IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


 CAROLEEN JAKMIAN,                                  :   No. 266 EAL 2024
                                                    :
                       Petitioner                   :   Petition for Allowance of Appeal
                                                    :   from the Unpublished
                                                    :   Memorandum Opinion and Order
                v.                                  :   of the Commonwealth Court at No.
                                                    :   665 CD 2023 (Covey, Wojcik,
                                                    :   Ceisler, JJ.), entered on July 16,
 CITY OF PHILADELPHIA AND                           :   2024, affirming the Lower Court
 SOUTHEASTERN PENNSYLVANIA                          :   Order of the Philadelphia County
 TRANSPORTATION AUTHORITY,                          :   Court of Common Pleas at No.
                                                    :   201001469 (Schulman, J.), entered
                       Respondents                  :   on June 12, 2023
                                                    :



                               CONCURRING STATEMENT

JUSTICE DOUGHERTY                                                       FILED: June 11, 2025

       The petitioner in this case suffered injuries on a Philadelphia street after the front

tire of her bicycle became stuck in a SEPTA trolley track that has been out of use since

1992. She filed a civil complaint alleging the “trolley track is an artificial condition, affixed

to Commonwealth real estate, that inherently . . . constitute[s] a dangerous condition”

within the meaning of the real estate exception to the Sovereign Immunity Act. Petition

for Allowance of Appeal at 23, citing 42 Pa.C.S. §8522(b)(4) (explaining that “sovereign

immunity shall not be raised to claims for damages caused by . . . [a] dangerous condition

of Commonwealth agency real estate”). However, the trial court granted SEPTA’s motion

for nonsuit before the case reached the jury. According to the court, “the existence of the

real estate itself cannot be the dangerous condition; rather there must be evidence that

some derivative condition of the real estate created a dangerous condition.” Trial Court
Op., 8/3/23, at 7, citing Snyder v. Harmon, 

 (Pa. 1989). The court further

reasoned that “[u]nless a condition is so plainly dangerous that a lay person can come to

that conclusion by merely observing the condition, expert testimony is needed to explain

why the condition is defective.” Id. at 9; see id at 10 (noting petitioner “failed to show how

a trolley rail would be an obvious danger such that expert testimony was not needed to

prove that it was, in fact, dangerous”). Respectfully, I question whether these conclusions

accurately reflect the law.

       First, our decision in Snyder does not support the trial court’s statement that “the

real estate itself cannot be the dangerous condition[.]” Id. at 7. In fact, it suggests the

exact opposite.    In Snyder, we explained the “unambiguous language of Section

8522(b)(4) . . . indicate[s] that a dangerous condition must derive, originate from or have

as its source the Commonwealth realty.” 

. We certainly did not hold that

real estate — or, more accurately, an artificial condition (like a trolley track) affixed to

Commonwealth agency real estate (like a highway) — cannot itself pose a dangerous

condition as understood by Section 8522(b)(4).1 On the contrary, it is settled that “the

Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges,

for example, that . . . an object on Commonwealth realty was the result of a defect in the

1 At trial, petitioner elicited testimony that SEPTA is responsible for the trolley tracks in

question, as well as the space “between the rails and 18 inches outside of the rails.” N.T.
Trial, 2/6/23, at 140-41; see also N.T. Trial, 2/7/23, at 8, 10-11 (same). Thus, as I see it,
the relevant “real estate” includes the portion of the highway over which SEPTA has
assumed control. See id. at 148 (explaining “SEPTA’s right-of-way area shall mean the
portions of the right-of-way in which the railway tracks owned and operat[ed] by SEPTA
are located including the rails and ties, and the space between the rails, and for 18 inches
on each side of the rails”). Surely, the tracks themselves constitute “Commonwealth-
owned real property,” 42 Pa.C.S. §8522(b)(4), and “[i]t is a well settled tenet of property
law that whatever is annexed to the land becomes land.” Cagey v. Commonwealth, 

 (Pa. 2018). But this does not change the fact that the statute also deems
as real estate “highways under the jurisdiction of a Commonwealth agency, except
conditions described in paragraph (5) [(relating to potholes, sinkholes or other similar
conditions created by natural elements)].” 42 Pa.C.S. §8522(b)(4).


                                    [266 EAL 2024] - 2
property or in its construction, maintenance, repair or design.” Jones v. SEPTA, 

 (Pa. 2001); see Cagey v. Commonwealth, 

 (Pa. 2018)

(holding “the general Assembly has waived PennDOT’s immunity as a bar to damages

caused by dangerous guardrails affixed to Commonwealth real estate”). To satisfy the

statutory requirement that a dangerous condition be “of” Commonwealth agency realty

under Section 8522(b)(4), “the dangerous condition must be an artificial condition or

defect of the land itself, as opposed to the absence of such a condition, and that artificial

condition or defect must be the cause, or a concurrent cause, of the injury.” Wise v.

