Griffith, W. v. City of Pittsburgh ( 2016 )


Menu:
  • J. A29014/16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    W. CHRISTOPHER GRIFFITH, PERSONAL       :     IN THE SUPERIOR COURT OF
    REPRESENTATIVE OF THE ESTATES OF        :          PENNSYLVANIA
    KIMBERY A. GRIFFITH, BRENNA C.          :
    GRIFFITH AND MIKAELA E. GRIFFITH,       :
    AND NICHOLAS SAFLIN, PERSONAL           :
    REPRESENTATIVE OF THE ESTATE OF         :
    MARY SAFLIN, DECEASED                   :
    :
    V.                           :
    :
    CITY OF PITTSBURGH, PITTSBURGH          :     No. 241 WDA 2016
    WATER AND SEWER AUTHORITY,              :
    COUNTY OF ALLEGHENY, ALLEGHENY          :
    COUNTY SANITARY AUTHORITY,              :
    CHESTER ENGINEERS, INC.,                :
    PENNSYLVANIA DEPARTMENT OF              :
    TRANSPORTATION, COMMONWEALTH            :
    OF PENNSYLVANIA AND CHRYSLER            :
    GROUP, LLC                              :
    :
    APPEAL OF: NICHOLAS SAFLIN              :
    Appeal from the Order Entered January 19, 2016
    In the Court of Common Pleas of Allegheny County
    Civil Division at No(s): GD No. 13-2219
    BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
    MEMORANDUM BY DUBOW, J.:                       FILED DECEMBER 9, 2016
    Appellant, Nicholas Saflin, Administrator of the Estate of his mother,
    Mary Saflin, appeals from the December 17, 2013 Order1 sustaining the
    1
    The December 17, 2013 Order became final and appealable on January 19,
    2016, when the trial court entered an Order severing Appellant’s claims from
    those of W. Christopher Griffith, and settling and discontinuing Appellant’s
    J. A29014/16
    Preliminary Objections that Chester Engineers, Inc. (“Chester”) filed and
    dismissing the Complaint with prejudice. After careful review, we affirm in
    part, reverse in part, and remand with instructions.
    This action arose from the August 19, 2011 drowning deaths of
    Appellant’s decedent and three other people, Kimberly, Brenna, and Mikaela
    Griffith, as the result a flash flood on Washington Boulevard in Pittsburgh.
    Appellant and the personal representative of the Griffiths filed an eight count
    Complaint in negligence against Chester, Chrysler Group, LLC, and various
    state and local governmental agencies.
    In his Complaint against Chester, Appellant alleged that for more than
    ten years, Chester acted as consulting engineer and construction manager
    for the Pittsburgh Water and Sewer Authority and for more than twenty
    years as the consulting engineer and construction manager for the Allegheny
    County Sanitary Authority (collectively referred to as the “Governmental
    Agencies”). Complaint, 2/1/13, at ¶¶ 47, 96. Appellant further alleged that
    Chester negligently breached its consulting engineering contracts with the
    Governmental Agencies by failing to provide reports outlining necessary
    maintenance and repairs to the sewer and water systems in the City of
    Pittsburgh. This failure, Appellant concluded, caused the death of Appellant’s
    decedent. 
    Id. at ¶¶
    97.
    claims against all Governmental Agency defendants.             See Pa.R.A.P.
    341(b)(1).
    -2-
    J. A29014/16
    In particular, Appellant alleged that Chester owed a duty to the
    Appellant’s decedent as a result of two Trust Indentures dated July 1, 1997,
    and October 15, 1993, that the Governmental Agencies entered into with
    PNC (“Trust Indentures”). The Trust Indentures focused on the parties’
    responsibilities after the issuance of municipal bonds to finance the
    construction and maintenance of Pittsburgh’s water and sewer system.
    Included in the Trust Indentures is the obligation of the Governmental
    Agencies to retain a consulting engineer to inspect and maintain the water
    and sewer system at issue. 
    Id. at ¶
    48.
    Although Chester was not a party to the Trust Indentures, Appellant
    averred in the Complaint that the Trust Indentures imposed upon Chester
    the duty to inspect and maintain the water and sewer system at issue. 
    Id. at ¶
    99; see also Trust Indenture, 7/1/97, at Section 7.11; Trust Indenture,
    10/15/93, at Section 7.11.
    Appellant    further    averred     that   Chester   failed   to   make
    recommendations to the Governmental Agencies in its annual reports
    regarding “measures that should be taken [ ] to protect against the life-
    threatening condition documented by the 60-year history of dangerous
    flooding on Washington Boulevard.” Complaint at ¶ 100.
    Chester filed Preliminary Objections on the grounds that it owed no
    duty to Appellant’s decedent, and even if Chester owed a duty to the
    -3-
    J. A29014/16
    Appellant’s decedent, the alleged breach of such duty did not cause the
    flooding.
    On December 17, 2013, the trial court sustained Chester’s Preliminary
    Objections and dismissed all claims in the Complaint against Chester. Rather
    than providing the Appellant with the opportunity to amend the allegations
    against Chester in the Complaint, the trial court dismissed the claims against
    Chester with prejudice.
    The trial court sustained the Preliminary Objections generally for two
