42 Pa. Commw. 328 | Pa. Commw. Ct. | 1979
Opinion by
Carole E. Gavoni, John L. Turner and Linda M. Turner (Plaintiffs) have appealed to this Court from the order of the Court of Common Pleas of the 26th Judicial District, Montour County Branch, sustaining the demurrer of Donald J. Martz (Martz) and the Township of Derry (Township) to Plaintiffs’ complaints in trespass and assumpsit. The Plaintiffs’ appeals have been consolidated for our disposition by prior order of court.
In their complaints, Plaintiffs allege that prior to, purchasing real estate in the Township, they applied: to the Township for a permit for the installation of a sewage disposal system for the real estate they intended to purchase. The application form was sup
Thereafter, according to the complaints, Plaintiffs purchased their real estate, installed the septic systems and built their homes. Shortly after they moved in, Plaintiffs allege that the septic systems failed to function. After consulting with numerous specialists to ascertain whether the malfunctioning systems could be corrected, Plaintiffs called the Department of Health. That department recommended a professional engineer who performed additional percolation tests on the two tracts of real estate. When the Department of Health received a report from that examination they informed the Plaintiffs that “the said land could not before and cannot now meet the requirements of the Act, and, therefore, the land cannot be used for residential purposes.” The complaint alleges that Martz was the agent, servant or employee of the Township, that Martz committed certain negligent acts prior to issuing the permit and that both Martz and the Township are liable to Plaintiffs in trespass for the damage caused to the Plaintiffs.
Plaintiffs plead in the alternative that when the Township accepted the application fee for the permit and issued the permit, Plaintiffs thereafter materially changed their position in reliance upon the permit. They aver that the improper percolation testing constitutes a breach of contract and that Martz and the Township are liable to Plaintiffs for damages in as
A municipal permit issued illegally or in violation of the law, or under a mistake of fact, confers no vested right or privilege on the person to whom the permit has been issued and may be revoked notwithstanding that he may have acted upon the permit; any expenditures made in reliance upon such permit are made at his peril____(Citations omitted.)
Thus, in Vogt, the issue decided was that the borough manager had the authority to revoke a building permit issued in violation of the borough’s zoning ordinance where no construction had yet commenced. The Vogt case was cited in Ventresca v. Exleg, 358 Pa. 98, 56 A.2d 210 (1948). Ventresca held that where a variance had been illegally and improperly granted, but where the owner had not acted upon it, the Board of Adjustment had the right and duty to revoke the variance.
In Pittsburgh v. Elman Associates, Inc., 6 Pa. Commonwealth Ct. 1, 291 A.2d 813 (1972), this Court held that where a builder had been granted a permit for construction, which permit was not revoked, the builder could not be enjoined from completing construction notwithstanding the issuance of a “stop work notice” by the city. Our Court took great pains to point out
Assuming the well-pleaded facts in the complaint before us now to be true, as we must, it is quite apparent that the Plaintiffs have brought themselves squarely within the exception to the so-called “vested right” rule as that exception is delineated in Flynn. Accordingly, we must respectfully disagree with the opinion of the trial court.
In Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), our Supreme Court held that local governmental units were no longer immune from tort liability in suits based upon the negligent acts of their employees. In King v. Sullivan, 68 D. & C. 2d 318 (1974), a case almost completely identical with the one now before us, a demurrer to a complaint alleging that a township enforcement officer negligently issued a sewer permit was
For the foregoing reasons, the order of the lower court must be reversed.
Order
And Now, this 30th day of April, 1979, the order of the Court of Common Pleas of the 26th Judicial District, Montour County Branch, dated November 14, 1977, is hereby reversed and remanded for proceedings consistent with this opinion.