Lead Opinion
OPINION BY
Roger G. Gibellino (Gibellino) appeals the order of the Court of Common Pleas of York County (trial court) sustaining the preliminary objections of Manchester Township (Township)
I.
A.
Gibellino owns commercial property with improvements at 2474 North George Street in the Township. The Township owns and maintains sewer and storm lines
In December 2004, the Township sent Gibellino a letter stating that “Township is willing to install, at its expense, a manually closing backwater valve
Please be advised that while automatically closing backwater valves are available, the cost of this style [of] backwater valve is significantly higher than a manual style valve ... an automatic style valve, when closed, would prohibit any discharge of waste water from a plumbing fixture in your building.... [The Township] would be willing to install an automatic style valve on your building drain, however, because of [the Township’s] 1995 policy, you would be responsible for paying the cost difference between the two different types of valves.
(Id. at 1-2).
In June 2005, the Township sent Gibelli-no another letter stating:
[The Township] has received proposals for an automatic operating backwater valve[] and a manual backwater valve. The lowest proposal price was submitted by Bryan Mechanical. As per the attached proposal your portion of the costs would be $2,382.00 for the installation of the automatic operating backwater valve. If this cost is acceptable to you please notify me in writing so that a purchase order can be issued for this work.
[The Township] will still be paying for the installation of the manual closing backwater valve regardless of your decision.
(Complaint Exhibit B at 1).
Gibellino opted for both an automatic backwater valve and a manual backwater valve and both were installed by the Township’s contractor on his property. (Complaint at ¶¶ 9, 10). In September 2011, a surcharge of the Township’s sewage system occurred, both valves on Gibellino’s property failed, and raw sewage backed up onto the property causing extensive damage. (Id. at ¶¶ 11-12).
B.
Gibellino filed a complaint, an amended complaint and a second amended complaint in the trial court against the Township seeking damages of $124,927.88, plus the loss of $10,000.00 in rental income.
In Count II, Gibellino raised a negligence claim, alleging that the Township was negligent in maintaining its sanitary sewer and storm drainage systems which resulted in repeated surcharges causing damages such as his and that it took no meaningful measures to correct this dangerous condition. He alleged that because the Township had actual or constructive notice of this dangerous condition which created a reasonably foreseeable risk of the damage that he actually suffered, the Township is not immune from liability under Section 8542(b)(5) of the statute commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. § 8542(b)(5).
The Township filed preliminary objections in the nature of a demurrer to the Complaint. Regarding Count I, the Township claimed that under the “gist of the action” doctrine,
In November 2013, the trial court sustained the Township’s preliminary objections and dismissed Gibellino’s Complaint. The trial court first determined that the Township is immune because Gibellino’s allegations in Count I clearly sound in tort as they are based on the contractor’s negligence in failing to properly install the backwater valves, and “to allow recovery for [the] failure to perform work with proper care and competence but refuse to allow recovery for negligence would be counter-intuitive and would allow [Gibelli-no] to improperly circumvent the provisions of governmental immunity simply by couching his tort claim in the framework of a breach of contract action.” (11/18/13 Trial Court Opinion at 5). The trial court also found that Gibellino did not state a claim in Count II falling within tlie exception in Section 8542(b)(5) because it requires that “ ‘the allegedly dangerous condition must have derived or originated from, or had its source as the local agency’s realty,’” and the Township did not own the negligently-installed valves and they were not installed in its right-of way. (Id. at 8-10) (citation omitted). Gibellino then filed the instant appeal.
II.
A.
Gibellino first claims that the trial court erred in concluding that Count I was legally insufficient under the gist of the action doctrine and in recasting the claim raised therein as the negligent installation of the backwater valves to which the Township is immune under the Tort Claims Act. We do not agree.
In Schreck v. North Codorus Township,
B.
Gibellino also argues that the trial court erred in dismissing Count II because he sufficiently pleaded a claim falling within the Section 8542(b)(5) exception to immunity under the Tort Claims Act. In the Complaint, Gibellino specifically alleges that “[t]he Township was negligent in maintaining its sanitary sewer and storm drainage system that it owned” in that “in the years since 1995, [it] ha[s] taken no meaningful measures to stop the repeated sanitary sewer surcharges in times of high water flow, which sewage surcharges created a ‘dangerous condition’ within the meaning of 42 Pa.C.S. § 8542(b)(5).” (Complaint at ¶¶ 28, 29).
Generally, local agencies are immune from tort liability under Section 8541 of the Tort Claims Act:
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).
Metropolitan Edison Company v. Reading Area Water Authority,
To fall within the exception to immunity, Section 8542(b)(5)
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
*343 3. notice had been received for a sufficient period of time to enable the local agency to correct the dangerous condition.
Notice under this provision can be established by evidence of past incidents of flooding or breaks within the area. Medians v. Upper Merion Township,
As outlined above, Gibellino’s claims regarding the alleged dangerous condition of the Township’s sewer system was the inadequacy of the system to handle surcharges in times of high water flow and did not relate to the Township’s negligent construction or repair of the system thereby bringing the claim within the Section 8542(b)(5) exception to immunity under the Tort Claims Act. As a result, the trial court did not err in sustaining the Township’s preliminary objections and dismissing Gibellino’s complaint.
