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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


W. CHRISTOPHER GRIFFITH, PERSONAL       :     IN THE SUPERIOR COURT OF
REPRESENTATIVE OF THE ESTATES OF        :          PENNSYLVANIA
KIMBERY A. GRIFFITH, BRENNA C.          :
GRIFFITH AND MIKAELA E. GRIFFITH,       :
AND NICHOLAS SAFLIN, PERSONAL           :
REPRESENTATIVE OF THE ESTATE OF         :
MARY SAFLIN, DECEASED                   :
                                        :
           V.                           :
                                        :
CITY OF PITTSBURGH, PITTSBURGH          :     No. 241 WDA 2016
WATER AND SEWER AUTHORITY,              :
COUNTY OF ALLEGHENY, ALLEGHENY          :
COUNTY SANITARY AUTHORITY,              :
CHESTER ENGINEERS, INC.,                :
PENNSYLVANIA DEPARTMENT OF              :
TRANSPORTATION, COMMONWEALTH            :
OF PENNSYLVANIA AND CHRYSLER            :
GROUP, LLC                              :
                                        :
APPEAL OF: NICHOLAS SAFLIN              :


             Appeal from the Order Entered January 19, 2016
            In the Court of Common Pleas of Allegheny County
                  Civil Division at No(s): GD No. 13-2219

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                       FILED DECEMBER 9, 2016

     Appellant, Nicholas Saflin, Administrator of the Estate of his mother,

Mary Saflin, appeals from the December 17, 2013 Order1 sustaining the




1
  The December 17, 2013 Order became final and appealable on January 19,
2016, when the trial court entered an Order severing Appellant’s claims from
those of W. Christopher Griffith, and settling and discontinuing Appellant’s
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Preliminary Objections that Chester Engineers, Inc. (“Chester”) filed and

dismissing the Complaint with prejudice. After careful review, we affirm in

part, reverse in part, and remand with instructions.

      This action arose from the August 19, 2011 drowning deaths of

Appellant’s decedent and three other people, Kimberly, Brenna, and Mikaela

Griffith, as the result a flash flood on Washington Boulevard in Pittsburgh.

Appellant and the personal representative of the Griffiths filed an eight count

Complaint in negligence against Chester, Chrysler Group, LLC, and various

state and local governmental agencies.

      In his Complaint against Chester, Appellant alleged that for more than

ten years, Chester acted as consulting engineer and construction manager

for the Pittsburgh Water and Sewer Authority and for more than twenty

years as the consulting engineer and construction manager for the Allegheny

County Sanitary Authority (collectively referred to as the “Governmental

Agencies”). Complaint, 2/1/13, at ¶¶ 47, 96. Appellant further alleged that

Chester negligently breached its consulting engineering contracts with the

Governmental Agencies by failing to provide reports outlining necessary

maintenance and repairs to the sewer and water systems in the City of

Pittsburgh. This failure, Appellant concluded, caused the death of Appellant’s

decedent. Id. at ¶¶ 97.



claims against all Governmental Agency defendants.             See Pa.R.A.P.
341(b)(1).



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     In particular, Appellant alleged that Chester owed a duty to the

Appellant’s decedent as a result of two Trust Indentures dated July 1, 1997,

and October 15, 1993, that the Governmental Agencies entered into with

PNC (“Trust Indentures”). The Trust Indentures focused on the parties’

responsibilities after the issuance of municipal bonds to finance the

construction and maintenance of Pittsburgh’s water and sewer system.

Included in the Trust Indentures is the obligation of the Governmental

Agencies to retain a consulting engineer to inspect and maintain the water

and sewer system at issue. Id. at ¶ 48.

     Although Chester was not a party to the Trust Indentures, Appellant

averred in the Complaint that the Trust Indentures imposed upon Chester

the duty to inspect and maintain the water and sewer system at issue. Id.

at ¶ 99; see also Trust Indenture, 7/1/97, at Section 7.11; Trust Indenture,

10/15/93, at Section 7.11.

     Appellant    further    averred     that   Chester   failed   to   make

recommendations to the Governmental Agencies in its annual reports

regarding “measures that should be taken [ ] to protect against the life-

threatening condition documented by the 60-year history of dangerous

flooding on Washington Boulevard.” Complaint at ¶ 100.

      Chester filed Preliminary Objections on the grounds that it owed no

duty to Appellant’s decedent, and even if Chester owed a duty to the




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Appellant’s decedent, the alleged breach of such duty did not cause the

flooding.

