Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Frank Gleba, Stanley A. Gleba, Joseph S. Gleba, Theodore J. Gleba, a co-partnership, t/a Gleba Bros. v. Borough of West Conshohocken, at No. 63-9341.
Edward F. Kane, for appellant.
Ronald I. Rosenstein, with him Fox and Fox, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Judge Manderino did not participate in the decision. Opinion by Judge Crumlish, Jr. Concurring Opinion by President Judge Bowman.
This is an appeal from an order of the Court of Common Pleas of Montgomery County by which Judge Honeyman, sitting in equity, ordered the Borough of West Conshohocken*fn1 to restore a sidewalk and retaining wall that had collapsed in March of 1960. The court also directed payment of money damages for injuries to appellees' shrubberies caused by the collapsing wall. The Borough contends that the collapse of the wall has not clearly been proven to be the fault of the Borough and that Section 1801 of the Borough Code, Act of Feb. 1, 1966, P.L. (1965) 1656, 53 P.S. § 46801, imposes
upon the property owner the primary responsibility for maintenance and repair of those portions of property abutting the public highway. We believe these contentions are sound.
Appellees, the landowners, rely on a statute which directs that local political subdivisions be responsible for maintenance of local service highways. Act of May 29, 1945, P.L. 1108, § 12, 36 P.S. § 2391.12. Appellees alleged that improper construction and renovation of the local service highway abutting their property directly caused the collapse of the wall.
While it is true that responsibility for maintenance of local service highways has been delegated to the local political subdivisions, it is also true that the Borough Code specifically authorizes a borough to place primary responsibility for certain types of maintenance on the abutting property owners. Accordingly, Section 1801 of the Borough Code specifically authorizes methods by which a borough may exercise its responsibility of maintenance, while Section 12 of the Act of 1945, supra, generally delegates the responsibility of maintenance to the local political subdivisions. The abutting property owners are, by these statutes, made primarily responsible for maintenance and repair of those portions of property abutting the public highway. See Koerth v. Borough of Turtle Creek, 355 Pa. 121, 49 A.2d (1946).
More importantly, we are of the opinion that the appellees have not met their burden of proving that negligent construction of the highway caused the collapse of the wall. This burden must be met by competent testimony on the issue of causation and cannot be sustained by conjecture or speculation. Carter v. United Novelty & Premium Co., 389 Pa. 198, 132 A.2d 202 (1957).
Appellees presented the following uncontroverted testimony relative to the cause of the wall's collapse: "Well originally when the home and the wall was constructed, the retaining wall was constructed to maintain the volume of traffic that was there presently or ever would be. Maybe another fifteen houses could be added on Moorehead Avenue. At that time it was only approximately maybe an eighteen, twenty-foot road. It would stand the increase of traffic when the road was widened out by the WPA. A couple more cars might have come on there and used it as a better road than Ford Street to by-pass any traffic at the light. But the wall was never constructed to withstand the traffic of the Schuylkill Expressway. It was constructed for the purpose that my father built it at that time, to take the local traffic, whatever would come then. When the Schuylkill ramp and Expressway was built, that increased it a thousand fold and the vibration of it, the joints between the concrete and curb having no sealer, allowing water to go in there; the excavation so close to this wall with the retaining wall and the storm sewer drains being placed in there, this all contributed to the point of allowing the wall to fall. It wasn't that it was faulty construction because it had to be good. It was there since ...