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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Susan Nelson and Michael Nelson, :
co-administrators of the Estate of

:
Angel Nelson, deceased, in their own
:
right, as husband and wife, and as

:
parents and natural guardians of

:
Angel Nelson, deceased,

:

Appellants
:

:

v.

: No. 1375 C.D. 2004

: Submitted: February 1, 2005
Borough of Rosslyn Farms, Marianne
:
Bonidi, M.D., Carnegie Borough, Irena
:
Kierski, Bernadette Nagy, Frank Nagy
:
and Pennsylvania Department of

:
Environmental Protection

:

BEFORE: HONORABLE
DORIS A. SMITH-RIBNER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE JIM FLAHERTY, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER

FILED: February 25, 2005

Michael and Susan Nelson, husband and wife, brought survival and
wrongful death actions against various defendants, including appellee, the Borough
of Rosslyn Farms (Rosslyn Farms), after Susan Nelson went into premature labor
following a slip and fall outside of her house; the baby did not survive. The Court
of Common Pleas of Allegheny County (common pleas) granted summary

judgment in favor of Rosslyn Farms, dismissing it from the action. After review,
we affirm.

According to the Nelsons' complaint, Susan Nelson slipped and fell
on a slick, slimy accumulation of water near the steps of her home. One week later,
Susan's daughter was born prematurely and died shortly thereafter. The Nelsons
live in the Borough of Carnegie on Angora Way. Their home is bounded by Llama
Lane, Rosslyn Road and Angora Path,1 and it sits close to the border of Rosslyn
Farms. Both Llama Lane and Tuscorora Trail, which runs perpendicular to Llama
Lane and intersects it near the Nelsons' home, extend into Rosslyn Farms. The
complaint averred that storm drains, culverts and/or sewer pipes run along Llama
Lane and Tuscorora Trail to divert water run-off because the roads are situated
along a slope or hillside.2 The complaint further averred that the storm drains,
culverts and sewer pipes are owned and controlled by Rosslyn Farms and located
within its rights-of-way, and that the slippery water accumulation near the
Nelsons' home was the result of Rosslyn Farms' failure to, inter alia, properly
design, repair and maintain the drainage system. Finally, the Nelsons averred that
Rosslyn Farms had notice of the drainage problem near their home. The Nelsons
asserted similar averments against Carnegie, as well as asserting various causes of
action against a doctor and hospital where Susan Nelson received treatment
following her fall.

1 Angora Way is not visible on any of the maps contained in the record. The maps do
indicate that the Nelson home is bounded by Llama Lane, not far from the intersection of Llama
Lane and Tuscorora Trail.
2 From the photographs contained in the record, Tuscorora Trail and Llama Lane appear to
be gravel covered roads with ditches running along the side.
2

Rosslyn Farms filed an answer and new matter wherein it denied
ownership of any storm drains, culverts and sewer pipes and asserted the
affirmative defense of immunity pursuant to what is commonly referred to as the
Political Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541 8542.3

Following discovery, Rosslyn Farms moved for summary judgment,
which was granted, prompting this appeal.4 It argued, inter alia, that it did not own
the allegedly defective storm water system in the vicinity of the Nelsons' home,
nor was any storm water system within its right-of-way since it owned neither
Tuscorora Trail nor Llama Lane. Rosslyn Farms further contended that Tuscorora
Trail was an unopened street and that Carnegie either maintained or owned Llama
Lane where it intersected Tuscorora Trail.

