author: SCHMEHL, P., J.,

text:
    Seidel v. Feltenberger

      C.P. of Berks County,
    no. 96-11251.

      Bernard Mendelsohn, for plaintiff and defendant Seidel.

      Kathleen D. Dautrich, for defendant and additional defendant Feltenberger.

      Robert T. Ullman, for plaintiff Venkler.

      David S. Sobotka, for defendant and additional defendant Venkler.
    June 30, 1998
   SCHMEHL, P., J.,

— This matter is before the court on exceptions to the report and recommended order of the child custody hearing officer.

PROCEDURAL HISTORY

On September 20, 1995, the maternal grandmother, Ann Seidel, Grandmother, filed a complaint for custody for the minor child, Jessica. On December 1, 1995, the court entered an order by agreement granting primary physical custody of Jessica to Grandmother, subject to the rights of partial custody of Mother and Father. The order provided that the parties could relist the matter for an additional conference within one year by contacting the child custody conference officer. On October 21, 1996, Norman Venkler, Father, filed a petition for modification of the custody order, and Grandmother answered. On February 3, 1998, Jessica’s paternal grandmother filed a complaint for partial custody. The child custody hearing officer filed her report on March 11, 1998, and on March 18, 1998, Shari Feltenberger, Mother, and Father each filed exceptions. On June 8, 1998, after the child’s parents and grandparents all agreed and stipulated that the paternal grandmother would receive four hours of visitation with Jessica every other week and after Grandmother’s withdrawal of her continued claim for custody, the matter proceeded to a hearing on the issue of custody as between the parents.

FACTUAL BACKGROUND

Mother and Father began cohabiting a few months before Jessica’s birth on March 25, 1992, but never married. Mother had been employed up to the point of Jessica’s birth but then stayed home to care for the child. Father was employed full-time and also helped to run his father’s bar, particularly after his father’s death.

Mother and Father had an abusive relationship. Father often verbally abused Mother, and may well still do so in their limited contact. Although he denies it, in the view of the court, he physically abused Mother as well over an extensive period of time. Finally, in June of 1995, Mother left with Jessica to live with her mother (Grandmother) and stepfather.

Prior to leaving Father, Mother was the primary caregiver for Jessica while Father worked to support them financially. Although Mother was employed at various times during their relationship, she and Father had always decided that Mother should stay home to care for Jessica. Furthermore, there were nights when Father would not come home from the bar but would stay there overnight, leaving Mother alone to care for Jessica. Apparently, Father was not significantly involved in the immediate day-to-day care of Jessica.

Upon moving in with her parents, Mother received their help in caring for Jessica. In December of 1995, Mother and Father agreed to give primary physical custody to Grandmother so that Jessica could be put on Grandmother’s insurance through her employment. The order by agreement also granted partial custody to Mother and Father. This order stood in effect until the present time, despite the fact that Grandmother was never able to put Jessica on her insurance.

Despite the December 1995 order, Father was able to obtain visitation with Jessica above and beyond that provided in the order simply by calling Mother and Grandmother. Around the time of Father’s filing his petition for modification, however, the situation changed, and Father asserts he no longer received extra time. He also allegedly had difficulty seeing Jessica even on his regularly scheduled time pursuant to the order. Mother and her parents testified that their lack of cooperation with giving Father more time had nothing to do with his petition, but rather was the result of Father’s constantly causing “trouble” after dropping off Jessica as well as Father’s wife’s calling Grandmother names during a contemporaneous telephone call. In any case, there were more arguments and fights between the parties after Father’s petition was filed. Furthermore, at or about the same time, paternal grandmother was no longer able to see Jessica on her own. Grandmother testified that she ceased taking Jessica to see the paternal grandmother because of an alleged “nasty” phone call which she received from the paternal grandmother and not because of Father’s petition for modification.

While Jessica has been in Grandmother’s custody, several fairly important and major decisions regarding Jessica’s life were made without consultation with Father. Mother and Grandmother, together or individually, made arrangements for Jessica to be involved in soccer, to attend day care and kindergarten, to be baptized, and for a Florida trip over her birthday, among other things. Grandmother and Mother communicated very little, if at all, with Father. At the hearing, Mother testified that she could not talk with Father, particularly in person, because she feared renewed abuse and because she felt that she was not capable of communicating with him because of his argumentative nature. She stated the times that she tried to talk with him resulted in “nasty” arguments, and had the communication been in person, she believed she would have been physically abused. Grandmother testified that no one could discuss things with Father — they could “talk at, but not to [Father].”

At the time that Father filed his petition for modification, Mother was residing on her own and without Jessica, who had remained with Grandmother. After the petition was filed, Mother moved back in with Grandmother. The reason given for Mother’s living on her own, without Jessica, was that she was not capable of supporting both of them at that time. She testified that she moved back in with Grandmother on the advice of counsel. In any case, the court finds that Grandmother has exercised significant control over Jessica and her affairs and may well have accomplished this by also controlling Mother’s life to the extent possible. Mother’s parents apparently do not think highly of her ability to survive on her own, despite having the income to do so.

The work schedules of Mother, second shift, and Grandmother, first shift, have allowed Mother to care for Jessica during the day and Grandmother to care for her in the evening. There was a period, however, where Jessica was placed in a day care to expose her to other children of her age. Mother and Grandmother were allegedly prompted to remove Jessica from the day care; however, because Jessica experienced problems, particularly with one boy, Justin, the son of Father’s wife. Justin’s behavior has since improved.

Mother testified that if she were granted custody of Jessica, she would maintain second shift during the summer months but move to first shift during the school year to spend time with Jessica. Father and his wife both work first shift and would necessarily require the use of a baby sitter or day care before and after school except for days when Father would be home early for weather-related reasons.

For the foreseeable future, Mother intends to continue living with Grandmother. Although Mother and Grandmother have concerns about Father’s ability to care for Jessica and properly discipline her, both Grandmother’s and Father’s households are capable of caring for Jessica in a family atmosphere. In Grandmother’s household, Jessica would be living with Mother, Grandmother and Grandmother’s husband. At Father’s household, she would be living with Father, his wife and his wife’s son. Both households provide Jessica with her own bedroom; however, at Grandmother’s house, Jessica very often sleeps with Grandmother in her bed and, occasionally, with Mother. At Father’s house, Jessica sleeps in her own bed.

DISCUSSION

When Jessica was very young, Mother and Father apparently believed that it would be better for her to reside with Grandmother. Mother and Father retained partial custody and assumed at least some of their parental responsibilities; nevertheless, it appears that Grandmother has been a significant caretaker of Jessica. Nothing in this opinion is to imply that Grandmother has not provided adequate care for Jessica; however, Grandmother is no longer a party in this action. The dispute is between Mother and Father, but her continuing role is significant to this case.

The paramount concern in a child custody proceeding is what is in the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). “[A] determination of what is in the best interests of the child . . . [is] made on a case-by-case basis [and] must be premised upon consideration of ‘all factors which legitimately have an effect upon [a] child’s physical, intellectual, moral and spiritual well-being.’ ” Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

The removal of a young child from an established home with one parent is a factor which should be considered in resolving a custody issue because it bears upon a child’s emotional well-being. Commonwealth ex rel. Jordan v. Jordan, 302 Pa. Super. 421, 425, 448 A.2d 1113, 1115 (1982). Where both parents are fit and the child is of tender years, the court must give positive consideration to the parent who has been the primary caretaker. Id. This consideration is given to recognize the benefits that are likely to flow to the child from maintaining day-to-day contact with the parent on whom the child has depended for basic physical and psychological needs. Id. Furthermore, the role of the primary caretaker is a substantial factor which must be weighed in adjudicating a custody matter where the child is of tender years. Id. at 426, 448 A.2d at 1115.

The court believes that transfer of primary custody to Father and removal from the home she knows will be detrimental to the child’s emotional well-being. Jessica is obviously close to Grandmother as well as Grandmother’s husband. Jessica also apparently has a greater bond to Mother than to Father. The court believes both parents are fit but does recognize that if Jessica remains with Mother, she will continue to receive the same day-to-day contact with the person on whom she has primarily depended for her basic needs. For this reason, Mother’s residing with Grandmother weighs as a substantial factor.

As between Mother and Father, Mother has been the primary caregiver, whereas during his periods of visitation, Father has allegedly relied heavily on the help of his wife. Mother has been a good parent. When Jessica was younger, Mother changed her diapers, fed her, and played with her. Mother still feeds and plays with Jessica, but now she also helps her dress in the morning and makes sure she bathes. She has Jessica in an established routine which is healthy for her. In addition to this, Mother has available to her the surrounding support of her parents.

The character and habits of individuals with whom a child has daily, in-home contact bear upon whether proximity to these persons is in the child’s best interests. Andrews v. Andrews, 411 Pa. Super. 286, 298, 601 A.2d 352, 357 (1991), affirmed, 533 Pa. 354, 625 A.2d 613 (1993). “It is in the child’s interest to preserve and nurture those relationships which are meaningful while avoiding situations which might prove harmful.” Bucci v. Bucci, 351 Pa. Super. 457, 460, 506 A.2d 438, 439 (1986).

Jessica has a strong bond with Grandmother and apparently does not wish to break that bond. Jessica, in the view of the court, is better bonded with Mother than with Father. She is doing well in Grandmother’s household. This is not to say that she does not have a good relationship with Father and the members of his household and, in fact, has a good bond with Father’s wife. Mother and Grandmother have expressed concern, however, with Jessica living in the same household as Justin who has had behavioral problems and been troublesome to Jessica in the past. The court does not give great weight to this argument because Justin’s behavior has improved and there have been no reported incidents between Justin and Jessica since they were in the same day care together.