    reasons. First, the trial court concluded that the Appellant failed to allege
    sufficient facts to establish that Chester had a “duty” to the Appellant. In
    particular, the trial court found that since it was only the Governmental
    Agencies, and not Chester, who were parties to the Trust Indentures, the
    Trust Indentures did not impose a “duty” on Chester to provide information
    to the Governmental Agencies about the maintenance of the water and
    sewer systems.    Trial Ct. Op., 12/17/2013, at 10-12.    The trial court also
    concluded that case law imposing a duty on professional service providers to
    third parties was inapplicable to the instant facts.
    The trial court also sustained the Preliminary Objections because it
    found that Appellant could not establish causation. It reasoned that, even if
    Chester had a duty to report the problems about the water and sewer
    systems in its reports, the Governmental Agencies “never relied upon
    Chester’s failure to offer advice and recommendations.” 
    Id. at 11.
    The trial
    -4-
    J. A29014/16
    court based its conclusion upon Appellant’s Complaint that “painstakingly
    describe[d] a history of notice and neglect with respect to dangerous
    conditions on Washington Boulevard on the part of the [Governmental
    Agencies.]” 
    Id. On January
    19, 2016, the trial court entered an Order severing
    Appellant’s claims from those of the personal representative of the Griffiths.
    The Order also settled and discontinued Appellant’s claims against all
    Government Agency defendants. Consequently, the December 17, 2013
    Order sustaining Chester’s Preliminary Objections and dismissing with
    prejudice the claims in the Complaint against Chester—the only outstanding
    order in this case—became final. Appellant timely appealed.
    Issue on Appeal
    Appellant presents the following issue on appeal: “[W]hether [the trial
    court] erred in law or abused his discretion in sustaining Chester’s
    demurrer.” Appellant’s Brief at vi.
    Standard of Review
    A trial court properly sustains preliminary objections in the nature of a
    demurrer when the Complaint is legally insufficient. Hill v. Olfat, 
    85 A.3d 540
    , 547 (Pa. Super. 2014).           The court must resolve the preliminary
    objections “solely on the basis of the pleadings; no testimony or other
    evidence outside of the complaint may be considered[.]” 
    Id. “All material
    -5-
    J. A29014/16
    facts set forth in the pleading and all inferences reasonably deducible
    therefrom must be admitted as true.” 
    Id. This Court’s
    standard of review of orders sustaining Preliminary
    Objections in the nature of a demurrer is well-settled.
    In determining whether the trial court properly sustained
    preliminary objections, the appellate court must examine
    the averments in the complaint, together with the
    documents and exhibits attached thereto, in order to
    evaluate the sufficiency of the facts averred. The impetus
    of our inquiry is to determine the legal sufficiency of the
    complaint and whether the pleading would permit recovery
    if ultimately proven. This Court will reverse the trial
    court's decision regarding preliminary objections only
    where there has been an error of law or abuse of
    discretion. When sustaining the trial court's ruling will
    result in the denial of claim or dismissal of suit, preliminary
    objections will be sustained only where the case is free and
    clear of doubt.
    Donaldson v. Davidson Bros., Inc., 
    144 A.3d 93
    , 100 (Pa. Super. 2016)
    (citation omitted).   The trial court’s decision to grant or deny a demurrer
    involves a matter of law; therefore, “our scope of review is plenary, allowing
    us to review the whole record.” Mistick, Inc. v. Northwestern Nat. Cas.
    Co., 
    806 A.2d 39
    , 41 (Pa. Super. 2002) (citation omitted).
    Moreover, in cases such as this, where the trial court sustains the
    Preliminary Objections and dismisses the Complaint with prejudice, we must
    also review whether the trial court abused its discretion by not permitting
    the plaintiff to amend the Complaint and cure the deficiencies that the trial
    court found in the Preliminary Objections. See 
    Hill, 85 A.3d at 557
    . Such a
    review involves a determination of whether there is a “reasonable
    -6-
    J. A29014/16
    possibility” that the plaintiff can allege facts that cure the deficiency in the
    Complaint:
    Even where a trial court sustains preliminary objections on
    their merits, it is generally an abuse of discretion to
    dismiss a complaint without leave to amend. There
    may, of course, be cases where it is clear that amendment
    is impossible and where to extend leave to amend would
    be futile. However, the right to amend should not be
    withheld where there is some reasonable possibility
    that amendment can be accomplished successfully. In the
    event a demurrer is sustained because a complaint is
    defective in stating a cause of action, if it is evident that
    the pleading can be cured by amendment, a court may not
    enter a final judgment, but must give the pleader the
    opportunity file an amended pleading.
    
