IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Billie Jo Raker, :

Appellant :

:

v. :

:

Pennsylvania Department of :

Transportation, a/k/a PENNDOT : No. 1582 C.D. 2018

and Keystone Blind Association : Argued: October 3, 2019

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ROBERT SIMPSON, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: October 24, 2019

Billie Jo Raker (Appellant) appeals from the Court of Common Pleas 

of Venango County’s (trial court) December 18, 2017 order that granted summary 

judgment to Keystone Blind Association (Keystone) and the trial court’s July 31, 

2018 order that granted summary judgment to the Pennsylvania Department of 

Transportation (DOT). Upon review, we affirm.

On January 4, 2012, Appellant fell and suffered injuries when she

stepped off a curb on the premises of Rest Stop 21 on Interstate 80 Eastbound in 

Venango County, Pennsylvania (the rest stop). On June 13, 2014, Appellant brought 

suit against DOT, the owner of the rest stop, and Keystone, a DOT contractor hired 

to maintain certain portions of the rest stop, alleging DOT’s and Keystone’s 

negligent ownership and inspection of the rest stop caused Appellant’s injuries. 
2

Following discovery, both DOT and Keystone moved for summary judgment 

pursuant to Pa.R.C.P. No. 1035.2.1 On December 18, 2017 and July 31, 2018, the 

trial court granted summary judgment in favor of Keystone and DOT, respectively, 

determining that Appellant had failed to establish a negligence cause of action as to 

either defendant, and further determining that DOT was insulated from Appellant’s 

lawsuit by sovereign immunity, 1 Pa.C.S. § 2310.

2

 Appellant timely appealed.3

 

1 Rule 1035.2 permits summary judgment where:

after the completion of discovery relevant to the motion, including 

the production of expert reports, 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.

2 Pennsylvania Consolidated Statutes Section 2310 provides:

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.

1 Pa.C.S. § 2310.

3 Appellant initially appealed to the Superior Court, which transferred the matter to this 

Court by order dated November 29, 2018.
3

On appeal,4 Appellant claims that the trial court erred by determining 

Appellant failed to meet her burden to put forth a prima facie case of negligence 

against DOT and Keystone because she did not proffer adequate evidence to 

demonstrate the existence of a dangerous condition at the rest stop. See Appellant’s 

Brief at 3 & 9-15. Appellant also claims that the trial court erred by finding that 

Appellant failed to prove that DOT and Keystone had notice of the alleged dangerous 

condition. See Appellant’s Brief at 3 & 15-22. Lastly, Appellant claims that the 

trial court erred because Appellant proffered evidence that Keystone breached a 

contractual duty. See Appellant’s Brief at 3-4 & 22-27.

Initially, as this Court has explained:

Summary Judgment 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. 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.

Pritts v. Dep’t of Transp., 969 A.2d 1, 3 (Pa. Cmwlth. 2009) (internal citation 

omitted). 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 to be drawn therefrom.” Irish 

v. Lehigh Cty. Hous. Auth., 751 A.2d 1201, 1203 (Pa. Cmwlth. 2000). Further,

a 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. 

 

4

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

whether the trial court erred as a matter of law or abused its discretion.” Stuski v. Phila. Auth. for 

Indus. Dev., 162 A.3d 1196, 1199 n.2 (Pa. Cmwlth. 2017).
4

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.

Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). As this Court has also 

noted, “[t]he jury may not be permitted to reach its verdict on the basis of speculation 

or conjecture; there must be evidence upon which its conclusion may be logically 

based.” Mitchell v. Milburn, 199 A.3d 995, 1002 (Pa. Cmwlth. 2018) (quoting 

Cuthbert v. City of Philadelphia, 209 A.2d 261, 264 (Pa. 1965)).

Regarding premises liability, our Supreme Court has repeatedly cited 

with approval the Restatement (Second) of Torts, which explains that a possessor of 

land is liable for harm caused by a condition on the land only if the possessor:

(a) knows or by the exercise of reasonable care would 

discover the condition, and should realize that it involves 

an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the 

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against 

the danger.

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (quoting Restatement (Second) 

of Torts § 343 (1965)); see also Cagey v. Commonwealth, 179 A.3d 458, 466 (Pa. 

