IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fred Paul Polesky, Jr. and Gabriella :

Polesky, :

Appellants :

:

v. : No. 1250 C.D. 2020

: ARGUED: October 18, 2021

Commonwealth of Pennsylvania, :

Department of Transportation and :

Gene M. Smith :

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge 

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: November 10, 2021

Fred Paul Polesky, Jr. and Gabriella Polesky (together, Poleskys) appeal from 

the September 2, 2020 Order of the Court of Common Pleas of Beaver County (Trial 

Court) granting the Motion for Summary Judgment (Summary Judgment Motion) 

filed by the Commonwealth of Pennsylvania, Department of Transportation (DOT). 

The Trial Court concluded that DOT was immune from suit under Section 8521(a)

of the Judicial Code, 42 Pa. C.S. § 8521(a), commonly known as the Sovereign 

Immunity Act,

1 and that the Poleskys failed to prove the applicability of an exception 

to DOT’s immunity. We agree and, therefore, affirm the Trial Court’s Order.

1 Section 8521(a) of the Sovereign Immunity Act states: “Except as otherwise provided in 

this subchapter, no provision of this title shall constitute a waiver of sovereign immunity for the 

purpose of 1 Pa.[]C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or 

otherwise.” 42 Pa. C.S. § 8521(a). Our Court has explained the Sovereign Immunity Act’s 

applicability to DOT as follows:
2

Background

On the evening of July 2, 2017, the Poleskys were traveling on State Road 

151 (SR 151) in Hopewell, Pennsylvania, when a large tree fell onto the roof of their 

sport utility vehicle (SUV). At the time of the accident, Ms. Polesky was driving the 

SUV, and her father, Mr. Polesky, was seated in the back seat. Both Ms. Polesky

and her father suffered severe injuries as a result of the accident.

Gene M. Smith owns a parcel of land adjacent to SR 151. DOT had previously 

acquired a highway right-of-way from Ms. Smith for SR 151. DOT’s right-of-way 

extends 30 feet from the centerline of SR 151 on each side. The tree that fell on the 

Poleskys’ vehicle was located on Ms. Smith’s property, three feet beyond DOT’s 

right-of-way.

In July 2018, the Poleskys filed a Complaint against DOT and Ms. Smith 

(together, Defendants), alleging negligence causes of action against both 

Defendants. In their Complaint, the Poleskys averred:

8. . . . [Ms.] Smith was responsible for inspecting and maintaining the 

trees and vegetation on [her] property.

9. . . . [DOT] maintained care, custody, ownership, control, and 

jurisdiction over SR 151 in Hopewell Township, Beaver County, 

Pennsylvania, including the cartway and right-of-way extending on 

both sides of the cartway.

“DOT is an administrative agency of the Commonwealth and a ‘Commonwealth 

party’ pursuant to [S]ection 8501 of the Judicial Code, 42 Pa.[]C.S. § 8501. 

Commonwealth agencies, including DOT, are generally immune from tort liability 

pursuant to [S]ection 8521(a) of the Sovereign Immunity Act, 42 Pa.[]C.S. § 

8521(a).” Cowell v. Dep’t of Transp., 883 A.2d 705, 708 (Pa.[]Cmwlth.[]2005). 

Thus, sovereign immunity is available to DOT as a defense in all actions, except 

where the General Assembly has expressly waived it. Powell v. Drumheller, . . .

653 A.2d 619 ([Pa.] 1995).

Bubba v. Pa. Dep’t of Transp., 61 A.3d 313, 316 (Pa. Cmwlth. 2013).
3

10. . . . [DOT] was responsible for inspecting and maintaining the trees 

and vegetation on or along SR 151, including the cartway and right-ofway extending on both sides of the cartway and any trees posing a 

danger to drivers on said roadway.

