Opinion
No. 167 C.D. 2012
11-05-2012
Jason Gabriel and Jessica Gabriel, his wife, Appellants v. Brooklyn Township
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Jason and Jessica Gabriel (Appellants) appeal from the December 16, 2011 order entered by Susquehanna County Court of Common Pleas President Judge Kenneth W. Seamans (trial court) granting Brooklyn Township's (Township) motion for summary judgment on the grounds that the Township is immune from liability pursuant to Section 8541 of the Judicial Code (Tort Claims Act).
42 Pa. C.S. § 8541, et seq. The act for which the "Political Subdivision Tort Claims Act" is the formal title has been repealed. Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P.S. §§5311.101-5311.803, repealed by the Act of October 5, 1980, P.L. 693. However, the title or its shorter version, the "Tort Claims Act," has remained as the "unofficial" title for the successor provisions found in Sections 8541-8542 of the Judicial Code, 42 Pa. C.S. §§ 8541-8542. Accordingly, references to sections of the "Tort Claims Act" throughout this opinion refer to sections of the Judicial Code.
Section 8541 of the Tort Claims Act states:
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.42 Pa. C.S. § 8541.
Appellants allege that the negligent actions of the Township's employees while performing routine maintenance of a sluice pipe running beneath Bishop Road, altered the stream and bank to such a degree that the Township's actions led directly to the flooding and damage of Appellants' property.
The Township is responsible for the maintenance of the sluice pipe that runs beneath Bishop Road, a dirt road. The Township's right-of-way extends 50 feet up and downstream of the sluice pipe, but the Township does not own the stream or property running alongside the bank.
During the course of work grading Bishop Road, Township employees observed debris building up in the sluice pipe. On June 19, 2006, Township employees engaged in maintenance of the sluice pipe, using a backhoe to remove a tree, stones, and silt or sand that had accumulated behind the pipe. The backhoe became stuck. The Township employees used the grader to pull the backhoe from the stream, leaving behind ruts where the backhoe had become stuck. The Township employees next removed a voluminous amount of silt and rock from the stream to fill in the ruts and removed a significant portion of rock tucked into Appellants' retaining wall. While the Township's work was ongoing, Appellants, who had recently married, were away on their honeymoon. On June 27, 2006, the whole of Susquehanna County experienced historic flooding that impacted much of Northeastern Pennsylvania. When Appellants returned home, they discovered that their home had undergone extensive damage and that their retaining wall and the stream neighboring their property had been significantly altered.
Before this Court, Appellants raise a single issue: Whether the Township is liable for the negligence of its employees under the "Utility service facilities" exception to local government immunity provided in Section 8542(b)(5) of the Tort Claims Act.
Our scope of review is plenary. In reviewing the trial court's order, our standard for summary judgment is the same as applied by the trial court and the order will only be reversed if the trial court committed an error of law or abused its discretion. Pa. R. C. P. 1035.2; Weckel v. Carbondale Housing Authority, 20 A.3d 1245, 1248 n.4 (Pa. Cmwlth. 2011); Kuniskas v. Commonwealth, 977 A.2d 602, 604 n.3 (Pa. Cmwlth. 2009).
Section 8542(b)(5) of the Tort Claims Act provides:
(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 the 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 reasonably 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.42 Pa. C.S. § 8542(b)(5).
This issue was raised and argued before the trial court and ably disposed of in the comprehensive opinion of the Honorable Kenneth W. Seamans, President Judge. Therefore, this Court shall affirm on the basis of that opinion: Jason Gabriel and Jessica Gabriel, his wife, v. Brooklyn Township, (No. 2006-1763-CP), docketed December 16, 2011 (attached).
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 5th day of November, 2012, the December 16, 2011 order of the Susquehanna County Court of Common Pleas granting Brooklyn Township's Motion for Summary Judgment is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE McCULLOUGH
I respectfully dissent, because I believe that neither Metropolitan Edison Co. v. Reading Area Water Authority, 937 A.2d 1173 (Pa. Cmwlth. 2007), nor the statute should be interpreted in a hyper-technical manner. As stated by Justice Cardozo, "The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced." Anderson v. John L. Hayes Const. Co., 243 N.Y. 140, 147, 153 N.E. 28, 29-30 (1926).
Section 8541 of the Tort Claims Act states:
Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.42 Pa. C.S. §8541.
Section 8542(b)(5) of the Tort Claims Act provides:
(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 the 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 reasonably 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.42 Pa. C.S. § 8542(b)(5). --------
Summary judgment is appropriate when after review of the record in the light most favorable to the nonmoving party, it is determined that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Greenleaf v. Southeastern Pennsylvania Transportation Authority, 698 A.2d 170 (Pa. Cmwlth. 1997). The record is clear that, but for Brooklyn Township's maintenance on the pipeline, which was located within the right-of-way, the damage to the property of Jason and Jessica Gabriel would not have occurred. The actions by the township to dislodge the backhoe used during the maintenance, i.e., destruction of the retaining wall and random widening and leveling of the stream bed, etc., would provide the actual or constructive notice of the newly created dangerous condition. I respectfully submit that Woodbine Auto, Inc. v. Southeastern Pennsylvania Transportation Authority, 8 F. Supp. 2d 475 (E.D. Pa. 1998), is on point and should be applied because the source of the problem emanated from a dangerous condition created by maintenance of the sluice pipe. In any event, this presents a question for the finder of fact, and, therefore, summary judgment should not be granted.
/s/_________
PATRICIA A. McCULLOUGH, Judge