Gibellino v. Manchester Twp.
| Decision Date | 23 January 2015 |
| Docket Number | No. 45 C.D. 2014,45 C.D. 2014 |
| Citation | 109 A.3d 336 |
| Parties | Roger G. GIBELLINO, Appellant v. MANCHESTER TOWNSHIP. |
| Court | Pennsylvania Commonwealth Court |
Larry C. Heim, York, for appellant.
John J. Mahoney, Chester Springs, for appellee.
BEFORE: DAN PELLEGRINI, President Judge, BONNIE BRIGANCE LEADBETTER, Judge, ROBERT SIMPSON, Judge, PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.
Roger G. Gibellino (Gibellino) appeals the order of the Court of Common Pleas of York County (trial court) sustaining the preliminary objections of Manchester Township (Township)1 and dismissing without prejudice Gibellino's second amended complaint (Complaint) alleging liability for damages caused by a backflow of raw sewage onto his property caused by negligent backflow devices installed by the Township. We affirm.
Gibellino owns commercial property with improvements at 2474 North George Street in the Township. The Township owns and maintains sewer and storm lines that are connected to Gibellino's property.2 In September 2004, the remnants of Hurricane Ivan caused a surcharge3 of the Township's sewage system which damaged his property. (Complaint at ¶ 5).
In December 2004, the Township sent Gibellino a letter stating that “Township is willing to install, at its expense, a manually closing backwater valve [ [4 ] on the lowest portion of the building drain which serves your property.” (Complaint Exhibit A at 1). The letter continued:
In June 2005, the Township sent Gibellino another letter stating:
Gibellino opted for both an automatic backwater valve and a manual backwater valve and both were installed by the Township's contractor on his property. (Complaint at ¶¶ 9, 10). In September 2011, a surcharge of the Township's sewage system occurred, both valves on Gibellino's property failed, and raw sewage backed up onto the property causing extensive damage. (Id. at ¶¶ 11–12).
Gibellino filed a complaint, an amended complaint and a second amended complaint in the trial court against the Township seeking damages of $124,927.83, plus the loss of $10,000.00 in rental income.
(Complaint at ¶¶ 12–13). In Count I, Gibellino raised a breach of contract claim, alleging that he accepted the Township's offer to install the valves under the terms set forth in the letters thereby forming a contract and that “the Township impliedly warranted that the installation would be done in a reasonably workmanlike manner.” (Id. at ¶¶ 17, 18). Gibellino alleged that the Township through its contractor installed the valves defectively in an unworkmanlike manner thereby allowing raw sewage to flow onto the property causing the enumerated damages and breaching its contract.5
In Count II, Gibellino raised a negligence claim, alleging that the Township was negligent in maintaining its sanitary sewer and storm drainage systems which resulted in repeated surcharges causing damages such as his and that it took no meaningful measures to correct this dangerous condition. He alleged that because the Township had actual or constructive notice of this dangerous condition which created a reasonably foreseeable risk of the damage that he actually suffered, the Township is not immune from liability under Section 8542(b)(5) of the statute commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. § 8542(b)(5).6
The Township filed preliminary objections in the nature of a demurrer to the Complaint. Regarding Count I, the Township claimed that under the “gist of the action” doctrine,7 Gibellino's contract claim was actually a disguised tort claim based on the negligent installation of the backwater valves and that it was immune from liability under Section 8541 of the Tort Claims Act, 42 Pa.C.S. § 8541.8 (Reproduced Record (RR) at 19a–21a). Regarding Count II, the Township asserted that it does not own the instrumentality that caused the alleged harm, the negligently-installed valve or valves, and it is not part of the utility system so the exception contained in Section 8542(b)(5) of the Tort Claims Act does not apply in this case. Finally, the Township also submitted that it cannot be held vicariously liable under the Tort Claims Act based on the contractor's negligence in installing the valves.
