In the Court of Common Pleas of Northampton County, Pennsylvania Civil Division

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL DIVISION

ADAM LYNCH and MELISSA LYNCH, ) Plaintiffs ) No. C-48-CV-2009-6669 ) v. ) ) BOROUGH OF PORTLAND, ) GREENLAND CONSTRUCTION, INC. ) and RAYMOND ALBRIGHT, ) Defendants )

ORDER OF COURT

AND NOW, this 28th day of June, 2011, “Defendant‟s, Borough of

Portland, Preliminary Objections in the Nature of a Demurrer to Plaintiffs‟

Amended Complaint,” are hereby OVERRULED. Defendant Borough of

Portland shall file an answer to Plaintiff‟s Amended Complaint within twenty

(20) days.

STATEMENT OF REASONS

This case is before the Court on the preliminary objections of

Defendant Borough of Portland (“the Borough”), filed on March 10, 2011, to Plaintiffs‟ amended complaint. Oral argument was heard on April 5, 2011, briefs have been submitted, and the matter is ready for disposition.

In their amended complaint, filed on February 22, 2011, Plaintiffs allege that they own a residence located at 407 Pennsylvania Avenue,

Borough of Portland, Northampton County, Pennsylvania. Pls.‟ Am. Compl. ¶

6. In July 2008, the Borough contracted with Defendant Greenland

Construction, Inc. (“Greenland Construction”) for the installation of new sewer lines within the Borough. Id. ¶ 7. Plaintiffs allege that Defendants damaged six historic limestone walls on Plaintiffs‟ property by hitting the walls with heavy machinery. Id. ¶¶ 8, 10. Plaintiffs also contend that the walls have eroded because Defendants broke a waterline. Id. ¶ 10.

In Count I of their amended complaint, Plaintiffs set forth a negligence action against the Borough. In Count II of their amended complaint,

Plaintiffs set forth a negligence action against Greenland Construction.

In its preliminary objections, the Borough raises a demurrer, arguing that the Pennsylvania Political Subdivision Tort Claims Act renders it immune from tort liability. Pennsylvania Rule of Civil Procedure 1028(a)(4) allows for a preliminary objection on the ground of legal insufficiency of a pleading, which is called a demurrer. A demurrer will only be sustained if a plaintiff‟s complaint fails to state any legally cognizable cause of action. Lerner v.

Lerner, 954 A.2d 1229, 1234 (Pa. Super. 2008). However, any doubt as to whether the complaint states a cause of action should be resolved in favor of

2 overruling the demurrer. Francesco v. Group Health Inc., 964 A.2d 897, 899

(Pa. Super. 2008). In ruling on a demurrer, a trial court may not consider any testimony or evidence outside of the complaint. Cooper v. Frankford

Health Care Sys., Inc., 960 A.2d 134, 143 (Pa. Super. 2008). Further, a trial court may not consider the factual merits of the complaint, but must accept as true all well-pleaded, material, relevant facts, as well as all inferences reasonably deducible therefrom. Filippi v. City of Erie, 968 A.2d

239, 242 (Pa. Commw. 2009).

Section 8541 of the Pennsylvania Political Subdivision Tort Claims Act provides that “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.A. § 8541. A local agency is defined as “[a] government unit other than the Commonwealth,” a definition which includes the Borough. 42 Pa.C.S.A. § 8501.

In some instances, however, the legislature has determined that a local agency may be liable for damages. See 42 Pa.C.S.A. § 8542. For a local agency to be liable, “there must exist a cause of action at common law which allows recovery of damages.” Phillips v. City of Philadelphia, 610 A.2d

509, 511 (Pa. Commw. 1992). In addition, the cause of action must fall within one of the eight exceptions to governmental immunity set forth in

Section 8542 of the Pennsylvania Political Subdivision Tort Claims Act. Id.

The eight exceptions include: (1) vehicle liability; (2) care, custody, or

3 control of personal property; (3) real property; (4) trees, traffic controls, and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care, custody, or control of animals. 42 Pa.C.S.A. § 8542(b)(1)-(8).

In the instant case, Plaintiffs argue that the claims asserted against the Borough implicate the vehicle liability, real property, and/or utility service facilities exceptions. These exceptions provide:

(b) Acts which may impose liability.—The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

(1) Vehicle liability.—The operation of any motor vehicle in the possession or control of the local agency . . . . As used in this paragraph, “motor vehicle” means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

. . . .

(3) Real property.—The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, “real property” shall not include: (i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems; (ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way; (iii) streets; or (iv) sidewalks.

. . . .

(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.A. § 8542(b)(1), (3), (5) (emphasis in original).

Under the vehicle liability exception, Plaintiffs must have alleged that the Borough was in possession or control of the heavy machinery that damaged the limestone walls. In their amended complaint, Plaintiffs aver that Greenland Construction, “under the supervision of [the Borough,] did damage the . . . walls by placing heavy machinery too close to and on top of said walls” and by “hitting and striking the walls with heavy machinery.”

Pls.‟ Am. Compl. ¶ 10. The Borough argues that an averment of negligent supervision is insufficient to impose liability under the Pennsylvania Political

Subdivision Tort Claims Act. We agree with the Borough that “[n]egligent supervision has repeatedly been determined to be insufficient to impose liability under the exceptions to governmental immunity.” Sims v. Silver

Springs-Martin Luther School, 625 A.2d 1297, 1301 (Pa. Commw. 1993).

However, Plaintiffs also aver that “[t]he Negligence occurred by virtue of the operation of a motor vehicle (construction equipment within the control of

[the Borough)].” Id. ¶ 24(c) (emphasis added). The Borough argues that

“Plaintiffs do not allege any facts which, even if true, could establish that the alleged damages arose from the operation of a vehicle that was „controlled‟ by [the Borough].” Br. in Supp. of the Borough‟s Prelim. Objections, at 6.

At this stage of the proceeding, where the Court must accept as true all well- pleaded facts and resolve all doubt in favor of overruling the demurrer,

Plaintiffs‟ averments concerning the Borough‟s control of the vehicle in question are sufficient.

Because Plaintiffs have sufficiently pleaded one exception to the

Pennsylvania Political Subdivision Tort Claims Act, the Borough‟s preliminary objections will be overruled, and we need not address Plaintiffs‟ contentions that the real property and utility service facilities exceptions also apply.

BY THE COURT:

______ANTHONY S. BELTRAMI, J.