D. Sobat and E. Sobat v. The Borough of Midland ~ Appeal of: E. Sobat
141 A.3d 618
| Pa. Commw. Ct. | 2016Background
- Plaintiffs Daisy and Eileen Sobat experienced sewer backup at their Midland residence; plumber Wayne George excavated the lateral and found reverse flow and deterioration.
- George initially sought permission from Borough inspector Miller to install a grinder pump; Miller first told him grinder pumps were prohibited by ordinance, requiring further excavation to the borough main.
- After additional excavation showed the main was too high for gravity flow, Miller later approved the grinder pump, which was installed and inspected.
- Plaintiffs sued the Borough, its manager Kemp, and inspector Miller for negligent misrepresentation, seeking reimbursement for the second excavation and related street-opening costs.
- Defendants moved to dismiss on governmental immunity grounds, arguing the claim did not fit the PSTCA utility-service-facilities exception (no dangerous condition of Borough-owned facilities or prior notice).
- Trial court sustained the demurrer; Commonwealth Court affirmed, holding the claim arose from employees’ conduct (misrepresentation), not a dangerous condition of Borough-owned sewer facilities, and amendment would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the negligent-misrepresentation claim falls within PSTCA §8542(b)(5) (utility service facilities exception) | Sobat: the reverse-flow/sewer condition was a dangerous condition of the sewer facilities and Borough had notice; expenditures from the unneeded second excavation are property damages recoverable under the exception | Borough: injury resulted from defendants’ misrepresentation and employee conduct, not from a dangerous condition of Borough-owned sewer facilities; no allegation of prior notice; immunity bars claim | Held: Claim does not fit §8542(b)(5). The injury stems from negligent misrepresentation, not a dangerous condition of Borough-owned property; immunity applies. |
| Whether plaintiffs alleged "injury to person or property" sufficient to waive immunity | Sobat: costs of excavation and street repair are property damages caused by defendants’ misrepresentation | Borough: expenditures are economic losses tied to employees’ conduct, not physical injury to Borough property or person as required to waive immunity | Held: Costs are not tied to a dangerous condition of Borough facilities; waiver not established. |
| Whether the complaint adequately alleged notice to Borough of any dangerous condition | Sobat: Borough should have known via prior occupancy permit inspection, implying negligent inspection and notice | Borough: no alleged facts showing actual or constructive notice of a dangerous condition of Borough-owned facilities | Held: Plaintiffs failed to plead notice of a dangerous condition of Borough-owned facilities. |
| Whether trial court abused discretion by not allowing amendment and whether procedural due process was violated by defendants’ excess-page brief | Sobat: should have been allowed to amend; trial court’s allowance of appellees’ overlength brief violated due process | Borough: dismissal proper; procedural complaint undeveloped and waived | Held: Amendment would be futile because claim cannot be made to fit immunity exception; due-process argument waived for lack of developed argument. |
Key Cases Cited
- Dunkle v. Middleburg Municipal Authority, 842 A.2d 477 (Pa. Cmwlth. 2004) (introduces PSTCA immunity framework)
- Le-Nature’s, Inc. v. Latrobe Municipal Authority, 913 A.2d 988 (Pa. Cmwlth. 2006) (dangerous-condition exception inapplicable where injury originates in agency conduct rather than utility property)
- Metropolitan Edison Co. v. City of Reading, 937 A.2d 1173 (Pa. Cmwlth. 2007) (dangerous condition must originate in the agency’s property, not employee conduct)
- Metropolitan Edison Co. v. City of Reading, 125 A.3d 499 (Pa. Cmwlth. 2015) (threshold legal determination: injury must have origin or source in property itself to trigger utility-facilities exception)
- McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa. Cmwlth. 2008) (municipal liability for negligent construction/maintenance of sewer systems distinguished from no duty to provide sewerage system)