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WAYNE COOK AND EDNA COOK v. HIGHLAND WATER AND SEWER AUTHORITY (08/05/87)

decided: August 5, 1987.

WAYNE COOK AND EDNA COOK, HIS WIFE, ET AL., APPELLANTS
v.
HIGHLAND WATER AND SEWER AUTHORITY, ET AL., APPELLEES. FATHER STEPHEN SLAVIK ET AL., APPELLANTS V. GREATER JOHNSTOWN WATER AUTHORITY AND LAUREL MANAGEMENT, INC., ET AL., APPELLEES. HAROLD J. HOCHSTEIN ET AL., APPELLANTS V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, ET AL., APPELLEES



Appeals from the Orders of the Court of Common Pleas of Cambria County in the case of Wayne C. Cook, et al. v. Highland Sewer and Water Authority, et al. v. L. Robert Kimball, Nos. 1979-3485, 1979-3483, and 1979-3506; in the case of Father Stephen Slavick, et al. v. Greater Johnstown Water Authority, et al., No. 1979-3486, and in the case of Harold J. Hochstein, et al. v. Commonwealth of Pennsylvania, Department of Transportation, et al., Nos. 1979-3487 and 1979-3513.

COUNSEL

David C. Harrison, with him, Myron H. Deutsch and Arthur L. Pressman, for appellants, Wayne Cook et al., Father Stephen Slavik et al., and Harold J. Hochstein, et al.

Dino S. Persio, for appellants, Dino A. Persio and Rosemary Persio, his wife, et al.

Joseph D. Messina, for appellee, Highland Water and Sewer Authority.

Robert L. Byer, for appellee, Greater Johnstown Water Authority.

Donald P. Minahan, Deputy Attorney General, for appellee, Commonwealth of Pennsylvania.

Mark J. Gesk, for appellee, Neilan Engineers, Inc. and South Ford Water Co.

Edward G. Kuyat, Jr., for appellee, Poorbaugh Lumber Co.

Randall C. Rodkey, with him, J. Michael Doherty, for appellee, L. Robert Kimball.

Herman C. Kimpel, for appellee, Nine, Inc.

Avrum Levicoff, for appellee, Laurel Management, Inc.

Robert Given Rose, with him, W. Arch Irvin, Jr., and Mark J. Gesk, for appellee, Gannett, Fleming, etc.

William B. Mallin and Richard F. Rinaldo, for appellee, Bethlehem Steel Corp.

President Judge Crumlish, Jr., and Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Colins concurs in the result only. Dissenting Opinion by Senior Judge Kalish.

Author: Crumlish

[ 108 Pa. Commw. Page 225]

Wayne Cook and Edna Cook et al. (Cook) (No. 15 T.D. 1986), Father Stephen Slavik et al. (Father Slavik) (No. 18 T.D. 1986), and Harold Hochstein et al. (Hochstein) (No. 1778 C.D. 1986) appeal three separate orders of the Cambria County Common Pleas Court denying class action certification. Due to the common genesis of these actions and the identity of the legal issues involved, these appeals have been consolidated for our review.*fn1

Cook, Father Slavik and Hochstein (Appellants) are the unfortunate victims of the 1977 Johnstown Flood, during which approximately twelve inches of rain fell in two days. They seek damages resulting from the collapse of two dams and the washout of a state highway, allegedly caused by the negligent design and maintenance of the respective appellees, Highland Water and Sewer Authority et al., Greater Johnstown Water Authority et al., and the Department of Transportation (DOT).

Cook seeks to represent a class of approximately 100 individuals who suffered personal injuries and property damage as a result of the collapse of Sandy Run Dam. Two days of hearings were held during which Cook presented four witnesses. The parties stipulated to a joint exhibit consisting of a map which purports to represent the geographic areas encompassed by the proposed class.

Father Slavik seeks to represent a class defined as those claimants suffering injury to their persons or property as a proximate result of an alleged "backsurge" in the Conemaugh River caused by the overtopping and

[ 108 Pa. Commw. Page 226]

    failure of the Laurel Run Dam. Father Slavik asserts that the collapse of the Laurel Run Dam and the debris resulting from the consequent destruction of Tanneryville*fn2 clogged the channel of the Conemaugh River, which substantially impeded its flow and caused massive flooding of the Little Conemaugh and Stoneycreek River Valleys. Seven days of hearings were held during which the approximate time of the Dam's collapse was stipulated to. Father Slavik averred that the class would be limited to the areas of Morrellville, Coopersdale, Cambria City and Center City Johnstown.

Hochstein attempts to represent a class of persons who suffered personal injuries, property damage or economic loss by the erosion of State Route 56 and the concomitant flooding. Geographic limits to the class were again proposed. At trial, the following events were described. As a result of the erosion of State Highway 56, debris formed a dam across nearby Solomon Run. The dam eventually collapsed, unleashing a wall of water which crashed through the Solomon Run Valley, and massive flooding occurred in Dale Borough and Hornerstown. Hochstein contends that this chain of events was the direct result of the negligent design and maintenance of the highway.

After reviewing the evidence in each case, the trial court found that none of the appellants had established the prerequisites to class certification under Pa. R. Civ. P. 1702, 1708 ...


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