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LOUIS J. LERRO AND MARION G. LERRO v. COMMONWEALTH PENNSYLVANIA (11/14/77)

decided: November 14, 1977.

LOUIS J. LERRO AND MARION G. LERRO, H/W, ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, LOWER MERION TOWNSHIP OF THE COMMONWEALTH OF PENNSYLVANIA AND BOROUGH OF NARBERTH OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Original jurisdiction in case of Louis J. Lerro and Marion G. Lerro, his wife, and Louis J. Lerro, Trustee, and Marion G. Lerro, Truslee v. Commonwealth of Pennsylvania, Department of Transportation, Lower Merion Township of the Commonwealth of Pennsylvania and Borough of Narberth of the Commonwealth of Pennsylvania.

COUNSEL

Clarke F. Hess, with him Stuart N. Cohen, Michael F. Beausang, Jr., and, of counsel, Butera, Bresnan, Beausang & Moyer, for petitioners.

James J. Kutz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent, Commonwealth.

Parker H. Wilson, with him Wilson, Oehrle & Drayer, for respondent, Lower Merion Township.

Morris H. Sheer, for respondent, Borough of Narberth.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by President Judge Bowman.

Author: Bowman

[ 32 Pa. Commw. Page 374]

Asserting that this Court enjoys original jurisdiction under Section 401 of the Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.401, over the causes of action they plead, petitioners allege that certain highway improvements, grading and contouring undertaken by respondents, Department of Transportation (PennDOT), Lower Merion Township (Township), and the Borough of Narberth (Borough), have resulted in flooding of and damage to portions of their property. Petitioners seek injunctive relief against the further discharge of water onto their property, money damages for the "destruction" of their property and such further relief as is deemed just and equitable as against respondents jointly and severally. Although not couched in separate counts either as to legal theories or as to individual respondents, the amended petition asserts legal theories of trespass, nuisance and de facto condemnation.

Each respondent has filed preliminary objections. Those of PennDOT raise: (1) sovereign immunity as to petitioners' theory of trespass for which money damages are sought; and (2) a challenge to our jurisdiction in equity as to the injunctive relief sought, again on sovereign immunity grounds and also on the theory that to the extent this action sounds in de facto condemnation, the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq., provides a complete and exclusive remedy. In Re: Petition of Ramsey, 31 Pa. Commonwealth Ct. 182, 375 A.2d 886 (1977). PennDOT also raises technical objections to the petition for review.

The Township and Borough raise similar preliminary objections and add that this Court lacks original jurisdiction over local governments and point out that our role in such a class of cases is that of a court of appellate jurisdiction.

[ 32 Pa. Commw. Page 375]

Because of our disposition of the preliminary objections of PennDOT, we do not reach the preliminary objections of the Township or Borough.

To the extent that petitioners assert a right to injunctive relief, this Court is without jurisdiction. Section 303 of the Code, 26 P.S. § 1-303, declares that the Code is the complete and exclusive procedure for condemnation cases, de facto or otherwise. Section ...


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