Grey Fox Plaza v. Herbert, Rowland and Grubic, Inc. ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Grey Fox Plaza, Thomas Krouse, :
Donna Krouse and Steven Krouse, :
Appellants :
: No. 344 C.D. 2016
v. : Argued: December 12, 2016
:
Herbert, Rowland and Grubic, Inc. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: January 30, 2017
This is an appeal filed by Grey Fox Plaza, Thomas Krouse, Donna
Krouse and Steven Krouse (Plaintiffs) from orders of the Court of Common Pleas
of Lycoming County (trial court) in a civil negligence and trespass action
dismissing their claims against the Lycoming County Water & Sewer Authority
(Authority) on preliminary objections and granting summary judgment in favor of
the remaining defendant, Herbert, Rowland and Grubic, Inc. (HRG).1 For the
reasons set forth below, we affirm.
1
The caption in this appeal lists only HRG as a defendant due to the fact that the caption of both
the trial court’s final order and Plaintiffs’ notice of appeal listed only HRG and omitted all
defendants dismissed on preliminary objections. The original caption in the trial court was Grey
Fox Plaza, Thomas Krouse, Donna Krouse, and Steven Krouse v. Lycoming County Water &
Sewer Authority; Herbert, Rowland and Grubic, Inc.; and David Swisher, P.E.
Plaintiffs’ action arose out of the Authority’s installation of a water
line on Plaintiffs’ Grey Fox Plaza property in Fairfield Township, Pennsylvania
(the Property). In 2009, Plaintiffs agreed to convey approximately one acre of land
that they owned adjoining the Property (which was originally also part of the Grey
Fox Plaza property) to the Authority. (Complaint ¶23, R.R. at 19.)2 This
conveyance was made so the Authority could construct a water tower on the
conveyed lot, and the Authority agreed in exchange to install water and sewer main
service to all of Plaintiffs’ Grey Fox Plaza lots that did not already have water and
sewer main service. (Id. ¶¶23-24, R.R. at 19.)
HRG, an engineering firm hired by the Authority, prepared a Grey
Fox Plaza Subdivision Plan (the Subdivision Plan) in connection with this
conveyance. (Complaint ¶¶25-27, R.R. at 19-20.) The Subdivision Plan showed a
street with a 50-foot wide right-of-way, Grey Fox Drive, extending from Lycoming
Mall Drive at one end of the Property to a cul-de-sac beyond the lot that was
conveyed to the Authority. (Id. Ex. A, R.R. at 40-41.) On February 5, 2010,
Plaintiffs executed a “Certification of Ownership, Acknowledgement of Plan and
Offer of Dedication” on the Subdivision Plan stating under oath that
THEY ARE THE OWNERS AND EQUITABLE OWNER,
RESPECTIVELY, OF THE PROPERTY SHOWN ON THIS
PLAN, THAT THE PLAN THEREOF WAS MADE AT
THEIR DIRECTION, THAT THEY ACKNOWLEDGE THE
SAME TO BE THEIR ACT AND PLAN, THAT THEY
DESIRE THE SAME TO BE RECORDED, AND THAT
2
Plaintiffs allege that plaintiffs Thomas Krouse, Donna Krouse and Steven Krouse own the
Property and that plaintiff Grey Fox Plaza is the name under which they are doing business.
(Complaint ¶¶1-2, R.R. at 16.) Steven Krouse, however, did not become an owner of the
Property until December 2012. (Preliminary Injuction Hearing Transcript (H.T.) at 17-18, R.R. at
870-871.)
2
ALL STREETS AND OTHER PROPERTY IDENTIFIED
AS PROPOSED PUBLIC PROPERTY (EXCEPTING
THOSE AREAS LABELED ‘NOT FOR DEDICATION’)
ARE HEREBY DEDICATED TO THE PUBLIC USE.
(Id. ¶30 & Ex. A, R.R. at 20-21, 40) (emphasis added). The Subdivision Plan was
approved by Fairfield Township (Township) and was recorded on February 25,
2009. (Id. ¶25 & Ex. A, R.R. at 19, 40; Plaintiffs’ Answer to HRG Summary
Judgment Motion ¶19, R.R. at 611.) At the time, only part of Grey Fox Drive had
been paved and was in use as a street; the portion of Grey Fox Drive shown on the
Subdivision Plan as running alongside the Authority’s lot to the cul-de-sac had not
been constructed and has never been constructed. (Complaint ¶29, R.R. at 20;
Plaintiffs’ Answer to HRG Summary Judgment Motion ¶20, R.R. at 611;
Preliminary Injuction Hearing Transcript (H.T.) at 25-26, 36-37, R.R. at 878-879,
889-890.)
