Opinion
No. 2359 C.D. 2011
08-21-2012
Joseph Gallagher and Jennifer Gallagher, Appellants v. Jay R. Lynch, Sewage Enforcement Officer of Greenfield Township; and Greenfield Township
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Joseph Gallagher and Jennifer Gallagher (the Gallaghers), appeal from the order of the Court of Common Pleas of Lackawanna County (trial court) granting the Motion for Summary Judgment filed by Jay R. Lynch, Sewage Enforcement Officer of Greenfield Township and Greenfield Township (collectively, Appellees). After review, we affirm.
Lynch is the Sewage Enforcement Officer (SEO) of Greenfield Township, a municipality located in Carbondale, Lackawanna County. On or about September 26, 2008, the Gallaghers entered into an agreement of sale with the Uzialkos for the purchase of property located on Poor Farm Road, Greenfield Township ("the property"). The Gallaghers then filed an application for an onlot sewage disposal system permit ("permit") with the Township, which was issued to them by SEO Lynch on or about October 8, 2008. After the Gallaghers completed the purchase of the property, they commenced construction of their home.
In April 2009, upon receipt of a complaint regarding the siting of the elevated sand mound disposal system on the Gallaghers' property, the Pennsylvania Department of Environmental Protection (DEP), along with SEO Lynch, conducted an investigation and testing on the property. As a result of this investigation, DEP ordered the Township to revoke the Gallaghers' sewage permit. SEO Lynch revoked the permit by letter dated May 15, 2009.
The Gallaghers commenced an action against Lynch and the Township, alleging that because SEO Lynch's initial examination was not properly conducted and the Township's decision to issue the permit failed to conform with Sections 73.14(a)(5) and 73.51(a)(3) of the Sewage Facilities Regulations, 25 Pa. Code §§ 73.14(a)(5) and 73.51(a)(3), their permit was revoked. The Gallaghers further averred that they suffered damages as a result of their detrimental reliance on the permit when they purchased the property and sought reinstatement of the permit and an award of damages.
After the close of pleadings, Appellees filed a Motion for Summary Judgment arguing that because the Gallaghers' complaint only raised allegations of negligent conduct by SEO Lynch and the Township in failing to conduct a proper site examination and issue a permit in a competent non-negligent manner, their action was barred by the governmental immunity provisions of Sections 8541 and 8542 of the Judicial Code, 42 Pa. C.S. §§ 8541-8542.
Section 8541 states that, "[e]xcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." Section 8542 provides that a local agency shall be liable for damages on account of injury to a person or property where the damages would be recoverable under common law, or a statute creating a cause of action, if the injury was caused by a person not having available the defense of immunity; and where the injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties; and the injury occurs as a result of one of the eight enumerated acts in subsection (b). --------
Noting that the substance of the allegations rather than the label used to describe a cause of action is dispositive, the trial court concluded that the Gallaghers' complaint essentially alleged that SEO Lynch failed to perform his duties in a competent manner and that the Township issued the permit in contravention of applicable environmental regulations. Accordingly, the trial court concluded that although the Gallaghers labeled their cause of action as one for detrimental reliance or promissory estoppel, they had stated a cause of action in tort (i.e. negligence) rather than in contract. Therefore, because the Gallaghers' claims admittedly did not fall within any of the enumerated exceptions to governmental immunity, see 42 Pa. C.S. § 8542(b), the trial court held that their action was barred by 42 Pa. C.S. § 8541 and granted Appellees' motion for summary judgment.
The Gallaghers now appeal to this court, arguing that the trial court erred in characterizing their action as one asserting a claim in negligence. They argue that Appellees are not immune from suit because the immunity provisions in Sections 8541 and 8542 do not bar actions for detrimental reliance or promissory estoppel, which their complaint clearly pled. In support thereof, the Gallaghers assert that there is "a genuine issue of material fact as to whether [SEO] Lynch made a promise that the lot [they] purchased was suitable for an onlot sewer disposal system." Appellants' Brief at 8. The Gallaghers also contend that there is also a genuine issue of material fact as to "whether the DEP's investigation in April . . . 2009 revealed that the examination conducted by Lynch was not properly conducted and that the original decision of Greenfield Township to issue an onlot sewage disposal system permit . . . failed to conform with Sections 73.14(a)(5) and 73.51(a)(3) of the Sewage Facilities Regulations . . . ." Id. Maintaining that their claims meet all of the elements of promissory estoppel, the Gallaghers assert that their claims are not precluded by 42 Pa. C.S. §§ 8541-8542.
When reviewing an order of the trial court granting a party's motion for summary judgment, we are mindful that summary judgment is appropriate only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Kincel v. Dep't. of Transp., 867 A.2d 758 (Pa. Cmwlth. 2005).
After carefully reviewing the parties' arguments, the record, and the relevant law, this Court concludes that the issues raised by the Gallaghers are amply and comprehensively addressed in the well-reasoned opinion of the Honorable Terrence R. Nealon of the Court of Common Pleas of Lackawanna County in Joseph and Jennifer Gallagher v. Jay R. Lynch, Sewage Enforcement Officer of Greenfield Township and Greenfield Township, No. 09 CV 8231, filed November 16, 2011. Accordingly, this Court affirms common pleas' order on the basis of that opinion.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 21st day of August, 2012, the order of the Court of Common Pleas of Lackawanna County is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge