Appeal from the Order of the Court of Common Pleas of Delaware County in case of George M. Thorpe and Judith B. Thorpe, his wife v. Stephen S. Danby, Helen Bauman, Harold F. Jones and Birmingham Township No. 79-18525.
Arthur T. Donato, Jr., Prodoehl and James, for appellants.
Alan R. Shaddinger, Malcolm & Riley, P.C., for appellees.
President Judge Crumlish and Judges Mencer, Rogers, Craig and MacPhail. Opinion by Judge Rogers. Judges Mencer and Palladino did not participate in the decision in this case. Dissenting Opinion by President Judge Crumlish, Jr.
[ 68 Pa. Commw. Page 139]
George M. Thorpe and Judith B. Thorpe, his wife, appeal from an order of the Court of Common Pleas of Delaware County, dismissing their Complaint in which they allege that the defendants, Birmingham Township and its supervisors, engaged in tortious conduct which caused the Thorpes to suffer mental anguish and distress and diminution of their good
[ 68 Pa. Commw. Page 140]
reputation in the community.*fn1 They describe as the vehicle of their injuries a letter dated October 15, 1979 composed and distributed by the supervisors purporting to explain events which occurred at a supervisors meeting held October 3, 1979. The letter which is attached as an exhibit to the Complaint, describes, without explicit censure of the Thorpes or other comment, negotiations conducted by the supervisors with the Thorpes looking, apparently, to the acquisition by the township of a public easement over lands owned by the Thorpes. The letter complained of states that these negotiations were unsuccessful and that the township was accordingly compelled to acquire the land by other means.
The defendants filed preliminary objections asserting inter alia that the Complaint failed to state a cause of action upon which relief could be granted, that the township and its supervisors were immune from suit by the terms of the Political Subdivision Tort Claims Act (Act),*fn2 now at 42 Pa. C.S. § 8541 et seq., and that the supervisors additionally have absolute immunity from suit. The court below sustained the preliminary objections of the township and its supervisors based on the Political Subdivision Tort Claims Act and, because it was unnecessary to do so, did not discuss the defendants' other objections. We affirm.
The Thorpes here primarily argue that the Act, if construed so as to preclude the defendants' liability for the alleged injury, is violative of a number of provisions of the United States Constitution and corresponding
[ 68 Pa. Commw. Page 141]
provisions of the Pennsylvania Constitution. These contentions are unavailing as the result of recent decisions of the Pennsylvania Supreme Court and this court, upholding the Act against the same challenges. Carroll v. County of York, Pa. , 437 A.2d 394 (1981); Robson v. Penn Hills School District, 63 Pa. Commonwealth Ct. 250, 437 A.2d 1273 (1981).
The Thorpes also renew the argument, rejected by the court below, that the Act, properly construed, does not provide immunity for the defendants. It is provided at 42 Pa. C.S. § 8541 that
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.
Birmingham Township is a local agency within the meaning of this provision. See 42 Pa. C.S. § 8501. The circumstances under which a local agency is liable for damages to a person or his property are specified at 42 Pa. C.S. § 8542(a) as follows:
Liability imposed. -- A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs ...