decided: February 12, 1988.
DAVID L. SCHRECK ET AL.
NORTH CODORUS TOWNSHIP ET AL. DONALD R. BANKERT AND GLADYS M. BANKERT, APPELLANTS. DAVID L. SCHRECK ET AL. V. NORTH CODORUS TOWNSHIP ET AL. NORTH CODORUS TOWNSHIP, APPELLANT
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 United States Supreme Court's decision in Daniels v. Williams, 106 S.Ct. 662 (1986) (issued on January 21, 1986).*fn5
The trial court granted Brown's petition for reconsideration and dismissed Brown from the lawsuit on August
[ 113 Pa. Commw. Page 41820]
, 1986. In its opinion in support of this order, the trial court held that Daniels precluded Plaintiffs' claims of liability under 42 U.S.C. § 1983 because they were based solely on allegations of negligence. In a footnote to the opinion, the trial court made the following statement:
As a result of this Opinion, the Defendant, Gordon L. Brown, will be dismissed from this lawsuit; therefore, this Court will not address the issue [of] whether the Defendants and Additional Defendants have alleged a viable counterclaim in Contract against the Defendant, Gordon L. Brown.
Shreck v. North Codorus Township (No. 84-S-277, filed August 20, 1986), slip op. at 3 n. 1. The Bankerts and the Township appealed, contending that the trial court erred in dismissing Brown entirely from the lawsuit.
Our scope of review of the grant of a motion for summary judgment is limited to determining whether the trial court erred as a matter of law or committed a clear abuse of discretion. Miller v. Emelson, 103 Pa. Commonwealth Ct. 437, 520 A.2d 913 (1987). Summary judgment is properly granted when the moving party has established that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Hall v. Acme Markets, Inc., 110 Pa. Commonwealth Ct. 199, 532 A.2d 894 (1987).
Neither the Township nor the Bankerts take issue with the trial court's determination that the alleged negligent actions of Brown do not provide a basis for Plaintiffs' claims against Brown based on 42 U.S.C. § 1983 and they do not dispute that Plaintiffs' complaint against Brown was properly dismissed. However, both contend that it was error for the trial court to dismiss Brown from all aspects of the case without determining whether they had stated viable causes of action in their assumpsit
[ 113 Pa. Commw. Page 419]
crossclaims, particularly since Brown's motion for summary judgment was directed only to Plaintiffs' complaint. We agree.
Brown's original motion for summary judgment states: "Defendant, Gordon L. Brown respectfully requests this Honorable Court to enter Summary Judgment in his favor, and against the Plaintiffs." Our review of Plaintiffs' complaint shows the only claim made against Brown was a federal cause of action based on 42 U.S.C. § 1983. Plaintiffs' made no trespass claim against Brown based on common law negligence. In fact, in their answer to Brown's motion for summary judgment, Plaintiffs admit to the truth of his statements that he is an authorized agent of the Township and that as an authorized agent of the Township, he is immune to suit for damages under 42 Pa. C. S. § 8541.
However, the Township has continually denied that Brown is their authorized agent, claiming instead that he is an agent of the Department of Environmental Resources. Also, the Bankerts, while admitting that Brown is an agent of the Township and that as an agent he is immune to any trespass action based on negligence, contend that if allowed to amend their cross-claim against Brown, they will clarify their assumpsit action to include a claim against him in his individual capacity,*fn6 as well as in his capacity as a Township employee.
[ 113 Pa. Commw. Page 420]
Brown asserts that the issues raised by the Township and the Bankerts are moot. He contends that, as a matter of law, a cause of action does not exist against a township or its sewage enforcement officer based upon breach of warranty. Brown argues that therefore the issue before us is solely the legal issue of whether an SEO may be held liable under a breach of warranty theory for negligently issuing a sewage system permit.
While the legal issue which Brown raises is interesting, and would apparently be one of first impression for an appellate court, we may not consider it. It was not the issue presented to the trial court and was not addressed by the trial court. In fact, the trial court specifically stated it would not address the issue of whether viable assumpsit claims had been alleged against Brown. If these claims do contain viable assumpsit claims against Brown, Brown would not be entitled to judgment as a matter of law.
We conclude that it was a clear abuse of discretion, under the circumstances of this case, for the trial court to dismiss Brown entirely from the lawsuit when the only motion before the trial court was for summary judgment as to Plaintiffs' claims against Brown. Plaintiffs' complaint contained only a federal trespass claim, based on 42 U.S.C. § 1983, against Brown. It is not contested that Brown proved as a matter of law that he was entitled to judgment against the Plaintiffs on that claim. However, if Brown desires summary judgment in respect to the assumpsit crossclaims made by the Township and the Bankerts, he must prove there exist no genuine issues of material fact as to these assumpsit claims and that he is entitled to judgment as a matter of law.
Additionally, the Bankerts' motion for leave to amend their cross-claim to clarify their assumpsit complaint against Brown should have been ruled on before
[ 113 Pa. Commw. Page 421]
their cross-claim was dismissed. The right to amend must be liberally granted, Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), and amendment should be permitted if there exists a reasonable possibility that a cause of action may be stated. Mace v. Senior Adult Activities Center, 282 Pa. Superior Ct. 566, 423 A.2d 390 (1980).
Accordingly, we reverse the order of the trial court insofar as judgment was entered for Brown against the Township and the Bankerts, without prejudice to Brown to file a motion for summary judgment as to their claims against him, and remand for further proceedings consistent with this opinion.
And Now, February 12, 1988, the order of the Court of Common Pleas of York County in the above-captioned case is reversed insofar as the entry of judgment for Gordon L. Brown against North Codorus Township and Donald R. and Gladys M. Bankert, without prejudice to Brown to file a motion for summary judgment as to their claims against him. The case is remanded for further proceedings in accordance with this opinion.
Reversed in part and remanded.