Cornell Narberth, LLC v. Borough of Narberth
167 A.3d 228
| Pa. Commw. Ct. | 2017Background
- Cornell Narberth, LLC sought permits to build four single-family homes; plans showed pre-engineered wood roof trusses and no automatic sprinklers. Yerkes (the Borough’s appointed inspector) approved drawings, inspections occurred, and permits issued; permits did not mention sprinklers.
- After Lot 1 was complete, the Borough refused to issue a certificate of occupancy because the Fire Code (Ordinance No. 843) required sprinklers for structures with wooden trusses; Borough acknowledged permits were issued in error and demanded correction.
- Yerkes declined to inspect further houses until sprinklers were installed; construction on Lots 2–4 stopped, causing contractual and relocation losses for Cornell and purchaser delays.
- Cornell sued the Borough and Yerkes asserting breach of contract, promissory estoppel (detrimental reliance), negligent misrepresentation (against Yerkes), and federal equal protection ("class of one"). The trial court granted summary judgment for Borough and Yerkes; Cornell appealed.
- Trial court found: permits were revocable/illusory under the UCC; promissory estoppel allegations were essentially tort/negligence barred by the Tort Claims Act; Yerkes acted on behalf of the Borough and was immune; Cornell’s equal protection evidence was insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract: did permits create an enforceable contract? | Permits + paid fees = express or implied-in-fact contract; defendants accepted benefits and should be bound. | Permits are ministerial, issued under UCC duties and therefore not a bargained-for promise; permits are revocable/illusory. | No contract: permits merely reflect statutory duties; no consideration; summary judgment affirmed. |
| Promissory estoppel (detrimental reliance): is claim exempt from Tort Claims Act? | Borough/Yerkes promised sprinklers were not required; Cornell relied and incurred costs; remedy is equitable enforcement (contract-like). | The claim is tort in substance (negligent misrepresentation) and thus barred by governmental immunity. | Claim sounds in tort (negligent misrepresentation); barred by Tort Claims Act; summary judgment affirmed. |
| Negligent misrepresentation against Yerkes: is Yerkes liable? | Yerkes supplied information/approvals foreseeably relied upon (professional duty) and should be liable (Bilt‑Rite). | Yerkes acted as the Borough’s building code official (on behalf of the Borough) and is an "employee" entitled to Tort Claims Act immunity. | Yerkes acted on behalf of the Borough and is immune under the Tort Claims Act; summary judgment affirmed. |
| Equal protection (42 U.S.C. §1983, class-of-one): was Cornell singled out without rational basis? | Borough treated Cornell uniquely (required sprinklers only for these four lots) and failed to enforce code against other similar properties; evidence shows intentional disparate treatment. | Borough’s discretionary enforcement (revocation/suspension provisions) and lack of an unconstitutional policy/custom negate §1983 liability; evidence insufficient. | Evidence insufficient to prove a municipal policy or irrational, intentional differential treatment; §1983 claim fails as a matter of law; summary judgment affirmed. |
Key Cases Cited
- Peluso v. Kistner, 970 A.2d 530 (Pa. Cmwlth. 2009) (promissory estoppel claims that are tort in substance may be barred by governmental immunity)
- Bilt‑Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005) (professionals supplying information may owe a duty under Restatement §552)
- First Pennsylvania Bank v. Department of Transportation, 466 A.2d 753 (Pa. Cmwlth. 1983) (no consideration where public agency performs duties mandated by law)
- Commonwealth v. Devlin, 158 A. 161 (Pa. 1932) (a building permit is a permit, not a contract)
- Higby Development, LLC v. Sartor, 954 A.2d 77 (Pa. Cmwlth. 2008) (third party acting on behalf of municipality as code official can be treated as an "employee" for Tort Claims Act immunity)
- Matarazzo v. Millers Mutual Group, Inc., 927 A.2d 689 (Pa. Cmwlth. 2007) (plaintiffs cannot evade governmental immunity by recasting tort claims as contract claims)