    Id. (citation omitted,
    emphasis in original and added).
    Basis for Sustaining Preliminary Objections
    In this case, the trial court sustained the Preliminary Objections
    because the Appellant failed to allege properly that Chester had a “duty” to
    the Appellant’s decedent and that Chester “caused” the death of the
    Appellant’s decedent.
    Preliminary Objections Regarding Duty
    We agree with the trial court that Appellant failed to allege in the
    Complaint sufficient facts demonstrating that Chester owed a duty to
    Appellant. We disagree, however, with the trial court’s decision to dismiss
    the claims against Chester with prejudice. We find that there is a
    “reasonable possibility” that Appellant can plead facts that could establish
    -7-
    J. A29014/16
    that Chester had a duty to Appellant’s decedent and the trial court should
    have permitted Appellant to amend the Complaint.
    Our Supreme Court has held that, “where a party to a contract
    assumes a duty to the other party to the contract, and it is foreseeable that
    a breach of that duty will cause injury to some third person not a party to
    the contract, the contracting party owes a duty to all those falling within the
    foreseeable orbit of risk of harm.”   Doyle v. South Pittsburgh Water Co.,
    
    199 A.2d 875
    , 878 (Pa. 1964); see also Evans v. Otis Elevator Co., 168
    A2d 573 (Pa. 1961) (holding the law imposes a duty on third persons who
    are not a party to a contract, but the very nature of the contractual
    undertaking places himself in a position to perform the contract in such a
    manner that strangers to the contract will not be injured).
    Although the trial court cited to these cases, it failed in its Opinion to
    analyze their applicability in determining whether the more than ten-year
    arrangement between Chester and the Governmental Agencies, in which
    Chester provided professional services to them, imposed a duty on Chester
    to third parties injured as a result of the allegedly negligent provision of
    professional services.   Rather, the trial court appears to distinguish these
    cases to find that Appellant cannot establish causation.
    We agree with the trial court that the claims against Chester in the
    Complaint are not legally sufficient to establish that Chester owed a duty to
    Appellant.   We find, however, a “reasonable possibility” that agreement
    -8-
    J. A29014/16
    between Chester and the Governmental Agencies was memorialized in a
    contract, and the terms of such contract could create a duty to third parties,
    such as Appellant’s decedent, who was injured by the allegedly negligent
    provision of such professional services.       Since there is a “reasonable
    possibility,” we conclude that the trial court erred in not permitting Appellant
    to amend the Complaint to assert such claims and, thus, plead a duty under
    the principles set forth in 
    Evans, supra
    .
    Preliminary Objections Regarding Causation
    Appellant also argues that the trial court erred in sustaining Chester’s
    Preliminary Objections based upon the court’s conclusion that Appellant
    failed to sufficiently plead a causal connection between Chester’s failure to
    warn the Governmental Agencies of the presence of a hazardous condition
    and the death of Appellant’s decedent.      Appellant’s Brief at 7.   We agree
    with Appellant. This issue raises a question of fact; therefore, the trial court
    must make all inferences in the allegations in the Complaint in favor of the
    Plaintiff. Concluding that the trial court did not view the allegations in the
    Complaint in Appellant’s favor, we reverse the trial court on its decision to
    sustain this Preliminary Objection.
    This Court has held that “[w]hether a defendant's conduct has been a
    substantial factor in causing plaintiff's harm is ordinarily a question of fact
    for the jury.” Rabutino v. Freedom State Realty Co., Inc., 
    809 A.2d 933
    ,
    941 (Pa. Super. 2002) (citation and quotation marks omitted).
    -9-
    J. A29014/16
    In concluding that Appellant failed to allege causation, the trial court
    took notice of Appellant’s “painstaking[] descri[ption] of a history of notice
    and neglect with respect to conditions on Washington Boulevard.” Trial Ct.
    Op. at 11. From this, the trial court concluded that Chester could not have
    caused the death of Appellant’s decedent because the Governmental
    Agencies “were fully aware of dangerous conditions that they chose not to
    abate” and they would not have relied upon any report that Chester
    provided. Trial Ct. Op. at 11-12.
    The inference that the Governmental Agencies would not have relied
    upon Chester’s reports is not only an inference against the allegations in
    the Complaint, but is also a factual finding.        Since the trial court, in
    reviewing Preliminary Objections, must make all inferences from the
    allegations in favor of the plaintiff, the trial court erred in making an
    inference against Appellant. Moreover, the issue of the degree to which, if
    at   all,   the   Governmental   Agencies   would   have   relied   on   Chester’s
    recommendations is a question of fact and may only be determined after
    discovery. We, therefore, find that the trial court erred as a matter of law in
    finding the Complaint legally insufficient as to causation. Thus, we reverse
    the trial court’s decision sustaining this Preliminary Objection.
    For the foregoing reasons, we affirm the Order in part, reverse the
    Order in part, and remand with instructions to permit the Appellant to
    amend the claims in the Complaint against Chester.
    - 10 -
    J. A29014/16
    Order affirmed in part and reversed in part.   Case remanded with
    instructions. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/9/2016
    - 11 -
    

Document Info

Docket Number: 241 WDA 2016

Filed Date: 12/9/2016

Precedential Status: Non-Precedential

Modified Date: 12/13/2024