      On December 17, 2013, the trial court sustained Chester’s Preliminary

Objections and dismissed all claims in the Complaint against Chester. Rather

than providing the Appellant with the opportunity to amend the allegations

against Chester in the Complaint, the trial court dismissed the claims against

Chester with prejudice.

      The trial court sustained the Preliminary Objections generally for two

reasons. First, the trial court concluded that the Appellant failed to allege

sufficient facts to establish that Chester had a “duty” to the Appellant. In

particular, the trial court found that since it was only the Governmental

Agencies, and not Chester, who were parties to the Trust Indentures, the

Trust Indentures did not impose a “duty” on Chester to provide information

to the Governmental Agencies about the maintenance of the water and

sewer systems.    Trial Ct. Op., 12/17/2013, at 10-12.    The trial court also

concluded that case law imposing a duty on professional service providers to

third parties was inapplicable to the instant facts.

      The trial court also sustained the Preliminary Objections because it

found that Appellant could not establish causation. It reasoned that, even if

Chester had a duty to report the problems about the water and sewer

systems in its reports, the Governmental Agencies “never relied upon

Chester’s failure to offer advice and recommendations.” Id. at 11. The trial



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court based its conclusion upon Appellant’s Complaint that “painstakingly

describe[d] a history of notice and neglect with respect to dangerous

conditions on Washington Boulevard on the part of the [Governmental

Agencies.]” Id.

      On January 19, 2016, the trial court entered an Order severing

Appellant’s claims from those of the personal representative of the Griffiths.

The Order also settled and discontinued Appellant’s claims against all

Government Agency defendants. Consequently, the December 17, 2013

Order sustaining Chester’s Preliminary Objections and dismissing with

prejudice the claims in the Complaint against Chester—the only outstanding

order in this case—became final. Appellant timely appealed.

Issue on Appeal

      Appellant presents the following issue on appeal: “[W]hether [the trial

court] erred in law or abused his discretion in sustaining Chester’s

demurrer.” Appellant’s Brief at vi.

Standard of Review

      A trial court properly sustains preliminary objections in the nature of a

demurrer when the Complaint is legally insufficient. Hill v. Olfat, 85 A.3d

540, 547 (Pa. Super. 2014).           The court must resolve the preliminary

objections “solely on the basis of the pleadings; no testimony or other

evidence outside of the complaint may be considered[.]” Id. “All material




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facts set forth in the pleading and all inferences reasonably deducible

therefrom must be admitted as true.” Id.

      This Court’s standard of review of orders sustaining Preliminary

Objections in the nature of a demurrer is well-settled.

         In determining whether the trial court properly sustained
         preliminary objections, the appellate court must examine
         the averments in the complaint, together with the
         documents and exhibits attached thereto, in order to
         evaluate the sufficiency of the facts averred. The impetus
         of our inquiry is to determine the legal sufficiency of the
         complaint and whether the pleading would permit recovery
         if ultimately proven. This Court will reverse the trial
         court's decision regarding preliminary objections only
         where there has been an error of law or abuse of
         discretion. When sustaining the trial court's ruling will
         result in the denial of claim or dismissal of suit, preliminary
         objections will be sustained only where the case is free and
         clear of doubt.

Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100 (Pa. Super. 2016)

(citation omitted).   The trial court’s decision to grant or deny a demurrer

involves a matter of law; therefore, “our scope of review is plenary, allowing

us to review the whole record.” Mistick, Inc. v. Northwestern Nat. Cas.

Co., 806 A.2d 39, 41 (Pa. Super. 2002) (citation omitted).

      Moreover, in cases such as this, where the trial court sustains the

Preliminary Objections and dismisses the Complaint with prejudice, we must

also review whether the trial court abused its discretion by not permitting

the plaintiff to amend the Complaint and cure the deficiencies that the trial

court found in the Preliminary Objections. See Hill, 85 A.3d at 557. Such a

review involves a determination of whether there is a “reasonable


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possibility” that the plaintiff can allege facts that cure the deficiency in the

Complaint:

         Even where a trial court sustains preliminary objections on
         their merits, it is generally an abuse of discretion to
         dismiss a complaint without leave to amend. There
         may, of course, be cases where it is clear that amendment
         is impossible and where to extend leave to amend would
         be futile. However, the right to amend should not be
         withheld where there is some reasonable possibility
         that amendment can be accomplished successfully. In the
         event a demurrer is sustained because a complaint is
         defective in stating a cause of action, if it is evident that
         the pleading can be cured by amendment, a court may not
         enter a final judgment, but must give the pleader the
         opportunity file an amended pleading.

Id. (citation omitted, emphasis in original and added).

