This case required the Commonwealth Court to determine whether or not the Borough of Midland (Midland) was immune from suit in a dispute involving utility service facilities. In affirming the trial court, the Commonwealth Court held that Midland was immune. The plaintiffs failed to show that (1) the facilities were in a dangerous condition and (2) expenditures made to correct a dangerous condition were a cognizable injury.
Daisy Sobat (Sobat) owned a home in Beaver County, Pennsylvania that began experiencing sewer problems in October 2014, which caused improper drainage and back up of a sewer line. Sobat hired a plumber to inspect the sewer line. The plumber determined that the sewer line had deteriorated, posed a health risk for Sobat, and required replacement. Notably, the plumber discovered that the sewer line had a reverse flow that could not be reversed without installing a sewage grinder pump. The plumber sought permission to install the pump from Midland’s inspector (the Inspector), but the Inspector replied that such pumps were not permitted in the borough. Therefore, the plumber, who protested due to the unnecessary costs of alternative methods, was required to correct the issue himself.
After excavating around the sewer line and unsuccessfully attempting to correct the reverse flow, the plumber informed the Inspector that the problem could not be corrected without a pump. Midland then authorized the plumber to install one, which corrected the problem. Sobat, who was forced to pay for the excavation, subsequently sued Midland, alleging that Midland negligently misrepresented its requirements for replacing the sewer line. Sobat sought damages for expenditures incurred to excavate around the sewer line, backfill the excavated land, and repair the street in front of the property. Midland countered that it was entitled to governmental immunity under the Political Subdivision Torts Claims Act (PSTCA), which shields municipalities from tort claims. 42 P.S. § 8542(b)(5). Sobat claimed that the alleged injury fit one of the PSTCA exceptions for “a dangerous condition of the facilities of . . . sewer[s] . . . owned by the local agency.”
The trial court found for Midland. It found that Sobat’s expenses were not caused by a dangerous condition of Midland-owned property. Thus, the trial court determined that Sobat’s claim did not fall under the immunity waiver for dangerous conditions on utility services facilities. Sobat filed an appeal, which the Commonwealth Court granted.
On appeal, Sobat alleged that the complaint sufficiently pled (1) the existence of a dangerous condition of the sewer line and (2) the expenditures for unnecessary work due to Midland’s insistence that a pump could not be installed were injuries. Under the PSTCA, a local agency is immune from liability for injuries incurred to person or property caused by its own acts or the acts of its employees unless the injury falls into one of the enumerated exceptions to governmental immunity. 42 P.S. §§ 8541–8542. To qualify for an exception, a plaintiff must show that the damages would be recoverable under common law or a statute against a party unprotected by immunity and that the negligent act of the local agency or its employees that caused the injury falls within one of the exceptions. Here, Sobat argued that the alleged injury fell into the “dangerous condition” exception to the PSTCA.
The Commonwealth Court disagreed and, first, found that Sobat had not pled an injury. Sobat’s claim was that the excavation would not have occurred had Midland provided correct information regarding the grinder pump initially. Therefore, Sobat was not alleging that any injuries were sustained related to the sewage problems that the house experienced. Thus, Sobat essentially sought reimbursement for the excavation, not damages for any cognizable injury.
Furthermore, the “dangerous condition” exception only applies when the allegedly dangerous condition originates in the local agency’s realty. Sobat did not claim injury due to a dangerous condition that derived from Midland property. All of Sobat’s claims were allegedly caused by negligent misrepresentation on the part of the Inspector, not from a condition of the sewer line itself. Accordingly, the exception did not apply.
Click here to read: Sobat v. Borough of Midland, No. 1843 C.D. 2015 (Pa. Commw. Ct. June 9, 2016).
Bob Turchick, Law Clerk