IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary Pascoe and Lori Pascoe, :

his wife, :

Appellants :

: 

v. : No. 544 C.D. 2016

: Argued: April 20, 2017

Pennsylvania American Water :

Company, Wyoming Valley :

Sanitary Authority, Township :

of Hanover :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE JOSEPH M. COSGROVE, Judge (P)

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: May 26, 2017

This is an appeal filed by Gary Pascoe and Lori Pascoe (Plaintiffs) 

from an order of the Court of Common Pleas of Luzerne County (trial court) 

denying post-trial relief and entering judgment in favor of defendant Township of 

Hanover (Township) on the ground that Plaintiffs’ claims against the Township

were barred by governmental immunity under Sections 8541 and 8542 of the 

Judicial Code, 42 Pa. C.S. §§ 8541-8542, commonly referred to as the Political 

Subdivision Tort Claims Act (PSTCA). For the reasons set forth below, we affirm.

On April 23, 2010, the Township’s sanitary sewer line flooded 

Plaintiffs’ home with four inches of water and raw sewage. (Trial Transcript 

(N.T.) at 43-47, 68-70, Reproduced Record (R.R.) at 51a-52a, 57a.) Plaintiffs 
2

brought this action against three defendants, Pennsylvania American Water 

Company (Water Company), Wyoming Valley Sanitary Authority (Authority), and 

the Township. Plaintiffs alleged that the Township and the Authority, which 

performed maintenance and repair of Township sewer lines under contract with the 

Township, were liable because they negligently failed to maintain the sewer and 

that a leak in the Water Company’s water line flowed into the sewer and 

contributed to the sewer backup. (Complaint ¶¶7-14, R.R. at 8a-9a.) Plaintiffs 

sought damages in the amount of $28,779 for the costs they incurred in cleaning up 

and repairing the damage to their home and for personal property that was 

destroyed. (Id. ¶¶15-16, R.R. at 9a.) The Township and the Authority pleaded 

governmental immunity as a defense in their answer and new matter to Plaintiffs’ 

complaint. (Township and Authority Answer and New Matter ¶18, R.R. at 29a.) 

The case was tried before a jury from February 8 to February 10, 2016. At the start 

of trial, the trial court approved Plaintiffs’ voluntary discontinuance of their claims 

against the Authority. 

At trial, Plaintiffs introduced evidence that when the Township 

responded to the sewer backup on April 23, 2010, the sewer line was found to be in 

a collapsed and deteriorated condition, blocked by tree roots and debris. (N.T. at 

70-71, 83-85, R.R. at 57a-58a, 61a.) Plaintiffs introduced no evidence that 

blockages of the sewer line or sewer backups occurred frequently, that any 

blockage or backup had occurred in the months or years immediately before the 

April 23, 2010 incident, or that the Township received complaints that there was a 

problem with the sewer line in the months or years immediately before the April 

23, 2010 incident. Plaintiff Lori Pascoe testified that a blockage of the same 

sewer line occurred and backed up sewage and water into Plaintiffs’ next-door 
3

neighbors’ house in 1998. (Id. at 57, 62-65, R.R. at 54a-56a.) She further testified 

that the 1998 blockage was at the location of the same tree that blocked the sewer 

line in the April 23, 2010 incident and that the Township or the Authority came out 

to fix the 1998 sewer backup. (Id. at 57, 62-65, R.R. at 54a-56a.) Plaintiff Lori 

Pascoe also testified that, to her knowledge, the Township did no work concerning 

the tree or work on the sewer line between the 1998 incident and April 23, 2010, 

and that the tree was removed after the April 23, 2010 incident. (Id. at 65-66, R.R. 

at 56a.) Plaintiffs, however, did not introduce any evidence as to what caused the 

1998 sewer backup. 

A former Township employee was called by Plaintiffs as a witness 

and testified that the Township abolished its sewer department and contracted with 

the Authority for sewer services at least four years before the April 23, 2010 

incident and that no inspections or maintenance were done by the Township or the 

Authority on the Township’s sewer lines unless there was a problem or bad line. 

(N.T. at 79-80, 85-88, 90-94, R.R. at 60a-63a.) The former Township employee 

testified that the Township was not aware that there was a problem with the sewer 

line before the April 23, 2010 incident and that, to his knowledge, Plaintiffs had 

not complained to the Township of any sewer backups before the April 23, 2010 

incident. (Id. at 88, 91-93, R.R. at 62a-63a.) Plaintiffs did not call any expert 

witness or introduce into evidence any records concerning the sewer line’s repair 

or blockage history.

