Public Notices, October 7, 2020

Volume 58, No. 10

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

FICTITIOUS NAME

 

TABLE OF CONTENTS

Kenneth Medina; Michael Davis; Barry Shellenhamer & Sandy Shellenhamer, h/w; Daryl Barry & Lola Barry, h/w; and Susan Nagle-Winters, v. Borough of Palmyra

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF JAMES R. HITZ, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Melanie A. McGarry, Co-Executrix

Shawn M. Hitz, Co-Executor

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF STEPHEN M. ADAMS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kenneth P. Adams, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HELENA G. KURBAN, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Ramsay S. Kurban, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ROSEMARIE K. SWAB, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Christina M. Hagewiesche, Executrix

128 Palm Lane

Lebanon, PA 17042

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF BRIAN G. HILL, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Linda Hill, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF SANDRA L. SPEECE, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration c.t.a. have been granted to the undersigned Administratrix.

 

Deidre L. Mertz, Administratrix c.t.a.

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF RICKIE D. HOMMEL, late of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Braden M. Hommel, Executor

347 Pheasant Road

Grantville, PA  17028

 

Edward P. Seeber, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA  17033

 

ESTATE OF KERMIT R. EBLING, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

David R. Ebling, Administrator

1995 Manor Road

York, PA 17406

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

SECOND PUBLICATION

 

ESTATE OF DONALD E. RITTLE, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Donald E. Rittle, Sr., Administrator

1300 E. Kercher Ave., Lot 69

Myerstown, PA  17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF GARRY L. YINGST, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Shawn Yingst, Co-Executor

Cheryl Givler, Co-Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Maheim, PA 17545

 

ESTATE OF ARLENE H. RISSER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Darrel Ebersole, Co-Executor

Lester Diem, Co-Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, Pa.  17042

 

ESTATE OF CHRISTOPHER J. ANDREWS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Clare Yingst, Executrix

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, Pa.  17042

 

ESTATE OF NANCY J. MILLER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Kathleen S. Martin

2255 Colebrook Road

Lebanon, PA 17042

 

Brenda J. Miller

171 Witman Road

Womelsdorf, PA 19567

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF SALLY SHAW OWENS, A/K/A SALLY S. OWENS, A/K/A SALLY OWENS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John Francis Brennen, Sr., Executor

1959 Blacks Bridge Road

Annville, PA, 17003

 

Greer H. Anderson, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA  17042

 

THIRD PUBLICATION

 

ESTATE OF PAUL J. KOTKAS, late of Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Jean L. Kotkas, Administrator

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, Pa.  17042

 

ESTATE OF MARGARET ANN O’NEIL A/K/A MARGARET A. O’NEIL, late of Cornwall, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert E. Visco, Jr., Executor

9402 Indianfield Dr

Mechanicsville, VA 23116

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA  17042

 

ESTATE OF KENNETH A. PUSHNIK, late of North Cornwall, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Gary Rhine, Executor

809 Whitman Road

Lebanon, PA 17042

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA  17042

 

ESTATE OF VALETA F. THOMPSON A/K/A VALETA THOMPSON, late of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Todd Ernest Leahy, Executor

4743 Spanish Sun Ave NE

Albuquerque, NM 87110

 

David R. Warner, Jr, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA  17042

 

ESTATE OF ELAINE J SNYDER, late of Richland, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

James F. Snyder, Executor

1305 Royal Lane

West Deptford, NJ 08086

 

David R. Warner, Jr, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA  17042

 

ESTATE OF MARIE A. HEAGY, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Fern J. Wenger, Co-Executor

 

Brian L. Wenger, Co-Executor

 

Gerald J. Brinser, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF MARK W. HENNINGER, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lisa A. Henninger, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA  17033

 

ESTATE OF WILMA E. URBAN, late of Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Fulton Bank, Administrator

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, Pa.  17042

 

FICTITIOUS NAME

 

NOTICE IS HEREBY GIVEN that an application for registration of the fictitious name, Quentin Grove, for conduct of business in the Commonwealth of Pennsylvania, with its principal place of business at 2395 Quentin Road, Lebanon, PA 17042 was made to the Department of State of the Commonwealth of Pennsylvania, at Harrisburg, PA on or about August 21, 2020, pursuant to the Fictitious Names Act of December 16, 1982, Act 295 (54 Pa.C.S.A. 301 et seq.). The name and address of the person owning or interested in said business is: Thremax, LP, 2395 Quentin Road, Lebanon, PA 17042.

 

Stuart J. Magdule, Esquire

Smigel, Anderson & Sacks, LLP

4431 North Front Street, 3rd Floor

Harrisburg, PA 17110

 

JUDGES OPINION

 

Kenneth Medina; Michael Davis; Barry Shellenhamer & Sandy Shellenhamer, h/w; Daryl Barry & Lola Barry, h/w; and Susan Nagle-Winters, v. Borough of Palmyra

 

Civil Action-Municipal Law-Storm Water Drainage System-Design-Maintenance-Preliminary Objections-Governmental Immunity-Trespass-Nuisance-Willful Misconduct-Storm Water Management Act-Watershed Storm Water Plan-Federal Emergency Management Act-Negligence Per Se-Utility Service Facility Exception-Attorney’s Fees-Punitive Damages-Statute of Limitations

 

Plaintiffs, who are owners and occupants of residential properties in the Borough of Palmyra, filed a Complaint against Defendant setting forth causes of action in Trespass, Nuisance, violation of the Storm Water Management Act (“SWMA”), 32 P.S. § 680.1 et seq., Negligence and Federal Emergency Management Agency (“FEMA”) regulation violations based upon allegations of damage to their properties including flooding, debris, accumulation, permanent street closures and sinkholes due to Defendant’s negligently designed, built and maintained storm water drainage system.  Defendant has filed Preliminary Objections to the Complaint asserting that it is immune from liability pursuant to the Pennsylvania State Tort Claims Act, 42 Pa.C.S. § 8541 et seq., Plaintiffs have failed to state a cause of action under the SWMA and FEMA regulations, Plaintiffs have failed to set forth viable claims for attorney’s fees and punitive damages and Plaintiffs’ claims are barred by the applicable statutes of limitations.

 

1. Local agencies generally are immune from tort liability.

 

2. A cause of action may be maintained against a local agency where the damages otherwise would be recoverable under common law or statute if the injury was caused by a person not protected by immunity, the injury was caused by the negligent act of the local agency or employee acting within the scope of that employee’s duty and the negligent act falls within one (1) of the enumerated exceptions to governmental immunity set forth at 42 Pa.C.S. § 8542(b).

