Gibellino v. Manchester Township
109 A.3d 336
| Pa. Commw. Ct. | 2015Background
- Plaintiff Roger G. Gibellino owns commercial property connected to Manchester Township’s sewer/storm system; prior 2004 surcharge caused damage.
- Township offered to install a manual backwater valve for free and an automatic valve for an additional fee; Gibellino accepted and both valves were installed by the Township’s contractor.
- In September 2011 another surcharge occurred; both valves allegedly failed and raw sewage damaged Gibellino’s property.
- Gibellino sued the Township (second amended complaint) for breach of contract (Count I) and negligence under the Tort Claims Act exception for utility facilities (Count II), seeking ~ $125,000 plus lost rental income.
- Township filed preliminary objections asserting (1) Count I is really a tort claim barred by governmental immunity under the Tort Claims Act and (2) Count II fails because the alleged dangerous condition was the inadequacy of the system (not negligent construction/repair) and the valves were not Township-owned facilities within the statutory exception.
- Trial court sustained the objections and dismissed the complaint; this Court affirmed as to both counts (majority), with a concurrence/dissent arguing Count I sounded in contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I (breach of contract/implied warranty) is barred by governmental immunity because it actually sounds in tort (gist of the action). | Gibellino: claim enforces bargained-for expectation that an automatic valve would prevent recurrence; claim sounds in contract. | Township: claim really alleges negligent installation by contractor and thus is a tort disguised as contract, barred by Tort Claims Act immunity. | Court: Count I sounds in tort (negligent installation/service) under gist doctrine and is barred by immunity; dismissal affirmed. |
| Whether Count II (negligence under 42 Pa.C.S. §8542(b)(5)) sufficiently pleaded an exception to governmental immunity for dangerous conditions of sewer facilities. | Gibellino: Township negligently maintained its sewer system, had notice of repeated surcharges since 1995, creating a dangerous condition within the statutory exception. | Township: The injury resulted from inadequacy of the system to handle surcharges (not negligent construction/repair) and the allegedly defective valves were not Township-owned facilities in rights-of-way; exception does not apply. | Court: Allegations showed system inadequacy, not negligent construction/repair of Township-owned facilities; exception not met — dismissal affirmed. |
Key Cases Cited
- Schreck v. North Codorus Township, 559 A.2d 1018 (Pa. Cmwlth. 1989) (claims sounding in negligent provision of services cannot be recast as implied-warranty contract claims to avoid Tort Claims Act immunity)
- Metropolitan Edison Co. v. Reading Area Water Authority, 937 A.2d 1173 (Pa. Cmwlth. 2007) (elements for a cause of action against a local agency under the Tort Claims Act and exceptions analysis)
- eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10 (Pa. Super. 2002) (gist of the action doctrine distinction between contract and tort claims)
- McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa. Cmwlth. 2008) (local agency not liable for inadequacy of sewer system; liability for negligent construction/repair only)