D. Sobat and E. Sobat v. The Borough of Midland ~ Appeal of: E. Sobat

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daisy Sobat and Eileen Sobat :

: No. 1843 C.D. 2015

v. :

: Argued: April 11, 2016

The Borough of Midland, :

A Municipal Corporation; :

Diane Kemp, Manager of the :

Borough of Midland and :

Chad Miller, Building/Sewer :

Inspector of the Borough of Midland :

:

Appeal of: Eileen Sobat :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY

JUDGE McCULLOUGH FILED: June 9, 2016

Eileen Sobat (Sobat) appeals from the August 24, 2015 order of the

Court of Common Pleas of Beaver County (trial court) sustaining the preliminary

objections in the nature of a demurrer filed by the Borough of Midland (Borough);

Diane Kemp (Kemp), the Borough’s manager; and Chad Miller (Miller), the

Borough’s building/sewer inspector, (together, the Borough defendants), resulting

in the dismissal of her complaint. For the reasons that follow, we affirm.

Facts and Procedural History

On April 23, 2015, Daisy Sobat and her daughter, Eileen Sobat,

(together, the Sobats), filed a Complaint against the Borough defendants for a

single count of negligent misrepresentation. At the time of the pertinent events,

Daisy Sobat owned a residence at 1284 Ohio Avenue, Midland, Beaver County,

Pennsylvania, where the Sobats have resided since 1967. In October of 2014, the

Sobats began to experience sewer problems inside their home “causing improper

drainage and/or back up of their sewage lateral line.” (Reproduced Record (R.R.)

at 7a.) The Sobats hired a plumber, Wayne George (George), to investigate and

repair the “sewage lateral draining issue.” Id. After investigation, George

determined that portions of the sewage lateral line inside the residence, as well as

its exterior, required replacement due to “age and deterioration.” Id. George

concluded that the sewage lateral presented a danger to the Sobats’ health which

required immediate attention. George excavated the exterior lateral line for a

distance of twenty-five lineal feet, from where the line entered the house to the

sidewalk abutting Ohio Avenue (first excavation). At this juncture, George

determined that the sewer lateral had reverse flow and that gravity flow from the

house would be impossible. (R.R. at 6a-7a.)

George requested permission from Miller to install a sewage grinder

pump outside of the residence foundation which “would fully correct” the reverse

gravity flow problems. (R.R. at 7a.) Miller left the property for a short while to

allegedly consult with Kemp. Upon his return, Miller advised George that “sewer

grinder pumps were not permitted in the Borough of Midland by Borough

ordinance.” (R.R. at 8a.) Miller informed George that “a sewage grinder pump

could not be installed,” and that George would be required to correct the reverse

flow problem. (R.R. at 8a.) Thus, the lateral excavation had to continue from the

sidewalk to beyond the middle of Ohio Avenue, where the main line was located.

George protested that the additional excavation was unnecessary and costly.

2

Miller advised George again that grinder pumps were not permitted by ordinance,

that the same was confirmed by Kemp, and that additional excavation was

required. (R.R. at 8a.)

After obtaining a permit to open the street, George performed the

additional excavation to the main line, a distance of twenty-five lineal feet (second

excavation), and George determined that the main line was three inches too high to

obtain gravity flow from the residence. Miller was called to the site again to

inspect and review the lateral excavation and the basement elevation of the lateral

to the main line. Miller confirmed that positive gravity flow from the residence to

the main line would not be possible. Miller left the property for a short while to

allegedly consult with Kemp. Upon his return, Miller informed George that a

sewage grinder pump could be installed. After obtaining approval of the Borough

engineer the following day, George installed the sewage grinder pump and a new

sewer line, which was inspected by Miller. (R.R. at 8a-9a.)

In their claim for negligent misrepresentation, the Sobats averred that

the Borough defendants “were under a public or other duty to provide true and

correct information to the [Sobats] regarding [the] Borough’s requirements in

repairing or replacing the [Sobats’] sewer service lateral.” (R.R. at 11a.) The

Sobats alleged that the Borough defendants’ representation that grinder pumps

were prohibited by ordinance was false and that had correct information been

supplied at that time, the Sobats would not have been required to perform the

second excavation at great expense. The Sobats sought damages for expenditures

incurred to open the street, excavate to the main line, backfill the portion

excavated, and repair the asphalt on Ohio Avenue – all of which relate to the

second excavation. They averred that the Borough defendants have waived

3

governmental immunity for utility service facilities contained in Section

8542(b)(5) of the Judicial Code, commonly referred to as the Political Subdivision

Tort Claims Act (PSTCA), 42 Pa.C.S. §8542(b)(5), “as this matter concerns a

dangerous condition of a sewage system owned by the Borough.” (R.R. at 9a-13a.)

