Summary
holding PennDOT's failure to maintain proper drainage along a highway combined with the changing of the grade of the road that caused continuous flooding to neighbors fell within the "real estate" exception
Summary of this case from The St. Paul Fire Marine Ins. v. the Nolen Group, Inc.Opinion
Argued March 21, 1979
December 18, 1979.
Action — Eminent domain — Drainage from highway — Eminent Domain Code, Act 1964, June 22, P.L. 84 — Condemnee — De facto taking — Negligence — Sovereign immunity — Judicial Code, 42 Pa. C.S. § 5110 — Waiver.
1. A defendant in a trespass action charged with causing water to be cast on a plaintiffs property, who joins the Commonwealth in the action under a claim that the plaintiff's problem is the fault of the Commonwealth, is not a condemnee whose remedy is limited to proceedings under the Eminent Domain Code, Act 1964, June 22, P.L. 84, when such defendant does not own any property alleged to be harmed. [78]
2. Where an injury is alleged to have been caused to property by negligent actions of a Commonwealth employe and not as an immediate, necessary or unavoidable consequence of the exercise of the right of eminent domain, the appropriate cause of action against the Commonwealth is in trespass, not through a condemnation proceeding under the Eminent Domain Code, Act 1964, June 22, P.L. 84. [79]
3. Under the Judicial Code, 42 Pa. C.S. § 5110, the Commonwealth has waived the defense of sovereign immunity in actions for damages caused by a dangerous condition of a Commonwealth highway and in such cases jurisdiction lies with an appropriate court of common pleas. [80-1]
President Judge BOWMAN filed a dissenting opinion.
Argued March 21, 1979, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER, ROGERS, DiSALLE, CRAIG and MacPHAIL. Judge BLATT did not participate.
Original jurisdiction, No. 67 T.D. 1978, in case of John H. Lutzko, Joelene A. Lutzko, Jeffrey Kidd, Debra Kidd, Brian McCarthy, Mary McCarthy, Daniel V. Shea, Patricia K. Shea, James W. Burgess, Eula-Jean Burgess v. Mikris, Inc., Mann Homes, Inc., Robert J. Gatti, Lower Macungie Township and Commonwealth of Pennsylvania, Department of Transportation, Additional Defendant. Complaint in trespass and assumpsit in the Court of Common Pleas of Lehigh County. Defendants filed complaint joining the Commonwealth of Pennsylvania. Commonwealth filed preliminary objections. Case transferred to the Commonwealth Court of Pennsylvania. Held: Preliminary objections concerning eminent domain and sovereign immunity overruled. Case transferred to the Court of Common Pleas of Lehigh County.
No appearance for plaintiffs.
Lee D. Mescolotto and James J. Kutz, Assistant Attorney General, with them, Robert W. Cunliffe, Deputy Attorney General, Edward G. Biester, Jr., Attorney General, for defendants.
On or about December 9, 1977, ten individual plaintiffs (plaintiffs) filed an action in trespass and assumpsit against Mikris, Inc., Mann Homes, Inc., and Robert J. Gatti (defendants). The complaint in trespass alleged that defendants' negligent construction of a group of homes in a Lower Macungie Township subdivision where plaintiffs lived altered the contour of the land and diverted natural drainage resulting in a continuous inundation and "ponding" of water on plaintiffs' land. The complaint in assumpsit alleged that defendants had breached warranties of reasonable workmanship in constructing the subdivision. Defendants filed an answer to plaintiffs' complaint and also filed a complaint joining the Commonwealth of Pennsylvania, Department of Transportation (Commonwealth) as an additional defendant. The complaint against the Commonwealth alleged that it was "alone liable" or "liable over" to the original defendants for any liability they owed to plaintiffs because the Commonwealth negligently failed to maintain proper drainage along a legislative route abutting the property and because it negligently changed the grade of the state highway without installing appropriate drainage facilities. The Commonwealth filed preliminary objections to defendant's complaint. The Court of Common Pleas of Lehigh County, upon concluding that the Commonwealth was an indispensable party to this action, transferred the case to this Court.
Plaintiffs also filed suit against Lower Macungie Township. The Township, however, has not filed a complaint against the Commonwealth as an additional defendant and is not before us in this matter.
The matter is now before us for disposition of the Commonwealth's preliminary objections that (1) it is immune from suit pursuant to the doctrine of sovereign immunity, (2) the exclusive procedure by which the Commonwealth may be held liable for discharge of surface water is through eminent domain proceedings, not a trespass action, (3) the original defendants have alleged no facts or law upon which the Commonwealth would be liable over to them, and (4) joinder of the Commonwealth on the theory that it is "alone liable" to plaintiffs is unsupportable on the facts as alleged. We hold that the Commonwealth is subject to suit but that the case must be transferred back to the Court of Common Pleas of Lehigh County for further proceedings.
We turn first to the issue of whether defendants' exclusive remedy against the Commonwealth is through eminent domain proceedings rather than by way of a trespass action. We hold that it is not.
Were we to hold otherwise we would lack jurisdiction over this matter. See Section 761(a)(1)(ii) of the Judicial Code, 42 Pa. C.S. § 761(a)(1)(ii).
