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HomeMy WebLinkAbout96-3327 civilKELLY ALSEDEK, LAWRENCE : IN THE COURT OF COMMON PLEAS CRAFT and LINDA CRAFT, : OF CUMBERLAND COUNTY, JOSEPH FRY and JOAN FRY, : PENNSYLVANIA WAYNE GEHR, JOEL HOSLER : and PAM HOSLER, JAMES : MCCLEAN and JESSICA : MCCLEAN, KAREN RINEARD, : EMILY SCHWARTZ, TERRENCE : TRUSDELL and DANI JO TRUSDELL, : Plaintiffs : v. : NO. 96-3327 CIVIL TERM : THE BOROUGH OF CARLISLE : OF THE COMMONWEALTH OF PENNSYLVANIA, : Defendant : CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE SHEELY, P.J., HOFFER, J. AND HESS, J. I ORDER O~,THE COURT AND NOW, ~"'~/ 1998, upon consideration of Defendant's Motion for Partial SurrTmary Judgment and Plaintiffs' response thereto, it is hereby ordered that: (1) the Motion is denied as to Count II of Plaintiffs' amended complaint; (2) the Motion is granted as to Count I of Plaintiffs' amended complaint, to the extent that Plaintiffs assert a claim under 42 Pa. C.S.A. §8542(b)(1), "vehicle liability," which is dismissed with prejudice; NO. 96-3327 CIVIL TERM (3) the Court acknowledges Plaintiffs' and Defendant's agreement to incorporate Plaintiffs' Count III, Nuisance, into Plaintiffs' Count II, Negligence, at trial. By the Court, David A. Baric, Esquire O'Brien, Baric and Scherer 17 West South Street Carlisle, PA 17013 Attomey for the Plaintiffs David J. MacMain, Esquire Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 Attorney for the Defendant KELLY ALSEDEK, LAWRENCE : IN THE COURT OF COMMON PLEAS OF CRAFT and LINDA CRAFT : CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH FRY AND JOAN FRY : WAYNE GEHR, JOEL : HOSLER and PAM HOSLER : JAMES MCLEAN and JESSICA : MCLEAN, KAREN RINEARD : EMILY SCHWARTZ, : TERRENCE TRUSDELL and : DANI JO TRUSDELL, : Plaintiffs : : v. : No. 96-3327 CIVIL TERM : THE BOROUGH OF : CARLISLE OF THE : COMMONWEALTH OF : PENNSYLVANIA, : Defendant : CIVIL ACTION - LAW IN RE: DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT OPINION HOFFER, J.: This opinion addresses Defendant's motion for partial summary judgment. This case began during the "Blizzard" of 1996 when Plaintiffs' basements flooded causing severe damage to their property. Plaintiffs allege that the Borough of Carlisle placed large amounts of snow on a tract of land owned by the Borough which was in close proximity to Plaintiffs' residences. Plaintiffs claim that flooding resulted when unseasonably high temperatures caused the snow to melt and the land was unable to sustain the runoff due to the Borough's prior construction activities on the land. NO. 96-3327 CIVIL TERM Plaintiffs brought suit against the Borough of Carlisle claiming that the Borough's actions constituted negligence, nuisance, and a violation of the Storm Water Management Act. Defendant has now brought this motion for partial summary judgment alleging three separate grounds: (1) Plaintiffs' nuisance claim is not a separate and independent cause of action and should be incorporated into Plaintiffs' negligence claim~; (2) Plaintiffs do not set forth a claim under the Storm Water Management Act; and (3) Plaintiffs' claims do not fall within the vehicle exception of the Pennsylvania Tort Claims Act. Pennsylvania Rules of Civil Procedure provide the standard for summary' judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. ~ Although Defendant included this ground in its original claim, at oral argument both sides agreed to combine the nuisance and negligence claims. Therefore, this issue will not be dealt with in our opinion. 2 NO. 96-3327 CIVIL TERM Pa. R.Civ. P. 1035.2 (1997). After examining the facts in the light most favorable to the non-moving party, this court denies Defendant's motion for partial summary judgment concerning Plaintiffs' claim under the Storm Water Management Act and grants Defendant's motion for partial summary judgment concerning Plaintiffs' attempt to establish a claim under the "vehicle" liability exception to the Pennsylvania Tort Claims Act. Defendant first asserts that Plaintiffs' do not have a claim under the Storm Water Management Act ("Act"). This Act requires "any landowner or person engaged in the alteration or development of land which may affect storm water runoff characteristics [to] implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property." 32 Pa. C.S.A. §680.13 (1977). Plaintiffs claim that the Borough of Carlisle violated the Act by changing the topography of the land and then failing to ensure that the runoff of storm water was no greater after this change than before. Defendant, in its motion for summary judgment, states that Plaintiffs failed to allege that a county-adopted storm water plan existed. Defendant claims that this is a requirement under Bahor v. City of Pittsburgh, 158 Pa. Commw. 