There are other issues to consider. Both Mother and Father, in the past, apparently abused alcohol. Although the primary concern in custody matters lies not with the past but with the present and future, past conduct is relevant to the extent that it will produce an ongoing negative effect on the child’s welfare. Commonwealth ex rel. Gorto v. Gorto, 298 Pa. Super. 509, 514, 444 A.2d 1299, 1301 (1982). The past alcohol abuse may give some indication of what the future holds. Mother has been through counseling, including intensive outpatient counseling at Caron, and has reportedly been attending AA meetings. She still occasionally drinks when she goes out with co-workers after work. Father also occasionally drinks but he has not attended counseling or AA except for an ARD program in 1991. He and his wife both testified that he does not have a problem with alcohol. The potential for either party to once again abuse alcohol continues.

Although Jessica has strong bonds with the individuals in Grandmother’s household, she has not had the opportunity to develop a very strong bond with Father and the members of his household. She and Father deserve some additional opportunity to do so. Mother even acknowledged that Father and daughter deserved time together because Jessica is the child of both. The difficulty for Mother in making arrangements work with Father has been putting behind her, the past, long, and difficult time of abuse. The court cannot ignore this tortuous history of physical and verbal abuse, of which the child is undoubtedly aware, and understands Mother’s difficulty. Still, Jessica must be given the opportunity to spend more time with Father without upsetting the status quo so significantly as to unduly shock her and disrupt her way of life, including her established relationships, routines, and discipline.

Although the court is not obligated to delegate to expert witnesses the responsibility of making a decision in a custody matter, the court is obligated to consider the testimony of experts. Rinehimer v. Rinehimer, 336 Pa. Super. 446, 453, 485 A.2d 1166, 1169 (1984). It was the recommendation of Deidre Young MCAT, the court-appointed custody evaluator, that Father’s custody of Jessica be increased. She suggested a shared custody arrangement where each parent would have custody for approximately one-half of every week. She believed that the close proximity of the residences would allow a shared custody arrangement to work and that it would be convenient and beneficial.

The court is not bound to accept the testimony of an expert witness but it cannot disregard uncontradicted expert testimony. Murphey v. Hatala, 350 Pa. Super. 433, 447, 504 A.2d 917, 924 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987). Ms. Young believed that the advantages of granting custody to Mother include stability, consistency in caregivers, and Mother’s commitment to sobriety. The disadvantages include Mother’s second shift job (perhaps a non-issue in futuro), her lack of interest and commitment to providing ongoing care to Jessica, her passivity, and her negative attitude. Furthermore, Grandmother is too controlling and is of no assistance in helping Mother become independent.

The advantages of Father obtaining custody, according to Ms. Young, include his willingness to assume more parental responsibilities and the value that he places on spending time with his family. Also, his wife has above-adequate parenting skills, and Jessica is positively attached to her. In addition, Jessica expressed to Ms. Young a desire to spend more time with Father. The disadvantages of Father obtaining custody include breaking Jessica’s bond with Grandmother, Father’s alcohol use and denial of knowledge obtained in treatment, and his procrastination and reluctance to complete his responsibilities without delegating them to others.

The criteria for determining the propriety of shared custody are that both parents must be fit, both must evidence continuing desire for active involvement in the child’s life, both must be recognized by the child as sources of security and love, and, significantly, at least a minimal degree of cooperation between the parents is a must. Andrews, 411 Pa. Super. at 291, 601 A.2d at 354. Both parents are fit. They are capable of making rational child-rearing decisions, and they are both able and willing to provide love and care for Jessica. Mother and Father each also desire to be actively involved in Jessica’s life. Mother testified that she was willing to rearrange her work schedule to spend time with Jessica during the appropriate hours of the summer and the school year. Father wants more involvement and has been upset by his exclusion from decision-making regarding Jessica and from being able to see her more frequently. Also, both parents are apparently recognized by Jessica as sources of security and love. Jessica, however, fears that Father is a threat to Mother’s safety, and may well have been affected psychologically by her awareness of Father’s abusive conduct.

The real concern for a shared custody arrangement is the lack of communication and lack of cooperation between Mother and Father. They do not have a good relationship, and although Mother testified that she cannot communicate with Father, she indicated that she was willing to at least attempt to communicate with Father, through the use of an intermediary if necessary. She says that in an effort to be able to attempt communication with Father, she has been going through counseling to help her overcome her fear of him, thereby making such communication possible.

The stated preference of a child should be afforded the appropriate weight in a custody proceeding. Mahoney v. Mahoney, 354 Pa. Super. 585, 591, 512 A.2d 694, 697 (1986). The particular weight to be given to a child’s preference is to be determined to a great extent upon the age, maturity, and intelligence of the child. Id. The child has expressed her preference and appears well-nourished and reasonably well-adjusted. Overall, she is doing well in the current environment.

The court must consider, under 23 Pa.C.S. §5303(a), which parent would be the parent to be more or less likely to encourage a continuing relationship with the other parent.

The court was dismayed at Mother’s apparent unwillingness to include Father in the decision-making process in the life of this child. Nonetheless, she has explained to the satisfaction of the court her past unwillingness to be more cooperative and sharing.

It is the sincere hope of the court that Mother will now fully inform Father of what is going on in the life of this child to assure his participation in significant events in her life and decisions regarding vacation, schooling, etc. Should the court conclude in the future that she continues to cut Father out of the child-rearing process, it here takes the extraordinary step of advising the parents that this decision will be revisited immediately on simple application to the court.

Given the pros and cons discussed above, the court believes that a more balanced custody arrangement would be in the best interests of Jessica and enters the following order:

ORDER

And now, June 30, 1998, it is hereby ordered and decreed that the parties shall have joint legal custody and share physical custody of their minor child, Jessica, as follows:

(1) Father shall have custody of the child as follows:

(a) Alternate weekends, as well as every fifth full weekend of the month for months with five full weekends, from 4 p.m. or the close of school on Thursday to Sunday at 7 p.m.;

(b) Every Wednesday if acceptable to Father, otherwise Tuesday, from 4 p.m. or the close of school to 8 p.m.; and

(c) At such other times as the parties may mutually agree and, in lieu of such agreement, at such times as the court, upon application, may direct.

(2) Mother shall have custody at all other times except for the four hours of visitation granted to the child’s paternal grandmother on alternating weeks by agreement of the parties. Visitation shall be on alternating Mondays from 4 p.m. or the close of school to 8 p.m. if Mother and paternal grandmother are unable to agree otherwise.

(3) Mother shall have custody of the minor child on Mother’s Day and Father shall have custody of the minor child on Father’s Day each year from 10 a.m. to 6 p.m.

(4) The parties shall alternate custody on the following named holidays as follows: In the even numbered years Father shall have custody from 10 a.m. to 8 p.m. on New Year’s Day, Memorial Day, and Labor Day and Mother shall have custody from 10 a.m. to 8 p.m. on Easter, Independence Day, and Thanksgiving. The holidays shall reverse in the odd numbered years.

(5) The parties shall alternate the following time periods regarding Christmas: On odd numbered years, Mother shall have custody of the child from December 24 at 2 p.m. to December 25 at 2 p.m., then Father shall have custody of the child on December 25 at 2 p.m. to December 26 at 8 p.m., with the parties to reverse schedules on even numbered years.

(6) The parties shall equally split the child’s Christmas and spring vacations from school.

(7) Mother shall have custody of the child for two consecutive weeks of vacation each summer as the parties may agree or upon advance written notice of at least 30 days to the other party. Father shall have two consecutive weeks of vacation without interruption and four other nonconsecutive weeks each summer as the parties may agree or upon advance written notice of at least 30 days to the other party. If a conflict over vacation arises, the party giving notice in writing first shall have preference. Neither party shall take trips outside the Commonwealth with the child without first discussing with, and obtaining approval from, the other party, which approval shall not unreasonably be withheld.

(8) The holiday and vacation schedules shall take precedence over the regular custody schedule.

(9) In addition to any provisions which may be contained herein regarding custody and visitation, Father and Mother shall have the following rights with respect to the child: reasonable telephone calling privileges, access to report cards and other relevant information concerning the progress of the child at school, approval of extraordinary medical and/or dental treatment except in the case of any emergency, provided such approval shall not be unreasonably withheld, approval of summer camp, schools, school and extracurricular activities, churches and church-related activities, provided that such approval shall not be unreasonably withheld. No major decisions will be made unilaterally by either parent, and tentative arrangements regarding the above and similar activities shall be discussed with the other parent within 24 hours of receipt of information.

(10) In the event of any serious illness of the child at any time, any party then having custody of the said child shall, within one hour, communicate with the other party by telephone or any other means, informing the other party of the nature of the illness. During such illness, each party shall have the right to visit the child as often as she or he desires consistent with the proper medical care of said child. The word “illness,” as used herein, shall mean any disability which confines or likely will confine the child to bed under the direction of a licensed physician for a period in excess of 48 hours.

(11) Communication between the parties may be through an intermediary. Within 24 hours of this order, the parties shall find a friend or family member with whom each party can work to serve as an intermediary between them. The parties should also find an alternate intermediary in the event the primary intermediary is unavailable when needed. In the event the parties fail to agree on an intermediary or their chosen intermediary is unavailable, the parties shall turn to their attorneys as intermediaries.

