             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daisy Sobat and Eileen Sobat             :
                                         :   No. 1843 C.D. 2015
             v.                          :
                                         :   Argued: April 11, 2016
The Borough of Midland,                  :
A Municipal Corporation;                 :
Diane Kemp, Manager of the               :
Borough of Midland and                   :
Chad Miller, Building/Sewer              :
Inspector of the Borough of Midland      :
                                         :
Appeal of: Eileen Sobat                  :


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                          FILED: June 9, 2016


             Eileen Sobat (Sobat) appeals from the August 24, 2015 order of the
Court of Common Pleas of Beaver County (trial court) sustaining the preliminary
objections in the nature of a demurrer filed by the Borough of Midland (Borough);
Diane Kemp (Kemp), the Borough’s manager; and Chad Miller (Miller), the
Borough’s building/sewer inspector, (together, the Borough defendants), resulting
in the dismissal of her complaint. For the reasons that follow, we affirm.


                          Facts and Procedural History
             On April 23, 2015, Daisy Sobat and her daughter, Eileen Sobat,
(together, the Sobats), filed a Complaint against the Borough defendants for a
single count of negligent misrepresentation. At the time of the pertinent events,
Daisy Sobat owned a residence at 1284 Ohio Avenue, Midland, Beaver County,
Pennsylvania, where the Sobats have resided since 1967. In October of 2014, the
Sobats began to experience sewer problems inside their home “causing improper
drainage and/or back up of their sewage lateral line.” (Reproduced Record (R.R.)
at 7a.) The Sobats hired a plumber, Wayne George (George), to investigate and
repair the “sewage lateral draining issue.”      Id.   After investigation, George
determined that portions of the sewage lateral line inside the residence, as well as
its exterior, required replacement due to “age and deterioration.” Id. George
concluded that the sewage lateral presented a danger to the Sobats’ health which
required immediate attention. George excavated the exterior lateral line for a
distance of twenty-five lineal feet, from where the line entered the house to the
sidewalk abutting Ohio Avenue (first excavation).        At this juncture, George
determined that the sewer lateral had reverse flow and that gravity flow from the
house would be impossible. (R.R. at 6a-7a.)
            George requested permission from Miller to install a sewage grinder
pump outside of the residence foundation which “would fully correct” the reverse
gravity flow problems. (R.R. at 7a.) Miller left the property for a short while to
allegedly consult with Kemp. Upon his return, Miller advised George that “sewer
grinder pumps were not permitted in the Borough of Midland by Borough
ordinance.” (R.R. at 8a.) Miller informed George that “a sewage grinder pump
could not be installed,” and that George would be required to correct the reverse
flow problem. (R.R. at 8a.) Thus, the lateral excavation had to continue from the
sidewalk to beyond the middle of Ohio Avenue, where the main line was located.
George protested that the additional excavation was unnecessary and costly.



                                         2
Miller advised George again that grinder pumps were not permitted by ordinance,
that the same was confirmed by Kemp, and that additional excavation was
required. (R.R. at 8a.)
             After obtaining a permit to open the street, George performed the
additional excavation to the main line, a distance of twenty-five lineal feet (second
excavation), and George determined that the main line was three inches too high to
obtain gravity flow from the residence. Miller was called to the site again to
inspect and review the lateral excavation and the basement elevation of the lateral
to the main line. Miller confirmed that positive gravity flow from the residence to
the main line would not be possible. Miller left the property for a short while to
allegedly consult with Kemp. Upon his return, Miller informed George that a
sewage grinder pump could be installed. After obtaining approval of the Borough
engineer the following day, George installed the sewage grinder pump and a new
sewer line, which was inspected by Miller. (R.R. at 8a-9a.)
             In their claim for negligent misrepresentation, the Sobats averred that
the Borough defendants “were under a public or other duty to provide true and
correct information to the [Sobats] regarding [the] Borough’s requirements in
repairing or replacing the [Sobats’] sewer service lateral.” (R.R. at 11a.) The
Sobats alleged that the Borough defendants’ representation that grinder pumps
were prohibited by ordinance was false and that had correct information been
supplied at that time, the Sobats would not have been required to perform the
second excavation at great expense. The Sobats sought damages for expenditures
incurred to open the street, excavate to the main line, backfill the portion
excavated, and repair the asphalt on Ohio Avenue – all of which relate to the
second excavation.        They averred that the Borough defendants have waived