 

3. The exceptions to immunity are strictly construed.

 

4. Trespass arises from a direct infringement of one’s right to property, while nuisance focuses upon the impact to one’s property that is caused by activity on another property.

 

5. A plaintiff may maintain a negligence action in trespass where he or she suffers specific damage and the deprivation of the use and enjoyment of the property results from another party’s tortious act.

 

6. Title 42 Pa.C.S. § 8550, which set forth an exception to the Tort Claims Act grant of immunity, provides that in any action against a local agency or employee for damages on account of injury caused by the employee and the same constituted a crime, actual fraud or malice or willful misconduct, local agency immunity does not apply.

 

7. While the Section 8550 exposes municipal employees to personal liability, it does not dissolve the shield of general immunity retained by the municipality.

 

8. Since the Complaint does not allege personal liability of any municipal employee for willful misconduct and the intentional acts of an employee acting within the scope of office specifically are excluded from conduct imposing liability upon Defendant, the exception to immunity set forth at Section 8550 is not applicable to impose liability upon Defendant for willful misconduct.

 

9. In order to advance the statutory goal of the SWMA to manage stormwater runoff, each county is required to prepare and to adopt a storm water plan for each existing watershed within its boundaries.

 

10. Under the Sections of the SWMA establishing civil remedies for violations of the SWMA and duties of those engaged in land development under the SWMA, the jury must decide whether a municipality is liable for failing to take appropriate measures to prevent injury to another person or property, such as by implementing an appropriate stormwater management plan.

 

11. Since the SWMA creates a statutory cause of action and there is an exception to sovereign immunity where damages are recoverable by statute creating a cause of action, Defendant is not immune from liability for the cause of action based upon the violation of the SWMA.

 

12. In order to establish liability under the applicable provisions of the SWMA, the plaintiff is required to offer proof of a watershed storm water plan that was violated by the municipality.

 

13. Where Plaintiffs have not specifically pled that their properties are located within a watershed area or introduced a copy of an applicable county-adopted plan as a basis for their claim, reference to Defendant’s plan is insufficient to sustain a cause of action under the SWMA with leave granted to Plaintiffs to amend their Complaint as able.

 

14. Since the language of the applicable FEMA regulations does not explicitly or implicitly create a private cause of action against a municipality, Plaintiffs may not pursue a private cause of action against Defendant based upon FEMA violations.

 

15. Violation of a regulation will not suffice to impose liability unless the regulation was intended to protect the interest of the plaintiff involved.

 

16. In determining whether a court should adopt a standard of conduct as defined by regulation as a violation to establish negligence per se, the court must conclude that the regulation was intended at least in part to protect the class of persons to which the plaintiff belongs and to protect the interests that the defendant’s conduct invaded from the harm plaintiff suffered.

 

17. Plaintiffs’ action in Negligence against Defendants based upon alleged violations of FEMA is legally sufficient to set forth a cause of action in Negligence Per Se where the regulations were adopted to protect landowners whose properties are alleged to have been damaged by a failure on Defendant’s part to take required actions outlined in the regulations.

 

18. A municipal entity may be liable for injuries resulting from negligent construction of a sewer system or for failure to keep the system in repair, but not for claims relating to the inadequacy of the system.

 

19. The averments of the Complaint that allege inadequacy of the stormwater system must be dismissed, as no liability exists for such conduct.

 

20. A dangerous condition of utility service facility, including a sewer and water facility owned by a local agency, establishes an exception to governmental immunity pursuant to 42 Pa.C.S. § 8542(b)(5).

 

21. To fall within the utility service facility exception to immunity, a plaintiff must allege facts that establish the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred, the local agency had actual notice or reasonably could be changed with notice and notice had been received for a sufficient period of time to enable the local agency to correct the dangerous condition.

 

22. Notice may be established by evidence of past incidents of flooding or breaks within the area.

 

23. Where Plaintiffs allege that injection wells constituted a dangerous condition that caused damages to their properties, the allegations establish that Defendant had notice due to repeated flooding and Defendant breached its duty with regard to the system by failing to construct the system to alleviate the dangerous condition, Plaintiffs’ claim on this basis is not barred by governmental immunity.

 

24. Under the “American Rule” to which Pennsylvania adheres, litigants are responsible for their own attorney’s fees unless otherwise permitted by express statutory authority explicitly allowing for an award of attorney’s fees, a clear agreement of the parties or some other established exception.

 

25. Punitive damages are not available against a municipality.

 

26. Since Plaintiffs fail to set forth any statutory authority, agreement of the parties or some other established exception for attorney’s fees and punitive damages are not available against a municipality, Plaintiffs’ requests for attorney’s fees and punitive damages cannot be sustained.

 

27. Under 42 Pa.C.S. § 5524, a cause of action in negligence must be commenced within two (2) years of the date when the cause of action accrued, which is when the injury was inflicted and the right to bring suit for damages arose.

 

28. The discovery rule is an exception to the limitation period that tolls the operation of the limitation period.

 

29. The discovery rule provides that where the existence of the injury is not known to the complaining party and knowledge of the injury reasonably cannot be ascertained within the prescribed statutory period, the limitation period does not begin to run until the discovery of the injury reasonably is possible.

 

30. It is the duty of the party asserting a cause of action to use all reasonable diligence properly to inform himself or herself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period.

 

31. Normally, a cause of action for flooding caused by the diversion of surface waters flowing from another’s land accrues when the flooding first is noticed by the plaintiff.

 

32. A continuing trespass allows an injured party to bring actions for separate, independent injuries.

 

33. Since the record is insufficient to establish the time when Plaintiffs became aware of the cause of the property damage and Defendant’s involvement in causing the same and whether injuries to Plaintiffs’ properties are of a continuous nature, the Plaintiffs’ actions are not barred by the statute of limitations at this point in the proceedings.