(12) Within five days of this order, each party shall make arrangements with T.A.S.C., or other acceptable drag and alcohol evaluating entity, for an evaluation. Each party shall also sign the necessary releases for the reports and recommendations to be sent to the court for its review.

(13) Each party shall immediately notify the other party before changing residence and provide the other party with her/his new address.

(14) Neither party will insult, disparage or downgrade the other party in the presence or hearing of the child, nor shall they unduly influence the child against the other party.

(15) Certain rales of conduct generally applicable to custody matters are set forth in paragraphs (a) through (h), below, and are binding on all parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for amendment of the custody order. If these general rales conflict with the specific requirements of the custody order, the order shall prevail.

(a) No party will undertake nor permit in his or her presence the poisoning of the minor child’s mind against any other party by conversation which explicitly or inferentially derides, ridicules, condemns, or in any manner derogates any other party.

(b) The parties shall not conduct arguments or heated conversations when they are together in the presence or hearing of their child.

(c) No party will question the child as to the personal lives of the other party except as is necessary to insure the personal safety of the child. In other words, the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of a “spy.”

(d) No party will make extravagant promises to the minor child for the purposes of ingratiating himself or herself to the minor child at the expense of the other party. Any reasonable promise to the child should be made with the full expectation of carrying it out.

(e) The parties should at all times consider the child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying desperately to cope with the fact of his or her parents’ separation, and needs help in loving both parties, rather than interference or censure.

(f) The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the party who maintains a double standard will lose the respect of his or her child.

(g) Periods of custody shall be subject to the following rules:

(1) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.

(2) The party having custody of the child should prepare her both physically and mentally for the visitation with the other party and have her available at the time and place upon which the parties agree.

(3) If either party or the child has plans which conflict with a scheduled visit and wish to adjust such visitation, the parties should make arrangements acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.

(4) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(h) During the time that the child is living with a party, that party has the responsibility of imposing and enforcing the rules for day-to-day living. However, unless otherwise ordered, both parents should consult with one another on the major decisions affecting the child’s life, such as education, religious training, medical treatment, and so forth.

(16) In the event that either parent violates the terms of this order and excludes the other parent from the child-rearing process, the injured party may request the court to revisit the matter on simple application.

      . At some time subsequent to the December 1, 1995 order, the parties agreed that paternal grandmother would have visitation with Jessica every other week. Paternal grandmother does not drive and, typically, Grandmother or her husband would take Jessica to see the paternal grandmother. Furthermore, they claim to have accommodated paternal grandmother’s changing her nights of visitation and would have allowed her to continue to see Jessica but no longer desired to provide the transportation.

      . Mother’s allegations about Father’s prior abusive conduct towards her are relevant in custody proceedings “only insofar as they constitute a threat to the child or affect the child’s welfare.” See Nancy E.M. v. Kenneth D.M., 316 Pa. Super. 351, 356, 462 A.2d 1386, 1388 (1983). Other than the possibility that Jessica may have been exposed to fighting between Mother and Father, to include witnessing the physical assault of Mother by Father, there is and has been no threat to Jessica’s safety.

      . Mother’s testimony with reference to the long and pervasive abuse and dominance of her by Father was persuasive.


source: Caselaw Access Project

author: CHESLOCK, J.,

license: Public Domain

text:
    Benz v. Pasteur Merieux Connaught

      C.P. of Monroe County,
    no. 8909 Civil 1997.

      Patrick J. Reilly and Allen I. Tullar, for plaintiff.

      Kenneth Scott and Jonathan Dryer, for defendant Pasteur Merieux Connaught.

      CarlJ. Greco, fordefendantConnaughtLaboratori.es.
    April 23, 1998
   CHESLOCK, J.,

— Plaintiff commenced this action on November 17, 1997 by filing a praecipe for summons against defendants. Plaintiff alleges that she was wrongfully discharged from her employment. On December 12, 1997, defendants filed a praecipe to file a complaint within 20 days or suffer entry of a judgment of non pros.

On January 2,1998, plaintiff filed a complaint against defendants. Plaintiff alleges: (1) wrongful termination from employment; (2) tortious interference with employment relationship, and; (3) breach of implied contract of employment. On February 6, 1998, defendants filed preliminary objections to plaintiff’s complaint and praeciped the case for argument. On February 18,1998, plaintiff filed a praecipe to reinstate the complaint.

Plaintiff filed a response to defendants’ preliminary objections on February 24, 1998. Defendants filed a brief in support of the preliminary objections on March 23, 1998. On April 2,1998, plaintiff filed a brief contra to defendants’ preliminary objections. Arguments were heard on April 6,1998 and we are now ready to dispose of defendants’ preliminary objections.

Defendants have filed preliminary objections to the complaint on five grounds. We shall consider each of defendants’ preliminary objections individually.

Defendants’ first preliminary objection is in the nature of a motion to strike for lack of conformity to rule of law pursuant to Pa.R.C.P. 1028(a)(2). More specifically, defendants argue that neither defendants Pasteur Merieux Serums et Vaccins nor Connaught Laboratories Inc. were named in the writ of summons but were included in the complaint under the identical court term and number. This inclusion was without leave of court and in violation of Pa.R.C.P. 2232(c). Plaintiff contends that where an action is commenced by summons, a party may add parties to the complaint. We disagree with plaintiff and sustain the instant preliminary objection.

The court in Yates v. Pacor Inc. had to determine whether a plaintiff may add new party defendants in a reissued writ or reinstated complaint after a party defendant has been served. Yates v. Pacor Inc., 352 Pa. Super. 335, 507 A.2d 1258 (1986). In Yates, plaintiff reinstated the complaint with the addition of previously unnamed defendants. Id. at 337, 507 A.2d at 1259. This procedure was accomplished subsequent to the service of the original complaint upon the original parties. Id. The court was forced to interpret Pa.R.C.P. 401 in order to determine whether plaintiff followed the proper procedures.

The Yates court held that “Rule 401, when read in [its] entirety, primarily address [es] the process whereby a plaintiff may continue the viability of otherwise stale process by reinstatement of the complaint or reissuance of the writ.” Id. at 339, 507 A.2d at 1260. “[0]nce a party defendant is served, plaintiff may only effectuate the joinder of additional parties by means other than Rule 401(b).” Id. In addition, the Yates court determined that, in order to effectuate the joinder of additional parties, a party must comply with Pa.R.C.P. 2232. Plaintiff failed to comply with Pa.R.C.P. 2232, consequently, the motion to strike is granted. Plaintiff is permitted 30 days within which to comply with the applicable Pennsylvania Rules of Civil Procedure in joining the additional defendants.

Defendants also file preliminary objections in the nature of a motion to strike for insufficient notice of service. Defendants contend that plaintiff’s complaint should be stricken because the notice provided defendants was not in compliance with the Pennsylvania Rules of Civil Procedure. Plaintiff argues that this preliminary objection was rendered moot by virtue of the reinstatement and service of the complaint upon the defendants in accordance with the Pennsylvania Rules of Civil Procedure.

We find that the initial service of notice upon defendants was defective. Although defective, this does not make plaintiff’s complaint null and void. Rather, “[wjhere service of process is defective .. . the remedy is to set aside the service.” Frycklund v. Way, 410 Pa. Super. 347, 353, 599 A.2d 1332, 1335 (1991), citing Nicolosi v. Fittin, 434 Pa. 133, 252 A.2d 700 (1969). Therefore, we shall set aside the service because it was initially defective.

The remainder of defendants’ preliminary objections are in the nature of a demurrer to the three counts in plaintiffs’ complaint. A demurrer is a preliminary objection asserting that the pleadings fail to set forth a cause of action upon which relief can be granted. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). When considering a demurrer, the court must accept as true all well-pled facts set forth in the complaint, as well as all reasonably deductible inferences. Lazor v. Milne, 346 Pa. Super. 177, 499 A.2d 369 (1985). A demurrer will only be granted when the complaint has clearly failed to state a claim upon which relief can be granted. Rutherfoord v. Presbyterian-University Hospital, 417 Pa. Super. 316, 612 A.2d 500 (1992). With these standards in mind, we shall consider defendants’ preliminary objections.

In Count I of the complaint, plaintiff complains that she was wrongfully discharged. Defendants contend that plaintiff, as an at-will employee, cannot claim that she was wrongfully discharged — defendants state that Pennsylvania does not recognize a cause of action for wrongful termination of an at-will employee and the termination of plaintiff was not in contravention of public policy and she cannot recover damages.

It is well established in Pennsylvania that employers possess the “unfettered right to discharge an at-will employee for any or no reason in the absence of a contractual or statutory prohibition.” Hineline v. Stroudsburg Electric Supply Co., 384 Pa. Super. 537, 540, 559 A.2d 566, 568 (1989). However, an at-will employee will have a cause of action for wrongful termination “where the employer’s conduct in terminating an at-will employee violates a clear mandate of public policy.” McLaughlin v. Gastrointestinal Specialists Inc., 696 A.2d 173, 176 (Pa. Super. 1997). The public policy exception to the at-will employment doctrine is applicable in the following instances: “(1) the employer requires the employee to commit a crime; (2) the employer prevents the employee from complying with a statutory duty; or (3) the employer fires the employee in direct contravention of a specific statutory prohibition.” Id. at 177, citing Shick v. Shirey, 456 Pa. Super. 668, 691 A.2d 511 (1997) (en banc).

