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MARTIN E. ZERN AND NANCY E. ZERN v. CHARLES MULDOON (10/16/86)

decided: October 16, 1986.

MARTIN E. ZERN AND NANCY E. ZERN, HIS WIFE
v.
CHARLES MULDOON, HERBERT MULDOON, AND PHYLLIS MULDOON, HIS WIFE, AND BOROUGH OF PALMYRA AND CITIZENS FIRE COMPANY # 1 OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS. CYNTHIA A. STARR V. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, AND MARTIN E. ZERN AND NANCY E. ZERN, HIS WIFE, CITIZENS FIRE COMPANY # 1 OF PALMYRA AND BOROUGH OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS. MILLER-REIST & ASSOCIATES, INC. V. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, AND MARTIN E. ZERN AND NANCY E. ZERN, HIS WIFE, CITIZENS FIRE COMPANY # 1 OF PLAMYRA AND BOROUGH OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS. LESTER G. KOPP AND BEATRICE G. KOPP, HIS WIFE V. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, AND MARTIN E. ZERN AND NANCY E. ZERN, HIS WIFE, CITIZENS FIRE COMPANY # 1 OF PALMYRA AND BOROUGH OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS. CARRIE M. KROTSER V. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, AND MARTIN E. ZERN AND NANCY E. ZERN, HIS WIFE, CITIZENS FIRE COMPANY # 1 OF PALMYRA AND BOROUGH OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS. RALCOND CORPORATION V. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, AND MARTIN E. ZERN AND NANCY E. ZERN, HIS WIFE, CITIZENS FIRE COMPANY # 1 OF PALMYRA AND BOROUGH OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS. MICHAEL HEISEY, T/D/B/A HEISEY'S CARPETS V. HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, CHARLES MULDOON AND MARTIN ZERN AND NANCY E. ZERN, HIS WIFE; MARTIN ZERN, INDIVIDUALLY AND AS AGENT FOR MARTIN ZERN AND NANCY ZERN, HIS WIFE, AND THE BOROUGH OF PALMYRA AND CITIZENS FIRE COMPANY # 1 OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS. LEBANON VALLEY NATIONAL BANK, EXECUTOR OF THE ESTATE OF PAUL H. NISSLEY, DECEASED V. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, AND BOROUGH OF PALMYRA AND CITIZENS FIRE COMPANY # 1 OF PALMYRA, BOROUGH OF PALMYRA. CHARLES MULDOON, HERBERT MULDOON AND PHYLLIS MULDOON, HIS WIFE, APPELLANTS



Appeals from the Order of the Court of Common Pleas of Lebanon County, in case of Martin E. Zern and Nancy E. Zern, his wife v. Charles Muldoon, Herbert Muldoon and Phyllis Muldoon, his wife, and Borough of Palmyra v. Citizens Fire Company # 1 of Palmyra, No. 3402, 1978; Cynthia A. Starr v. Charles Muldoon, Herbert Muldoon and Phyllis Muldoon, his wife v. Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra and Borough of Palmyra, No. 2373, 1979; Miller-Reist & Associates, Inc. v. Charles Muldoon, Herbert Muldoon and Phyllis Muldoon, his wife v. Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra, and Borough of Palmyra, No. 3274, 1979; Lester G. Kopp and Beatrice G. Kopp, his wife v. Charles Muldoon, Herbert Muldoon and Phyllis Muldoon, his wife v. Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra, and Borough of Palmyra, No. 3275, 1979; Carrie M. Krotser v. Charles Muldoon, Herbert Muldoon and Phyllis Muldoon, his wife v. Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra, and Borough of Palmyra, No. 3273, 1979; Ralcond Corporation v. Charles Muldoon, Herbert Muldoon and Phyllis Muldoon, his wife v. Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra, and Borough of Palmyra, No. 3508, 1979; Michael Heisey, t/d/b/a Heisey's Carpets v. Herbert Muldoon and Phyllis Muldoon, his wife, Charles Muldoon, Martin E. Zern and Nancy E. Zern, his wife; Martin E. Zern, Individually and as agent for Martin Zern and Nancy Zern, his wife, and the Borough of Palmyra v. Citizens Fire Company # 1 of Palmyra, No. 2323, 1980, dated June 9, 1983, and in case of Lebanon Valley National Bank, Executor of the Estate of Paul H. Nissley, Deceased, v. Charles Muldoon, Herbert Muldoon and Phyllis Muldoon, his wife, and Borough of Palmyra v. Citizens Fire Company # 1 of Palmyra, Borough of Palmyra, No. 2348, 1979, dated June 8, 1983.

COUNSEL

Keith L. Kilgore, Spitler and Kilgore, for appellants.

