.3d 934 (Pa. Cmwlth. 2014), are instructive.

In Repko, a table that was placed on its side in a school gymnasium 

fell onto a student and injured her. Repko, 904 A.2d at 1037. The student alleged 

that she sustained the injuries as a result of the school’s negligent maintenance of 

real property under its care, custody, and control—the gymnasium. Id. at 1037-38. 

This Court rejected the student’s attempt to take a Blocker factual scenario and 

assess it under a Grieff analysis: “[A]lthough Repko frames the issue in terms of 

the negligent care of the gymnasium, which is real property, in fact, Repko was 

injured by a table that fell on her in the gymnasium.” Id. at 1042 (emphasis 

omitted).

 

(continued...)

Supreme Court’s decision in Grieff. Furthermore, panel decisions of this Court, such as Snyder

and the cases cited in Snyder, can only be overruled by an en banc panel of this Court. 

See Commonwealth Court IOP § 257. Thus, Grieff remains valid law, and Grieff and Moon must 

be interpreted, as best they can, to give effect to each other. Perhaps the main distinction 

between the two is the application of the hills and ridges doctrine in Moon, which effectively 

precluded liability for certain weather conditions and thereby negated the “on” real property 

portion of any analysis. 

Any tension that may exist between our holding in Moon and our decisions applying 

Grieff does not affect our analysis. As discussed above, Moon involved a negligent design claim 

following a slip-and-fall on an icy, outdoor walkway. Moon, 129 A.3d at 18. Conversely, in this 

case, Gillingham tripped and fell on an item of personalty, specifically computer cables. Moon, 

therefore, does not provide any guidance for the Court in this case. 
11

Similarly, in Sanchez-Guardiola, this Court rejected the applicability 

of the real property exception when a traveler fell in the airport. 

Sanchez-Guardiola, 87 A.3d at 941. There, the traveler tripped after she walked 

between two flower pots, which blocked from view an unmarked platform that was 

similar in appearance to the surrounding carpet. Id. at 936. This Court rejected the 

argument that the platform or stage constituted a dangerous condition of the real 

property. Id. at 939. Instead, this Court held that because the moveable platform

was not affixed or attached to the surrounding floor, it was an item of personalty 

akin to furniture and not part of the real property. Id. at 941. 

Here, despite Gillingham’s attempt to couch the cause of her injury as 

a problem with the care, custody, or control of the floor, she was not injured as a 

result of the floor being negligently maintained. Rather, she tripped because her 

foot was entangled in computer cables when she tried to stand up and walk away 

from a computer cubicle. The uncontroverted evidence on record, including the 

affidavit from Joseph DeVuono, shows that the computer cables were not affixed 

to the real property. Gillingham attempted to frame the issue as negligent care of 

the Recorder of Deeds Office floor, just as the student in Repko alleged negligent 

care of the gymnasium and the traveler in Sanchez-Guardiola alleged negligent

care of the airport floor. As in those cases, however, the cause of Gillingham’s

injury was the personalty—i.e., the computer cables—rather than the surrounding 

real property. 

Gillingham also cites Martin By & Through Martin v. City of 

Philadelphia, 696 A.2d 909 (Pa. Cmwlth. 1997) (Martin by Martin), for support of 

the argument that “an object or substance on a local agency’s property might fall 

within the real property exception post-Grieff.” (Gillingham Br. at 29.) In Martin 
12

by Martin, a minor football player tripped and fell onto a metal pipe at a 

recreational park. Martin by Martin, 696 A.2d at 910. The metal pipe was not 

affixed to the property at the time that the minor football player fell onto it. Id. 

This Court remanded to the trial court to resolve the factual discrepancy as to 

whether the pipe was placed in the park by third parties or previously affixed to the 

property. Id. at 912. Thus, the case would only proceed if the metal pipe was at 

one point affixed to the property. See Mandakis, 74 A.3d at 305 n.5 (discussing 

our holding in Martin by Martin). Importantly, Martin by Martin does not stand 

for the proposition that negligent care, custody, or control of personalty falls within 

the real property exception. 

Accordingly, Martin by Martin does not provide any support to 

Gillingham in this case. If the metal pipe in Martin by Martin was in fact affixed 

to the property, which this Court did not determine, that fact alone distinguishes it 

from the computer cables in this case. Gillingham’s suggestion that an object or 

substance on a local government’s property can fall within the real property 

exception is not an accurate reflection of the law because the inclusion of the word 

“object” implies that personalty can fall within the exception. An object on a 

political subdivision’s real property does not fall within the exception unless it is a 

fixture. Mandakis, 74 A.3d at 305. The computer cables were not affixed to the 

Recorder of Deeds Office and are not part of the real property. 

