Appeal, No. 23, May T., 1955, from decree of Court of Common Pleas of Dauphin County, No. 2115, Equity Docket 130, Commonwealth Docket 1954, in case of H. Ward Ewalt, Jr., et ux. v. Pennsylvania Turnpike Commission. Decree reversed.
William H. Markus, with him Elmer E. Harter, Jr., and Prowell & Harter, for appellants.
F. Brewster Wickersham, with him Harry C. Pepper and Metzger, Wickersham & Knauss, Counsel for Pennsylvania Turnpike Commission, Edward L. Springer, Deputy Attorney General, and Herbert B. Cohen, Attorney General, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiffs, husband and wife, filed their bill in equity in the Court of Common Pleas of Dauphin County against the Pennsylvania Turnpike Commission in an effort to compel the defendant to restore the complainants' property to its condition prior to the defendant's construction of the western extension of the turnpike. The defendant filed a preliminary objection in the nature of a demurrer under Pa. R.C.P. 1017(b)4 to the effect that the Pennsylvania Turnpike Commission, being an instrumentality of the Commonwealth of Pennsylvania, was immune from suit for consequential damages to real estate which is what the complaint embraced. After argument, the court entered a decree sustaining the objection and dismissing the bill at the plaintiffs' costs. This appeal by the plaintiffs followed.
The learned court below impliedly held that the Section of the Western Pennsylvania Turnpike Extension Act of 1941, P.L. 101, 36 PS § 654 et seq., which purports to give a right of action to a public or private owner for property damaged or destroyed in the Commission's carrying out of the powers conferred by the Act was unconstitutional, saying that "Since the Turnpike Commission is an instrumentality of the Commonwealth engaged in an essential governmental function, inability for consequential damages may not be imposed
upon it without notice thereof being given in the title."
The complaint avers the plaintiffs' ownership of property situate on Pearce Mill Road in Pine Township, Allegheny County, Containing 10,725 acres more or less and improved with a two-story brick and frame dwelling; that the defendant by resolution of June 14, 1949, condemned a 200 foot right of way with slopes for the construction of the western extension of the turnpike which ran through Pine Township at a distance of approximately 600 feet from the plaintiffs' property; that prior to the time of the defendant's construction of the turnpike extension in Pine Township pursuant to the above-mentioned resolution, there was on the plaintiffs' property a lake, one and three-quarter acres in area, which was fed by the waters of Pine Creek and was well stocked with fish and other aquatic life; that in the construction of the turnpike the defendant made great cuts and fills in the hills and valleys for a distance of several miles both east and west of the intersection of the turnpike and Pearce Mill Road; that such cuts and fills were left exposed with the result that through erosion large quantities of dirt, stones and debris were washed into Pine Creek and carried into the plaintiffs' lake; and that the defendant continues to permit the slopes of the cuts and fills, created in the construction of the turnpike, to be eroded and discharged into the plaintiffs' lake to such an extent that the lake is becoming filled with the eroded earth, stones and debris, and all the fish and aquatic life formerly in the lake have been killed by the defendant's failure to maintain and operate the turnpike properly.
The complaint further sets forth that the defendant's conduct in permitting the earth and dirt of the slopes of the highway ...