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MERNER v. DEPARTMENT HIGHWAYS (01/04/54)

January 4, 1954

MERNER, APPELLANT,
v.
DEPARTMENT OF HIGHWAYS



Appeal, No. 335, Jan. T., 1953, from decree of Court of Common Pleas of Bucks County, May T., 1952, in Equity, No. 8, in case of Carl J. Merner et ux. v. Department of Highways et al. Decree affirmed.

COUNSEL

Frederick Ely Smith, with him Ross & Smith, for appellants.

Donald W. Vanartsdalen, with him Isaac J. Vanartsdalen, for Borough of Doylestown, appellee.

Robert M. Mountenay, with him Phil H. Lewis, Deputy Attorney General, Frank F. Truscott, Attorney General and Smith & Mountenay, for Commonwealth of Pennsylvania, appellee.

William F. Heefner, with him Russell C. Bartman, Henry W. A. Hanson, Jr. and Willard S. Curtin, for State Public School Building Authority, appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 375 Pa. Page 610]

OPINION BY MR. JUSTICE JONES

The question in this case is one of jurisdiction. The plaintiffs, a husband and wife, filed in the Court of Common Pleas of Bucks County their bill in equity in which they averred their ownership of real estate located within the county and that the defendants, pursuant to a common plan for highway improvement and school property grading, had changed and diverted the natural flow of drainage water onto the plaintiffs' property with resultant serious and continually increasing damage thereto. The bill prayed for an injunction restraining the defendants from further diversion of the drainage and requiring them to install

[ 375 Pa. Page 611]

    proper conduits to correct the existing condition. Each of the defendants filed preliminary objections, questioning, inter alia, the jurisdiction of the court on the ground that, as to two of the defendants, viz., the Secretary of the Department of Highways of the Commonwealth and the State Public School Building Authority, the Court of Common Pleas of Dauphin County had exclusive jurisdiction. The learned court below sustained the objections and dismissed the bill. From the decree so entered, the plaintiffs brought this appeal.

Article I, Section 11, of the Pennsylvania Constitution provides that "Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." In an exercise of this express constitutional provision, the legislature by Act of May 26, 1931, P.L. 191, 12 PS ยง 105, vested jurisdiction of actions against the Commonwealth in the Court of Common Pleas of Dauphin County. The procedure has since been carried forward and its scope specified with greater detail for equity practice by Equity Rule 1503 (c) of the Pennsylvania Rules of Civil Procedure which provides that "An action against the head of an executive or administrative department, a departmental administrative board or commission or an independent administrative board or commission, or an officer or instrumentality of the Commonwealth may be brought in and only in Dauphin County."

The bill in the instant case was filed on June 30, 1952. The Equity Procedural Rules became effective one day later, viz., July 1, 1952: see Rule 1536. While, as a practical matter, it would make no difference in the result whether the question here involved were decided according to the ...


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