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March 10, 2026 Get Citation Alerts Download PDF Add Note

Golden Mile Associates v. Com. of PA, DOT ~ Appeal of: Municipality of Monroeville

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 262 C.D. 2024

• Judges: McCullough

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (16.9K)

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Lead Opinion

                        by [Patricia A. McCullough](https://www.courtlistener.com/person/8212/patricia-a-mccullough/)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Golden Mile Associates, a :
Pennsylvania Fictitious Name :
Entity :
v. : No. 262 C.D. 2024
:
Commonwealth of Pennsylvania, : Submitted: October 17, 2025
Department of Transportation, :
Municipality of Monroeville, :
Monroeville Municipal Authority, :
and Borough of Plum :
:
Appeal of: Municipality of Monroeville :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MATTHEW S. WOLF, Judge

OPINION
BY JUDGE McCULLOUGH FILED: March 10, 2026
Appellant, the Municipality of Monroeville (Municipality), appeals from
the order entered in the Court of Common Pleas of Allegheny County (trial court) on
February 14, 2024, denying its motion for summary judgment asserting the defense of
governmental immunity pursuant to Section 8541 of the Political Subdivision Tort
Claims Act, 42 Pa.C.S. § 8541 (the Act)1 against the lawsuit filed by Appellee Golden
Mile Associates (Golden Mile). The Municipality contends that the trial court’s order

1
The Act “is a legislatively imposed shield of government immunity against any damages on
account of any injury to any person or property by any act of a local agency or employees thereof or
any other person, except as provided in the statute itself.” Kiley by Kiley v. City of Philadelphia, 645
A.2d 184, 185 (Pa. 1994). Section 8541 provides the general rule of governmental immunity and
states: “Except 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.
is appealable as a collateral order, and challenges the court’s determination that it is
not entitled to the defense of governmental immunity. After careful review, we quash
this appeal because the trial court’s interlocutory order is not an appealable collateral
order.
Background
The relevant facts and procedural history of this case are as follows. In
December of 1986, Golden Mile purchased an eight-acre parcel of land housing four
office and warehouse buildings located in the Municipality (Property). A ten-foot wide
drainage easement runs along the northern boundary of the Property near its border
with an adjoining road, and a 48-inch corrugated metal drainage pipe is located
underground within the easement. The condition of the drainage pipe has been
deteriorating since 2001, causing subsidence, ground erosion and flooding in the area.
The parties have been involved in a longstanding dispute as to who is responsible for
repairing the pipe and maintaining the easement area.
On January 16, 2003, the Municipality sent Golden Mile a letter denying
ownership of the drainage pipe. (Reproduced Record (R.R.) at 61a.) On October 20,
2020, Golden Mile filed a complaint against the Municipality alleging counts of
trespass, negligence, and nuisance for its alleged failure to adequately repair and
maintain the drainage pipe. Golden Mile averred “that [the Municipality] and/or the
[Monroeville] Municipal Authority own, hold title to, and/or are responsible for the
area encompassing the Drainage Easement.” (R.R. at 9a.)2 Golden Mile further
averred that “the Drainage Pipe was designed, constructed and installed by or on behalf

2
We note that under Pennsylvania law, municipalities and municipal authorities are separate
and distinct legal entities. See Reading Blue Mountain & Northern Railroad v. Seda-Cog Joint Rail
Authority, 235 A.3d 438, 446 (Pa. Cmwlth. 2020).

2
of Defendants, PennDOT, [the Municipality], the Municipal Authority and Plum
[Borough.]” (R.R. at 11a.) Golden Mile attached to its complaint the recorded plan
for the Property identifying the drainage easement.
In its answer to the complaint, the Municipality averred that it is a local
governmental agency and political subdivision that is entitled to governmental
immunity under the Act. (R.R. at 23a.) The Municipality disputed ownership of the
drainage easement and pipe and maintained that it “does not have legal title to the
alleged drainage easement nor has it accepted it by ordinance . . . and is not responsible
for the area encompassing the drainage easement.” (R.R. at 25a.) The parties thereafter
engaged in discovery and deposed Golden Mile’s adjacent property owner, Richard
Kacin, and Golden Mile representative Robert Poling.
On December 8, 2023, the Municipality filed a motion for summary
judgment on the basis of governmental immunity, averring that Golden Mile failed to
come forward with evidence to show that its cause of action falls within one of the
exceptions set forth in Section 8542(b) of the Act, including the potentially applicable
“Utility service facilities” exception, because it produced no evidence establishing the
Municipality owns the drainage pipe or drainage easement located on the Property.3
(Motion for Summary Judgment, at ¶¶ 82-84.)4 The Municipality attached to its motion
the deposition testimony of Mr. Kacin and Mr. Poling.
Mr. Kacin testified that Golden Mile purchased the Property from his
father in the mid-1980s, and that he did not know who installed the drainage pipe on

3
The pertinent exception to immunity is the “utility service facilities” exception, which
provides liability for negligence relating to: “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[.]” 42 Pa.C.S. § 8542(b)(5).

