Original jurisdiction in cases of Pennsylvania Fish Commission v. Township of Pleasant; and The Pennsylvania Fish Commission, an agency of the Commonwealth of Pennsylvania, on behalf of the Commonwealth of Pennsylvania v. Keystone Construction Company.
No brief or appearance for plaintiff.
Dennis J. Harnish, Assistant Attorney General, with him Richard S. Ehmann, Assistant Attorney General, for additional defendant, Department of Environmental Resources.
Paul D. Shafer, Jr., with him Walker, Shafer, Dornhaffer, Swick & Bailey, for defendant, Keystone Construction Company.
James D. McDonald, with him Ted J. Padden, and Quinn, Gent, Buseck and Leemhuis, Inc., for defendant, Pleasant Township.
President Judge Bowman and Judges Crumlish, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Concurring Opinion by President Judge Bowman.
[ 36 Pa. Commw. Page 218]
The Pennsylvania Fish Commission (Commission) filed two complaints*fn1 in trespass within our original jurisdiction relating to the killing of approximately 450,000 fish in the Allegheny River in 1972. These fish are alleged to have been killed as a result of the discharge into the river of acid sludge and other waste materials from a lagoon.
The first complaint, docketed at No. 1238 C.D. 1973, named the Township of Pleasant (Township) as defendant owner of the land on which the lagoon in question is located and charged the Township with negligent maintenance and supervision of the lagoon. The second complaint, docketed at No. 472 C.D. 1975, was an action against the Keystone Construction Company (Keystone) which is alleged to have deposited the waste materials into the lagoon pursuant to an agreement with the Township. Motions were filed by the Township to join Keystone as an additional defendant and by Keystone to join the Township, and both motions
[ 36 Pa. Commw. Page 219]
were subsequently granted. Keystone also moved in each case to join as an additional defendant the Pennsylvania Department of Environmental Resources (DER) which allegedly contracted with Keystone relevant to the construction which produced the waste products concerned here, and these motions were granted as well. Presently before us and consolidated for argument are the DER's preliminary objections in each case.
Three identical objections have been made to both complaints.
First, the DER raises the issue of subject matter jurisdiction, arguing that, pursuant to Article I, Section 11 of the Pennsylvania Constitution, these actions against it as additional defendant are barred by the doctrine of sovereign immunity*fn2 and that Keystone can point to no specific legislation which permits the DER to be sued either directly or as an additional defendant. While it is certainly true that no statute does specifically permit such a suit, the DER, as an agency of the Commonwealth, may only assert the doctrine of sovereign immunity on behalf of the sovereign. In these cases, however, it was the sovereign itself, by the Commission, which initiated the actions and voluntarily submitted itself to the jurisdiction of this Court. Our research fails to disclose any previous case in which one agency of the Commonwealth has instituted a suit and another Commonwealth agency ...