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JOHN L. TURNER AND LINDA M. TURNER v. DONALD J. MARTZ (04/30/79)

decided: April 30, 1979.

JOHN L. TURNER AND LINDA M. TURNER, HIS WIFE, APPELLANTS
v.
DONALD J. MARTZ, SR. AND TOWNSHIP OF DERRY, APPELLEES. CAROLE E. GAVONI, APPELLANT V. DONALD J. MARTZ, SR. AND TOWNSHIP OF DERRY, APPELLEES



Appeals from the Orders of the Court of Common Pleas of the 26th Judicial District, Montour County Branch, in cases of John L. Turner and Linda M. Turner, his wife v. Donald J. Martz Sr., and Township of Derry, No. 206-1975; and Carole E. Gavoni v. Donald J. Martz, Sr., and Township of Derry, No. 207-1975.

COUNSEL

Robert L. Marks, for appellants.

Gailey C. Keller, with him Smith, Eves and Keller, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Blatt, DiSalle, Craig and MacPhail. Judges Wilkinson, Jr. and Rogers did not participate. Opinion by Judge MacPhail. Judge Mencer dissents.

Author: Macphail

[ 42 Pa. Commw. Page 329]

Carole E. Gavoni, John L. Turner and Linda M. Turner (Plaintiffs) have appealed to this Court from the order of the Court of Common Pleas of the 26th Judicial District, Montour County Branch, sustaining the demurrer of Donald J. Martz (Martz) and the Township of Derry (Township) to Plaintiffs' complaints in trespass and assumpsit. The Plaintiffs' appeals have been consolidated for our disposition by prior order of court.

In their complaints, Plaintiffs allege that prior to purchasing real estate in the Township, they applied to the Township for a permit for the installation of a sewage disposal system for the real estate they intended to purchase. The application form was supplied

[ 42 Pa. Commw. Page 330]

    by the Pennsylvania Department of Health. The completed application was passed to Martz as the designated enforcement officer for the Township. Under the provisions of the Pennsylvania Sewage Facilities Act, (Act), Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. ยง 750-1 et seq., the complaint alleges that after certain tests were performed by Martz, a permit was issued by him approving the real estate to be purchased for the installation of a sewage system as set forth in the applications.

Thereafter, according to the complaints, Plaintiffs purchased their real estate, installed the septic systems and built their homes. Shortly after they moved in, Plaintiffs allege that the septic systems failed to function. After consulting with numerous specialists to ascertain whether the malfunctioning systems could be corrected, Plaintiffs called the Department of Health. That department recommended a professional engineer who performed additional percolation tests on the two tracts of real estate. When the Department of Health received a report from that examination they informed the Plaintiffs that "the said land could not before and cannot now meet the requirements of the Act, and, therefore, the land cannot be used for residential purposes." The complaint alleges that Martz was the agent, servant or employee of the Township, that Martz committed certain negligent acts prior to issuing the permit and that both Martz and the Township are liable to Plaintiffs in trespass for the damage caused to the Plaintiffs.

Plaintiffs plead in the alternative that when the Township accepted the application fee for the permit and issued the permit, Plaintiffs thereafter materially changed their position in reliance upon the permit. They aver that the improper percolation testing constitutes a breach of contract and that Martz and the Township are liable to Plaintiffs for damages in assumpsit.

[ 42 Pa. Commw. Page 331]

In ruling upon Defendants' preliminary objection in the nature of a demurrer, the trial court held that (1) a municipal permit issued illegally, or in violation of the law, or under a mistake of fact, confers no vested right upon the person to whom the permit is issued and (2) that any expenditures made in reliance upon such a permit are made at that person's peril. We have carefully examined the legal authorities set forth by the trial court in support of that legal proposition and find that as stated it is not a correct statement of the law. ...


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