In May 2011, Plaintiffs signed a Grant of Pipeline and Construction
Easement that granted the Authority a 40-foot wide temporary construction
easement and a 20-foot wide permanent pipeline easement on the undeveloped
portion of the Property for a water line that would run from the water tower that
the Authority had constructed on its lot. (Complaint ¶¶35-38 & Ex. B, R.R. at 22,
84; HRG Summary Judgment Motion ¶¶25-26 & Ex. K, R.R. at 406, 513-519;
Plaintiffs’ Answer to HRG Summary Judgment Motion ¶¶25-26, R.R. at 612.)
These easements were located alongside the unbuilt portion of Grey Fox Drive on
the opposite side from the Authority’s lot and water tower, but did not include the
connecting land within the 50-foot wide Grey Fox Drive right-of-way shown on
the Subdivision Plan. (HRG Summary Judgment Motion Ex. K, R.R. at 513-519;
Plaintiffs’ Answer to HRG Summary Judgment Motion ¶¶25-26, R.R. at 612.) The
map attached to the Grant of Pipeline and Construction Easement signed by
3
Plaintiffs, however, showed that the water line would cross the unbuilt portion of
Grey Fox Drive. (HRG Summary Judgment Motion Ex. K, R.R. at 519; Complaint
¶¶35-38 & Exs. B & C, R.R. at 22, 43, 46.) In September 2011, the Authority
installed the water line under the unbuilt portion of Grey Fox Drive at the location
depicted on the map attached to the Grant of Pipeline and Construction Easement.
(HRG Summary Judgment Motion ¶31, R.R. at 407; Plaintiffs’ Answer to HRG
Summary Judgment Motion ¶31, R.R. at 614.)
On April 24, 2013, Plaintiffs commenced this action against the
Authority, HRG, and an HRG engineer. Plaintiffs alleged in their Complaint that
they did not grant the Authority any right-of-way or easement to install the water
line under the unbuilt portion of Grey Fox Drive and asserted that defendants were
therefore liable for trespass and for negligence in placing the line on Plaintiffs’
property without permission. (Complaint ¶¶2, 40, 50, 53-59, 61(a), (c), (e), (g),
(k)-(n), 63(a), (c), (e), (j)-(n), (p), 65(a), (c), (e), (j)-(n), (p), 67-72, R.R. at 16, 23-
34.) Plaintiffs also alleged that defendants negligently installed the water line
under the unbuilt Grey Fox Drive at an improper depth and location that interferes
with the construction of Grey Fox Drive and with Plaintiffs’ planned Grey Fox
Plaza Phase II development on the Property. (Id. ¶¶42, 61(b), (d), (h)-(i), 63(b),
(d), (g)-(h), 65(b), (d), (g)-(h), R.R. at 23, 26-29, 31-32.) This improper depth and
location claim was based on the contentions that the water line was installed four
feet underground near a steep slope and that compliance with the Township’s road
grade standards would require that Grey Fox Drive be constructed below the
original surface of the land at the point where the water line was installed. (H.T. at
37, 42, 50-51, R.R. at 890, 895, 903-904.) Plaintiffs specifically asserted in the
Complaint that their negligence claims were for professional negligence.
4
(Complaint ¶¶10, 14, 18, 20, R.R. at 17-19.) Plaintiffs’ Complaint requested an
injunction or judgment in ejectment requiring removal of the portion of the water
line that is under the unbuilt Grey Fox Drive. (Complaint ¶47 & Count V, R.R. at
24, 34-35.) Plaintiffs’ Complaint also sought damages for financial losses from
the inability to complete Grey Fox Plaza Phase II, increased costs of developing
the Property, and diminished value of the Property. (Complaint ¶¶44-46, 49, 58,
73-75, R.R. at 23-25, 34-35.)3
The Authority filed preliminary objections seeking dismissal of
Plaintiffs’ claims against it on the ground that they were barred by governmental
immunity under Sections 8541 and 8542 of the Judicial Code, commonly referred
to as the Political Subdivision Tort Claims Act (PSTCA), 42 Pa. C.S. §§ 8541-
8542. On January 21, 2014, the trial court sustained the Authority’s preliminary
objections and dismissed all of Plaintiffs’ claims against the Authority without
prejudice to Plaintiffs’ right to file an action to compel the Authority to file a
declaration of taking. (1/21/14 Trial Court Op.) Defendants HRG and the HRG
engineer also filed preliminary objections. Plaintiffs, in response, agreed to
dismiss their claims against the individual HRG engineer without prejudice and the
trial court dismissed him from the action, but the trial court overruled HRG’s
preliminary objections challenging the specificity of Plaintiffs’ allegations against
it. (12/20/13 Trial Court Order.)