III. CONCLUSION

Because the real property exception applies only to real property, 

Gillingham’s injury from computer cables does not fall within the exception. The 
13

County, therefore, is immune under the Tort Claims Act. The order of the trial 

court is affirmed. 

 

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

Ronhilde J. Gillingham, :

Appellant :

:

v. : No. 2532 C.D. 2015

:

County of Delaware :

O R D E R

AND NOW, this 14th day of February, 2017, the order of the Court of 

Common Pleas of Delaware County is AFFIRMED.

 

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

Ronhilde J. Gillingham, :

Appellant :

:

v. : No. 2532 C.D. 2015

: Argued: October 20, 2016

County of Delaware :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

DISSENTING OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: February 14, 2017

Respectfully, I dissent. The majority holds that if an item of 

personalty is present in the chain of causation, then the plaintiff cannot pursue a 

tort claim under the real property exception to the Political Subdivision Tort 

Claims Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542. This overstates the real 

property exception, as construed by our Supreme Court. The ultimate question is 

whether Ronhilde Gillingham’s injury was caused by the County’s negligent 

maintenance of the floor or its negligent maintenance of the computer cords. The 

resolution of this question should be made by a jury. 

Gillingham sustained injuries in the Delaware County Recorder of 

Deeds Office when her foot became entangled in computer cables located on the 

floor under a computer station. When Gillingham attempted to walk away from 

the computer station, her foot remained entangled in the computer cables, causing 

her to trip and fall. Gillingham filed suit against the County, alleging it was 

negligent because it did not inspect and maintain the floor. The County denied the 

allegations, and asserted that it was immune under the Tort Claims Act. 
MHL-2

Local government agencies are generally immune from tort liability 

under the Tort Claims Act. 42 Pa. C.S. §8541. There are, however, several 

exceptions to this grant of immunity, which allows an injured party to recover in 

tort from a local agency provided that:

(1) the damages would be otherwise recoverable under 

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

were caused by a person not having available a defense under 

Section 8541; (2) the injury was caused by the negligent acts of 

the local agency or an employee thereof acting within the scope 

of his official duties; and (3) the negligent act of the local 

agency falls within one or more of the eight enumerated 

categories of exceptions to immunity found in subsection (b). 

42 Pa. C.S. §8542(a)(1), (2). 

Sellers v. Township of Abington, 67 A.3d 863, 869 (Pa. Cmwlth. 2013). The 

exception relevant here is the “real property exception” found in 42 Pa. C.S. 

§8542(b)(3). The real property exception 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 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; 
MHL-3

(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). 

In determining whether the real property exception to the Tort Claims 

Act is applicable, two approaches have emerged: the Blocker approach and the 

Grieff approach. We have explained the difference as follows: 

Under the Blocker approach, the determinative inquiry is 

whether the injury is caused by personalty, which is not 

attached to the real estate, or by a fixture, which is attached.

Under the Grieff approach, the determinative inquiry is whether

the injury is caused by the care, custody or control of the real 

property itself. Both approaches have been applied by the 

courts. 

Repko v. Chichester School District, 904 A.2d 1036, 1040 (Pa. Cmwlth. 2006). In 

deciding which approach to follow, the court is tasked with determining which line 

of cases is more analogous in terms of causation. Admittedly, “deciding which 

approach to apply under a given set of facts is challenging.” Id. 

In Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000), the 

plaintiff sustained injuries when the bleacher on which she was sitting collapsed. 

Our Supreme Court agreed that the City was negligent in the maintenance of the 

bleacher. However, because the bleacher was not attached to the floor of the 
MHL-4

concert hall, it was an item of personalty.1 Accordingly, the Supreme Court

concluded that the real property exception did not apply to the plaintiff’s claim for 

damages. Under the Blocker approach, the relevant question is whether the injury 

is caused by an item of personalty, which is not attached to the real estate, or by a 

fixture, which is attached. 

