Erroneous Issuance of Building Permit Promissory Estoppel and Negligent Misrepresentation Governmental Immunity under Political Subdivision Tort Claims Act
Cornell Narberth, LLC v. Borough of Narberth, PICS Case No. 17-1226 (Pa. Commw. July 14, 2017) Leavitt, J. (28 pages).
Municipality and building inspector entitled to Tort Claims Act immunity for erroneous issuance of building permit, where plaintiff's claim was one for negligence rather than breach of contract. Summary judgment affirmed.
Cornell Narberth, LLC appealed the trial court's order granting summary judgment to appellees the Borough of Narberth and its building inspector, Yerkes Associates. Cornell, a real estate developer, applied to the borough for building permits to construct detached single-family homes. Before submitting applications, Cornell met with appellees' representatives, and was informed that local ordinances did not require installation of automatic sprinkler systems in detached single-family residences. Cornell then submitted construction drawings to Yerkes, showing that the homes would be constructed with pre-engineered wood roof trusses and would not have automatic sprinklers. Yerkes reviewed and approved the drawings, and the borough issued building permits, "subject to the provisions of the Borough Ordinances."
Yerkes representatives regularly visited the construction site, and upon a final inspection notified the borough to issue a certificate of occupancy. However, the borough refused to issue a certificate, informing Cornell for the first time that the borough ordinance required sprinkler systems for detached single-family homes constructed with wood roof trusses. Yerkes refused to inspect the homes until Cornell installed sprinkler systems, and construction was halted.
Cornell filed suit against appellees, alleging that because of appellees' actions, it was forced to install the sprinkler systems or breach agreements with its purchasers. Cornell alleged that its damages included the costs of installing the sprinkler systems and relocating the purchasers of the homes to other housing. Cornell asserted claims of breach of contract, promissory estoppel, negligent misrepresentation, and violation of the Equal Protection Clauses of the U.S. and Pennsylvania Constitutions.
Appellees moved for summary judgment, arguing that all of Cornell's claims were based upon negligence and were therefore barred under the Political Subdivision Tort Claims Act. Appellees further argued that Cornell's assertion of an equal protection claim was unproven at the end of discovery. Yerkes also argued that it acted as the borough's employee as building inspector and was therefore also entitled to immunity under the Tort Claims Act. The trial court granted the motion, rejecting Cornell's contractual and quasi-contractual claims as essentially negligence claims barred by the Tort Claims Act. The trial court further held that Cornell failed to adduce sufficient evidence in its equal protection claim, based on disparate treatment, to survive summary judgment, noting that it had only submitted evidence of one other property in violation of the ordinance at issue.