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HomeMy WebLinkAbout97-2644 CivilMICHAEL W. STITZEL, Plaintiff NORTH MIDDLETON TOWNSHIP and DENNIS D. BREHM, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNYLVANIA · CIVIL ACTION--LAW · No. 97-2644 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J.' ORDER OF COURT AND NOW, this 27th day of August, 1999, upon consideration of the motion for summary judgment filed by Defendant Dennis D. Brehm, and for the reasons stated in the accompanying opinion, the motion is granted. BY THE COURT, Sally J. Winder, Esq. 701 E. King Street Shippensburg, PA 17257 Attorney for Plaintiff Frank J. Lavery, Jr., Esq. James D. Young, Esq. P.O. Box 1254 Harrisburg, PA 17108-1245 Attorneys for Defendants * Guido, J., did not participate in the consideration or disposition of this case· MICHAEL W. STITZEL, Plaintiff Vo NORTH MIDDLETON TOWNSHIP and DENNIS D. BREHM, Defendants IN RE: DEFENDANT'S · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION--LAW No. 97-2644 CIVIL TERM MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J.~ OPINION and ORDER OF COURT OLER, J., August 27, 1999. This civil action arises out of a township's grant of a building permit and its subsequent issuance of a stop-work order. Plaintiff, the permittee, sued the township and the township employee who issued the stop-work order for damages allegedly arising out of the cessation of construction. In a previous decision, on preliminary objections filed by the Defendants, the court held that Plaintiff's action sounded in tort, that the allegedly tortious conduct did not fall within one of the eight enumerated exceptions to immunity under the Political Subdivision Tort Claims Act, and that the township was immune from suit by virtue of the doctrine of governmental immunity under the act.2 proceed against the township's employee, because of willfully and maliciously.3 For disposition at this time is a motion for employee.4 In support of the motion, Defendant The action was permitted to allegations that he had acted summary judgment filed by the argues that the record displays an Guido, J., did not participate in the consideration or disposition of this case. See Opinion and Order of Court, February 2, 1998. 3Id. Defendant Brehm's Motion for Summary Judgment, filed May 6, 1999. "absence of any genuine issue of material fact with respect to the application of the willful misconduct exception to immunity in this case.''5 After a careful review of the record, the court is of the view that Defendant is For this reason, the motion for summary judgment will be correct in this position. granted. STATEMENT OF FACTS The record in this case, for present purposes,6 includes a complaint, an answer to the complaint with new matter, a motion for summary judgment filed by Defendant Dennis D. Brehm (with several exhibits, such as the stop-work order), an affidavit of Defendant Brehm, a deposition of Defendant Brehm, an answer filed by Plaintiff Michael W. Stitzel to the motion for summary judgment, a deposition of Plaintiff Stitzel, three photographs of the construction site at the time the stop-work order was issued, and a settlement agreement between the township and Plaintiff resolving the question of what construction would be permitted.7 The allegations of Plaintiff's complaint may be summarized as follows: Plaintiff, Michael W. Stitzel, is an adult individual residing at 91 Cranes Gap Road, Carlisle, North Middleton Township, Cumberland County, Pennsylvania.8 Defendant Dennis D. Brehm is an adult individual with a business office at 211 North Middleton Drive, Carlisle, North Middleton Township, Cumberland County, Pennsylvania.9 North Middleton Township is a second class township located in Cumberland County, Pennsylvania, having its principal business office at the aforesaid location on North Middleton Road. l0 5 Defendant Dennis D. Brehm's Brief in Support of Motion for Summary Judgment, at 27. 6 See Pa. R.C.P. 1035.1. 7 An additional exhibit introduced at the deposition of Plaintiff Stitzel, which was apparently a sketch of the proposed construction, was not identified by the witness. s Plaintiff's complaint, paragraph 1. 9 Plaintiff's complaint, paragraph 3. l0 Plaintiff's complaint, paragraph 2. 2 Defendant Brehm, at all times pertinent to this case, served as the codes officer of North Middleton Township.