                                         3
governmental immunity for utility service facilities contained in Section
8542(b)(5) of the Judicial Code, commonly referred to as the Political Subdivision
Tort Claims Act (PSTCA), 42 Pa.C.S. §8542(b)(5), “as this matter concerns a
dangerous condition of a sewage system owned by the Borough.” (R.R. at 9a-13a.)
              The Borough defendants filed preliminary objections in the nature of a
demurrer to the Sobats’ Complaint. The Borough defendants contended that they
were entitled to governmental immunity pursuant to the PSTCA, and that the
complaint failed to allege facts that would bring the claim within the utility service
facilities exception to governmental immunity. They argued that the Sobats did
not aver any injury sustained to property or person, which is a threshold
requirement for any waiver of immunity. Further, the Borough defendants asserted
that the claim did not fall within the utility service facilities exception to immunity
because the complaint alleged neither a dangerous condition of the sewer system
owned by the Borough nor that the Borough had prior notice of the existence of
any dangerous condition.1
              In opposition to the preliminary objections, the Sobats argued that
expenditures were incurred due to the second, unnecessary excavation of the
lateral, which did constitute an injury to person or property. The Sobats also
contended that a dangerous condition was alleged, i.e., that of the reverse flow
creating sewer backup and drainage issues. The Sobats argued that the main line

       1
         The Borough defendants also contended that the complaint should be dismissed due to
the economic loss doctrine. The economic loss doctrine provides that no cause of action exists
for negligence that results solely in economic damages unaccompanied by physical injury or
property damages. Excavation Technologies, Inc. v. Columbia Gas Co. of Pennsylvania, 985
A.2d 840, 841 n.3 (Pa. 2009).




                                              4
was three inches too high and that a positive gravity flow could never have been
achieved at the residence. While not pled, the Sobats countered that the Borough
defendants had notice of the reverse flow condition because an occupancy permit
must have been issued for the residence, which would have required inspection
from a Borough representative. The claim is that an occupancy permit should not
have been issued because the three-inch differential at the point of connection
would not have passed inspection and, therefore, a negligent inspection must have
been performed. This, argued the Sobats, gave the Borough defendants knowledge
of the dangerous condition. The Sobats contended that questions of fact existed as
to the details of the condition, whether the condition was dangerous, and whether
the Borough had notice of the condition, all of which precluded dismissal of the
complaint on preliminary objections.
            By order dated August 24, 2015, the trial court sustained the Borough
defendants’ preliminary objections and dismissed the complaint. (R.R. at 88a.)
The trial court noted that the complaint does not allege a dangerous condition of
the sewer line or how the Borough’s sewer line, in and of itself, constituted a
dangerous condition. The court determined that the complaint merely alleged the
Borough defendants’ negligent misrepresentation as to the installation of a grinder
pump and that the Sobats’ expenses were not caused by a dangerous condition of
the sewer line itself. Further, the court concluded that the claim for additional
expenses incurred due to the excavation work “[did] not constitute ‘damages on
account of an injury to a person or property.’” (R.R. at 87a.) Finally, the trial
court determined that no allegation was made that the Borough defendants had
notice or should be charged with notice of the dangerous condition at a sufficient
time prior to the event to have taken measures to protect against the dangerous



