Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Samuel Farnell and Rosemary Farnell, h/w v. Winterloch Corporation, Edward A. Savastio and Township of Nether Providence, No. 79-00489.
Kristine F. Hughey, for appellant.
Michael P. Dignazio, for appellee.
President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Barry. Dissenting Opinion by Judge Doyle. Judge Palladino joins in this dissent.
[ 106 Pa. Commw. Page 544]
The Township of Nether Providence (Township) appeals from a judgment of the Court of Common Pleas of Delaware County, which was entered in favor of Samuel and Rosemary Farnell (the Farnells) on November 18, 1983, for damages caused to the Farnells' property (Lot 23) by soil erosion. A joint and several verdict was entered against the developer, the Winterloch Corporation (Winterloch), for failure to develop Lot 23 in accordance with either approved plans or the Township's erosion control ordinance (Ordinance 478) and against the Township for failure to enforce Ordinance 478.
This matter was heard initially before a board of arbitrators, which entered an award of $14,000.00 in favor of the Farnells and against the Township and Winterloch. Both losing parties appealed to the court of common pleas. The Township then filed a motion for summary judgment and the Farnells filed a cross motion. Summary judgment on the issue of liability only was awarded against both defendants on July 23, 1982, by the court of common pleas. A non-jury trial limited to the issue of damages was then held before a judge different than the one who determined the liability issue and the amount of $26,073.04 was awarded to the Farnells. A motion for delay damages was subsequently granted, bringing the ultimate award to $31,327.92. Winterloch agreed to an amicable entry of judgment and is no longer a party to this litigation. The Township filed exceptions which were dismissed on October 21, 1983.
[ 106 Pa. Commw. Page 545]
Argument on this case was held before a panel consisting of Judge MacPhail, Judge Doyle and Senior Judge Kalish in December of 1985. We sua sponte ordered reargument before the court en banc which was held in December of 1986. The matter is now ready for our disposition.
The Township makes a number of arguments, all of which are inter-related. The Township alleges that the trial court erred in granting summary judgment in favor of the Farnells on the question of liability. According to this argument, summary judgment should have either been granted in the Township's favor because it owed no duty to the Farnells or denied because of the existence of disputed facts. We believe the Township did owe a duty to the Farnells, but our reasoning on this point is different than that employed by the trial court. Because of the duty owed, the trial court did not err in refusing to grant summary judgment in the Township's favor. We do agree, however, that certain relevant factual disputes were extant and, as a result, summary judgment was mistakenly granted. Accordingly, we vacate and remand for trial so these factual disputes may properly be resolved.
On September 11, 1975, the Township approved the subdivision plans of Winterloch and, on March 23, 1976, these plans were recorded.*fn1 On December 23, 1976, Ordinance 478, dealing with soil erosion, was enacted, effective immediately. On August 10, 1977, the township inspector issued a building permit for the construction by Winterloch of one house. The following month, September, 1977, the Farnells asked the Township
[ 106 Pa. Commw. Page 546]
for the approval of a drainage plan. On February 24, 1978, the Township wrote to the Farnells, advising them that no more houses were to be occupied unless and until the drainage plan for the entire project, which was requested in September, 1977, was renewed, reviewed and approved. The developer had changed the plans as originally filed. The changes included the structure of the houses, grading and lot lines. An "as built" plan was subsequently filed by the developer.
We must remember that the events under review in this case all occurred prior to the effective date of the Political Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541-8564. When this cause of action arose, it was permissible to sue a municipality for the negligent furnishing of services, the basis of the Farnells' claim for liability. It is not one of interfering with the discretionary policy of the administrative branch of the municipality. Rather, it is the negligent implementation of that policy ...