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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 -
Griffith, W. v. City of Pittsburgh
Combined Opinion