Appeal, No. 103, Jan. T., 1959, from order of Court of Common Pleas of Lancaster County, Equity Docket No. 11, page 304, in case of Westbury Realty Corp. et al. v. Lancaster Shopping Center, Inc. et al. Order reversed. Equity. Adjudication filed sustaining defendants' preliminary objections, and order entered, opinion by JOHNSTONE, JR., J. Plaintiffs appealed.
Carl A. Wiker, for appellants.
William C. Storb, with him Stein, Storb and Mann, for appellees.
Bernard M. Zimmerman, and Brown and Zimmerman, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE COHEN
Appellants, owners of lots in a building development known as Glenmore, and Westbury Realty Corp., owners of the unsold portion of Glenmore, brought an action in equity to enjoin the appellees from discharging surface water onto appellants' land and to provide an adequate disposal system for this water so as to discontinue further damage.
The land which appellants own is on the west side of Lititz Pike in Manheim Township, Lancaster County. Directly across the Pike, the appellees (Lancaster Shopping Center, Algon Realty Company and Sears, Roebuck & Company) own a seventeen acre tract upon which they built stores and macadamized the remaining portion. Prior to the improvement of this land by appellees, the surface water which collected was drained by means of an eighteen inch pipe which had been installed by the Department of Highways under Lititz Pike and discharged onto the land of appellants. Because natural seepage was prevented by the paving and buildings, the amount of surface water drained was greatly increased so that the eighteen inch pipe was not sufficient to accommodate this flow. The excess water flowed across the Pike onto the land of the appellants and caused water to enter the basements of the dwellings and flood the undeveloped land, making it unfit for construction purposes.
Preliminary objections, in the nature of a demurrer filed by the appellees, stated that the complaint failed to make out a cause of action upon which equitable
relief could be granted. The lower court found that since the complaint did not aver negligence or the creation of an artificial channel by which the water was collected and discharged onto appellants' land, a cause of action had not been alleged. The order sustaining the preliminary objections gave leave to appellants to file an amended complaint within twenty days. Nineteen days after the order by the court en banc, the appellants, rather than amend their complaint, filed this appeal.
Usually, where preliminary objections are sustained with leave to file an amended complaint, the action by the court is merely interlocutory and not an appealable final decree. However, where the leave to amend is limited in scope, the court's order becomes definitive and appealable. Ciletti v. ...