The second approach stems from Grieff v. Reisinger, 693 A.2d 195 

(Pa. 1997). In Grieff, a bystander was burned when paint thinner, being used to 

remove paint from the floor, spread and caught fire under a refrigerator. Our 

Supreme Court held that the negligence related to “care of real property” and, thus,

fell within the real property exception. Accordingly, the plaintiff was able to

recover for her injuries. The relevant inquiry under the Grieff approach is whether 

the injury was caused by the care, custody, or control of the real property, even 

where personalty, i.e. paint thinner, was implicated in the causation of the 

plaintiff’s injuries. 

 

1

In Blocker, the Supreme Court reiterated the guidelines for determining if the object that causes 

an injury is realty or personalty: 

Chattels used in connection with real estate are of three classes: First, those which 

are manifestly furniture, as distinguished from improvements, and not peculiarly 

fitted to the property with which they are used; these always remain personalty.... 

Second, those which are so annexed to the property that they cannot be removed 

without material injury to the real estate or to themselves; these are realty, even in 

the face of an expressed intention that they should be considered personalty-to 

them the ancient maxim “Quicquid plantatur solo, solo cedit” applies in full 

force.... Third, those which, although physically connected with the real estate, are 

so affixed as to be removable without destroying or materially injuring the 

chattels themselves, or the property to which they are annexed; these become part 

of the realty or remain personalty, depending upon the intention of the parties at 

the time of the annexation; in this class fall such chattels as boilers and machinery 

affixed for the use of an owner or tenant but readily removable....

Blocker, 763 A.2d at 375 (quoting Clayton v. Leinhard, 267 A. 321, 322 (Pa. 1933)). 
MHL-5

As the majority observes, deciding which approach to apply to 

Gillingham’s injury requires an examination of the line of cases that have followed 

Blocker and Grieff. The subtle distinctions between Blocker and Grieff and their 

progeny have produced jurisprudence that can only be described as hair splitting.

This would have been a Blocker case had Gillingham been 

electrocuted by the computer lines or if the computer monitor had fallen on her 

foot. The County’s negligence could only be related to the care of personalty. But 

those are not the facts. The computer lines were arranged in a fashion that 

impeded her ability to walk away from the work station without falling, which can

be reasonably characterized as maintenance of the real property, under the Grieff 

analysis.

The decision of whether to apply Blocker or Grieff, which results in a 

drastically different result for Gillingham, turns on the nature of the negligence. 

Whether the County’s maintenance of the computer cables constituted negligence

in its maintenance of the floor is a question for the jury. This is consistent with our 

Supreme Court’s directive, for example, that the question of whether an agency has 

constructive notice of a dangerous condition is a question for the jury, and a court

may decide the issue “only when reasonable minds could not differ as to the 

conclusion.” Department of Transportation v. Patton, 686 A.2d 1302, 1305 (Pa. 

1997). Here, whether Gillingham’s injury resulted from negligent care of the floor 

in the Recorder of Deeds Office or negligent care of the computer cables is too 

close to call. Reasonable minds can disagree.

2

 

 

2

The concurrence would hold that had the computer wires been negligently placed across a 

walkway, a different conclusion would be reached. In that scenario, the walkway could be 

deemed unsafe for its intended purpose, and thus an injury to a pedestrian would be the result of 

the local agency’s “care, custody and control of real property.” Whether under a desk or across a 

(Footnote continued on the next page . . .)
MHL-6

For these reasons, summary judgment is not appropriate here. “Only 

when the facts are so clear that reasonable minds could not differ can a trial court 

properly enter summary judgment.” Kvaerner Metals Division of Kvaerner U.S., 

Inc. v. Commercial Union Insurance Company, 908 A.2d 888, 896 (Pa. 2006). 

Because there is a material question of fact as to whether Gillingham’s injuries 

resulted from negligent maintenance of the floor or negligent maintenance of the 

computer cords, I would reverse the trial court and remand for further proceedings. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 

(continued . . .)

walkway, the computer cords remain on the floor of the Recorder of Deeds office. Under our 

current two-approach analysis, this location difference, which may amount to inches, could 

change the analysis from one that falls indisputably under Blocker to one that falls indisputably 

under Grieff. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronhilde J. Gillingham, :

Appellant :

:

v. : No. 2532 C.D. 2015

: Argued: October 20, 2016

County of Delaware :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

CONCURRING OPINION BY

SENIOR JUDGE PELLEGRINI FILED: February 14, 2017

The issue in this case is whether a person using a county computer to 

conduct title searches whose foot becomes entangled in computer cables and wires 

under the computer cubicle when she stood up causing her to fall and injure herself 

can maintain an action under the real property exception to governmental immunity. 

