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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Order1sustaining 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 
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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).
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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 lifethreatening 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 
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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 
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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 
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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 
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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 
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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 
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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). 
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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. 
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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