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HomeMy WebLinkAbout97-6274 CivilSTERLING K. MOLL and ESTHER M. MOLL, Plaintiffs V. BOROUGH OF WORMLEYSBURG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-6274 CIVIL IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, GUIDO, JJ. OPINION AND ORDER OF COURT The instant civil action is the latest chapter in a dispute between the parties that has been on going for more than thirty years. It centers around alleged harm to the plaintiffs' property resulting from storm water runoff. Currently before us is a motion for summary judgment filed by the defendant. For the reasons hereinafter set forth, the motion will be denied. Procedural Background. The pro se plaintiffs have brought this action pursuant to the Political Subdivision Tort Claims Act.~ It was commenced by complaint filed on November 13, 1997. Thereafter, plaintiffs filed a 98 paragraph handwritten amended complaint. Defendant filed an answer with new matter in which it asserted, inter alia, the defense of a "General and Final Release". On July 21, 1999 defendant filed a motion for partial summary judgment based primarily upon that release. On January 24, 2000, the Honorable J. Wesley Oler, Jr. issued an order granting the motion "with respect to acts or omissions of ~ 42 Pa. C.S.A. § 8541-8542. NO. 97-6274 CIVIL defendant occurring prior to July 31, 1987, the date of a general release executed by plaintiffs in favor of defendant"] The parties conducted discovery over the next two and one half years. After the close of discovery, defendant filed the motion for summary judgment which is currently before us. STANDARD OF REVIEW Pennsylvania Rule of Civil Procedure 1035.2 provides, in relevant part, as follows: Rule 1035.2 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. Pa. R.C.P. 1035.2. In determining whether to grant a motion for summary judgment we must view the record in the light most favorable to the non-moving party. Erte! v. Patriot News Co., 544 Pa. 93 674 A.2d 1038 (1966). Summary judgment may only be granted in cases that are clear and free from doubt. J.H. Ex Rel. Hoffman v. Pellak, 764 A.2d 64 (Pa. Super. 2000). See Opinion and Order of Court dated January 24, 2000. NO. 97-6274 CIVIL FACTUAL BACKGROUND The majority of plaintiffs' claims deal with allegations of wrongdoing that occurred, or damages that were sustained, prior to July 31, 1987. Since Judge Oler has already granted summary judgment in connection with those matters, we did not consider any evidence in connection therewith for purposes of the instant motion. We limited our review to the evidence as it pertains to wrongdoing and harm occurring after July 31, 1987. The following is a summary of that evidence viewed in the light most favorable to plaintiffs. Gary Berresford has been the borough manager and secretary of defendant since September of 1990.3 He had received no complaints from plaintiffs with regard to water damage to their property until "maybe in 95 or 96".4 In 1995 the defendant allowed a property owner to dump stone at the rear of his property in the right of way of North Third Street.5 Plaintiffs vigorously protested, claiming that the stone changed the elevation of the drainage easement and restricted the flow of storm water away from their property. In that same year, the defendant reconstructed the cartway of the 500 block of North Third Street.? In rebuilding the street, the blacktop was laid higher than the adjoining ground level and a storm water inlet was removed.8 As part of that project, ~ See "Plaintiffs' Objections to Defendant's Motion for Summary Judgment", Exhibit E, page 1. 4 See "Plaintiffs' Objections to Defendant's Motion for Summary Judgment", Exhibit E, page 4. s See Amended Complaint, paragraphs 42, 43 and 90. 6 See Amended Complaint, paragraph 42 and 90. Defendant's answer to paragraph 90 provides, inter alia, "To the extent, if any, that crushed stone at the rear of 516 North Second Street impeded the flow of water, that condition was corrected." 7 See Amended Complaint, paragraph 44. This fact was admitted by defendant in paragraph 44 of its answer. 8 See Amended Complaint, paragraphs 46 and 91. These allegations are admitted by defendant in paragraph 91 of its answer. NO. 97-6274 CIVIL defendant removed the downspout on plaintiffs' garage and replaced it in such a way that it no longer drains properly.9 As a result of the above actions, plaintiffs' garage is 10 sinking and they have suffered other damage to their property. DISCUSSION Defendant has not asserted either a lack of duty or governmental immunity in support of its motion for summary judgment. ~ Rather, it contends that plaintiffs have not offered any evidence of negligence or causation. The crux of its argument is two- fold. In the first instance, it contends that plaintiffs have failed to come forward with any evidence to support their claims. In the alternative, it argues that the issues involved are such that plaintiffs need expert testimony to prove their case. Defendant's first issue is easily dismissed. Viewing it in the light most favorable to the plaintiffs, the record establishes the following: · The parties have had a long standing dispute, and extensive litigation, over the inadequate drainage in and around plaintiffs' property. · They reached an agreement whereby defendant made improvements to the storm drainage system and plaintiffs executed a general release. · In 1995 defendant permitted and/or made certain alterations to the drainage easement and/or roadway. · Plaintiffs made no additional complaints about poor drainage or damage to their property until after those alterations were made and/or allowed by the defendant in 1995. 