Accordingly, the trial court’s order is affirmed.
ORDER
AND NOW, this 23rd day of January, 2015, the order of the Court of Common Pleas of York County dated November 20, 2013, at 2013-SU-2664-84, is affirmed.
Notes
. Manchester Township is a Second Class Township. 121 The Pennsylvania Manual 6-96 (2013).
. See Section 1522 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, added by Act of November 9, 1995, P.L. 350, 53 P.S. § 66522 ("The board of supervisors may by ordinance make regulations respecting the installation of individual or community sewage treatment facilities under [the act known as the "Pennsylvania Sewage Facilities Act,” Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §§ 750.1-750.20a].”).
. "Surcharge” is defined as “an additional and usually excessive charge, load, burden, or supply." Webster’s Third New International Dictionary 2299 (1993).
4.There are two types of backwater valves: manual and automatic. Both types of valves provide emergency protection in the event of a surcharge by limiting sewage flow only in a downstream direction. (Complaint at ¶¶ 20, 21). A manual backwater valve must be physically closed by the property owner when a backflow occurs. (Complaint Exhibit A at 1-2). An automatic backwater valve eliminates the need to physically close the valve by sensing potentially problematic backflows. (Id.). In 1995, the Township instituted a policy of installing manually closing backwater valves on the building drains of its properties. (Complaint at ¶ 4).
. Specifically, the Complaint alleged:
21. The installation of the manual backwater valve by the Township through its contractor was defective and unworkman-like in that it was installed without its flapper mechanism, allowing the back flow of raw sewage into the Property causing the damages set forth above, which would otherwise have blocked the back flow had it been properly installed.
23. The installation of the automatic backwater valve by the Township through its contractor was defective and unwork-manlike in that it was not installed in an area with a sump pump, so that when ground water penetrated the pit it submerged the valve diaphragm and expansion chamber causing excessive pressure on the diaphragm which in turn caused the val[v]e to fail to open and allowed the back flow of raw sewage into the Property causing the damage set forth above.
(Complaint at ¶¶ 21, 23).
. Section 8542(b)(5) states, in pertinent part: (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 ... sewer ... 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.
.The Pennsylvania Superior Court has explained that the gist of the action doctrine:
is designed to maintain the conceptual distinction between breach of contract claims and tort claims. As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims. Th[is] Court explained the difference between contract claims and tort claims as follows:
[a]lthough they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.... To permit a promisee to sue his promisor in tort for breaches of contract*340 inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions.
eToll, Inc. v. Elias/Savion Advertising, Inc.,
. Section 8541 states, in relevant part, "Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of injury to ... property caused by any act of the local agency or an employee thereof or any other person.”
. As this Court has recently explained when considering whether an exception to immunity applies on preliminary objection:
We may affirm the granting of preliminary objections only when it is clear and free from doubt that, based on the facts pled, the plaintiff will be unable to prove facts legally sufficient to establish a right to relief. In evaluating the legal sufficiency of the challenged pleading, we accept as true all well-pled, material, and relevant facts alleged and every inference that is fairly deducible therefrom.
Gale v. City of Philadelphia,
. Section 2314(a) states in relevant part that "[ujness excluded or modified ..a warranty that the good shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....”
. But cf. Gall v. Allegheny Health Department,
. See also Bendas v. Upper Saucon Township,
. As indicated, this exception to immunity as set forth in the Tort Claims Act is:
A dangerous condition of the facilities of ... sewer ... 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. § 8542(b)(5).
. See also LaForm v. Bethlehem Township,
. See Reidy v. Lycoming County Water and Sewer Authority,
Concurrence in Part
CONCURRING and DISSENTING OPINION BY
I respectfully disagree with that part of the majority opinion which deals with Count I (Breach of Contract) of the second amended complaint. For the following reasons, I would reverse the trial court and overrule the preliminary objection which essentially raised governmental immunity to this claim.
Count I of the second amended complaint, together with the attached exhibits,
Read in a light most favorable to the non-moving party, the second amended complaint also contains the following aver-ments: Gibellino accepted the Township’s offer and paid the amount requested; the Township, a known principal, selected the valves and delegated its duty of installation to a contractor, who installed both valves; the “automatically” closing backwater valve was installed incorrectly, so that it did not automatically close and did not prohibit discharge of waste water into Gibellino’s commercial building; and, as a result of a storm in September, 2011, Gi-bellino suffered a discharge of Township waste water causing losses, including lost rental income.
When analyzing a claim against an immunity challenge under Section 8541 of the act commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa.C.S. § 8541, we recognize that the language of the statute conferring governmental immunity pertains to conduct causing injury to a person or property. Meyer v. Cmty. Coll. of Beaver Cnty.,
While Count I contains averments of injury to property, it is clear that the thrust of this claim is Gibellino’s bargained-for expectation that by paying a price for purchase and installation of an automatically closing backwater valve, he could prevent a repeat of the 2004 discharge of Township waste water into his business property. In short, the “automatically” closing backwater valve did not do what the parties expected, causing business losses to Gibellino. Thus, Gibellino’s claim in Count I sounds in contract, not in tort. As a result, the Tort Claims Act should not bar the claim.
Judge McCULLOUGH joins in this Concurring and Dissenting opinion.