        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Pascoe and Lori Pascoe,           :
his wife,                              :
                 Appellants            :
                                       :
            v.                         : No. 544 C.D. 2016
                                       : Argued: April 20, 2017
Pennsylvania American Water            :
Company, Wyoming Valley                :
Sanitary Authority, Township           :
of Hanover                             :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE JOSEPH M. COSGROVE, Judge (P)
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                    FILED: May 26, 2017

            This is an appeal filed by Gary Pascoe and Lori Pascoe (Plaintiffs)
from an order of the Court of Common Pleas of Luzerne County (trial court)
denying post-trial relief and entering judgment in favor of defendant Township of
Hanover (Township) on the ground that Plaintiffs’ claims against the Township
were barred by governmental immunity under Sections 8541 and 8542 of the
Judicial Code, 42 Pa. C.S. §§ 8541-8542, commonly referred to as the Political
Subdivision Tort Claims Act (PSTCA). For the reasons set forth below, we affirm.
            On April 23, 2010, the Township’s sanitary sewer line flooded
Plaintiffs’ home with four inches of water and raw sewage. (Trial Transcript
(N.T.) at 43-47, 68-70, Reproduced Record (R.R.) at 51a-52a, 57a.) Plaintiffs
brought this action against three defendants, Pennsylvania American Water
Company (Water Company), Wyoming Valley Sanitary Authority (Authority), and
the Township. Plaintiffs alleged that the Township and the Authority, which
performed maintenance and repair of Township sewer lines under contract with the
Township, were liable because they negligently failed to maintain the sewer and
that a leak in the Water Company’s water line flowed into the sewer and
contributed to the sewer backup. (Complaint ¶¶7-14, R.R. at 8a-9a.) Plaintiffs
sought damages in the amount of $28,779 for the costs they incurred in cleaning up
and repairing the damage to their home and for personal property that was
destroyed. (Id. ¶¶15-16, R.R. at 9a.) The Township and the Authority pleaded
governmental immunity as a defense in their answer and new matter to Plaintiffs’
complaint. (Township and Authority Answer and New Matter ¶18, R.R. at 29a.)
The case was tried before a jury from February 8 to February 10, 2016. At the start
of trial, the trial court approved Plaintiffs’ voluntary discontinuance of their claims
against the Authority.
             At trial, Plaintiffs introduced evidence that when the Township
responded to the sewer backup on April 23, 2010, the sewer line was found to be in
a collapsed and deteriorated condition, blocked by tree roots and debris. (N.T. at
70-71, 83-85, R.R. at 57a-58a, 61a.)           Plaintiffs introduced no evidence that
blockages of the sewer line or sewer backups occurred frequently, that any
blockage or backup had occurred in the months or years immediately before the
April 23, 2010 incident, or that the Township received complaints that there was a
problem with the sewer line in the months or years immediately before the April
23, 2010 incident.       Plaintiff Lori Pascoe testified that a blockage of the same
sewer line occurred and backed up sewage and water into Plaintiffs’ next-door


                                           2
neighbors’ house in 1998. (Id. at 57, 62-65, R.R. at 54a-56a.) She further testified
that the 1998 blockage was at the location of the same tree that blocked the sewer
line in the April 23, 2010 incident and that the Township or the Authority came out
to fix the 1998 sewer backup. (Id. at 57, 62-65, R.R. at 54a-56a.) Plaintiff Lori
Pascoe also testified that, to her knowledge, the Township did no work concerning
the tree or work on the sewer line between the 1998 incident and April 23, 2010,
and that the tree was removed after the April 23, 2010 incident. (Id. at 65-66, R.R.
at 56a.) Plaintiffs, however, did not introduce any evidence as to what caused the
1998 sewer backup.
            A former Township employee was called by Plaintiffs as a witness
and testified that the Township abolished its sewer department and contracted with
the Authority for sewer services at least four years before the April 23, 2010
incident and that no inspections or maintenance were done by the Township or the
Authority on the Township’s sewer lines unless there was a problem or bad line.
(N.T. at 79-80, 85-88, 90-94, R.R. at 60a-63a.) The former Township employee
testified that the Township was not aware that there was a problem with the sewer
line before the April 23, 2010 incident and that, to his knowledge, Plaintiffs had
not complained to the Township of any sewer backups before the April 23, 2010
incident. (Id. at 88, 91-93, R.R. at 62a-63a.) Plaintiffs did not call any expert
witness or introduce into evidence any records concerning the sewer line’s repair
or blockage history.
            At the close of Plaintiffs’ case, the Township moved for a compulsory
nonsuit on the ground that Plaintiffs’ claims against it were barred by
governmental immunity because Plaintiffs did not prove that the Township had
notice of the problem with the sewer line. The trial court granted the Township’s