4
This document is included in the Original Record, but not the Reproduced Record.

3
the Property. (R.R. at 126a, 128a.) Mr. Kacin explained that stormwater in the area
flows from an adjoining property at a higher elevation, enters the drainage pipe on his
property, and continues downhill into the pipe located on the Property. (R.R. at 136a.)
Mr. Kacin believed that the Municipality owns the pipe, stating that he “always thought
that there was an agreement, [] that . . . [the Municipality] would take over the piping
and the infrastructure in the development of the housing, it’s very typical that the
municipalities take over these -- the infrastructure.” (R.R. at 143a.) However, Mr.
Kacin’s testimony also indicated that municipal ownership of such infrastructure is not
always the case, in that he acknowledged the Municipality refused ownership of the
section of pipe running through his property, and he personally paid $80,000 to repair
it. (R.R. at 133a-34a.)
One of Golden Mile’s general partners, Mr. Poling, expressed his belief
that the Municipality is responsible for maintaining the drainage easement because in
2001 Golden Mile contacted the “borough manager, I believe, and ultimately after
investigation, [it] came out and repaired the pipe in that drainage easement.” (R.R. at
78a.) According to Mr. Poling, Golden Mile does not own the drainage pipe because
it is located in a recorded easement area, and to his knowledge, the drainage pipe does
not benefit the Property. (R.R. at 91a, 119a-20a). Mr. Poling additionally testified that
Golden Mile pays a Municipal Separate Storm Sewer System fee (MS4 fee) “for storm
water management” which he assumed “covers these types of matters.” (R.R. at 77a.)5
However, during questioning by counsel for the Municipality, Mr. Poling
indicated that the Municipal Authority, rather than the Municipality itself, made the

5
The MS4 fee was enacted by the Municipality in October of 2018 through Ordinance No.
2689. Golden Mile has paid annual MS4 fees of approximately $9,480.00 per year. (R.R. at 31a-
32a.)

4
repairs to the pipe, and that these repairs were made pursuant to a license agreement
executed by the Municipal Authority and Golden Mile. (R.R. at 79a-80a.)6 Mr. Poling
also averred that he was not aware of any recorded deed indicating that the Municipality
had formally accepted and holds legal title to the drainage easement, nor was he aware
of the Municipality’s acceptance of the easement by dedication or by any other form
of legal tender. (R.R. at 78a-79a.) Mr. Poling additionally testified that he did not
know who installed the drainage pipe on the Property and that he had no information
or evidence showing that the Municipality had installed it. (R.R. at 84a.)
The trial court held a hearing on the Municipality’s motion for summary
judgment on February 14, 2024, and it denied the motion by order entered that same

6
The license agreement between Golden Mile and the Municipal Authority was entered into
the record as Exhibit 20 and provides in pertinent part:

THIS LICENSE AGREEMENT made as of the 10th day of
March 2003 by and between Golden Mile Associates, a Pennsylvania
Partnership, Robert C. Poling, General Partner, with an address of 500
Greentree Commons, 381 Mansfield Avenue, Pittsburgh, Pennsylvania
15220 (“Licensor”) and the Monroeville Municipal Authority, a
municipal authority organized under the laws of the State of
Pennsylvania and having its principal office and place of business at
4185 Old William Penn Highway, Monroeville, Pennsylvania
(“Licensee”).

WHEREAS, Licensor owns, leases, occupies and operates
certain property which Licensee wishes to enter upon and use for the
purposes hereinafter described;
....

Licensor shall permit Licensee, its officers, employees, agents
and servants, to enter upon and use that certain property herein
described, on the dates and during the hours herein defined, for the
purposes of securing, supporting and stabilizing a public sanitary sewer
transmission line.

(R.R. at 62a.)

