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GLENN G. DETURK v. SOUTH LEBANON TOWNSHIP AND SOUTH LEBANON TOWNSHIP AUTHORITY AND D & C SPINOSA CO. (06/06/88)

decided: June 6, 1988.

GLENN G. DETURK, APPELLANT
v.
SOUTH LEBANON TOWNSHIP AND SOUTH LEBANON TOWNSHIP AUTHORITY AND D & C SPINOSA CO., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lebanon County, in the case of Glenn G. DeTurk v. South Lebanon Township and South Lebanon Township Authority v. D & C Spinosa Co., Nos. 618 and 1037, Year of 1984.

COUNSEL

Kenneth C. Sandoe, Steiner & Sandoe, for appellant.

George C. Werner, Barley, Snyder, Cooper & Barber, for appellees, South Lebanon Township and South Lebanon Township Authority.

Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 116 Pa. Commw. Page 558]

Glenn G. DeTurk (DeTurk) appeals an order of the Court of Common Pleas of Lebanon County which granted the motion of South Lebanon Township (Township) and South Lebanon Township Authority (Authority) for summary judgment. We reverse.

The Township and the Authority constructed a waste water collection system on Plum Alley, adjacent to DeTurk's property. The Township and the Authority hired a contractor to initiate construction of the water collection system. The contractor dug trenches, placed waterlines in the trenches and refilled them. The Township's responsibility was to construct a swale and to complete the sub base construction. After the Township had performed this function, the contractor returned to the alley and placed a layer of asphalt on the alley surface. A few days after the project was completed, the area experienced a heavy rainstorm. The heavy rainfall caused extensive surface water run off to DeTurk's garage. DeTurk attempted to remove plywood sheets from the garage. In the process, DeTurk slipped and fell.

DeTurk filed a complaint against the Authority and the Township which alleged that his injuries were the direct result of negligent construction by the Township and the Authority. The Township filed an answer to this

[ 116 Pa. Commw. Page 559]

    complaint; the Authority did not. Both the Township and the Authority filed a motion for summary judgment on the basis that they were immune from liability for the matters alleged in the complaint. DeTurk also filed for summary judgment against the Authority alleging that the Authority had waived the defense of immunity by not answering in a timely fashion. The trial court granted the motion of the Township and the Authority and denied DeTurk's motion.

In granting the motion for summary judgment the trial court stated that the Township and the Authority were immune from suit under Section 8541 of the Political Subdivision Tort Claims Act (Act), 42 Pa. C. S. § 8541. The trial court opined that the actions of the Township and the Authority may fall into the exception involving the dangerous condition of sewers, 42 Pa. C. S. § 8542(b)(5), but, that merely falling into this exception was not a guarantee of relief. The trial court stated that to be entitled to recovery under Section 8542(b)(5) of the Act the:

     plaintiff [must] demonstrate (1) that the complained of dangerous condition created a reasonably foreseeable risk of the kind of injury he sustained, and (2) that Defendants have either actual notice or could reasonably be charged with notice under the circumstance of the complained of condition sufficiently in advance of Plaintiff's accident to take corrective action.

Opinion of the trial court, September 9, 1986, p. 11. It stated that DeTurk's injuries were a foreseeable result of the actions of the Authority and the Township and could be ...


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