Defendants have no standing to bring an action in eminent domain against the Commonwealth. Section 201 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess. P.L. 84, as amended, 26 P. S. § 1-201 defines "condemnee" as "the owner of a property interest taken, injured or destroyed, but does not include a mortgagee, judgment creditor or other lienholder." (Emphasis added.) See In Re Petition of Cornell Industrial Electric, Inc., 19 Pa. Commw. 599, 601, 338 A.2d 752, 753 (1975). Defendants do not own the land alleged to have been harmed and they cannot institute eminent domain proceedings against the Commonwealth.
Defendants also are precluded from proceeding in eminent domain because there has been no condemnation of property within the meaning of that term as defined by the Code. It is true that all condemnors, including the Commonwealth, are also liable for damages to property abutting an improved area resulting from a change in grade of a road or highway regardless of whether any property is taken. This provision only applies, however, where the acts were done in the exercise of the right of eminent domain and where the damages resulted from the immediate, necessary, or unavoidable consequences of the eminent domain action. Lehan v. Department of Transportation, 22 Pa. Commw. 382, 385, 349 A.2d 492, 493 (1975). No recovery may be obtained through eminent domain proceedings where the injuries resulted from a trespass and no de facto taking may result from negligent acts committed by the agents of the condemning body. Condemnation of E. Berkshire Street, 20 Pa. Commw. 601, 605, 343 A.2d 67, 69 (1975). Because defendants may not pursue an eminent domain claim, the Commonwealth would have us leave them without remedy. We decline to do so. Cf., Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977) (where our Supreme Court declined to require plaintiff to exhaust his administrative remedies before proceeding in a court of common pleas where the administrative remedies were inadequate). Instead, we find that defendants have adequately pleaded a cause of action against the Commonwealth in trespass.
According to Section 201 of the Code, 26 P. S. § 1-201, " 'Condemn' means to take, injure or destroy private property by authority of law for a public purpose."
Section 612 of the Code, 26 P. S. § 1-612.
Since we have concluded that no condemnation occurred in this case, we find it unnecessary to address the Commonwealth's reliance on the decisions in Lerro v. Department of Transportation, 32 Pa. Commw. 372, 379 A.2d 652 (1977) and Vance v. Kassab, 15 Pa. Commw. 328, 325 A.2d 924 (1974) both of which held that the Code provides an exclusive remedy in condemnation cases.
In Steckley v. Department of Transportation, 46 Pa. Commw. 367, 407 A.2d 79 (1979), a case strikingly similar to the one before us, we stated that where "a plaintiff has suffered specific damage to his or her property as a consequence of alleged negligent actions of the Commonwealth, a complaint sounding in trespass and demanding compensation for this damage is properly stated." We see no reason to reach a different result here merely because the parties filing the complaint against the Commonwealth are the original defendants rather than the plaintiffs. We have previously held and we continue to hold that if the damage complained of "is not the immediate and necessary consequence of the [condemnor's] undertaking but flows, rather from some tortious act, the injured party must proceed in trespass." City of Pittsburgh v. Gold, 37 Pa. Commw. 438, 444, 390 A.2d 1373, 1376 (1978).
The Commonwealth argues that defendants are precluded from proceeding with this trespass action because the Commonwealth, as sovereign, is immune from suit. Although the doctrine of sovereign immunity is still applicable in Pennsylvania, its application is not unlimited. Section 5110 of the Judicial Code, 42 Pa. C.S. § 5110, provides eight exceptional situations under which the Commonwealth may be subject to suit. The Commonwealth argues that the instant case falls within none of the exceptions. Again, however, we find our decision in Steckley v. Department of Transportation to be controlling and we hold that this case falls within the fourth exception to the sovereign immunity doctrine, Section 5110(a) of the Judicial Code, 42 Pa. C.S. § 5110(a):
An action shall not be barred and the defense of sovereign immunity shall not be raised to claims for:
. . . .
(4) Commonwealth real estate, highways and sidewalks. — Damages caused by a dangerous condition of Commonwealth real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of the Commonwealth and Commonwealth real property leased to private persons, and highways under the jurisdiction of Commonwealth agencies except as limited in paragraph (5.).
Two of the Commonwealth's preliminary objections remain to be decided. Having determined, however, that the Commonwealth is a proper party to this case, we also must determine that we no longer have jurisdiction over it. Section 931 (a and c) of the Judicial Code, 42 Pa. C.S. § 931(a) and (c), requires us to transfer the case back to the Court of Common Pleas of Lehigh County for disposition of the Commonwealth's remaining preliminary objections and for any further proceedings.
ORDER
AND NOW, this 18th day of December, 1979, the preliminary objections concerning the issues of eminent domain and sovereign immunity filed by the Commonwealth of Pennsylvania, Department of Transportation are overruled. The above-captioned matter is hereby transferred to the Court of Common Pleas of Lehigh County for disposition of the Commonwealth's remaining preliminary objections and for further proceedings as necessary.
I respectfully dissent for the reasons I expressed in my dissenting opinion in Steckley v. Department of Transportation, 46 Pa. Commw. 367, 407 A.2d 79 (1979).