 

L.C.C.C.P. No. 2018-01804, Opinion by John C. Tylwalk, President Judge, April 2, 2020.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

KENNETH MEDINA; MICHAEL DAVIS; :           NO. 2018-01804

BARRY SHELLENHAMER &                     :

SANDY SHELLENHAMER, h/w;                :

DARYL BARRY & LOLA BARRY, h/w;    :

SUSAN NAGLE-WINTERS                         :

:

1. :

:

BOROUGH OF PALMYRA                         :

 

ORDER OF COURT

 

AND NOW, this 2^nd day of April, 2020, upon consideration of the Preliminary Objections of Defendant Borough of Palmyra, Plaintiffs’ response thereto, the Briefs submitted by the parties, and after Oral Argument, it is hereby Ordered as follows:

1. Defendant’s Preliminary Objections to Counts 1 (Trespass) and 2 (Nuisance) of the Complaint are SUSTAINED, in part, and OVERRULED, in part.  The allegations set forth at Paragraphs 30 and 34 are hereby STRICKEN from the Complaint in accordance with the Opinion accompanying this Order.
2. Defendant’s Preliminary Objection to Count 3 (Storm Water Management Act, 32 P.S. §680.13) of the Complaint is SUSTAINED. However, Plaintiffs are granted leave to file an Amended Complaint to set forth a cause of action pursuant to the Storm Water Management Act, 32 P.S. §680.13 et seq in accordance with the Opinion accompanying this Order.
3. Defendant’s Preliminary Objection to Count 4 (Negligence) of the Complaint is SUSTAINED, in part, and OVERRULED, in part. The allegations of negligence set forth at Paragraphs 42(a) through (f) and (g) are STRICKEN from the Complaint.
4. Defendant’s Motion for More Specific Pleading is GRANTED in accordance with the Opinion accompanying this Order. Plaintiffs are directed to file a more specific pleading with regard to their claims of negligence for violations of the Storm Water Management Act and FEMA regulations.
5. Defendant’s Preliminary Objection to Count 5 (FEMA Regulations) of the Complaint is SUSTAINED to the extent that Plaintiffs cannot pursue an independent cause of action based thereon. However, the allegations of negligence based on the violations of the FEMA regulations cited by Plaintiffs at Paragraph 42(h) of the Complaint will stand.
6. Defendant’s Preliminary Objection to Count 6 of the Complaint is rendered MOOT based upon the parties’ Stipulation that Count 6 is withdrawn.
7. Defendant’s Motion to Strike Plaintiffs’ claims for attorney’s fees is SUSTAINED. The language of the ad damnum clauses in Counts 1, 2, 3, 4, and 5 requesting such relief are STRICKEN from the Complaint.
8. Defendant’s Motion to Strike Plaintiffs’ claims for punitive damages is SUSTAINED.  The language of the ad damnum clauses in Counts 1, 2, 3, 4, and 5 requesting such relief are STRICKEN from the Complaint.
9. Defendant’s Preliminary Objections on the basis of the expiration of the

applicable Statute of Limitations is OVERRULED.

BY THE COURT:

 

                                                                  _________________________, P.J.

                                                                  JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Robert D. Sokolove, Esquire/Stark & Stark, PC/777 Township Line Road,

            Suite 120/Yardley, PA  19067

       Gregory Hirtzel, Esquire/Fowler, Hirtzel, McNulty & Spaulding, LLP/1860

            Charter Lane, Suite 201/Lancaster, PA  17603

        Judith Huber, Esquire/Law Clerk

 

APPEARANCES:

 

ROBERT D. SOKOLOVE, ESQUIRE      FOR PLAINTIFFS

STARK & STARK, PC

 

GREGORY S. HIRTZEL, ESQUIRE                    FOR BOROUGH OF PALMYRA

FOWLER, HIRTZEL, MCNULTY

  & SPAULDING, LLP

 

OPINION, TYLWALK, P.J., APRIL 2, 2020.

 

Plaintiffs are all owners and occupants of residential properties located on the 200 block of East Cherry Street and the 100 block of South Grant Street in the Borough of Palmyra (“Borough”).  In their Complaint, Plaintiffs allege that their respective properties have sustained serious damages, including flooding, debris accumulation, permanent street closures, and sinkholes as a result of the Borough’s “flawed and negligently designed, built and maintained” storm water drainage system (Complaint, Para. 26) which has rendered their properties uninhabitable and economically valueless.  The Complaint sets forth causes of action in trespass, nuisance, violation of the Storm Water Management Act, 32 P.S. §$680.13-680.17 (“SWMA”), negligence, and violation of FEMA regulations.[1]  Plaintiffs also request an award of attorney’s fees and punitive damages.[2]

The Borough has filed Preliminary Objections, asserting that it is immune from liability under the Pennsylvania State Tort Claims Act, 42 Pa.C.S.A. §8541 et seq. (“Tort Claims Act”), that Plaintiffs have failed to state a cause of action under the SWMA and FEMA regulations, that Plaintiffs have failed to set forth viable claims for attorney’s fees and punitive damages, and that these claims are barred by the applicable statute of limitations.  Defendants further request that we direct Plaintiffs to file a more specific pleading.

The counts contained in the Complaint boil down to two separate claims, one for negligence and one for violation of the SWMA, against a local agency, the Borough. For this reason, we will analyze Plaintiffs’ trespass, nuisance, negligence, and FEMA claims as negligence claims with regard to the Borough’s claims of sovereign immunity and examine the sufficiency of the allegations of Plaintiffs’ claims of negligence and the SWMA.

Counts I and II

In Count 1, Plaintiffs set forth a cause of action in trespass while Count 2 alleges a cause of action in nuisance.  The Borough argues that both of these causes of action are intentional torts and that because the exceptions to immunity included in the Torts Claims Act apply only to actions in negligence, both counts should be dismissed.

Generally, local agencies are immune from tort liability. 42 Pa.C.S. § 8541. 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). 42 Pa.C.S. § 8542(a)(2). Because of the expressed legislative intent to insulate political subdivisions from tort liability, the exceptions to immunity are strictly construed. Thomas v. City of Philadelphia, 668 A.2d 292 (Pa.Cmwlth.1995).

 

Metropolitan Edison Company v. Reading Area Water Authority, 937 A.2d 1173, 1175 (Pa. Commw. 2007).

In Pennsylvania, a person is subject to liability for trespass on land in accordance with Restatement (Second) of Torts § 158. Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Practical Knowledge, 102 A.3d 501, 506 (Pa.Super. 2014).

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally

 

• enters land in the possession of the other, or causes a thing or a third person to do so, or

 

(b) remains on the land, or

 

(c) fails to remove from the land a thing which he is under a duty to remove.

 

Restatement (Second) of Torts § 158.

The Restatement (Second) of Torts § 822 provides the general rule as to who may be liable for a private nuisance:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either

 

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

 

Restatement (Second) of Torts § 822.

The distinction between trespass and nuisance is that the former arises from a direct infringement of one’s right of property, while the latter focuses on the impact to one’s property that is caused by activity on another property.  Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 19 A.2d 362, 363 (1941).  Plaintiffs argue that its claims for trespass and nuisance aver negligence and possible willful misconduct on the part of the Borough, thus depriving the Borough of its claim to immunity.