The Borough defendants filed preliminary objections in the nature of a

demurrer to the Sobats’ Complaint. The Borough defendants contended that they

were entitled to governmental immunity pursuant to the PSTCA, and that the

complaint failed to allege facts that would bring the claim within the utility service

facilities exception to governmental immunity. They argued that the Sobats did

not aver any injury sustained to property or person, which is a threshold

requirement for any waiver of immunity. Further, the Borough defendants asserted

that the claim did not fall within the utility service facilities exception to immunity

because the complaint alleged neither a dangerous condition of the sewer system

owned by the Borough nor that the Borough had prior notice of the existence of

any dangerous condition.1

In opposition to the preliminary objections, the Sobats argued that

expenditures were incurred due to the second, unnecessary excavation of the

lateral, which did constitute an injury to person or property. The Sobats also

contended that a dangerous condition was alleged, i.e., that of the reverse flow

creating sewer backup and drainage issues. The Sobats argued that the main line

1

The Borough defendants also contended that the complaint should be dismissed due to

the economic loss doctrine. The economic loss doctrine provides that no cause of action exists

for negligence that results solely in economic damages unaccompanied by physical injury or

property damages. Excavation Technologies, Inc. v. Columbia Gas Co. of Pennsylvania, 985

A.2d 840, 841 n.3 (Pa. 2009).

4

was three inches too high and that a positive gravity flow could never have been

achieved at the residence. While not pled, the Sobats countered that the Borough

defendants had notice of the reverse flow condition because an occupancy permit

must have been issued for the residence, which would have required inspection

from a Borough representative. The claim is that an occupancy permit should not

have been issued because the three-inch differential at the point of connection

would not have passed inspection and, therefore, a negligent inspection must have

been performed. This, argued the Sobats, gave the Borough defendants knowledge

of the dangerous condition. The Sobats contended that questions of fact existed as

to the details of the condition, whether the condition was dangerous, and whether

the Borough had notice of the condition, all of which precluded dismissal of the

complaint on preliminary objections.

By order dated August 24, 2015, the trial court sustained the Borough

defendants’ preliminary objections and dismissed the complaint. (R.R. at 88a.)

The trial court noted that the complaint does not allege a dangerous condition of

the sewer line or how the Borough’s sewer line, in and of itself, constituted a

dangerous condition. The court determined that the complaint merely alleged the

Borough defendants’ negligent misrepresentation as to the installation of a grinder

pump and that the Sobats’ expenses were not caused by a dangerous condition of

the sewer line itself. Further, the court concluded that the claim for additional

expenses incurred due to the excavation work “[did] not constitute ‘damages on

account of an injury to a person or property.’” (R.R. at 87a.) Finally, the trial

court determined that no allegation was made that the Borough defendants had

notice or should be charged with notice of the dangerous condition at a sufficient

time prior to the event to have taken measures to protect against the dangerous

5

condition. Thus, the trial court concluded that the Sobats’ claim did not fall under

the immunity waiver for utility service facilities and, therefore, was barred by

governmental immunity.2 (R.R. at 83a-88a.)

Eileen Sobat3 filed the instant appeal4 and contends that the trial court

erred in sustaining the Borough defendants’ preliminary objections because she

sufficiently alleged: (1) the existence of a dangerous condition of the sewer line;

(2) that expenditures for the unnecessary work on the lateral due to the Borough

defendants’ insistence is an “injury or damage” allowing recovery for the

Borough’s negligent misrepresentation; and (3) that the condition of the sewage

2

The court resolved the preliminary objections on the inapplicability of the utility service

facilities exception; therefore, the court did not reach the Borough defendants’ alternative

argument that Sobat’s claim was barred by the economic loss doctrine. The economic loss

doctrine is not raised in this appeal.

3

Daisy Sobat did not appeal the trial court’s order.

4

When ruling on whether preliminary objections in the nature of a demurrer were

properly sustained, our standard of review is de novo and the scope of review is plenary. Gale v.

City of Philadelphia, 86 A.3d 318, 319 n.1 (Pa. Cmwlth. 2014). This Court has previously held

that:

We may affirm the granting of preliminary objections only when it

is clear and free from doubt that, based on the facts pled, the

plaintiff will be unable to prove facts legally sufficient to establish

a right to relief. In evaluating the legal sufficiency of the

challenged pleading, we accept as true all well-pled, material, and

relevant facts alleged and every inference that is fairly deducible

therefrom.

