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.
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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 ...