2018). Thus, the Supreme Court has explained, “at common law, a possessor of land 

is liable for harm caused by a dangerous condition that he would have discovered 

through the exercise of reasonable care.” Cagey, 179 A.3d at 466.

Additionally, our Superior Court has explained that “[a]n invitee must 

prove either the proprietor of the land had a hand in creating the harmful condition, 

or he had actual or constructive notice of such condition.” Estate of Swift v. Ne. 
5

Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. 1997). The Superior Court has stated

the following regarding the required notice of dangerous conditions to landowners:

[I]f the harmful transitory condition is traceable to the 

possessor [of land] or his agent’s acts, (that is, a condition 

created by the possessor or those under his authority), then 

the plaintiff need not prove any notice in order to hold the 

possessor accountable for the resulting harm. In a related 

context, where the condition is one which the owner 

knows has frequently recurred, the jury may properly find 

that the owner had actual notice of the condition, thereby 

obviating additional proof by the invitee that the owner 

had constructive notice of it. Where however, the 

evidence indicated that the transitory condition is traceable 

to persons other than those for whom the owner is, strictly 

speaking, ordinarily accountable, the jury may not 

consider the owner’s ultimate liability in the absence of 

other evidence which tends to prove that the owner had 

actual notice of the condition or that the condition existed 

for such a length of time that in the exercise of reasonable 

care the owner should have known of it.

Porro v. Century III Assocs., 846 A.2d 1282, 1285–86 (Pa. Super. 2004).

The evidence of record regarding the happening of the incident wherein 

Appellant was injured in the instant matter comes exclusively from Appellant’s 

deposition testimony. See Transcript of Deposition of Billie Jo Raker, November 1, 

2016 (Appellant’s Deposition). During her deposition testimony, Appellant stated

multiple times that she was injured when she stepped down off a curb at the rest stop 

into what she stated “felt like” or what she “thought” was a hole. See Appellant’s 

Deposition at 36, 40-41, 91, 98 & 100. At one point, Appellant testified that “I know 

I stepped into a hole.” See Appellant’s Deposition at 99. Appellant conceded that

the pictures marked as Exhibits 8 & 9 during her deposition testimony, which she

herself took some time after her injury, do not appear to show a hole where Appellant 
6

claims to have stepped off the curb and fallen. See Appellant’s Deposition at 98-99. 

Further, Appellant noted the chipping of the curbing from which she stepped, but 

testified that she was injured when she stepped down into a hole below the curb, not 

as a result of tripping over anything or as a result of the curb chipping. Appellant’s 

Deposition at 100.

Additionally, the only evidence in the record of notice received by the 

defendants of any allegedly dangerous condition(s) at the rest stop consists of two 

Quality Assurance Evaluation forms completed by a Keystone employee in 

September and October of 2011 that note that “Curb in truck lot is chipped away[.]” 

Bureau of Maintenance and Operations Quality Assurance Evaluation dated 

September 27, 2011, Reproduced Record (R.R.) at 537a; Bureau of Maintenance and 

Operations Quality Assurance Evaluation dated October 14, 2011, R.R. at 538a.

The trial court expressly found that “the photographs taken by 

[Appellant] and entered into evidence as Defense Exhibits are absent of any defect 

in the land which could possibly be construed as a ‘dangerous condition.’” Trial 

Court Opinion dated December 18, 2017, at 8 n.1; Trial Court Opinion dated July 

31, 2018, at 8 n.1. Additionally, based on the evidence adduced, the trial court 

stated:

In analyzing [Appellant’s] sparse evidence adduced 

during pleadings and discovery, testimony that 

[Appellant] “felt like I stepped into a hole,” and the 

photographs taken by [Appellant] months after the 

accident happened, she fails to satisfy her burden in 

proving her negligence cause of action against 

Defendant[s Keystone and DOT].
7

Trial Court Opinion dated December 18, 2017, at 8; Trial Court Opinion dated July 

31, 2018, at 8. The trial court then arrived at conclusions based on this evidence. 

