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decided: March 30, 1988.


Appeal from the Order of the Court of Common Pleas of Bucks County, in the case of Paul J. Scally v. Falls Township, No. 86-2678-12-4.


Richard S. Hoffman, for appellant.

David I. Grunfeld, for appellee.

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

Author: Doyle

[ 115 Pa. Commw. Page 57]

This is an appeal by Falls Township (Township) from an order of the Court of Common Pleas of Bucks County, which granted Paul J. Scally damages for breach of contract.

In February, 1986, Scally filed suit against the Township alleging breach of an employment contract. The Township had terminated its contract with Scally, alleging that its action had been ultra vires. After a hearing before the common pleas court, the court held in favor of Scally and awarded him damages in the amount of $13,625 plus interest. Following denial of its motion for post-trial relief, the Township brought this appeal.

[ 115 Pa. Commw. Page 58]

On May 29, 1985, Scally was employed by the Township under an oral employment agreement as an environmental protection officer. His duty was primarily to inspect the Township's landfills in order to protect the public from environmental hazards. The initial terms of his employment required that he become a resident of the Township within one year after his appointment. After working for about six months, Scally expressed to the Township manager his desire to have some job security before he committed himself to move to the Township. Thereupon, a written three year employment agreement was prepared by the Township manager and the Township solicitor and was approved by the outgoing Board of Supervisors on December 12, 1985 and signed by both the Township and Scally. The supervisors' terms ended one month later, January 6, 1986.

On or about February 11, 1986, Scally was notified by the Township that his employment was being terminated effective February 25, 1986. The Township believed that Scally was employed in a governmental function, and that it was ultra vires for the outgoing Board of Supervisors to enter into a contract that bound the incoming Board. Almost immediately thereafter, Scally secured new employment and brought the instant suit to recover for the losses occasioned by the alleged breach of contract.

The issue which this Court must decide is whether a three-year contract entered into between Scally and a previous Board of Supervisors of the Township, is valid and binding upon the present Board of Supervisors.*fn1

[ 115 Pa. Commw. Page 59]

Central to a resolution of this issue is a determination of whether Scally's employment is a proprietary function or a governmental function, and in order to make this determination, it is necessary to define the conceptual difference between these functions.*fn2 A governmental function is performed for public purposes exclusively, and belongs to the corporate body in its public, political or municipal character. Moore v. Luzerne County, 262 Pa. 216, 105 A. 94 (1918). If Scally was performing a governmental function, then, absent a statute to the contrary, the outgoing Board of Supervisors had no authority to tie the hands of its successors. Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960). Conversely, a proprietary function is for the purpose of private advantage, but the public may derive a common benefit therefrom. And, if Scally's duties were of a proprietary nature, the Board's contract would have to be enforced. Moore.

[ 115 Pa. Commw. Page 60]

Applying this standard to the present case, we hold that Scally was performing a job that was clearly governmental in nature. His primary duty was that of an environmental control officer and he was to inspect the operations of the G.R.O.W.S. landfill in the Township. His responsibility was to protect the health and safety of the public from environmental hazards generated by the operation of the landfill. The landfill itself was privately owned and a tax was imposed by the Township on both private and public trash haulers who used the landfill. Scally's activities, while essential to the protection of the public, were not an integral part of the operation of the landfill or of the collection of the tax. We, therefore, conclude that his contract was solely one which benefitted the general public of Falls Township. See Kunz v. Titusville, 373 Pa. 528, 97 A.2d 42 (1953), which noted that in the context of an immunity question "the gathering and disposal of the refuse and ashes is primarily a health measure and therefore the exercise of a public or governmental function within the police power. . . ." Id. at 532, 97 A.2d at 44.

It is unfortunate that in some instances, such as the case before us, a blameless individual must suffer the consequences of such a policy. The alternative, however, could potentially have consequences even more unacceptable. As Justice Simpson articulated when speaking of the procedural rules in Moore:

[T]he court cannot blind its eyes to the fact that, in public and private life alike, an official or agent, whose term of service is about to expire, might be tempted to favor his friends and retainers at the expense of his principal. Because thereof, public policy requires that the courts, in furtherance of public and private honesty and fair dealing, shall apply such procedural rules as will prevent or limit summary recovery upon

[ 115 Pa. Commw. Page 61]

    agreements which possibly may result from yielding to such temptation.

Id. at 219-20, 105 A. at 95.*fn3

Inasmuch as Scally performed a governmental function, the outgoing Board could not bind the incoming Board to continue his employment. Therefore, the order of the trial court must be reversed.


The order of the Court of Common Pleas of Bucks County in the above-captioned matter is reversed.



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