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RONALD P. GILIUS AND SUSAN L. GILIUS v. BOARD SUPERVISORS FAIRVIEW TOWNSHIP AND ROBERT G. HARTMAN (12/28/88)

decided: December 28, 1988.

RONALD P. GILIUS AND SUSAN L. GILIUS, APPELLANTS
v.
BOARD OF SUPERVISORS OF FAIRVIEW TOWNSHIP AND ROBERT G. HARTMAN, P.E., APPELLEES



Appeal from the Order of the Court of Common Pleas of York County in the case of Ronald P. Gilius and Susan L. Gilius v. Board of Supervisors of Fairview Township and Robert G. Hartman, P.E., No. 86-SU-00620-01.

COUNSEL

Robert L. Knupp, Knupp & Kodak, P.C., for appellants.

Guy H. Brooks, Metzger, Wickersham, Knauss & Erb, for appellees.

Judges Barry and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. Concurring and Dissenting Opinion by Judge Colins.

Author: Barry

[ 122 Pa. Commw. Page 373]

Ronald P. Gilius and Susan L. Gilius (landowners) appeal from an order of the Court of Common Pleas of York County which granted summary judgment in favor of the Board of Supervisors of Fairview Township (Board) and Robert G. Hartman, the sewage enforcement officer for Fairview Township.

Landowners entered into an agreement of sale for the purchase of a tract of land in Fairview Township. A condition of the agreement of sale was a favorable percolation test and issuance of an on-site sewage disposal permit. Mr. Hartman conducted a percolation test on this lot and thereafter issued an on-site sewage permit to the landowners. Landowners then closed on the purchase of this lot. Thereafter, landowners entered into an agreement to sell the lot they had purchased to another couple. The proposed sale was conditioned upon a retesting of the lot for installation of an on-site sewage disposal system and issuance of a new on-site sewage disposal permit. This time, Christopher Hoover, the new Township sewage enforcement officer, performed a test on the lot. He, however, advised the landowners that the lot was unsuitable for an on-site sewage disposal system and refused to issue a new permit. A second test was then conducted by a Mark S. Mills as an independent test and as verification of the conclusions reached by Mr. Hoover. Mr. Mills also informed the landowners that the lot was unsuitable for an on-site sewage disposal system. As a result of the Township's refusal to issue another on-site sewage disposal permit, the couple who had entered into the agreement to purchase the lot refused to consummate the agreement of sale.

[ 122 Pa. Commw. Page 374]

Landowners thereafter commenced an action against the Board and Mr. Hartman. By this action they sought to recover the loss on the aborted sale, the closing costs they had incurred in purchasing the lot, interest paid on the loan whose proceeds were used to purchase the lot, property taxes that had been paid, and an architectural fee. In the complaint, the landowners asserted a negligence count and an assumpsit count against the Board and a negligence count and an assumpsit count against Mr. Hartman. In the negligence count against the Board, it was asserted that the Board was negligent in breaching its duties to (a) hire a sewage enforcement officer who was competent, (b) ascertain that the individual hired as Township sewage enforcement officer was properly trained and qualified and (c) ascertain that the Township sewage enforcement officer properly performed the duties of his office. In the negligence count against Mr. Hartman, it was alleged that he breached his duty to competently perform the percolation test. In both assumpsit counts, it was asserted that the defendants, in issuing the on-site sewage permit, had breached "implied warranties that [Mr. Hartman's] work was competently performed and the [percolation] test was performed without negligence."

The Board and Mr. Hartman, in response to the landowners' complaint, filed a joint answer and new matter, in which, inter alia, they alleged that the landowners' action was barred by reason of the immunity provided by Subchapter C of Chapter 85 of the Judicial Code (Code), 42 Pa. C.S. §§ 8541-8564, (referred to hereinafter as Subchapter C). After the plaintiff had taken the deposition of Mr. Hartman, the Board and Mr. Hartman then filed a motion for summary judgment on the ground that the landowners' action was barred by reason of governmental and official immunity. The plaintiffs filed a motion seeking a partial summary judgment

[ 122 Pa. Commw. Page 375]

    on the issue of liability. Acting upon these motions, the trial court granted the motion for summary judgment filed by the Board and Mr. Hartman on the grounds that the landowners' action was barred by reason of governmental and official immunity and denied the landowners' motion for partial summary judgment. This appeal followed.

Here, the negligence counts of the landowners' complaint are clearly barred by Subchapter C. The Board is a local agency for the purposes of Subchapter C. By these counts, the landowners seek to recover damages from the Board and its agent on the basis that it has sustained an economic loss as a result of negligence on their part. The immunity provided to the Board by Section 8541 of the Code applies to any suit involving injury, whether the injury was physical, mental, reputational or economic, unless the act or omission that gives rise to liability falls under one of the eight exceptions to governmental immunity enumerated in Section 8542(b) of the Code, 42 Pa. C.S. § 8542(b). E-Z Parks, Inc. v. Philadelphia Parking Authority, 110 Pa. Commonwealth Ct. 629, 532 A.2d 1272 (1987). In alleging that the Board was negligent in failing to hire a competent sewage enforcement officer, in failing to ascertain that the individual hired to be the sewage enforcement officer was properly trained and qualified, and in failing to determine that the sewage enforcement officer properly performed the duties of his office, the landowners have failed to ...


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