As to Keystone, the trial court concluded:

Because of the lack of evidence provided by [Appellant] 

in establishing a dangerous condition caused or known by 

Defendant Keystone, even in a light most favorable to her, 

this [c]ourt finds that she has not met her burden in 

alleging a prima facie case of negligence as she has not 

sufficiently alleged breach of duty. . . . [Appellant] has not 

provided sufficient evidence to sufficiently allege a 

dangerous condition was in existence at the rest stop, and 

therefore this [c]ourt finds that, as a matter of law, 

[Appellant] has not established facts sufficient to defeat 

Defendant’s Motion for Summary Judgment.

Trial Court Opinion dated December 18, 2017, at 8. Likewise, as to DOT, the trial 

court concluded:

Because of the lack of evidence provided by [Appellant] 

in establishing a dangerous condition was caused or 

known by Defendant [DOT], even in a light most 

favorable to her, this [c]ourt finds that she has not met her 

burden in alleging a prima facie case of negligence as she 

has not sufficiently alleged breach of duty. . . . [Appellant] 

has not provided sufficient evidence to sufficiently allege 

a dangerous condition was in existence at the rest stop, and 

therefore this [c]ourt finds that, as a matter of law, 

[Appellant] has not established facts sufficient to defeat 

Defendant [DOT’s] Motion for [S]ummary [J]udgment.

Trial Court Opinion dated July 31, 2018, at 8. 

The trial court continued to conclude the following as to both Keystone 

and DOT:
8

[I]n review of the record in [a] light most favorable to 

[Appellant] this [c]ourt finds that she has failed to submit 

any evidence that Defendant[s] had either actual or 

constructive knowledge of the alleged dangerous 

condition at [the rest stop]. Because [Appellant] has failed 

to offer any evidence which tends to prove that 

Defendant[s] had actual or constructive notice of the 

dangerous condition, [Appellant] has failed to raise a 

factual dispute and summary judgment is appropriate.

Trial Court Opinion dated December 18, 2017 at 8; Trial Court Opinion dated July 

31, 2018, at 8-9.

We agree with the trial court’s conclusion that summary judgment was 

appropriate. Appellant’s testimony indicated that her fall and injury were caused by 

what she perceived to have been a hole in the ground. However, we need not address

whether Appellant’s testimony that she fell after stepping into what “felt like” or 

what she “thought” was a hole, together with the photographic evidence, sufficiently 

raised a factual issue as to the existence of a dangerous condition at the rest stop. 

Even assuming that such testimony amounted to prima facie evidence of a hole 

where Appellant fell, no evidence of record illustrates that either DOT or Keystone 

had notice of the alleged hole. The evidence adduced – the quality assurance forms 

– indicated that each defendant had only notice of a chipped sidewalk somewhere at 

the rest stop, not notice of a hole. In fact, the quality assurance forms Appellant 

relies on as evidence of notice to both Keystone and DOT make no reference 

whatsoever to a hole or subsidence of any kind. Additionally, no evidence indicated 

how long the hole existed, if at all. Further, Appellant’s own testimony indicates the 

reported curb chipping did not contribute to her fall, which she attributed entirely to 

the alleged hole in the ground. 
9

Accordingly, even accepting that a dangerous condition in the form of 

a hole existed at the rest stop, because Appellant did not adduce evidence that either 

DOT or Keystone had notice of the alleged hole into which Appellant alleges to have 

fallen, she cannot prove a necessary element of her case, and both DOT and 

Keystone were entitled to judgment as a matter of law. Thus, the trial court neither

erred nor abused its discretion in granting summary judgment in their favor.

For this reason, we affirm the orders of the trial court.5

__________________________________

CHRISTINE FIZZANO CANNON, Judge

 

5 Because Appellant does not reach the threshold requirement of a recoverable claim, we 

need not investigate whether sovereign immunity applies in this matter.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Billie Jo Raker, :

Appellant :

:

v. :

:

Pennsylvania Department of :

Transportation, a/k/a PENNDOT : No. 1582 C.D. 2018

and Keystone Blind Association :

O R D E R

AND NOW, this 24th day of October, 2019, the orders of the Court of

Common Pleas of Venango County dated December 18, 2017 and July 31, 2018 are 

AFFIRMED. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge