Appeal from the Order of the Court of Common Pleas of Washington County in case of Alfred Johns, Jennie Johns, William Johns, Emma Johns Thelma Dezelan and Carolyn Shuman v. City of Washington, No. 233 February Term, 1980, A.D.
Wray G. Zelt, III, for appellant.
Sanford S. Finder, for appellees.
Judges Williams, Jr., Craig and Colins, sitting as a panel of three. Opinion by Judge Craig.
[ 81 Pa. Commw. Page 602]
During a heavy rainstorm on May 12, 1979, a portion of the storm drainage system in the City of Washington overflowed into the basement of a home then owned by Alfred, Jennie, William and Emma Johns and Thelma Dezelan and occupied by Carolyn Shuman and her family (collectively referred to as the Shumans). After a bifurcated non-jury trial, President Judge Sweet of the Court of Common Pleas of Washington County found the city liable for $9,477.05 in property and delay damages. The city filed exceptions to Judge Sweet's verdict of liability and award of damages; a three-judge panel dismissed those exceptions and entered judgment against the city in two separate decisions.*fn1
In this case of first impression, we must decide (1) if the sewer system exception to sovereign immunity under former section 202(b)(5) of the Political Subdivision Tort Claims Act (Act)*fn2 excludes storm drainage systems, so as to bar a determination of municipal liability here, and (2) if sufficient competent record evidence supports the common pleas court's ultimate finding of liability. Jenkins Towel Service, Inc. v. Tidewater Oil Co., 422 Pa. 601, 604, 223 A.2d 84, 86 (1966) (findings of fact of a trial
[ 81 Pa. Commw. Page 603]
judge, sitting without a jury, sustained by the court en banc, have the force and effect of a jury's verdict, and, if based on sufficient evidence, will not be disturbed on appeal); Standard Pennsylvania Practice 2d, § 91:121.
As reflected in the trial court's findings, the Shumans, as tenants, had lived in the home for approximately thirteen years before the May 1979 incident, and that storm water had backed into their basement about ten or twelve times previously because the city's public sewers were filled with dirt and mud. The court also found that both the owners and the tenants had requested the city to correct the problem on many occasions; the city, however, only responded once, by removing large quantities of dirt from the sewer in front of the residence.
During the May rainstorm, two to three feet of water backed into the Shumans' basement, a nearby manhole cover blew off, shooting water several feet into the air, and storm water, which overran the street curb, cascaded into the Shuman's front basement wall, causing part of it to collapse. The flood also undermined support for the front porch, which fell two to three inches. Later, the city pumped water from the Shumans' basement for several hours, leaving behind several tons of mud.
With eight exceptions, the Act immunizes political subdivisions from tort liability. To fall within one of the eight exceptions, a party seeking personal or property damage first must demonstrate a common law or statutory basis for recovery, 53 P.S. § 5311.202(a)(1),*fn3 and that the local agency or an employee acting within the ...