Compl. ¶¶ 8-10. The Poleskys alleged that both Defendants “knew or should have 

known of the dead, dying and/or dangerous condition” of the tree. Id. ¶ 21. The 

Poleskys further alleged that they suffered severe injuries “[a]s a direct and 

proximate result of the individual, joint, several, and/or combined negligence[] [and] 

carelessness[] . . . of Defendants . . . in causing, contributing to, and/or failing to 

prevent [the tree] from falling onto [the Poleskys’] SUV.” Id. ¶¶ 26, 30; see Stip. to 

Amend Compl. ¶ 1.

2

In support of their negligence claims against DOT, the Poleskys averred:

39. The dangerous and/or hazardous tree was affixed to the 

Commonwealth real estate and/or existed within the Commonwealth 

right-of-way and therefore the tree existed on/in and was part of the 

Commonwealth real estate, subjecting it to the real estate exception to 

the [S]overeign [I]mmunity [A]ct, 42 Pa. C.S. § 8522(b)(4).[3]

2 The Poleskys eventually settled their negligence claims against Ms. Smith. The record 

shows that Ms. Smith was 97 years old at the time of the accident, and, although she owned the 

property on which the tree was situated, she no longer resided at that property. Reproduced Record 

(R.R.) at 128, 353.

3 Section 8522(b)(4) of the Sovereign Immunity Act provides:

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

party may result in the imposition of liability on the Commonwealth and the defense 

of sovereign immunity shall not be raised to claims for damages caused by:

. . . .

(4) Commonwealth real estate, highways and sidewalks.—A dangerous 

condition of Commonwealth agency real estate and sidewalks, including 
4

40. [DOT] permitted the existence of a dangerous and hazardous 

condition within its right-of-way for SR 151, specifically a decaying, 

dying, dead, hazardous, and/or unstable tree and/or limbs that created a 

dangerous and hazardous condition for members of the public traveling 

on and along SR 151, and is therefore liable for the injuries and 

damages described herein.

Compl. ¶¶ 39-40; see id. ¶¶ 47-48.

In January 2018, DOT filed an Answer, New Matter, and Cross-Claim to the 

Complaint (Answer). In its Answer, DOT denied the material averments of the 

Complaint and averred that it was immune from liability under the Sovereign 

Immunity Act. Answer ¶ 63. DOT also averred that none of the enumerated 

exceptions to sovereign immunity applied to the Poleskys’ claims and that the 

alleged dangerous condition did not derive or originate from Commonwealth realty. 

Id. ¶¶ 62, 64.

In June 2020, after the completion of discovery, DOT filed its Summary 

Judgment Motion, asserting that the Poleskys’ cause of action was barred by the 

Sovereign Immunity Act. DOT alleged that the Poleskys failed to adduce sufficient 

evidence to establish that their cause of action fell within an enumerated exception

to sovereign immunity and, therefore, their claims against DOT should be dismissed. 

According to DOT, the Poleskys’ claims did not fall within the real estate exception 

to sovereign immunity because the tree fell from a property that was owned by a 

private individual, Ms. Smith. DOT asserted that for a purportedly dangerous 

Commonwealth-owned real property, leaseholds in the possession of a 

Commonwealth agency and Commonwealth-owned real property leased by 

a Commonwealth agency to private persons, and highways under the 

jurisdiction of a Commonwealth agency, except conditions described in 

paragraph (5).

42 Pa. C.S. § 8522(b)(4) (emphasis added). 
5

condition to fall within the real estate exception, the condition must derive or 

originate from the Commonwealth realty itself. Thus, DOT asserted that the 

evidence adduced during discovery established that the tree did not derive from 

Commonwealth real estate, but was located on privately owned real estate.

In their Response to DOT’s Summary Judgment Motion, the Poleskys

asserted that DOT was not entitled to summary judgment because the real property 

exception to sovereign immunity applied. The Poleskys claimed that the hazardous 

tree was affixed to Commonwealth realty and/or existed within a Commonwealth 

right-of-way, thereby falling within the real estate exception. Specifically, the

Poleskys asserted that the evidence adduced during discovery established that: (1) 

the tree was located within DOT’s slope easement for SR 151,

4 over which DOT had 

custody and control; (2) DOT knew or should have known of the hazardous 

condition posed by the decaying tree; and (3) DOT caused the decaying condition of 

the tree. 