In opposition to the motion, the Nelsons argued that the basis of their
complaint was that the entire drainage system, including the drainage system along
that part of Tuscorora Trail and Llama Lane that were located in Rosslyn Farms
and which channeled water into catch basins located at the intersection of

3 Of particular relevance is Section 8542(b), which contains the following exception to
governmental immunity:
(b) Acts which may impose liability.-- The following acts by a
local agency or any of its employees may result in the imposition
of liability on a local agency:

. . . .
(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 . . . .
42 Pa. C.S. § 8542(b)(5). It is well-established that in order for a claimant to recover under the
"utility exception" to governmental immunity, a claimant must establish that the governmental
entity both owned the utility system alleged to present a dangerous condition and that such was
located within the governmental entity's rights-of-way. Leone v. Dep't of Transp., 780 A.2d 754
(Pa. Cmwlth. 2001), appeal denied, 568 Pa. 702, 796 A.2d. 984 (2002).
4 By this time, Rosslyn Farms was the only defendant remaining in the case.
3

Tuscorora Trail and Llama Lane in Carnegie, was deficient in its design,
installation and maintenance and that such deficiencies led to Susan Nelson's fall.
Further, the Nelsons argued that an issue of material fact existed as to whether that
portion of Tuscorora Trail in Rosslyn Farms was an unopened, paper street or a
public street.5 According to the Nelsons, the record (which contained affidavits
supporting the allegations of both sides), when viewed in their favor, demonstrated
that both streets were owned by Rosslyn Farms and, therefore, so was the storm
water drainage system.

Finally, the Nelsons contended in their response to the summary
judgment motion that even assuming that Rosslyn Farms did not own Tuscorora
Trail or Llama Lane, Rosslyn Farms owned property abutting a portion of Llama
Lane in Rosslyn Farms, which was sufficient to vest it with ownership of the
drainage system.

On appeal, the Nelsons limit their argument to the contention that
Rosslyn Farms' ownership of property, which abuts Llama Lane in the Borough of
Rosslyn Farms, satisfies the requirement that they demonstrate that the

5 Although it is not necessary to address the concepts in detail, an "opened street" is a street
within the borough that is used as a public passageway. Section 1701 of the Borough Code, Act
of February 1, 1966, P.L. (1965) 1656, 53 P.S. § 46701. "Opening a street" is defined as "the
construction and grading of a street or portion thereof and the act of physically taking possession
of an area or laid-out street for the purpose of making the same usable to the traveling public."
Id. A "paper street" is one depicted on a development plan but never actually developed
following the filing of the plot plan. See generally Croyle v. Dellape, 832 A.2d 466 (Pa. Super.
2003). Pursuant to Section 1703 of the Borough Code, "[n]o borough shall acquire any right in or
responsibility for any street privately constructed until dedication of such street shall have been
presented to and accepted by the borough and until such dedication shall have been recorded in
the county office for recording of deeds." 53 P.S. § 46703.
4

governmental entity owns the sewer facility6 and that such facility is located within
its rights-of-way. According to the Nelsons, "[e]ven accepting [the assertion that
Llama Lane is a private drive or paper street] . . . the borough still had an
ownership and right-of-way interest in the portion of the drainage system on upper
Llama Lane [in Rosslyn Farms borough] by virtue of the fact that the borough was
the record owner of the tract abutting the drainage system on this portion of the
roadway." Appellants' brief at 15-16.

We believe that common pleas thoroughly and accurately addressed
this issue, and accordingly, affirm on the basis of common pleas' opinion, set forth
at Nelson v. Borough of Rosslyn Farms, GD No. 02-125667 (C.C.P. Allegheny
County, filed August 5, 2004).7

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge

6 Although of little consequence, common pleas treated the alleged storm water drainage
system as a facility of water; we conclude that a storm water drainage system would more
properly be characterized as a sewer facility. Compare Sections 2001 and 2201 of the Borough
Code, 53 P.S. §§ 47001, 47201 with Section 2401 of the Borough Code, 53 P.S. § 47401.
7 In reaching this conclusion, we note that we adhered to the standards for evaluating a
motion for summary judgment that we articulated in Jackson v. City of Philadelphia, 782 A.2d
1115 (Pa. Cmwlth. 2001), reversed in part on other grounds, 578 Pa. 199, 851 A.2d 834 (2004).
5