Argued: May 1, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE
MICHAEL H. WOJCIK, Judge.
HANNAH LEAVITT, PRESIDENT JUDGE
Narberth, LLC (Cornell) appeals an order of the Court of
Common Pleas of Montgomery County (trial court) granting
summary judgment to the Borough of Narberth (Borough) and its
building inspector, Yerkes Associates, Inc. (Yerkes). Cornell
argues that the trial court erred by finding that its breach
of contract, promissory estoppel, and negligent
misrepresentation claims were barred by the governmental
immunity provisions under the act commonly known as the
Political Subdivision Tort Claims Act (Tort Claims Act), 42
Pa. C.S. §§8541-8542, and the related official
immunity provisions. Cornell also argues that the trial court
erred in holding that its evidence was insufficient to
survive summary judgment on its equal protection claim. For
the following reasons, we affirm.
a real estate developer, applied to the Borough for building
permits to construct detached single-family homes on a
four-lot subdivision known as Narberth Arbors. Before
submitting the permit applications, Cornell's
representatives met with William Martin, the Borough manager,
and Robert Loeper, a representative of Yerkes, which does
building inspections for the Borough, to discuss the
construction of the residences. The Borough informed Cornell
that the local ordinances did not require installation of an
automatic sprinkler system in a detached single-family
Cornell submitted construction drawings to Yerkes showing
that the homes would be built with pre-engineered wood roof
trusses and would not have automatic sprinklers. Third
Amended Complaint ¶13; Reproduced Record at 1286a
(R.R.___). Yerkes reviewed and approved the drawings. The
Borough then issued building permits for each residence. The
permits, which did not mention sprinklers, were issued
"subject to the provisions of the Borough
Ordinances." Id., Exhibit A; R.R. 1305a.
Cornell paid the required fees associated with the permits
and began construction.
representative from Yerkes visited the site regularly and
inspected each stage of the construction. Third Amended
Complaint ¶20; R.R. 1287a. At no time during these
inspections did anyone from Yerkes inform Cornell that it was
required to install automatic sprinklers. Id.,
¶21; R.R. 1287a. After Cornell completed the Lot 1
residence, Yerkes did a final inspection and notified the
Borough to issue a certificate of occupancy. Id.,
¶23; R.R. 1287a.
Borough refused to issue the certificate of occupancy because
Cornell had not installed automatic sprinklers, which are
required for homes constructed with pre-engineered wood roof
trusses. By letter dated September 15, 2010, Martin, the
Borough manager, informed Cornell that the sprinkler systems
were required under Ordinance No. 843, the Fire Prevention
Code (Fire Code), which provides in pertinent part:
(1) All new construction except single family detached and
single family semi-detached dwellings located within the
Borough will be equipped with full sprinkler systems.
a. Exception: if a single family detached or single family
semi-detached dwelling is constructed with wooden truss
floors or roof supports the structure must be sprinklered.
Amended Complaint, Exhibit B, at 1; R.R. 1311a.
letter further explained that "[a]lthough the Borough
has adopted the Uniform Construction Code ("UCC"),
provisions of the UCC do not supersede ordinances in effect
on July 1, 1999 with provisions which equal or exceed the
specific requirements of the UCC." Id.; R.R.
1311a. The letter acknowledged that Cornell's building
permits were issued in error and stated that "[i]f the
violation [of the Fire Code] is not corrected immediately,
the Borough will consider all appropriate remedies available,
including revocation of the previously issued building
permits." Id. at 2; R.R. 1312a.
refused to inspect the remaining residences in the
subdivision until Cornell installed automatic sprinkler
systems. As a result, the construction on Lots 2, 3, and 4
was halted, which "jeopardiz[ed] closings on the Lot 3
and 4 [r]esidences." Third Amended Complaint ¶35;
R.R. 1289a. One couple "sold their home in reliance on
being able to move into their completed [r]esidence and was
thereafter forced to lease-back their prior residence."
Id., ¶39; R.R. 1290a. Similarly, the Lot 1
purchaser had no place to live as a result of the
Borough's refusal to issue a certificate of occupancy for
that residence. Id., ¶36; R.R. 1289a. Cornell
alleges that as a result of the actions of the Borough and
Yerkes, it "had no other option but to install the
sprinkler systems in the [r]esidences, or face breach of its
agreements with the [purchasers]." Id.,
¶45; R.R. 1291a. Cornell alleges its damages include,
but are not limited to, the costs of installing the
sprinklers and relocating the purchasers of the residences to
other housing units. Id., ¶48-50; R.R. 1291a.
third amended complaint contained five counts: (1) breach of
contract against the Borough and Yerkes; (2) promissory
estoppel against the Borough and Yerkes; (3) negligent
misrepresentation against Yerkes; (4) violation of the equal
protection clause of the U.S. Constitution under 42 U.S.C.