At the close of Plaintiffs’ case, the Township moved for a compulsory 

nonsuit on the ground that Plaintiffs’ claims against it were barred by 

governmental immunity because Plaintiffs did not prove that the Township had 

notice of the problem with the sewer line. The trial court granted the Township’s
4

motion for compulsory nonsuit, and only Plaintiffs’ claims against the Water 

Company went to the jury, which returned a verdict in favor of the Water 

Company. Plaintiffs timely filed a motion for post-trial relief seeking removal of 

the compulsory nonsuit and a new trial on their claims against the Township. 

Plaintiffs did not seek any post-trial relief with respect to the jury’s verdict in favor 

of the Water Company. On March 15, 2016, the trial court denied Plaintiffs’ 

motion for post-trial relief and entered judgment in favor of defendants and against 

Plaintiffs. Plaintiffs, in this appeal, challenge only the trial court’s grant of the 

Township’s motion for compulsory nonsuit.1

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. There is no 

dispute that the Township is a local agency. Section 8542 of the PSTCA provides 

that liability for personal injury or property damage may be imposed on a local 

agency if three conditions are met: (1) the damages would be recoverable under 

common law or statute against a non-immune party; (2) the injury was caused by a 

 

1

The scope of review in an appeal from the denial of post-trial motions to remove a compulsory 

nonsuit is limited to determining whether the trial court abused its discretion or committed an 

error of law. Thomas v. City of Philadelphia, 804 A.2d 97, 102 n.7 (Pa. Cmwlth. 2002). The 

standard for review that this Court applies is whether, viewing all the evidence and all reasonable 

inferences arising from it in the light most favorable to the plaintiff, the jury could not 

reasonably conclude that the defendant is liable to the plaintiff. Id.; Berman Properties, Inc. v. 

Delaware County Board of Assessment and Appeals, 658 A.2d 492, 494 (Pa. Cmwlth. 1995). 

Whether an action is barred by governmental immunity is a question of law. Sobat v. Borough of 

Midland, 141 A.3d 618, 624 (Pa. Cmwlth. 2016); Le-Nature’s, Inc. v. Latrobe Municipal 

Authority, 913 A.2d 988, 994 (Pa. Cmwlth. 2006). Whether the government entity had notice of 

the condition that caused harm, however, is a question of fact that is ordinarily for the jury. 

McCarthy v. City of Bethlehem, 962 A.2d 1276, 1279-80 (Pa. Cmwlth. 2008); Medicus v. Upper 

Merion Township, 475 A.2d 918, 921-22 (Pa. Cmwlth. 1984).
5

negligent act of the local agency or its employee acting within the scope of his 

office or duties; and (3) the negligent act of the local agency or employee falls 

within one of the eight exceptions to governmental immunity enumerated in 

Section 8542(b) of the PSTCA. 42 Pa. C.S. § 8542(a); McCarthy v. City of 

Bethlehem, 962 A.2d 1276, 1278 (Pa. Cmwlth. 2008). The eight categories for 

which Section 8542(b) waives immunity include “[u]tility service facilities.” 42 

Pa. C.S. § 8542(b)(5). Plaintiffs contend that their claims fall within the utility 

service facilities exception and do not argue that any of the other exceptions to 

immunity are applicable.

The utility service facilities exception provides:

(5) 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 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) (underline emphasis added). This exception to immunity 

applies to claims for property damage from sewage backup or flooding caused by a 

municipality’s failure to properly maintain a sewer line. McCarthy, 962 A.2d at 

1279-80; City of Washington v. Johns, 474 A.2d 1199, 1202-03 (Pa. Cmwlth. 

1984). To recover damages under the utility service facilities exception, however, 

the plaintiff must prove that the municipality had actual or constructive notice of 

this dangerous condition before the incident that is the subject of the action. King 

v. Pittsburgh Water & Sewer Authority, 139 A.3d 336, 352 (Pa. Cmwlth. 2016); 

Gibellino v. Manchester Township, 109 A.3d 336, 342-43 (Pa. Cmwlth. 2015); 
6

McCarthy, 962 A.2d at 1279-80; Miller v. Lykens Borough Authority, 712 A.2d 

800, 802 (Pa. Cmwlth. 1998); Johns, 474 A.2d at 1202. Plaintiffs argue that the 

evidence at trial was sufficient to satisfy this notice requirement. We do not agree. 