9 See Amended Complaint, paragraph 91. lo See Amended Complaint, Exhibit 1 which details the various damage to property. Exhibit A is a letter from defendant's engineer and questions the causation of the damage. However, plaintiffs are adamant that the damage occurred after the events of 1995 increased the accumulation of storm water on their property. ~ Section 8542(b)(3) of the Political Subdivision Tort Claims Act provides that a local mumcipality can be held liable for injury caused by the care, custody or control of real property in its possession (42 Pa. C.S.A. § 8542(b)(3). A storm water drainage system "is an artificial condition of... the real estate" which places the plaintiffs' claim within that Section 8542(b)(3). See Staffaroni v. City of Scranton, 620 A.2d 676, 679 (Pa. Commonwealth 1993). Furthermore, liability may be imposed if defendant "either a) diverted the water from its natural channel by artificial means, or b) unreasonably or unnecessarily increased the quantity or changed the quality of water discharged from (its) property." Fazio v. Fegley Oil Co., Inc., 714 A.2d 510 (Pa. Cmwlth. 1998) citing LaForm v. Bethlehem Township, 346 Pa. Super. 512, 499 A.2d 1373 (1985). NO. 97-6274 CIVIL · As part of the road resurfacing, the defendant removed a storm water inlet and laid the blacktop higher than adjoining ground level. It also removed and improperly replaced a downspout on plaintiffs' garage. · After the events in 1995, plaintiffs saw poorer drainage on their property and their garage began to sink. The above is certainly ample evidence to support plaintiffs' claims of negligence and causation. Defendant next argues that, absent expert testimony to prove negligence and causation, the evidence is insufficient to allow those issues to be submitted to a jury. It contends that "plaintiffs' allegations of negligence inherently involve issues of road construction, grade reduction, and surface water flow.''~2 These matters, so its argument goes, involve such special skills that plaintiffs cannot sustain the burden of proving their claims without expert testimony. The Commonwealth Court rejected a similar argument made by Penn DOT in Harrington, v. Commonwealth of Pa. Department of Transportation, 792 A.2d 669 (Pa. Commonwealth 2002). Penn DOT's position was articulated by the Court as follows: ·.. DOT argues that the trial court erred in relying upon the lay testimony of Harrington as a basis for its finding that the grade of Route 322 had been altered. It avers that this was a matter of competency of evidence as opposed to credibility and that expert testimony was necessary .... See Tennis v. Fedorwicz, 140 Pa. Cmwlth. 7, 592 A.2d 116 (1991) (expert testimony required where subject matter of inquiry involves special skills and training not common to the lay person.) 792 A.2d at 673. The Court was not persuaded, stating: ·.. we reject DOT's argument that Harrington's testimony could not constitute competent evidence to support her burden. From her first- hand observations as the person who has owned the property since 1960, she testified that, prior to the 1998 project, she had no problem Brief in Support of Defendant's Motion for Summary Judgment, p. 7. NO. 97-6274 CIVIL with water on her property. She stated that in May of 1998, DOT's contractor put inlets in for water at each end of her property. 792 A.2d at 674. Finally, it stated: Having carefully reviewed the evidence of record, we conclude that the trial court did not err in determining that Harrington presented sufficient evidence of a change in grade that directly resulted in the frequent flooding of her property. 792 A.2d at 675. Likewise, in the instant case, plaintiffs are competent to testify regarding their firsthand observations of the work done, the increase in flooding thereafter, and the damage to their property. For the reasons set forth above, we are satisfied that defendant's entitlement to summary judgment is neither clear nor free from doubt. Therefore, its motion will be denied. ORDER OF COURT AND NOW, this day of APRIL, 2003, for the reasons set forth in the accompanying opinion, Defendant's Motion for Summary Judgment is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Mr. and Mrs. Sterling Moll W. Darren Powell, Esquire :sld NO. 97-6274 CIVIL