Gibellino v. Manchester Township, 109 A.3d 336, 343 (Pa. Cmwlth. 2015) (quoting Gale, 86

A.3d at 319 n.2). The trial court’s decision will be reversed only where there is an error of law

or an abuse of discretion. Le-Nature’s, Inc. v. Latrobe Municipal Authority, 913 A.2d 988, 991

n.3 (Pa. Cmwlth. 2006).

6

lateral as it attached to the main line of the Borough sewage system is sufficient to

establish a reasonably foreseeable risk of injury of which the Borough defendants

had actual or constructive knowledge.

Further, Sobat asserts that the trial court erred and violated her

procedural due process rights by permitting the Borough defendants to file

preliminary objections and a brief in excess of page limitations set forth by local

rule.5 Sobat contends that the Borough defendants did not establish “cause shown”

as required by the rule. Sobat argues that the noncompliance with the rule should

warrant a sanction.

In response, the Borough defendants maintain that the trial court did

not err in sustaining their preliminary objections and dismissing the complaint

because Sobat’s claim is barred by governmental immunity. The Borough

defendants contend that Sobat failed to plead damages resulting from injury to

person or property as required to overcome governmental immunity pursuant to 42

Pa.C.S. §8542(a). Further, the Borough defendants argue that Sobat’s negligent

misrepresentation claim cannot proceed under the utility service facilities

exception to immunity because she failed to plead the existence of a dangerous

5

Beaver County Local Rule 1028(c), entitled “Procedures for Disposition of Preliminary

Objections,” provides:

Except as otherwise permitted by Order of Court for cause shown

or by agreement of the parties by filed stipulation, Preliminary

Objections shall not exceed five (5) pages in length and supporting

briefs as well as briefs in opposition shall not exceed ten pages in

length.

7

condition of a sanitary sewer facility owned by the Borough and that the Borough

defendants had prior notice of the alleged dangerous condition.6

Discussion

Pursuant to sections 8541 and 8542 of the PSTCA, a local agency is

immune from liability for damages on account of an injury to a person or property

caused by its own acts or the acts of its employees unless the injury falls into one

of the enumerated exceptions to governmental immunity. 42 Pa.C.S. §§8541-

8542; see also Dunkle v. Middleburg Municipal Authority, 842 A.2d 477, 479 (Pa.

Cmwlth. 2004). To qualify for an exception, a plaintiff must prove that: (1) the

damages would be recoverable under common law or a statute against a person

unprotected by immunity; and (2) the negligent act of the local agency or its

6

In footnote 3 of their brief, the Borough defendants move this Court “to dismiss and

quash this appeal for the failure to join an indispensable party, i.e., Daisy Sobat.” (Brief for

Appellees, at 9 n.3.) Specifically, they state:

To the extent that this Court deems Daisy Sobat indispensable to

this appeal where it was alleged in the Complaint that the

“Plaintiffs” incurred the expense at issue and thus implicitly were

aggrieved (R. 12a-13a), this appeal should be dismissed and

quashed for the failure to join an indispensable party as the Notice

of Appeal (R. 101a-104a) filed by Plaintiff Eileen Sobat only does

not serve to function as an appeal by Daisy Sobat.

Id. at 9 n.3. We do not deem Daisy Sobat’s interest indispensable to this appeal such that no

decree can be made without impairing her rights. See In re Silverman, 90 A.3d 771, 779 (Pa.

Cmwlth. 2014); see also HYK Construction Company, Inc. v. Smithfield Township, 8 A.3d 1009,

1015 (Pa. Cmwlth. 2010). However, Daisy Sobat is a party to this appeal and is deemed an

appellee pursuant to Pa.R.A.P. 908 (“[a]ll parties to the matter in the court from whose order the

appeal is taken shall be deemed parties in the appellate court . . . [and a]ll parties in the appellate

court other than the appellant shall be appellees”). See Weston v. Northampton Personal Care,

Inc., 62 A.3d 947, 954 (Pa. Super. 2013). We note that Sobat’s counsel informed the Court at

oral argument that Daisy Sobat passed away on June 26, 2015.

8

employees that caused the injury falls within one of the limited exceptions to

immunity. 42 Pa.C.S. §8542(a).