A plaintiff/landowner may maintain a negligence action in trespass where he suffers specific damage and the deprivation of the use and enjoyment of his property results from another party’s tortious act.  23 Standard Pennsylvania Practice 2d §124:190.  A defendant’s liability for nuisance also depends on the presence of some type of tortious conduct – including negligent conduct.  2 Summ. Pa. Jur. 2d Torts §21:11 (2d ed.).  If a nuisance case can be resolved on the basis of negligence, it is not necessary to reach the issues of intentional nuisance.  Id., citing Reinhart v. Lancaster Area Refulse Authority, 193 A.2d 670 (Pa. Super. 1963).

In both Counts 1 and 2, Plaintiffs have incorporated the language of Paragraph 21 in which they aver that “Defendant’s actions and conduct with respect to the design, maintenance, changes and construction efforts, all negligently undertaken, are the direct, factual, legal, and proximate cause of Plaintiffs’ injuries and damages. …”  In addition, in Paragraph 26 of Count 1, Plaintiffs refer to the Borough’s operation of a “flawed and negligently designed, built and maintained drainage system.”  Since Plaintiffs allege negligent conduct on the part of the Borough in both of these counts, we will overrule this Preliminary objection as to that extent and will address the viability of these claims in the face of the Borough’s claims of immunity along with Plaintiffs’ cause of action in negligence as set forth in our discussion regarding Defendant’s Preliminary Objection to Count 4.

In addition to the allegations of negligence in Counts 1 and 2 of the Complaint, Plaintiffs also allege that the Borough’s conduct has been “intentional, willful and wanton, and undertaken with a reckless disregard for the interests and the rights of Plaintiffs.” (Complaint, Paras. 30, 34)   The Borough argues that these claims should be dismissed because the exceptions to immunity set forth in the Torts Claims Act are applicable only to negligent conduct.  Plaintiffs argue that these counts should stand pursuant to their interpretation of the willful activities exception to the Tort Claims Act’s grant of immunity as set forth at 42 Pa.C.S.A. §8550:

• 8550. Willful misconduct

In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.

 

42 Pa.C.S.A. §8550.  For purposes of the Tort Claims Act, “willful misconduct” is synonymous with “intentional tort.”  Kuzel v. Krause, 658 A.2d 856 (Pa. Commw. 1995), citing 42 Pa.C.S.A. §§8541, 8542.

 

The plaintiffs in Steiner v. City of Pittsburgh, 509 A.2d 1368 (Pa. Commw. 1986) advanced a similar argument.   In that case, a woman who had been raped by an intruder in her home sued the City, alleging that the 911 operator’s “willful, wanton and malicious conduct” had caused her injuries by ignoring her call for assistance.  The trial court granted the City’s motion for judgment on the pleadings on the basis of immunity and the plaintiff appealed.  In affirming, the appellate court explained:

Appellants’ reference to 42 Pa.C.S. § 8550, relating to willful misconduct, as subsuming the general retention of municipal immunity, is misplaced. While Section 8550 indeed waives four specific immunities for willful misconduct, each of the waived immunities exposes municipal employees to personal liability “without dissolving the shield of general immunity retained by municipalities.” Buskirk v. Seiple, 560 F.Supp. 247, 252 (E.D.Pa.1983). In addressing this same issue, a learned commentator observed that although the “liability of a political subdivision is based primarily on personal liability of its officials through the operation of respondeat superior,” the Code does not purport to impose governmental liability for the willful, tortious misconduct of its employees. Buskirk at 252, citing Lajeunesse, The Political Subdivision Tort Claims Act: Pennsylvania’s Response to the Problems of Municipal Tort Liability, 84 Dick L.Rev. 717, 747 and 750 (1980).

 

Id. at 1370.

The Complaint in this matter does not seek to impose personal liability upon any municipal employee for any alleged willful misconduct.  Moreover, the intentional acts of an employee acting within the scope of his office are specifically excluded from imposing liability upon the Borough by the language set forth at Section 8542(a)(2).  Thus, even if some willful act by an employee would be revealed through discovery, the immunity granted to the Borough would not be affected.  Thus, we will sustain this Preliminary Objection as to the allegations of intentional conduct and will order that the language of Paragraphs 30 and 34 be stricken from the Complaint.

Count 2 – Violation of Storm Water Management Act

In Count 2, Plaintiffs assert a cause of action pursuant to the Storm Water Management Act, 32 P.S. §§680.1-680.17 (“SWMA”).  The SWMA was enacted in 1978 to manage the effects of storm water runoff.  Lincoln Investors, L.P. v. King, 152 A.3d 382 (Pa. Commw. 2016).  To advance the statutory goal of managing storm water runoff, each county is required to prepare and adopt a watershed storm water plan for each existing watershed within its boundaries.  32 P.S. §680.5.  The term “watershed storm water plan” is defined as “[a] plan for storm water management adopted by a county in accordance with section 5.[3]”  32 P.S. §680.4.

Section 15 of the SWMA creates civil remedies to enforce the provisions of the Act:

• 680.15. Civil remedies

 

• Any activity conducted in violation of the provisions of this act or of any watershed storm water plan, regulations or ordinances adopted hereunder, is hereby declared a public nuisance.

 

(b) Suits to restrain, prevent or abate violation of this act or of any watershed storm water plan, regulations or ordinances adopted hereunder, may be instituted in equity or at law by the department, any affected county or municipality, or any aggrieved person. Except in cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the court may, in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abate the same. The expense of such proceedings shall be recoverable from the violator in such manner as may now or hereafter be provided by law.

 

(c)Any person injured by conduct which violates the provisions of section 13 may, in addition to any other remedy provided under this act, recover damages caused by such violation from the landowner or other responsible person.

 

32 P.S. §380.15.  Section 13 of the SWMA provides:

 

• 680.13. Duty of persons engaged in the development of land

 

Any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required:

 

(1) to assure that the maximum rate of storm water runoff is no greater after development than prior to development activities; or

 

(2) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury.

 

32 P.S. §680.13.  Under these sections of the SWMA, the jury must decide whether a municipality is liable under the SWMA for not taking appropriate measures to prevent injury to another person or property, such as implementing an appropriate stormwater management plan. Glencannon Homes Association, 116 A.3d at 718.

