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RICHARD MEDICUS v. UPPER MERION TOWNSHIP (05/09/84)

decided: May 9, 1984.

RICHARD MEDICUS, T/A KARROSSERIS COACH WORK, APPELLANT
v.
UPPER MERION TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Richard Medicus, t/a Karrosseris Coach Work v. Upper Merion Township, No. 79-18932.

COUNSEL

Ronald H. Sherr, William A. Jones, Sherr, Moses & Zuckerman, P.C., for appellant.

Thomas J. Finarelli, with him, John M. Corcoran, Liebert, Short, Fitzpatrick & Lavin, for appellee.

Judges Williams, Jr., Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barry. Judge Williams concurs in the result only.

Author: Barry

[ 82 Pa. Commw. Page 304]

This appeal results from an order of the court of common pleas of Montgomery County, dated July 2, 1980, which granted a motion for judgment on the pleadings filed by the appellee, Upper Merion Township (Township), in a suit in trespass filed by the appellant, Richard Medicus, t/a Karrosseris Coach Work.

Appellant conducted a business, within the geographical boundaries of the Township, in which he repaired, restored and sold exotic automobiles. According to the allegations of appellant's complaint, the Township owns, maintains, controls, possesses and services certain culverts, adjacent to appellant's business property, which handle the flow of surface water in the area. During and following rain storms on July 24, 1979, August 3, 1979 and September 5, 1979, appellant's property was flooded. As a result thereof, appellant sustained financial losses purportedly in excess of $50,000.00.

On September 27, 1979, appellant filed a suit in trespass alleging that the Township had been negligent

[ 82 Pa. Commw. Page 305]

    in various respects relating to the culverts, thereby causing the flooding in question. The Township subsequently filed an answer and new matter, asserting that it was immune from liability under the Political Subdivision Tort Claims Act (Act), Act of November 26, 1978, P.L. 1399, 53 P.S. § 5311.202(b), repealed and reenacted by the Act of October 5, 1980, P.L. 693, 42 Pa. C.S. § 8542(b). The Township also asserted that the complaint had been filed after the applicable statute of limitations.

The Township subsequently sought judgment on the pleadings based on either of the aforementioned affirmative defenses. Both parties filed briefs and following argument, the Court of Common Pleas of Montgomery County, on July 2, 1980, granted judgment on the pleadings in favor of the Township. This appeal followed.*fn1

In City of Philadelphia v. Hennessey, 48 Pa. Commonwealth Ct. 600, 411 A.2d 567 (1980), we stated, "judgment on the pleadings should be granted only when a case is free from doubt and a trial would be a fruitless exercise." The trial court held that the Act immunized the Township from liability. Appellant, of course, argues that the trial court erred in granting the Township judgment on the pleadings.

Section 201 of the Act, 53 P.S. § 5311.201, provided:

Except as otherwise provided in this Act, no political subdivision shall be liable for any damages on account of any injury to a person or property caused by any act or omission of the political ...


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