§1983 against the Borough and Yerkes; and (5) violation
of the equal protection clause of the Pennsylvania
Constitution. Yerkes then filed a joinder complaint
against C. O'Brien Architects, Inc., and its principal,
Cheryl O'Brien, alleging negligent misrepresentation.
parties engaged in discovery, which included depositions of
Martin, Loeper, and Frederick Hansell, the Borough's
Assistant Manager. At the conclusion of discovery, the
Borough and Yerkes filed motions for summary judgment, on
which the trial court heard oral argument.
support of its motion for summary judgment, the Borough
argued that "despite being couched as contractual or
quasi-contractual claims, " the allegations in
Cornell's complaint were "clearly based upon
negligence" and, thus, barred by the Tort Claims Act.
Borough Motion for Summary Judgment ¶33; R.R. 2483a-84a.
The Borough also argued that the complaint did not state an
equal protection claim under 42 U.S.C. §1983 because its
assertion "is unproven at the end of discovery."
Id., ¶35; R.R. 2484a.
argued that it acted as the Borough's employee in its
capacity as the appointed building inspector; therefore, it
was immune from liability under the Tort Claims Act. In
support, Yerkes cited the deposition testimony of Martin, who
[Question]: From the time that Yerkes was appointed as the
Narberth Borough code official prior to 2010, until the
present they have always been acting in the capacity as the
appointed Narberth Borough code official?
[Martin]: Yes, they have.
[Question]: And with respect to all of the services that they
have provided in connection with the Cornell project that is
at issue in this case, all of those services were provided in
their capacity as the Narberth Borough building code
[Martin]: Yes, they were.
Deposition at 110; R.R. 6291a.
responded that the Tort Claims Act provides no immunity for
non-tort claims such as breach of contract and promissory
estoppel. Cornell argued that the building permits
constituted contracts between the parties and made no mention
of sprinklers. By failing to issue the certificate of
occupancy in accordance with the permits, Cornell argued, the
Borough and Yerkes breached the contract.
the promissory estoppel claim, Cornell explained that the
Borough and Yerkes informed Cornell at the pre-construction
meeting that automatic sprinklers were not required in the
planned residences and affirmed that representation through
their subsequent actions, i.e., reviewing and
approving the construction drawings, issuing the building
permits, inspecting the construction site, and allowing the
construction to continue. Cornell argued that the promise
made by the Borough and Yerkes is enforceable because Cornell
detrimentally relied on it.
further argued that its negligent misrepresentation claim
against Yerkes was not shielded by the Tort Claims Act.
Cornell asserted that our Supreme Court has "created a
cause of action to a third party 'where information is
negligently supplied by one in the business of supplying
information, and where it is foreseeable that the information
will be used and relied upon by third persons.'"
Id. at 9; R.R. 3604a.
respect to its equal protection claim under 42 U.S.C.
§1983, Cornell pointed to its letter of December 29,
2010, that it sent to the Borough and the Fire Marshal. The
letter identified a number of residences and educational
institutions within the Borough that should have been
constructed with fire sprinklers but were not. The letter
requested an investigation of each of those properties.
However, the Borough chose not to require these properties to
correct the violations with the installation of automatic
sprinklers. In support, Cornell cited Martin's deposition
[Question]: We have marked a document … on Cornell
Homes letterhead dated December 29, 2010, Mr. William
Henderson, Jr., Narberth Fire Company President, signed by
Mark McSorley … cc'd to the Narberth Borough
Council Members and Thomas Grady, Mayor of Narberth. Have you
seen this letter before?
[Martin]: It was in the file, yes. I can't recall when I
saw it, no.
* * *
[Question]: So you didn't do anything then with respect
to following up with any of the properties that are
identified here in Mr. McSorley's letter?
[Martin]: I did not, no.
[Question]: Do you know if anybody in the Borough did?
[Martin]: No, I don't know that they did.
Deposition at 105-06; R.R. 6286a-87a. Cornell argued that the
Borough's inaction with respect to those other properties
is inconsistent with "its claim that life safety issues
were of such paramount concern." Cornell's Brief in
Opposition to the Borough's Motion for Summary Judgment
at 19; R.R. ...