We first disregard the Borough’s claims of immunity with regard to this Count of the Complaint as this cause of action is separate and distinct from a plaintiff’s negligence claims. See,  Glencannon Homes Association, 116 A.3d at 718.  The SWMA “creates a statutory cause of action” and “[t]he Sovereign Immunity Act creates an exception to sovereign immunity where damages are recoverable in a statute creating a cause of action.” Glencannon Home Association, 116 A.3d 706, 718 (Pa. Commw. 2015), citing Deibert v. Pennsylvania Turnpike Commission, 15 Pa. D. & C. 5th 159, 174 (C.C.P. Lehigh Cnty. 2010).

  Plaintiffs allege that the Borough is in violation of the SWMA and that these violations were the proximate cause of the damages and injuries to their properties.  The Borough argues that Plaintiffs have failed to state a cognizable claim under the SWMA because Plaintiffs have failed to allege that their properties are located within a watershed district and have failed to allege the existence of or attach a copy of an appropriate applicable storm water management plan.   Plaintiffs counter that they have referenced the Borough’s own Storm Water Management Plan which is available on the Borough’s own website, and that their cause of action has been properly pled pursuant to Section 680.13 of the SWMA.

The Borough points to Bahor v. City of Pittsburgh, 631 A.2d 731 (Pa. Commw. 1993) in support of its proposition that a plaintiff asserting a claim for civil remedies under the SWMA is required to introduce an applicable county watershed storm water plan and the specific violation thereof.  Plaintiffs take the position that a violation of the Borough’s own plan is legally sufficient to state a claim under the SWMA. (Exhibit “B” to Plaintiffs’ Response to Defendant’s Preliminary Objections)

This issue was addressed in Lincoln Investors, L.P. v. King, 152 A.3d 382 (Pa. Commw. 2016).  In that case, the owner of a shopping center brought suit against surrounding landowners and various state and local governmental entities under the SWMA for damages caused by incidents of flooding.  The trial court had granted partial summary judgment as to claims which arose prior to the county’s adoption of a watershed storm water plan.  The plaintiff appealed, arguing that a county watershed storm water plan was not required for an SWMA action to be sustained while the defendants argued that the existence of a county-adopted plan was a prerequisite for liability under Section 13 of the SWMA.

In construing Sections 13 and 15, the Commonwealth Court explained:

We agree that a county’s adoption of a watershed storm water plan is not a prerequisite for pursuing the remedies authorized by subsection (b) of Section 15. 32 P.S. § 680.15(b). In Merlino v. Delaware County, 711 A.2d 1100 (Pa. Cmwlth. 1998), aggrieved landowners filed a mandamus action to compel Delaware County to prepare and adopt a watershed storm water plan for the Darby Creek Watershed. The county argued that the aggrieved landowners lacked standing. In rejecting the county’s argument, this Court explained that

 

[s]ection 15 provides that civil remedies are available not only for violations of any watershed plan, or of any regulation or ordinance adopted with respect to the plan, but also of any violation of the Act itself. The Act principally addressed the duties of the counties of the Commonwealth to adopt, submit, and implement storm water management plans.

Id. at 1105 (emphasis added). Accordingly, we held that under subsection (b) “an aggrieved private citizen may bring an action to address violations of the Act under Section 15.” Id. In short, subsection (b) authorizes an aggrieved person to pursue equitable-type remedies for any violation of the Act, a regulation or an ordinance as well as a violation of a county’s watershed storm water plan.

 

On the other hand, the remedy authorized by Section 15(c) requires a different analysis. It states that

 

[a]ny person injured by conduct which violates the provisions of section 13 may, in addition to any other remedy provided under this act, recover damages caused by such violation from the landowner or other responsible person.

32 P.S. § 680.15(c). The prerequisite to an action for damages under Section 15(c) is a violation of Section 13 of the Act.

 

…

 

…  Section 13 must be read in its entirety. Roethlein v. Portnoff Law Associates, Ltd., 623 Pa. 1, 81 A.3d 816, 822 (2013) (“[i]n giving effect to the words of the legislature, we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.”). The subsections of Section 13 simply elaborate on the measures a developing landowner must take with respect to a watershed storm water plan: (1) maintain the current storm water runoff rate and (2) manage the runoff in a manner which protects health and property. 32 P.S. § 670.13(1), (2).

 

This construction is consistent with this Court’s decision in Bahor v. City of Pittsburgh, 158 Pa.Cmwlth. 150, 631 A.2d 731 (1993), in which Bahor brought a claim against the City of Pittsburgh, alleging that the City’s development of land caused flooding and damage to his property.

…

 

…  We held that it was the obligation of the complaining plaintiff “to introduce the applicable storm water management plan and any alleged violation thereof, under Sections 13 and 15 of the Act.” Id. (emphasis added).

 

Id. at 386 – 389.

 

Like Plaintiffs here, the plaintiff in Lincoln Investments also argued that a county plan was not a prerequisite to an action for damages under the SWMA:

Lincoln responds that Bahor established that either a county watershed storm water plan or a municipal storm water management plan can provide the basis for liability under the Act. In support, it notes that the Bahor opinion used two different phrases: “storm water management plan” and “watershed storm water plan,” which, according to Lincoln, have different meanings. A “watershed storm water plan” is defined in Section 4 of the Act as “[a] plan for storm water management adopted by a county ….” 32 P.S. § 680.4 (emphasis added). By contrast, “storm water management plan” is not defined and, thus, broader in scope and can include a plan adopted by a township or municipality that is site-specific. Lincoln Brief at 30. Bahor needed to offer proof of a county watershed storm water plan, as defined under the Act, or a municipal storm water management plan. Bahor’s claim failed because he did not offer proof of either a county “watershed storm water plan,” or a township, municipal, or site-specific “storm water management plan.”

 

Defendants acknowledge that the Bahor opinion uses this different phraseology but contend that this has no particular significance. The opinion in Bahor does not identify a “watershed storm water plan” as a county plan and a “storm water management plan” as a municipal, township, or site-specific plan. What is more, Defendants note that “watershed storm water plan” is defined in Section 4 of the Act as “a plan for storm water management.”

 

We agree with Defendants that the terms “watershed storm water plan” and “storm water management plan” were not chosen for any purpose other than for reasons of style. In Bahor, the Court was consistent in holding that “a watershed storm water plan” was defined in Section 4 of the Act, 32 P.S. § 680.4. We reject Lincoln’s contrary argument.

 

Id. at 389.

 

The Court concluded:

In sum, we hold that a violation of Section 13 of the Act requires a showing that the landowner’s conduct violated the terms of a county-adopted watershed storm water plan, as defined in Section 4 of the Act. It follows, then, that a watershed storm water plan is a prerequisite for the imposition of liability under Section 15(c) of the Act, 32 P.S. § 680.15(c). Accordingly, we affirm the trial court’s grant of summary judgment to Defendants as to Lincoln’s claim for damages under Section 13 of the Act that took place prior to February 2011, when Chester County adopted a watershed storm water plan.

