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SHIPPEN TOWNSHIP v. PORTAGE TOWNSHIP (12/21/88)

decided: December 21, 1988.

SHIPPEN TOWNSHIP, APPELLANT
v.
PORTAGE TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Cameron County, in the case of Portage Township v. Shippen Township, No. 86-479.

COUNSEL

Vernon D. Roof, Pontzer & Roof, for appellant.

Joseph J. Malizia, with him, Paul J. Malizia, Malizia & Malizia, P.C., for appellee.

President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 122 Pa. Commw. Page 260]

This is an appeal by Shippen Township (Shippen) from an $18,801.20 verdict of the Court of Common Pleas of Cameron County rendered against Shippen and in favor of Portage Township (Portage). For the reasons set forth herein, we vacate and remand.

The parties are in agreement as to the following facts. On February 16, 1984, a Shippen garbage truck weighing approximately 12 1/2 tons sank into a depression which was directly over what has been referred to as a bridge, said bridge located in Portage. This bridge

[ 122 Pa. Commw. Page 261]

    consisted of two sixty-inch pipes or culverts which crossed underneath the roadway. The posted weight limit for the bridge was five tons. Portage thereafter filed a negligence action against Shippen for damages allegedly caused by the Shippen truck to the bridge.

There are two issues presented for our resolution on appeal: (1) whether the negligence of Shippen was a substantial factor in causing damage to the Portage bridge and (2) whether the trial court's reliance on Commonwealth v. Estate of Crea, 92 Pa. Commonwealth Ct. 242, 483 A.2d 996 (1977) in its calculation of damages was proper.

Initially, we note that our scope of review is confined to a determination of whether the trial court based its findings of fact on substantial evidence or committed an error of law. Hando v. Commonwealth, 84 Pa. Commonwealth Ct. 63, 478 A.2d 932 (1984). Thus, the trial court serving as factfinder is responsible for making credibility determinations and resolving testimonial conflicts. Id. Also see Miller v. C.P. Centers, Inc., 334 Pa. Superior Ct. 623, 483 A.2d 912 (1984).

As to the first issue raised by Shippen, in order to hold a municipality liable it is not enough to show negligence. It must be shown that the negligence was the proximate cause of the harm, or stated another way, a substantial factor in causing the harm. Farnell v. Winterloch Corp., 106 Pa. Commonwealth Ct. 542, 527 A.2d 204 (1987). Unless the evidence clearly establishes the causal connection, it is the duty of the factfinder (the trial court herein) to determine whether an actor's conduct was a substantial factor in causing the harm. See Farnell.

Without setting forth any factual findings on the issue of causation or damages, the trial court awarded Portage the replacement ...


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