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TIFFANY GALL v. ALLEGHENY COUNTY HEALTH DEPARTMENT (03/03/89)

decided: March 3, 1989.

TIFFANY GALL, A MINOR, BY STEPHEN R. GALL, JR., HER PARENT AND NATURAL GUARDIAN, AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
ALLEGHENY COUNTY HEALTH DEPARTMENT, MCKEESPORT MUNICIPAL WATER AUTHORITY, AND THE CITY OF MCKEESPORT, APPELLEES



Appeal from the Order of the Commonwealth Court, entered June 13, 1986, at No. 3741 CD 1984, affirming the Orders of the Court of Common Pleas of Allegheny County, Civil Division, entered July 16, 1984, at No. GD 84-4103

COUNSEL

Randy L. Rayl, Leonard M. Mendelson, Cyril H. Wecht, Pittsburgh, William L. Garvin, Ronald M. Buick, McKeesport, for appellants.

Frederick N. Egler, Jr., Gregory L. Fitzpatrick, Egler, Anstandig, Garrett & Riley, Pittsburgh, for McKeesport Mun. Water Authority.

Ronald H. Heck, Patrick J. Shannon, Ronald H. Heck & Associates, P.C., Robert L. Downey, Jr., Pittsburgh, for City of McKeesport.

John S. Sherry, Pittsburgh, for Allegheny County Health Dept.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Stout, JJ. Papadakos, J., did not participate in the consideration or decision of this case.

Author: Stout

[ 521 Pa. Page 70]

OPINION OF THE COURT

This is an appeal from the affirmance, by the Commonwealth Court, of an Order of the Court of Common Pleas of Allegheny County that sustained preliminary objections, in the nature of a demurrer, of the McKeesport Municipal Water Authority [Water Authority] and the City of McKeesport [City], to the second amended complaint filed by five-year-old Tiffany Gall, her father, Stephen R. Gall, and all others similarly situated. See Gall v. Allegheny County Health Dep't., 98 Pa. Commw. 175, 510 A.2d 926 (1986).

The first amended complaint alleged that The Governmental Immunities Act [Immunities Act], encompassing local agencies by virtue of 42 Pa.Cons.Stat.Ann. § 8541 (Purdon 1982), does not apply because of the exception set forth in 42 Pa.Cons.Stat.Ann. § 8542(b)(5) (Purdon 1982). The complaint also alleged that the defendants' sale of water constituted a breach of the implied warranties of merchantability and fitness for a particular purpose as set forth in the Pennsylvania Uniform Commercial Code, 13 Pa.Cons.Stat.Ann. §§ 2314-2315 (Purdon 1984), respectively.

The gist of the complaint was that plaintiffs became ill with giardiasis and other diseases because the defendants failed to utilize the latest scientific developments to treat and cure water, failed properly to filter the water, failed properly to protect water-retailing systems and water-piping devices to eliminate giardia, failed to take frequent and necessary water samples to determine the existence or non-existence of giardia contamination, and permitted water retaining systems and water piping systems to become contaminated by giardia.

After preliminary objections were sustained, the Galls filed a second amended complaint which alleged, in greater particularity, the duties which the Municipal Authority breached. It also realleged that Immunities Act did not

[ 521 Pa. Page 71]

    apply because of the exception set forth in section § 8542(b)(5).

Paragraph two of the second amended complaint stated:

Paragraphs 18 and 25 are amended to include the following:

The Court sustained the preliminary objections of the Water Authority and of the City and dismissed ...


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