150, 631 A.2d 731 (1993). However, Defendant misreads the precedent as set forth in 3 NO. 96-3327 CIVIL TERM Bahor. In Bahor, the plaintiff claimed that the City of Pittsburgh violated the Storm Water Management Act by razing a house on the tract of land next to plaintiff's, causing plaintiff's property to flood. Although the jury found for the plaintiff, the trial court entered a judgment n.o.v. On appeal, the Commonwealth Court affirmed the judgment n.o.v, on the basis that plaintiff failed to provide evidence at trial that there was a storm water management plan and that the City of Pittsburgh had violated this plan. Id. Based upon Bahor, this is a simple evidentiary issue and the Plaintiffs have until trial to prove that there was a storm water management plan. The Commonwealth Court, in its opinion, did not find that the plaintiff had to allege the existence of a plan in its complaint. Instead, plaintiff could have proven this element during the tdal. Therefore, Plaintiffs, in the case at bar, did not have to allege the existence of a storm water plan prior to trial in order to withstand a motion for summary judgment. For these reasons, we find that Defendant's motion for partial summary judgment concerning Plaintiffs' Storm Water Management Act claim is denied. Defendant's second assertion is that Plaintiffs' negligence claim does not fall within the vehicle exception of the Pennsylvania Tort Claims ACt as Plaintiffs allege in their amended complaint. The Pennsylvania Tort Claims Act provides "no local 4 NO. 96-3327 CIVIL TERM agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency." 42 Pa. C.S.A. §8541 (1982). However, there are exceptions to this immunity. The Act states that "It]he following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: Vehicle Exception: the operation of any motor vehicle in the possession or control of the local agency." 42 Pa. C.S.A. §8542(b)(1) (1982). Defendant's motion for partial summary judgment alleges that the vehicle exception does not apply to this case and we agree. Plaintiffs claim that the vehicle exception applies to this case because the Borough used front-end loaders and dump trucks to remove and destroy the sod layer on the tract of land which caused the flooding to Plaintiffs' property. However, the Supreme Court of Pennsylvania recently discussed the vehicle exception and found that exceptions to governmental immunity were to be narrowly construed. Love v. City of Philadelphia, 513 Pa. 370, 543 A.2d 531,532 (1988). In Love, the court had to determine the breadth of the vehicle exception. The court looked at the statute and found that it did not define the word "operation." The court then relied on Black's Law Dictionary and found that "operate" meant to actually put something in motion. Furthermore, the court found, through legislative history, that the Legislature intended "operate" to mean something other than 5 NO. 96-3327 CIVIL TERM "maintenance and use." Id__~. at 533. Plaintiffs have cited the case of Cacchione v. Wieczorek, Pa. Commw. ,674 A.2d 773 (1996) to support their vehicle exception claim. In Cacchione, the plaintiffs were seeking damages from an incident when a parked truck owned by the City ddfted and crashed into the plaintiffs' home. The Commonwealth Court found that the Love holding was not controlling in this matter because the injury was caused by the movement of the entire truck. The court held that when the injury is caused by the movement of the entire vehicle, the vehicle is considered to be in operation for the purpose of the vehicle exception. Therefore, the court found that because the entire vehicle rolled into the plaintiffs' house, the truck was in operation at the time of the incident and the vehicle exception applied. Id. at 775-76. However, Plaintiffs' reliance on the Cacchione case is misplaced. Plaintiffs claim that the facts in Cacchione are more closely related to the case at bar than the facts in the Love case. Plaintiffs fail to realize that in Cacchione the movement of the truck was the direct cause of the injury. In the case at bar, Plaintiffs allege that the use of the vehicles changed the topography of the land. Plaintiffs then go on to claim that the Borough was negligent in repairing the land in order to prevent runoff. The court sees this allegation as too far removed from the injury to be 6 NO. 96-3327 CIVIL TERM included in the vehicle exception. Additionally, the Supreme Court of Pennsylvania specifically stated that the Legislature did not intend to include "use" of the machines in the vehicle exception. The incident pertaining to this case involved the use of the dump trucks and front-end loaders. Since "use" is not considered to be part of "operation," we therefore hold that the vehicle exception does not apply in this case. 7