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BOROUGH WEST FAIRVIEW v. PEGGY HESS (12/28/89)

decided: December 28, 1989.

BOROUGH OF WEST FAIRVIEW, APPELLANT,
v.
PEGGY HESS, VICKI L. JUDY, DONNA KINDNESS AND CHRISTINE E. ZIMMERMAN AND BONNIE L. KAPP, APPELLEES



Appeal from Common Pleas Court, Cumberland County; Honorable Kevin A. Hess, Judge.

COUNSEL

Thomas F. Brenner, Goldberg, Katzman & Shipman, P.C., with him, Henry Coyne, Harrisburg, for appellant.

Christopher C. Houston, Broujos, Gilroy & Houston, P.C., Carlisle, for appellees.

Craig, McGinley and Smith, JJ.

Author: Craig

[ 130 Pa. Commw. Page 387]

West Fairview Borough appeals two orders of Judge Kevin A. Hess. One of those orders dismissed one count of the borough's suit for damages against the defendants, former elected borough auditors, on the auditors' preliminary objections in the nature of a demurrer. The other order, dated more than eight months later, granted the auditors' motion for summary judgment on the other count in the borough's complaint.

In addition to a question of the timeliness of the appeal as to the earlier order, there is also a question as to whether the auditors are shielded by immunity.

On the preliminary objections, the complaint's averments provide the assumed facts, as follows. In 1986 the borough discovered that the defendant auditors failed to discover deficiencies in the borough's accounts for the years 1982 through 1985, allegedly because of the auditors' error or negligence.

[ 130 Pa. Commw. Page 388]

Under Count II of the complaint, paragraphs 11-13 allege that the auditors, who had received compensation for the performance of their duties, had breached their oath that they had carefully examined the accounts.

The trial court dismissed Count II of the complaint, which it concluded sounded in contract, on the basis that no contractual relationship can exist between a public official and the government entity the official serves. Snyderwine v. Craley, 434 Pa. 349, 354, 254 A.2d 16, 19 (1969).

Approximately eight months later, the trial court dismissed Count I, a negligence claim, on the auditors' motion for summary judgment, on the basis that the auditors were immune from suit under the governmental immunity provisions, Chapter 85 of the Judicial Code, 42 Pa.C.S. ยงยง 8541-8564.

Within thirty days after the dismissal of Count I, pursuant to the summary judgment, the borough appealed both dismissal orders.

1. Timeliness of Appeal From Count II Order

Initially, the auditors argue that this court lacks jurisdiction to consider an appeal of the trial court's adjudication of Count II. They contend that the trial court's dismissal of that count constituted a final, appealable order, and that the township's failure to appeal within 30 days renders the appeal of that count untimely.

The borough, in support of its contention that its appeal of the trial court's order regarding Count II is not untimely, seeks to distinguish the decision upon which the auditors rely, Hardy v. Pennock Insurance Agency, Inc., 365 Pa. Superior Ct. 206, 529 A.2d 471 (1987), in which Judge Kelly, writing for the court, reiterated the rule set forth in Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa. Superior Ct. 75, 500 A.2d 163 (1985):

[I]f the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct

[ 130 Pa. Commw. Page 389]

    causes of action, the order sustaining preliminary objections is then final and appealable as to those causes of action dismissed; where such separate counts merely state alternative theories to support recovery on a single cause of action, the dismissal of one count does not put plaintiff "out of court" as to the cause of action raised, and the order is therefore interlocutory and appealable. Cloverleaf, 347 Pa. Superior Ct. at 82, 500 A.2d at 166.

Should the cause of action of . . . . the dismissed [count] still exist . . . . the dismissed count would be deemed an "alternative theory to support ...


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