~l His duties included receipt and review of applications for building permits and issuance of such permits.12 On June 20, 1996, Plaintiff submitted an application to the township for a building permit to repair and replace a dog run and doghouse located on his property at 91 Cranes Gap Road.13 Plaintiff paid the required $15.00 application feeTM and a permit was issued on that day for the "repair and replacement to acc[essory] structure dog run to include new run and housing.'ds Costs of construction were estimated at $4,573.00.16 Plaintiff began construction with respect to the dog run and doghouse.17 On August 15, 1996, Defendant Brehm, "acting in his capacity as Codes Officer," issued a stop-work order on the construction, citing violations of the township's zoning ordinance. 18 The issuance of this stop-work Order by Defendant Brehm was "arbitrary, willful, malicious, and without any basis in law or in fact.''19 Damages were suffered by Plaintiff in the amount o f $10,3 8 9.5 3.2° In an answer to Plaintiff's complaint, Defendant Brehm denied that he "lacked valid reasons for issuance of the 'stop work' order and ... that his actions were arbitrary, Plaintiff's complaint, paragraph 4. 12Id' 13 Plaintiff's 14 Plaintiff's 15 Plaintiff's 16 Plaintiff's 17 Plaintiff's 18 Plaintiff's 19 Plaintiff's 20 PlaintiWs complaint, complaint, complaint, complaint, complaint, complaint, complaint, complaint, paragraphs 5-6. paragraph 5, exhibit A. paragraph 6, exhibit A. exhibit A. paragraph 7. paragraph 8, exhibit B. paragraph 9. ad damnum clause. 3 willful, malicious and without any basis in law or in fact as alleged.''2~ Defendant averred that issuance of the stop work order was predicated upon: complaints from residents in the area about the project; the violations of the North Middleton Township Zoning Ordinances as enumerated in the "stop work" order; and the Township's desire to have a ruling from its Zoning Hearing Board on the issue of whether the proposed kennel was an appropriate use of the property? In new matter, Defendant Brehm contended, inter alia, that he was "immune from liability as a matter of law pursuant to the applicable provisions of the Political Subdivision Tort Claims Act .... ,,23 Depositions of Defendant Brehm and Plaintiff Stitzel serve to elaborate upon the facts and are not in material conflict. Defendant Brehm testified that he had been assistant codes enforcement officer for the township from April of 1990 until January of 1994, serving under Codes Enforcement Officer Lester R. Brickner, and that he had replaced Mr. Brickner as codes enforcement officer in January of 1994.24 He stated that the issuance of a township building permit involved, inter alia, a determination of the project's conformity with the township's zoning ordinance.25 Part of his duties in issuing building permits thus involved interpreting the zoning ordinance, according to his testimony.26 Defendant Brehm testified that he had viewed Plaintiff's property prior to the filing of the application for the project sub judice, which was dated June 20, 1996.27 The proposed construction was described as'follows in Defendant's testimony: 21 Defendant Brehm's answer with new matter to Plaintiff's complaint, paragraph 9. 22 _/d. 23 Defendant Brehm's answer with new matter to Plaintiff's complaint, paragraph 5. 24 N.T. 5, Deposition of Dennis D. Brehm, June 28, 1999 (hereinafter N.T. __ Deposition]). 25 N.T. 8-9 (Brehm Deposition). 26 N.T. 14-15 (Brehm Deposition). 27 N.T. 18-19(Brehm Deposition). [Brehm 4 A He was looking at removing several individual dog houses or kennels, constructing a new enclosure for dog runs. The project would have been faced away from the adjacent mobile home park, of which had been a source of numerous complaints against Mr. Stitzel because of the animals, and he was looking to evaluate some of those problems. Q So he told you what he intended to do. Is that correct? A That is correct. Q Now, he was going to remove some of these kennels and put in an enclosed run? A That is correct. Q Was he going to construct any area to keep dogs? A That was the project to construct new dog housing and runs? Defendant Brehm testified that he did not regard Defendant's canine activities as constituting a commercial dog kennel, subject to various special restrictions under the ordinance? A zoning issue which did suggest itself with respect to Plaintiff's proposed construction was described by Defendant Brehm as follows: "The customary or required rear yard setback for a new [accessory] structure in the Medium Density District was 10 feet. His [other accessory] structures were already encroaching on that which under Standard Zoning Regulations establishes a setback line. The item of most importance was the non-conforming use or structure in regards to an improvement being placed at that previous line or necessary to be moved to a new set back line.''3° 28 N.T. 20 (Brehm Deposition). 