Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Londonderry Township, a municipal subdivision of the Commonwealth of Pennsylvania v. Paul M. Geyer and Judith A. Geyer, his wife v. Commonwealth of Pennsylvania, Department of Environmental Resources and Charles D. Ferree, Jr., No. 4393-1984.
Eugene E. Dice, for appellants.
James B. Pannebaker, Pannebaker and Jones, P.C., for appellee, Londonderry Township.
Jefferson J. Shipman, Deputy Attorney General, with him, Richard P. Mislitsky, Deputy Attorney General, Mark E. Garber, Jr., Chief, Torts Litigation Unit, and LeRoy S. Zimmerman, Attorney General, for appellee, Department of Environmental Resources.
Judges MacPhail and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.
[ 113 Pa. Commw. Page 177]
Paul M. and Judith A. Geyer (Appellants) appeal from an order of the Dauphin County Court of Common Pleas denying their motion for post-trial relief and affirming the adjudication which: (1) enjoined Appellants to abate the malfunctioning sewage disposal system at Appellants' mobile home park in Londonderry Township (Township); (2) denied Appellants' counterclaim against the Township; and (3) dismissed Appellants' complaint against the Department of Environmental Resources (DER) and DER's employee, Charles D. Ferree, Jr. We affirm.
[ 113 Pa. Commw. Page 178]
On November 21, 1980, Appellants entered into a sales agreement with Ray and Alice Roth to purchase the Roths' mobile home park located in the Township. The sewage disposal system in the park had a long history of operating problems. Appellant Paul Geyer (Geyer), who was in the business of installing sewage disposal systems, had been employed on occasion by the Roths to repair the park's system. The sales agreement between Appellants and the Roths was made contingent upon approval from the necessary authorities that the park could continue as an operating mobile home park. The Township supervisors indicated to Geyer that the necessary mobile home park permit would be issued if he could correct the sewage problem.*fn1 After the execution of the sales agreement, Geyer began the application process, pursuant to the Pennsylvania Sewage Facilities Act (Act),*fn2 for an elevated
[ 113 Pa. Commw. Page 179]
sand mound sewage disposal system which would utilize two separate sand mounds. On November 25, 1980, Lloyd Stipe, the Township sewage enforcement officer, conducted deep probe tests at the site of the proposed system to determine the limiting zone of the soil.*fn3 One deep probe test at each area on which an elevated sand mound was proposed passed the 20 inch limiting zone requirement then in effect.*fn4 Geyer first submitted an application in December, 1980. Stipe
[ 113 Pa. Commw. Page 180]
submitted it to DER, specifically to Charles Ferree who was DER's sanitarian*fn5 for the region, for review. Ferree notified Stipe on December 11, 1980 that the application was insufficient and requested a number of additional documents.*fn6 Even though no sewage disposal permit had been obtained, the sale of the park to Geyer was completed on January 23, 1981.
In February or March, 1981, Ferree and George W. Mehaffie, a DER employee familiar with the sewage problems at the park, met with Geyer and Geyer's son Steven*fn7 to discuss the proposed system. Subsequently, Geyer submitted drawings for a pressurized elevated sand mound sewage disposal system. Ferree informed the Township supervisors, by letter dated July 1, 1981, that Geyer's application for an experimental*fn8 pressurized elevated sand mound system appeared to meet DER's proposed design criteria for such a system*fn9 and gave the Township permission to issue an experimental system permit. Plaintiff's Exhibit 10. A copy of the letter was sent to Stipe and Geyer. The letter qualified DER's permission for the permit with six conditions, one being that "[i]n the event of a malfunction, the applicant
[ 113 Pa. Commw. Page 181]
is responsible for corrections or replacement of the system in accordance with the regulations of the time." On July 13, 1981, Stipe issued the permit allowing Geyer to construct the system.
Installation of the system was completed in December, 1981. Stipe and Mahaffie were present when the system was tested on December 2, 1981. In his report to Ferree, Mehaffie indicated that the test was successful.*fn10 Stipe approved the system for use on December 2, 1981.
In 1983, at the Township's request, Ferree visited the park and observed that liquid was seeping from one of the sand mounds and running down the road. Tests were performed on this effluent which indicated it contained human sewage. Plaintiff's Exhibit 11 and 13. A sewage system which discharges partially treated sewage to the surface of the ground is in violation of 35 Pa. Code § 73.11(d).
Geyer was informed of the violation and instructed to correct it. As a result of the violation, Geyer's permit to operate the system was revoked, pursuant to Section 7(b)(6)(v) of the Act, 35 P.S. § 750.7(b)(6)(v),*fn11 on January 4, 1984. On January 13, 1984, the Township denied Geyer's application for a mobile home park permit for 1984. Geyer did not contest either action.
[ 113 Pa. Commw. Page 182]
The Township, on July 25, 1984, initiated an equity action, pursuant to sections 12 and 14 of the Act, 35 P.S. §§ 750.12, 750.14,*fn12 against Appellants, seeking to have Appellants directed to remedy the malfunction. Appellants responded by raising the defense of equitable estoppel and by filing a counterclaim against the Township. In their counterclaim, Appellants alleged (1) that the Township was negligent in investigating the application and in issuing the permit and that such negligence constituted a breach of the Township's duties under the Act and (2) that Appellants had relied on the Township's negligent actions to their detriment in purchasing the park and installing the system. Additionally, Appellants filed a complaint against DER and Ferree as additional defendants, alleging that DER and Ferree negligently approved the system and that Ferree made assurances to Geyer that "if water leaked from the system [it] would already have been renovated prior to discharge and . . . therefore there would be no problem even if the system began [to] discharge water to the surface of the ground." The Township then filed a complaint against DER and Ferree, alleging that DER and Ferree "are solely liable for authorizing the alleged negligent or otherwise wrongful issuance of [the permit]."
DER and Ferree filed preliminary objections to Appellants' and the Township's complaints against them, asserting that they were immune to suit. The preliminary objections were denied. Subsequently, DER ...