That provision provides that a local agency, like the county, can be held liable for its 

actions or that of its employees involving negligence related to the “care, custody or 

control of real property in the possession of the local agency.” 42 Pa.C.S. §

8542(b)(3). While I agree with the majority that the negligence here does not fall 

within the real property exception, I disagree that the local agency is immune merely 

because the injury is caused by local agency personal property.

There is no dispute that the local agency personal property exception 

does not apply because that exception is limited to the loss or damage of the personal 
DRP - 2

property of others that is within the control of the local agency. 42 Pa.C.S. §

8542(b)(2).

1

 The question here is whether it falls within the local agency real property 

exception.

The local agency exception for real property language of “care, custody or 

control” is different from the language in the sovereign immunity exception that waives 

immunity for “dangerous conditions of real property.” Notwithstanding the difference 

in language, under both exceptions, the test originally employed to determine whether 

an action was maintainable was dependent on “a legal determination that an injury was 

caused by a condition of government realty itself, deriving, originating from, or having 

the realty as its source, and, only then, the factual determination that the condition was 

dangerous.” Finn v. City of Philadelphia, 664 A.2d 1342, 1346 (Pa. 1995). This is 

known as the “on-off” standard, i.e., the physical defect “of” the property itself must 

have caused the damages to fall within the exception. Mascaro v. Youth Study Center, 

523 A.2d 1118 (Pa. 1987).

That changed with our Supreme Court’s decision in Grieff v. Reisinger, 

693 A.2d 195 (Pa. 1997). In that case, a fire chief poured paint thinner to remove 

paint from the floor when the paint thinner spread across the floor and caught fire 

under a refrigerator, causing severe injuries to a bystander. Recognizing the 

difference in language between the Tort Immunity and Sovereign Immunity Acts, our 

 

1

The personal property exception under the Sovereign Immunity Act for a commonwealth 

party is much broader. While commonwealth parties are also liable for property they hold for 

others, with the exception of nuclear or radioactive devices, immunity has also been waived for 

negligence arising for injuries that result out of the negligent care, custody or control of personal 

property. 42 Pa. C.S. §8522(b)(3).
DRP - 3

Supreme Court abandoned the on-off distinction for the real property exception for 

local agencies only and found that the paint removal was an activity that fell within 

the local agency real property exception because it involved the caring of the real 

property. The implication of this opinion is that the “care, custody or control” language 

requires the local agency to keep its property safe for its intended purpose from all sorts 

of negligent conditions, not just those that originate of the property. See also Snyder v. 

North Allegheny School District, 722 A.2d 239 (Pa. Cmwlth. 1998).

Other cases cited by the majority do not involve a different test than set 

forth in Grieff, but instead focus on whether the injury involved the care, custody and 

control of real property or personal property. In Blocker v. City of Philadelphia, 763

A.2d 373 (Pa. 2000), a concert attendee was injured when bleachers she was sitting 

on collapsed. The court held that because they were not affixed to the realty, the 

bleachers were personal property and not real property so the real property exception 

did not apply. Notably, if they were affixed like those in a stadium, the local agency 

would be liable. In Repko v. Chichester School District, 904 A.2d 1036 (Pa. Cmwlth. 

2006), a student who was playing basketball during gym class went to retrieve a 

basketball when a table leaning on its side against the bleachers fell over causing the 

student to sustain a deep cut. Because the injury was caused by the way the table was 

placed against the bleachers and did not involve the care, custody or control of the 

real property, we held that exception did not apply.

The question in this case is when the plaintiff stood up to walk away 

from the computer and fell on the wires on the floor under the computer terminal 

involved, did that involve negligence involving personal property – the computer – or 
DRP - 4

negligence involving the care, custody and control of real property – the floor. 

Because the plaintiff’s injuries directly flowed from her use and the county’s care of 

the computer, i.e., personal property, I also hold that the real property exception does 

not apply because any purported local agency negligence involved the care, custody 

and control of personal property and not real property. However, if those computer 

wires were negligently placed across a walkway making the real property unsafe for 

its intended purpose and a pedestrian was injured, I would hold that would involve 

the local agency’s care, custody and control of real property.

For the foregoing reasons, I concur.

_________________________________

DAN PELLEGRINI, Senior Judge