Advertising Disclosure Email Disclosure

Court affirms and expands applicability of governmental immunity affirmative defense for private engineering firms.

April 1, 2018
Cornell Narberth, LLC v. Borough of Narberth, 167 A.3d 228 (Pa. Cmwlth. 2017)

Private engineering firms hired to perform a traditional government function of code enforcement for a township are protected from negligence claims by the affirmative defense of governmental immunity under § 8541, et seq. of the Tort Claims Act.

The Pennsylvania Commonwealth Court affirmed that private firms performing government functions may assert the affirmative defense of governmental immunity when sued for negligence based on their work in that function. The Borough of Narberth appointed Yerkes Associates, Inc., a private civil engineering firm, as its official inspector and had Yerkes review and approve construction drawings submitted by real estate developer Cornell Narberth, LLC, for a housing development. The court interpreted a promissory estoppel claim brought by the developer as a negligent misrepresentation claim in which the developer alleged that Yerkes failed to apprise them of the need for automatic sprinklers on the properties. The trial court granted Yerkes’ motion for summary judgment, holding that governmental immunity applied.

The court’s analysis focused on two inquiries: (1) was Yerkes considered an “employee” of the government?; and (2) did the governmental immunity protections of the Tort Claims Act apply to such an “employee”? The Court examined § 8501 of the Judicial Code, which defines an employee as “any person who is acting on behalf of a government unit.” The Commonwealth Court had previously held that this definition did not require a person or entity “to be an employee in the traditional sense, but only that the employee [act] on behalf of the governmental entity.” Higby Development, LLC v. Sartor, 954 A.2d 77, 85 (Pa. Cmwlth. 2008). The Higby defendant was also performing code enforcement on behalf of a township when it was sued by a real estate developer for tortuous interference. The engineering firm claimed governmental immunity, and the Commonwealth Court agreed, finding that the firm was deemed a government employee under § 8501 of the Judicial Code as long as it was performing work on behalf of the government entity. In Cornell, the court agreed that Yerkes was an “employee” due to its appointment as the Borough code enforcement official, a function performed on behalf of the Borough. To the second point, the Cornell court affirmed that, because Yerkes was an employee of the Borough, the governmental immunity defense under the Tort Claims Act precluded the plaintiffs’ claims in tort. The Commonwealth Court affirmed the trial court’s holding in favor of Yerkes on summary judgment.

The Cornell and Higby cases have positive implications for defendants in the architects, engineers, and construction defect realm of litigation as this line of cases indicates a willingness of the Appellate Courts to accept the affirmative defense of governmental immunity for private design and engineering professionals sued in tort. 

 

Case Law Alerts, 2nd Quarter, April 2018

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2018 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."