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MERLIN D. KUEHNER AND SUZANNE M. KUEHNER v. JOHN W. PARSONS ET AL. (06/22/87)

decided: June 22, 1987.

MERLIN D. KUEHNER AND SUZANNE M. KUEHNER, HIS WIFE, APPELLANTS
v.
JOHN W. PARSONS ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Carbon County, in case of Merlin D. Kuehner and Suzanne M. Kuehner v. The Township of Lower Towamensing, John W. Parsons, Jack Wolfe and Bill Rehrig Real Estate Agency, No. 84-0911.

COUNSEL

Anthony J. Mantino, with him, Ronald J. Karasek, Zito, Martino and Karasek, for appellants.

George J. Meng, with him, William A. Jones, Sherr, Moses & Zuckerman, P.C., and Joseph A. Holko, for appellees.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 107 Pa. Commw. Page 62]

Merlin D. Kuehner and Suzanne M. Kuehner (Appellants) appeal from an order of the Court of Common Pleas of Carbon County granting summary judgment in favor of the Township of Lower Towamensing (Township) and its former sewage enforcement officer, John W. Parsons. We affirm.

In the summer of 1983, Appellants sought to purchase an undeveloped lot in the Township for placement of a mobile home. Before buying the lot, they were told by their real estate agent and by Parsons, the Township's sewage enforcement officer at the time, that a standard on-lot septic system would be allowed and that Parsons would issue a permit, if one was applied for. Parsons' representations were based on percolation tests he conducted on the property in 1976. No permit, however, was requested by Appellants at this time, and none was issued.

On July 11, 1983, Parsons resigned as sewage enforcement officer for health reasons. Thereafter, in late August 1983, Appellants entered into an agreement of sale for the property, and closed on the property at the end of September. Appellants then sought a septic permit from the Township. The new sewage enforcement

[ 107 Pa. Commw. Page 63]

    officer, however, told Appellants that the property would have to be retested. When this was completed, the only permit he would issue to Appellants was for a more costly pressurized sand mound system.

Appellants brought suit against the Township, Parsons, the real estate agent and his agency, alleging breach of warranty, negligence, fraud and willful misconduct. The trial court granted summary judgment in favor of the Township and Parsons on all counts because of governmental immunity and because Parsons' conduct as a matter of law did not amount to actual fraud and willful misconduct. Appellants appeal to this Court.*fn1

In reviewing a grant of summary judgment, our scope of review is limited to determining whether the trial court committed an error of law or abused its discretion. Farley v. Township of Upper Darby, 100 Pa. Commonwealth Ct. 535, 514 A.2d 1023 (1986). Summary judgment is only proper when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party clearly establishes that it is entitled to judgment as a matter of law. Ohio Casualty Group of Insurance Cos. v. Argonaut Insurance Co., 92 Pa. Commonwealth Ct. 560, 500 A.2d 191 (1985). ...


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