Basis for Sustaining Preliminary Objections

      In this case, the trial court sustained the Preliminary Objections

because the Appellant failed to allege properly that Chester had a “duty” to

the Appellant’s decedent and that Chester “caused” the death of the

Appellant’s decedent.

      Preliminary Objections Regarding Duty

      We agree with the trial court that Appellant failed to allege in the

Complaint sufficient facts demonstrating that Chester owed a duty to

Appellant. We disagree, however, with the trial court’s decision to dismiss

the claims against Chester with prejudice. We find that there is a

“reasonable possibility” that Appellant can plead facts that could establish




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that Chester had a duty to Appellant’s decedent and the trial court should

have permitted Appellant to amend the Complaint.

      Our Supreme Court has held that, “where a party to a contract

assumes a duty to the other party to the contract, and it is foreseeable that

a breach of that duty will cause injury to some third person not a party to

the contract, the contracting party owes a duty to all those falling within the

foreseeable orbit of risk of harm.”   Doyle v. South Pittsburgh Water Co.,

199 A.2d 875, 878 (Pa. 1964); see also Evans v. Otis Elevator Co., 168

A2d 573 (Pa. 1961) (holding the law imposes a duty on third persons who

are not a party to a contract, but the very nature of the contractual

undertaking places himself in a position to perform the contract in such a

manner that strangers to the contract will not be injured).

      Although the trial court cited to these cases, it failed in its Opinion to

analyze their applicability in determining whether the more than ten-year

arrangement between Chester and the Governmental Agencies, in which

Chester provided professional services to them, imposed a duty on Chester

to third parties injured as a result of the allegedly negligent provision of

professional services.   Rather, the trial court appears to distinguish these

cases to find that Appellant cannot establish causation.

      We agree with the trial court that the claims against Chester in the

Complaint are not legally sufficient to establish that Chester owed a duty to

Appellant.   We find, however, a “reasonable possibility” that agreement



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between Chester and the Governmental Agencies was memorialized in a

contract, and the terms of such contract could create a duty to third parties,

such as Appellant’s decedent, who was injured by the allegedly negligent

provision of such professional services.       Since there is a “reasonable

possibility,” we conclude that the trial court erred in not permitting Appellant

to amend the Complaint to assert such claims and, thus, plead a duty under

the principles set forth in Evans, supra.

      Preliminary Objections Regarding Causation

      Appellant also argues that the trial court erred in sustaining Chester’s

Preliminary Objections based upon the court’s conclusion that Appellant

failed to sufficiently plead a causal connection between Chester’s failure to

warn the Governmental Agencies of the presence of a hazardous condition

and the death of Appellant’s decedent.      Appellant’s Brief at 7.   We agree

with Appellant. This issue raises a question of fact; therefore, the trial court

must make all inferences in the allegations in the Complaint in favor of the

Plaintiff. Concluding that the trial court did not view the allegations in the

Complaint in Appellant’s favor, we reverse the trial court on its decision to

sustain this Preliminary Objection.

      This Court has held that “[w]hether a defendant's conduct has been a

substantial factor in causing plaintiff's harm is ordinarily a question of fact

for the jury.” Rabutino v. Freedom State Realty Co., Inc., 809 A.2d 933,

941 (Pa. Super. 2002) (citation and quotation marks omitted).



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       In concluding that Appellant failed to allege causation, the trial court

took notice of Appellant’s “painstaking[] descri[ption] of a history of notice

and neglect with respect to conditions on Washington Boulevard.” Trial Ct.

Op. at 11. From this, the trial court concluded that Chester could not have

caused the death of Appellant’s decedent because the Governmental

Agencies “were fully aware of dangerous conditions that they chose not to

abate” and they would not have relied upon any report that Chester

provided. Trial Ct. Op. at 11-12.

       The inference that the Governmental Agencies would not have relied

upon Chester’s reports is not only an inference against the allegations in

the Complaint, but is also a factual finding.        Since the trial court, in

reviewing Preliminary Objections, must make all inferences from the

allegations in favor of the plaintiff, the trial court erred in making an

inference against Appellant. Moreover, the issue of the degree to which, if

at   all,   the   Governmental   Agencies   would   have   relied   on   Chester’s

recommendations is a question of fact and may only be determined after

discovery. We, therefore, find that the trial court erred as a matter of law in

finding the Complaint legally insufficient as to causation. Thus, we reverse

the trial court’s decision sustaining this Preliminary Objection.

        For the foregoing reasons, we affirm the Order in part, reverse the

Order in part, and remand with instructions to permit the Appellant to

amend the claims in the Complaint against Chester.



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      Order affirmed in part and reversed in part.   Case remanded with

instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2016




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