Section 8542(b)(5) of the PSTCA, the utility service facilities

exception, provides that a local agency may be held liable for:

A dangerous condition of the facilities of . . . sewer . . .

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) (emphasis added); see also McCarthy v. City of Bethlehem,

962 A.2d 1276, 1278-79 (Pa. Cmwlth. 2008). Because of the expressed legislative

intent to insulate political subdivisions from tort liability, the exceptions to

immunity are strictly construed. Metropolitan Edison Company v. Reading Area

Water Authority, 937 A.2d 1173, 1175 (Pa. Cmwlth. 2007).

Municipalities are under no common law duty to provide a sewerage

system. Yulis v. Borough of Ebensburg, 128 A.2d 118, 120 (Pa. Super. 1956).

Therefore, a municipality cannot be held liable for damages resulting from an

inadequate sewer system. Id. However, municipalities will be liable for injuries

resulting from negligent construction or maintenance of the system. McCarthy,

962 A.2d at 1279-80; see Yulis, 128 A.2d at 120 (“[municipalities] may be called

upon to answer for injuries resulting from negligence in the actual work of

construction or for failure to keep the work in repair after it is completed”).

9

Although the issue of what constitutes a dangerous condition is a

question of fact for the jury, whether an action is barred by immunity is purely a

question of law. Le-Nature’s, Inc. In order for liability to be imposed under

Section 8542(b)(5), a strictly legal determination must be made in the first instance

that the injury was caused by a condition of the property itself, which has its origin

or source in the property. Metropolitan Edison Company v. City of Reading, 125

A.3d 499 (Pa. Cmwlth. 2015).

In the instant case, Sobat’s claim against the Borough is founded upon

the alleged negligent misrepresentation of the Borough, through its employees, that

a grinder pump could not be installed on the property because it was prohibited by

ordinance. Sobat contends that such information was false and the Borough had a

public duty to convey correct information regarding its ordinances. Her claim is

that, had the Borough defendants conveyed correct information regarding the

grinder pump in the first instance, the second excavation into the street would not

have been necessary.

Notably, Sobat is not alleging that any injuries were sustained, and no

damages are sought, as to the first excavation or due to the sewage problems

caused by the reverse flow. Further, no damages are sought for the grinder pump

itself. Rather, Sobat contends that, had the negligent misrepresentation not

occurred, a grinder pump would have been installed earlier and she would not have

had to perform the second excavation. Thus, Sobat seeks damages in the nature of

reimbursement of expenses related to that second excavation, which includes those

pertaining to the opening and resurfacing of the street.

10

Condition of Property Itself

Before we can analyze whether the complaint sufficiently avers a

claim that falls within the utility service facilities exception, the Court must make a

threshold legal determination that Sobat’s injury was caused by a condition of the

property itself – that it had its origin or source in the property. Metropolitan

Edison, 125 A.3d at 502.

In Le-Nature’s Inc., a factory owner (Le-Nature’s) undertook a

construction project at its place of business and hired a general contractor for the

same. The general contractor contracted with a drilling company to drill and place

caissons for the project. Prior to commencement of the work, the general

contractor called the Pennsylvania One Call (One Call)7 to determine whether there

were any utility lines located where the drilling company was required to drill.

The city did not respond to the request and drilling commenced on the project.

While performing work on the project, the drilling company struck and damaged a

sewer line owned by the city. Le-Nature’s filed a complaint against the city for its

failure to respond to the One Call request. The trial court sustained preliminary

objections filed by the city on the basis of governmental immunity.

On appeal to this Court, we concluded that the allegations contained

in Le-Nature’s complaint, if proven, established a claim in negligence. We then

7

The “One Call System” is defined in what is commonly known as the Pennsylvania One

Call Act, the Act of December 10, 1974, P.L. 852, as amended, 73 P.S. §§176-186. The “One

Call System” is, in pertinent part, a “communication system established within this

Commonwealth to provide a single nationwide toll-free telephone number or 811 number for

excavators or designers or any other person covered by this act to call facility owners and notify

them of their intent to perform excavation, demolition or similar work as defined by this act.”

Section 1 of the Pennsylvania One Call Act, 73 P.S. §176. After a facility owner receives a

request under the One Call System, it is required to identify its utility lines located within the

project site. Section 2 of the Pennsylvania One Call Act, 73 P.S. §177.