In November 2013, the trial court sustained the Township's preliminary objections and dismissed Gibellino's Complaint. The trial court first determined that the Township is immune because Gibellino's allegations in Count I clearly sound in tort as they are based on the contractor's negligence in failing to properly install the backwater valves, and “to allow recovery for [the] failure to perform work with proper care and competence but refuse to allow recovery for negligence would be counter-intuitive and would allow [Gibellino] to improperly circumvent the provisions of governmental immunity simply by couching his tort claim in the framework of a breach of contract action.” (11/18/13 Trial Court Opinion at 5). The trial court also found that Gibellino did not state a claim in Count II falling within the exception in Section 8542(b)(5) because it requires that “ ‘the allegedly dangerous condition must have derived or originated from, or had its source as the local agency's realty,’ ” and the Township did not own the negligently-installed valves and they were not installed in its right-of way. (Id. at 8–10) (citation omitted). Gibellino then filed the instant appeal.9
Gibellino first claims that the trial court erred in concluding that Count I was legally insufficient under the gist of the action doctrine and in recasting the claim raised therein as the negligent installation of the backwater valves to which the Township is immune under the Tort Claims Act. We do not agree.
Schreck v. North Codorus Township, 126 Pa.Cmwlth. 407, 559 A.2d 1018 (1989), appeal dismissed, 526 Pa. 266, 585 A.2d 464 (1991), the purchasers of lots or homes in a subdivision filed suit against a township and its sewage enforcement officer for damages caused to their property by malfunctioning sewage systems. Their assumpsit claims against the township alleged that the systems were negligently installed because the township improperly issued the permits by failing to perform the necessary soil tests because it failed to analyze soil conditions thereby permitting construction on land unsuitable for those systems. This Court rejected their implied warranty claims, explaining that while Section 2314(a) of the Pennsylvania Commercial Code (PCC), 13 Pa.C.S. § 2314(a),10 provides an implied warranty that goods sold are merchantable if the seller is a merchant with respect to goods of that kind,11 it was not alleged that either the township or its officer sold “goods” impliedly warranted to be merchantable under the PCC and that they were immune from suit under the Tort Claims Act because they provided services rather than goods. Schreck, 559 A.2d at 1024. Likewise, in the instant case, Gibellino's claim in Count I is premised on the purported improper installation of the backflow valves, a negligence claim, and he cannot couch his claim as a breach of an implied warranty in order to avoid the immunity provisions of the Tort Claims Act where, as here, a purportedly negligent service was performed by the Township's contractor. Id.12
Gibellino also argues that the trial court erred in dismissing Count II because he sufficiently pleaded a claim falling within the Section 8542(b)(5) exception to immunity under the Tort Claims Act. In the Complaint, Gibellino specifically alleges that “[t]he Township was negligent in maintaining its sanitary sewer and storm drainage system that it owned” in that “in the years since 1995, [it] ha[s] taken no meaningful measures to stop the repeated sanitary sewer surcharges in times of high water flow, which sewage surcharges created a ‘dangerous condition’ within the meaning of 42 Pa.C.S. § 8542(b)(5).” (Complaint at ¶¶ 28, 29).
Generally, local agencies are immune from tort liability under Section 8541 of the Tort Claims Act:
However, a cause of action may be maintained where: (1) the damages would be otherwise recoverable under common law or statute if the injury was caused by a person not protected by immunity, 42 Pa.C.S. § 8542(a)(1) ; (2) the injury was caused by the negligent act of the local agency or an employee thereof acting within the scope of his official duties; and (3) the negligent act falls within one of the enumerated exceptions to governmental immunity set forth in 42 Pa.C.S. § 8542(b).
Metropolitan Edison Company v. Reading Area Water Authority, 937 A.2d 1173, 1175 (Pa.Cmwlth.2007).
To fall within the exception to immunity, Section 8542(b)(5)13 provides that Gibellino was required to allege facts that established:
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...Immunity"Generally, local agencies are immune from tort liability under Section 8541 of the Tort Claims Act." Gibellino v. Manchester Twp. , 109 A.3d 336, 342 (Pa. Cmwlth. 2015). A local agency may, however, be liable for damages that are: (1) recoverable under common law or a statute creat......
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