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KRISS v. PENNSYLVANIA TURNPIKE COMMISSION (07/31/72)

decided: July 31, 1972.

KRISS, ET UX.
v.
PENNSYLVANIA TURNPIKE COMMISSION



Original jurisdiction in case of Joseph H. Kriss and Lillie E. Kriss, his wife v. Pennsylvania Turnpike Commission.

COUNSEL

Charles B. Zwally, with him Lloyd R. Persun, Shearer, Mette, Hoerner & Woodside, John P. Lavelle and Shutack, Lavelle & Lavelle, for plaintiffs.

Jay R. Braderman, Assistant General Counsel, with him George H. Shaffer, Assistant Counsel, and John R. Rezzolla, Jr., General Counsel, for defendant.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[6 Pa. Commw. 223 Page 224]

Plaintiffs, in this action,*fn1 seek injunctive relief and monetary damages for injuries allegedly caused by the continuing trespass of the defendant Turnpike Commission.

The pertinent facts are as follows: At all times material to this case the plaintiffs have owned approximately

[6 Pa. Commw. 223 Page 2251]

,000 acres of real estate in Franklin Township, Carbon County, Pennsylvania. Plaintiffs have since 1956 conducted a fish hatchery business on this property which entails the trout stocking of approximately 67 ponds and lakes located thereon.

In 1958, pursuant to the authorization of the Act of September 27, 1951, P.L. 1430, §§ 6 et seq., 36 P.S. §§ 660.1 et seq., the Turnpike Commission exercised its power of eminent domain and acquired approximately 12 acres of plaintiffs' land for the purposes of the Northeast Extension.

The plaintiffs allege that during the construction of the Northeast Extension, the defendant caused cuts and fills in the earth adjacent to plaintiffs' land and that these cuts and fills have been left exposed without adequate drainage. This surface destruction along with the inadequate drainage has resulted, according to plaintiffs, in the washing of large quantities of mud, silt, stone and debris into plaintiffs' ponds and lakes with attendant damage to the hatchery business.

In an effort to terminate this alleged continuing trespass, plaintiffs filed a complaint in equity seeking appropriate relief. They would have this Court issue an injunction prohibiting the defendant from depositing its drainage onto plaintiffs' property; issue an order requiring the defendant to remove the debris already deposited on plaintiffs' property and further requiring the defendant to restore plaintiffs' property to the condition existing prior to the alleged trespass, and enter an award of damages.

To this complaint, the defendant Turnpike Commission has filed preliminary objections raising the issue of jurisdiction in that defendant, as an instrumentality of the Commonwealth is clothed with the immunity of the sovereign and is not subject to suit in these circumstances. The ...


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