29 N.T. 27 (Brehm Deposition). 30 N.T. 22 (Brehm Deposition). Defendant Brehm concluded that the proposed construction would be permissible under the zoning ordinance. He felt that the property as a whole was subject to a nonconforming accessory use in the form of a dog kennel, according to his testimony.3~ Q And what did you tell him about what the setback requirement would be? A I informed him that if we illustrated on the application the existing facilities that I felt it complied with the non-conforming use and the established setback line of the existing facilities would be the proper setback line. Any new facilities that he constructed which improved on that or lessened that encroachment would be acceptable.32 The application submitted by Plaintiff indicated that the proposed project involved "upgrading existing kennels for more square foot run for dogs," according to Defendant's 33 Defendant stated that he issued the building permit to Plaintiff on the day it testimony. was submitted.34 Subsequent to commencement of work by Plaintiff on the project, a former township supervisor, who managed the mobile home park adjacent to PlaintiWs land, apparently raised objections with a township supervisor concerning the project, according to Defendant's testimony? Defendant stated that he was then questioned by his former supervisor, Mr. Brickner, who had become the township's zoning officer, about the rationale for issuance of the permit, .and that Mr. Brickner had concluded that the application should have been rejected? 31 N.T. 36 (Brehm Deposition). 32 N.T. 22 (Brehm Deposition). 33 N.T. 23 (Brehm Deposition). 34 N.T. 25 (Brehm Deposition). This was June 20, 1996. Id. 35 N.T. 33-35 (Brehm Deposition). 36 N.T. 35-37 (Brehm Deposition). 6 Defendant Brehm testified that he began to experience concern about the correctness of his legal analysis in granting Plaintiff's application for a building permit: In reviewing the avenues or past situations, whatever the case may have been that Mr. Brickner had pointed out, I went back through and looked at the determination that I had made, took into consideration the conflicts--that I'll refer to as conflicts--that had occurred over numerous times between the mobile home park and Mr. Stitzel and the dogs, the nature of the project that he was proposing, the interpretation of kennel by the Zoning Ordinance, and I felt at that time that the best avenue to service all was to have the Zoning Hearing Board ... give an interpretation of the Zoning Ordinance issues that I had identified. And in doing so I felt that the best avenue to protect all the parties including Mr. Stitzel was to issue the Stop Work Order that nothing else was done until we got a ruling from the Zoning Hearing Board.37 Defendant Brehm stated that he delivered the stop-work order to Plaintiff on August 15, 1996, at the site.38 When he presented the stop-work order, he advised Plaintiff"that there had been concerns raised regarding the items that were identified [on the stop-work order], and that [he] felt that the best way to get it legally straightened out and to alleviate any opposition in the future was to have the Zoning Hearing Board review those interpretations and make a decision regarding those," according to his testimony.39 Defendant Brehm testified that he told Plaintiff that the two main concerns which had been raised were that the construction was going to be too close to the property line and that the operation was going to fall into the category of a commercial kennel.4° In 37 N.T. 3 8 (Brehm Deposition). 38 N.T. 41-42 (Brehm Deposition). 39 N.T. 42 (Brehm Deposition). 40 N.T. 42 (Brehm Deposition). 7 issuing the stop-work order, according to Defendant's testimony, he did not confer with the township solicitor, the zoning hearing board solicitor, or any township supervisor.4~ The stop-work order cited sections of the zoning ordinance relating to permitted uses (which did not include commercial dog kennels) in the applicable zoning district, side and rear yard requirements for accessory structures, and limitations upon expansions and changes of nonconforming uses.42 In his deposition, Plaintiff Stitzel testified that he had moved to the property in question in 1981 or 1982.43 At that time, he had two chocolate labs and thirteen puppies, according to his testimony.44 Within a year, he stated, he built several "[d]og boxes with runs," which included a concrete slab, six-foot chain link fencing, and a wooden structure with a shingled roof, approximately eight feet from the adjacent mobile home park boundary line.45 A boundary dispute developed, according to his testimony, and the eventual resolution of the matter reduced the extent of his property by about six feet.46 Plaintiff stated that he sold the eight or nine puppies that survived from the aforesaid thirteen puppies, and eventually bought a third, female lab.47 A breeding operation was conducted on the premises, according to his testimony.48 He stated that at 41 N.T. 42-43. 42 Supplemental Appendix of Exhibits in Support of Defendant Brehm's Motion for Summary Judgment, Exhibits A-3 (stop-work order), A-4 (provisions of North Middleton Township Zoning Ordinance cited in stop-work order). 43 N.T. 3, Deposition of Michael W. Stitzel, June 15, 1998 (hereinafter N.T. __ [Stitzel Deposition]). 44 N.T. 8 (Stitzel Deposition). 45 N.T. 10-11 (Stitzel Deposition). 46 N.T. 16 (Stitzel Deposition). 47 N.T. 27-28 (Stitzel Deposition). 48 N.T. 28-29 (Stitzel Deposition). 8 some point he decided to build a bigger kennel;49 at the time he applied for a permit, he had four dogs and three puppies, according to his testimony? Plaintiff testified that as of the.time he applied for a permit he had no ill will toward Defendant Brehm, nor was he aware of any ill will on the part of Defendant toward him.5! Nothing in PlaintiWs deposition testimony regarding the issuance of the permit suggested other than an accommodating and cooperative attitude on the part of Defendant.52 Plaintiff confirmed in his testimony that the stop-work order was served upon him on August 15, 1996.53 Defendant apologized to him when he presented the order, according to Plaintiff's testimony, and mentioned the name of the mobile home park manager? Plaintiff elaborated upon the discussion as follows: Q Now, there was some reference of [the mobile home park manager's] name when the stop work order was issued to you. Who brought up [his] name ...? A Well, Denny [Brehm] brought it up. Q And what did he say? A Well, when he came out, you know, he was upset. I could tell Denny was a little upset. And he said, you know, I've got bad news, da, da, da, you know. And he said--I seen the stop work order. And I said, what's this all about? 49 N.T. 30 (Stitzel Deposition). 50 N.T. 31-32 (Stitzel Deposition). 5! N.T. 34-35 (Stitzel Deposition). 52 See N.T. 36-39 (Stitzel Deposition). 53 N.T. 48 (Stitzel Deposition). 54 N.T. 56-57 (Stitzel Deposition). 9 And he said, well, your buddy, Tom, you know, come out to the [township] shed and he's, you know, raising the roof about this kennel, you know, so I'm going to have to ask you to abide by the stop work order? Plaintiff testified that he had found the mobile home park manager to be an uncooperative neighbor and that the manager had developed a certain reputation in the township? However, when asked whether his relationship with Defendant Brehm was like his relationship with the manager, Plaintiff stated, "Absolutely not?? The day following service of the stop-work order, Defendant Brehm helped Plaintiff fill out an application for review by the township's zoning hearing board, and waived the filing fee, according to Plaintiff's testimony? With respect to Defendant's conduct, Plaintiff testified as follows: Q And your dealings with him at that point in time, would you characterize those as professional ...? A Sure. I had--hey, Denny was doing--I didn't know what-- Q He was just doing his job? A Right. I'm not mad at Denny. Q He had no personal animosity toward you? A Hey, I'm sure he didn't want to do that anymore than what I wanted to see it coming .... 