In support of their claims, the Poleskys relied on a March 2020 expert report 

prepared by engineer Mark W. Reidenbach. Mr. Reidenbach had conducted a survey 

of the tree and roadway “to determine the physical location of [the] tree relative to 

the existing right[-]of[-]way and limit of slope easement of [SR 151],” which “is [a] 

public road that is maintained by [DOT].” R.R. at 110. In his report, Mr. 

Reidenbach opined, to a reasonable degree of engineering and surveying certainty, 

that “[t]he tree in question is located . . . 33 feet from [the] centerline [of SR 151]. 

This location puts the tree within the required limit of [DOT’s] slope easement 

4

See Section 210 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 

36 P.S. § 670-210 (recognizing that the Governor may approve “the condemnation of an easement 

for highway purposes from all property within the lines marked as required for right of way and 

the condemnation of an easement of support or protection from all property within the lines 

marked as required for slopes”) (emphasis added).
6

regarding [SR 151].” Id. The Poleskys also relied on an expert report prepared by 

arborist Ray Hicks, Ph.D., who opined that the tree at issue had been damaged 

several years before the accident by negligent trimming, which caused the tree to 

decay and eventually collapse. Id. at 145.

After briefing and oral argument by the parties, the Trial Court granted DOT’s 

Summary Judgment Motion. In its Opinion, the Trial Court concluded:

[DOT] was not the owner of the property [on] which the tree was

situated and[,] as such, it did not have total control of the premises as 

required to impose liability for the damages caused by the tree.

[The Poleskys] alleged that [DOT] removed or tended to other 

trees that were in a similar condition to the one that fell on [the 

Poleskys’] vehicle and within the same area[;] therefore[,] [DOT] was 

aware of the dangerous condition. This argument would presume that 

liability is predicated on knowledge of a dangerous condition adjacent 

to [the] Commonwealth’s land and failing to take preventative action,

which is not supported by any exception to the immunity statute.

. . . .

The incident that gave rise to this matter stems from a tree that 

was located on property which is owned by a private individual, [Ms.]

Smith. Since the dangerous condition in this matter existed beyond the 

limits of [DOT’s] right[-]of[-]way, coupled with the fact that [DOT] 

does not own or control the property [on] which it was located, the real 

property exception to the sovereign immunity statute is inapplicable, 

which entitles [DOT] to summary judgment as a matter of law.
7

Trial Ct. Op., 9/2/20, at 18-19 (internal citation omitted) (emphasis added).

5

 The 

Poleskys now appeal from that decision.6

Analysis

On appeal, the Poleskys assert that the Trial Court erred in granting DOT’s 

Summary Judgment Motion because the evidence established that the tree at issue 

was located within DOT’s slope easement for SR 151. The Poleskys contend that 

because our case law holds that DOT can be held liable for a dangerous condition 

located within its right-of-way, DOT should likewise be held liable for a dangerous 

condition located within its roadside slope easement. Specifically, the Poleskys 

argue that “th[is] Court’s rationale in applying the real estate exception to a 

dangerous tree within a right[-]of[-]way equally applies to a corresponding slope 

easement, as [DOT] also maintains control over this area for the protection of the 

highway.” Poleskys’ Br. at 6.

In response, DOT asserts that, insofar as the Poleskys abandoned their original

claim that the tree was located within DOT’s right-of-way, their claim that the tree 

was located within DOT’s slope easement constitutes a new cause of action that is 

barred by the two-year statute of limitations.7 DOT further asserts that, even if the 

5 This Court has stated that “[t]he question of what constitutes a dangerous condition [for 

purposes of the real estate exception] is a question of fact . . . [;] [h]owever, the determination of 

whether an action is barred by sovereign immunity is entirely a matter of law.” Cowell, 883 A.2d 

at 708.

6 Our standard of review of a trial court’s grant of summary judgment is de novo, and our 

scope of review is plenary. Gior G.P., Inc. v. Waterfront Square Reef, LLC, 202 A.3d 845, 852 

n.10 (Pa. Cmwlth. 2019). Summary judgment is appropriate only where the record clearly shows 

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

matter of law. Id.; see Pa.R.Civ.P. 1035.2.
8

Poleskys’ slope easement claim were not time-barred, a slope easement is a lesser 

interest than a highway right-of-way and, thus, is not Commonwealth realty for 

purposes of the real estate exception to sovereign immunity.

1. Statute of Limitations

Before we review the merits of the Poleskys’ appeal, we must first address 

DOT’s assertion that the Poleskys’ slope easement claim is, in effect, a new cause 

of action barred by the two-year statute of limitations.

Our Court has explained:

While amendments to pleadings are liberally granted in general, an 

amendment which introduces a new cause of action, i.e., new theory, 

will not be permitted after the statute of limitations of that cause of 

action has expired. Laursen v. Gen[.] Hosp[.] of Monroe C[nty.], . . . 

431 A.2d 237, 239 ([Pa.] 1981). Where, however, the proposed 

amendment does not change the cause of action, but merely amplifies 

that which has already been averred, the amendment should be 

allowed. Id. An amendment states a new cause of action where the 

amendment rests on a different legal theory, basis for recovery[,] or 

relationship between the parties. Am[. Motorists Ins. Co. v. Farmers 

Bank & Tr. Co., 644 A.2d 1232, 135 (Pa. Super. 1994)].

Dep’t of Transp. v. Pa. Indus. for Blind & Handicapped, 886 A.2d 706, 715 (Pa. 

Cmwlth. 2005) (footnotes omitted) (emphasis added). However, “[a]n amendment 

[to a pleading] which just sets forth, with more particularity, the averments of the 

original cause of action may be permitted even after the statute of limitations has run 

on the underlying claim.” Galindo ex rel. Gomez v. Crozier-Keystone Health Sys.,

973 A.2d 4, 9 n.5 (Pa. Cmwlth. 2009).

7

See 42 Pa. C.S. § 5524(2) (providing a two-year statute of limitations for “[a]n action to 

recover damages for injuries to the person . . . caused by the wrongful act or neglect or unlawful 

violence or negligence of another”). The two-year statute of limitations on the Poleskys’ 

negligence cause of action expired in July 2019; they asserted their slope easement claim for the 

first time in 2020, after the completion of discovery.
9

The Poleskys concede that their Complaint contains no factual averments

regarding DOT’s slope easement because they did not learn of the easement’s 

existence, or of the tree’s location within the easement, until discovery. The

Poleskys did not seek to amend their Complaint; rather, they asserted this claim for 

the first time in their Brief in Opposition to DOT’s Summary Judgment Motion.

We addressed a similar situation in DeRitis v. City of Philadelphia, 582 A.2d 

738 (Pa. Cmwlth. 1990). In DeRitis, the plaintiff asserted a new theory of recovery

for her negligence cause of action in response to the City of Philadelphia’s (City) 

summary judgment motion. In her original complaint, the plaintiff had alleged that 

a defective bleacher owned by the City caused her injuries. However, at the 

summary judgment stage of the proceedings, the plaintiff alleged that the City’s 

police officers were negligent in controlling the crowds on the bleachers, causing 

her injuries. In rejecting the plaintiff’s new legal theory, this Court stated:

[The plaintiff’s] second argument concerns her allegation that the 

City’s police were negligent in their control of the crowd on the 

bleachers at the parade. This allegation, however, was not set forth in 

[her] complaint. [The plaintiff] first raised this issue in response to the 

City’s motion for summary judgment. No petition to amend the 

complaint was filed, and the City argues that [the plaintiff] is raising a 

new cause of action well beyond the two-year statute of limitations 

applicable to this case. [The plaintiff] contends, however, that her 

allegation of police negligence is merely an amplification of her 

general allegations of negligence against the City set forth in her 

complaint. [Her] complaint, however, sets forth no material facts 

regarding police conduct. Therefore, her allegation states not an 

amplification of existing allegations[,] but a new cause of action. See 

Bendas v. T[wp.] of White Deer, . . . 569 A.2d 1000 ([Pa.Cmwlth.] 

