holding that a breach of implied warranty did not lie where a township employee negligently performed a soil percolation test
How later courts described this case
- holding that a breach of implied warranty did not lie where a township employee negligently performed a soil percolation test
Written by the judges who cited it.
The opinion
Concurring and Dissenting Opinion by
Judge Colins:
I agree with the majority that an action in negligence is barred by reason of the immunity provided in Subchapter C of Chaptér 85 of the Judicial Code, 42 Pa. C. S. §§8541-8564. However, I must dissent from the majority’s position that an action based upon a theory of estoppel may not be maintained.
The Township, via its officer, unequivocally stated that the lot was súitable for the installation of an on-site sewage disposal system. This was done knowing that the appellants would rely on this assertion and, in fact, did so rely by subsequently purchasing the lot. Whether an estoppel in pais is a matter of law or equity is moot in the instant matter, as the official recorded action of the original sewage enforcement officer qualifies as an estoppel by record which constitutes legal rather than equitable estoppel. Such an action at law, in assumpsit, is not barred by Subchapter C and, ás such, the granting of summary judgment was inappropriate.