David Mailey v. Southeastern Pennsylvania Transportation Authority

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2487
_______________
DAVID MAILEY,
Appellant
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY;
CITY OF PHILADELPHIA;
PECO ENERGY CO.;
DRACO INVESTMENTS;
CONSOLIDATED RAIL CORPORATION, d/b/a Conrail;
NATIONAL RAILROAD PASSENGER, d/b/a AMTRAK;
A.P. CONSTRUCTION, INC.;
ROMA CONCRETE, INC.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,
Third-Party Plaintiff
v.
A.P. CONSTRUCTION, INC.,
Third-Party Defendant
_______________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 01-cv-02747)
District Judge: Honorable Anita B. Brody
________________________

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Submitted Under Third Circuit LAR 34.1(a)
MARCH 22, 2004
Before: ROTH, AMBRO and CHERTOFF, Circuit Judges
(Filed: July 2, 2004)
_______________________
OPINION
_______________________
Roth, Circuit Judge
David Mailey appeals an order of the United States District Court for the Eastern
District of Pennsylvania, granting summary judgment to defendant Southeastern
Pennsylvania Transportation Authority (SEPTA). Mailey filed a personal injury action in
which he alleged negligence, arising from his fall from a railroad signal bridge. For the
reasons discussed below, we will affirm.
On the night of July 1-2, 1999, Mailey, who was eighteen years of age at the time,
consumed at least two forty-ounce bottles of beer and was intoxicated. He purchased
more beer and then proceeded to trespass on property surrounding SEPTA’s signal
bridge, which supported rail signs, as well as high-voltage catenary wires that powered its
trains. Mailey gained access to the signal bridge by climbing over or around two concrete
barriers and a temporary orange mesh fence that SEPTA had installed to cover a breach in
a permanent brick wall located on the southern edge of the 1400 block of West Somerset

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1 Although A.P. Construction, Inc., and Roma Concrete, Inc., appear in the caption of
the appeal, the District Court denied permission to amend the caption to add these two
entities as parties in its order entered December 3, 2001.
2 Removal remained proper on the basis of diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. Mailey, at the time he filed his Complaint, was a citizen of the State of
Washington. SEPTA and the City of Philadelphia, for purposes of federal jurisdiction,
were Pennsylvania citizens. See Moor v. Alameda County, 411 U.S. 693, 717-18 (1973).
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Street in Philadelphia. The brick wall ran along a steep drop-off to the SEPTA rail line.
The signal bridge was at street level behind the brick wall. Mailey sat on the signal
bridge, and his foot came in contact with a high-voltage catenary wire running underneath
the bridge. The contact with the wire electrocuted and burned Mailey and caused him to
fall approximately thirty feet to the tracks below. He sustained serious injuries.
In 2001, Mailey filed suit in state court against SEPTA, the City of Philadelphia,
Amtrak, PECO Energy Company, Draco Investments, Inc., and Consolidated Rail
Corporation (Conrail).1 After obtaining consent from all other defendants, Amtrak
removed the case to the United States District Court for the Eastern District of
Pennsylvania. Mailey stipulated to a voluntary dismissal of PECO, Amtrak, Conrail and
Draco on the basis that they bore no responsibility for his injuries.2
SEPTA moved for summary judgment. Shortly thereafter, Mailey filed a motion
pursuant to Federal Rule of Civil Procedure 56(f), seeking a continuance while the
ownership of the brick wall was determined. The District Court, without explicitly
deciding Mailey’s Rule 56(f) motion, granted summary judgment to SEPTA on the basis
that it was entitled to sovereign immunity from suit under state law. Following the

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District Court’s grant of summary judgment, Mailey stipulated to the voluntary dismissal
of the remaining defendant, the City of Philadelphia. All stipulated dismissals were
approved by the District Court and were granted with prejudice.
Mailey appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. On appeal,
Mailey argues that the District Court erred in granting summary judgment because his
claims fit into the real estate and personal property exceptions to the sovereign immunity
statute. Mailey also argues that the District Court erred in failing to consider his Rule
56(f) motion and affidavit when the affidavit indicated that there were outstanding
discovery issues involving information that SEPTA possessed and that such information
would have demonstrated why summary judgment was inappropriate.
A. Summary Judgment
We exercise de novo review of the District Court’s grant of summary judgment.
See Guardian Life Ins. Co. of Am. v. Goduti-Moore, 229 F.3d 212, 213 (3d Cir. 2000).
Summary judgment is appropriate when there is no genuine issue of material fact, and the
moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Because this is a state law claim between two parties of diverse citizenship, we
look to the Pennsylvania Supreme Court for guidance on interpretation of 42 Pa. Cons.
Stat. Ann. §§ 8521-8528, Pennsylvania’s sovereign immunity statute. See Koppers Co. v.
Aetna Cas. & Sur. Co., 98 F.3d 1440, 1445 (3d Cir. 1996). Under Pennsylvania law,

