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TIFFANY GALL v. ALLEGHENY COUNTY HEALTH DEPARTMENT (06/13/86)

decided: June 13, 1986.

TIFFANY GALL, A MINOR, BY STEPHEN R. GALL, JR., HER PARENT AND NATURAL GUARDIAN, AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS
v.
ALLEGHENY COUNTY HEALTH DEPARTMENT, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Tiffany Gall, a minor, by Stephen R. Gall, Jr., her parent and natural guardian, and all others similarly situated v. Allegheny County Health Department, et al., No. GD 84-4103.

COUNSEL

Ronald M. Buick, with him, William L. Garvin, for appellants.

Patrick J. Shannon, with him, Frederick N. Egler, Jr., Ronald H. Heck & Associates, P.C., for appellees.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Senior Judge Kalish dissents.

Author: Palladino

[ 98 Pa. Commw. Page 176]

Tiffany Gall, a minor, by Stephen R. Gall, Jr., her parent and natural guardian, and all others similarly situated (collectively, Appellants) appeal from orders of the Court of Common Pleas of Allegheny County (trial court) which sustained preliminary objections of the McKeesport Municipal Water Authority and the City of

[ 98 Pa. Commw. Page 177]

McKeesport (collectively, Appellees) and dismissed Appellants' second amended complaint.

In late 1983 and early 1984 the McKeesport public water system became infested with a parasite known as giardia and Appellants became ill as a result of drinking the water. Appellants brought suit against Appellees*fn1 alleging that the giardia infestation was caused by Appellees' negligence. Appellees filed preliminary objections in the nature of a demurrer asserting that Appellants' claim was barred by the Political Subdivision Tort Claims Act (Act).*fn2 Appellants twice amended the complaint asserting theories of both negligence and breach of implied warranties of merchantability and fitness. The trial court sustained the preliminary objections in the nature of a demurrer to both amended complaints, holding that the suit was barred by the Act.

Appellants now appeal to this Court asserting that the trial court erred in dismissing their second amended complaint because Appellees are not immune from suit. In support of this assertion Appellants argue that their negligence claim against Appellees falls under the exception to the Act for a dangerous condition of utility service facilities or, in the alternative, that the breach of warranty claim is not barred by the Act. For the reasons set forth below, we find both of these arguments to be without merit.

The issue presented by this case, whether a municipality may be held liable for injuries sustained as a result

[ 98 Pa. Commw. Page 178]

    of drinking contaminated water supplied by the municipality, is a question of first impression in the Commonwealth.*fn3 The majority of other jurisdictions which have ...


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