In the instant case, plaintiff contends that she was terminated because she reported various safety concerns and apparent unethical conduct to her employer. This, in turn, was in compliance with defendant Connaught’s Code of Corporate Conduct. Unless plaintiff’s cause of action lies in the public policy exception, she will be prevented from recovering for wrongful termination. In Paralegal v. Lawyer, plaintiff alleged that her termination fell within the public policy exception of the at-will employment doctrine. Paralegal v. Lawyer, 783 F. Supp. 230, 231 (E.D. Pa. 1992). Plaintiff contends that the termination was a direct result of her contact with her employer’s lawyer in an attorney disciplinary matter. Plaintiff informed the lawyer that her employer, an attorney, had submitted a backdated letter to the Disciplinary Board in an attempt to avoid disciplinary measures. After being notified of the contact, defendant terminated plaintiff.

The Paralegal court determined that plaintiff should be permitted to allege wrongful termination because her claim falls within the ambit of the public policy exception. Paralegal, 783 F. Supp. at 232. The court reasoned that the Pennsylvania Rules of Professional Conduct were implicated and “[t]he public policy underlying these rules is obvious . . . .” Id. The court concluded that “if plaintiff’s averments prove true, since they implicate a clear public policy, [the] case may not yet end.” Id.

The instant case is very similar to Paralegal v. Lawyer. For that reason, we decline to grant the preliminary objection in the nature of a demurrer. We will only grant a demurrer in a case where it is clear that a party has no cause of action. As to Count I of the complaint, we conclude that plaintiff may have a cause of action lying in wrongful termination that lies within the ambit of the public policy exception.

In Count II of the complaint, plaintiff alleges tortious interference with an employment relationship on the part of defendant Greco. Plaintiff alleges that defendant Greco worked as an independent contractor and interfered with plaintiff and defendant Connaught, plaintiff’s employer. Defendants contend that defendant Greco is not a third party. Therefore, defendants argue that plaintiff cannot allege tortious interference of an employment relationship without the required third party.

In Pennsylvania, “[o]ne who intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.” Daniel Adams Associates Inc. v. Rimbach Publishing Inc., 360 Pa. Super. 72, 78, 519 A.2d 997, 1000 (1987). Furthermore, “[t]he tort-feasor is one who intentionally and improperly interferes with a contract between the plaintiff and a third person.” Id. at 79, 519 A.2d at 1000. Therefore, “[b]y definition, this tort necessarily involves three parties.” Id.

In the instant case, the issue is whether defendant Greco is an independent contractor or an agent or employee of defendant Connaught. If the former applies, plaintiff is permitted to allege tortious interference with an employment relationship. If the latter is applicable, then plaintiff’s claim must be dismissed. This court is not convinced that defendant Greco is an employee of defendant Connaught. Therefore, because it is not clear that plaintiff is without a cause of action, we shall dismiss defendants’ preliminary objection in the nature of a demurrer to Count II.

In Count III of the complaint, plaintiff alleges that defendants implicitly breached the contract for employment. Plaintiff argues that the employee handbook forms the basis for the contract. Defendants contend that the employee handbook cannot form a contractual relationship between the parties and, in the absence of a contract, the relationship remains at-will between employer and employee.

In Pennsylvania, in order to determine if an employee handbook constitutes a contract and, therefore, requires the parties to comply with the provisions is “whether or not a reasonable employee in the position of [plaintiff] would understand the employer to he reasonably bound by its representations in the handbook.” DiBonaventura v. Consolidated Rail Corp., 372 Pa. Super. 420, 426, 539 A.2d 865, 868 (1988), citing Martin v. Capitol Cities Media Inc., 354 Pa. Super. 199, 511 A.2d 830 (1986). Therefore, there is not enough evidence for this court to determine whether plaintiff possesses a cause of action lying in contract against defendants. Discovery is necessary in the instant case to determine whether plaintiff has legitimate cause of action against defendants. Therefore, we shall dismiss defendants’ preliminary objection in the nature of a demurrer as to Count III in plaintiff’s complaint.

Accordingly, we enter the following order:

ORDER

And now, April 23, 1998, it is ordered as follows:

(1) Defendants’ preliminary objection in the nature of a motion to test sufficiency of service is hereby granted and service is hereby set aside.

(2) Defendants’ preliminary objection in the nature of a motion to strike for lack of conformity to Pa.R.C.P. 1028(a)(2) is hereby granted and plaintiff is permitted 30 days within which to properly join the additional defendants.

(3) Defendants’ preliminary objection in the nature of a demurrer to Count I in plaintiff’s complaint is hereby denied.

(4) Defendants’ preliminary objection in the nature of a demurrer to Count II in plaintiff’s complaint is hereby denied.

(5) Defendants’ preliminary objection in the nature of a demurrer, to Count III in plaintiff’s complaint is hereby denied.


author: WALLACH MILLER, J.,

text:
    Nicolescu v. Kerr

      C.P. of Monroe County,
    no. 8189 Civil 1997.

      David R. Lipka, for plaintiffs.

      Arthur L. Zulick, for defendant.
    August 10, 1998
   WALLACH MILLER, J.,

— On August 8, 1983, Salvator and Natalie Melucci purchased a lot in the Royal Oaks Subdivision in Jackson Township, Monroe County, Pennsylvania. Sometime in 1985, they entered into a contract with defendant Kenneth Kerr to construct a single-family residence on that property. The construction was completed and the Meluccis lived on the property until September 15, 1994, when they sold the property to Florea and Elena Nicolescu. Subsequently, the Nicolescus sold the property to Marian Niculescu and Mihaela Daniela Niculescu on July 10, 1997.

On April 24, 1998, the second and third purchasers of this residence, plaintiffs, filed a complaint against the defendant builder, alleging that the roof of the property was improperly designed and installed, and further alleging that the cost of repair is $16,818.88. The complaint contains two counts: the first, stating a theory in negligence and the second, a breach of contract. On May 5,1998, defendant filed preliminary objections to the complaint, including a demurrer, contending that the complaint fails to state a cause of action for negligence or for breach of contract. Alternatively, defendant seeks a more specific pleading because the complaint does not allege whether the contract upon which the plaintiff relies was written or oral, and if written, a copy is not attached to the complaint as required by the Rules of Civil Procedure. Pa.R.C.P. 1019(h).

The parties appeared before the court on July 6,1998, for oral argument and both parties have submitted briefs in support of their respective positions.

Defendant’s preliminary objection to Count I of plaintiffs’ complaint is based on the theory that Pennsylvania courts have consistently held that an action does not sound in tort for economic damages alone. Spivack v. Berks Ridge Corp. Inc., 402 Pa. Super. 73, 586 A.2d 402 (1990). More specifically, the general rule of law is that economic losses may not be recovered in negligence actions absent physical injury or property damage. Aikens v. Baltimore & Ohio Railroad Co., 348 Pa. Super. 17, 501 A.2d 277 (1985). The plaintiffs argue that we should continue what they term as a “growing trend in Pennsylvania” concerning a contractor’s liability for damages to third persons for undiscoverable or latent, dangerous conditions. In support of their position, plaintiffs cite to Gilbert v. Consolidated Rail Corp., 154 Pa. Commw. 249, 623 A.2d 873 (1993). A review of that case indicates that it concerned a wrongful death action and not purely economic damages. The plaintiffs also cite Pusey v. Groff, no. 97-1822, 1998 Pa. Super. Lexis 23 (Jan. 23, 1998). Our research indicates that this opinion was withdrawn by the Superior Court on April 9,1998, thus, we need not discuss its impact on our current case. Moreover, plaintiffs have not averred, in their complaint, any physical injury or property damage resulting from the defendant’s alleged actions or lack thereof. Therefore, we agree with defendant that the complaint fails to state a cause of action for negligence and as a consequence, we sustain defendant’s preliminary objection on this count in the nature of a demurrer.

Next, plaintiffs contend that defendant had a contract with the Meluccis to construct the house and further allege that they are in privity of contract with defendants because they are the successors in title to the property from the Meluccis.

As a general rule, a contract action cannot be maintained against a person who is not a party to the contract, unless the plaintiff is a third party beneficiary of a contract, or the suit is for product liability or for breach of warranty. Manor Junior College v. Kaller’s Inc., 352 Pa. Super. 310, 507 A.2d 1245 (1986). The facts, as alleged in the complaint, show no basis for the finding of the third party beneficiary status for plaintiffs, nor have plaintiffs alleged that they are third party beneficiaries of the earlier 1985 contract.

A ruling on preliminary objections in the nature of a demurrer requires a review of all well-pleaded facts in the complaint and all inferences reasonably deducted therefrom, must be accepted as true. Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co., 385 Pa. Super. 30, 32, 560 A.2d 151, 152 (1989). The courts will sustain a demurrer only when it appears with certainty that the law permits no recovering under the allegations pleaded. Id. at 32-33, 560 A.2d at 152. While plaintiffs urge us to adopt what they call a “continuing trend” to allow an expansion of a contractor’s liability for defective workmanship and design, they have given us no basis or appellate authority to do so. Thus, we sustain the defendant’s preliminary objections and dismiss the complaint. However, if plaintiffs can do so, we will permit them to file an amended complaint alleging theories recognizable under the law.

ORDER

And now, August 10, 1998, the defendant’s preliminary objections in the nature of a demurrer are sustained and the complaint is dismissed.

Plaintiffs shall have 20 days from the date of this order to file an amended complaint.


author: STEINBERG, J.,

text:
    Hart v. PennDOT

      C.P. of Lehigh County,
    no. 96-C-863.

      Mark K. Alternóse and Jerry R. Knafo, for plaintiffs.

      William A. Slotter, for defendant PennDOT.