5
date.7 The Municipality then filed a motion requesting the trial court to amend its order
to certify it for interlocutory appeal, which the trial court denied. See Pa.R.A.P. 312
(permitting appeals from interlocutory orders by permission).
On March 4, 2024, the Municipality filed a notice of appeal in this Court,
arguing that the trial court’s order denying its motion for summary judgment is
appealable as a collateral order pursuant to Pennsylvania Rule of Appellate Procedure
313(b). See Pa.R.A.P. 313(b). The trial court entered a Rule 1925(a) opinion on April
17, 2024, in which it addressed its rationale for denying summary judgment, stating
that: “[w]hile there is no direct evidence in the record that [the Municipality] owns the
drainage pipe, there is abundant circumstantial evidence that it does.” (Trial Ct. Op. at
4.) The trial court found that entry of summary judgment was not appropriate, as issues
of material fact remained as to whether the pipe was a part of the Municipality’s
infrastructure, and viewing the evidence “in a light most favorable to Golden Mile, its
drainage pipe is part of [the Municipality’s] storm water system[.]” Id. at 6.
On July 16, 2024, this Court entered a per curiam order directing the
parties to address the threshold issue of appealability of the trial court’s order in their
principal briefs.

7
Although Golden Mile did not file a written response to the Municipality’s motion for
summary judgment, counsel was present at the hearing and vigorously opposed it. (Trial Ct. Op., at
2, 4.) The Municipality maintains that Golden Mile’s failure to file a written response results in
waiver, citing Pennsylvania Rule of Civil Procedure 1035.3, which provides in relevant part that
“[s]ummary judgment may be entered against a party who does not respond.” Pa.R.Civ.P. 1035.3(d)
(emphasis added); see also Municipality’s Br., at 49-50. However, we disagree with the
Municipality’s waiver argument, as the language of the operative rule is permissive, and the trial court
found in favor of Golden Mile on this point, as Golden Mile zealously opposed the Municipality’s
summary judgment motion at the hearing.

6
Discussion
Collateral Order Doctrine
We begin by addressing the appealability of the trial court’s February 14,
2024 order, as it directly impacts our jurisdiction over this case. Smith v. Ivy Lee Real
Estate LLC, 326 A.3d 1064, 1069 (Pa. Cmwlth. 2024).8 “In Pennsylvania, an immunity
defense does not, in and of itself, entitle a litigant to appellate review of an interlocutory
order.” Hammond v. Thompson, 551 A.2d 667, 668 (Pa. Cmwlth. 1988). As noted,
the Municipality contends this Court has jurisdiction over this appeal pursuant to the
collateral order doctrine, which permits an appeal as of right from a non-final collateral
order if the order satisfies the three requirements set forth in Rule 313(b). This rule
provides:

(a) General Rule. An appeal may be taken as of right from
a collateral order of a trial court or other government unit.

(b) Definition. A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.
Pa.R.A.P. 313(a), (b).
Thus, an order is collateral and appealable if it satisfies the following three
prongs: (1) it is separable from and collateral to the main cause of action; (2) the right
involved is too important to be denied review; and (3) the question presented is such
that, if review is postponed until final judgment in the case, the claim will be irreparably
lost. Pa.R.A.P. 313(b). All these prongs must be met before this Court may apply the

8
“Whether an order is an appealable collateral order is a question of law subject to a de novo
standard of review and plenary scope of review.” Commonwealth v. Baroness Consulting &
Mediation, LLC, 337 A.3d 640, 646 n.9 (Pa. Cmwlth. 2025), appeal denied, __ A.3d __ (Pa., No. 315
MAL 2025, filed December 2, 2025).

7
collateral order doctrine to exercise jurisdiction over a case to reach the merits of the
issues on appeal. J.C.D. v. A.L.R., 303 A.3d 425, 430 (Pa. 2023). Additionally, we
construe the collateral order doctrine narrowly, as “[t]his approach avoids undue
corrosion of the final order rule and prevents delay resulting from piecemeal review of
trial court decisions.” Commonwealth v. Pownall, 278 A.3d 885, 903 (Pa. 2022).
As to the first prong of the collateral order test, our Supreme Court has
explained that “[a]n order is separable from the main cause of action if it can be
resolved without an analysis of the merits of the underlying dispute and if it is entirely
distinct from the underlying issue in the case.” Shearer v. Hafer, 177 A.3d 850, 858
(Pa. 2018) (emphasis added). “This limitation ensures that the order is sufficiently
removed from the main cause of action so that the appellate court does not review
matters which are ingredients of the underlying case.” Bollinger v. Obrecht, 552 A.2d
359, 362 (Pa. Cmwlth. 1989).
Therefore, when assessing the separability prong of the collateral order
doctrine in the instant case, we must consider whether the Municipality’s claim of
governmental immunity pursuant to the Act is entirely distinct from the underlying tort
issues in the case. See Shearer, 177 A.3d at 858. As noted, the Act sets forth the
general rule of governmental immunity from tort liability, and enumerates a limited
number of exceptions where the protection is waived, including the exception for
dangerous conditions of utility service facilities. Degliomini v. ESM Productions, Inc.,
253 A.3d 226, 241 (Pa. 2021); see also 42 Pa.C.S. § 8542(b)(5). We are also mindful
that “[the] exceptions to the absolute rule of immunity expressed in the statute must be
narrowly interpreted given the expressed legislative intent to insulate political
subdivisions from tort liability.” Dorsey v. Redman, 96 A.3d 332, 341 (Pa. 2014).

8
In Bollinger, this Court determined that an order denying a motion for
summary judgment raising an immunity defense was not appealable as a collateral
order because the immunity claim presented factual and legal issues to be decided in
the main cause of action. Bollinger, 552 A.2d at 363. Therefore, we quashed the appeal
for failure to satisfy the separability prong of the collateral order analysis. Similarly,
in Melchiorre v. Haileab (Pa. Cmwlth., 1186 C.D. 2021, filed February 27, 2023)
(unreported), we quashed an appeal from an order denying a motion for summary
judgment because “the issue of whether [the defendant] is entitled to immunity cannot
be resolved independent of a consideration of the tort claim . . . [and] is not separable
from and collateral to the main cause of action.” Melchiorre, 1186 C.D. 2021, slip op.
at 11;9 see also Hammond v. Thompson, 551 A.2d 667, 668 (Pa. Cmwlth. 1988)
(quashing appeal from order denying motion for summary judgment asserting
immunity defense because it did not meet the collateral order test); Gwiszcz v. City of
Philadelphia, 550 A.2d 880, 882 (Pa. Cmwlth. 1988) (quashing appeal from order
denying motion for summary judgment based on the defendant’s claim of immunity
because the question of immunity was not separable from the main cause of action and
was therefore not appealable under the collateral order doctrine).
Here, the immunity exception at issue provides liability for negligence
relating to “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[.]” 42 Pa.C.S. § 8542(b)(5) (emphasis added). Additionally, the
relevant municipal ordinance defines the term “storm sewer system” as “the system of
collection and conveyance including pipes, conduits, main lines, inlets, culverts, catch
basins, gutters, ditches, channels, detention ponds, streets, curbs, drains and all devices,

9
We cite this unreported decision issued by this Court for its persuasive value. See Section
414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414 (a).

9
appliances and facilities appurtenant thereto used for collecting, conducting, pumping,
conveying, detaining and/or treating stormwater.” (Trial Ct. Op. at 6-7) (quoting
Ordinance No. 2689). The trial court found that entering summary judgment in favor
of the Municipality based on governmental immunity was not appropriate, as
circumstantial evidence in the record supported Golden Mile’s assertion that the
Municipality owned the subject pipe which was a part of its storm sewer system, and
issues of material fact remained for trial.
Based on the foregoing, we conclude that the issue of whether the
Municipality is entitled to immunity cannot be separated from the outstanding issue of
whether the pipe was part of the Municipality’s sewer system, part of the other
defendants’ sewer systems, or whether it is owned by Golden Mile. As in Bollinger
and Melchiorre, the issue of ownership of the pipe and drainage easement is a question
of fact for the fact finder to determine, and is essential to both the immunity claim
and to the underlying merits of this dispute. Therefore, because the propriety of
governmental immunity here is inextricably related to the merits of Golden Mile’s case,
and in accordance with our longstanding practice of construing the collateral doctrine
order narrowly, we conclude this appeal is not collateral or authorized by Rule 313(b).
Accordingly, we quash this interlocutory appeal.
Conclusion
We conclude that the trial court’s order denying the Municipality’s motion
for summary judgment raising the defense of governmental immunity is interlocutory
and is not appealable as a collateral order. Accordingly, we quash this appeal.

---

PATRICIA A. McCULLOUGH, Judge

10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Golden Mile Associates, a :
Pennsylvania Fictitious Name :
Entity :
v. : No. 262 C.D. 2024
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Municipality of Monroeville, :
Monroeville Municipal Authority, :
and Borough of Plum :
:
Appeal of: Municipality of Monroeville :

ORDER

AND NOW, this 10th day of March, 2026, the Municipality of
Monroeville’s appeal of the interlocutory February 14, 2024 order entered in the
Court of Common Pleas of Allegheny County is hereby QUASHED.

---

PATRICIA A. McCULLOUGH, Judge