 

Id. at 390-391.

Here, Plaintiffs have not specifically indicated in the Complaint that their properties are located within a watershed area and have not introduced a copy of an applicable county-adopted plan as a basis for their claims to recover damages for the alleged injuries to their properties.  Under the reasoning of Lincoln Investments, the Borough plan is insufficient to sustain a cause of action for damages under Section 15(c) of the statute.  Hence, we will sustain this Preliminary Objection, but will grant Plaintiffs leave to amend their Complaint in order to properly assert their claims for damages under the SWMA.

Count 5 – Violation of FEMA Regulations

In Count 5, Plaintiffs seek recovery based upon a violation of Section 60.3 of Federal Emergency Management Association regulations, National Flood Insurance Program:

Sec. 60.3  Flood plain management criteria for flood-prone areas.

 

Minimum standards for communities are as follows:

 

• When the Administrator has not defined the special flood hazard areas within a community, has not provided water surface elevation data, and has not provided sufficient data to identify the floodway or coastal high hazard area, but the community has indicated the presence of such hazards by submitting an application to participate in the Program, the community shall:

 

(4)  Review subdivision proposals and other proposed new development, including manufactured home parks or subdivisions, to determine whether such proposals will be reasonably safe from flooding.  If a subdivision proposal or other proposed new development is in a flood-prone area, any such proposals shall be reviewed to assure that (1) all such proposals are consistent with the need to minimize flood damage within the flood-prone area, (ii) all public utilities and facilities, such as sewer, gas, electrical, and water systems are located and constructed to minimize or eliminate flood damage, and (iii) adequate drainage is provided to reduce exposure to flood hazards; …

 

44 C.F.R. §60.3(a)(4).  (Exhibit “C” to Plaintiffs’ Response to Defendant’s

 

Preliminary Objections)  Plaintiffs have also included violation of FEMA standards as an allegation of the Borough’s breach of duty in Count 4 in Negligence.  (Complaint, Para. 42(i))

The Borough counters that these regulations are inapplicable to this case as they merely establish standards for community participation in a program for obtaining flood insurance and do not create a private cause of action.  Plaintiffs concede that the FEMA regulations do not create a private statutory cause of action but argue that Section 60.3(a)(4) of FEMA sets a standard by which the Borough, as a FEMA participant, is required to adopt and enforce land use requirements to reduce or eliminate flooding in the development of land within the community.  It is their position that the Borough’s voluntarily participation in the FEMA flood insurance program created an additional duty of care which the Borough owed to Plaintiffs and that the violation of these standards constitutes negligence on the part of the Borough.

After examining the portion of the regulations cited by Plaintiffs, we agree with the Borough that the language of Section 60.3 of the FEMA regulations does not create explicitly or impliedly create a cause of action against the Borough.  Thus, we will sustain this Preliminary Objection to the extent that no private cause of action may be pursued by Plaintiffs.

We agree with Plaintiffs that they may pursue their claim of negligence against the Borough based on these regulations.  An allegation of a violation of a federal regulation may set forth an allegation of negligence per se:

Section 286 of the Restatement of Torts, Second, sets forth a specific test for determining whether the court should adopt a standard of conduct as defined by legislation or regulation. For such a standard to be applicable, the court must first conclude that the statute or regulation was intended, at least in part, to protect the class of persons to which the plaintiff belongs, and to protect the interests that the defendant’s conduct invaded, from the harm that the plaintiff in fact suffered. This provision of the Restatement has been endorsed by both federal and state courts.

 

Once a legislative enactment or regulation has been adopted by the court as the governing standard of care, proof of its violation is negligence per se, and the jury need not determine the reasonableness of the defendant’s conduct. …

 

^…

Violation of a statute will not suffice to impose liability unless the statute was intended to protect the interest of the plaintiff involved.  …

 

3 West’s Pa. Prac., Torts:  Law and Advocacy §1.22.

 

 

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).  When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom.  Id. Preliminary objections that seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. Id. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Id.

Reading the allegations of the Complaint in the light most favorable to Plaintiffs, we will accept the proposition that these regulations were adopted in order to protect those in Plaintiffs’ positions as landowners whose properties have allegedly been damaged by the Borough’s failure to take the actions outlined in this regulation in order to protect their properties from the injuries alleged in the Complaint.  Thus, we will consider the regulations cited by Plaintiffs as establishing a standard of care by which the Borough, as a FEMA participant, was required to abide and will overrule this Preliminary Objection in so far as Plaintiffs aver negligence on the part of the Borough.  These allegations will be considered in our discussion regarding the Borough’s claim to immunity.

Count 4 – Negligence

 

In Count 4 of the Complaint, Plaintiffs allege that the Borough “was negligent and careless in authorizing, developing, owning, controlling, repairing and maintaining the storm water drainage system at and around Plaintiffs’ property.”  (Complaint, Para. 41)  The Borough has filed a Preliminary Objection seeking dismissal, arguing that Pennsylvania does not recognize a cause of action for negligent design or inadequacy of a storm sewer utility, and that it is entitled to governmental immunity.  Plaintiffs counter that the factual allegations of the Complaint go beyond a theory of negligent or inadequate design and that this cause of action falls within the Utility Services Exception set forth at 42 Pa.C.S.A. §8542(b)(5):

(b) Acts 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 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.A. §8542(b)(5).

Under common law, a municipal entity may be liable for injuries resulting from negligent construction of a sewer system or for failure to keep the system in repair, but not for claims relating to the inadequacy of the system.  Glencannon Homes Association, Inc. v. North Strabane Township, 116 A.3d 706 (Pa. Commw. 2016), citing McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa. Commw. 2008), appeal denied, 983 A.2d 1250 (Pa. 2009); Gibellino v. Manchester Township, 109 A.3d 336 (Pa. Commw. 2013); Strauch v. Scranton, 42 A.2d 96 (Pa. Super. 1945).

