Sobat v. Borough of Midland
| Decision Date | 09 June 2016 |
| Docket Number | No. 1843 C.D. 2015,1843 C.D. 2015 |
| Citation | 141 A.3d 618 |
| Parties | Daisy SOBAT and Eileen Sobat v. The BOROUGH OF MIDLAND, A Municipal Corporation; Diane Kemp, Manager of the Borough of Midland and Chad Miller, Building/Sewer Inspector of the Borough of Midland. Appeal of: Eileen Sobat. |
| Court | Pennsylvania Commonwealth Court |
Mark A. Ciccarelli, Aliquippa, for appellant.
Christian D. Marquis, Pittsburgh, for appellees.
BEFORE: PATRICIA A. McCULLOUGH, Judge, MICHAEL H. WOJCIK, Judge, and ROCHELLE S. FRIEDMAN, Senior Judge.
OPINION BY Judge PATRICIA A. McCULLOUGH
.
Eileen Sobat (Sobat) appeals from the August 24, 2015 order of the Court of Common Pleas of Beaver County (trial court) sustaining the preliminary objections in the nature of a demurrer filed by the Borough of Midland (Borough); Diane Kemp (Kemp), the Borough's manager; and Chad Miller (Miller), the Borough's building/sewer inspector, (together, the Borough defendants), resulting in the dismissal of her complaint. For the reasons that follow, we affirm.
On April 23, 2015, Daisy Sobat and her daughter, Eileen Sobat, (together, the Sobats), filed a Complaint against the Borough defendants for a single count of negligent misrepresentation. At the time of the pertinent events, Daisy Sobat owned a residence at 1284 Ohio Avenue, Midland, Beaver County, Pennsylvania, where the Sobats have resided since 1967. In October of 2014, the Sobats began to experience sewer problems inside their home “causing improper drainage and/or back up of their sewage lateral line.” (Reproduced Record (R.R.) at 7a.) The Sobats hired a plumber, Wayne George (George), to investigate and repair the “sewage lateral draining issue.” Id. After investigation, George determined that portions of the sewage lateral line inside the residence, as well as its exterior, required replacement due to “age and deterioration.” Id. George concluded that the sewage lateral presented a danger to the Sobats' health which required immediate attention. George excavated the exterior lateral line for a distance of twenty-five lineal feet, from where the line entered the house to the sidewalk abutting Ohio Avenue (first excavation). At this juncture, George determined that the sewer lateral had reverse flow and that gravity flow from the house would be impossible. (R.R. at 6a–7a.)
George requested permission from Miller to install a sewage grinder pump outside of the residence foundation which “would fully correct” the reverse gravity flow problems. (R.R. at 7a.) Miller left the property for a short while to allegedly consult with Kemp. Upon his return, Miller advised George that “sewer grinder pumps were not permitted in the Borough of Midland by Borough ordinance.” (R.R. at 8a.) Miller informed George that “a sewage grinder pump could not be installed,” and that George would be required to correct the reverse flow problem. (R.R. at 8a.) Thus, the lateral excavation had to continue from the sidewalk to beyond the middle of Ohio Avenue, where the main line was located. George protested that the additional excavation was unnecessary and costly. Miller advised George again that grinder pumps were not permitted by ordinance, that the same was confirmed by Kemp, and that additional excavation was required. (R.R. at 8a.)
After obtaining a permit to open the street, George performed the additional excavation to the main line, a distance of twenty-five lineal feet (second excavation), and George determined that the main line was three inches too high to obtain gravity flow from the residence. Miller was called to the site again to inspect and review the lateral excavation and the basement elevation of the lateral to the main line. Miller confirmed that positive gravity flow from the residence to the main line would not be possible. Miller left the property for a short while to allegedly consult with Kemp. Upon his return, Miller informed George that a sewage grinder pump could be installed. After obtaining approval of the Borough engineer the following day, George installed the sewage grinder pump and a new sewer line, which was inspected by Miller. (R.R. at 8a–9a.)
