Urbano v. Meneses , 288 Pa. Super. 103 ( 1981 )

CERCONE, President Judge:

This case was initiated in equity by Josephine, Roland and Nicholas Urbano against Upper Merion Township, its zoning board and two of the Township’s solicitors. The defendants filed preliminary objections to the Urbanos’ complaint. The court sustained the preliminary objections of the Township and of the individual zoning board members, saying that the complaint failed to state a cause of action against the Township and that the zoning board members were immune as high public officials. The court, however, overruled the objections of the defendant solicitors. From this decision, the Urbanos and the solicitors appeal. We conclude that the appeal of the solicitors is from an interlocutory order and must be quashed. Regarding the Township, we find that the court erred in holding that the complaint failed to state a cause of action. As for the individual members of the zoning board, we conclude that these individuals enjoy immunity, but not the immunity afforded high public officials but, rather, judicial immunity.

According to the record, this dispute between the Urbanos and the defendants has been going on for some time. The Urbanos own a combination grocery store and snack bar in Upper Merion Township. In April of 1961, the Urbanos applied for a zoning variance so that they might open a restaurant and truck stop. At that time Daniel L. Quinlan, Jr. was the Township Solicitor, and Arthur R. Cummins, Charles F. McCracken, and John H. Morrell were the individual members of the Board of Adjustment (the zoning board). The Board denied the variance and further said that the Urbanos did not enjoy a nonconforming use for a snack bar. After an appeal to the court of common pleas, it was ultimately held that the Urbanos did not enjoy a nonconforming restaurant use and the Board’s other decisions were affirmed. According to the Urbanos, the members of the Board and the Board solicitor conspired to fraudulently deprive the Urbanos of the use of their property for lawful commercial purposes. The Urbanos further claim that for approximately ten years, Upper Merion Township, through its officials and agents, wilfully refused and neglected to review the Urbanos’ case or to produce the records which would support the Urbanos’ position.

During this ten year period, in 1962, the Township hired a new solicitor and the membership of the zoning board also changed. In 1962, James E. Meneses became the solicitor while Arthur R. Cummins, Charles F. McCracken, and Daniel T. McIntyre sat on the Board of Adjustment. According to the Urbanos, shortly before Meneses became the solicitor, he purchased a piece of real estate close to the Urbanos’ grocery store. In August of 1962, the Urbanos asked for a variance on their property, which request was denied by the zoning board. A few months later, Meneses, as principal in a corporation, applied for a variance on his property. The solicitor excused himself from any consideration of this matter and the zoning board granted this variance. However, this decision of the zoning board’s was subsequently reversed by the court of common pleas.

According to the Urbanos, on September 10, 1970, “certain Township records” were made available and it is alleged that these records “clearly established” fraud in the review of the Urbanos applications. The Urbanos filed the herew-ithin action with the equity court. As indicated previously, the lower court sustained the preliminary objections of the Township and of the individual zoning board members, but overruled the objections of the defendant solicitors. The Urbanos and the solicitors now appeal.

We first hold that the appeal of the township solicitors is from an interlocutory order and must be quashed. The order of the lower court, upon which these appeals rest, disposed of three matters. In the first and second part of its order, the court sustained the preliminary objections of the defendant Township and of the defendants who were members of the zoning board, and thus dismissed the Urbanos’ complaint as it pertained to the Township and board members. In this respect, the lower court’s order was final and appealable by the Urbanos. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977) (The test for finality of an order is whether the order appealed from terminated the litigation between the parties or effectively deprives the litigant of his day in court.) However, as for the defendant township solicitors; the lower court dismissed their preliminary objections, therefore, requiring them to go to trial, an order from which the solicitors appealed. Ordinarily, the dismissal of preliminary objections is an interlocutory order which is not appealable. Judicial Code, The Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended April 28, 1978, P.L. 202, No. 53, § 10(58), 42 Pa.C.S. § 5105 (Supp. 1980); Pa.R.A.P. 311, 312, 341; Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977); Estate of Shelly, 463 Pa. 430, 345 A.2d 596 (1975). An appeal will only lie from a final order unless otherwise permitted by statute. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); whenever possible, appellate review must await determination of suit notwithstanding any resulting inconvenience to a party. Id. Finality of an order exists when the practical effect of the order is to put the defendant out of court, Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), or otherwise terminate the litigation by prohibiting either party from proceeding with the action. Marino Estate, 440 Pa. 492, 269 A.2d 645 (1970); Kramer v. Kramer, 260 Pa.Super. 332, 394 A.2d 577 (1978).¹ Applying this test to the order of the lower court, it is, insofar as it concerns the township solicitors, interlocutory and not ripe for appeal. Therefore, the cross-appeal by the township solicitors must be quashed.