3
With their Complaint, Plaintiffs filed a petition for issuance of a preliminary injunction
directing the Authority to remove and relocate the water line, but following a hearing on that
petition, Plaintiffs withdrew their request for preliminary injunctive relief, without prejudice to
their right to seek a permanent injunction at trial. Plaintiffs’ Complaint also sought punitive
damages, but the trial court granted the Authority’s and HRG’s preliminary objections to
Plaintiffs’ punitive damages claims (1/21/14 Trial Court Op. at 5; 12/20/13 Trial Court Order at
2), and Plaintiffs do not challenge the dismissal of their punitive damages claims in this appeal.
5
Following the trial court’s preliminary objections rulings, HRG
answered the Complaint and Plaintiffs and HRG proceeded with discovery. In
discovery, HRG served interrogatories on Plaintiffs that included expert
interrogatories. Plaintiffs responded to HRG’s expert interrogatories stating that
they had “not yet determined which experts will be called at the time of trial” and
did not identify any expert witnesses. (Plaintiffs’ Responses to HRG’s
Interrogatories, R.R. at 580-587.) The trial court’s scheduling order required that
Plaintiffs provide expert reports by September 25, 2015 and that the parties
complete discovery by November 20, 2015. (8/10/15 Amended Scheduling Order,
R.R. at 466.) Plaintiffs never supplemented their interrogatory answers to identify
any expert witnesses and did not produce any expert reports.
On November 30, 2015, after discovery was closed, HRG filed a
motion for summary judgment, asserting, inter alia, that Plaintiffs’ trespass claims
were barred by their dedication in the Subdivision Plan and consent to the
placement of the water line at the location under the unbuilt portion of Grey Fox
Drive where it was installed and that Plaintiffs’ lack of expert testimony prevented
them from proving their negligence claims. Plaintiffs did not file any affidavit or
opinion of any expert in response to HRG’s summary judgment motion. On
February 3, 2016, the trial court granted summary judgment to HRG based on the
dedication in the Subdivision Plan and Plaintiffs’ failure to offer expert opinion in
support of their claims. (2/3/16 Trial Court Op.) On March 3, 2016, Plaintiffs
timely appealed both the trial court’s summary judgment order and its order
sustaining the Authority’s preliminary objections, which became final upon the
entry of summary judgment for the last remaining defendant, HRG.
6
Before this Court, Plaintiffs argue: 1) that their claims against the
Authority are not barred by governmental immunity; 2) that their failure to identify
experts and produce expert reports did not prevent them from proving their claims;
and 3) that the dedication in the Subdivision Plan did not include the unbuilt
portion of Grey Fox Drive and therefore does not bar their trespass claims. We
address each of these issues in turn. Because this is an appeal from summary
judgment and the sustaining of preliminary objections in the nature of a demurrer,
our standard of review is de novo and our scope of review is plenary. Pyeritz v.
Commonwealth, 32 A.3d 687, 692 (Pa. 2011); Gale v. City of Philadelphia, 86
A.3d 318, 319 n.1 (Pa. Cmwlth. 2014).
The Authority’s Governmental Immunity
Section 8541 of the PSTCA provides that “[e]xcept as otherwise
provided in this subchapter, no local agency shall be liable for any damages on
account of any injury to a person or property caused by any act of the local agency
or an employee thereof or any other person.” 42 Pa. C.S. § 8541. This immunity
applies both to damages claims and to claims for injunctive relief that require the
government agency to take affirmative action to make physical alterations to
property. Swift v. Department of Transportation, 937 A.2d 1162, 1168 & n.7 (Pa.
Cmwlth. 2007) (“The General Assembly has not waived immunity for equitable
claims seeking affirmative action by way of injunctive relief”); Bonsavage v.
Borough of Warrior Run, 676 A.2d 1330, 1331 (Pa. Cmwlth. 1996). Compare E-Z
Parks, Inc. v. Larson, 498 A.2d 1364, 1369-70 (Pa. Cmwlth. 1985), aff’d without
op., 503 A.2d 931 (Pa. 1986) (injunction restraining local agency from taking
action is not barred by PSTCA because it is not a damages claim). The term “local
7
agency” is defined as including any “government unit other than the
Commonwealth government.” 42 Pa. C.S. § 8501. There is no dispute that the
Authority is a local agency.
Section 8542 of the PSTCA provides:
(a) Liability imposed.--A local agency shall be liable for
damages on account of an injury to a person or property
within the limits set forth in this subchapter if both of the
following conditions are satisfied and the injury occurs as a
result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or
a statute creating a cause of action if the injury were caused
by a person not having available a defense under section 8541
(relating to governmental immunity generally) or section 8546
(relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local
agency or an employee thereof acting within the scope of his
office or duties with respect to one of the categories listed in
subsection (b). As used in this paragraph, “negligent acts”
shall not include acts or conduct which constitutes a crime,
actual fraud, actual malice or willful misconduct.
