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HomeMy WebLinkAbout97-2644 CivilMICHAEL W. STITZEL, : Plaintiff : : v. : : NORTH MIDDLETON TOWNSHIP and : DENNIS D. BREHM, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 97-2644 IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this2~day of February, 1998, upOn consideration of Defendants' preliminary objections to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, Defendants' preliminary objection in the nature of a demurrer is SUSTAINED and Plaintiff's complaint is DISMISSED as to Defendant North Middleton Township, and Defendants' preliminary objection in the nature of a demurrer or, in the alternative, in the form of a motion for a more specific pleading is DENIED as to Defendant Dennis D. Brehm. Sally J. Winder, Esq. 701E. 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 BY THE COURT, : rc MICHAEL W. STITZEL, : Plaintiff : : v. : NORTH MIDDLETON TOWNSHIP and : DENNIS D. BREHM, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 97-2644 IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HOFFER and OLER, JJ. OPINION and ORDER OF COURT Oler, J., February 2, 1998. 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, contends that he acquired certain contractual and vested rights in the permit upon issuance, that he justifiably relied upon the validity of the permit, and that he suffered compensable damages as a result of the stop-work order. Defendants are the township and its codes enforcement officer. For disposition at this time are Defendants' preliminary objections to Plaintiff's complaint in the nature of a demurrer or, in the alternative, in the form of a motion for a more specific pleading. For the reasons stated in this opinion, Defendants' preliminary objection in the nature of a demurrer will be sustained and Plaintiff's complaint will be dismissed as to Defendant North Mi~dleton Township, and Defendants' preliminary objection in the nature of a demurrer or, in the alternative, in the form of a motion for a more specific pleading will be denied as to Defendant Dennis D. Brehm. STATEMENT OF FACTS 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.~ Defendant North Middleton Township is a second class township located in Cumberland County, Pennsylvania, and having its principal business office at 211 North Middleton Road, Carlisle, North Middleton Township, Cumberland County, Pennsylvania.2 Defendant Dennis D. Brehm is an adult individual with a business office at 211 North Middleton Drive, Carlisle, Cumberland County, Pennsylvania.3 Defendant Brehm, at all times pertinent to this case, served as the codes officer of Defendant North Middleton Township.4 His duties included receipt and review of applications for building permits and issuance of such permits,s 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.6 Plaintiff paid the required $15.00 application fee7 and a permit was issued Complaint, paragraph 1. Complaint, paragraph 2. Complaint, paragraph 3. Complaint, paragraph 4. Id. Complaint, paragraphs 5-6. Complaint, paragraph 5, exhibit A. on that day for the "repair and replacement to acc[essory] structure dog run to include new run and housing."8 Costs of construction were estimated at $4,573.00.9 Plaintiff began construction with respect to the dog run and doghouse.~° On August 15, 1996, Defendant Brehm, "acting in his capacity as Codes Officer," issued a stop-work order on the construction, citing violations of Article 2b, Section 95, of the township's zoning ordinance.~ Plaintiff contends that, when the building permit was issued, a contract was formed between him and Defendant North Middleton Township and that rights in the permit became vested. He maintains that, each time Defendant North Middleton Township issues a permit, it enters into a "social contract" with the permittee that it will honor the permit. According to Plaintiff, when the permit was issued, Defendants implicitly agreed that Plaintiff would be allowed to construct a new dog run in exchange for paying the permit fee. Plaintiff maintains that the issuance of the stop-work order by Defendant Brehm on August 15, 1996, was "arbitrary, willful, malicious, and without any basis in law or fact,"~2 and therefore constituted a breach of the alleged contract which had been formed, and deprived him of rights which had allegedly vested Complaint, paragraph 6, exhibit A. Complaint, exhibit A. Complaint, paragraph 7. Complaint, paragraph 8, exhibit B. Complaint, paragraph 9. 4 when the permit was originally issued. Plaintiff is requesting damages in the amount of $10,389.53.~3 Defendants contend that, because North Middleton Township is a local agency and Mr. Brehm is an employee of the agency, they are immune from liability in this case under the Political Subdivision Tort Claims Act.TM The act provides generally for governmental and official immunity for damages caused by the tortious conduct of a local agency and an employee of the agency, respectively.~s According to Defendants, Plaintiff's claim sounds in tort and is thus within the general purview of the act. They maintain further that no exclusion within the act applies to the claim and that a demurrer to the complaint as to both Defendants must be sustained. In the alternative, Defendants contend that Plaintiff has failed to allege with sufficient specificity facts necessary to support the allegation that the issuance of the stop-work order was arbitrary, willful, malicious, and without any basis in law or fact.TM According to Defendants, this deficiency is violative of Pennsylvania Rule of Civil Procedure 1019(a), which requires that the material facts on which a cause of action is based be stated in Complaint, paragraph 11, exhibit C. · ~4 Act of October 5, §~8541-64. 