Evidence of flooding or sewer backups at the same location prior to 

the incident and complaints to the municipality of such problems can be sufficient 

to permit a jury to find that the municipality had notice, even if the municipality 

did not have actual knowledge that the sewer was obstructed. Gibellino, 109 A.3d 

at 343; McCarthy, 962 A.2d at 1279-80; Medicus v. Upper Merion Township, 475 

A.2d 918, 921 (Pa. Cmwlth. 1984); Johns, 474 A.2d at 1203. In the cases where 

such evidence was held sufficient, the plaintiffs showed that the same kind of 

flooding or backup had occurred repeatedly or within a few months before the 

incident for which the plaintiff sought damages. See McCarthy, 962 A.2d at 1279-

80 (evidence of numerous instances of flooding between 1986 and 1999, numerous

instances of sewage infiltration between 1999 and 2006, and complaints to 

municipality about the sewer system problems beginning in 1999 satisfied the 

utility service facilities exception notice requirement with respect to a claim for 

damage caused by a 2005 sewage backup); Medicus, 475 A.2d at 919, 921 (three 

separate incidents of flooding in a three-month period in the year in question were 

held sufficient to satisfy the notice requirement); Johns, 474 A.2d at 1201, 1203

(plaintiffs satisfied the notice requirement where there was evidence that 10 to 12 

incidents of storm water backing into their basement occurred over a 13-year 

period, multiple complaints were made to the municipality, and the municipality 
7

found and removed a significant amount of dirt and mud from the sewer when it 

responded to one of the complaints).

2

 

Here, the only evidence that the Township had notice of a problem 

with the sewer line consisted of one prior backup of the sewer at the same location 

in 1998, 12 years earlier. Plaintiffs showed that no regular inspections of the sewer 

line were done after the 1998 incident and there was no evidence of changes or 

repair to the sewer line after 1998. Plaintiffs did not, however, introduce any 

evidence of the cause of the 1998 backup and only showed that it occurred at the 

same location. Absent evidence that the cause of the prior backup was a condition 

that put the Township on notice of a need for long-term monitoring or inspection 

of that portion of the sewer line for blockage, a single incident of sewer line 

backup 12 years earlier is simply too temporally remote to constitute notice that the 

sewer line is currently in a dangerous condition. 

Plaintiffs argue that failure to conduct any regular inspections or 

maintenance can satisfy the notice requirement even if there is no history of a prior 

problem with the sewer. We do not agree that mere proof of failure to inspect and 

maintain the sewer by itself is sufficient in this case to show that the Township had 

notice of the sewer’s dangerous condition. In King, an action involving personal 

injuries caused by a hole in a deteriorated sewer grate, this Court held the 

government agency’s practice of inspecting sewer grates only in response to 

 

2 Notice can also be found by the jury where there is evidence that the government entity created 

the dangerous condition of the sewer. DeTurk v. South Lebanon Township, 542 A.2d 213, 215-

16 (Pa. Cmwlth. 1988) (evidence that defendants altered surface water flow and damaged storm 

water system satisfied notice requirement); see also Eaborn v. Township of Findlay, (Pa. 

Cmwlth., No. 870 C.D. 2008, filed March 4, 2009), slip op. at 7, 2009 WL 9103004 at *3 (fact 

that municipality damaged the pipe was sufficient to prove notice of pipe’s damaged condition). 

There is no evidence that the Township created the blocked condition of the sewer or had notice 

on this alternative basis.
8

complaints was not a sufficient basis to charge it with notice of the dangerous 

condition of the grate. 139 A.3d at 352-53. Rooney v. City of Philadelphia, 623 F.

Supp.2d 644 (E.D. Pa. 2009), on which Plaintiffs rely, does not support their 

contention that notice of prior problems or complaints is unnecessary. In Rooney, 

there was evidence of at least seven separate complaints of problems at the sewer 

system location in question in the six years before the incident. Id. at 651-52. 

Moreover, Plaintiffs did not introduce any expert testimony or other evidence from 

which a jury could determine what inspections of sewers should be conducted in 

the absence of complaints or problems and how frequently such inspections should 

occur. 

For the foregoing reasons, we conclude that the trial court correctly 

held that Plaintiffs’ claims against the Township were barred by immunity. 

Accordingly, the trial court’s order denying Plaintiffs’ motion for post-trial relief 

and entering judgment in favor of the Township is affirmed.

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge

Judge Cosgrove dissents.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary Pascoe and Lori Pascoe, :

his wife, :

Appellants :

: 

v. : No. 544 C.D. 2016

: 

Pennsylvania American Water :

Company, Wyoming Valley :

Sanitary Authority, Township :

of Hanover :

ORDER

AND NOW, this 26th day of May, 2017, the order of March 15, 2016 

of the Court of Common Pleas of Luzerne County denying Appellants’ motion for 

post-trial relief in the above captioned-matter is AFFIRMED. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge