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SEYMOUR RUDITSKY AND HARRIET RUDITSKY v. VICTOR E. ORBEN CHRIS WOOD DINGMAN TOWNSHIP (11/21/88)

decided: November 21, 1988.

SEYMOUR RUDITSKY AND HARRIET RUDITSKY, HIS WIFE
v.
VICTOR E. ORBEN; CHRIS WOOD; DINGMAN TOWNSHIP, A MUNICIPAL CORPORATION AND CHARLES H. FETTERS AND DOROTHY B. FETTERS, HIS WIFE AND JOHN J. GRABER. VICTOR E. ORBEN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Pike County in the case of Seymour Ruditsky and Harriet Ruditsky, his wife v. Victor E. Orben; Chris Wood; Dingman Township, a Municipal Corporation; and Charles H. Fetters and Dorothy B. Fetters, his wife, and John J. Graber, No. 219-1986.

COUNSEL

Robert E. Simpson, Jr., Teel, Stettz, Shimer & DiGiacomo, Ltd., for appellant.

Raymond P. Kashimba, for appellees, Seymour & Harriet Ruditsky.

Anthony R. Sherr, with him, William A. Jones, Sherr & Zuckerman, P.C., for appellee, Chris Wood.

Judges Colins and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. Judge MacPhail did not participate in the decision in this case.

Author: Colins

[ 121 Pa. Commw. Page 217]

Victor E. Orben (appellant) appeals an order from the Court of Common Pleas of Pike County which granted summary judgment in favor of Chris Wood (appellee), sewage enforcement officer for Dingman Township. We affirm.

Appellant was the designer of a sewage disposal system to be installed on property purchased by Seymour and Harriet Ruditsky. Appellant and appellee inspected the property in the summer of 1984. After this inspection, Dingman Township issued a permit to install an on-lot sewage disposal system. After the permit was issued, the Ruditskys purchased the property from Charles and Dorothy Fetters. The Ruditskys then contracted with John J. Graber to begin developing the property. During construction, Graber and appellee agreed on changes in the design and location of the sewage system. Appellant was never informed of these changes. The permit was revoked when it was discovered that the system was within 100 feet of a neighbor's well. Additionally, the location of the well was misstated on the certification accompanying the Ruditskys' application for the permit. The Ruditskys have been unable to use their property since the revocation.

The Ruditskys commenced this action by filing a complaint against the appellant, appellee, and Dingman Township, as well as the Fetters. Graber was eventually joined as an additional defendant. In their complaint, the Ruditskys allege that they purchased the property after Orben's site investigation and a percolation test revealed that the lot was suitable for a sewage system. Appellant filed his answer and new matter, together with a cross-claim against appellee. In the cross-claim, it was alleged that the damage to the Ruditskys' property was caused by the appellee and Dingman Township, not by the appellant.

[ 121 Pa. Commw. Page 218]

Dingman Township's preliminary objections to Count III of the Ruditskys' complaint, the only count involving Dingman Township, were granted on November 6, 1984. The basis for dismissing Count III was that under Sections 8541-45 of the Judicial Code (Act), 42 Pa. C.S. §§ 8541-45, the appellee and Dingman Township were not liable.

On July 23, 1987, appellee filed a motion for summary judgment on Count IV of the Ruditskys' complaint. The trial court's order granting summary judgment on Count IV was entered on December 14, 1987. The basis was that appellee, acting within the scope of his authority as sewage enforcement officer of Dingman Township, could not be held liable because the breach of an implied warranty of fitness for a particular purpose does not fall within the eight enumerated exceptions in Section 8542 of the Act, 42 Pa. C.S. § 8542. Orben now appeals that order.

To uphold a grant of summary judgment, there must be not only an absence of genuine factual issues, but also entitlement to judgment as a matter of law. Pa. R.C.P. No. 1035(b); Nalbone v. Borough of Youngsville, 104 Pa. Commonwealth Ct. 623, 522 A.2d 1173 (1987). The appellant argues that there exist genuine issues of material fact which should have precluded the trial court from entering summary judgment. The allegation that material issues of fact remain to be resolved is nothing more than a broad allegation and ...


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