1990) (a party raises a new cause of action where there exist no specific 

facts alleged in the complaint regarding a theory which the party raises 

at a later stage in the proceedings); Shaffer v. P[a.] Assigned Claims 

Plan Ins. Co. of N[.] Am[.], . . . 518 A.2d 1213 ([Pa. Super.] 1986) (a 

party raises a new cause of action if it rests on a different theory, basis 
10

for recovery, or relationship between the parties than did the original 

pleading). [The plaintiff] improperly raised her new cause of action in 

“new matter” in opposition to the City’s motion for summary judgment; 

and, thus, the lower court correctly refused to address the contentions 

set forth in that document. See E-Z Parks, Inc. v. Larson, . . . 498 A.2d 

1364 ([Pa. Cmwlth.] 1985), aff’d, . . . 503 A.2d 931 ([Pa.] 1986) 

(wherein this Court refused to address the merits of allegations raised 

improperly in “new matter” filed in response to preliminary objections).

Id. at 741 (some internal citations omitted) (emphasis added).

Applying these considerations to the facts of this case, we conclude that the 

Poleskys’ slope easement claim does not constitute a new cause of action, but is 

merely an amplification of their original negligence claims against DOT. Unlike 

DeRitis, where the plaintiff attempted to assert an entirely different basis for the 

City’s negligence, here the Poleskys’ contention that the tree was located within 

DOT’s slope easement for SR 151 is consistent with its allegations that the tree was 

“affixed to Commonwealth real estate” and “existed on/in and was part of the 

Commonwealth real estate,” thereby falling within the real estate exception to 

sovereign immunity. Compl. ¶¶ 39, 47. The fact that, during discovery, the Poleskys 

obtained new information regarding the precise location of the tree relative to DOT’s 

right-of-way and slope easement did not in any way alter the basis of their negligence 

claims against DOT. Their allegation that the tree was located within DOT’s slope 

easement merely “sets forth, with more particularity, the averments of the[ir]

original cause of action.” Galindo, 973 A.2d at 9 n.5.

Moreover, DOT was plainly on notice of the Poleskys’ pursuit of this theory

and had the opportunity to defend against it, as DOT directly addressed the slope 

easement issue, as well as Mr. Reidenbach’s expert report, in its Summary Judgment 

Motion. See Viener v. Jacobs, 834 A.2d 546, 560 (Pa. Super. 2003) (“Amendment 

will not be permitted if it introduces a new theory of liability against a party without
11

sufficient time for the party to defend against that theory.”) (emphasis added). 

Therefore, we conclude that the Poleskys’ slope easement claim was not barred by 

the statute of limitations.

2. Real Estate Exception to Sovereign Immunity

The Poleskys assert that the Trial Court erred in granting summary judgment 

in DOT’s favor because material issues of fact exist regarding DOT’s liability under 

the real estate exception to sovereign immunity.

To prevail in a negligence cause of action against a Commonwealth agency, 

such as DOT, the plaintiffs must establish that: (a) their injuries would be 

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

been caused by a person not subject to sovereign immunity; and (b) the cause of 

action falls within one of the enumerated exceptions to sovereign immunity in 

Section 8522(b) of the Sovereign Immunity Act. Dean v. Dep’t of Transp., 751

A.2d 1130, 1132 (Pa. 2000).8 However, “because of the clear intent to insulate the 

government from liability, the exceptions to sovereign immunity must be strictly 

construed.” Cowell, 883 A.2d at 709 (emphasis added).

