TORTS

Liability • Immunity • Political Subdivision Tort Claims Act

Grey Fox Plaza v. Lycoming Cnty. Water & Sewer Auth., PICS Case No. 14-0269 (C.P. Lycoming Jan. 21, 2014) Anderson, J. (7 pages).

Local agency that installed a water main line under private property without permission or right of way and knowing that it interfered with plaintiff’s planned development was immune from liability under the Political Subdivision Tort Claims Act where plaintiff failed to allege facts sufficient to invoke an exception to immunity. Complaint dismissed.

Plaintiff brought action after defendant allegedly installed a water main line under its private property, without permission or right of way, at a location defendants knew or should have known would interfere with plaintiff’s planned development. Plaintiff further alleged that defendants failed to remove the water line, which caused significant delays to development and lost business profits. Plaintiff sued in trespass, negligence and recklessness, injunctive relief/ejectment, and unlawful taking, seeking damages, punitive damages, and ejectment (removal of water line).

Defendant filed preliminary objections asserting immunity from liability under the Political Subdivision Tort Claims Act. Defendant further argued that lost profits, punitive damages and injunctive relief are not recoverable against a local agency, and that the claim for unlawful taking must be pursued through a proceeding in eminent domain. Plaintiff admitted that the Tort Claims Act applied, but contended that defendant was liable under the real property and utility service facilities exceptions to immunity.

The court of common pleas sustained the preliminary objections and dismissed the complaint without prejudice for plaintiff to file an action to compel defendant to file a declaration of taking.

Plaintiff’s complaint did not assert facts sufficient to invoke either the real property or the utility services exception to governmental immunity. Under these exceptions, the government is liable for the negligent care of property in its possession or a “dangerous condition.” Plaintiff alleged only negligent installation of a water line (the negligence consisting of an alleged incorrect placement) and that the waterline would become a dangerous condition if it was to proceed with development. Thus, plaintiff’s claims failed.

Furthermore, punitive damages are not recoverable against a local agency; injunctive relief is available under the act provided plaintiff fits within the exceptions.

Plaintiff’s claim for unlawful taking should have been brought as an action in equity to compel defendant to file a declaration of taking.