                                        5
condition. Thus, the trial court concluded that the Sobats’ claim did not fall under
the immunity waiver for utility service facilities and, therefore, was barred by
governmental immunity.2 (R.R. at 83a-88a.)
                 Eileen Sobat3 filed the instant appeal4 and contends that the trial court
erred in sustaining the Borough defendants’ preliminary objections because she
sufficiently alleged: (1) the existence of a dangerous condition of the sewer line;
(2) that expenditures for the unnecessary work on the lateral due to the Borough
defendants’ insistence is an “injury or damage” allowing recovery for the
Borough’s negligent misrepresentation; and (3) that the condition of the sewage


       2
          The court resolved the preliminary objections on the inapplicability of the utility service
facilities exception; therefore, the court did not reach the Borough defendants’ alternative
argument that Sobat’s claim was barred by the economic loss doctrine. The economic loss
doctrine is not raised in this appeal.

       3
           Daisy Sobat did not appeal the trial court’s order.

       4
          When ruling on whether preliminary objections in the nature of a demurrer were
properly sustained, our standard of review is de novo and the scope of review is plenary. Gale v.
City of Philadelphia, 86 A.3d 318, 319 n.1 (Pa. Cmwlth. 2014). This Court has previously held
that:

                 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.

Gibellino v. Manchester Township, 109 A.3d 336, 343 (Pa. Cmwlth. 2015) (quoting Gale, 86
A.3d at 319 n.2). The trial court’s decision will be reversed only where there is an error of law
or an abuse of discretion. Le-Nature’s, Inc. v. Latrobe Municipal Authority, 913 A.2d 988, 991
n.3 (Pa. Cmwlth. 2006).




                                                   6
lateral as it attached to the main line of the Borough sewage system is sufficient to
establish a reasonably foreseeable risk of injury of which the Borough defendants
had actual or constructive knowledge.
              Further, Sobat asserts that the trial court erred and violated her
procedural due process rights by permitting the Borough defendants to file
preliminary objections and a brief in excess of page limitations set forth by local
rule.5 Sobat contends that the Borough defendants did not establish “cause shown”
as required by the rule. Sobat argues that the noncompliance with the rule should
warrant a sanction.
              In response, the Borough defendants maintain that the trial court did
not err in sustaining their preliminary objections and dismissing the complaint
because Sobat’s claim is barred by governmental immunity.                       The Borough
defendants contend that Sobat failed to plead damages resulting from injury to
person or property as required to overcome governmental immunity pursuant to 42
Pa.C.S. §8542(a). Further, the Borough defendants argue that Sobat’s negligent
misrepresentation claim cannot proceed under the utility service facilities
exception to immunity because she failed to plead the existence of a dangerous




       5
        Beaver County Local Rule 1028(c), entitled “Procedures for Disposition of Preliminary
Objections,” provides:

              Except as otherwise permitted by Order of Court for cause shown
              or by agreement of the parties by filed stipulation, Preliminary
              Objections shall not exceed five (5) pages in length and supporting
              briefs as well as briefs in opposition shall not exceed ten pages in
              length.




                                               7
condition of a sanitary sewer facility owned by the Borough and that the Borough
defendants had prior notice of the alleged dangerous condition.6


                                            Discussion
               Pursuant to sections 8541 and 8542 of the PSTCA, a local agency is
immune from liability for damages on account of an injury to a person or property
caused by its own acts or the acts of its employees unless the injury falls into one
of the enumerated exceptions to governmental immunity. 42 Pa.C.S. §§8541-
8542; see also Dunkle v. Middleburg Municipal Authority, 842 A.2d 477, 479 (Pa.
Cmwlth. 2004). To qualify for an exception, a plaintiff must prove that: (1) the
damages would be recoverable under common law or a statute against a person
unprotected by immunity; and (2) the negligent act of the local agency or its

       6
         In footnote 3 of their brief, the Borough defendants move this Court “to dismiss and
quash this appeal for the failure to join an indispensable party, i.e., Daisy Sobat.” (Brief for
Appellees, at 9 n.3.) Specifically, they state:

               To the extent that this Court deems Daisy Sobat indispensable to
               this appeal where it was alleged in the Complaint that the
               “Plaintiffs” incurred the expense at issue and thus implicitly were
               aggrieved (R. 12a-13a), this appeal should be dismissed and
               quashed for the failure to join an indispensable party as the Notice
               of Appeal (R. 101a-104a) filed by Plaintiff Eileen Sobat only does
               not serve to function as an appeal by Daisy Sobat.

Id. at 9 n.3. We do not deem Daisy Sobat’s interest indispensable to this appeal such that no
decree can be made without impairing her rights. See In re Silverman, 90 A.3d 771, 779 (Pa.
Cmwlth. 2014); see also HYK Construction Company, Inc. v. Smithfield Township, 8 A.3d 1009,
1015 (Pa. Cmwlth. 2010). However, Daisy Sobat is a party to this appeal and is deemed an
appellee pursuant to Pa.R.A.P. 908 (“[a]ll parties to the matter in the court from whose order the
appeal is taken shall be deemed parties in the appellate court . . . [and a]ll parties in the appellate
court other than the appellant shall be appellees”). See Weston v. Northampton Personal Care,
Inc., 62 A.3d 947, 954 (Pa. Super. 2013). We note that Sobat’s counsel informed the Court at
oral argument that Daisy Sobat passed away on June 26, 2015.



                                                  8
employees that caused the injury falls within one of the limited exceptions to
immunity. 42 Pa.C.S. §8542(a).
             Section 8542(b)(5) of the PSTCA, the utility service facilities
exception, provides that a local agency may be held liable for:

             A dangerous condition of the facilities of . . . sewer . . .
             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) (emphasis added); see also McCarthy v. City of Bethlehem,
962 A.2d 1276, 1278-79 (Pa. Cmwlth. 2008). Because of the expressed legislative
intent to insulate political subdivisions from tort liability, the exceptions to
immunity are strictly construed. Metropolitan Edison Company v. Reading Area
Water Authority, 937 A.2d 1173, 1175 (Pa. Cmwlth. 2007).
             Municipalities are under no common law duty to provide a sewerage
system. Yulis v. Borough of Ebensburg, 128 A.2d 118, 120 (Pa. Super. 1956).
Therefore, a municipality cannot be held liable for damages resulting from an
inadequate sewer system. Id. However, municipalities will be liable for injuries
resulting from negligent construction or maintenance of the system. McCarthy,
962 A.2d at 1279-80; see Yulis, 128 A.2d at 120 (“[municipalities] may be called
upon to answer for injuries resulting from negligence in the actual work of
construction or for failure to keep the work in repair after it is completed”).




                                           9
             Although the issue of what constitutes a dangerous condition is a
question of fact for the jury, whether an action is barred by immunity is purely a
question of law. Le-Nature’s, Inc. In order for liability to be imposed under
Section 8542(b)(5), a strictly legal determination must be made in the first instance
that the injury was caused by a condition of the property itself, which has its origin
or source in the property. Metropolitan Edison Company v. City of Reading, 125
A.3d 499 (Pa. Cmwlth. 2015).
             In the instant case, Sobat’s claim against the Borough is founded upon
the alleged negligent misrepresentation of the Borough, through its employees, that
a grinder pump could not be installed on the property because it was prohibited by
ordinance. Sobat contends that such information was false and the Borough had a
public duty to convey correct information regarding its ordinances. Her claim is
that, had the Borough defendants conveyed correct information regarding the
grinder pump in the first instance, the second excavation into the street would not
have been necessary.
             Notably, Sobat is not alleging that any injuries were sustained, and no
damages are sought, as to the first excavation or due to the sewage problems
caused by the reverse flow. Further, no damages are sought for the grinder pump
itself.   Rather, Sobat contends that, had the negligent misrepresentation not
occurred, a grinder pump would have been installed earlier and she would not have
had to perform the second excavation. Thus, Sobat seeks damages in the nature of
reimbursement of expenses related to that second excavation, which includes those
pertaining to the opening and resurfacing of the street.