As for the members of the zoning board, we agree with the lower court that these individuals do enjoy immunity from suit but not as high public officials, which is the reason advanced by the equity court. Rather, we hold that in this type of matter, i. e., ruling on an individual application for a zoning permit, the members of the zoning board were acting in a judicial capacity and therefore should be afforded judicial immunity. The zoning board has a dual role, partly legislative, Appeal of Silver, 63 D&C2d 408 (1973); and partly “quasi-judicial.” Enik v. Lititz Borough, 64 Lanc.Rev. 465 (1975); Appeal of Silver, supra; Ashbourne School, Inc. v. Cheltenham Tp. Zoning Hearing Bd., 95 Montg. 356 (1975). The test to determine if a function is “quasi-judicial” is whether it involves the exercise of discretion and requires notice and a hearing. VanPelt v. State Bd. for Community Colleges & Occupational Ed., Colo., 195 Colo. 316, 577 P.2d 765 (1978); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). Courts in other jurisdictions have ruled that zoning boards are acting in a quasi-judicial function when they rule upon an application for a zoning permit for a particular piece of property (as contrasted with issuing general zoning laws). Orange County Publications Division of Ottaway Newspapers, Inc. v. Council of City of Newburgh, 89 Misc.2d 847, 393 N.Y.S.2d 298, 302 (1977); Allison v. Washington County, 24 Or.App. 571, 548 P.2d 188, 196 (1975); Thiele v. Kennedy, 18 Ill.App.3d 465, 309 N.E.2d 394, 396 (1974). Therefore, the members of the zoning board enjoy judicial immunity and have no legal responsibility in this case.

As for the Township itself, the lower court says the complaint states no valid cause of action against the Township. The equity court gives no reason for its conclusion. If the lower court is basing its decision upon a belief that the Township is immune from this lawsuit, then the court is in error. The Urbanos filed their claim against the Township on January 4, 1972. The filing and disposition of preliminary objections, for reasons which are not apparent from the record, took almost six years. In this six year period, between the filing of the Urbanos’ complaint against the Township and the court’s ultimate disposition of all pre-trial motions, the Supreme Court handed down its decision in Ayala v. Phil. Bd. of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), in which the Court abolished the doctrine of governmental immunity which protected political subdivisions of the Commonwealth from tort liability. The Urbanos, whose complaint against the Township was pending final disposition before the equity court when Ayala was decided, can rely on the Ayala decision in making out their cause of action against the Township. See Gibson v. Commonwealth of Pennsylvania, 490 Pa. 156, 165 n.5, 415 A.2d 80, 85 n.5 (1980).²

Furthermore, the Urbanos’ cause of action against the Township was not affected by the Legislature’s subsequent enactment of a statute designed to reinstitute the principles of governmental immunity in some cases, for the Legislature itself said: “Nothing in this act shall be construed to apply its provisions to any cause of action which arose or which would otherwise have arisen prior to such effective date had this act been in effect at such time.”³ Additionally, the Supreme Court, in ruling on a comparable issue arising in connection with sovereign immunity of the state, said in no uncertain terms that “a legislature may not constitutionally eliminate in toto a remedy, whether judicially or legislatively created, which has already accrued.” Gibson v. Commonwealth of Pennsylvania, supra, 490 Pa. at 162, 415 A.2d at 83 (1980). Therefore, the doctrine of governmental immunity is not a bar to the Urbanos’ cause of action and could not be used by the equity court as a basis for its ruling.

A government entity can only act through its employees. Santiago v. City of Philadelphia, 435 F.Supp. 136 (E.D.Pa. 1977). As this Court wrote in a case raising the question of liability vel non of a municipality for the acts of an off-duty police officer:

“A master is liable for the acts of his servant which are committed during the course of and within the scope of the servant’s employment. This liability of the employer may extend even to intentional or criminal acts committed by the servant. Whether a person acted within the scope of employment is ordinarily a question for the jury.” Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 106, 410 A.2d 1270, 1271 (1979).

Therefore, the question of whether the township solicitors were acting within the scope of their employment, if either solicitor is found to have acted culpably, is a question for the finder of fact. Therefore, we find that the trial court erred in summarily dismissing the cause of action against the Township.

Accordingly, the decision of equity court is affirmed as it pertains to the individual members of the zoning board and is reversed as it pertains to the Township. The appeal of the solicitors Quinlan and Meneses is quashed.

HOFFMAN, J., concurs in the result. WATKINS, J., files a concurring and dissenting opinion.

1 . All of the cases cited in this portion of our opinion were decided under the now repealed Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, Art. II, § 202, 17 P.S. § 211.202. Although this particular Act has since been repealed, it has been substantially re-enacted in relevant part by the Judicial Code, 42 Pa.C.S. § 5105 (Supp. 1980), therefore the above cases are still viable for the cited propositions.

2 . The Gibson case ruled on this same issue but in a situation involving the sovereign immunity doctrine.

3 . Section 803 of the Act of November 26, 1978, P.L. 1399, No. 330.