                                         3
motion for compulsory nonsuit, and only Plaintiffs’ claims against the Water
Company went to the jury, which returned a verdict in favor of the Water
Company. Plaintiffs timely filed a motion for post-trial relief seeking removal of
the compulsory nonsuit and a new trial on their claims against the Township.
Plaintiffs did not seek any post-trial relief with respect to the jury’s verdict in favor
of the Water Company. On March 15, 2016, the trial court denied Plaintiffs’
motion for post-trial relief and entered judgment in favor of defendants and against
Plaintiffs. Plaintiffs, in this appeal, challenge only the trial court’s grant of the
Township’s motion for compulsory nonsuit.1
               Section 8541 of the PSTCA provides that “[e]xcept as otherwise
provided in this subchapter, no local 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
or an employee thereof or any other person.” 42 Pa. C.S. § 8541. There is no
dispute that the Township is a local agency. Section 8542 of the PSTCA provides
that liability for personal injury or property damage may be imposed on a local
agency if three conditions are met: (1) the damages would be recoverable under
common law or statute against a non-immune party; (2) the injury was caused by a

1
  The scope of review in an appeal from the denial of post-trial motions to remove a compulsory
nonsuit is limited to determining whether the trial court abused its discretion or committed an
error of law. Thomas v. City of Philadelphia, 804 A.2d 97, 102 n.7 (Pa. Cmwlth. 2002). The
standard for review that this Court applies is whether, viewing all the evidence and all reasonable
inferences arising from it in the light most favorable to the plaintiff, the jury could not
reasonably conclude that the defendant is liable to the plaintiff. Id.; Berman Properties, Inc. v.
Delaware County Board of Assessment and Appeals, 658 A.2d 492, 494 (Pa. Cmwlth. 1995).
Whether an action is barred by governmental immunity is a question of law. Sobat v. Borough of
Midland, 141 A.3d 618, 624 (Pa. Cmwlth. 2016); Le-Nature’s, Inc. v. Latrobe Municipal
Authority, 913 A.2d 988, 994 (Pa. Cmwlth. 2006). Whether the government entity had notice of
the condition that caused harm, however, is a question of fact that is ordinarily for the jury.
McCarthy v. City of Bethlehem, 962 A.2d 1276, 1279-80 (Pa. Cmwlth. 2008); Medicus v. Upper
Merion Township, 475 A.2d 918, 921-22 (Pa. Cmwlth. 1984).


                                                4
negligent act of the local agency or its employee acting within the scope of his
office or duties; and (3) the negligent act of the local agency or employee falls
within one of the eight exceptions to governmental immunity enumerated in
Section 8542(b) of the PSTCA. 42 Pa. C.S. § 8542(a); McCarthy v. City of
Bethlehem, 962 A.2d 1276, 1278 (Pa. Cmwlth. 2008). The eight categories for
which Section 8542(b) waives immunity include “[u]tility service facilities.” 42
Pa. C.S. § 8542(b)(5). Plaintiffs contend that their claims fall within the utility
service facilities exception and do not argue that any of the other exceptions to
immunity are applicable.
            The utility service facilities exception provides:

            (5) Utility service facilities.--A dangerous condition of the
            facilities of steam, sewer, water, gas or electric systems
            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) (underline emphasis added). This exception to immunity
applies to claims for property damage from sewage backup or flooding caused by a
municipality’s failure to properly maintain a sewer line. McCarthy, 962 A.2d at
1279-80; City of Washington v. Johns, 474 A.2d 1199, 1202-03 (Pa. Cmwlth.
1984). To recover damages under the utility service facilities exception, however,
the plaintiff must prove that the municipality had actual or constructive notice of
this dangerous condition before the incident that is the subject of the action. King
v. Pittsburgh Water & Sewer Authority, 139 A.3d 336, 352 (Pa. Cmwlth. 2016);
Gibellino v. Manchester Township, 109 A.3d 336, 342-43 (Pa. Cmwlth. 2015);
                                         5
McCarthy, 962 A.2d at 1279-80; Miller v. Lykens Borough Authority, 712 A.2d
800, 802 (Pa. Cmwlth. 1998); Johns, 474 A.2d at 1202. Plaintiffs argue that the
evidence at trial was sufficient to satisfy this notice requirement. We do not agree.
             Evidence of flooding or sewer backups at the same location prior to
the incident and complaints to the municipality of such problems can be sufficient
to permit a jury to find that the municipality had notice, even if the municipality
did not have actual knowledge that the sewer was obstructed. Gibellino, 109 A.3d
at 343; McCarthy, 962 A.2d at 1279-80; Medicus v. Upper Merion Township, 475
A.2d 918, 921 (Pa. Cmwlth. 1984); Johns, 474 A.2d at 1203. In the cases where
such evidence was held sufficient, the plaintiffs showed that the same kind of
flooding or backup had occurred repeatedly or within a few months before the
incident for which the plaintiff sought damages. See McCarthy, 962 A.2d at 1279-
80 (evidence of numerous instances of flooding between 1986 and 1999, numerous
instances of sewage infiltration between 1999 and 2006, and complaints to
municipality about the sewer system problems beginning in 1999 satisfied the
utility service facilities exception notice requirement with respect to a claim for
damage caused by a 2005 sewage backup); Medicus, 475 A.2d at 919, 921 (three
separate incidents of flooding in a three-month period in the year in question were
held sufficient to satisfy the notice requirement); Johns, 474 A.2d at 1201, 1203
(plaintiffs satisfied the notice requirement where there was evidence that 10 to 12
incidents of storm water backing into their basement occurred over a 13-year
period, multiple complaints were made to the municipality, and the municipality




