Breiner v. C & P Home Builders, Inc.

• Decision Date: 28 May 1976
• Docket Number: Nos. 75-2114,75-2172,s. 75-2114
• Citation: 536 F.2d 27
• Parties: Howard B. BREINER, Jr., and Doris Louise Breiner, Husband and Wife v. C & P HOME BUILDERS, INC., et al. (two cases). Appeal of SCHNELLMAN CONSTRUCTION COMPANY and Meinrad Schnellman. Appeal of BOROUGH OF ALBURTIS et al.
• Court: U.S. Court of Appeals — Third Circuit

Page 27

536 F.2d 27

Howard B. BREINER, Jr., and Doris Louise Breiner, Husband and Wife v. C & P HOME BUILDERS, INC., et al. (two cases) Appeal of SCHNELLMAN CONSTRUCTION COMPANY and Meinrad Schnellman Appeal of BOROUGH OF ALBURTIS et al.

Nos. 75-2114, 75-2172.

United States Court of Appeals Third Circuit.

Argued March 25, 1976.

Decided May 28, 1976.

Richard W. Hopkins, White and Williams, Philadelphia, Pa., for Schnellman Const. Co. and Meinrad Schnellman, appellants.

Raymond T. Cullen, Ray R. Brennen, James L. Weirbach, Allentown, Pa., Morgan, Lewis & Bockius, Philadelphia, Pa., for Borough of Alburtis, A. L. Wiesenberger Associates, Inc., and Jerome J. Polachek, appellants.

Thomas F. Traud, Jr., Roberts and Traud, Allentown, Pa., for appellees.

OPINION OF THE COURT

Before SEITZ, Chief Judge, ROSENN and GARTH, Circuit Judges.

ROSENN, Circuit Judge

The construction of residential housing areas on heretofore undeveloped rural land is a hallmark of twentieth century America. The dislocations which often follow in the wake of such construction give rise to this case.

Plaintiffs, Doris Louise Breiner and her husband, Howard B. Breiner, Jr., own a forty-two acre farm in Lower Macungie Township in Lehigh County, Pennsylvania. They filed suit in the United States District Court for the Eastern District of Pennsylvania The subdivision development was undertaken by Meinrad Schnellman, who constructed about 38 houses over approximately seven years through his unincorporated business, Schnellman Construction Company (collectively "Schnellman"), and C & P Home Builders, Inc., the stock of which was wholly owned by Schnellman and his wife. Schnellman and his two companies were joined as defendants and charged with "negligence and carelessness in the construction, maintenance and use of the premises where the construction took place and adjoining roads" which allegedly caused the flooding of the Breiner farm.

¹ alleging that the residential development of a tract of real estate, adjacent to their farm but located in the neighboring Borough of Alburtis, had increased the flow of surface water onto their land so that they could no longer grow strawberries commercially.

A fourth defendant, the Borough of Alburtis ("Borough") issued building permits to C & P Home Builders for construction of single family residences in the Borough. The Breiners aver that the Borough was negligent and careless in "granting a building permit and failing to encore (enforce?) such as to prevent abnormal drainage of surface water and to permit the constructors to divert the normal flow of surface water."

The Borough engineers, A. L. Wiesenberger Associates, Inc., and the individual engineer assigned to Borough matters, Jerome J. Polachek (collectively "engineers"), are the other two defendants herein. The Breiners charged them with negligently preparing a subdivision plan which failed to provide for adequate surface drainage. The record shows that they did not themselves prepare a plan but rather approved the one submitted to the Borough Council by Schnellman, which the district court deemed sufficient for liability.

The case was tried to a jury. After plaintiffs had rested, the district judge granted C & P Home Builders' motion for a directed verdict since it was merely a land holding company and was not actively involved with construction activities. The remaining defendants were found liable in the sum of $36,130.

Schnellman moved for a new trial on the ground that the district judge had erred in his charge to the jury. The Borough and its engineers moved for judgment notwithstanding the verdict and for a new trial. The district court denied all the motions and entered judgment in favor of the Breiners. Breiner v. C & P Home Builders, Inc., 398 F.Supp. 250 (E.D.Pa.1975). Defendants appeal.

We affirm the judgment against Schnellman personally and Schnellman Construction Company. We reverse, however, as to the Borough and its engineers and direct the district court to enter judgment in their favor.

I.

