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Morewood Point Community Association v. Port Authority of Allegheny County

January 28, 2010

MOREWOOD POINT COMMUNITY ASSOCIATION, APPELLANT
v.
THE PORT AUTHORITY OF ALLEGHENY COUNTY AND BWC DEVELOPMENT, INC., BRANDIMARTI BUILDERS, INC. AND UNKNOWN ENGINEERS
v.
BWC DEVELOPMENT, INC., BRANDIMARTI BUILDERS, INC., AND UNKNOWN ENGINEERS



Per curiam.

ORDER

NOW, April 8, 2010, it is ordered that the above-captioned Memorandum Opinion, filed January 28, 2010, shall be designated OPINION and shall be REPORTED.

Argued: December 7, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.

OPINION

JUDGE COHN JUBELIRER

Morewood Point Community Association (the Association) appeals from an order of the Court of Common Pleas of Allegheny County (trial court), which denied the Association's Motion for Post-Trial Relief (Motion) requesting judgment notwithstanding the verdict (judgment NOV).*fn1 The Association, as the owner of adjacent land, brought a negligence action against the Port Authority of Allegheny County (Port Authority) seeking monetary damages and injunctive relief for damages resulting from a landslide. Following the trial, the jury returned a verdict in favor of the Port Authority. In this case, we are asked to consider whether a landowner is negligent, as a matter of law, where it has notice of earth movement/sliding on its property that may threaten the stability of adjoining land, but fails to prevent further earth movement/sliding.

The Port Authority owns and operates the Martin Luther King, Jr. East Busway (Busway) in the City of Pittsburgh. The Port Authority also owns the hillside that runs adjacent to a portion of the Busway and is adjacent to property owned by the Association. It is on this hillside that the earth movement/sliding occurred. The Port Authority purchased the land for the Busway, including the adjacent hillside, from Conrail in 1978 or 1979 (Trial Ct. Hr'g Tr. at 213, R.R. at 213a), and the Port Authority opened the Busway in 1983. (Trial Ct. Op. at 1.) To construct the Busway, the Port Authority had to cut into a small portion of the base of the hillside. (Trial Ct. Hr'g Tr. at 225-28, 253, R.R. at 225a-28a, 253a.) The hillside, which is covered by trees and other vegetation, slopes upward from the Busway approximately 70 feet and is bordered by chain link fencing at the top and bottom. (Trial Ct. Op. at 1.) Except for performing minor tree trimming work, the Port Authority has performed no work on the hillside since the Busway opened. (Trial Ct. Op. at 1.)

In the late 1980s and early 1990s, BWC Development, Inc. (Developer) and Brandimarti Builders (Builder) developed and constructed a planned community of condominiums, known as Morewood Point, adjacent to the top edge of the hillside. (Trial Ct. Op. at 2; Trial Ct. Hr'g Tr. at 53, R.R. at 53a.) Several of the condominiums in Morewood Point are located near the edge of the hillside and are separated from the hillside only by the common areas running behind those units. (Sketch 1 of Report of GAI Consultants, Ex. D of Complaint, R.R. at 379a.) As evidenced by aerial photographs and engineering studies, additional fill was added to the Port Authority-owned hillside by Developer and/or Builder sometime after the Busway opened, but before Morewood Point was completed. (Trial Ct. Op. at 2; Trial Ct. Hr'g Tr. at 54-55, 262-63, R.R. at 54a-55a, 262a-63a.)

In early June of 2005, the Association, which is composed of Morewood Point condominium owners, discovered signs of earth movement/sliding in the common areas immediately adjacent to the hillside owned by the Port Authority. (Trial Ct. Op. at 2; Letter from Edward F. Zehfuss, President of Arnheim & Neely, Inc., Managing Agent of the Association, to John Ehmer, of the Port Authority (June 8, 2005), Association's Ex. 2, R.R. at 500a.) The Association notified the Port Authority of the situation and asked it to investigate. (Joint Stipulations ¶¶ 1-2, R.R. at 351a-52a.) The Port Authority investigated the situation (Joint Stipulations ¶ 2, R.R. at 351a-52a), and its in-house civil engineer opined that the earth movement/sliding was caused by a sinkhole. (Trial Ct. Op. at 2; Inspection Report of D.A. Cook at 1-2, Association's Ex. 10, R.R. at 511a-12a.)

Although the Port Authority initially agreed to share its engineering findings, it subsequently refused to provide them to the Association. (Joint Stipulations ¶¶ 3-4, R.R. at 351a-52a.) The Association sent the Port Authority numerous letters requesting the engineering findings and asking that it remedy the situation, but the Port Authority refused to produce the documents and took no steps to remedy the situation. (Joint Stipulations ¶ 5, R.R. at 351a-52a; see, e.g., Letter from Fred C. Jug, Jr., Counsel for the Association, to Arthur E. Hussey, Jr., P.E., Manager of Real Estate Services for the Port Authority (July 5, 2005), Association's Ex. 8, R.R. at 508a.)

In April of 2006, the Association filed its Complaint with the trial court, averring that: the earth movement/sliding originated on the Port Authority's property due to the Port Authority's cutting away part of the hillside and use of fill on the hillside during the construction of the Busway; and that the Port Authority had a duty to correct the dangerous condition on its property. (Complaint ¶ 29, R.R. at 360a.) The Association further claimed that the Port Authority breached its duty and caused the Association to suffer damages. (Complaint ¶¶ 29, 32, R.R. at 360a-61a.) The Association sought the following relief: judgment against the Port Authority for monetary damages exceeding $25,000.00; an injunction requiring the Port Authority to produce all of its engineering studies and related documents; and an injunction granting the Association a construction easement to repair the hillside. (See Count I of Complaint, R.R. at 362a; Complaint at ¶¶ B-D, R.R. at 364a.) After the Association filed the Complaint, the Port Authority provided a copy of its engineering findings to the Association. (Joint Stipulations ¶ 5, R.R. at 351a-52a.)

The Association subsequently filed an Amended Complaint in which it alleged that further property damage occurred as the result of a May 2, 2006 landside. (Amended Complaint ¶¶ 45, 47, R.R. at 416a-17a.) The Association claimed that the Port Authority owed a duty to provide lateral support to the Association's property and owed a duty to prevent further damages where the Port Authority was or should have been aware that a dangerous condition existed on its own property. (Amended Complaint ¶ 48, R.R. at 417a.) The Association further alleged that the Port Authority breached these duties. (Amended Complaint ¶ 49, R.R. at 417a.)

The Port Authority filed an Answer and New Matter denying that it was negligent and raising several affirmative defenses, including sovereign immunity under the act commonly referred to as the Sovereign Immunity Act, 42 Pa. C.S. ยงยง 8521-8528. (Answer and New Matter at 1-12, R.R. at 422a-33a.) The Port Authority also filed a Counterclaim asserting that the Association, or its predecessors in interest, had caused the landslide and the resulting damage to the Port Authority's property because they: converted the Port Authority's property; trespassed on the Port Authority's property; and committed negligence by constructing a fence on the Port Authority's property and by substantially ...


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