59 Plaintiff testified that Defendant told him that "he'd like to go in front of the zoning hearing board.''6° In accordance with this recommendation, Plaintiff submitted an application to the board requesting relief from a setback requirement and approval to 55 N.T. 60 (Stitzel Deposition). 56 N.T. 62 (Stitzel Deposition). 57 N.T. 62 (Stitzel Deposition). 58 N.T. 63 (Stitzel Deposition). 50 N.T. 63-64 (Stitzel Deposition). 60 N.T. 64 (Stitzel Deposition). 10 expand a nonconforming use.61 At the hearing which was eventually held before the board, according to Plaintiff, Defendant testified as a witness in support of Plaintiff's position.62 The zoning issues were resolved by a settlement agreement executed by the township and Plaintiff Stitzel on October 1, 1996.63 Under the agreement, the terms of which were incorporated into a zoning hearing board decision,64 Plaintiff was permitted to construct and operate new canine housing, subject to several limitations upon the activity and subject to setback requirements under the zoning ordinance.65 DISCUSSION Under Pennsylvania Rule of Civil Procedure 1035.2, a party may move for summary judgment as a matter of law "(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." On a motion for summary judgment, "a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such 61 Supplemental Appendix of Exhibits in Support of Defendant Brehm's Motion for Summary Judgment, Exhibit A-5 (Findings of Fact and Decision of the North Middleton Township Zoning Hearing Board). 62 N.T. 70-71 (Stitzel Deposition). 63 Supplemental Appendix of Exhibits in Support 11 that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertel v. Patriot-News Co., 544 Pa. 93, 101-02, 674 A.2d 1038, 1042 (1996). Under the Political Subdivision Tort Claims Act, the official immunity applicable to a tortious act of an employee of a political subdivision which does not fall within one of the eight enumerated exceptions to immunity is lost if the conduct "constituted a crime, actual fraud, actual malice or willful misconduct .... "Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S. {}8550. However, where the record on a defendant's motion for summary judgment does not support such an allegation on the part of the plaintiff, the motion for summary judgment will be granted. See, e.g., Cassidy v. Abington Township, 131 Pa. Commw. 637, 571 A.2d 543 (1990). "Malice, in the context of official immunity, has been equated with 'malignant feelings or a wicked disregard of the interests of others.'" Robbins v. Cumberland County Children and Youth Services, 48 Cumberland L.J. 82, 94 (1999) (citing Ammlung v. City of Chester, 224 Pa. Super. 47, 56-57, 302 A.2d 491,496 (1973)), "[T]he term 'willful misconduct' [under the Political Subdivision Tort Claims Act] is synonymous with the term 'intentional tort.'" King v. Breach, 115 Pa. Commw. 355, 367, 540 A.2d 976, 981 (1988) (citation omitted). Conduct of a municipal employee which is based upon an incorrect legal analysis of a zoning issue will normally fall far short of constituting a crime, actual fraud, actual malice or willful misconduct, for purposes of official immunity under the Political Subdivision Tort Claims Act. See Delate v. Kolle, 667 A.2d 1218 (Pa. Commw. Ct. 1996) (summary judgment in favor of defendants held appropriate where record in support of finding of willful misconduct on part of zoning hearing board members who erred in decision consisted only of conclusory allegations in complaint). In the present case, notwithstanding allegations in Plaintiff's complaint that Defendant Brehm acted willfully and maliciously, Plaintiff has not adduced evidence on this essential issue which would warrant a finding by a trier of fact that Defendant's 12 conduct was so inspired, or that it constituted a crime or actual fraud, so as to preclude application of the doctrine of official immunity. For this reason, Defendant's motion for summary judgment based upon the doctrine of official immunity will be granted. ORDER OF COURT AND NOW, this 27th day of August, 1999, upon consideration of the motion for summary judgment filed by Defendant Dennis D. Brehm, and for the reasons stated in the accompanying opinion, the motion is granted. BY THE COURT, /s/J. Wesley Oler, Jr. J. Sally J. Winder, Esq. 701 E. King Street Shippensburg, PA 17257 Attorney for Plaintiff Frank J. Lavery, Jr., Esq. James D. Young, Esq. P.O. Box 1245 Harrisburg, PA 17108-1245 Attorneys for Defendants 13