Huntingdon Cty. Hous. Dev. Corp., 

, 517 (Pa. 2021). It seems to me that a

claim that a trolley track affixed to a highway constitutes an inherently dangerous

condition of Commonwealth agency realty meets this standard.

       I am also troubled by the trial court’s conclusion that petitioner failed to produce

sufficient evidence to permit the jury to determine whether “the injury must have resulted

from a ‘dangerous condition.’” Cagey, 

, quoting 42 Pa.C.S. §8522(b)(4).

We have explained “that whether the condition of the Commonwealth realty, in fact, is

dangerous as alleged is generally for a jury to decide.” Wise, 249 A.3d at 520. Yet, here,

the trial court deprived the jury of this prerogative because petitioner failed to present: (1)

evidence that the inactive tracks pose an “obvious danger” or create a “plainly dangerous”

condition; or (2) expert testimony “explain[ing] why the condition is defective.” Trial Court

Op., 8/3/2023, at 9-10. I am not convinced that either basis warrants an exception to the

general rule that “the issue of whether a dangerous condition exists is a question of fact

for the jury to resolve.” Dean v. PennDOT, 

 (Pa. 2000).

       To begin, the plain text of the real estate exception to sovereign immunity does not

refer to “obvious” or “plainly” dangerous conditions; it more broadly attaches liability to all

“dangerous condition[s] of Commonwealth agency real estate[.]” 42 Pa.C.S. §8522(b)(4).




                                     [266 EAL 2024] - 3
Nor does the statute demand “evidence of a defect or some other damage to the real

estate.” Trial Court Op., 8/3/23, at 5. As we explained in Cagey, “[t]he term ‘dangerous

condition’ is unambiguous and plainly encompasses any condition that presents a

danger.” 

 (emphasis added). Thus, neither Section 8522 nor Cagey

expressly require that the subject real estate be in a state of disrepair or necessarily

require a showing of “defect” as the term is used in the context of product liability (where

experts are needed often). To reiterate, dangerous conditions can arise due to defects

or “an artificial condition[.]” Wise, 249 A.3d at 517. This case involves the latter. See id.

at 519 (finding that although certain items of the Commonwealth realty were not “defective

insofar as they were not inoperable, damaged, or the like,” plaintiff nevertheless properly

alleged they posed a dangerous condition “by way of their arrangement”).

       Here, petitioner testified she was “thrown off [her] bike and smashed into a parked

vehicle” after her “bike tire got stuck in the trolley track” while she was trying to move out

of the way for a car that was tailgating her. N.T. Trial, 2/6/23, at 90. She attributed the

cause of the crash to “the trolley track just being larger than [her] standard city bike tire.”

Id. at 91. In support, she offered pictures of the track. She also elicited testimony that

SEPTA is “responsible for all the maintenance, construction, and inspections of” the

tracks and the surrounding roadway within eighteen inches on both sides. Id. at 132.

Having presented evidence that an artificial condition of Commonwealth realty caused

her injury, the issue of whether the tracks truly posed a dangerous condition was “a

question of fact for the jury to resolve.” Dean, 

. By precluding jury review

on the basis that petitioner failed to produce either an expert or evidence indicating the

dangerous condition was “obvious” or “plain,” the trial court imposed a new condition that

finds no support in the statute or our caselaw.




                                     [266 EAL 2024] - 4
      Despite my misgivings about the trial court’s analysis, I concur in the Court’s denial

of this petition. Petitioner’s arguments before this Court largely focus on whether a lack

of utility might demonstrate a piece of real estate poses a “dangerous condition.” To be

sure, there are colorable arguments about the role of utility in evaluating the distinct

question of whether a Commonwealth agency committed “a negligent act where the

damages would be recoverable under the common law . . . if the injury were caused by a

person not having available the defense of sovereign immunity.” 42 Pa.C.S. §8522(a);

cf. Althaus v. Cohen, 

 (Pa. 2000) (listing “the social utility of the

actor’s conduct” as a factor for determining whether a duty of care exists); Cagey, 

 (Saylor, C.J., concurring) (discussing the role of “reasonableness” in the

underlying substantive liability determination required in sovereign immunity cases, and

how it would “account[] for cost-benefit considerations”). However, I am more troubled

by the trial court’s conclusions regarding the real estate exception under Section

8522(b)(4), for the reasons outlined above. And since petitioner has not developed

pointed advocacy along those lines, I am constrained to agree that allowance of appeal

is not warranted here. Nevertheless, I note my future willingness to explore the issues

implicated herein if they arise in a more appropriate case.




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