                                         10
                               Condition of Property Itself
                Before we can analyze whether the complaint sufficiently avers a
claim that falls within the utility service facilities exception, the Court must make a
threshold legal determination that Sobat’s injury was caused by a condition of the
property itself – that it had its origin or source in the property. Metropolitan
Edison, 125 A.3d at 502.
               In Le-Nature’s Inc., a factory owner (Le-Nature’s) undertook a
construction project at its place of business and hired a general contractor for the
same. The general contractor contracted with a drilling company to drill and place
caissons for the project.         Prior to commencement of the work, the general
contractor called the Pennsylvania One Call (One Call)7 to determine whether there
were any utility lines located where the drilling company was required to drill.
The city did not respond to the request and drilling commenced on the project.
While performing work on the project, the drilling company struck and damaged a
sewer line owned by the city. Le-Nature’s filed a complaint against the city for its
failure to respond to the One Call request. The trial court sustained preliminary
objections filed by the city on the basis of governmental immunity.
               On appeal to this Court, we concluded that the allegations contained
in Le-Nature’s complaint, if proven, established a claim in negligence. We then

       7
          The “One Call System” is defined in what is commonly known as the Pennsylvania One
Call Act, the Act of December 10, 1974, P.L. 852, as amended, 73 P.S. §§176-186. The “One
Call System” is, in pertinent part, a “communication system established within this
Commonwealth to provide a single nationwide toll-free telephone number or 811 number for
excavators or designers or any other person covered by this act to call facility owners and notify
them of their intent to perform excavation, demolition or similar work as defined by this act.”
Section 1 of the Pennsylvania One Call Act, 73 P.S. §176. After a facility owner receives a
request under the One Call System, it is required to identify its utility lines located within the
project site. Section 2 of the Pennsylvania One Call Act, 73 P.S. §177.



                                               11
considered the applicability of the utility service facilities exception to
governmental immunity, 42 Pa.C.S. §8542(b)(5). We recognized that the relevant
inquiry in determining whether the exception applied is “whether the allegedly
dangerous condition derived from, originated or had its source as the local
agency’s realty.” Le-Nature’s, 913 A.2d at 994. We found that Le-Nature’s failed
to allege a dangerous condition of the city’s sewer system itself. Rather, it merely
averred that the city’s inaction created a dangerous condition generally. Although
the city’s failure to comply with the requirements of the One Call Act constituted
negligence per se, we indicated that this violation, alone, does not “render the
sewer system dangerous or unsafe for the purpose for which it was intended.” Id.
Because the dangerous condition was alleged to have derived from the city’s
failure to comply with the One Call Act and the contractor hitting the line, we
determined that there were no allegations of a dangerous condition of the sewer
system itself. Therefore, we concluded that the utility service facilities exception
to immunity was inapplicable.
            Here, as in Le-Nature’s, Sobat is not claiming injury due to a
dangerous condition that derived from, originated, or had as its source the
Borough’s sewer system itself. She does not aver that her injury was caused by the
reverse flow, the sewage backup and drainage sustained, or the impossibility of
obtaining gravity flow. Rather, the injury alleged is that the second excavation had
to be performed as a result of the Borough’s negligent misrepresentation. All
injuries alleged are claimed to have been caused solely by the alleged negligent
misrepresentation, and not from a condition of the property itself. Accordingly, the
utility service facilities exception cannot provide a waiver of governmental
immunity.



