Delate v. Kolle

667 A.2d 1218, 1995 Pa. Commw. LEXIS 535
CourtCommonwealth Court of Pennsylvania
DecidedDecember 1, 1995
StatusPublished
Cited by28 cases

This text of 667 A.2d 1218 (Delate v. Kolle) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delate v. Kolle, 667 A.2d 1218, 1995 Pa. Commw. LEXIS 535 (Pa. Ct. App. 1995).

Opinion

DOYLE, Judge.

Thomas E. Delate appeals from an order of the Court of Common Pleas of Bucks County which granted a motion for summary judgment filed by G. Frederick Kolle, Lloyd H. Klatzkin and William T. Bueltman (collectively, Appellees).

[1219]*1219The relevant facts are as follows. Delate filed a personal injury action against Appel-lees, all of whom were members of the Zoning Hearing Board of Lower Makefield Township (the ZHB), seeking compensatory and punitive damages in excess of $15,000 for their willful misconduct in the adjudication of a zoning case heard by the ZHB during 1989 and 1990.

The zoning case from which this present case arose involved a request for a variance and/or a special exception filed by the Congregation Beth-El (Beth-El) to enable Beth-El to build a synagogue on a 5.75 acre parcel of land located in Lower Makefield Township.1 Delate, a licensed attorney acting on his own behalf and on behalf of other interested residents, opposed Beth-El’s request. After a hearing, the ZHB granted Beth-El’s request for a special exception, subject to 13 conditions. The ZHB also granted Beth-El a variance from the required number of off-street parking spaces.2

Delate, along with the other objecting neighbors appealed this decision to the court of common pleas, which remanded the case to the ZHB for a determination of the exact area of Beth-El’s lot and whether a variance from the minimum lot area requirement should be granted. The ZHB found that due to rights-of-way granted for widening existing roads surrounding the property, the actual area of Beth-El’s lot was only 4.82 acres for zoning purposes, and not 5.75 acres as previously thought. Since the minimum lot area for the proposed use was 5 acres under the Zoning Ordinance, Beth-El required a .18 acre variance in order to build the synagogue.

The ZHB subsequently granted Beth-El the additional variance, and the protesters once again appealed to the court of common pleas. After the court of common pleas affirmed, the protesters appealed to this Court. In an unreported decision,3 we reversed the trial court on the grounds that the ZHB had improperly granted Beth-El a variance from the required number of off-street parking spaces.4

Delate subsequently filed his present suit against Appellees in common pleas court, alleging that their actions in granting Beth-El a variance constituted willful misconduct and caused him damages in excess of fifteen thousand dollars. In the complaint, Delate made the following specific allegations regarding Appellees’ conduct:

9. Each Defendant abused his office to the injury and damage of Plaintiff in the course of the said Appeal(s) and in the issue of the said decisions as more particularly described hereinafter.
10. Each Defendant accepted fallacious evidence, knowing it to be fallacious, knowingly adopted fallacious evidence as part of his decision(s), and knowingly used the fallacious data as a basis for knowingly making fallacious computations that are included in his decision(s);
11. Each Defendant deliberately refused to apply the provisions of the Zoning Ordinance of Lower Makefield Township to the Application^) of Congregation Beth-El under consideration in the said Appeals;
12. Each Defendant deliberately refused to refer to, and deliberately refrained from referring to, the provisions of the Zoning Ordinance of Lower Makefield Township and of the Pennsylvania Municipalities Planning Code that he relied upon in granting the variances he granted and in reaching the other conclusions in his deci[1220]*1220sion(s), thus deliberately failing to comply ■with the provisions of section 908(9) of the Pennsylvania Municipalities Planning Code, even though Plaintiff in Plaintiffs brief had made him fully aware of this requirement;
18. Each Defendant harassed the Plaintiff and/or plaintiffs witnesses in the course of Plaintiffs presentation and in the cross examination of the witnesses for Congregation Beth-El;
14. Each Defendant deliberately refrained from correcting in his decision on remand the fallacious computations and erroneous conclusions made in his original decision.
15. Each Defendant participated in the entering of findings of Fact, Decision, and Order that granted a “de minimis” variance from the requirements of the Zoning Ordinance as to “lot” and by the use of obfuscation sought to have the variance interpreted as a variance from “lot area: minimum” and “minimum lot area” as those terms are defined and used in the Zoning Ordinance.
16. Plaintiff, solely by reason of the actions of the Defendants and each of them, was required to expand many hours and weeks of time in research, analysis, drafting, typing, travelling, taking depositions, appearing in court to appeal their decisions and orders, and performing other tasks.

(Complaint at 2-3; Reproduced Record (R.R.) at 4a-5a.)

Appellees filed preliminary objections, which were dismissed by the trial court. Ap-pellees then filed an answer in which they denied all material allegations contained in the complaint and in new matter raised the defense of governmental immunity under Sections 8541-8559 of the Judicial Code (Code), 42 Pa.C.S. §§ 8541-8559.

After discovery, Appellees moved for summary judgment, arguing that they were immune from suit since they were acting solely in their capacities as members of the ZHB, and thus Delate had failed to establish a cause of action against them. The trial court concluded that there was no evidence in the record which would establish that Appellees had engaged in willful misconduct and granted the motion for summary judgment, holding that Appellees’ conduct did not fall within the exception to immunity contained in Section 8550 of the Code.

On appeal, Delate argues that the trial court erred by concluding: (1) that Appellees are immune from suit under the Code since there was no evidence that Appellees had engaged in willful misconduct; (2) that there were no genuine issues of material fact as to whether Appellees had engaged in willful misconduct; and (3) that Appellees were entitled to judgment as a matter of law.

When reviewing an order granting summary judgment, this Court’s scope of review is limited to a determination of whether the trial court committed an error of law or an abuse of discretion. Petula v. Mellody, 158 Pa.Cmwlth. 212, 631 A.2d 762 (1993). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is clearly entitled to judgment as a matter of law. Pa.R.C.P. No. 1035(b); Downing v. Philadelphia Housing Authority, 148 Pa.Cmwlth. 225, 610 A.2d 535 (1992), petition for allowance of appeal denied, 532 Pa. 658, 615 A.2d 1314 (1992). In addition, before an order granting summary judgment may be sustained, the entire record must be viewed in the light most favorable to the non-moving party and all well pled facts must be accepted as true. Petula.

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Bluebook (online)
667 A.2d 1218, 1995 Pa. Commw. LEXIS 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delate-v-kolle-pacommwct-1995.