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EARL MILLER v. MCKEESPORT MUNICIPAL WATER AUTHORITY AND CITY MCKEESPORT (03/03/89)

SUPREME COURT OF PENNSYLVANIA


decided: March 3, 1989.

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

Appeal from the Order of the Commonwealth Court dated February 19, 1987, at No. 1177 C.D. 1985, affirming the Order of the Court of Common Pleas, Allegheny County, Civil Division, Class Action, No. GD 84-14520, entered April 1, 1985. Appeal from the Order of the Commonwealth Court dated February 19, 1987 at No. 1176 C.D. 1985, affirming the Order of the Court of Common Pleas, Allegheny County, Civil Division, Class Action No. GD 84-18990, entered April 1, 1985. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Stout, JJ. Papadakos, J., did not participate in the decision or consideration of these cases.

Author: Stout

[ 521 Pa. Page 79]

OPINION OF THE COURT

These consolidated appeals arise from the same factual background as did Gall v. Allegheny County Health Dept., 98 Pa. Commw. 175, 510 A.2d 926 (1986), and were decided by the Commonwealth Court in reliance thereon. We reversed Gall, 521 Pa. 68, 555 A.2d 786 and now reverse Miller and Olympic.

Earl Miller and Olympic, Inc., a restaurant, filed actions of trespass and breach of contract on behalf of themselves, and others similarly situated, against McKeesport Municipal Water Authority [Water Authority] and the City of McKeesport [City]. The pleadings alleged illness of Miller and economic loss of Olympic, Inc., because of parasite-infested water which was furnished by the Water Authority and the City.

The City and the Water Authority filed preliminary objections, in the nature of a demurrer, claiming governmental immunity under section 8541 of The Governmental Immunities Act.*fn1 The Court of Common Pleas sustained the objections and dismissed the complaints. The Commonwealth Court affirmed, 104 Pa. Commw. 107, 521 A.2d 95. We affirm in part and reverse in part.

Appeal of Miller

Appellant Miller alleged that he was harmed by the City and the Water Authority which negligently maintained and operated the municipal water facility which proximately caused a severe outbreak of giardiasis.

[ 521 Pa. Page 80]

In Counts I and II, Appellant Miller alleged that the City and the Water Authority acted negligently and in a proprietary capacity and were liable to him for general damages in trespass. He also alleged that the City and the Water Authority are not protected under the common law theory of sovereign immunity due to the proprietary nature of their actions. In the alternative, Appellant Miller alleged in Counts III and IV that the City and Water Authority acted negligently by maintaining a dangerous condition at the water facility thereby causing the giardiasis epidemic and resulting in harm to him. If the City and the Water Authority are generally immune from suit under section 8541, Appellant Miller asserted that the allegations of Counts III and IV fall within the exceptions to governmental immunity under 42 Pa.C.S.A. ยง 8542.*fn2

[ 521 Pa. Page 81]

Olympic, Inc., the Commonwealth Court's affirmance of the dismissal of the complaint is reversed for the reasons stated in our opinion reversing Gall.


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