                                        12
                                  Dangerous Condition
               Assuming arguendo the averments could satisfy this threshold
determination, the remaining elements of the utility service facilities exception
cannot be met.        For this exception to apply, the injury must stem from a
“dangerous condition” of sewer facilities “owned by the Borough.” 42 Pa.C.S.
§8542(b)(5).
               Sobat argues that a dangerous condition is alleged in paragraph
seventeen of the Complaint, which states that “Mr. George found the sewage
lateral needed immediate attention because it presented a danger to the health of
the occupants.” This allegation fails to bring the negligent misrepresentation claim
within the immunity exception. The reverse flow condition is not claimed to be the
cause of Sobat’s injury and damages. Moreover, no contention is made that the
reverse flow condition was the result of sewer lines that were owned or maintained
by the Borough. Rather, the reverse flow condition pertains to Sobat’s own sewer
service lateral; there is no allegation that the Borough owned or had a duty to
maintain Sobat’s lateral.
               It is argued that the Borough defendants were negligent in their
inspection of the Sobat lateral’s original installation/connection to the main line.8
Again, such inspection is not alleged to be the cause of any injury or damages
sustained by Sobat in this negligent misrepresentation claim. Sobat’s negligent


       8
         The contention is that an occupancy permit must have been issued at some point for this
residence, and that it should not have been issued because it was contingent upon the lateral
passing inspection. Sobat contends that the lateral could not have met those inspection
requirements and, therefore, the Borough must have been negligent in passing it for inspection.




                                              13
inspection argument is asserted solely as providing a basis for the Borough
defendants’ notice of the reverse flow condition. Even if Sobat had alleged that
her injury was caused by the Borough’s negligent inspection of Sobat’s lateral
when it was installed, the utility service facilities exception is inapplicable. Any
defect alleged must originate from the Borough’s property itself and not merely
from the conduct of the Borough’s employees.
             In Metropolitan Edison Company, 937 A.2d at 1174, the authority
was performing excavation work with a boring machine and struck and damaged a
utility line owned by Metropolitan Edison Company (Met-Ed). Met-Ed brought an
action against the authority to recover damages, alleging that the authority failed to
exercise due care and take reasonable steps to avoid damaging its property, as
required by the Pennsylvania One Call Act. This Court affirmed the trial court’s
grant of summary judgment in favor of the authority on the basis that the utility
service facilities exception to governmental immunity was inapplicable. There, we
determined that the dangerous condition alleged had originated from the conduct of
the authority’s employees, and Met-Ed failed to allege a dangerous condition that
had the authority’s water line as its source. Id. at 1175.
             In short, Sobat has not alleged a dangerous condition of sewer
facilities owned by the Borough. It is clear that any alleged negligence stemmed
solely from the Borough’s employees’ conduct and not from the Borough’s sewer
lines. Accordingly, the complaint fails to set forth allegations that would bring this
claim within the utility service facilities exception under section 8542(b)(5).




                                          14
                           Right to Amend Complaint
             While it is clear that the preliminary objections should be sustained
for the failure to state a claim falling within an exception to immunity, Sobat
argues that she should be permitted to amend her complaint.             Although an
amended complaint may be filed as of course in response to preliminary
objections, no amended complaint was filed. See Pa.R.C.P. No. 1028(c)(1). No
motion for leave to amend the complaint was presented to the trial court prior to
the court’s decision. Further, Sobat did not request leave to amend her complaint
in her response or brief in opposition to the preliminary objections. Although a
trial court may, on its own motion, permit amendment of a pleading, Suppan v.
Kratzer, 660 A.2d 226, 231 (Pa. Cmwlth. 1995), the trial court did not provide for
such relief in its order sustaining the preliminary objections and dismissing her
complaint.
             It is well established that leave to amend is within the sound discretion
of the trial court, Reed v. Pray, 53 A.3d 134, 143 (Pa. Cmwlth. 2012), and will not
be reversed absent a clear abuse of discretion. Feingold v. Hill, 521 A.2d 33, 39
(Pa. Super. 1987). We note that amendment of the complaint is properly denied
where the complaint’s defects are so substantial that amendment would be futile.
Reed, 53 A.3d at 143-44; Weaver v. Franklin County, 918 A.2d 194, 203 (Pa.
Cmwlth. 2007). Moreover, the trial court does not abuse its discretion in failing to
grant leave to amend where further amendment could not circumvent a defendant’s
immunity. Holt v. Northwest Pennsylvania Training Partnership, 694 A.2d 1134,
1138 n.9 (Pa. Cmwlth. 1997).
             In the above analysis with regard to the immunity exception, we have
considered not only the averments of the complaint but all contentions asserted by



