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OLYMPIC v. MCKEESPORT MUNICIPAL WATER AND CITY MCKEESPORT (02/19/87)

decided: February 19, 1987.

OLYMPIC, INC., OPERATING AND DOING BUSINESS UNDER THE NAME OF OLYMPIC LOUNGE & RESTAURANT, APPELLANTS
v.
MCKEESPORT MUNICIPAL WATER AND CITY OF MCKEESPORT, APPELLEES. EARL MILLER, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, APPELLANT V. MCKEESPORT MUNICIPAL WATER AND CITY OF MCKEESPORT, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Allegheny County in the case of Olympic, Inc., operating and doing business under the name of Olympic Lounge & Restaurant, et al. v. McKeesport Municipal Water Authority and City of McKeesport, No. GD 84-18990, and in the case of Earl Miller on behalf of himself and all other persons similarly situated v. McKeesport Municipal Water Authority and City of McKeesport, No. GD 84-14520.

COUNSEL

Randy L. Rayl, with him, Cyril H. Wecht and Leonard M. Mendelson, for appellants.

Frederick N. Egler, Jr., with him, Ronald H. Heck and Gregory L. Fitzpatrick, Egler, Anstandig, Garrett & Riley, for appellee, McKeesport Municipal Water Authority.

Patrick J. Shannon, for appellee, City of McKeesport.

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

Author: Palladino

[ 104 Pa. Commw. Page 109]

Earl Miller, on behalf of all persons who allegedly were physically injured by a giardia infestation of the McKeesport water system, and Olympic, Inc., on behalf of all users of the giardia infested water who allegedly were economically damaged (collectively Appellants), appeal from orders of the Court of Common Pleas of Allegheny County (trial court) which sustained preliminary objections of the City of McKeesport and the McKeesport Municipal Water Authority (collectively Appellees) and dismissed Appellants' amended complaints with prejudice.

Appellants brought suit alleging that Appellees (1) negligently maintained and operated a municipal water facility which caused an outbreak of giardiasis resulting in harm to Appellants, and (2) breached a contract between the parties by failing to provide Appellants with reasonably clean and safe water, causing damage to Appellants. Appellees made preliminary objections to the claims on the grounds that suit against them was barred by the Political Subdivision Tort Claims Act (Tort Claims Act).*fn1 The trial court sustained the preliminary objections with leave to amend.

Appellants filed amended complaints, adding as an alternative theory of liability that Appellees' actions were taken in their "proprietary capacity" and, therefore,

[ 104 Pa. Commw. Page 110]

    outside the protection of the Tort Claims Act. The trial court again sustained Appellees' preliminary objections on the basis of governmental immunity and dismissed Appellants' suits with prejudice. Appellants, asserting that Appellees are not immune from suit, appealed to this Court.

Appellants contend that: (1) their negligence claims fall under the exceptions to governmental immunity found in Section 8542 of the Tort Claims Act, 42 Pa. C.S. ยง 8542; (2) breach of contract claims are outside the scope of the Tort Claims Act; (3) the delivery of water to the public is a "proprietary" function rather than a "governmental" function and, therefore, not encompassed by the Tort Claims Act; and (4) Section 306 of the Municipality Authorities Act*fn2 provides a waiver of sovereign immunity under the Tort Claims Act in suits against municipal authorities. We find no merit in Appellants' contentions and affirm the dismissal of their suit on the basis that the Tort Claims Act confers immunity upon Appellees.

Appellants' first and second contentions were addressed by this Court in Gall v. Allegheny County Health Department, 98 Pa. Commonwealth Ct. 175, 182, 510 A.2d 926, 929 (1986), where we held that the Tort Claims Act confers immunity upon Appellees, as municipalities, and "that there are no implied warranties of merchantability or fitness in connection with the sale or supply of water." In this case Appellants did not categorize their breach of contract claim as a breach of implied warranties. Appellants claim that Appellees' breach was a failure to provide "reasonably clean and ...


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