Here, Plaintiffs’ Complaint contains numerous allegations of the Borough’s negligence in Paragraph 42 of the Complaint.  After reviewing the Complaint as a whole, we believe a number of these averments do allege inadequacy of the Borough’s system and should therefore be dismissed:

42. Defendant, individually, and/or through its agents, servants, borrowed servants and/or employees breached its duty to Plaintiff in the following manner:

 

• Authorizing the development of a deficient storm water drainage system;
• Ordering and supervising the installation of a deficient storm water drainage system;
• Failing to authorize, order, own, operate and maintain a storm water drainage system of a type and capacity to permit the proper runoff of storm water and other debris;
• Failing to modify the storm water drainage system after receiving actual notice that its storm water drainage system was designed, built, operated and maintained so as to intermittently cause severe localized flooding in and around Plaintiffs’ properties;
• Operating and maintaining its storm water drainage system in such a manner as to create artificial hydrologic backups, with deficient drainage courses preventing the adequate flow of storm water away from Plaintiffs’ properties;

…

(h)  Failing to timely and properly abate the flooding condition;

 

(Complaint, Para. 42(a)-(e),(h)).  Hence, we will direct that these allegations be dismissed from the Complaint.

Reading the remaining allegations of negligence in the light most favorable to Plaintiffs, we accept that they address the construction and maintenance of the Borough’s system, as well as breach of duties assigned to the Borough by virtue of the aforementioned provisions of the SWMA and FEMA regulations:

• Violating the Storm Water Management Act;
• Violating the Storm Water Management Plan for Borough of Palmyra;

 

• Violating various regulatory and legal obligations under the FEMA National Flood Insurance Program, including, but not limited to §60.3 of FEMA’s Flood Plaint Management Minimum Requirements, from which the Borough of Palmyra had a duty to undertake no actions which cause or contribute to flooding in its community; and

 

• …Failing to address multiple mistakes and deficient work product performed by its contractors when allegedly performing and completing construction efforts designed to abate flooding and the formation of sinkholes in and around Plaintiffs’ properties.

 

(Complaint, Para. 42(f)(g)(i)(j)).

We must therefore address the Borough’s claim to immunity with regard to the remaining allegations of negligence.  Based upon the relevant statutory language, the requirements for an exception from governmental immunity under the Utility Exception in subsection 8542(b)(5) are:

-a dangerous condition of a utility service facility owned by the local agency and located within rights-of-way;

 

– the dangerous condition created a foreseeable risk of injury of the kind of

injury that later occurred;

 

-the local agency had notice of the dangerous condition or could reasonably be charged with notice;

 

-despite said notice, the local agency, with the means and personnel to do so under the circumstances presented, failed to take necessary and appropriate-remedial measures to protect against injury resulting from the dangerous condition; and

 

-the failure to remediate the dangerous condition was a proximate cause of the injury and resulting damages.

 

Metropolitan Edison Company v. City of Reading, 162 A.3d 414, 421-422 (Pa. 2017).  Thus, to fall within the exception to immunity, Section 8542(b)(5) provides that a plaintiff must allege facts that establish:

1. the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred;

 

2. the local agency had actual notice or could reasonably be charged with notice; and

 

3. notice had been received for a sufficient period of time to enable the local agency to correct the dangerous condition.

 

Gibellino. Manchester Township, 109 A.3d 336, 342 (Pa. Commw. 2015). Notice under this provision can be established by evidence of past incidents of flooding or breaks within the area. Id. at 343, citing Medicus v. Upper Merion Township, 82 Pa.Cmwlth. 303, 475 A.2d 918, 921–22 (1984); City of Washington v. Johns, 81 Pa.Cmwlth. 601, 474 A.2d 1199, 1203 (1984).

We believe this exception could be applicable to the Borough’s system.  However, we are unable to render a final decision on this issue at this point as the application of this exception implicates factual issues that will not be fleshed out until discovery is complete.

In Glencannon Homes Association, Inc. v. North Strabane Township, 116 A.3d 706 (Pa. Commw. 2016), the court noted:

This Court has previously held that stormwater management which involves culverts, basins, swales, and/or drains is the equivalent of a sewer for purposes of this exception. See, e.g., DeTurk v. South Lebanon Township, 116 Pa.Cmwlth. 557, 542 A.2d 213 (1988) (township liable under utility service facilities’ exception for injuries sustained as a result of negligent construction of a swale); Medicus v. Upper Merion Township, 82 Pa.Cmwlth. 303, 475 A.2d 918 (1984) (township could be liable under utility service facilities’ exception for injuries sustained as a result of negligence maintenance of culverts). Moreover, under common law, a municipal entity is liable for injuries resulting from negligent construction of a sewer system or for failure to keep the system in repair, but not for claims relating to the inadequacy of the system. McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa.Cmwlth.2008), appeal denied, 603 Pa. 706, 983 A.2d 1250 (2009).

 

Id. at 719.

We read the Complaint as identifying the injection wells created by the Borough in its efforts at storm water management system constitute a dangerous condition which has caused damages to Plaintiffs’ properties in the form of repeated flooding, debris accumulation, closures and sinkholes on their properties.

Plaintiffs are also required to plead that the Borough has had notice of this condition, or may reasonably be charged with such notice, so that it should have reasonably foreseen the risk to their properties.  The question of whether the Borough had notice of the dangerous condition of the injection wells used for handling storm water is an issue for the trier of fact.  Medicus v. Upper Merion Township, 475 A.2d 918 (Pa. Commw. 1984).  Plaintiffs have satisfied this requirement.   In addition to identifying the injection wells as a dangerous condition of the Borough’s facilities located within its right of way, Plaintiffs’ Complaint alleges that the Borough has notice due to repeated floodings.

Finally, Plaintiffs charge that the Borough breached its duties with regard to the system by failing to construct the system so that this dangerous condition would not exist or to take necessary remedial and maintenance measures to protect against the dangerous condition of the facilities in advance of the flooding, debris accumulation, and sinkhole formation.  Based on these allegations, we are unable to conclude at this stage of the proceedings that Plaintiffs’ claims are barred by the immunity under the Tort Claims Act.  Thus, we will overrule this Preliminary Objection as to Paragraphs 42 (f)-(g), (i)-(j).

Request for More Specific Pleading

A pleading must achieve the purpose of informing the court and the adverse party or parties of the matters in issue. Rule 1019(a) is satisfied if allegations in a pleading (1) contain averments of all facts the plaintiff will eventually have to prove in order to recover, and (2) they are sufficiently specific so as to enable the party served to prepare a defense thereto.  Com., Dept. of Transportation v. Shipley Humble Oil Co., 370 A.2d 438, 440 (Pa. Commw. 1977).