In their claim for negligent misrepresentation, the Sobats averred that the Borough defendants “were under a public or other duty to provide true and correct information to the [Sobats] regarding [the] Borough's requirements in repairing or replacing the [Sobats'] sewer service lateral.” (R.R. at 11a.) The Sobats alleged that the Borough defendants' representation that grinder pumps were prohibited by ordinance was false and that had correct information been supplied at that time, the Sobats would not have been required to perform the second excavation at great expense. The Sobats sought damages for expenditures incurred to open the street, excavate to the main line, backfill the portion excavated, and repair the asphalt on Ohio Avenue—all of which relate to the second excavation. They averred that the Borough defendants have waived governmental immunity for utility service facilities contained in Section 8542(b)(5) of the Judicial Code
, commonly referred to as the Political Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S. § 8542(b)(5), “as this matter concerns a dangerous condition of a sewage system owned by the Borough.” (R.R. at 9a–13a.)
The Borough defendants filed preliminary objections in the nature of a demurrer to the Sobats' Complaint. The Borough defendants contended that they were entitled to governmental immunity pursuant to the PSTCA, and that the complaint failed to allege facts that would bring the claim within the utility service facilities exception to governmental immunity. They argued that the Sobats did not aver any injury sustained to property or person, which is a threshold requirement for any waiver of immunity. Further, the Borough defendants asserted that the claim did not fall within the utility service facilities exception to immunity because the complaint alleged neither a dangerous condition of the sewer system owned by the Borough nor that the Borough had prior notice of the existence of any dangerous condition.1
In opposition to the preliminary objections, the Sobats argued that expenditures were incurred due to the second, unnecessary excavation of the lateral, which did constitute an injury to person or property. The Sobats also contended that a dangerous condition was alleged, i.e., that of the reverse flow creating sewer backup and drainage issues. The Sobats argued that the main line was three inches too high and that a positive gravity flow could never have been achieved at the residence. While not pled, the Sobats countered that the Borough defendants had notice of the reverse flow condition because an occupancy permit must have been issued for the residence, which would have required inspection from a Borough representative. The claim is that an occupancy permit should not have been issued because the three-inch differential at the point of connection would not have passed inspection and, therefore, a negligent inspection must have been performed. This, argued the Sobats, gave the Borough defendants knowledge of the dangerous condition. The Sobats contended that questions of fact existed as to the details of the condition, whether the condition was dangerous, and whether the Borough had notice of the condition, all of which precluded dismissal of the complaint on preliminary objections.
By order dated August 24, 2015, the trial court sustained the Borough defendants' preliminary objections and dismissed the complaint. (R.R. at 88a.) The trial court noted that the complaint does not allege a dangerous condition of the sewer line or how the Borough's sewer line, in and of itself, constituted a dangerous condition. The court determined that the complaint merely alleged the Borough defendants' negligent misrepresentation as to the installation of a grinder pump and that the Sobats' expenses were not caused by a dangerous condition of the sewer line itself. Further, the court concluded that the claim for additional expenses incurred due to the excavation work “[did] not constitute ‘damages on account of an injury to a person or property.’ ” (R.R. at 87a.) Finally, the trial court determined that no allegation was made that the Borough defendants had notice or should be charged with notice of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Thus, the trial court concluded that the Sobats' claim did not fall under the immunity waiver for utility service facilities and, therefore, was barred by governmental immunity.2 (R.R. at 83a–88a.)
Eileen Sobat3 filed the instant appeal4 and contends that the trial court erred in sustaining the Borough defendants' preliminary objections because she sufficiently alleged: (1) the existence of a dangerous condition of the sewer line; (2) that expenditures for the unnecessary work on the lateral due to the Borough defendants' insistence is an “injury or damage” allowing recovery for the Borough's negligent misrepresentation; and (3) that the condition of the sewage lateral as it attached to the main line of the Borough sewage system is sufficient to establish a reasonably foreseeable risk of injury of which the Borough defendants had actual or constructive knowledge.
Further, Sobat asserts that the trial court erred and violated her procedural due process rights by permitting the Borough defendants to file preliminary objections and a brief in excess of page limitations set forth by local rule.5 Sobat contends that the Borough defendants did not establish “cause shown” as required by the rule. Sobat argues that the noncompliance with the rule should warrant a sanction.
In response, the Borough defendants maintain that the trial court did not err in sustaining their preliminary objections and dismissing the complaint because Sobat's claim is barred by governmental immunity. The...
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