Primiano v. City of Philadelphia

• Decision Date: 29 October 1999
• Citation: 739 A.2d 1172
• Parties: John PRIMIANO v. CITY OF PHILADELPHIA, Appellant.
• Court: Pennsylvania Commonwealth Court

739 A.2d 1172

John PRIMIANO v. CITY OF PHILADELPHIA, Appellant.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 19, 1999.

Decided October 29, 1999.

Alan C. Ostrow, Philadelphia, for appellant.

No appearance entered for appellee.

Before COLINS, President Judge, and FLAHERTY, J., and NARICK, Senior Judge.

FLAHERTY, Judge.

The City of Philadelphia (Philadelphia or City) appeals from the order of the court of common pleas of Philadelphia County (trial court) which denied Philadelphia's post-trial motion seeking a judgment notwithstanding the verdict (JNOV). We affirm.

The trial court summarized the facts as follows:

Plaintiff, John Primiano, was a customer of the City of Philadelphia Water Department. He claimed damage to `approximately $200,000 of personal property' when the Defendant's water meter failed, thus allowing the unchecked discharge of water into Plaintiff's basement. Plaintiff noted that the property was the site of a commercial establishment.

Plaintiff alleged that failure of the said meter was a result of wear and tear, and negligent maintenance by the City of the water meter and housing thereof. Following the loss, the City removed the meter, did not permit Plaintiff to inspect it, and then lost, materially altered, or salvaged for resale the meter; thus, the cause of the failure could no longer be determined.

The case was tried before this Court and a jury. The jury found that Defendant's negligence was a substantial factor in bringing about Plaintiff's harm. Further, the jury found the amount of damage sustained by Plaintiff's property in the basement to be in the amount of $45,000. Finally, in assessing comparative negligence of Plaintiff, the jury found Plaintiff's to be 49%, and Defendant's to be 51%. The verdict entered for Plaintiff on the jury's verdict sheet was in the amount of $22,950.

The municipal Defendants filed post trial motions, seeking a judgement N.O.V. The City, they argued, is immune from liability for plaintiff's cause of action, relying upon the Political Subdivision Tort Claims Act, Act of Oct. 5, 1980, No. 142, P.L. 693, 42 Pa.C.S. §§ 8541-64, specifically § 8542 (`the Act'). They note the burden on plaintiffs in a tort claim, to prove liability of a political subdivision based on exceptions to immunity as defined under the Act. Defendants claimed that Plaintiff John Primiano did not meet that burden in this case.

On June 12, 1998, after consideration of the post trial motions filed, after oral argument and thorough review of the written submissions of the parties, the Defendant's Post Trial Motions were denied, and judgement was entered in favor of John Primiano in the amount of $22,950 with interest, against the Water Department of the City of Philadelphia.

Trial court slip op. at pp. 1-2. From the trial court's order denying its post-trial motion for JNOV, Philadelphia appeals to this court.¹ The sole issue which Philadelphia presents is: Did the trial court err as a matter of law by refusing to grant judgment to the City, where a City-owned utility facility failed and caused property damage, but the facility was located in private property and not located within a right-of-way, and the utility facilities exception to governmental immunity requires that the facility not only be owned by a local agency but also be located within rights of way.² Philadelphia asserts that it was immune from suit by virtue of the popularly called Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-8564 and that the exception to governmental immunity found at 42 Pa. C.S. § 8542(b)(5) is not applicable as a matter of law.

The so-called "utility service facilities" exception to governmental immunity, found at 42 Pa.C.S. § 8542(b)(5) provides in relevant part that

(b) Act which may impose liability.— The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

. . . .

