Roger G. Gibellino, Appellant
Argued: December 10, 2014.
Appealed from No. 2013-SU-2664-84. Common Pleas Court of the County of York. Ness.
Larry C. Heim, York, for appellant.
John J. Mahoney, Chester Springs, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI. Judge McCullough joins in this Concurring and Dissenting opinion.
DAN PELLEGRINI, President Judge
Roger G. Gibellino (Gibellino) appeals the order of the Court of Common Pleas of York County (trial court) sustaining the preliminary objections of Manchester Township (Township) and dismissing without prejudice Gibellino's second amended complaint (Complaint) alleging liability for damages caused by a backflow of raw sewage onto his property caused by negligent backflow devices installed by the Township. We affirm.
Gibellino owns commercial property with improvements at 2474 North George Street in the Township. The Township owns and maintains sewer and storm lines
that are connected to Gibellino's property. In September 2004, the remnants of Hurricane Ivan caused a surcharge of the Township's sewage system which damaged his property. (Complaint at ¶ 5).
In December 2004, the Township sent Gibellino a letter stating that " Township is willing to install, at its expense, a manually closing backwater valve on the lowest portion of the building drain which serves your property." (Complaint Exhibit A at 1). The letter continued:
Please be advised that while automatically closing backwater valves are available, the cost of this style [of] backwater valve is significantly higher than a manual style valve ... an automatic style valve, when closed, would prohibit any discharge of waste water from a plumbing fixture in your building.... [The Township] would be willing to install an automatic style valve on your building drain, however, because of [the Township's] 1995 policy, you would be responsible for paying the cost difference between the two different types of valves.
Id. at 1-2).
In June 2005, the Township sent Gibellino another letter stating:
[The Township] has received proposals for an automatic operating backwater valve and a manual backwater valve. The lowest proposal price was submitted by Bryan Mechanical. As per the attached proposal your portion of the costs would be $2,382.00 for the installation of the automatic operating backwater valve. If this cost is acceptable ...