11

considered the applicability of the utility service facilities exception to

governmental immunity, 42 Pa.C.S. §8542(b)(5). We recognized that the relevant

inquiry in determining whether the exception applied is “whether the allegedly

dangerous condition derived from, originated or had its source as the local

agency’s realty.” Le-Nature’s, 913 A.2d at 994. We found that Le-Nature’s failed

to allege a dangerous condition of the city’s sewer system itself. Rather, it merely

averred that the city’s inaction created a dangerous condition generally. Although

the city’s failure to comply with the requirements of the One Call Act constituted

negligence per se, we indicated that this violation, alone, does not “render the

sewer system dangerous or unsafe for the purpose for which it was intended.” Id.

Because the dangerous condition was alleged to have derived from the city’s

failure to comply with the One Call Act and the contractor hitting the line, we

determined that there were no allegations of a dangerous condition of the sewer

system itself. Therefore, we concluded that the utility service facilities exception

to immunity was inapplicable.

Here, as in Le-Nature’s, Sobat is not claiming injury due to a

dangerous condition that derived from, originated, or had as its source the

Borough’s sewer system itself. She does not aver that her injury was caused by the

reverse flow, the sewage backup and drainage sustained, or the impossibility of

obtaining gravity flow. Rather, the injury alleged is that the second excavation had

to be performed as a result of the Borough’s negligent misrepresentation. All

injuries alleged are claimed to have been caused solely by the alleged negligent

misrepresentation, and not from a condition of the property itself. Accordingly, the

utility service facilities exception cannot provide a waiver of governmental

immunity.

12

Dangerous Condition

Assuming arguendo the averments could satisfy this threshold

determination, the remaining elements of the utility service facilities exception

cannot be met. For this exception to apply, the injury must stem from a

“dangerous condition” of sewer facilities “owned by the Borough.” 42 Pa.C.S.

§8542(b)(5).

Sobat argues that a dangerous condition is alleged in paragraph

seventeen of the Complaint, which states that “Mr. George found the sewage

lateral needed immediate attention because it presented a danger to the health of

the occupants.” This allegation fails to bring the negligent misrepresentation claim

within the immunity exception. The reverse flow condition is not claimed to be the

cause of Sobat’s injury and damages. Moreover, no contention is made that the

reverse flow condition was the result of sewer lines that were owned or maintained

by the Borough. Rather, the reverse flow condition pertains to Sobat’s own sewer

service lateral; there is no allegation that the Borough owned or had a duty to

maintain Sobat’s lateral.

It is argued that the Borough defendants were negligent in their

inspection of the Sobat lateral’s original installation/connection to the main line.8

Again, such inspection is not alleged to be the cause of any injury or damages

sustained by Sobat in this negligent misrepresentation claim. Sobat’s negligent

8

The contention is that an occupancy permit must have been issued at some point for this

residence, and that it should not have been issued because it was contingent upon the lateral

passing inspection. Sobat contends that the lateral could not have met those inspection

requirements and, therefore, the Borough must have been negligent in passing it for inspection.

13

inspection argument is asserted solely as providing a basis for the Borough

defendants’ notice of the reverse flow condition. Even if Sobat had alleged that

her injury was caused by the Borough’s negligent inspection of Sobat’s lateral

when it was installed, the utility service facilities exception is inapplicable. Any

defect alleged must originate from the Borough’s property itself and not merely

from the conduct of the Borough’s employees.

In Metropolitan Edison Company, 937 A.2d at 1174, the authority

was performing excavation work with a boring machine and struck and damaged a

utility line owned by Metropolitan Edison Company (Met-Ed). Met-Ed brought an

action against the authority to recover damages, alleging that the authority failed to

exercise due care and take reasonable steps to avoid damaging its property, as

required by the Pennsylvania One Call Act. This Court affirmed the trial court’s

grant of summary judgment in favor of the authority on the basis that the utility

service facilities exception to governmental immunity was inapplicable. There, we

determined that the dangerous condition alleged had originated from the conduct of

the authority’s employees, and Met-Ed failed to allege a dangerous condition that

had the authority’s water line as its source. Id. at 1175.

In short, Sobat has not alleged a dangerous condition of sewer

facilities owned by the Borough. It is clear that any alleged negligence stemmed

solely from the Borough’s employees’ conduct and not from the Borough’s sewer

lines. Accordingly, the complaint fails to set forth allegations that would bring this

claim within the utility service facilities exception under section 8542(b)(5).

