Original jurisdiction in case of Charles D. Vance and Patricia H. Vance, his wife, v. Jacob G. Kassab, Secretary of the Department of Transportation, Commonwealth of Pennsylvania, and H.J. Williams Company.
Paul L. Zeigler, with him Goldberg, Evans & Katzman, for plaintiffs.
Harry C. Jackson, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for defendant, Kassab.
Stuart M. Neely, with him Stetler & Gribbin, for defendant, H.J. Williams Company.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
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The plaintiffs, Charles D. Vance and Patricia H. Vance, his wife, seek our order restraining the Secretary of the Department of Transportation and H.J. Williams Company, a road builder, from constructing a pipe to drain water from a township road. The defendants have filed preliminary objections in the nature of demurrers raising the Commonwealth's and the Secretary's constitutional immunity from suit.
A demurrer, of course, admits as true all facts which are well and clearly pleaded, but not the pleader's conclusions or statements of law. Commonwealth's Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A.2d 909 (1971). The plaintiffs aver that they are the owners of real property*fn1 in Cumberland County; that the Secretary of Transportation has ordered the design and construction of a state highway and has engaged the defendant, H.J. Williams Company, to do the
[ 15 Pa. Commw. Page 330]
work; that as a part of the project, a township road will be relocated and improved, in connection with which a drainage pipe will be installed in lands of persons other than the plaintiffs for the collection of water running across and along the township road; that the drainage pipe will "have the effect" of discharging water onto the plaintiffs' land and across it "approximately 250 feet where it will empty into Conodoquinet Creek"; that this discharge of water will cause erosion and other unspecified damage to the plaintiffs' land; and that the pipe will cause a discharge of road tars and "other chemicals" onto the plaintiffs' land. We infer from several essentially legal averments that the plaintiffs mean to allege that tar and "other chemicals" will also reach the creek. By way of law, the plaintiffs aver that the proposed discharge of surface waters will be in violation of Section 401 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.401*fn2 (Supp. 1974-1975), and of the rights of the plaintiffs under the Constitution of Pennsylvania, Article I, Section 27.*fn3
We have concluded that the complaint must be dismissed, but not on the grounds asserted by the defendants. While the Commonwealth's immunity extends to actions for injunctive relief (Conrad v. Commonwealth, Department of Highways, 441 Pa. 530, 272 A.2d 470
[ 15 Pa. Commw. Page 331]
(1971)), suits which seek to restrain state officials from performing affirmative acts alleged to be unlawful or unconstitutional acts are not barred (Philadelphia Life Insurance Company v. Commonwealth, 410 Pa. 571, 190 A.2d 111 (1963)). Contrary to the defendants' contention, the plaintiffs do not seek affirmative action on the part of the Secretary, which would be barred by the principle of immunity, but that he be restrained from installing the drainage facilities claimed prospectively to be productive of an allegedly illegal and unconstitutional discharge of water. The cases are collected and explained in Philadelphia ...