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PATRICIA GALLAGHER v. UPPER DARBY TOWNSHIP ET AL. (03/17/88)

decided: March 17, 1988.

PATRICIA GALLAGHER, APPELLANT
v.
UPPER DARBY TOWNSHIP ET AL., APPELLEES (4 CASES)



Appeals from the Orders of the Court of Common Pleas of Delaware County, in the case of Patricia Gallagher v. Upper Darby Township and General Sewer Service, Inc. and A.B.C. Sewer Cleaning Co. and DeMarco Plumbing and Vic Snyder, No. 85-3605, and in the case of Patricia Gallagher v. Upper Darby Township and General Sewer Service, Inc. and A.B.C. Sewer Cleaning Co. and DeMarco Plumbing and Vic Snyder, No. 84-3291, dated November 3, November 7, November 24, and December 3, 1986.

COUNSEL

Ronald Ervais, for appellant.

Jeffrey P. Lewis, Gibbons, Buckley, Smith, Palmer & Proud, P.C., with him, Paul Bartolacci, Holstein & White, for appellee, Upper Darby Township.

George J. McConchie, for appellee, A.B.C. Sewer Cleaning Company.

John Salvucci, for appellee, General Sewer Cleaning Company.

Kevin M. Livesey, for appellee, Vic Snyder.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 114 Pa. Commw. Page 466]

Patricia Gallagher (Appellant) appeals from orders of the Court of Common Pleas of Delaware County granting summary judgment to Upper Darby Township (Township), General Sewer Service, Inc. (General Sewer) and A. B. C. Sewer Cleaning Company (ABC), and partial summary judgment to Vic Snyder (Snyder) in civil actions instituted by Appellant against those parties.*fn1

In 1984, Appellant sued Township alleging that its negligence in maintaining its sewer line caused the sewer system to back up onto her property and into her house causing her property damage, emotional distress, loss of earnings, impairment of earning power and out of pocket expenses. Township joined General Sewer, ABC, DeMarco Plumbing Contractors, Inc. (DeMarco) and Snyder as additional defendants in that action which we will identify hereinafter as the 1984 action.

In 1985, Appellant brought another suit against the same defendants, this time suing the Township in trespass and the other defendants in trespass and assumpsit. Hereinafter we will refer to this suit as the 1985 action.

The cases were consolidated for trial by the trial court. After answers were filed and depositions taken, Township, General Sewer, Snyder and ABC filed motions for summary judgment which the trial court granted as noted above.

Appellant's causes of action are based upon the following facts alleged in her complaints. Since 1978,

[ 114 Pa. Commw. Page 467]

Appellant has had sewage problems in the nature of an overflow from the sewer vent on her property. When Township officials threatened to cite her and fine her for this condition, she employed successively General Sewer, Snyder, ABC and DeMarco in an attempt to alleviate the problem. According to her complaints, none of the efforts of these plumbers was successful. A fifth plumber was employed in 1983 who diagnosed the problem as a blockage of the Township's sewer main adjoining the lateral sewer line outside Appellant's home. It appears that the Township made the necessary replacement of that main pipe and the problem is now resolved.

During the five years between 1978 and 1983, Appellant avers that she was arrested, incarcerated and fined for violating Township ordinances, went through a foreclosure proceeding as a result of a financing dispute with ABC, paid substantial sums of money to the various plumbers she employed and finally was hospitalized for treatment of acute paranoid schizophrenia. She seeks compensatory and punitive damages from all defendants.

Summary judgment may be entered only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035(b). Appellant contends that the trial court erred as a matter of law in granting summary judgments here because there are genuine issues of fact to be resolved.

Since judgment in each case was entered for somewhat different reasons, we will discuss each cause of action separately.

Appellant v. Township

Township's answers raised the defense of governmental immunity under 42 Pa. C. ...


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