Grey Fox Plaza v. Herbert, Rowland and Grubic, Inc.
344 C.D. 2016
| Pa. Commw. Ct. | Jan 30, 2017Background
- Plaintiffs (Grey Fox Plaza and owners) conveyed ~1 acre to Lycoming County Water & Sewer Authority for a water tower; Authority agreed to install water/sewer to plaintiffs’ lots.
- HRG (engineer) prepared a recorded subdivision plan showing Grey Fox Drive as a 50-foot public right-of-way continuing to a cul-de-sac; part of the street was unbuilt.
- Plaintiffs later signed a Grant of Pipeline and Construction Easement showing a water line crossing the unbuilt portion of Grey Fox Drive; Authority installed the line there in 2011.
- Plaintiffs sued Authority and HRG for trespass and negligence (including professional-negligence claims about the line’s depth/location that allegedly impede future road construction and development), seeking damages and removal/ejectment.
- Trial court sustained Authority’s preliminary objections based on governmental immunity and granted HRG summary judgment: trespass barred by dedication/consent; negligence claims dismissed for lack of expert proof. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Authority is immune under PSTCA | Krouse: immunity inapplicable because no valid right-of-way; real-property exception applies | Authority: utility facilities exception or immunity applies to claims involving agency-owned utilities | Held: Authority immune; only utility-facilities exception could apply but plaintiffs did not plead a "dangerous condition" as required |
| Whether the water line created a "dangerous condition" under §8542(b)(5) | Krouse: line’s depth/location endangers planned road and development, so exception applies | Authority: alleged impairment of future use is not a "dangerous condition" causing injury or risk covered by exception | Held: Not a dangerous condition; impairment of future use insufficient to waive immunity |
| Whether plaintiffs needed expert testimony to prove negligence claims against HRG | Krouse: expert testimony unnecessary for some claims or experts not retained for litigation | HRG: depth/location claims are professional-negligence issues requiring expert proof; plaintiffs failed to identify/produce experts/reports | Held: Trespass claims don’t require expert proof, but professional negligence claims (depth/location) required experts; failure to produce reports justified summary judgment |
| Whether unbuilt portion of Grey Fox Drive was dedicated / whether plaintiffs consented to installation | Krouse: did not intend to dedicate unbuilt portion; intent disputed | HRG: subdivision dedication language unambiguously dedicated all proposed streets; plaintiffs also signed easement and map showing line crossing unbuilt street | Held: Dedication unambiguous; plaintiffs’ subjective intent irrelevant. Independent consent/easement also bars trespass claim |
Key Cases Cited
- Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011) (standard of review on appeal from summary judgment/demurrer)
- Gale v. City of Philadelphia, 86 A.3d 318 (Pa. Cmwlth. 2014) (construction of immunity exceptions narrowly)
- Swift v. Department of Transportation, 937 A.2d 1162 (Pa. Cmwlth. 2007) (injunctive relief requiring affirmative action also subject to immunity)
- Dominijanni v. County of Allegheny, 531 A.2d 562 (Pa. Cmwlth. 1987) (utility-facilities exception can apply even where agency lacked legal easement)
- Merlini v. Gallitzin Water Authority, 980 A.2d 502 (Pa. 2009) (distinguishing trespass/ordinary negligence from professional negligence requiring expert proof)
- Powell v. Risser, 99 A.2d 454 (Pa. 1953) (expert testimony required where negligence is not within lay understanding)
- Morning Call, Inc. v. Bell Atlantic-Pennsylvania, Inc., 761 A.2d 139 (Pa. Super. 2000) (permission to install creates irrevocable license, barring later trespass claim)
- Rawlings v. Bucks County Water and Sewer Authority, 702 A.2d 583 (Pa. Cmwlth. 1997) (distinguishing encroachment/pumping station trespass that fit real-property exception)