Appeals from the order of the Court of Common Pleas of York County, in case of David D. Schreck, Karen A. Snyder Schreck, James A. W. Reichard, Julie L. Reichard, William E. Altland, Judy A. Altland, Keith D. Wong and Laurie A. Wong v. North Codorus Township, Donald R. Bankert, Gladys M. Bankert and Gordon L. Brown v. C. L. Robinson, t/d/b/a C. L. Robinson & Sons, Wallen Homes, Inc. and Frances R. Gebhart Building and Concrete Construction, No. 84-S-277.
Daniel M. Frey, Crabbs, Cashman and Frey, for appellant/appellee, North Codorus Township.
James W. Hennessey, with him, Joanne Steinke Faul, Sherr & Zuckerman, P.C., for appellee, Gordon L. Brown.
Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.
[ 113 Pa. Commw. Page 415]
Donald K. and Gladys M. Bankert (Bankerts) and North Codorus Township (Township) appeal from an order of the Court of Common Pleas of York County (trial court) which granted Gordon L. Brown's (Brown) petition for reconsideration of his motion for summary judgment and dismissed Brown entirely from the lawsuit.
[ 113 Pa. Commw. Page 416]
David and Karen Schreck, James and Julie Reichard, William and Judy Altland and Keith and Laurie Wong (collectively Plaintiffs) in 1980 through 1982 purchased house lots or homes in a subdivision developed by the Bankerts in the Township. Brown, the Township's sewage enforcement officer (SEO), pursuant to the Pennsylvania Sewage Facilities Act*fn1 and regulations promulgated pursuant thereto,*fn2 performed the requisite site investigation for on site sewage disposal systems and issued permits for installing such systems on the house lots owned by Plaintiffs. In 1983, the sewage disposal systems began to malfunction.
Plaintiffs, on January 27, 1984, filed a civil action in the trial court against the Township, the Bankerts and Brown, seeking damages for the harm they suffered as a result of the malfunctioning systems. Plaintiffs' action was comprised of a trespass and an assumpsit count against the Bankerts, an assumpsit count against the Township and a trespass count, pursuant to 42 U.S.C. § 1983,*fn3 against Brown. A flurry of pleadings followed. Those relevant to this appeal are the crossclaims made by the Township and the Bankerts against Brown.
Brown filed a motion for summary judgment against the Plaintiffs on September 26, 1985, claiming that he
[ 113 Pa. Commw. Page 417]
was acting at all times as an agent of the Township and therefore he was immune from liability pursuant to 42 Pa. C. S. § 8541 for any damages caused by his alleged negligent conduct. He also asserted that his alleged negligent conduct could not constitute the basis of a federal cause of action under 42 U.S.C. § 1983. The trial court denied Brown's motion on November 25, 1985. In its opinion, the trial court noted that Brown was protected by 42 Pa. C. S. § 8541 from any state claims in negligence but that his alleged negligence as Township SEO was sufficient to support the federal claim based on 42 U.S.C. § 1983.*fn4
Subsequently, the Bankerts filed a motion for leave to amend their cross-claim against the Township and Brown in order to clarify their assumpsit claims. On February 6, 1986, the trial court issued a rule to show cause why the Bankerts' motion for leave to amend should not be granted. Prior to any action by the trial court on the Bankerts' motion for leave to amend, Brown filed a petition for reconsideration of his motion for summary judgment based on the ...