(5) Utility service facilities.— A dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights of way, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

Philadelphia argues essentially two points. First, Philadelphia notes that exceptions to governmental immunity are to be narrowly construed and strictly interpreted, citing inter alia, White v. School District of Philadelphia, 553 Pa. 214, 718 A.2d 778 (1998). Next Philadelphia appears to concede that there was a dangerous condition of "the facilities of ... water. . . systems," i.e., the water meter, which was "owned by the local agency" i.e., Philadelphia, but contends that the exception is inapplicable because the water meter was not "located within rights-of-way". Philadelphia argues that "[r]ights-of-way, especially when narrowly construed do not refer to a private building in which a local agency utility facility is located. Nor do rights-of-way refer to the legal right of the local agency to enter on another's land to repair or remove local agency property." Philadelphia's brief at p. 9. In support of its contention, Philadelphia cites County of Allegheny v. Dominijanni, 109 Pa. Cmwlth. 484, 531 A.2d 562 (1987).

In Dominijanni, a landowner experienced a landslide. He was sued and he joined as an additional defendant, the sanitary authority. The landowner alleged that the sanitary authority had installed on his property a sewer pipe which was found to be broken and leaking and that the leaking water from the sewer pipe caused the landslide. In addition, the landowner averred that the sanitary authority had failed to "establish a right of way and/or easement through the original defendant's [the landowner's] property for the installation of said sanitary sewer pipe, thereby becoming willful trespassers which deprives them of any protection afforded by any immunity act." Dominijanni, 531 A.2d at 563. The sanitary authority filed preliminary objections to being joined as an additional defendant, asserting that it was immune from suit pursuant to 42 Pa. C.S. § 8541. The trial court sustained the preliminary objections reasoning that the landowner could not as a matter of law establish that the utility facilities exception found at 42 Pa.C.S. § 8542(b)(5) applies since the landowner averred that the sanitary authority had not established a right of way and thus could not satisfy the statutory requirement for the utility facilities exception to apply, namely that the sewer pipe was "located within the rights-of-way" of the sanitary authority.

This court reversed the trial court's order granting the sanitary authority's preliminary objections and rejected the trial court's reasoning. This court stated that

[a] claim that a right-of-way has not been established does not mean that the sewer pipe in question is not "located within rights-of way." A definition of the term "rights-of-way" does not appear in the definitions included in the statute providing for sovereign and governmental immunity and the exceptions to it, see 42 Pa.C.S. § 8501, and there is no case law interpreting its meaning in this context.

Black's law dictionary 1191 (5th ed.1979) defines "right-of-way" as follows:

Term "right-of-way" sometimes is used to describe a right belonging to a party to pass over land of another, but it is also used to describe the strip of land upon which railroad companies construct their roadbed, and when so used, the term refers to the land itself, not to the right of passage over it. . . . (Emphasis added [by the Dominijanni court].)

Webster's Third New International Dictionary 1956 (1986) also defines "right-of-way" as "the land used by a public utility" as well "a legal right of passage over another person's ground."

Dominijanni, 531 A.2d at 564-65. This court went on to note that the averments of the landowner in Dominijanni that the sewer authority had not established a right of way and/or easement through his land merely meant that the sewer authority had not in fact exercised its power to formally and legally acquire the legal right of passage over another's ground, but such averment did not also mean that the sewer pipe which the sewer authority had placed on the landowner's property was not "located within rights-of-way." This court stated that "[w]e conclude that the term `rights-of-way', as used by the legislature in the phrase `located within rights-of-ways', refers to the strip of land on which the local agency has constructed its utility service facilities, and not to the exercise of its legal right to do so." Dominijanni, 531 A.2d at 565.³

Philadelphia argues that the "water meter in the present case was located inside the basement of Primiano's privately owned property, and was not located on a `strip of land' on which or under which, the City had constructed its utility service facilities. Therefore as a matter of law, Primiano's claim does not fall within the utility facilities exception to governmental immunity." Philadelphia's brief at p. 9. We disagree. Of course, the water meter was located on a "strip of land" on which the City had constructed or placed the water meter which it owned, even if that strip of land was located in Primiano's basement. Thus, because the City had constructed or placed its water meter facility on a "strip of land" even though the strip of land was owned by Primiano, the City's water meter was located "within rights-of-way" pursuant to Dominijanni....