Podejko v. Dep't of Transp. of Pa.

236 A.3d 1216

Howard PODEJKO, Myrtis Podejko and Myrtis's Preschool and Creative Learning Center, Appellants

v.DEPARTMENT OF TRANSPORTATION of the Commonwealth of Pennsylvania, Texas Township, and The White Mills Fire Department

v.Hertha M. Kastler, Executrix of The Estate of Joseph G. Bunnell

No. 714 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued May 13, 2020

Decided July 27, 2020

Ronnie J. Fischer, Honesdale, for appellants.

Kathleen A. Walsh, Scranton, for appellee White Mills Fire Department.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE COVEY

Howard Podejko, Myrtis Podejko (collectively, the Podejkos) and Myrtis's Preschool and Creative Learning Center (Preschool) appeal from the Wayne County Common Pleas Court's (trial court) February 6, 2019 order granting summary judgment in favor of the White Mills Fire Department (Fire Department) and dismissing the Podejkos’ Complaint against the Department of Transportation (DOT), Texas Township (Township), and the Fire Department for damages to the Preschool (Complaint). The sole issue for this Court's review is whether the trial court erred as a matter of law by concluding that the Fire Department's 32 Mini Pumper Truck (Pumper Truck) was not in operation for purposes of the vehicle liability exception (Vehicle Liability Exception) to what is commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act).¹

The Podejkos own and operate the Preschool at 523 Old Willow Avenue, in Honesdale, Pennsylvania (Property), which is located at the bottom of a steep embankment from State Route 6 (Route 6/Grandview Avenue) in the Township. Route 6 flooded in the late afternoon of July 31, 2016, and again during the overnight hours between August 1 and 2, 2016. Reproduced Record (R.R.) at 22a-25a. The Fire Department was called to pump the water from the roadway. The Podejkos asserted that, on both days, "[t]o alleviate the flooding, [the Fire Department] pumped water located on [Route 6] in the vicinity of [the Property] and then shot that water into [a shopping plaza (Plaza) ] parking lot located at 250 Grandview Avenue ... and over the embankment onto [the Property]." R.R. at 15a. They claimed: "The diverting of flood water onto [the Property] on July 31[ ], August 1, [ ] and August 2, 2016 caused substantial damage to [the Property], destroying the playground and flooding two rooms in the [Preschool]." R.R. at 16a; see also R.R. at 60a.

On April 25, 2017, the Podejkos filed the Complaint, averring therein that DOT caused Route 6 to flood by negligently failing to clean the storm water drains on the berm adjacent to Route 6 (see R.R. at 18a-19a),² that the Fire Department negligently removed the water from Route 6 (see R.R. at 19a-20a), and that the Township negligently failed to properly supervise the Fire Department (see R.R. at 20a-21a). The Podejkos maintain that the Fire Department's actions fall within the Vehicle Liability Exception to governmental immunity. See R.R. at 20a.

DOT, the Township and the Fire Department each filed an answer, new matter and crossclaim, with the Fire Department raising, inter alia , the affirmative defense of governmental immunity. See R.R. at 33a-39a. DOT joined the Estate of Joseph G. Bunnell (Estate) as an additional defendant, alleging that runoff from the quarry operated by the late Mr. Bunnell caused the storm water drain clogs in the first instance. After the pleadings closed, the parties voluntarily dismissed the Township from the action.

The Fire Department admitted that it pumped the water into the Plaza parking lot for approximately 45 minutes on July 31, 2016, and for approximately an hour overnight between August 1 and 2, 2016, but clarified that the water went into two separate Plaza drains, and that the Fire Department did not pump water over the embankment onto the Podejkos’ Property. See R.R. at 22a-25a, 33a-39a, 43a. The Fire Department claimed that it dispensed the water near the Plaza entrance closest to Honesdale, a significant distance from the Property. See R.R. at 45a.

During discovery, a Fire Department firefighter who was at the scene on July 31, 2016, testified that the Fire Department operated the Pumper Truck for approximately 45 minutes to clear the water that "was almost over the guardrails." R.R. at 124a. The firefighter explained that a fan in the front of the Pumper Truck created suction that pulled water in through a suction hose, and simultaneously discharged the water from the Pumper Truck's rear, where the firefighters observed it go into the Plaza drains. During this time, the Pumper Truck's engine was running, but the Pumper Truck was stationary, except for when the firefighters moved it approximately five to ten feet to get further into the water. See R.R. at 126a-127a. The Fire Department used the same Pumper Truck and a similar process on August 1 and 2, 2016. The Podejkos did not observe the Fire Department shoot water over the embankment onto the Property. See R.R. at 50a, 76a-77a, 80a, 82a. Their only purported evidence that the Fire Department shot water over the embankment onto their Property was Howard Podejko's hearsay testimony that Plaza business owners told him that is what occurred. See R.R. at 49a-50a, 82a-83a, 104a-105a.

On November 1, 2018, the Fire Department filed a motion for summary judgment (Motion). See R.R. at 42a-46a. In the Motion, the Fire Department stated:

19. On October 31, 2018, the [Podejkos] produced an expert liability report prepare[d] by Michael J. Tuttman, P.E. [ (Tuttman).] A copy of that report is attached as Exhibit D.

20. Per this report, the [Podejkos] are now adding a new theory of liability against the [Fire Department].

21. In his report, [ ] Tuttman opines as follows:

The failure of the [Fire Department] to determine where [its] discharged pumped water would outlet, and subsequently flow, created an unreasonable condition which was a cause of the Preschool flooding and the resulting building damage.

The failure of the Fire Department to adequately observe the entire Plaza led to the [c]atch [b]asin above the Preschool (CB-PO4) overflowing unnoticed. Had the [P]roperty been properly monitored, the basin observed to be overflowing in a timely manner, damage to the Preschool could have been avoided or minimized. See pages 13-14 of Tuttman report, attached as [Motion] Exhibit D [ (see R.R. at 99a-100a) ].

22. This new theory of liability does not fall into any of the exceptions to immunity.

Motion at 4-5 (R.R. at 45a-46a). The Podejkos opposed the Motion, again asserting that the Fire Department was liable because the Vehicle Liability Exception to governmental immunity applied. See R.R. at 108a. In their response, the Podejkos stated: "[R]egardless of which side of the [Plaza] parking lot water was pumped into, the failure of [the] Fire Department to determine where the water it discharged would outlet, and its further failure to adequately observe the entire [P]laza property to detect the overflowing and flooding, likely led to the overflowing of the catch basin, causing the flooding to [the Podejkos’] [P]roperty, as opined by [the Podejkos’] engineering expert." Podejko Answer to Motion at 5 (R.R. at 106a).

On February 6, 2019, the trial court granted the Motion and dismissed the Complaint against the Fire Department with prejudice. The trial court rejected the Podejkos’ assertion that the Vehicle Liability Exception applied, reasoning that pumping water from a fire truck does not require any decisions related to transporting an individual from one place to another. See Podejko Br. App. A. The Podejkos filed a motion for reconsideration with the trial court, which the trial court denied. See R.R. at 10a, 141a-144a. Thereafter, the Podejkos settled, discontinued and ended their action against DOT and the Estate, leaving the Fire Department as the sole remaining defendant. See R.R. at 10a. The Podejkos appealed to this Court.³

On June 14, 2019, the trial court issued an order pursuant to Pennsylvania Rule of Appellate Procedure (Rule) 1925(b), directing the Podejkos to file a Concise Statement of Errors Complained of on Appeal (1925(b) Statement) within 21 days ( Rule 1925(b) Order). See R.R. at 145a. The trial court's docket entries reflect that the order was served on the Podejkos on June 17, 2019. See R.R. at 11a. On August 6, 2019,⁴ the trial court issued a Statement of Reasons, wherein it held: "[The Podejkos] ha[ve] failed to comply with this [trial c]ourt's Rule 1925(b) Order. Accordingly, this [trial c]ourt respectfully requests the Commonwealth Court to consider [the Podejkos’] failure to comply as a waiver of all objections to this Court's February 6, 2019 Opinion and Order."⁵ R.R. at 147a.

By August 9, 2019 Order, this Court directed: "[T]he parties shall address in their principal briefs on the merits or other appropriate motion whether [the Podejkos] preserved any issues on appeal in light of their apparent failure to file [the Rule 1925(b) ] Statement as directed by the trial court." August 9, 2019 Order. It appears that, upon receipt of this Court's August 9, 2019 Order, the Podejkos filed their Rule 1925(b) Statement. See Podejko Br. App. B. The trial court then filed a supplemental record with this Court, which included the Podejkos’ Rule 1925(b) Statement. In a footnote contained in the Podejkos’ Rule 1925(b) Statement, the Podejkos claimed that their counsel was not served with the trial court's Rule 1925(b) Order. See Podejko Br. App. B-1 n.1.

By August 14, 2019 Order, this Court vacated its August 9, 2019 Order and remanded the matter to the trial court for a determination of whether the Rule 1925(b) Order was served on the Podejkos’ counsel, and a supplemental opinion, if necessary.⁶ Therea...