      Rudolph Zieger Jr., and Frank G. Procyk, for defendant PP&L.

      Charles J. Fonzone, for additional defendant.
    June 17, 1998
   STEINBERG, J.,

— Before this court are the motions for summary judgment of defendants PennDOT and PP&L. Upon consideration of the parties’ briefs and after oral argument thereon, PP&L’s motion is granted and PennDOT’s motion is granted in part and denied in part in the manner and for the reasons which follow.

This action arises out of a single-vehicle accident which occurred on August 6, 1994. On that date at approximately 9:47 p.m., defendant Aaron Kneller, then 19 years old, was driving his mother’s 1994 Honda Prelude on the roadway known as Powder Valley Road. While attempting to negotiate a left-hand curve in the roadway, Mr. Kneller lost control of the vehicle after its right front tire engaged a mound of anti-skid material. The vehicle slid off the traveled portion of the roadway and subsequently collided with a utility pole. The pole was located within a PennDOT right-of-way, approximately one foot and 10 inches off the edge of the paved area of the road. PP&L owned, installed, and maintained the pole.

During his deposition, Mr. Kneller related that he had traveled on Powder Valley Road as a driver or passenger on other occasions prior to the night of the accident. (Deposition of defendant Aaron Kneller at 9-10.) When describing the accident, Kneller stated that his vehicle approached the curve at a speed of approximately 30-40 miles per hour. (Kneller deposition at 19-20.) He further said that after the tire caught the gravel, he applied the brakes, and the vehicle skidded prior to striking the pole. (Kneller deposition at 25-28.) The Kneller vehicle skidded approximately 115' before impacting the pole. (Robson report at 2, police accident report in exhibit C of plaintiffs’ brief in opposition to defendant PP&L’s motion for summary judgment.) Melissa Hart, the passenger, was knocked unconscious, and according to her deposition, has no recollection of the accident. (Plaintiff Melissa Hart’s deposition at 11.)

No adverse weather conditions existed at the time of the accident and the cause of Mr. Kneller’s impact with the utility pole is dependent upon the interpretation of his statements to Trooper Andreuzzi. Specifically, Trooper Andreuzzi reported that Mr. Kneller stated that while his attention was diverted when reaching for his cigarettes, the vehicle hit gravel in the roadway causing him to lose control of his vehicle. In Mr. Kneller’s deposition, however, he admits to reaching for his cigarettes, but denies that he ever took his eyes off the road as he approached the curve: “the right front tire caught into the gravel and started to slide ... I braked . . . the brakes locked up ... I totally lost control ... the car slid right into the pole.” (Kneller deposition at 25-27.)

Regardless of the interpretation of the events immediately prior to the accident, the parties agree that PP&L utility pole I.D. number 61847/542388 and/or PP&L A-19102 was erected on or about March 15, 1968, and remained at its location without incident until the 1994 Honda Prelude disturbed its peaceful existence. According to plaintiffs’ brief, the “average daily traffic volume as of 1992 was 260 vehicles per day.” (Plaintiffs’ brief in opposition to defendant PP&L’s motion at 3.) It would then appear that over two hundred vehicles per day fortuitously passed the pole without a problem.

Following the above-described accident, the plaintiffs, Melissa J. Hart, and George and Crystal Hart, individually, as husband and wife, and as parents and natural guardians of Melissa Hart, instituted this action in negligence against the defendants PennDOT and PP&L by way of complaint filed on or about April 15, 1996. Thereafter, plaintiffs filed a second amended complaint on or about June 7,1996, and a third amended complaint on or about July 23, 1997. Aaron Kneller was also added as an additional defendant.

The standard for determining a motion for summary judgment is well-settled and has been summarized recently by our Supreme Court as follows:

“Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. The moving party has the burden of proving the nonexistence of any genuine issue of material fact. The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Salazar v. Allstate Insurance Company, 549 Pa. 658, 662, 702 A.2d 1038, 1040 (1997) (citation omitted); see also, Pa.R.C.P. 1035.2(1).

Summary judgment also is appropriate where the party who bears the burden of proof has failed to produce facts essential to establish a prima facie case prior to trial. See Pa.R.C.P. 1035.2(2); Eaddy v. Hamaty, 694 A.2d 639 (Pa. Super. 1997); see also, Novak v. Kilby, 167 Pa. Commw. 217, 647 A.2d 687 (1994) (failure to establish an essential element of actionable negligence is grounds for summary judgment); Caldwell v. Commonwealth, 120 Pa. Commw. 358, 548 A.2d 1284 (1988) (a trial judge may grant summary judgment where there is insufficient evidence to justify an inference of negligence and causation).

I. MOTION FOR SUMMARY JUDGMENT BY PP&L

Plaintiffs base their allegations of negligence against PP&L upon two theories: (1) PP&L’s placement of the pole “on the outside of a curve on a rolling rural road” created a dangerous and hazardous condition of which they were aware but failed to remedy; and (2) PP&L’s failure to obtain a highway occupancy permit and failure to follow PennDOT’s setback regulations in effect at the time of the installation of the pole constituted negligence per se. Plaintiffs also allege that the circumstances surrounding the accident were reasonably foreseeable, and therefore, the negligent placement of the pole was the proximate cause of the injuries.

(a) PP&L’s Negligence at Common Law

In PP&L’s brief in support of its motion for summary judgment, the company concedes that it has a duty toward motorists to avoid the placement of utility poles “in such a location as to cause an unreasonable and unnecessary risk” of harm. (Brief in support of motion for summary judgment by defendant PP&L at 9.) However, in the case sub judice, PP&L argues that plaintiffs have failed to show that PP&L breached its duty or that there was any causal connection between an alleged breach and the injury sustained by Melissa Hart.

Any analysis that attempts to shed some light on this issue must go back 58 years and begin with a review of Nelson v. Duquesne Light Company, 338 Pa. 37, 12 A.2d 299 (1940). The pole in Nelson was on the highway, and as described, “an automobile traveling toward Pittsburgh and passing [an intermediate triangular stand] at the curve would, if it continued northerly in a straight line, crash into this pole. In order to avoid it a driver would have to veer to the right and pass between the pole on his left and the service station on his right.” Id. at 40, 12 A.2d at 301. (emphasis in original) Not only was the placement of the pole on December 8,1935 questionable, but the prior history included a number of accidents. In its analysis, the Supreme Court quoted from the opinion of then Judge Cardozo in Stern v. International Ry. Co., 220 N.Y. 284, 115 N.E. 759 (1917), wherein under similar circumstances it was important to answer “whether the place chosen is so dangerous and the danger so needless that the choice becomes unreasonable.” Nelson at 45, 12 A.2d at 303.

The Superior Court in Scheel v. Tremblay, 226 Pa. Super. 45, 46, 312 A.2d 45, 46 (1973), considered a pole which was located ‘TO inches from the paved portion of the road, was unlit, and apparently unmarked by reflectors.” The road in question was described as “particularly dangerous” and on which there had been “a large number of accidents.” Id. at 47, 312 A.2d at 46. Additionally, due to a protruding rock, drivers proceeding in a westbound direction would naturally veer into the middle or eastbound lane of travel. As a result, drivers proceeding eastbound might tend to steer to the shoulder and come face to face with the pole. The Superior Court concluded that “[l]iability is not . . . limited to those situations in which the pole is located in the roadway itself, but may be imposed where the placement of a pole close to the edge of a highway constitutes a foreseeable and unreasonable risk of harm to users of the highway.” Id. at 48, 312 A.2d at 47. (footnote omitted)

A careful reading of Scheel, supra, does not disclose that liability was imposed simply because the pole was in close proximity to the edge of a highway. Instead “the conditions of the highway are critical in determining whether the location of a utility pole adjacent thereto constitutes an unreasonable risk of harm to users of the road.” Id.; compare Saylor v. Green, 165 Pa. Commw. 249, 645 A.2d 318 (1994) (not foreseeable that a driver would inexplicably lose control and strike fence post three feet from the side of the road on a clear day and at a location where there was only a slight bend in the road).

Other cases in which summary judgment has been granted, while factually distinguishable, provide effective guidance to resolve the within case. In Novak v. Kilby, 167 Pa. Commw. 217, 647 687 (1994), the involved vehicle crossed a two-lane road, and crashed into a wooden post, cable guardrail, and a telephone pole directly behind the guardrail. The driver contended that the telephone company “had a duty to move the pole because the pole, located on a curve of the state highway, 5 1/2 feet from the edge of the pavement and across the road from the lane in which [the driver] was travelling, constituted a foreseeable and unreasonable risk of harm to users of the highway.” Id. at 221, 647 A.2d at 689. Additionally, like the within case, it was asserted that the pole did not comply with PennDOT regulations which recommended that poles be placed a specified distance from the edge of the pavement. The Commonwealth Court found that no duty was created by statute or regulation, and the driver “had already lost control . . . before striking the cable guardrail and the pole located behind it.” Id. at 225, 647 A.2d at 691. The court further stated that “[n]othing in the record indicates that the [driver] needed to swerve to avoid the pole or that the natural layout of the road funnelled cars toward the pole.” Id. The court also found it of importance that the pole had existed without incident for nearly 50 years. Id.; see Caldwell v. Commonwealth, 120 Pa. Commw. 358, 548 A.2d 1284 (1988) (summary judgment appropriate where telephone company’s duty not to incommode or unreasonably interfere with public use of highways and roads does not extend to vehicles which completely leave the highway out of control due to extraordinary occurrences which are foreseeable); Contey v. New Jersey Bell Telephone Co., 643 A.2d 1005 (N.J. 1994) (no liability imposed upon utility company, instead PennDOT is primarily responsible for insuring that appropriate safety standards are satisfied). In Contey, the Supreme Court of New Jersey seems to provide a more appropriate framework for analyzing these types of cases. However, it is not within the province of this court to utilize such a framework in this case.

The plaintiff relies heavily upon Talarico v. Bonham, 168 Pa. Commw. 467, 650 A.2d 1192 (1994), in which injuries occurred when a vehicle crossed into the other lane of travel and struck an electric pole, eight feet from the edge of the paved roadway. It is important to recognize that in Talarico, PP&L was on notice prior to the placement of the pole of “numerous instances of the cars going off the road in the area.” Id. at 474, 650 A.2d at 1195. Disregarding that information and alternative locations, PP&L installed the pole at the dangerous site. Therefore, there was sufficient evidence to establish that PP&L breached its duty owed to the public.

It is clear from all of the cases that a duty to the public is not created to place poles a certain distance from the roadway merely because vehicles might leave the roadway. Instead, as then Judge Cardozo concluded, an examination of the placement requires a determination of its dangerousness in conjunction with the unique circumstances of its location. Otherwise, the placement of a pole on a straight stretch of roadway, but near the edge of the roadway, would also subject their owners to liability without any analysis of prior accidents, contours of the road, or other available alternatives. All of the cases in which liability was imposed are dependent upon the placement of the pole when analyzed with the unique characteristics of the roadway.

The pole in question in this case, like the pole in Novak, supra, had managed to remain accident-free for a considerable number of years. It was only a unique set of circumstances which ended with its involvement in this accident. Additionally, this court was presented with photographs of the accident site, and while the roadway is curved, it is not dramatic in appearance. According to plaintiffs’ expert, “[t]he radius of the left-hand curve was measured to be about 180 feet, with the curve beginning about 315 feet north and ending about 15 feet north of the struck pole.” (Robson report at 3.) Mr. Robson further stated: “The asphalt pavement is in good condition and is marked with double yellow center lines. The lanes are about 11.5 feet wide. There are no edge lines.” (Id.) Therefore, neither the prior history nor the contour of the roadway would lead to the conclusion that the placement of the pole created an unreasonably dangerous condition. While the plaintiffs’ argument that the placement of the pole was not the most appropriate placement and an alternative placement would have avoided the impact are both accepted, those deficiencies do not equate to a breach of duty on the part of PP&L.

The court is not unmindful that each year approximately 1,500 persons die and 65,000 injuries occur due to vehicle-utility pole accidents. However, even though a pole placed further away or underground or the use of a breakaway pole may have avoided or mitigated the accident and injuries in this case, that does not equate to proving a breach of duty by the utility company. See Contey, supra at 1008.

(b) PP&L’s Negligence Per Se

Plaintiffs’ remaining argument is that PP&L’s alleged failure to secure a highway occupancy permit from PennDOT and to comply with PennDOT’s distance requirements constitute negligence per se. Initially, we note that the record is not clear as to whether PP&L failed to obtain a permit. PennDOT admits that it is unable to locate any record of a permit or application for a permit by PP&L for the installation of the pole at the scene of the accident. (Answer of PennDOT to plaintiffs’ requested admissions, nos. 12, 25, 27.) PP&L admits only that it has made a reasonable search for documentation evincing the existence of a permit, and that the search has been fruitless. (Answers by the defendant PP&L to plaintiffs’ request for admissions, nos. 25, 26, 27 through 29.) Because we must view the record in the light most favorable to the non-moving party for the purpose of the within motions for summary judgment, this court finds that if neither PennDOT nor PP&L have any record of an application for or receipt of a highway occupancy permit for the pole in question, then none exists. We turn next to the question of whether PP&L’s failure to obtain the permit and its location of the pole only 1' 10" from the paved edge of Powder Valley Road constitute negligence as a matter of law.

Four requirements must be met to prove a claim based on negligence per se:

“(1) The purpose of the statute [or regulation] must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;

“(2) The statute or regulation must clearly apply to the conduct of the defendant;

“(3) The defendant must violate the statute or regulation;

“(4) The violation of the statute or regulation must be the proximate cause of the plaintiff’s injuries.” Wagner v. Anzon Inc., 453 Pa. Super. 619, 627, 684 A.2d 570, 574 (1996), alloc. denied, 700 A.2d 443 (Pa. 1997).

In 1968, a provision of the State Highway Law required PP&L to obtain a permit prior to the installation of the utility pole on Powder Valley Road. The provision is set forth at 36 P.S. §670-411 and states in relevant part:

“[N]or shall any telephone, telegraph, or electric light or power poles, or other structures, be erected upon, over, or in any portion of a state highway, nor shall any opening be made therein, except under such conditions, restrictions, and regulations, and subject to the payment of such fees for permits for the placing of such structures and openings, as may be prescribed and required by the department. . . .

“Any person failing to obtain such a permit before doing any work on any highway for which a permit is required by this section shall, for every such offense, be sentenced, upon conviction in a summary proceeding, to pay a fine not exceeding $100 and costs together with the cost of restoring any highway. . . .”

At the time, the “conditions, restrictions, and regulations” governing the installation of utility poles were specified in Form 945-B, entitled “General provisions and specifications regulating occupancy of state highway right-of-way,” which was referenced in and attached to the standard permit in 1968. (Answer of PennDOT to plaintiffs’ requested admissions, nos. 40-42; Robson report at 15.) Paragraph 30 of Form 945-B states: “in all cases a clear space greater than the width of the berm or shoulder must be preserved between the near face of the poles and the edge of the improved or traveled road or highway . . . .” (Robson report at 15.) (emphasis added)

According to plaintiffs’ expert, Powder Valley Road, also known as SR 2025, had a shoulder width of zero feet. (Robson report at 4.) Since SR 2025 had no shoulder at all, PP&L’s placement of the pole anywhere outside the traveled portion of the road would not have violated the above-stated regulation. It appears that the PennDOT right-of-way extended 16 feet, six inches from the center of the road, which would limit any pole placement to five feet from the edge of the surface of the road. Mr. Robson in his analysis concludes that if placed at the outer limits of the right-of-way (five feet) as opposed to 1' 10" from the edge of the roadway that the additional distance “would have been sufficient for the Kneller vehicle either to have avoided the pole or to have substantially reduced the severity of impact.” (Robson report at 16.) However, while the current desired minimum dimension is 30 feet from the edge of the pavement, as Mr. Robson points out, PennDOT policies concerning utility poles have existed since 1959 and policies existing in 1976 recognized that “on many existing highways constructed within minimum rights-of-way under old design criteria, there is no definite width of clear roadside area.” Furthermore, from 1977 until 1987, the policy was “to accept poles where they are unless the poles are twice broken by auto crashes.” While that policy was rewritten in 1987, it does not appear that PP&L violated any identifiable PennDOT regulations when the pole was erected in 1968.

Although PP&L’s failure to obtain a permit was a violation of section 670-411, PP&L did not violate the criteria contained therein. Additionally, it would appear that the purpose of the statutory permit requirement contained in section 670-411 was not to protect against the particular hazard of vehicle-pole impacts. Wagner, supra at 627-28, 684 A.2d at 574. In that regard, section 670-411 was not intended to protect an individual such as the plaintiff who is seeking to recover pecuniary losses for that harm. Id. at 627-28, 684 A.2d at 575. Therefore, PP&L’s conduct was not negligent per se.

Plaintiffs also suggest that PP&L did not comply with its own recommendations concerning utility pole placement and that this constitutes negligence per se. (Robson report at 18-19.) However, Mr. Faisetty, the area operation manager and an employee of PP&L since 1973, was unable to confirm any written policies pertaining to the appropriate distance for pole placement from the edge of the roadway. For example, Mr. Faisetty responded to one such inquiry by stating: “I’m not aware of any that specifically says that you have to be so far from an edge or that, no, I’m not.” (Deposition of John D. Faisetty at 49.) Following a review of his deposition and distilling its contents, it appears that rather than definitive guidelines, “rules of thumb” applied. Specifically, the following exchange offers some assistance:

“Q. What has been the rule that you have followed in placement of the poles in the transmission line, distribution line?

A. Okay. We use rules of thumb, okay. My first goal is to put the pole on private right-of-way. And that again does not matter to me the distance from the roadway. It’s to get it off of the highway road limits. That would be my first design guideline.

We have to apply to the property owner for permission to do that. And if there’s trees or other obstructions, permission to cut trees, remove obstructions to allow us to do that. That would be my first goal.

If the property owner feels that he does not allow— does not want us to do that, would not allow it, then I would be forced in completing my task to put the pole on highway right-of-way in such a place as to meet their permit requirements.

Q. So when you say they’re, you mean PennDOT’s permit requirements?

A. PennDOT’s. Or if it’s a municipal road, the permit requirements of the municipality.

Q. Between 1973 and 1994, do you know if it was the custom or habit of PP&L to install telephone poles for distribution lines within 2 feet of the traveled portion of a roadway?

Mr. Procyk: Objection to the form of the question. You can answer. I take it there’s no curve involved here? This is just a straight question as to distance from traveled portion to pole?

Mr. Alternóse: Right.

Mr. Procyk: Objection to the form.

A. At this point, depending on the situation, that would not be our normal place to put the pole at a new installation.

Q. Has this been — I said from 1973 through 1994. Are you saying that wouldn’t have been the normal place during the entire time you had been working at PP&L?

A. For a new location?

Q. Correct.

A. Correct.

Q. Why not?

A. Again, my normal place would be back on private right-of-way or just inside the highway right-of-way line.

Q. You would try to move it as far from the road as you could?

Mr. Procyk: Objection to form. You can answer.

A. Yes.” (Faisetty at 50-52.)

Mr. Faisetty was also asked whether he would have considered it safe “to place a pole within two feet of the edge of a traveled way,” and he responded that “depending on the circumstance, it would be safe.” (Faisetty at 75.) Thereafter, counsel for the plaintiffs questioned him about straightaways, gentle and moderately sharp curves, the placement of a pole less than two feet from the edge of the roadway within a curve, all with mixed results. Even if Mr. Faisetty’s deposition could be interpreted as demonstrating that the placement of the pole was inconsistent with the internal policies, that does not translate into a conclusion of negligence. Likewise, if the placement complied with PP&L’s regulations that would not prove that a breach of duty was not committed. It is not policy but rather placement that is the relevant consideration.

For the foregoing reasons, we conclude that PP&L is not liable as a matter of law for the injuries sustained by Melissa Hart.

II. MOTION FOR SUMMARY JUDGMENT BY PennDOT

(a) Sovereign Immunity

In its motion for summary judgment, PennDOT raises the defense of sovereign immunity to the imposition of liability for the alleged dangerous conditions created by the accumulation of anti-skid material on the outside edge of the traveled portion of the roadway and the location of PP&L’s utility pole within PennDOT’s right of way. Specifically, PennDOT asserts that the real estate exception to sovereign immunity, set forth at 42 Pa.C.S. §8522(b)(4), does not apply to the anti-skid material because it is a condition “on” and not “of’ the realty. PennDOT also argues that the pole is not “of” the realty because PennDOT did not own the pole nor can it be considered a fixture.

Plaintiffs respond that all the conditions of Powder Valley Road at the location of the accident, i.e., the accumulation of anti-skid material, the substandard roadway, and the location of the utility pole, “combined to create a defective roadway.” (Plaintiffs’ brief at 19.) Plaintiffs argue that the within case is factually indistinguishable from Fidanza v. PennDOT, 655 A.2d 1076 (Pa. Commw. 1995), alloc. denied, 542 Pa. 677, 668 A.2d 1138 (1995), and therefore, assert that where “numerous conditions [are alleged to have] made the road dangerous, some being ‘of ’ and some being ‘on’ the real estate, the claim falls within the real estate exception and the case must be submitted to the jury.” (Plaintiffs’ brief in opposition to defendant, PennDOT’s motion for summary judgment at 20.)

A Commonwealth agency will be immune from suit pursuant to the Sovereign Immunity Act, 42 Pa.C.S. §8521 et seq., unless a plaintiff shows that: (1) the damages arising out of a negligent act would be recoverable under statutory or common law notwithstanding the defense of sovereign immunity; and (2) the negligent act falls within one of the enumerated exceptions to immunity at 42 Pa.C.S. §8522(b). Smith v. PennDOT, 700 A.2d 587 (Pa. Commw. 1997).

In the case sub judice, plaintiffs have met the first requirement by establishing the elements of common-law negligence against PennDOT. Support for that claim is found in the arguments that the failure to remove anti-skid material and the substandard design of SR 2025 constitutes negligence.

Our Supreme Court has held “clearly and unequivocally” that PennDOT owes a general duty of care to the users of its real estate which “require[s] that the condition of the property [be] safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used.” Bendas v. Township of White Deer, 531 Pa. 180, 183, 611 A.2d 1184, 1186 (1992) (quoting Snyder v. Harmon, 522 Pa. 424, 435, 562 A.2d 307, 312 (1989)). Pennsylvania appellate courts have interpreted PennDOT’s common-law duty to make its property safe to include a duty to properly design and construct highways, Smith, supra, as well as a duty to reduce risks posed by a variety of other highway conditions, see, e.g., Rothermel v. PennDOT, 672 A.2d 837 (Pa. Commw. 1996) (duty to reduce danger posed by steep cliffs and embankments in close proximity to the highway by erecting guardrails or other barriers), and Bendas, supra (duty to erect traffic control devices, signs, or warnings to alleviate a dangerous condition). PennDOT also has a general statutory duty to maintain and repair roads and highways under its jurisdiction. Rothermel, 672 A.2d at 841 n.6 (citing section 407 of the State Highway Law, Act of June 1, 1945, P.L. 1242, 36 PS. §670-407 and section 2002 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 PS. §512(a)(8) (emphasis added)).

Naturally, a duty to maintain the condition of the Commonwealth’s highways would include a duty to inspect for and remove any unnatural and artificial accumulation of a foreign substance, i.e., anti-skid material, on the roadway which could create an unreasonably dangerous condition for vehicular traffic. This would be true especially where PennDOT itself placed the foreign substance on the roadway, or alternatively, caused the material to be placed there. This court is keenly aware of the body of case law which imposes no common-law duty upon PennDOT for the natural accumulation of substances on a roadway which create a dangerous condition. See e.g., Huber v. PennDOT, 122 Pa. Commw. 82, 551 A.2d 1130 (1988), alloc. denied, 525 Pa. 637, 578 A.2d 931 (1989) (no duty to remove or treat natural accumulations of ice and snow). However, PennDOT will be liable for an unreasonably dangerous artificial condition which it creates or knows to exist. See Fidanza, supra (plaintiffs would have a cause of action against PennDOT at common law if plaintiffs can establish that PennDOT had actual or constructive notice that a dangerous condition existed because there were improper shoulders, no guardrails and/or debris on side of road); PennDOT v. Weller, 133 Pa. Commw. 18, 574 A.2d 728 (1990) (plaintiff had cause of action based on DOT’S negligent conduct in piling snow and ice in such a fashion that it formed a “ramp” over the berm and guardrail which the decedent’s vehicle ascended); PennDOT v. Phillips, 87 Pa. Commw. 504, 488 A.2d 77 (1985) (PennDOT has common-law duty to warn and correct a dangerous ice condition and may be held liable for failure to do so after it receives actual notice of the condition).

Plaintiffs support their allegations of negligence against PennDOT with, inter alia, the report by their expert, Mr. Robson. Mr. Robson made the following pertinent findings concerning conditions at the crash site:

“(1) SR 2025 is substandard in shoulder ... stopping sight distance and curvature.

“(2) There was loose stone on the roadway surface which lowered the friction between the tires and the pavement surface. The loose stone along the curve was a dangerous condition. . . .

“(4) The movement of the Kneller vehicle is consistent with a loss of control due to differential surface friction. This differential friction was the result of the loose gravel on the roadway surface.

“(5) Failure to recognize the unsafe condition created by and to remove the loose stone from the road surface was not consistent with prudent highway maintenance procedures, and [PennDOT’s] own stated maintenance procedures, and resulted in a dangerous condition that was a cause of the crash.” (Robson report at 24.)

The evidence provided by plaintiffs’ expert, if believed by the fact-finder, establishes that PennDOT breached its common-law duty to provide safe conditions on SR 2025 and that its breach created a dangerous condition which caused Melissa Hart’s injuries. However, this does not end the analysis. Plaintiffs also must show that PennDOT’s alleged negligent acts fall within an exception to sovereign immunity.

Accordingly, plaintiffs argue that the agency’s actions fall within the real estate exception as set forth in 42 Pa. C.S. §8522(b)(4). The relevant portion of section 8522(b) provides:

“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: . . .

“Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks, including 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 . . . .” 42 Pa.C.S. §8522(b)(4).

Generally, the question of what constitutes a “dangerous condition” is one of fact for the jury. Rothermel, supra, 672 A.2d at 842. However, prior to that determination the trial court must decide as a matter of law whether or not the condition is one that will invoke the real estate exception. Id. Specifically, two requirements must be met: (1) the condition must be “of” the realty; and (2) the condition must cause the injury and not merely facilitate it. Id., 672 A.2d at 842-43; see also, Snyder, supra.

To be “of’ the realty, an artificial condition or defect must “derive, originate from or have as its source the Commonwealth realty.” Rothermel, 672 A.2d at 842 (quoting Snyder, supra). Where PennDOT has created an unnatural and artificial dangerous condition on its roadway, the condition will be Considered “of” the realty for purposes of the real estate exception. See e.g., Rothermel (administrators may recover for injuries caused by an unnatural and artificial accumulation of ice and snow resulting from a defectively designed and maintained roadway); Weller, supra (PennDOT’s negligent piling of snow and ice was an artificial condition of the land itself under real estate exception).

Courts have not applied the exception where an alleged dangerous condition was a result of the natural accumulation of a foreign substance on the roadway or the acts of third parties whose acts are outside the scope of the statute. See e.g., Abella v. City of Philadelphia, 703 A.2d 547 (Pa. Commw. 1997) (immunity for Commonwealth where plaintiff fell on naturally occurring hills and ridges of ice and snow); Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995) (immunity for city where plaintiff fell on sidewalk covered in grease which was placed there by unidentified person(s)); Shedrick v. William Penn School District, 654 A.2d 163 (Pa. Commw. 1995), alloc. denied, 542 Pa. 682, 668 A.2d 1142 (1995) (immunity for high school where student fell on terrazzo floor made wet by rainwater tracked into the school building by others) (citing cases).

