Zern v. Muldoon
| Decision Date | 17 October 1986 |
| Docket Number | MILLER-REIST |
| Citation | 101 Pa.Cmwlth. 258,516 A.2d 799 |
| Parties | Martin E. ZERN and Nancy E. Zern, his wife v. Charles MULDOON, Herbert Muldoon, and Phyllis Muldoon, his wife and Borough of Palmyra and Citizens Fire Company # 1 of Palmyra. Appeal of Charles MULDOON, Herbert Muldoon and Phyllis Muldoon, his wife. (Eight Cases) Cynthia A. STARR v. Charles MULDOON, Herbert Muldoon and Phyllis Muldoon, his wife and Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra and Borough of Palmyra.& ASSOCIATES, INC. v. Charles MULDOON, Herbert Muldoon and Phyllis Muldoon, his wife and Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra and Borough of Palmyra. Lester G. KOPP and Beatrice G. Kopp, his wife v. Charles MULDOON, Herbert Muldoon and Phyllis Muldoon, his wife and Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra and Borough of Palmyra. Carrie M. KROTSER v. Charles MULDOON, Herbert Muldoon and Phyllis Muldoon, his wife and Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra and Borough of Palmyra. RALCOND CORPORATION v. Charles MULDOON, Herbert Muldoon, and Phyllis Muldoon, his wife and Martin E. Zern and Nancy E. Zern, his wife, Citizens Fire Company # 1 of Palmyra and Borough of Palmyra. Michael HEISEY, t/d/b/a Heisey's Carpets v. Herbert MULDOON and Phyllis Muldoon, his wife, Charles Muldoon and Martin Zern and Nancy E. Zern his wife; Martin Zern, Individually and as agent for Martin Zern and Nancy Zern, his wife and the Borough of Palmyra and Citizens Fire Company # 1 of Palmyra. LEBANON VALLEY NATIONAL BANK, Executor of the Estate of Paul H. Nissley, Deceased v. Charles MULDOON, Herbert Muldoon and Phyllis Muldoon, his wife and Borough of Palmyra and Citizens Fire Company # 1 of Palmyra, Borough of Palmyra. |
| Court | Pennsylvania Commonwealth Court |
Timothy David Sheffey, Lebanon, F. Lee Shipman, David C. Miller, Harrisburg, Frederick S. Wolfson, Charles Paul Buchanio, Lebanon, Kenneth Carl Sandoe, Myerstown, David E. Lehman, Harrisburg, Joseph M. Farrell, Palmyra, for appellees.
Before CRUMLISH, Jr., President Judge, and COLINS, J., and BARBIERI, Senior Judge.
Before us are several complex appeals by a variety of individuals and a corporate petitioner whose property interests have been adversely affected by an extensive fire on September 8, 1978.
The Citizens Fire Company # 1 of Palmyra was summoned on that date to fight a fire in a building owned by Edward Zern. The fire had started in the kitchen of a restaurant located therein, which was operated by Charles Muldoon. When the firefighters arrived on the scene, they observed flames in the exhaust system of the kitchen area. The fire chief went to the basement and turned off the electricity disengaging the exhaust system. Other firefighters climbed to the roof and attempted to fight the fire through a vent. These and other efforts failed. The building suffered extensive damage and was subsequently razed.
Eight separate lawsuits were subsequently filed in Lebanon County Common Pleas Court in which the Plaintiffs, the majority of whom were other tenants in the building, sought to recover damages from Muldoon and/or Zern. Muldoon in turn joined the fire company as an additional defendant in each suit. The fire company filed motions for summary judgment in which it sought that the actions be dismissed as to it because (1) the joinders of the fire company were prohibited by 42 Pa.C.S. § 5522 for failure to give the statutorily required six months notice of a claim and (2) the suits against it were barred by governmental immunity. 1
In Nos. 79 T.D. 1983 through 85 T.D. 1983, the trial court granted summary judgment in favor of the fire company, concluding as a matter of law that volunteer fire companies were entitled to the common law defense of governmental immunity. In No. 86 T.D. 1983, it granted summary judgment in favor of the fire company, finding that the fire company was entitled to the six-month notice of claim against a government unit as provided in 42 Pa.C.S. § 5522 and suggesting also that it would grant the motion on the grounds of governmental immunity.
Our scope of review of a trial court order granting summary judgment is limited to whether an error of law was committed or whether the trial court abused its discretion. Nordmann v. Commonwealth, 79 Pa.Commonwealth Ct. 187, 468 A.2d 1173 (1983).
To decide these appeals, we must define the legal relationship between volunteer fire companies and the local municipalities they serve. In pursuit thereof, we will first examine the origin and development of volunteer fire companies in this Commonwealth.
An early, exhaustive recitation of the history of firefighting in the City of Philadelphia is found in Harmony Fire Co. v. Trustees of the Fire Association, 35 Pa. 496 (1860). Justice Read there referred to the first laws governing fire protection which required homeowners to store two leather buckets in each dwelling so that an ample supply would be available when the primitive human "hand to hand" water chain was needed to fight a community fire. Between 1700 and 1736, the city, by then incorporated, provided the means to fight fires. It purchased its first engine in 1718. As the population surged and technology advanced, the need for a stronger firefighting force grew. An infamous fire at "Budd's long row" in 1736 was the disaster which focused the imperative demand for a more practical, better organized system for the control of fire in this densely populated residential, commercial and industrial area. The local citizenry banded together and formed independent organizations whose unpaid members formed the first "Volunteer Fire Companies," e.g., Benjamin Franklin'sUnion Fire Company, the Hand in Hand, the Heart in Hand and the Friendship.
These volunteer companies effectively replaced the City's early efforts to combat fires and, in 1811, the City, recognizing their contribution, began appropriating monies to the companies. The divergent companies then combined to form the "Fire Association of Philadelphia," which administratively governed disputes among the member companies and regulated their financial and equipment requirements.
City of Philadelphia, 2 in 1855 assumed total responsibility for fire prevention and control of volunteer fire companies by establishing and funding its Fire Department. Its officers consisted of a chief engineer, his seven assistants, and a secretary, all of whom were salaried. These officers were responsible to the City Administration for the organization and control of the volunteer fire companies which, having met certain equipment standards, were assigned fire duty in specific geographic areas. The volunteer companies, which still performed the actual firefighting duties, were funded by a conglomerate of interests viz. the City, insurance companies, businessmen, property owners, and the actual firefighters.
On March 15, 1871, following numerous hostile clashes among volunteer fire companies over territorial jurisdiction, equipment need and even political differences, the City enacted a resolution which established a permanent fully funded fire department.
Although this marked the demise of the volunteer force in Philadelphia, volunteer fire companies still maintain a strong presence to this day throughout this Commonwealth. Many of these volunteer fire companies are supported by the statutorily created relief associations, 3 which control the economic and social agenda of the companies.
The unique structural development of these volunteer fire companies presented difficult questions of law respecting funding and liability for damages caused by the discharge of their duties.
To enable the City of Philadelphia to fund its newly formed fire department, foreign fire insurance companies 4 operating in that city were required by the Act of May 7, 1857, P.L. 423, to pay two percent of their annual premiums received to the Philadelphia Association for the Relief of Disabled Firemen, a state-created association 5 which aided disabled firemen, their families and persons injured by fire apparatus.
In Philadelphia Association for Relief of Disabled Firemen v. Wood, 39 Pa. 73 (1861), the Supreme Court declined to enforce a bond posted by a foreign insurance company pursuant to the Act when it had failed to pay the assessment. The Court doubted the constitutionality of the Act because it viewed the levy as a transfer of earnings from one class of men to another. The Supreme Court, in so holding, described the relief association:
This is an association for charitable purposes, it is true, but still it is strictly a private corporation. No public officer has any official knowledge of its existence, or of its members, organization, or acts. It renders no account of its proceedings or of its funds. It is a close corporation, fixing its own terms of membership, and changing its organization but not its object, as it pleases.
The legislature, in 1895, enacted a similar tax on foreign fire insurance companies. Act of June 28, 1895, P.L. 408. The tax upon gross premiums was paid to the State Treasurer who distributed the funds to the treasurers of political subdivisions. It appears that the funds were often used by municipalities to aid volunteer firefighters and their relief associations. In Commonwealth v. Barker, 211 Pa. 610, 61 A. 253 (1905), and Firemen's Relief Association v Scranton, 217 Pa. 585, 66 A. 1103 (1907), annual appropriations to volunteer firefighting associations were upheld even though the...
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... ... fire companies, because of their distinct creation and present relationship to municipalities, presently enjoy governmental immunity." Zern v. Muldoon, 101 Pa.Cmwlth. 258, 516 A.2d 799, 805 (1986) (emphasis added), appeal dismissed, 518 Pa. 75, 541 A.2d 314 (1988). The court reasoned: ... ...
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