David C. Miller, Goldberg, Evans & Katzman, P.C., with him, Timothy David Sheffey, Charles Paul Buchanio, F. Lee Shipman, David E. Lehman and Joseph M. Farrell, for appellees.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 101 Pa. Commw. Page 262]

Before us are several complex appeals by a variety of individuals and a corporate petitioner whose property interests have been adversely affected by an extensive fire on September 8, 1978.

The Citizens Fire Company # 1 of Palmyra was summoned on that date to fight a fire in a building owned by Edward Zern. The fire had started in the kitchen of a restaurant located therein, which was operated by Charles Muldoon. When the firefighters arrived on the scene, they observed flames in the exhaust system of the kitchen area. The fire chief went to the basement and turned off the electricity, disengaging the exhaust system. Other firefighters climbed to the roof and attempted to fight the fire through a vent. These and other efforts failed. The building suffered extensive damage and was subsequently razed.

Eight separate lawsuits were subsequently filed in Lebanon County Common Pleas Court in which the Plaintiffs, the majority of whom were other tenants in the building, sought to recover damages from Muldoon and/or Zern. Muldoon in turn joined the fire company as an additional defendant in each suit. The fire company filed motions for summary judgment in which it sought that the actions be dismissed as to it because (1) the joinders of the fire company were prohibited by 42 Pa. C.S. § 5522 for failure to give the statutorily required six months notice of a claim and (2) the suits against it were barred by governmental immunity.*fn1

[ 101 Pa. Commw. Page 263]

In Nos. 79 T.D. 1983 through 85 T.D. 1983, the trial court granted summary judgment in favor of the fire company, concluding as a matter of law that volunteer fire companies were entitled to the common law defense of governmental immunity. In No. 86 T.D. 1983, it granted summary judgment in favor of the fire company, finding that the fire company was entitled to the six-month notice of claim against a government unit as provided in 42 Pa. C.S. § 5522 and suggesting also that it would grant the motion on the grounds of governmental immunity.

Our scope of review of a trial court order granting summary judgment is limited to whether an error of law was committed or whether the trial court abused its discretion. Nordmann v. Commonwealth, 79 Pa. Commonwealth Ct. 187, 468 A.2d 1173 (1983).

To decide these appeals, we must define the legal relationship between volunteer fire companies and the local municipalities they serve. In pursuit thereof, we will first examine the origin and development of volunteer fire companies in this Commonwealth.

History of Firefighting in this Commonwealth

An early, exhaustive recitation of the history of firefighting in the City of Philadelphia is found in Harmony Fire Co. v. Trustees of the Fire Association, 35 Pa. 496 (1860). Justice Read there referred to the first laws governing fire protection which required homeowners to store two leather buckets in each dwelling so that an ample supply would be available when the primitive human "hand to hand" water chain was needed to fight a community fire. Between 1700 and 1736, the city, by then incorporated, provided the means to fight fires. It purchased its first engine in 1718. As the population surged and technology advanced, the need for a stronger firefighting force grew. An infamous fire at "Budd's

[ 101 Pa. Commw. Page 264]

    long row" in 1736 was the disaster which focused the imperative demand for a more practical, better organized system for the control of fire in this densely populated residential, commercial and industrial area. The local citizenry banded together and formed independent organizations whose unpaid members formed the first "Volunteer Fire Companies," e.g., Benjamin Franklin's Union Fire Company, the Hand in Hand, the Heart in Hand and the Friendship.

These volunteer companies effectively replaced the City's early efforts to combat fires and, in 1811, the City, recognizing their contribution, began appropriating monies to the companies. The divergent companies then combined to form the "Fire Association of Philadelphia," which administratively governed disputes among the member companies and regulated their financial and equipment requirements.

The City of Philadelphia, pursuant to Section 42 of the Act Incorporating the City of Philadelphia,*fn2 in 1855 assumed total responsibility for fire prevention and control of volunteer fire companies by establishing and funding its Fire Department. Its officers consisted of a chief engineer, his seven assistants, and a secretary, all of whom were salaried. These officers were responsible to the City Administration for the organization and control of the volunteer fire companies which, having met certain equipment standards, were assigned fire duty in specific geographic areas. The volunteer companies, which still performed the actual firefighting duties, were funded by a conglomerate of interests viz. the City, insurance companies, businessmen, property owners, and the actual firefighters.

On March 15, 1871, following numerous hostile clashes among volunteer fire companies over territorial

[ 101 Pa. Commw. Page 265]

    jurisdiction, equipment need and even political differences, the City enacted a resolution which established a permanent fully funded fire department.

Although this marked the demise of the volunteer force in Philadelphia, volunteer fire companies still maintain a strong presence to this day throughout this Commonwealth. Many of these volunteer fire companies are supported by the statutorily created relief ...


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