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SEPTA is a “Commonwealth party” within the meaning of the statute. See Toombs v.
Manning, 835 F.2d 453, 457 (3d Cir. 1987). In Toombs, we deferred to the Pennsylvania
Supreme Court’s determination that SEPTA is a “Commonwealth party” as determined in
Feingold v. S.E. Pa. Transp. Auth., 517 A.2d 1270, 1276 (Pa. 1986). SEPTA is,
therefore, entitled to protection from liability unless Mailey’s claims come within one of
the legislatively-created exceptions to immunity. We note that the sovereign immunity
exceptions are to be narrowly construed. See Dean v. Commonwealth, Dept. of Transp.,
751 A.2d 1130, 1132 (Pa. 2000).
Mailey asserts that his claims fall within either the personal property or the real
estate exceptions to sovereign immunity. The personal property provision provides that
sovereign immunity shall not be raised where a plaintiff’s injuries arise from personal
property in the care, custody or control of the Commonwealth, except in circumstances
inapplicable to this case. See § 8522(b)(3). Mailey argues that the damaged brick wall
and the orange mesh fence were personal property in SEPTA’s control and that the breach
in the brick wall led to his injuries. Mailey does not cite any authority to persuade us that
the personal property exception applies.
The brick wall, however, does not constitute personal property, but is a real estate
fixture. As such, it cannot bring Mailey’s claim within the personal property exception.
See, e.g., Warnecki v. S.E. Pa. Transp. Auth., 689 A.2d 1023, 1026 (Pa. Cmwlth. 1997).
The mesh fence was erected on the scene in place of the missing portion of the wall, and

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therefore, was arguably also a real estate fixture. Moreover, even if the brick wall and
mesh fence were to be considered personal property, to prevail under the personal
property exception, M ailey must show that there was a connection between the property
and his injuries. See id. At most, Mailey has shown that the fenced-over breach in the
brick wall enabled him to reach the location where he was injured, not that it caused his
injuries.
The real estate exception provides that sovereign immunity shall not be a bar to
recovery where a plaintiff’s injury arises from a “dangerous condition of Commonwealth
property.” See § 8522(b)(4). Mailey asserts that the breach in the brick wall was a
dangerous condition that led to his injuries. Again, Mailey does not cite any persuasive
authority.
To prevail under the real estate exception to sovereign immunity, Mailey must
show that some defect or dangerous condition in the property itself directly caused his
injuries. See Jones v. S.E. Pa. Transp. Auth., 772 A.2d 435, 443-44 (Pa. 2001). As
previously discussed, Mailey has shown, at most, that the fenced-over breach in the brick
wall permitted him ingress to the location where he sustained his injuries. That condition
did not, however, cause his injuries. What caused Mailey’s injuries was the high-voltage
catenary wire, which he touched with his foot. Mailey does not allege, nor does there
appear to have been, any defect with the wire.
Because neither the personal property nor the real estate exception applies,

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Mailey’s claims are defeated by sovereign immunity. See Toombs, 835 F.2d at 465.
Accordingly, the District Court properly granted summary judgment to SEPTA.
B. Rule 56(f) motion
We review the District Court’s denial of Mailey’s Rule 56(f) motion for abuse of
discretion. See Estate of Smith v. Marasco, 318 F.3d 497, 522 (3d Cir. 2003). Mailey
sought to delay the District Court’s consideration of the summary judgment motion
because he claimed that information concerning ownership of the brick wall was solely in
SEPTA’s possession. He further claimed that the information would change the District
Court’s disposition on the appropriateness of summary judgment. In spite of Mailey’s
misleading arguments to the contrary, information on the ownership of the brick wall was
accessible to him through public records. M oreover, in light of the fact that the brick wall
was not the direct cause of Mailey’s injuries, determination of ownership of the brick wall
was immaterial to the District Court’s decision. We, therefore, conclude that the District
Court did not abuse its discretion.
For the reasons stated above, we will affirm the grant of summary judgment in
favor of defendant SEPTA.

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