42 Pa. C.S. § 8542(a) (emphasis added). The eight categories set forth in Section
8542(b) of the PSTCA as to which immunity is waived include “[r]eal property”
and “[u]tility service facilities.” 42 Pa. C.S. § 8542(b)(3), (5). Plaintiffs contend
that their claims fall within either the real property exception or the utility service
facilities exception and do not claim that any of the other exceptions to immunity
in Section 8542(b) of the PSTCA are applicable to this case.
8
The real property exception permits imposition of liability on a local
agency for negligent acts with respect to the “care, custody or control of real
property in the possession of the local agency,” but specifically excludes claims
arising out of “facilities of steam, sewer, water, gas and electric systems owned by
the local agency and located within rights-of-way.” 42 Pa. C.S. § 8542(b)(3)
(emphasis added).4 The utility service facilities exception permits imposition of
liability on a local agency for negligent acts with respect to “[a] dangerous
condition of the facilities of steam, sewer, water, gas or electric systems owned by
the local agency and located within rights-of-way.” 42 Pa. C.S. § 8542(b)(5)
(emphasis added).5 Because the real property exception excludes utility facilities
4
Section 8542(b)(3) provides:
Real property.--The care, custody or control of real property in the possession
of the local agency, except that the local agency shall not be liable for damages
on account of any injury sustained by a person intentionally trespassing on real
property in the possession of the local agency. As used in this paragraph, “real
property” shall not include:
(i) trees, traffic signs, lights and other traffic controls, street lights and street
lighting systems;
(ii) facilities of steam, sewer, water, gas and electric systems owned by the local
agency and located within rights-of-way;
(iii) streets; or
(iv) sidewalks.
42 Pa. C.S. § 8542(b)(3).
5
Section 8542(b)(5) provides:
Utility service facilities.--A dangerous condition of the facilities of steam,
sewer, water, gas or electric systems owned by the local agency and located
within rights-of-way, except that the claimant to recover must establish that the
dangerous condition created a reasonably foreseeable risk of the kind of injury
(Footnote continued on next page…)
9
“located within rights-of-way” and the utility service facilities exception is limited
to utility facilities “located within rights-of-way,” these immunity exceptions are
mutually exclusive.
Plaintiffs argue that if the Authority did not have a valid right-of-way
under the unbuilt portion of Grey Fox Drive, the Section 8542(b)(3)(ii) exclusion
of water and other systems “located within rights-of-way” is not satisfied and the
real property exception applies, and contend that the utility service facilities
exception applies only if the Authority had a valid right-of-way. This assertion is
incorrect. The phrase “located within rights-of-way” in Section 8542(b) does not
require a legally valid right-of-way and the language “facilities of steam, sewer,
water, gas or electric systems owned by the local agency and located within rights-
of-way” encompasses pipelines and other equipment installed on land off the local
agency’s property, even where the agency has no valid right-of-way or easement.
County of Allegheny v. Dominijanni, 531 A.2d 562, 564-65 (Pa. Cmwlth. 1987)
(utility service facilities exception applies to sewer pipe installed on private
property without owner’s permission); see also Primiano v. City of Philadelphia,
739 A.2d 1172, 1174-76 (Pa. Cmwlth. 1999) (utility service facilities exception
applied to city-owned water meter on plaintiff’s property). Because the segment of
the water line at issue here is on a strip of land that is not on or intended to be part
(continued…)
which was incurred and that the local agency had actual notice or could
reasonably be charged with notice under the circumstances of the dangerous
condition at a sufficient time prior to the event to have taken measures to protect
against the dangerous condition.
42 Pa. C.S. § 8542(b)(5).
10
of the Authority’s lot, the water line is “located within rights-of-way” within the
meaning of that term under the PSTCA, regardless of whether the Authority had a
legal right to install the water line under the unbuilt portion of Grey Fox Drive.
Dominijanni, 531 A.2d at 564-65. The real property exception is therefore
inapplicable and only the utility service facilities exception, Section 8542(b)(5),
can provide an exception to the Authority’s immunity.
Unlike the real property exception, the utility service facilities
exception requires not merely that the agency property caused damage, but that the
plaintiff show a “dangerous condition” of the agency property. 42 Pa. C.S. §
8542(b)(5). Plaintiffs contend that they have satisfied this requirement because
they have alleged that the location of the water line causes or creates “a dangerous
condition that interferes with Plaintiffs’ planned development” and “a dangerous
condition that interferes with the use of Grey Fox Drive as a street” and that it
“creates a dangerous condition to the extent that if Grey Fox Drive is constructed
as planned, the subject water line would be exposed above ground rending [sic] the
street impassable.” (Complaint ¶¶5, 42, 61(h)-(i), R.R. at 16-17, 23, 26-27.)
