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VITO CERINO AND CLARA CERINO v. TOWNSHIP PALMER (04/06/79)

decided: April 6, 1979.

VITO CERINO AND CLARA CERINO,
v.
TOWNSHIP OF PALMER, APPELLANT (AT NO. 1044), AND UGI CORPORATION, AND HEIKKI K. ELO, ADDITIONAL DEFENDANT-APPELLEE, AND ANTHONY CASELLA, ADDITIONAL DEFENDANT-APPELLANT (AT NO. 1056)



Nos. 1044 and 1056 October Term, 1978, Appeal from the Order dated January 30, 1978 of the Court of Common Pleas, Civil Division, Northampton County at No. 451 August Term, 1975.

COUNSEL

Joseph F. Leeson, Bethlehem, for Tp. of Palmer, appellant at No. 1044 and appellee at No. 1056.

George A. Hahalis, Bethlehem, for Anthony Casella, appellant at No. 1056 and appellee at No. 1044.

Robert C. Brown, Jr., Easton, and with him Charles H. Spaziani, Easton, for appellees Cerino.

Donald L. VanGilder, Allentown, for appellee UGI Corp.

Norman Seidel, Easton, and with him Daniel E. Cohen, Easton, for appellee Heikki K. Elo.

Cercone, Spaeth and Lipez, JJ.

Author: Lipez

[ 265 Pa. Super. Page 3]

On August, 24, 1974, while additional defendant-appellee Elo was serving as Engineer for Palmer Township in Northampton County, certain excavation work in connection with a Township construction project in the vicinity of the plaintiffs' home was in progress. Workmen involved in the project allegedly pulled loose a natural gas pipeline leading into plaintiffs' home, causing gas to accumulate therein and explode, damaging plaintiffs' home and property and injuring one of the plaintiffs. Plaintiffs brought suit against UGI Corporation, owners of the pipeline, and the Township. The Township joined, as addition defendants, the excavation contractor, Anthony Casella (Casella), and the Township Engineer, Heikki K. Elo (Elo), alleging that any harm sustained by the plaintiffs was the result of the additional defendants' negligence. Elo answered and alleged in new matter that he had been acting as the duly-appointed Township Engineer. Elo moved, on the same day he filed his Answer and New Matter, for judgment on the pleadings. The court below granted Elo's motion, holding that Elo was

[ 265 Pa. Super. Page 4]

    entitled to absolute immunity as a "high public official." This appeal has been brought by the Township and Casella. Because we have concluded that the law of official immunity has been substantially altered by DuBree v. Commonwealth of Pennsylvania, 481 Pa. 540, 393 A.2d 293 (1978), we reverse and remand for further proceedings.

The law governing civil immunity of local government officials has undergone considerable change since the court below ruled on Elo's motion. The Dissenting Opinion of Mr. Chief Justice Eagen in DuBree is most instructive as to the law of official immunity in Pennsylvania ante DuBree:

[O]fficial immunity in Pennsylvania could be divided into two types, namely, absolute immunity and limited or conditional immunity. Absolute immunity could be invoked by "high ranking officials" acting within the scope of their authority and within the course of their duties or powers. [Citations omitted]. Limited immunity could be invoked by other officials acting within the scope of their authority and within the course of their duties or powers. [Citations omitted].

Absolute immunity "foreclose[d] the possibility of suit," Montgomery v. Philadelphia, [392 Pa. 178, 183, 140 A.2d 100, 103, (1958)] so that the fullest "protection of society's interest in the unfettered discharge of public business," id., might be afforded "high ranking officials." Limited immunity did not foreclose the possibility of suit against other officials because it could be overcome by an allegation in the plaintiff's complaint that the conduct complained of was malicious, wanton, or reckless. Burton v. Fulton, 49 Pa. 151 (1865); but, absent such an allegation and proof, the official was immune from the suit. 481 Pa. at 548, 393 A.2d at 296-97 (Eagen, C. J., dissenting).

In DuBree, plaintiff's decedent was killed when his car plunged into a ten foot deep excavation in a public highway. Plaintiff brought action for wrongful death against the Commonwealth and seven named officials of the Pennsylvania Department of Transportation. ...


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