We do agree with the Borough that it is entitled to more specific information on these claims.  The Borough complains that Plaintiffs fail to identify the specific codes, ordinances, and/or regulations alleged to have been violated.  Although a party need not specifically plead the Act of Assembly ostensibly violated, sufficient facts must be pleaded to bring the case within the appropriate statute. Id.  We agree that Plaintiffs have failed to specifically plead sufficient facts to support their claims of negligence under the SWMA and FEMA regulations.  Therefore, we direct Plaintiffs to specifically set forth sufficient facts in their Amended Complaint to identify the conduct to support these allegations.

 

 

 

Request for Attorneys’ Fees

In the ad damnum clause of each count of the Complaint, Plaintiffs request the award of attorney’s fees.  Defendant asks that we strike these demands as there is no authorization for this award under the causes of action alleged.

Pennsylvania adheres to the “American Rule,” under which litigants are responsible for their own counsel fees unless otherwise permitted by express statutory authority (including a court rule) explicitly including an award of attorney’s fees, a clear agreement of the parties; or some other established exception.  25A Standard Pennsylvania Practice 2d §127:30; Trizechahn Gateway LLC v. Titus, 976 A.2d 474 (Pa. 2009).  Plaintiffs have pointed to no agreement between these parties, statutory authorization, or exception to the general rule to support their claims for such an award.  Moreover, the SWMA does not authorize such damages and does not expand the types of damages required to support a recovery under a negligence theory.  Adams v. Copper Beach Townhome Communities, L.P., 816 A.2d 301 (Pa. Super. 2003).  Thus, we agree that this request is inappropriate and will sustain this Preliminary Objection and order that the language seeking attorney’s fees be stricken from the Complaint.

 

 

Request for Punitive Damages

In their ad damnum clauses, Plaintiffs also request the award of punitive damages.  However, punitive damages are not available against a municipality.  City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981); Feingold v. SEPTA, 517 A.2d 1270 (Pa. 1986); City of Philadelphia, Office of Housing and Community Development v. AFSCME, Local Union 1971, 876 A.2d 375 (Pa. 2005); Adams v. Copper Beach Townhome Communities, L.P., 816 A.2d 301 (Pa. Super. 2003).  Thus, we will sustain this Preliminary Objection and direct that this request be stricken from the Complaint.

Statute of Limitations

The Borough claims that these claims are barred by the two-year statute of limitations, noting Plaintiffs’ contentions that the Borough “had notice for years” of its alleged violations and that the harm to their properties began “well over a decade” prior to the institution of this litigation. (Complaint, Paras. 19, 23)  Plaintiffs counter that its claims for trespass and nuisance are for continuing torts and that the activities alleged in these claims have continued up to the time of the filing of the Complaint, with each incident creating a separate and distinct event which produces injuries to their properties.

The affirmative defense of the expiration of the applicable statute of limitations is properly raised as New Matter pursuant to Pa.R.C.P. No. 1030.  However, the Court may address this argument on preliminary objections if the affirmative defense is clear on its face and the plaintiff raises no objection.  Plaintiff has not objected to our addressing this argument on the Borough’s Preliminary Objections.  However, after examining the allegations of the Complaint, the application of this defense is not clear on the face of Plaintiffs’ pleading as we are unable to say at this point in the proceedings whether it will operate to bar Plaintiffs’ claims.

Pursuant to 42 Pa.C.S.A. §5524, a plaintiff had two years to institute an action for these claims.   In general, the statute of limitations would have begun to run when the cause of action accrued; i.e., when the injury was inflicted and the right to bring suit for damages arose.  Gleason v. Borough of Moosic, 15 A.3d 479 (Pa. 2011).  However, the discovery rule is an exception to the limitation period and its application will operate to toll the running of the statute of limiations.  Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997).  This rule provides that “where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible.  Id. at 167.  It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period.  Gleason v. Borough of Moosic, supra.  While reasonable diligence is an objective test, it is sufficiently flexible to take into account the differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.  Under this test, a party’s actions are evaluated to determined whether he exhibited those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interest and the interest of others.  Glencannon Homes Association, Inc. v. North Strabane Township, supra at 715.  If the existence of the injury and its cause are reasonably ascertainable within the statutory period, the discovery rule does not apply and no tolling occurs.  Baumgard v. Keene Building Products Corp., 666 A.2d 238 (Pa. 1995).

Normally, a cause of action for flooding caused by diversion of surface waters flowing from another’s land will accrue when the flooding is first noticed by the plaintiff.  See, Kowalski v. TOA PA V, L.P., 206 A.3d 1148 (Pa. Super. 2019).  A cause of action for trespass of real property as well as a claim for damages for injuries to one’s property in negligence are also subject to the two-year limitation period.  42 Pa.C.S.A. §5524(4)(7).

The Borough’s argument is certainly persuasive in that Plaintiffs aver that the flooding has occurred on their properties for well over a decade.  However, the discovery rule tolls the statute of limitations until such time as the tort and the existence of the tortfeasor should have reasonably been discovered. Fine v. Checcio, 582 Pa. 253, 870 A.2d 850 (2005). “[T]he salient point giving rise to its application is the inability of the injured, despite the exercise of reasonable diligence, to know that he is injured and by what cause.” Id. at 858.   In Glencannon Homes, it was held that the discovery rule was applied to toll the plaintiffs’ negligence cause of action until it became aware of the cause of the problem and the defendant’s involvement in causing the damge to the plaintiff’s properties.

Plaintiffs also argue that the repeated flooding of their properties constitute continuous torts.  A continuing trespass allows an injured party to bring actions for separate, independent injuries.  Miller v. Stroud Township, 804 A.2d 749 (Pa. Commw. 2002).  In the Kowalski case, the court noted that, in the event of a continuing trespass, a right of action exists only for the damages suffered within the statutory period immediately preceding suit.  206 A.3d at 1167.  At this point, we are also unable to make this determination as we have no evidence as to whether the injuries to Plaintiffs’ properties are of a permanent or continuous nature.  Thus, we will also overrule this Preliminary Objection  so that the facts relevant to the resolution of this issue may be uncovered in discovery.

Based on the record before us at this stage of the proceedings, we do not have sufficient information to reach this determination and will overrule this Preliminary Objection.  However, in the event that discovery reveals information to support this defense, we will revisit this argument on a motion for summary judgment.

 

[1] Counts 1, 2, 3, 4, and 5 respectively.  Count 6 was withdrawn by Stipulation of the parties.

[2] Plaintiffs had also filed a Petition for Appointment of Board of Viewers alleging an action in inverse condemnation simultaneously with the filing of this action at Docket No. 2018-01803 in this Court.  That action was also withdrawn by Stipulation of the parties.

[3] 32 P.S. §680.5.