4 Pa. Commw. 335 | Pa. Commw. Ct. | 1972
Lead Opinion
Opinion by
This is an appeal from an order of the Court of Common Pleas of Montgomery County by which Judge Honeyman, sitting in equity, ordered the Borough of West Oonshohocken
Appellees, the landowners, rely on a statute which directs that local political subdivisions be responsible for maintenance of local service highways. Act of May 29, 1915, P. L. 1108, §12, 36 P.S. §2391.12. Appellees alleged that improper construction and renovation of the local service highway abutting their property directly caused the collapse of the wall.
While it is true that responsibility for maintenance of local service highways has been delegated to the local political subdivisions, it is also true that the Borough Code specifically authorizes a borough to place primary responsibility for certain types of maintenance on the abutting property owners. Accordingly, Section 1801 of the Borough Code specifically authorizes methods by which a borough may exercise its responsibility of maintenance, while Section 12 of the Act of 1915, supra, generally delegates the responsibility of maintenance to the local political subdivisions. The abutting property owners are, by these statutes, made primarily responsible for maintenance and repair of those portions of property abutting the public highway. See Koerth v. Borough of Turtle Creek, 355 Pa. 121, 19 A. 2d (1916).
More importantly, we are of the opinion that the appellees have not met their burden of proving that negligent construction of the highway caused the collapse of the wall. This burden must be met by competent testimony on the issue of causation and cannot be sustained by conjecture or speculation. Carter v. United Novelty & Premium Co., 389 Pa. 198, 132 A. 2d 202 (1957).
Based upon this testimony, the court below made three findings of fact relating to the cause of the collapse: (1) “As a result of the widening of Moorehead Avenue and its use as an access ramp for the Schuylkill Expressway the volume of traffic was greatly in
The only finding by the court which related to the construction of Moorehead Avenue was that there was the failure to properly seal the roadside. While this is negligent conduct in the construction of the road, appellees’ testimony only considered it one of many contributing factors to the collapse. There is no basis upon which to conclude that the lack of sealer was a sine qua non to the damage. In fact, appellees placed primary emphasis on the fact that increased traffic caused vibration beyond the amounts which their property was engineered to withstand. Vibrational increases were not alleged to be the result of negligent action by the appellant. Under the findings of fact as found by the lower court based upon appellees’ testimony, there does not exist sufficient competent testimony which would sustain appellees’ burden relating appellant’s conduct to the collapse of the wall.
We agree with the court below that the statute, placing responsibility upon landowners to repair and maintain those portions abutting public highways, does not intend the landowners to be liable for damage caused by intentional or negligent actions by the State or
It is clear that the damage here was primarily, if not solely, caused by the failure of appellees to maintain their retaining wall so as to withstand the increased use of the public highway. It was their duty to do so. 53 P.S. §46801. Under these circumstances, the Borough should not have been ordered to restore the wall and pay appellees damages. The order of the Court of Common Pleas of Montgomery County is reversed.
This appeal is properly before this Court by virtue of Section 402(4) of the Appellate Court Jurisdiction Act, Act of July 81, 1970, No. 223, 17 P.S. §211.402(4) which reads in part: “The Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in . . . (4) All actions or proceedings . . . where there is drawn in question the application, interpretation or enforcement of (i) any act of the General Assembly regulating the affairs of political subdivisions, municipalities . . . acting in their official capacity. . . .” This case involves the interpretation of Section 1801 of the Borough Code, Act of February 1, 1966, P. L. (1965) 1656, 53 P.S. §46801.
Concurrence Opinion
Concurring Opinion by
I concur with the result reached by the majority solely because the property owner who originally constructed the retaining wall in question at a time when the roadway in question was a borough street has not proven as a matter of law that the borough was negligent in maintaining the roadway. The borough’s responsibility for maintenance arose when the roadway was designated a local service highway under the provisions of the Act of May 29, 1945, P. L. 1108, 36 P.S. §2391.1 et seq. “Local service highways constructed under authority of this act shall, upon completion of construction, be maintained by and at the expense of the political subdivision in which they are located.” 36 P.S. §2391.12.
The record is unclear and the property owner failed to present evidence sufficient to show that the borough was negligent in maintaining the roadway after such designation. The responsibility for constructing a local service highway or reconstructing an existing roadway so designated rests on the Commonwealth under Section 3 of the Act of 1945, 36 P.S. §2391.3. As I look
Such responsibility would fall on either the Commonwealth or the property owner depending on when and how the negligent construction occurred.