In this case, the Poleskys attempt to invoke the real estate exception, which 

waives sovereign immunity for damages caused by “[a] dangerous condition of 

Commonwealth agency real estate . . . , including Commonwealth-owned real 

property, . . . and highways under the jurisdiction of a Commonwealth agency.” 42 

Pa. C.S. § 8522(b)(4) (emphasis added). Our courts have held that for the real estate 

exception to apply, the alleged “dangerous condition must derive [from], originate 

from, or have its source in Commonwealth realty.” Snyder v. Harmon, 562 A.2d 

307, 311 (Pa. 1989) (emphasis added); see Dean, 751 A.2d at 1133 (“[S]overeign 

8

It is undisputed that the Poleskys’ claims for damages would be recoverable under the 

common law had their injuries been caused by a person not subject to sovereign immunity.
12

immunity is waived . . . where it is alleged that the artificial condition or defect of 

the land itself causes an injury to occur.”) (emphasis added). However, mere

proximity between a state highway and a hazardous condition located outside of

DOT’s right-of-way is insufficient to invoke the real estate exception. Snyder, 562 

A.2d at 311-12.

This Court has addressed the applicability of the real estate exception to a

hazardous tree in close proximity to a state highway in several prior cases. For 

example, in Marker v. Department of Transportation, 677 A.2d 345 (Pa. Cmwlth.

1996), the decedent was driving on a state highway when a tree fell on her car and 

caused her death. Her husband filed a negligence action against DOT, asserting 

negligent maintenance of the highway and adjacent property, and the jury found in 

his favor. Id. at 346-47. DOT filed a post-trial motion seeking judgment 

notwithstanding the verdict, which the trial court denied. Id. at 347. The trial court 

rejected DOT’s contention that the property from which the tree grew was outside 

of DOT’s right-of-way and, thus, not Commonwealth realty. Id.

On appeal, however, this Court concluded:

[C]ontrary to the trial court’s opinion . . . the characterization of the real 

estate from which a dangerous condition derives or originates from is 

material. If the real estate in question from which the dangerous 

condition derives, originates from or has as its source is not 

Commonwealth realty, then the Commonwealth cannot be held liable 

under the real estate exception to sovereign immunity.

Id. at 348 (emphasis added). We specifically noted that, in that case, “[t]here was 

no record evidence which established that the tree was located within the legal rightof-way.” Id. (emphasis added). Therefore, because the plaintiff failed to establish 

that the tree was located on Commonwealth realty, we reversed and remanded for 

the entry of judgment in DOT’s favor. Id.; see also Clark v. Pa. Dep’t of Transp., 
13

962 A.2d 692, 698 (Pa. Cmwlth. 2008) (holding that DOT was immune from suit

where the tree that injured a motorist was located beyond DOT’s right-of-way, even 

though the tree had a limb overhanging DOT’s right-of-way); but cf. Patton v. Dep’t 

of Transp., 669 A.2d 1090, 1092 (Pa. Cmwlth. 1996) (holding that DOT was liable 

for injuries to a motorist on a state highway caused by an overhanging tree limb that 

fell on the motorist’s vehicle, where the tree itself was located within DOT’s rightof-way), rev’d on other grounds, 686 A.2d 1302 (Pa. 1997).

Here, the evidence of record – including the report of the Poleskys’ own 

engineering expert – established that the tree at issue was located 33 feet from the

centerline of SR 151, which was three feet beyond DOT’s required right-of-way. 

See R.R. at 110-11. It is also undisputed that the property from which the tree fell 

was owned by Ms. Smith and, thus, was not Commonwealth-owned realty under 

Section 8522(b)(4) of the Sovereign Immunity Act. Therefore, under this Court’s 

precedent, DOT cannot be held liable for the allegedly dangerous condition of the 

tree. Accord Clark, 962 A.2d at 697 (concluding, as a matter of law, that the

plaintiffs failed to prove the real estate exception to sovereign immunity, where “the 

evidence established that the tree separated from its trunk and fell as a single unit 

from [a private individual’s] property, well outside [of] DOT’s right-of-way”).