                                          6
found and removed a significant amount of dirt and mud from the sewer when it
responded to one of the complaints).2
              Here, the only evidence that the Township had notice of a problem
with the sewer line consisted of one prior backup of the sewer at the same location
in 1998, 12 years earlier. Plaintiffs showed that no regular inspections of the sewer
line were done after the 1998 incident and there was no evidence of changes or
repair to the sewer line after 1998. Plaintiffs did not, however, introduce any
evidence of the cause of the 1998 backup and only showed that it occurred at the
same location. Absent evidence that the cause of the prior backup was a condition
that put the Township on notice of a need for long-term monitoring or inspection
of that portion of the sewer line for blockage, a single incident of sewer line
backup 12 years earlier is simply too temporally remote to constitute notice that the
sewer line is currently in a dangerous condition.
              Plaintiffs argue that failure to conduct any regular inspections or
maintenance can satisfy the notice requirement even if there is no history of a prior
problem with the sewer. We do not agree that mere proof of failure to inspect and
maintain the sewer by itself is sufficient in this case to show that the Township had
notice of the sewer’s dangerous condition. In King, an action involving personal
injuries caused by a hole in a deteriorated sewer grate, this Court held the
government agency’s practice of inspecting sewer grates only in response to

2
  Notice can also be found by the jury where there is evidence that the government entity created
the dangerous condition of the sewer. DeTurk v. South Lebanon Township, 542 A.2d 213, 215-
16 (Pa. Cmwlth. 1988) (evidence that defendants altered surface water flow and damaged storm
water system satisfied notice requirement); see also Eaborn v. Township of Findlay, (Pa.
Cmwlth., No. 870 C.D. 2008, filed March 4, 2009), slip op. at 7, 2009 WL 9103004 at *3 (fact
that municipality damaged the pipe was sufficient to prove notice of pipe’s damaged condition).
There is no evidence that the Township created the blocked condition of the sewer or had notice
on this alternative basis.


                                               7
complaints was not a sufficient basis to charge it with notice of the dangerous
condition of the grate. 139 A.3d at 352-53. Rooney v. City of Philadelphia, 623 F.
Supp.2d 644 (E.D. Pa. 2009), on which Plaintiffs rely, does not support their
contention that notice of prior problems or complaints is unnecessary. In Rooney,
there was evidence of at least seven separate complaints of problems at the sewer
system location in question in the six years before the incident. Id. at 651-52.
Moreover, Plaintiffs did not introduce any expert testimony or other evidence from
which a jury could determine what inspections of sewers should be conducted in
the absence of complaints or problems and how frequently such inspections should
occur.
             For the foregoing reasons, we conclude that the trial court correctly
held that Plaintiffs’ claims against the Township were barred by immunity.
Accordingly, the trial court’s order denying Plaintiffs’ motion for post-trial relief
and entering judgment in favor of the Township is affirmed.



                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge


Judge Cosgrove dissents.




                                         8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gary Pascoe and Lori Pascoe,            :
his wife,                               :
                 Appellants             :
                                        :
            v.                          : No. 544 C.D. 2016
                                        :
Pennsylvania American Water             :
Company, Wyoming Valley                 :
Sanitary Authority, Township            :
of Hanover                              :


                                    ORDER

            AND NOW, this 26th day of May, 2017, the order of March 15, 2016
of the Court of Common Pleas of Luzerne County denying Appellants’ motion for
post-trial relief in the above captioned-matter is AFFIRMED.



                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge
