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ROBERT B. WICKS AND LUCY J. WICKS v. MILZOCO BUILDERS (07/02/76)

decided: July 2, 1976.

ROBERT B. WICKS AND LUCY J. WICKS, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF JILL, GEOFFREY AND AUDREY WICKS, MINORS, APPELLANTS
v.
MILZOCO BUILDERS, INC.; CARROLL BUILDERS, INC.; R. L. SHEIBLEY AND BENJAMIN BRENEMAN, TRADING AS R.L. SHEIBLEY CONSTRUCTION CO.; GEORGIAN HALL REAL ESTATE; MONROE TOWNSHIP; EUGENE COOK; CHESTER MILLER; WESLEY ZOLLERS; SCOTT GREENFIELD; KENNETH MILLER; CHARLES BAKER AND MERLE WERTZ, APPELLEES. CHARLES J. BAUER AND RUTH M. BAUER, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF RUTH, CHARLES, JOHN, LINDA AND MICHELLE BAUER, MINORS, APPELLANTS V. MILZOCO BUILDERS, INC.; CARROLL BUILDERS, INC.; R. L. SHEIBLEY AND BENJAMIN BRENEMAN, TRADING AS R.L. SHEIBLEY CONSTRUCTION CO.; GEORGIAN HALL REAL ESTATE; MONROE TOWNSHIP; EUGENE COOK; CHESTER MILLER; WESLEY ZOLLERS; SCOTT GREENFIELD; KENNETH MILLER; CHARLES BAKER AND MERLE WERTZ, APPELLEES. DONALD L. SHERIFF AND PAMELA K. SHERIFF, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF MICHAEL SHERIFF, A MINOR, APPELLANTS V. MILZOCO BUILDERS, INC.; CARROLL BUILDERS, INC.; R. L. SHEIBLEY AND BENJAMIN BRENEMAN, TRADING AS R.L. SHEIBLEY CONSTRUCTION CO.; GEORGIAN HALL REAL ESTATE; MONROE TOWNSHIP; EUGENE COOK; CHESTER MILLER; WESLEY ZOLLERS; SCOTT GREENFIELD; KENNETH MILLER; CHARLES BAKER AND MERLE WERTZ, APPELLEES. WILLIAM E. LELLO AND LINDA J. LELLO, APPELLANTS V. MILZOCO BUILDERS, INC.; CHESTER MILLER; WESLEY ZOLLERS; MONROE TOWNSHIP; KENNETH MILLER; CHARLES BAKER AND MERLE WERTZ, APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County in cases of Robert B. Wicks and Lucy J. Wicks, individually and as parents and natural guardians of Jill, Geoffrey and Audrey Wicks, Minors v. Milzoco Builders, Inc., Carroll Builders, Inc., R. L. Sheibley and Benjamin Breneman, trading as R.L. Sheibley Construction Co., Georgian Hall Real Estate, Monroe Township, Eugene Cook, Chester Miller, Wesley Zollers, Scott Greenfield, Kenneth Miller, Charles Baker and Merle Wertz; Charles J. Bauer and Ruth M. Bauer, individually and as parents and natural guardians of Ruth, Charles, John, Linda and Michelle Bauer, Minors v. Milzoco Builders, Inc., Carroll Builders, Inc., R. L. Sheibley and Benjamin Breneman, trading as R.L. Sheibley Construction Co., Georgian Hall Real Estate, Monroe Township, Eugene Cook, Chester Miller, Wesley Zollers, Scott Greenfield, Kenneth Miller, Charles Baker and Merle Wertz; Donald L. Sheriff and Pamela K. Sheriff, individually and as parents and natural guardians of Michael Sheriff, a Minor v. Milzoco Builders, Inc., Carroll Builders, Inc., R. L. Sheibley and Benjamin Breneman, trading as R.L. Sheibley Construction Co., Georgian Hall Real Estate, Monroe Township, Eugene Cook, Chester Miller, Wesley Zollers, Scott Greenfield, Kenneth Miller, Charles Baker and Merle Wertz; William E. Lello and Linda J. Lello v. Milzoco Builders, Inc., Chester Miller, Wesley Zollers, Monroe Township, Kenneth Miller, Charles Baker and Merle Wertz; Case Nos. 820, 803, 804 and 805 September Term, 1974.

COUNSEL

Richard C. Angino, with him Hurwitz, Klein, Benjamin & Angino, for appellants.

Richard C. Snelbaker, with him Martson and Snelbaker, for appellees, Monroe Township, Miller, Baker and Wertz.

William C. Costopoulas, Kollas & Costopoulas, Joseph G. Skelly, Ball & Skelly, Harold S. Irwin, and Irwin, Irwin & Irwin, for remaining appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Crumlish, Jr.

Author: Bowman

[ 25 Pa. Commw. Page 343]

Appellants, Charles J. and Ruth M. Bauer, are residents of Monroe Township in Cumberland County, who, in 1971, purchased a newly constructed house within a development known as Monroe Acres. On or about August 1, 1974, appellants filed a complaint in the Cumberland County Court of Common Pleas.*fn1 Their major factual allegations recited the phenomenon and consequences of intense surface water flooding in the front and back yards of their property. Among the identified defendants were various business entities and individuals who had been involved in the construction and sale of appellants' house. In addition, Monroe Township and its three supervisors were named as defendants, specifically for their alleged failure to have enforced, as against the other named defendants, certain provisions of the Monroe Township Subdivision Ordinance.

Appellants' complaint is extremely complex, both in its allegations and in its requested forms of relief. However, we need not confront its every facet at this time. The Township and its supervisors responded jointly to appellants' complaint with preliminary objections in the nature of a demurrer. In an opinion and order filed January 21, 1975, the lower court sustained these preliminary objections and entered judgment on the pleadings in favor of Monroe Township and its supervisors.*fn2

[ 25 Pa. Commw. Page 344]

The essence of the lower court's adjudication and the focal point of our review lie in the Supreme Court's decision in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). That decision unequivocally divested Pennsylvania political subdivisions of their historical protection from liability in civil actions for damages.

"We now hold that the doctrine of governmental immunity -- long since devoid of any valid justification -- is abolished in this Commonwealth." 453 Pa. at 587, 305 A.2d at 878. (Footnotes omitted.)

While difficult to categorize as either intentional or negligent conduct, the complaint's allegations of failure of the Township and its supervisors to have performed sundry public duties and appellants' corresponding prayer for damages resound in traditional concepts of tort law. It is doubtless that such a position would have been patently sterile prior to Ayala.*fn3 Whether and to what extent Ayala provides appellants with the necessary support to overcome the Township's and its supervisors' assertions of immunity are the questions now before us.

In dismissing appellants' complaint as to the Township and its supervisors, the lower court proceeded upon the assumption that governmental immunity and the absolute immunity of high public officials*fn4 are distinct doctrines having no substantial interrelation. Thus, reasoned the lower court, Ayala's abolition of governmental immunity neither expressly nor ...


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