Recognizing that the record does not support their original claim that the tree 

was located within DOT’s right-of-way, the Poleskys assert, based on Mr. 

Reidenbach’s expert report, that DOT is not immune from liability because the tree 

was located within DOT’s slope easement for SR 151. In essence, the Poleskys 

contend that a slope easement is the equivalent of a highway right-of-way for 

purposes of the real estate exception to sovereign immunity. Poleskys’ Br. at 7. The
14

Poleskys, however, cite no legal authority to support this contention, nor have we 

found any.

Our Supreme Court has explained that “an easement is not the equivalent of 

owning the land. An easement is merely ‘a liberty, privilege, or advantage which 

one may have in the lands of another . . . [which] cannot be an estate or interest in 

the land itself, or a right to any part of it.’” Coffin v. Old Orchard Dev. Corp., 186 

A.2d 906, 910 (Pa. 1962) (emphasis added) (citation omitted). While it is true that 

a right-of-way, by definition, is a form of easement, that does not mean that a 

highway right-of-way and a slope easement are treated the same for purposes of the 

Sovereign Immunity Act.

DOT appended to its Summary Judgment Motion portions of an internal DOT

document titled, “Publication 14M, Design Manual Part 3, Plans Presentation” 

(Design Manual). Chapter 3 of the Design Manual, titled “Right-of-Way Plans,”

specifically identifies a slope easement as a “lesser interest” than a highway rightof-way, as follows:

N. Slope Easements. Land necessary for slopes is normally included 

within the required right-of-way on all limited access highway facilities 

and free access highway facilities in other than built up areas. When 

designated on the [state highway] plan as [a] required slope easement, 

[DOT] acquires the lesser interest for support and protection (see 36 

P.S. [§] 670-210) as defined on the plan. The easement allows [DOT] 

to contour the area for necessary support of the highway and to 

construct and maintain drainage facilities as necessary to protect the 

highway. . . .

. . . .

SLOPE EASEMENT. AN EASEMENT FOR THE SUPPORT AND 

PROTECTION OF THE HIGHWAY, INCLUDING THE RIGHT TO 

CONSTRUCT, INSPECT, MAINTAIN, REPAIR, RECONSTRUCT 
15

AND ALTER DRAINAGE FACILITIES AND THE CONTOUR OF 

THE LAND. THE EASEMENT SHALL NOT PREVENT THE 

PROPERTY OWNER FROM MAKING ANY LEGAL USE OF THE 

AREA WHICH IS NOT DETRIMENTAL TO THE NECESSARY 

SUPPORT AND PROTECTION OF THE HIGHWAY RIGHT-OFWAY AND THE SAFETY OF THE TRAVELING PUBLIC.

R.R. at 114-15 (capitalization in original; emphasis added); see DOT’s Br. at 21 

(explaining that the Design Manual provides that DOT may acquire a lesser interest 

in land owned by another for a specific, limited purpose and a slope easement is one 

such lesser interest). The limited purpose of a slope easement is to permit DOT to 

“contour the area for necessary support of the highway and to construct and maintain 

drainage facilities as necessary to protect the highway.” R.R. at 114; see 36 P.S. § 

670-210 (referring to a slope easement as “an easement of support or protection from 

all property within the lines marked”). The owner of the property on which a slope 

easement exists retains the right to use the sloped area for any purpose consistent 

with the support and protection of the highway right-of-way. R.R. at 115.

DOT’s Design Manual further states that “[l]and necessary for slopes is 

normally included within the required right-of-way.” Id. at 114 (emphasis added). 

Presumably, then, if a slope easement is included within DOT’s required right-ofway, a dangerous condition located within the slope easement could potentially 

waive DOT’s immunity under our Court’s precedent. Cf. Trenco, Inc. v. Dep’t of 

Transp., 560 A.2d 285, 287-88 (Pa. Cmwlth. 1989) (where a landslide damaged 

trucks traveling on a state highway, this Court concluded that the dangerous 

condition fell within the real estate exception because the landslide originated on a 

steep slope adjacent to the highway within DOT’s right-of-way). Here, however, the 

record shows that the slope easement on which the tree was situated was not within 

DOT’s required right-of-way for SR 151; rather, it was located three feet beyond
16

DOT’s right-of-way. See R.R. at 110-11. Furthermore, when asked how a slope 

adjacent to a state highway is taken into account in determining whether a roadside 

tree is within DOT’s right-of-way, DOT’s District Roadside Specialist, Phillip 

Mannarelli, testified: “Right-of-way is determined on a linear plane, absent of any 

slope.” Mannarelli Dep., 6/27/19, at 22 (emphasis added); see R.R. at 111 (showing 

the line demarcating “Required Right-of-Way” as extending 30 linear feet from the 

center of SR 151, and the line demarcating “Required Limit of Slope” several feet 

above the “Required Right-of-Way” line).

In this case, the tree that injured the Poleskys was located on the property of 

a private individual and beyond the outer limit of DOT’s required right-of-way. 

Indeed, Robert C. Houston, DOT’s Assistant Highway Maintenance Manager, 

testified that the “tree was so far off the roadway, you couldn’t see it from the road” 

and that DOT would not have trimmed “[a] tree that far off the road.” Houston Dep., 

9/13/19, at 49-50. Because we must narrowly construe the exceptions to sovereign 

immunity, see Cowell, 883 A.2d at 709, we decline to extend the real estate 

exception to a situation where the alleged dangerous condition did not derive or 

originate from Commonwealth-owned realty and was located outside of DOT’s 

right-of-way. Therefore, we conclude that the Poleskys failed to establish that the 

real estate exception to sovereign immunity applies in this case.9

9 We further note that the Poleskys devote a significant portion of their appellate brief to 

arguing that DOT was “in possession” of the land on which the tree was situated, arguing that “[a]s 

a possessor of the real estate[,] [DOT] can be liable for a dangerous condition on the property as 

the real estate exception to sovereign immunity applies.” Poleskys’ Br. at 11; see id. at 10 (arguing 

that “an [e]asement holder is subject to the same liability as any other possessor of the premises”). 

It appears that the Poleskys have conflated the requirements for waiving immunity under the 

Sovereign Immunity Act, which applies to DOT, with the requirements for waiving immunity 

under the statute commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act), 

42 Pa. C.S. §§ 8541-42, which applies to local agencies. The real estate exception of the Sovereign 
17

Conclusion

Because we conclude that DOT is immune from suit under the doctrine of 

sovereign immunity and that the Poleskys have failed to prove the applicability of 

the real estate exception to DOT’s immunity, we affirm the Trial Court’s Order.

__________________________________

ELLEN CEISLER, Judge

Immunity Act requires that, to impose liability on a state agency, a dangerous condition must

derive from, originate from, or have its source in Commonwealth realty. See 42 Pa. C.S. § 

8522(b)(4); Snyder, 562 A.2d at 311. On the contrary, the Tort Claims Act imposes liability on a 

local agency for “[t]he care, custody or control of real property in the possession of the local 

agency.” 42 Pa. C.S. § 8542(b)(3) (emphasis added). Whether DOT “possessed” the property on 

which the tree was located, as a slope easement holder or otherwise, is irrelevant to the applicability

of the real estate exception to sovereign immunity.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fred Paul Polesky, Jr. and Gabriella :

Polesky, :

Appellants :

:

v. : No. 1250 C.D. 2020

:

Commonwealth of Pennsylvania, :

Department of Transportation and :

Gene M. Smith :

O R D E R

AND NOW, this 10th day of November, 2021, we hereby AFFIRM the 

September 2, 2020 Order of the Court of Common Pleas of Beaver County.

__________________________________

ELLEN CEISLER, Judge