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decided: July 11, 1989.


Appeal from Common Pleas Court, Lehigh County; Honorable David E. Mellenberg, Judge.


John J. Waldron, Allentown, for appellants.

Lawrence A.J. Spegar, with him, Richard Polachek, Fine & Wyatt, P.C., Scranton, for appellee.

Doyle and Smith, JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 127 Pa. Commw. Page 379]

John and Barbara Bendas (Appellants) appeal the order of the Lehigh County Court of Common Pleas which sustained Upper Saucon Township's (Township) preliminary objection in the nature of a demurrer. We affirm.

Tests were conducted on Appellants' property by the Township's sewage enforcement officer to determine its suitability for an on-lot sewage disposal system. The Township thereafter issued a permit to Appellants prescribing the type of system to be installed. Subsequent to installation of the prescribed system, Appellants discovered that, due to the unsuitability of the type of system installed, sewage proceeding through the system was not adequately

[ 127 Pa. Commw. Page 380]

    absorbed and percolated upward to the surface of their property, rendering a substantial portion thereof unusable.

As a result, Appellants instituted suit in the trial court against the Township on the grounds of negligence and breach of implied warranties, seeking damages in excess of $20,000 for the loss of use and enjoyment of their property as well as costs associated with installation and correction of the system. In Count I of the complaint, Appellants aver that the Township, acting through its sewage enforcement officer, was negligent in testing their property and in issuing a permit for a specific sewage disposal system which was unsuitable for their property. Appellants further aver that, in issuing the permit, the Township acted illegally and in violation of the Pennsylvania Sewage Facilities Act (Act).*fn1 Count II contains Appellants' averments that the Township, in issuing the permit, breached implied warranties that the permit was issued in a non-negligent fashion and that the type of on-lot sewage disposal system prescribed therein was suitable for Appellants' property.

In response, the Township filed a preliminary objection in the nature of a demurrer, asserting that Appellants' causes of action were barred by virtue of the governmental immunity provisions set forth in Sections 8541-8564 of the Judicial Code (Code), 42 Pa.C.S. §§ 8541-8564.*fn2 The trial court

[ 127 Pa. Commw. Page 381]

    sustained the Township's preliminary objection and Appellants appealed to this Court for review,*fn3 raising the issue of whether the trial court properly sustained the Township's demurrer.

Demurrers admit as true all well-pleaded facts. Conclusions of law, unwarranted factual inferences, argumentative allegations, and opinions are excluded from consideration. Only where it is clear from the face of the pleadings that the law will not permit the relief sought should a demurrer be sustained. Any doubts are to be resolved in favor of overruling the demurrer. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976); Paratransit Association of Delaware Valley, Inc. v. Yerusalim, 114 Pa. Commonwealth Ct. 279, 538 A.2d 651 (1988).

[ 127 Pa. Commw. Page 382]

Appellants initially argue that they can proceed against the Township upon negligence and breach of warranty theories under this Court's decisions in Schoenenberger v. Page 382} Hayman, 77 Pa. Commonwealth Ct. 411, 465 A.2d 1335 (1983) and Turner v. Martz, 42 Pa. Commonwealth Ct. 328, 401 A.2d 585 (1979).*fn4 Reliance thereon, however, is misplaced. These cases were decided subsequent to the Pennsylvania Supreme Court's decision in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), which abrogated governmental immunity, and prior to the legislature's resurrection thereof in the Political Subdivision Tort Claims Act,*fn5 later repealed and substantially reenacted by the General Assembly as Subchapter C of Chapter 85 of the Code, 42 Pa.C.S. §§ 8541-8564, which governs the matter sub judice.

Here, as in Gilius v. Board of Supervisors of Fairview Township, 122 Pa. Commonwealth Ct. 371, 552 A.2d 327 (1988), none of Appellants' allegations of negligence fit within any of the exceptions to governmental immunity encompassed under subsection 8542(b) of the Code. Likewise, Appellants' assumpsit count sounds in tort as Appellant essentially avers that the Township negligently issued the permit in question. Previous attempts to disguise tort causes of action not falling within the exceptions to governmental immunity as assumpsit counts to avoid the immunity provisions have been rejected by this Court. Id.; Silkowski v. Hacker, 95 Pa. Commonwealth Ct. 226, 504 A.2d 995 (1986). Nor may an implied warranty of merchantability attach to the Township's testing and permit issuance pursuant to Section 2314 of the Pennsylvania Commercial Code (Commercial Code), 13 Pa.C.S. § 2314, as these acts constitute "services" rather than "goods". Schreck v. North Codorus Township, 126 Pa. Commonwealth Ct. 407,

[ 127 Pa. Commw. Page 383559]

A.2d 1018 (No. 2395 C.D. 1988, filed June 9, 1989).*fn6

Appellants alternatively argue, however, that governmental immunity cannot shield a local agency's alleged criminal acts. In support, Appellants assert that the Township's acts were criminal since the issuance of the permit violated Section 7 of the Act, 35 P.S. § 750.7, which violation constitutes a summary offense under Section 13 of the Act, 35 P.S. § 750.13; and that subsection 8542(a) of the Code carves an exception to governmental immunity for criminal conduct.

That subsection 8542(a) excludes criminal conduct from the definition of "negligent acts" does not render such conduct an exception to the general immunity extended to local agencies by Section 8541. Subsection 8542(a) merely stipulates that both conditions set forth in subsections 8542(a)(1) and (a)(2) must be satisfied before liability may be imposed upon a local agency for any of the eight acts described in subsection 8542(b). In excluding criminal conduct from its purview, subsection 8542(a)(2) renders such conduct incapable of satisfying the condition contained therein and thus precludes application of the exceptions to governmental immunity encompassed under subsection 8542(b). See Natt v. Labar, 117 Pa. Commonwealth Ct. 207, 543 A.2d 223 (1988); Sieg v. Gestewitz, 44 Pa.D. & C.3d 289 (1987). Had the legislature intended to carve a "criminal conduct" exception to Section 8541's general extension of immunity to local agencies, such an exception would most assuredly have been among those enumerated in subsection 8542(b). Moreover, Section 8550 of the Code, 42 Pa.C.S. § 8550, specifically addresses acts by employees of local agencies which have been judicially determined to constitute

[ 127 Pa. Commw. Page 384]

    crimes and directs that certain governmental immunity provisions of the Code shall not apply. The provisions of Sections 8541 and 8542 are not among those enumerated.*fn7

Because the facts as pleaded by Appellants, together with all inferences reasonably deducible therefrom, fail to state an actionable claim against the Township, the trial court's decision to sustain the Township's demurrer must be affirmed.


AND NOW, this 11th day of July, 1989, the order of the Court of Common Pleas of Lehigh County is affirmed.

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