1980, P.L. 693, ~221(1), 42 Pa. C.S. ~s Defendants' Preliminary Objections, paragraphs 6-7. See Deluca v. Whitemarsh Township, 106 Pa. Commw. 325, 327 n.3, 526 A.2d 456, 457 n.3 (1987) (noting that a township is by definition a local agency for purposes of the Political Subdivision Tort Claims Act). Defendants' Preliminary Objections, paragraph 13. 5 a concise and summary form in the complaint.~7 A more specific complaint is therefore requested. DISCUSSION Demurrer The Pennsylvania Supreme Court has stated that "a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief can be granted." County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). A complaint clearly fails to state a claim for which relief can be granted when it is certain from "all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief." Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). If, however, "the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected." County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). In determining whether to grant a demurrer, a court "must consider as true all of the well-pleaded material facts set forth in [the] complaint and all reasonable inferences that may be drawn from these facts." Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). Conclusions of law set forth in the complaint, however, are not subject to the same rule of acceptance. Malia v. Monchak, 116 Pa. Commw. 484, 543 A.2d 184 (1988). ~? Id. Where the defense of immunity under the Political Subdivision Tort Claims Act "is apparent on the face of the pleading under attack," preliminary objections are a proper means of raising the issue. See Ziccardi v. School District of Philadelphia, 91 Pa. Commw. 595, 597, 498 A.2d 452, 453 (1985). To justify the grant of a demurrer in this regard, it must be apparent on the face of the complaint that the plaintiff's claims are within the purview of the act and that they do not fall within any of the exceptions to immunity enumerated therein. See Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 637, 584 A.2d 403, 407 (1990). Moreover, a plaintiff cannot avoid the immunity conferred by the act by using contract terminology to describe a tort claim. See Gilius v. Board of Supervisors, 122 Pa. Commw. 371, 376, 552 A.2d 327, 330 (1988), appeal denied, 523 Pa. 633, 564 A.2d 1262 (1989). Here, Plaintiff is using contract terminology to describe a tort claim. Plaintiff cites no authority to support his contention that a municipality enters into a social contract with its permittee each time it issues a building permit. Additionally, it has been held that a "permit issued illegally, or in violation of law, or under a mistake of fact, in and of itself confers no vested right or privilege upon the person to whom it is issued even though that person has made expenditures in reliance upon the permit." Garnick v. Zoning Hearing Bd., 58 Pa. Commw. 92, 94, 427 A.2d 310, 312 (1981) (emphasis added). Under certain circumstances a plaintiff may acquire a vested right in an existing use of land after a permit has been issued by mistake or in violation of law.~8 However, Plaintiff is not requesting that the township allow him to continue a use of his property authorized by the permit. Instead, Plaintiff requests reimbursement for damages allegedly incurred when a stop-work order was wrongfully issued. Essentially, Plaintiff's claims rest on the assertion that the township and its employee are liable for the actions of the employee in maliciously issuing a stop-work order. These claims against the defendants are more tortious in nature than contractual and are, in the court's view, within the general purview of the act. Under the act, "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." 42 Pa. C.S. ~ 8541. Additionally, "[a]n employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed ~8 The Pennsylvania Supreme Court has established a five- factor test to determine if a plaintiff has acquired a vested right in an existing use of land after the mistaken issuance of a permit allowing such use. Petrosky v. Zoning Hearing Bd., 485 Pa. 501, 402 A.2d 1385 (1979): (1) the plaintiff must have demonstrated due diligence in attempting to comply with the law, (2) the plaintiff must have shown good faith throughout the proceedings, (3) the plaintiff must have expended substantial unrecoverable funds, (4) the time for appeal of the permit must have expired without anyone appealing the issuance of the permit, and (5) allowance of the use must not adversely affect individual property rights or the public, health, safety, or welfare. Id. at 507, 402 A.2d at 1388. by this subchapter." 42 Pa. C.S. ~8545. There are eight enumerated exceptions to the grant of immunity. See 42 Pa. C.S. ~ 8542(b). A local agency or an employee thereof may be liable when injury results from: (1) the operation of a motor vehicle; (2) the care, custody or control of personal property; (3) the care, custody or control of real property; (4) the care, custody or control of trees, traffic controls, and street lighting; (5) a dangerous condition of utility service facilities; (6) a dangerous condition in streets; (7) a dangerous condition in sidewalks; and (8) the care, custody, or control of animals. The exceptions to immunity "must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability." See Lory v. City of Philadelphia, 544 Pa. 38, 43, 674 A.2d 673, 675 (1996), quoting Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d 1118, 1123 (1987). Plaintiff's claims do not fall within the real property exception to immunity because they do not involve real property in the possession of the township. Under this exception, liability is predicated upon negligence in the care, custody, and control of real property in an agency's possession. See Hough v. Dept. of Transportation, 155 Pa. Commw. 162, 624 A.2d 780, appeal denied, 538 Pa. 613, 645 A.2d 1316 (1993). Possession is total control over the premises. Sims v. Silversprings - Martin Luther School, 155 Pa. Commw. 619, 625 A.2d 1297 (1993). A municipal entity does not possess real estate merely because it inspects, licenses and 9 regulates that property through its building or zoning ordinances. See Buffalini v. Schrader, 112 Pa. Commw. 228, 535 A.2d 684 (1987). Additionally, since Plaintiff's claims against the Defendants clearly do not involve the operation of a motor vehicle, the care, custody or control of personal property, trees, traffic controls, street lighting or animals, and do not involve a dangerous condition of utility service facilities, streets, or sidewalks, Plaintiff's claims do not fall under any of the seven other exceptions to immunity enumerated in Section 8542(b) of the act. In addition to the eight enumerated exceptions to governmental immunity, Section 8550 of the act provides that an employee of a local agency who has engaged in wrongful conduct which constitutes a crime, actual fraud, actual malice, or willful misconduct is not immune from liability for injuries caused by such conduct under the act. 42 Pa. C.S. ~ 8550; Petula v. Mellody, 158 Pa. Commw. 212, 218, 631 A.2d 762, 765 (1993). By way of contrast, a local agency is immune from liability where one of its employees committed a tortious act through willful misconduct; tortious liability of a local agency may be predicated upon negligent acts only. City of Philadelphia v. Brown, 152 Pa. Commw.. 343, 618 A.2d 1236 (1992). Negligence excludes acts of willful misconduct. Deluca v. Whi~emarsh Township, 106 Pa. Commw. 325, 328, 526 A.2d 456, 457 (1987). Therefore, it is apparent on the face of the pleadings that Defendant North Middleton Township is immune from Plaintiff's claim. Because this is a tort action and no enumerated exception to the act is applicable, the demurrer as to Defendant North 10 Middleton Township must be sustained. As an employee of a local agency, Defendant Brehm is given official immunity; however, as noted above, under Section 8550 of the act an employee of a local agency who has engaged in tortious conduct which constitutes a crime, actual fraud, actual malice, or willful misconduct is not immune from liability for injuries caused by such conduct. 42 Pa. C.S. ~ 8550; Petula v. Mellody, 158 Pa. Commw. 212, 218, 631 A.2d 762, 765' (1993). In the complaint, Plaintiff asserts that the issuance of the stop-work order by Defendant Brehm "was arbitrary, willful, malicious, and without any basis in law or in fact."~9 Although Plaintiff does not plead in his complaint any evidence that would support the proposition that Defendant Brehm acted arbitrarily, willfully, maliciously, or without basis in law or fact, and may be unable to do so at trial, it cannot be said with certainty that Plaintiff will be unable to produce evidence tending to support the general averment of malice. For this reason, Defendants' preliminary objection in the nature of a demurrer must be denied as to Defendant Brehm. Motion for a More Specific Pleading Because Pennsylvania is a fact-pleading jurisdiction, a complaint must summarize the facts essential to support the plaintiff's claim as well as give the defendant notice of what the plaintiff's claim is and the grounds upon which it rests. Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235' (1992). The Pennsylvania Superior Court has noted that, "[w]hile it is Complaint, paragraph 9. 11 impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met[: (1) the pleading must be adequately clear so that the opposing party can prepare a defense and (2) the pleading] must be sufficient to convince the court that the averments are not merely subterfuge." Id. Pennsylvania Rule of Civil Procedure 1019(b) provides that "[m]alice, intent, knowledge, and other conditions of mind may be averred generally." Additionally, "when a party states a case in a manner that fully advises an opponent of the nature of the case and of the matters with which the opponent will be confronted at trial, there is no need for a motion for a more specific pleading; the opponent should seek discovery if he or she needs more information to prepare a response." 2 Goodrich-Amram 2d §1017(b):24, at 268 (1991). In the complaint, Plaintiff asserts that the issuance of the stop-work order by Defendant Brehm "was arbitrary, willful, malicious, and without any basis in law or fact."2° Such conditions of the mind may be averred generally. Additionally, the court believes that Plaintiff's complaint sufficiently advises Defendant Brehm of the nature of the case against him to allow relegation of th~ production of further information, if any exists, to the discovery process. For these reasons, the motion for a more specific pleading will be denied. Complaint, paragraph 9. 12 ORDER OF COURT AND NOW, this 2nd day of February, 1998, upon consideration of Defendants' preliminary objections to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, Defendants' preliminary objection in the nature of a demurrer is SUSTAINED and Plaintiff's complaint is DISMISSED as to Defendant North Middleton Township, and Defendants' preliminary objection in the nature of a demurrer or, in the alternative, in the form of a motion for a more specific pleading is DENIED as to Defendant Dennis D. Brehm. 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 1245 Harrisburg, PA 17108-1245 Attorneys for Defendants : rc s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 13