reading of 42 Pa.C.S.A. § 8550, is, in view of the statutory language, unwarranted.
The Tort Claims Act establishes the general rule that, except as otherwise provided "no local agency shall be liable for any damages . . . caused by any Act of . . . an employee therefrom". 42 Pa.C.S.A. § 8541. The next statutory subsection, 42 Pa.C.S.A. § 8542(b)(1)-(8), provides eight specific exceptions to this rule. However, in order to come within any of these exceptions, two conditions must be met. 42 Pa.C.S.A. § 8542(a)(1) and (2). First, the damages sought must be recoverable pursuant to common or statutory law under circumstances which would not otherwise admit to any immunity defense. Second, the complained of conduct must sound in negligence. Allegations of criminal conduct, actual fraud, malice or willful misconduct do not fulfill this second requirement. 42 Pa.C.S.A. § 8542(a)(2). Specifically, Pennsylvania permits damage recoveries against political subdivisions for negligent conduct arising out of automobile accidents, the care and custody of real property, dangerous conditions created by trees, traffic control and street lighting, utility service facilities, improper street and sidewalk maintenance and the care, custody and control of animals. 42 Pa.C.S.A. § 8542(b)(1)-(8).
Plaintiffs' reference to 42 Pa.C.S.A. § 8550, relating to willful misconduct, as subsuming 42 Pa.C.S.A. § 8541's general retention of municipal immunity is misplaced. True, 42 Pa.C.S.A. § 8550 waives four specific immunities for willful misconduct, i.e., immunities relating to official liability, official immunity, indemnification and damage limitations. See, 42 Pa.C.S.A. §§ 8545, 8546, 8548, 8549. Each of the waived immunities, however, exposes municipal employees to personal liability without dissolving the shield of general immunity retained by municipalities. For example, 42 Pa.C.S.A. § 8545, one of the immunities abrogated for willful misconduct, generally prohibits affixing greater liability upon a municipal employee than attaches to a municipality. 42 Pa.C.S.A. § 8546, another waivable immunity, usually protects "employee[s] of local agenci[es]" and not the agencies themselves. Hence, when the protection provided by this section is lost, only those who generally benefit from its existence, municipal employees, are subjected to liability. The same is true for 42 Pa.C.S.A. §§ 8548 and 8549, each of which addresses actions "brought against an employee of a local agency".
Hence, we conclude that Pennsylvania, by passage of the Tort Claims Act, has generally retained sovereign immunity for its political subdivisions. This municipal immunity is waived for only eight types of negligent conduct. 42 Pa.C.S.A. § 8550 jettisons only those immunities held by municipal employees and only then for forms of willful misconduct. This section does not, however, abrogate the general retention of municipal immunity.
This interpretation of the Tort Claims Act comports with a recent judicial decision, Lopuszanski v. Fabey, 560 F. Supp. 3, slip op. at 4-6 (E.D. Pa. 1982) (VanArtsdalen, J.) and a learned commentator's analysis. The Political Subdivision Tort Claims Act: Pennsylvania's Response to the Problems of Municipal Tort Liability, 84 Dick. L. Rev. 717 (1980). In addressing this same issue an author observed that although the "liability of a political subdivision is based primarily on personal liability of its officials through the operation of respondeat superior ", the Tort Claims Act does not purport to impose governmental liability for the willful, tortious misconduct of its employees. Id. at 747 and 750. We will accordingly grant Upper Nazareth's motion to dismiss the pendent claims.
An appropriate order shall issue.
AND NOW, this 16th day of February, 1983, IT IS ORDERED that defendants' motion to dismiss is GRANTED without prejudice as to Count II of the complaint, subject to plaintiffs' right to file an appropriate amended complaint within fifteen (15) days of the date of this order.
IT IS FURTHER ORDERED that claims asserted in Counts III, IV, V and VI are DISMISSED as to defendants Upper Nazareth Township, Bushkill Township, Moore Township and Tatamy Borough.
IT IS FURTHER ORDERED that all claims asserted under the Fourth, Eighth and Fourteenth Amendments are DISMISSED.
IT IS FURTHER ORDERED that the motion is DENIED in all other respects.