The opinion of the court was delivered by: President Judge Leadbetter
SUBMITTED: September 5, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Linda H. McCarthy (McCarthy) appeals from an order of the Court of Common Pleas of Lehigh County (trial court) that granted a motion for summary judgment in favor of the City of Bethlehem (City) in her action seeking to recover for damage to her property allegedly caused by the City's negligent maintenance of its sanitary and storm water sewer system. McCarthy argues that the trial court improperly granted summary judgment in favor of the City because genuine issues of suggestive material fact exist regarding the City's liability under the utility service facilities exception to governmental immunity, set forth in Section 8542(b)(5) of the Judicial Code, as amended, 42 Pa. C.S. § 8542(b)(5). She further argues that the trial court abused its discretion in granting the motion for summary judgment based, in part, on her failure to comply with the Lehigh County Rules of Civil Procedure (local rules), which required her to timely file a brief in opposition to the motion.
McCarthy owns a residential property located at 1847 Homestead Avenue, Bethlehem, Lehigh County. She commenced an action against the City in 2006, alleging that her house and personal property sustained damages on October 8, 2005, when the lower level of her house was flooded with raw sewage and storm water during a major rainstorm. She averred that the damages were caused by the City's failure to properly repair, maintain and upgrade the sewer system despite numerous requests made by her and her neighbors. The City filed an answer and new matter, denying McCarthy's allegations and raising the affirmative defense of governmental immunity. The City alleged that her claim did not fall within the utility service facilities exception to governmental immunity.
After completion of discovery, the City filed a motion for summary judgment. The City claimed that McCarthy's action was barred by governmental immunity because the evidence failed to show that her property was damaged by a dangerous condition of the City's sewer system. In support, the City attached to the motion an ACCU Weather report noting that 8.72 inches of rain fell at the Lehigh Valley International Airport on October 8, 2005, which was two to three times the normal rainfall for the entire month of October. The City also relied on McCarthy's testimony that the sump pump in her basement shut off during the October 8, 2005 rainstorm due to power failure. McCarthy testified:
I came home from work [on October 8, 2005] and the sump pump was pumping when I got to the house. I went in and went downstairs and the power went off. The sump pump wasn't doing too bad until the power went off. And when the power went off the sewage just rose like unbelievable. I don't know how to describe it. We are talking raw sewage with peoples' tampons and things.
McCarthy's Deposition at 9-10; Reproduced Record (R.R.) at 44-45. The City also attached McCarthy's answer to the City's first set of interrogatories, in which she stated that her house flooded only once before the October 8, 2005 rainstorm. The City claimed that the property damages were caused by the power failure during the rainstorm, not by a malfunction of the City's sewer system, and that the City was not liable for the damages resulting from the record rainfall, which constituted a superseding cause.
McCarthy timely filed an answer to the motion, denying that her claim was barred by governmental immunity. She stated that she experienced storm water and sewage flowing into her property numerous times before the October 8, 2005 rainstorm. She further stated that, "[t]he damage suffered by Plaintiff was a result of the infiltration of raw sewage and/or storm water into her house to a substantial depth, which caused the electrical failure and resulted in the increase in raw sewage and/or storm water into her property." McCarthy's Answer to the Motion for Summary Judgment, ¶ 20; R.R. at 85. She denied that the rainfall during the storm was a superseding cause of the damages.
The trial court granted the City's motion and entered summary judgment in favor of the City and against McCarthy, determining that there was no genuine issue of material fact. The court stated that McCarthy "only draws conclusions of law and makes factual averments as to cause without providing evidence to support same." Trial Court's Order dated January 30, 2008, n. 1. The court also relied on McCarthy's failure to file a brief in opposition to the motion. McCarthy filed a motion for reconsideration and sought permission to file a brief and to present oral argument. The court denied her motion. McCarthy's appeal to this court followed.
Rule No. 1035.2 of the Pennsylvania Rules of Civil Procedure provides that any party may move for summary judgment in whole or in part as a matter of law:
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, . an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
For the purpose of summary judgment, a factual issue is considered material "if its resolution could affect the outcome of the case under the governing law." Strine v. Med. Care Availability & Reduction of Error Fund, 586 Pa. 395, 402, 894 A.2d 733, 738 (2006). Summary judgment may be granted when, viewing all the facts in the light most favorable to the nonmoving party and resolving all doubt as to the existence of material fact against the moving party, the moving party is entitled to judgment as a matter of law. Dep't of Transp. v. UTP ...