Schnellman objects to the judge's charge that liability could be premised on an intentional discharge of water as well as on a negligent discharge. Including intentional conduct as a basis for liability would not appear to prejudice Schnellman as it places the burden on the Breiners to prove actual knowledge. At oral argument in this court, however, Schnellman revealed his understanding of the charge was that he could be held liable merely for his intentional operations upon the land, for example, building houses or roads.

This interpretation of the charge is entirely unfounded. The district judge quite plainly did not instruct the jury that Schnellman could be found liable on some theory of strict liability for his actions in developing the land. The judge charged Schnellman may not have actually known in performing this work that there would in fact be an unreasonable discharge of surface water on the Breiner property, but you may conclude that a reasonable person in his position should have known and that would be negligence. If you find that he actually knew, then that would be intentional.

Since Schnellman concedes that the instruction as to negligence was proper, we see no way in which he could have been harmed by the addition of an instruction on intentional torts. We, therefore, affirm the judgment against him and his company.

II.

The Borough asserts that it cannot be held liable for issuing building permits and approving Schnellman's final plan due to the discretionary nature of these decisions. We recognize that there is an exception for the performance of a discretionary function in the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (1971). See Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). We also understand Pennsylvania cases on official immunity distinguish between discretionary and ministerial acts. United States ex rel. Fear v. Rundle, 506 F.2d 331, 335 (3d Cir. 1974), cert. denied, 421 U.S. 1012, 95 S.Ct. 2416, 44 L.Ed.2d 679 (1975).

As to municipalities, however, Pennsylvania follows the fundamental principle that "liability follows tortious conduct," and its Supreme Court recently stated that it could see no reason "for permitting governmental units to escape the effect of this fundamental principle." Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877, 882 (1973). Ayala unequivocally and unqualifiedly abrogated the doctrine of governmental immunity, expressly including within its sweep the immunity of municipal corporations. Id. at 884-86 n.8.

Writing for the majority of the Pennsylvania Supreme Court, Mr. Justice Roberts roundly condemned the traditional differentiation of the immunity doctrine between governmental and proprietary functions, a distinction which has been termed "probably one of the most unsatisfactory known to the law." 3 Davis, Administrative Law Treatise § 25.07 at 460 (1958). In doing so, the court apparently left no exception for the exercise of a discretionary function:

Moreover, "where governmental immunity has had the effect of encouraging laxness and a disregard of potential harm, exposure of the government to liability for its torts will have the effect of increasing governmental care and concern for the welfare of those who might be injured by its actions." Note, The Discretionary Exception and Municipal Tort Liability: A Reappraisal, 52 Minn.L.Rev. 1047, 1057 (1968). ²

We must conclude that, after Ayala, municipal corporations may no longer escape the impact of liability for their activities behind the doctrinal shield of discretion. Hence, we proceed to the merits of the Breiners' claims against the Borough.

Although the Breiners' complaint charged the Borough with negligence in issuing building permits and failing to police the construction adequately, at trial they apparently developed another theory of liability on which the district judge relied to support his denial of judgment notwithstanding the verdict. According to this theory of liability, the Borough's approval of Schnellman's final plan violated its own subdivision ordinance because the ordinance would have required Schnellman to submit a formal drainage plan, which he did not do. The Borough contends that the ordinance did not apply to Schnellman because he had originally submitted his plan before the adoption of the ordinance. Further, even if the ordinance was applicable, it would not have compelled the Borough Council to require the submission of a drainage plan or to require a mechanical drainage system.

The ordinance, containing "Land Subdivision Regulations" adopted pursuant to authority granted by the Act of July 19, 1951, Although the Borough Council did not approve the resubmitted plan until seven years had passed, it continued to issue building permits for the subdivision during that time. Engineer Polachek testified that he delayed approval of the plan in an attempt to force Schnellman to provide surface drainage in a portion of the subdivision unrelated to the Breiner farm. Having failed in his efforts, he stated in a memorandum to the Borough Council:

P.L. 1026, Section 16, took effect on February 1, 1960. Six months earlier, Schnellman had submitted his first subdivision plan to the Borough Council, which directed its engineer to review it. The plan was returned to Schnellman ³ and resubmitted almost a month after the adoption of the subdivision ordinance.

The developer has failed to indicate on his drawings the means of storm drainage disposal.

Despite this notice, the Borough did not require Schnellman to remedy the implied deficiency of his final plan and approved the plan upon certification by its engineer six months later.

The Borough and its engineers were acting at all times on the advice of the Borough solicitor that Schnellman's plan was not subject to the subdivision ordinance. The district judge, however, found that the resubmission of...