Ordinarily, what constitutes a dangerous condition under exceptions
to immunity is a question of fact for the jury. Bendas v. Township of White Deer,
611 A.2d 1184, 1186-87 (Pa. 1992); Falor v. Southwestern Pennsylvania Water
Authority, 102 A.3d 584, 587 (Pa. Cmwlth. 2014); Le-Nature’s, Inc. v. Latrobe
Municipal Authority, 913 A.2d 988, 994 (Pa. Cmwlth. 2006). The cases stating
that dangerousness is a jury question, however, involve situations where there was
a personal injury or physical damage to property that could support a claim of
danger, not a claim that the condition is “dangerous” solely because it impairs
certain future uses of a property. See, e.g., Bendas, 611 A.2d at 1185 (absence of
11
traffic control devices caused motor vehicle accident); Falor, 102 A.3d at 585
(burst water pipe); Le-Nature’s, Inc., 913 A.2d at 990 (damaged sewer line). In
contrast, mere inadequacy of a utility system to serve a property owner’s needs
does not constitute a condition for which immunity is waived by Section
8542(b)(5). See Sobat v. Borough of Midland, 141 A.3d 618, 620, 624-26 (Pa.
Cmwlth. 2016) (improper height of sewer line that required additional pump did
not fall within Section 8542(b)(5) waiver of immunity). Whether a local agency
is immune under the facts alleged is a question of law. Sobat, 141 A.3d at 624;
Falor, 102 A.3d at 587; Le-Nature’s, Inc., 913 A.2d at 994.
Here, there is no claim that any condition of the water line or its
location itself has caused or threatens to cause personal injury or property damage.
There is, for example, no claim that the depth of the water line creates a risk of the
line freezing and bursting. Rather, the only “danger” alleged by Plaintiffs is that
the water line’s presence interferes with their intended development of the Property
and that they allegedly cannot construct their proposed road as a result of the water
line’s depth and location. “It is a fundamental principle of statutory construction
that each word in a statutory provision is to be given meaning and not be treated as
mere surplusage.” Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal
Board (Ketterer), 87 A.3d 942, 947-48 (Pa. Cmwlth. 2014); see also Statutory
Construction Act of 1972, 1 Pa. C.S. § 1921(a); In re Employees of Student
Services, 432 A.2d 189, 195 (Pa. 1981). Moreover, the exceptions to
governmental immunity are to be construed narrowly. Sobat, 141 A.3d at 624;
Gale, 86 A.3d at 320. Construing the utility service facilities exception to apply to
the impairment of use of property alleged by Plaintiffs would read the word
“dangerous” out of Section 8542(b)(5) and would be inconsistent with the
12
requirement that the exceptions to immunity must be construed narrowly. Because
Plaintiffs’ claims do not arise out of a dangerous condition of the Authority’s water
line, the trial court correctly held that Plaintiffs’ claims do not satisfy the
requirements of the utility services exception to governmental immunity. 6
Plaintiffs also argue that the Authority is not immune because they
have alleged willful misconduct. This contention is plainly without merit. The
PSTCA expressly limits the exceptions to local agency immunity to negligence
claims and does not waive local agency immunity for claims of willful misconduct.
42 Pa. C.S. § 8542(a)(2); Orange Stones Co. v. City of Reading, 87 A.3d 1014,
1022 (Pa. Cmwlth. 2014); City of Philadelphia v. Brown, 618 A.2d 1236, 1238-39
(Pa. Cmwlth. 1992); City of Philadelphia v. Glim, 613 A.2d 613, 617 (Pa. Cmwlth.
1992). Willful misconduct is an exception to the official immunity of local agency
6
The Court notes that in Rawlings v. Bucks County Water and Sewer Authority, 702 A.2d 583
(Pa. Cmwlth. 1997), this Court held that a local agency was not immune under the PSTCA from
a claim for trespass damages and ejectment where it had constructed a pumping station that
encroached on the adjoining landowners’ property. In Rawlings, however, the trespass was an
erroneous extension of an agency facility that was intended to be on agency property, not an
invalid right-of-way for a pipe or other utility line. Id. at 584. Accordingly, the real property
exception to governmental immunity was applicable to the plaintiffs’ claims. While the Court
stated in Rawlings that the plaintiffs’ “claims for damages for continuing trespass … upon their
land” were “permitted under the exceptions provided in 42 Pa. C.S. § 8542(b)(3) and (5),” the
Court did not consider the language and requirements of the utility service facilities exception
and the Court’s holding that the trespass claim was within an exception to immunity because
“the pumping station constructed by the Authority is ‘real property’ which continues to cause
injury to Landowners’ property” applied only the real property exception. 702 A.2d at 587.