With all the foregoing principles in mind, we conclude that PennDOT is not immune from liability for the accumulation of anti-skid material on its roadway. First, there is a causal relationship between the alleged dangerous condition and the injuries sustained by Melissa Hart. Plaintiffs’ expert report supports the finding that a dangerous accumulation of anti-skid material and the roadway design caused the vehicle to slide off the roadway. Second, the anti-skid material was an artificial condition “of ” the Commonwealth realty. Anti-skid material is not a naturally occuring phenomenon on the roadways of this Commonwealth. Moreover, the material was not deposited by unknown or unidentified parties over which PennDOT had no authority or control, or whose acts were outside the sovereign immunity statute’s scope of liability. PennDOT itself deposits this material on its roadway surfaces in the winter months to alter the condition of the realty, i.e., to lessen the dangers posed by snow and ice. Once deposited, the material becomes an integral part of the roadway.

In this case, plaintiffs’ evidence shows that PennDOT authorized Upper Milford Township to put the material on SR 2025 pursuant to a contract between the township and the agency. After the contract expired, PennDOT allowed the material to remain on the roadway for approximately four months until the time of the accident in late summer. (Robson report at 7-8.) PennDOT is alleged to have known that the material was on SR 2025 and, according to its own safety standards, should have been removed. (Id. at 7-10.) Considering the evidence in the light most favorable to the non-moving party, we conclude that the anti-skid material was an unnatural and artificial condition created by PennDOT and which PennDOT allowed to continue to exist in an allegedly dangerous state. Therefore, the accumulation of the anti-skid material is a condition “of ” the realty for purposes of the real estate exception.

The question of whether or not the anti-skid material and the design and construction of SR 2025 constituted a “dangerous condition” for purposes of the sovereign immunity statute is one for the fact-finder to resolve. In light of Mr. Robson’s report, excerpted above, plaintiffs have provided prima facie evidence of an alleged dangerous condition and have created a genuine issue of material fact on this issue.

On the other hand, we conclude that the agency is immune from liability for injuries sustained due to the location of the utility pole in this case. The utility pole did not cause the injuries to Melissa Hart; it “merely” facilitated them. As stated above, the dangerous accumulation of anti-skid material caused the vehicle to slide off the roadway, and eventually, impact the pole. The pole could not have injured Melissa Hart unless the vehicle first slid off the roadway. See Babcock, supra at 74, 626 A.2d at 674. As a matter of law, the real estate exception is not applicable to the alleged dangerous condition created by the pole because the pole did not cause the accident.

(b) Causation

PennDOT also argues that Plaintiffs’ expert report failed to establish that the alleged lack of stopping sight distance and curvature of SR 2025 were a substantial factor in the happening of the accident. Plaintiffs dispute this assertion and further state that a layperson, by application of common sense and without the assistance of expert testimony, could find that the alleged dangerous conditions of SR 2025 caused Melissa Hart’s injuries.

“Whether a party’s conduct has been a substantial factor in causing injury to another is ordinarily a question of fact for the jury, and may be removed from the jury’s consideration only where it is so clear that reasonable minds cannot differ on the issue.” Vernon v. Stash, 361 Pa. Super. 36, 46, 532 A.2d 441, 446 (1987). Here, plaintiffs’ expert report and the deposition testimony of Aaron Kneller create a genuine issue of material fact as to what combination of conditions of SR 2025 caused the Kneller vehicle to impact the pole. Therefore, the question of whether or not the alleged substandard design and construction of SR 2025, including the alleged lack of sight distance and curvature, was a substantial factor in bringing about harm is for the fact-finder to resolve.

For all the foregoing reasons, we conclude that PennDOT is not immune from liability for the accumulation of anti-skid material on SR 2025, and there is sufficient evidence to present the issue of causation regarding the alleged substandard design of the roadway to the jury.

ORDER

And now, June 17, 1998, upon consideration of the motions for summary judgment by defendants PennDOT and PP&L, plaintiffs’ responses thereto, and after oral argument thereon;

It is hereby ordered that the motion of defendant PennDOT is granted in part and denied in part for the reasons expressed in the accompanying opinion;

It is further ordered that the motion of defendant PP&L is granted for the reasons expressed in the accompanying opinion;

It is further ordered that all claims and cross-claims against defendant PP&L are dismissed with prejudice, and that the clerk of courts, civil division, is directed to mark the docket accordingly.

      . After oral argument, we granted defendant Upper Milford Township’s motion for summary judgment which was opposed only by PP&L.

      . Regulations governing the installation of utility poles were not codified until 1979. See 67 Pa.Code §459.1 et seq., entitled “Occupancy of highways by utilities.”

      . In light of our disposition of plaintiffs’ breach and negligence per se arguments against PP&L, we need not address the issue of causation.

      . PennDOT does not challenge plaintiffs ’ contention that the design and construction of Powder Valley Road at the crash site was a dangerous condition “of’ Commonwealth realty. Therefore, the issue is not before this court.

      . We do not agree that Fidanza is entirely dispositive of the issue before us. The precise issue in Fidanza was whether the alleged dangerous conditions or another driver caused the injuries to plaintiffs. Fidanza, 655 A.2d at 1079. Here, we must decide preliminarily whether or not the alleged dangerous conditions were “of’ or “on” the realty. See Rothermel v. PennDOT, 672 A.2d 837, 842 (Pa.Commw. 1996).

      . The elements of a negligence cause of action are: (1) legal duty or obligation to protect others against an unreasonable risk of harm; (2) failure to perform the duty or obligation according to a certain standard; (3) a reasonably close causal connection between the complained of conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Fidanza, supra, 655 A.2d at 1078.

      . Compare Babcock v. PennDOT, 156 Pa. Commw. 69, 75, 626 A.2d 672, 674 (1993), alloc. denied, 536 Pa. 647, 639 A.2d 33 (1994). The court held that PennDOT does not have a duty to maintain all property within its unopened right-of-way. In Babcock, the plaintiff’s car left the cartway, went into a ditch on its side, overturned, and skidded along the ditch and up an embankment where it collided with a tree or log some distance from the shoulder of the road. Id. at 71, 626 A.2d at 673. The court concluded that such a duty would place an intolerable burden upon the agency, and that the right-of-way off the highway (a term encompassing both the cartway and the berm) was not intended to be used or regularly used for vehicular travel.

      . If plaintiffs are successful at trial in proving that the accumulation of anti-skid material and the design and construction of SR 2025 were dangerous conditions for which PennDOT is liable, then PennDOT will be held accountable for all proximately caused injuries including those aggravated by the Kneller vehicle’s impact with the utility pole. See Rothermel, supra, 672 A.2d at 843 n.10.

      . PennDOT argues that holdings of Abella, supra, and Finn, supra, require this court to find that the anti-skid material was a condition “on” the realty and not “of ” it thereby absolving PennDOT of liability under sovereign immunity. We do not agree. Both cases are distinguishable from the within case.
      In Abella, the defect complained of was the formation of hills and ridges from a natural accumulation of ice and snow on a walkway adjacent to the State Office Building. The Commonwealth Court relied on its holding in Finn, which the Supreme Court later affirmed, when it stated:
      “We will not impose liability for injuries caused by a negligent failure of the government entity to remove a foreign substance from the real estate or the sidewalk. Since ice, snow, oil, and grease and all foreign substances which can naturally accumulate on the sidewalk or real estate itself, government entities are not liable for injuries caused solely by the presence of these substances . . . .” Abella, 703 A.2d at 550. (citation omitted) (emphasis added) Although the court was “somewhat unsettled” that the viability of the “of ”/“on” distinction in Finn would remain controlling in the future, it declined to find the real estate exception applicable in that case. Id., 703 A.2d at 550-51.

        In Finn, the Supreme Court affirmed the Commonwealth Court’s holding that the sidewalk exception to the Political Subdivision Tort Claims Act did not apply to injuries sustained from a fall on a grease-covered city sidewalk. (At the time, the real estate exception in the governmental immunity statute, i.e., the Political Subdivision Tort Claims Act, and the sovereign immunity statute were interpreted similarly. However, this practice has been put into question by Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997), and Abella.) In affirming the Finn decision, the court’s conclusion highlights the distinctions between Finn and the case sub judice:
      “What is necessary, therefore, to pierce the Commonwealth agency’s immunity is proof of a defect of the sidewalk itself. Such proof might include an improperly designed sidewalk, an improperly constructed sidewalk, or a badly maintained, deteriorated], crumbling sidewalk. Here, however, we have no such allegation or proof. We have a perfectly designed and constructed sidewalk, undamaged, upon which an unidentified individual or individuals deposited a foreign substance which caused appellant’s injury.” Finn at 605, 664 A.2d at 1346. (emphasis added)

      . The Commonwealth Court in Rothermel, supra, made a distinction between the cause of the accident and the cause of the injury for determining the applicability of the real estate exception. Specifically the court stated:

        “It is important to recognize the distinction between the cause of the accident and the cause of the injuries resulting from the accident. For purposes of deciding the applicability of the real estate exception to sovereign immunity, it is the cause of the accident — the event that set the accident in motion — that is determinative.” Rothermel, 672 A.2d at 842 n.8 (emphasis supplied); see also, Sprenkle v. Commonwealth, (C.P. Northumberland, April 27, 1998) (Wiest, J.) (no. CV 96-177) (guiderail not the cause of the accident, and therefore, Commonwealth was immune from liability, where decedent lost control of his vehicle, crossed center line, drove through berm of the opposite lane and collided with guiderail).

      . We agree with PennDOT that the utility pole is not a fixture. However, because we find no causation under the real estate exception, we need not address the issue of whether the utility pole is “of’ the Commonwealth realty.