14

Right to Amend Complaint

While it is clear that the preliminary objections should be sustained

for the failure to state a claim falling within an exception to immunity, Sobat

argues that she should be permitted to amend her complaint. Although an

amended complaint may be filed as of course in response to preliminary

objections, no amended complaint was filed. See Pa.R.C.P. No. 1028(c)(1). No

motion for leave to amend the complaint was presented to the trial court prior to

the court’s decision. Further, Sobat did not request leave to amend her complaint

in her response or brief in opposition to the preliminary objections. Although a

trial court may, on its own motion, permit amendment of a pleading, Suppan v.

Kratzer, 660 A.2d 226, 231 (Pa. Cmwlth. 1995), the trial court did not provide for

such relief in its order sustaining the preliminary objections and dismissing her

complaint.

It is well established that leave to amend is within the sound discretion

of the trial court, Reed v. Pray, 53 A.3d 134, 143 (Pa. Cmwlth. 2012), and will not

be reversed absent a clear abuse of discretion. Feingold v. Hill, 521 A.2d 33, 39

(Pa. Super. 1987). We note that amendment of the complaint is properly denied

where the complaint’s defects are so substantial that amendment would be futile.

Reed, 53 A.3d at 143-44; Weaver v. Franklin County, 918 A.2d 194, 203 (Pa.

Cmwlth. 2007). Moreover, the trial court does not abuse its discretion in failing to

grant leave to amend where further amendment could not circumvent a defendant’s

immunity. Holt v. Northwest Pennsylvania Training Partnership, 694 A.2d 1134,

1138 n.9 (Pa. Cmwlth. 1997).

In the above analysis with regard to the immunity exception, we have

considered not only the averments of the complaint but all contentions asserted by

15

Sobat in her brief. Even if Sobat amended the complaint to add these contentions,

the claim would still fall short under the utility service facilities immunity

exception. Given the nature of the case, we conclude that amendment of the

complaint would be futile. Because amendment would not circumvent the

Borough defendants’ immunity in this case, the trial court did not abuse its

discretion in failing to give Sobat an opportunity to amend her complaint.

Procedural Due Process

As noted above, Sobat claims that her procedural due process rights

were violated by the trial court’s grant of permission to the Borough defendants to

file their preliminary objections and brief in excess of the page limits set forth by

local rule. Sobat cites no case law or other legal authority that supports her

contention that her right to procedural due process was denied in these

circumstances. Further, Sobat fails to develop the procedural due process claim

such that the Court can conduct a meaningful review.9 As noted by our Supreme

Court in Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014):

[O]ur rules of appellate procedure are explicit that the

argument contained within a brief must contain “such

discussion and citation of authorities as are deemed

pertinent.” Pa. R.A.P. 2119(a). “[W]here an appellate

brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue

9

Notice and the opportunity to be heard are the fundamental elements of due process.

City of Philadelphia v. Urban Market Development, Inc., 48 A.3d 520, 522 (Pa. Cmwlth. 2012).

The concept of due process is flexible and provides only such procedural safeguards as the

situation warrants. In re McGlynn, 974 A.2d 525, 532 (Pa. Cmwlth. 2009). Key to the

determination of whether a party has been denied procedural due process is whether that party

has suffered demonstrable prejudice. Urban Market Development, Inc., 48 A.3d at 522. Sobat

offers no discussion as to how she was denied procedural due process.

16

in any other meaningful fashion capable of review, that

claim is waived. It is not the obligation of [an appellate

court ... ] to formulate [a]ppellant’s arguments for him.”

Id. (quoting Wirth v. Com., 95 A.3d 822, 837 (Pa. 2014) (quoting Commonwealth

v. Johnson, 985 A.2d 915, 924 (Pa. 2009)). Therefore, Sobat’s claim of violation

of procedural due process is waived.

Conclusion

The trial court did not err in sustaining the Borough defendants’

preliminary objections based on governmental immunity. Dismissal of Sobat’s

negligent misrepresentation claim was proper because there are no averments that

would bring the claim under the utility service facilities waiver of immunity.

Further, any amendment of the complaint would be futile and would not bring the

claim within an immunity exception. Therefore, the trial court did not abuse its

discretion in failing to provide Sobat an opportunity to amend the complaint.

Accordingly, the trial court’s order will be affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daisy Sobat and Eileen Sobat :

: No. 1843 C.D. 2015

v. :

:

The Borough of Midland, :

A Municipal Corporation; :

Diane Kemp, Manager of the :

Borough of Midland and :

Chad Miller, Building/Sewer :

Inspector of the Borough of Midland :

:

Appeal of: Eileen Sobat :

ORDER

AND NOW, this 9th day of June, 2016, the August 24, 2015 order of

the Court of Common Pleas of Beaver County is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge