Patterson v. Lycoming County
815 A.2d 659
Pa. Commw. Ct.
2002
Check Treatment

*1 (Pа.Cmwlth.2000). In the City legislative power, exercise of its Island for residen

Council rezoned Venice of the re Although

tial use. the wisdom subject debate, may not

zoning is we City

substitute our conclusions for those ‍‌‌​​​‌‌​​​​​​‌​​​​‌‌​​​‌‌​​‌‌​​​‌‌​‌‌‌‌‌‌​‌​‌​​‌‍of whether enactment of the

Council as to

Rezoning Legislation likely to serve the health,

public safety welfare.

Id.3 reasons, foregoing

For the we reverse of the trial court.

the order December, this 23rd

2002, the order of thе Court of Common hereby Philadelphia County

reversed. PATTERSON,

Janaea Administratrix Estate of

Patterson, COUNTY, Lycoming

LYCOMING Chil Services,

dren and Youth Rob John

inson Robin Robinson.

Appeal of John Robinson

and Robin Robinson.

Argued Dec.

Decided Dec.

Reargument En Banc Denied

Feb. Mihalik, Bloomsburg,

John A. lant. Therefore, any chal floodway ‍‌‌​​​‌‌​​​​​​‌​​​​‌‌​​​‌‌​​‌‌​​​‌‌​‌‌‌‌‌‌​‌​‌​​‌‍ restrictions. granted Applicant variances

3. The Board also grant use, lenge Board’s decision density re- and dimensional from several Friendship remaining waived. variances is zoning district. On quirements in the RC-1 Adjust court, however, Zoning Group Bd. Objectors Preservation appeal to the trial City Pittsburgh, 808 A.2d 327 propriety ment challenged only the of the Board’s (Pa.Cmwlth.2002). ‍‌‌​​​‌‌​​​​​​‌​​​​‌‌​​​‌‌​​‌‌​​​‌‌​‌‌‌‌‌‌​‌​‌​​‌‍grant the Code's the variance from decision *2 in In July for care with the Robinsons Geiger, Stroudsburg, ap- Gerard J. pellee, Lycoming County Elijah seriously injured Children and August Youth Sеrvices. in while the Robinsons’ care and died as injuries.3' Patterson filed a result his Shelton, Darby,

B. Fincóurt for wrongful death action lees. alleging negligence sоns and recklessness ‍‌‌​​​‌‌​​​​​​‌​​​​‌‌​​​‌‌​​‌‌​​​‌‌​‌‌‌‌‌‌​‌​‌​​‌‍COLINS, Judge, Before President and monitor, in to and supervise, their failure

SIMPSON, J., MIRARCHI, JR., and Elijah protect while he was their custo- Judge. Senior and dy. The Robinsons filed answer at all relevant alleging new matter BY President OPINION they employees times were of CYS and COLINS. complaint’s therefore immune because the appeal John and Robin Robinson not fall allegations do within order of the Court of Common Pleas of in 42 exceptions to as set forth Lycoming County sustaining prelimi- also filed 8542. The Robinsons objections nary Lycoming County and an additional defendant County Lycoming Children and Youth Ser- seeking and CYS indem- (CYS) dismissing vices and the Robinsons’ employ- nification based their status third-party complaint against County ees of Additional defendants filed and CYS as additional defendants Ja- preliminary objections the nature of wrongful naea Patterson’s death action demurrer, the trial court sustained which the Robinsons.1 The trial court ground on the the Robinsons as foster concluded that the Robinsons were not employees of CYS. County within the mean- ing of the Politiсal Subdivision Tort Claims Facing impression, issue first (Act)2 and thus were not entitled to trial found instructive cases from indemnity by County and CYS jurisdictions par- holding other wrongful action. death county ents are hot or state for son, liability the eoun- placed purposes Patterson’s three- and thus indemnify Elijah, ty/state month-old into is not to and granted quash, we 1.The trial court the Robinsons’ re and in the context of a motion to quest interlocutory pursu to appellants amend order appeal where the dismissed the 1311(b) ant to Pa. R.A.P. so that could erroneously petition permission to filed for petition permission appeal. to for The Robin- appeal appropriate instead of the notice of erroneously sons then filed with this Court a 341(c) аppeal after that Pa. R.A.P. petition, appeal per notice of instead of a by method which to establishes the exclusive aрpeal. mission to Neither Patterson nor the appeal an order that dismisses fewer than all challenged by the method which the defendants. pursued appeal, we the Robinsons have their it. We note that in Thermo- will not address §§ 2. 42 Pa.C.S. 8501-8564. Guard, Cochran, Pa.Super. Inc. v. (1991), appellate treated a A.2d 188 court complaint alleges prior to 3. Patterson’s petition permission appeal as notice of death, hemorrhag- retinal suffered appeal and on to address the merits went buttocks, es, edema, bruising on his brain and (advising that when in doubt counsel should forehead, (Seсond right temporal area. and petition permission appeal file both a complaint, paragraph amended cor- timely аppeal preserve and a notice of the cause of oner’s lists certificate death right appeal). We considered a similar (Exhibit “pending investigation.” B death as procedural error in Womeldorf Womeldorf (Pa.Cmwlth.1995), Cooper, complaint.)) to second amended act for the apply The court on to nated to defend. went under contract Independent contractors Paper forth in Hammermill test sеt Co. and their Co., Engineering Rust 430 Pa. persons per- ployees agents (1968), to determine whether *3 govern- the forming tasks over which that particular relаtionship employer- is of legal right no of control ment unit has employee owner-independent or contrac ‍‌‌​​​‌‌​​​​​​‌​​​​‌‌​​​‌‌​​‌‌​​​‌‌​‌‌‌‌‌‌​‌​‌​​‌‍ government are not test, tor. that the court conclud Applying unit. general, ed that foster and more perennial § 42 8501. As we have Robinsons, Pa.C.S. the

specifically employ are stated, ly employee the definition of is pre ees of CYS. The sustained the of usage much than the standard broader liminary objections and dismissed the Rob- an require the term and does not insons’ the complaint possess or a employee compensated be long emplоyment formal contract as as appeal, argue On the Robinsons person acting the interest the trial court erred in government Murray Zargеr, are not of be CYS (1994); 642 A.2d 575 Wil Pa.Cmwlth. ignored statutory cause it definition of Miladin, son v. Pa.Cmwlth. employee. agree. We (1989). definition, Under that those not the Act “extends mandates that a local normally ‘employees,’ includes considered agency indemnify employee any government ‘on behalf of а acting those judgment employee entered unit, perma and is not restricted to either arising out of acts that are within the ... paid personnеl legislature nent or scope employee’s duties. classification, included a those 8548(a).4 § Indemnification is not avail ‘designated governmеnt to act for the judicially able if it is determined Miladin, unit.’” 553 A.2d at 537. We crime, employee’s actions constituted a ac definition conclude that aрplied fraud, malice, tual actual or willful miscon diving a volunteer coach was a school dis (Pa. Krause, duct. Kuzel v. employee, Zarger, triсt and to conclude Cmwlth.1995). high player that a school football was The Act defines “employee” as employee by participatiоn school district Any games its football because he was person acting who is or who has comply coaches’ instructions and with acted on behalf of a to act designated district rules and he was whether on a permanent temporary or activity, Miladin. its extracurricular basis, cоmpensated whether or not and whether within or without the territorial Applying present the definition to the unit, in- boundaries of the case, only we can conclude that any sons, cluding volunteer fireman and parents, officer, desig- appointed acting elected or member on behalf оf CYS and were capacity. nated CYS to act in this governing body person desig- or other 8548(a) injury employee caused the 4. 42 Pa.C.S. states: an act of was, good employee in and such act or that (a) Indemnity by agency generally.— local was, reasonably that such act faith believed brought against When an action is duties, scope office within the of his or damages ployee agency local employee agеncy indemnify the local shall injury person proper- account of an payment any judgment of the suit. judicially for the ty, ... and it is determined lhat custody took Patterson

responsible supervising placement care;

into foster it chose the Robinsons as

qualified parents, legal right had a

of control over the Robinson’s care and

custody Elijah Patterson.

Accordingly, the order of the trial court reversed, and the ' additional reinstated. defendants This

matter is remanded to the trial court for *4 proceedings.

further SIMPSON concurs the result

only. this 31st of December

2002, the order of the of Common Court in the above-

captioned matter is reversed and the com-

plaint against the additional defendants re-

instated. This matter is remanded to the proceedings.

trial court for further relinquished.

Jurisdiction is BOROUGH, Appellant,

BRISTOL

BRISTOL BOROUGH POLICE

BENEVOLENT

ASSOCIATION.

Argued Sept.

Decided Jan. Denied Feb.

Reargument