Because Plaintiffs’ claims do not fall within the real property exception, Rawlings is inapplicable
here. While the Rawlings Court also stated that the landowners’ ejectment claim was not barred
by immunity because it was not a claim for damages, id. at 586-87, that ruling is inconsistent
with this Court’s later ruling in Swift that affirmative injunctive relief is subject to the same
immunity as damages claims and was unnecessary to the Court’s decision, as the landowners’
claims were held to fall within the real property exception to immunity. Moreover, the situation
in Rawlings was significantly different from Plaintiffs’ situation here. In Rawlings, the local
agency had successfully barred the landowners from eminent domain compensation for the
encroachment. 702 A.2d at 586. Here, in contrast, the trial court’s ruling was without prejudice
to Plaintiffs’ right to seek eminent domain compensation.
13
employees, not an exception to the immunity of the agency itself. 42 Pa. C.S. §
8550; Orange Stones Co., 87 A.3d at 1022-23; Brown, 618 A.2d at 1238; Glim,
613 A.2d at 617. Plaintiffs did not sue any Authority employees; the only
governmental party that Plaintiffs sued was the Authority itself. Plaintiffs’ claims
of willful misconduct and intentional conduct therefore could not provide any
exception to immunity. Orange Stones Co., 87 A.3d at 1022-23; Brown, 618 A.2d
at 1238-39; Glim, 613 A.2d at 617.
Plaintiffs’ Failure to Produce Expert Reports
In a professional negligence action, unless the negligence is obvious
or within a layperson’s understanding, expert testimony is required to prove the
applicable professional standard of care and that the defendant breached the
professional standard of care. Merlini v. Gallitzin Water Authority, 980 A.2d 502,
506-07 (Pa. 2009); Powell v. Risser, 99 A.2d 454, 456 (Pa. 1953); Guy M. Cooper,
Inc. v. East Penn School District, 903 A.2d 608, 617 (Pa. Cmwlth. 2006); Storm v.
Golden, 538 A.2d 61, 64-65 (Pa. Super. 1988). Absence of expert opinion is fatal
to a claim for professional negligence and judgment for the defendant is properly
granted for failure to produce expert opinion where the breach of professional duty
is not obvious or within the knowledge of laypersons. Powell, 99 A.2d at 456-58
(judgment n.o.v. for physician where plaintiff’s experts did not opine that he
breached the standard of care); Guy M. Cooper, Inc., 903 A.2d at 617-18 (architect
was entitled to summary judgment where plaintiff’s only expert report did not
opine as to either the architectural standard of care nor a breach of that standard);
Storm, 538 A.2d at 64-66 (attorney entitled to judgment as a matter of law in legal
14
malpractice action where plaintiff failed to identify experts and provide expert
reports).
Plaintiffs argue that their failure to produce expert reports was not a
valid basis for summary judgment because expert testimony was not necessary to
prove the claims that they asserted against HRG. We agree that expert testimony
was not essential to Plaintiffs’ trespass claims and that the summary judgment for
HRG on Plaintiffs’ trespass claims cannot be affirmed on this basis. Expert
testimony concerning the professional standard of care or breach of the standard of
care is not necessary to prove a claim of trespass or negligence in placing a pipe on
property without a right-of-way, easement, or permission of the owner because
breach of the duty not to trespass on others’ property is a claim for ordinary
negligence, not professional negligence. Merlini, 980 A.2d at 507-08 (no expert
testimony concerning standard of care or defendant’s conduct was required to
prove claim that engineering firm negligently directed installation of water line on
plaintiff’s property without permission). While the Supreme Court recognized in
Merlini that expert testimony could be necessary to prove where property lines or
rights-of-way were located, id. at 507-08, the location of the property lines, rights-
of-way and alleged rights-of-way were not in dispute here; only their legal effect
and status was disputed.
Plaintiffs’ claims against HRG based on the depth and location of the
water line, however, were professional negligence claims that required expert
testimony. Plaintiffs repeatedly alleged in their Complaint that their negligence
claims were for “professional negligence” and “professional liability.” (Complaint
15
¶¶10, 14, 18, 20, R.R. at 17-19.)7 Unlike a claim for trespass, a claim against an
engineering firm for negligence in its decisions in choosing the depth and location
of a water line involves engineering judgment and is therefore based on a failure to
exercise professional skill, rather than a breach of duties that all citizens owe to
one another. In addition, neither the applicable professional standard of care nor
whether HRG breached professional standards is obvious or within the knowledge
of lay persons. Plaintiffs’ claims that HRG was liable for installation of the water
line at an unsuitable depth and location depended on the effect of road construction
standards, the proper depth of a water line, and an engineer’s responsibilities with
respect to the placement of underground water lines. All of these issues are
matters beyond lay knowledge that require expert testimony. Plaintiffs themselves
recognized this, as they represented in certificates of merit that they had a written
statement of a licensed professional supporting a claim of breach of professional
standards and did not assert that expert testimony was unnecessary. (Certificates
of Merit, R.R. at 88-93.) Accordingly, Plaintiffs were required to prove by expert
testimony the professional standard of care of engineers and that HRG breached
that professional standard of care, and absent such expert opinion, HRG was
entitled to summary judgment in its favor on Plaintiffs’ claims based on the depth