                                         15
Sobat in her brief. Even if Sobat amended the complaint to add these contentions,
the claim would still fall short under the utility service facilities immunity
exception. Given the nature of the case, we conclude that amendment of the
complaint would be futile.         Because amendment would not circumvent the
Borough defendants’ immunity in this case, the trial court did not abuse its
discretion in failing to give Sobat an opportunity to amend her complaint.


                                Procedural Due Process
              As noted above, Sobat claims that her procedural due process rights
were violated by the trial court’s grant of permission to the Borough defendants to
file their preliminary objections and brief in excess of the page limits set forth by
local rule. Sobat cites no case law or other legal authority that supports her
contention that her right to procedural due process was denied in these
circumstances. Further, Sobat fails to develop the procedural due process claim
such that the Court can conduct a meaningful review.9 As noted by our Supreme
Court in Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014):

              [O]ur rules of appellate procedure are explicit that the
              argument contained within a brief must contain “such
              discussion and citation of authorities as are deemed
              pertinent.” Pa. R.A.P. 2119(a). “[W]here an appellate
              brief fails to provide any discussion of a claim with
              citation to relevant authority or fails to develop the issue
       9
          Notice and the opportunity to be heard are the fundamental elements of due process.
City of Philadelphia v. Urban Market Development, Inc., 48 A.3d 520, 522 (Pa. Cmwlth. 2012).
The concept of due process is flexible and provides only such procedural safeguards as the
situation warrants. In re McGlynn, 974 A.2d 525, 532 (Pa. Cmwlth. 2009). Key to the
determination of whether a party has been denied procedural due process is whether that party
has suffered demonstrable prejudice. Urban Market Development, Inc., 48 A.3d at 522. Sobat
offers no discussion as to how she was denied procedural due process.



                                             16
            in any other meaningful fashion capable of review, that
            claim is waived. It is not the obligation of [an appellate
            court ... ] to formulate [a]ppellant’s arguments for him.”

Id. (quoting Wirth v. Com., 95 A.3d 822, 837 (Pa. 2014) (quoting Commonwealth
v. Johnson, 985 A.2d 915, 924 (Pa. 2009)). Therefore, Sobat’s claim of violation
of procedural due process is waived.


                                   Conclusion
            The trial court did not err in sustaining the Borough defendants’
preliminary objections based on governmental immunity. Dismissal of Sobat’s
negligent misrepresentation claim was proper because there are no averments that
would bring the claim under the utility service facilities waiver of immunity.
Further, any amendment of the complaint would be futile and would not bring the
claim within an immunity exception. Therefore, the trial court did not abuse its
discretion in failing to provide Sobat an opportunity to amend the complaint.
            Accordingly, the trial court’s order will be affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                        17
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daisy Sobat and Eileen Sobat            :
                                        :    No. 1843 C.D. 2015
            v.                          :
                                        :
The Borough of Midland,                 :
A Municipal Corporation;                :
Diane Kemp, Manager of the              :
Borough of Midland and                  :
Chad Miller, Building/Sewer             :
Inspector of the Borough of Midland     :
                                        :
Appeal of: Eileen Sobat                 :


                                      ORDER


            AND NOW, this 9th day of June, 2016, the August 24, 2015 order of
the Court of Common Pleas of Beaver County is affirmed.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
