In Gibellino v. Manchester Township, 45. C.D. 2014 (Pa. Cmwlth., filed 1/23/2015), the Commonwealth Court decided whether the Township was liable for damages caused by a backflow of raw sewage into Gibellino’s property. In 2004, Hurricane Ivan created a surcharge of the Township’s sewage system that damaged Gibellino’s commercial property. The Township wrote to Gibellino and offered to install a manually-closing backflow valve. The Township also agreed to install an automatic-closing backflow valve, but Gibellino would have to pay for that. Gibellino opted to put in both valves, and the valves were installed by the Township’s contractor on Gibellino’s property. As luck would have it, there was a surcharge of the sewage system in 2011, both valves failed, and the raw sewage again backed up into the property. Gibellino filed a complaint against the Township claiming breach of contract and implied warranty, and a negligence claim. The Township filed preliminary objections based in the Political Subdivision Tort Claims Act [“PSTCA”]. The lower court sustained the objections and dismissed the complaint on the grounds that the breach of contract claim was actually a “disguised” tort claim, and, like the negligence claim, was barred by the PSTCA since the Township did not own the valves and the valves were not installed in the Township’s right-of-way. The Commonwealth Court affirmed the lower court.
As to the breach of contract claim, the Commonwealth Court relied on Schreck v. North Codorus Township, 559 A.2d 1018 (Pa. Cmwlth. 1989) to reject the implied warranty claim since it was not alleged that either the Township or its officer sold “goods” impliedly warranted under the Pennsylvania Commercial Code. Since the breach of contract claim was premised on the improper installation of the backflow valves, which is a negligence claim, Gibellino cannot couch the negligence claim as a breach of implied warranty to avoid the immunity provisions of the PSTCA.
As for the negligence claim, Gibellino argued that the Township was negligent in maintaining its sewer system because it did not take any meaningful measures to stop the repeated surcharges in times of high water flow – thereby creating a “dangerous condition” under the PSTCA and subjecting the Township to liability. The Commonwealth Court held that while the Township may be liable for damages resulting from negligent construction or failure to repair its sewer system at common law, it is not liable for the inadequacy of the system. Since Gibellino’s negligence claim was based on the inadequacy of the sewer system to handle surcharges during high water flows, and not negligent construction or repair, the claim was barred by the PSTCA.
Two judges dissented from the majority opinion throwing out the breach of contract claim. They felt that the Township’s letter to Gibellino sounded in contract, not tort. The Township offered to supply and install for a fee an automatically closing backflow valve that would “eliminate the need for you or your agent to manually close the valve,” and “when closed, would prohibit any discharge of water from a fixture in your building.” The dissent reasoned that the thrust of Gibellino’s claim is that he had a “bargained-for” expectation that by paying a price for the purchase and installation of an automatically closing backflow valve, he could prevent a repeat of the surcharges into his property. The dissent would have allowed this claim to go forward.
The take away from the dissent’s opinion is that in situations like this, it may be best for the municipality to offer to reimburse a property owner for a backflow valve, but not to do the installation itself.