and location of the water line. Powell, 99 A.2d at 456-58; Guy M. Cooper, Inc.,
903 A.2d at 617-18; Storm, 538 A.2d at 64-66.
7
Contrary to Plaintiffs’ contentions in the trial court, Bruno v. Erie Insurance Co., 106 A.3d 48
(Pa. 2014), does not hold that actions against professionals are professional negligence actions
only where there is privity between the plaintiff and the professional. Rather, the Court in Bruno
held that the certificate of merit requirement of Pa. R.C.P. No. 1042.3 applies only to
professional liability claims brought by the professional’s patient or client because Pa. R.C.P.
No. 1042.1 expressly limits Rule 1042.3 to actions brought by the professional’s patient or client.
106 A.3d at 73-74. The issue here is whether expert testimony is required, not whether a
certificate of merit was required. Indeed, Plaintiffs filed certificates of merit.
16
Plaintiffs also contend that they were not required to disclose the
expert testimony on which their claims depend because the experts that they may
call at trial were not retained for litigation. This argument fails for two reasons.
First, the contention that the necessary expert witnesses were not retained for
litigation is inaccurate. While opinion that the depth and location of the water line
is incompatible with Plaintiffs’ future road construction might have been
developed independently of the litigation, the trial court correctly concluded that
any opinion that HRG breached its professional duties as an engineer would
necessarily have been formed for litigation and trial. Plaintiffs were therefore
required to respond to expert interrogatories and produce expert reports on the
issue of whether HRG breached the standard of care. Plaintiffs’ complete failure
to do so, even after HRG filed its summary judgment motion, was properly held by
the trial court to preclude them from satisfying their burden of proving their claims
that HRG is liable for installation of the water line at an incorrect depth and
location. See Pa. R.C.P. No. 4003.5(b); Conner v. Tom, 811 A.2d 6, 8-9 (Pa.
Super. 2002); Storm, 538 A.2d at 65-66.
Second, summary judgment was properly granted even if Plaintiffs’
proposed expert witnesses did not acquire their opinions for litigation and trial.
HRG’s expert interrogatories were not limited to experts retained for litigation and
requested identification of “all persons whom you expect to call as expert
witnesses at the time of trial.” (Plaintiffs’ Responses to HRG’s Interrogatories,
R.R. at 580.) Plaintiffs did not object to this interrogatory or indicate that they
were limiting their responses to experts retained for litigation. (Id.) Given
Plaintiffs’ failure to identify any expert witnesses, HRG was entitled to seek
summary judgment on the ground that “after the completion of discovery relevant
17
to the motion, including the production of expert reports,” Plaintiffs had “failed to
produce evidence of facts essential to the[ir] cause of action.” Pa. R.C.P. No.
1035.2(2). In response, Plaintiffs were required not merely to rest on allegations,
but to identify “evidence in the record establishing the facts essential to the cause
of action … which the motion cite[d] as not having been produced.” Pa. R.C.P.
No. 1035.3(a)(2). Plaintiffs, in response to HRG’s summary judgment motion, did
not submit any affidavit, opinion or testimony of any expert witness or other
evidence in the record demonstrating they had expert testimony that HRG breached
its professional duties as an engineer or any admission by HRG that it breached
professional standards. Summary judgment was therefore properly granted as to
Plaintiffs’ depth and location claims on the ground that Plaintiffs failed to produce
the expert opinion essential to prove those claims.
Plaintiffs’ Trespass Claims
No easement or right-of-way grant from the property owner is
required for construction of a pipeline under a public road or street. Pittsburgh
National Bank v. Equitable Gas Co., 220 A.2d 12 (Pa. 1966); see also Department
of Transportation v. Municipal Authority of Borough of West View, 919 A.2d 343,
346 (Pa. Cmwlth. 2007), aff’d without op., 936 A.2d 487 (Pa. 2007) (government
entity that has acquired right-of-way for street may authorize installation of utilities
in that right-of-way). Plaintiffs argue that this rule does not apply because they did
not intend to dedicate the unbuilt portion of Grey Fox Drive and that the trial court
erred in granting summary judgment on their trespass claims because there were
disputed issues of fact concerning their intent. We do not agree.
18
The trial court correctly held that Plaintiffs clearly and unambiguously
dedicated the unbuilt portion of Grey Fox Drive as a public street. Plaintiffs
expressly stated in the Subdivision Plan that “ALL STREETS AND OTHER
PROPERTY IDENTIFIED AS PROPOSED PUBLIC PROPERTY (EXCEPTING
THOSE AREAS LABELED ‘NOT FOR DEDICATION’) ARE HEREBY
DEDICATED TO THE PUBLIC USE.” (Complaint ¶30 & Ex. A, R.R. at 20-21,
40) (emphasis added). The unbuilt portion of Grey Fox Drive was depicted in the
Subdivision Plan as a street and nothing in the Subdivision Plan distinguished
between the paved and unbuilt portions of Grey Fox Drive or showed where the
paved portion ended. (Id. Ex. A, R.R. at 40-41.)
Plaintiff Thomas Krouse did testify that he only intended to dedicate
the paved portion of Grey Fox Drive when he executed the dedication in the
Subdivision Plan (H.T. at 25-26, R.R. at 878-879.) That personal belief, however,
is irrelevant. Where rights are based on an unambiguous writing, the parties’ intent
must be determined from the writing itself, not from testimony as to the parties’
understanding or intent. Steuart v. McChesney, 444 A.2d 659, 661-63 (Pa. 1982);
Forbes Road Union Church and Sunday School v. Incorporated Trustees of the
Salvation Army of Pennsylvania, 113 A.2d 311, 313 (Pa. 1955); In re Ware, 814
A.2d 725, 731-32 (Pa. Super. 2002). Accordingly, testimony as to Plaintiffs’
subjective intent in executing the dedication could not constitute grounds for
denying summary judgment because it does not create a disputed issue of material
fact.
Moreover, Plaintiffs’ trespass claim is barred, independent of the
dedication, because Plaintiffs knew and consented to the installation of the water
line under the unbuilt portion of Grey Fox Drive. No cause of action for trespass
19
to real property can exist where the plaintiff permitted the entry on its property.
Gedekoh v. Peoples Natural Gas Co., 133 A.2d 283, 284-85 (Pa. Super. 1957)
(“One cannot be guilty of a trespass by illegal entry if his wrong is committed
subsequent to a rightful entry where such entry was by permission of the owner”);
see also Kennedy v. Consol Energy Inc., 116 A.3d 626, 636 (Pa. Super. 2015) (“to
establish a claim for trespass, a plaintiff must prove an intentional entrance upon
land in the possession of another without a privilege to do so”). Where the
plaintiff permits equipment to be installed on its property and money is expended
installing that equipment, an irrevocable license is created and the plaintiff cannot
revoke its permission and maintain an action for trespass. Morning Call, Inc. v.
Bell Atlantic-Pennsylvania, Inc., 761 A.2d 139, 144 (Pa. Super. 2000). Here, the
undisputed evidence showed that months before the water line was installed,
Plaintiffs signed an easement that showed that the water line would be constructed
on their property under the unbuilt portion of Grey Fox Drive and that they made
no objection to its installation on their property at that location. (HRG Summary
Judgment Motion Ex. K, R.R. at 519; Complaint ¶¶35-38 & Exs. B & C, R.R. at
22, 43, 46.)
HRG sought summary judgment on Plaintiffs’ trespass claims, not
only based on the dedication in the Subdivision Plan, but also on the ground that
Plaintiffs consented to the placement of the water line under the unbuilt portion of
Grey Fox Drive. (HRG Summary Judgment Motion ¶¶26, 46, 49-51 & Ex. K,
R.R. at 406, 409-410, 513-519.) Although the trial court addressed only the
dedication and not the undisputed evidence establishing that Plaintiffs consented to
the incursion on their property, this Court may affirm a trial court’s order on other
grounds where affirmance is required for a reason different from that on which the
20
trial court based its decision. Orange Stones Co., 87 A.3d at 1023; Guy M.
Cooper, Inc., 903 A.2d at 618 & n.9.
Conclusion
For the foregoing reasons, we conclude that the trial court correctly
held that Plaintiffs’ claims against the Authority were barred by immunity and that
HRG was entitled to judgment as a matter of law on all of Plaintiffs’ claims.
Accordingly, the trial court’s orders sustaining the Authority’s preliminary
objections and granting summary judgment in favor of HRG are affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Grey Fox Plaza, Thomas Krouse, :
Donna Krouse and Steven Krouse, :
Appellants :
: No. 344 C.D. 2016
v. :
:
Herbert, Rowland and Grubic, Inc. :
ORDER
AND NOW, this 30th day of January, 2017, the orders of January 21,
2014 and February 3, 2016 of the Lycoming County Court of Common Pleas
sustaining the preliminary objections of the Lycoming County Water & Sewer
Authority and granting the motion for summary judgment of Herbert, Rowland and
Grubic, Inc. in the above captioned-matter are AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge