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COMMONWEALTH PENNSYLVANIA v. EVELYN M. LISHON ET AL. (09/18/79)

decided: September 18, 1979.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT
v.
EVELYN M. LISHON ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Evelyn M. Lishon and Tidewater Inland Express, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 2834 November Term, 1976.

COUNSEL

Stuart M. Bliwas, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General-Chief Counsel, and Edward G. Biester, Jr., Acting Attorney General, for appellant.

Carl K. Zucker, with him Harry Norman Ball, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Rogers. Judge DiSalle concurs in the result only.

Author: Rogers

[ 46 Pa. Commw. Page 92]

This is a suit in equity against the Commonwealth of Pennsylvania. An issue is the Commonwealth's immunity as sovereign. The suit was begun prior to July 14, 1978, the date on which the Pennsylvania Supreme Court abrogated sovereign immunity. Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). The case was first argued in this Court on September 28, 1978, the same day during which the General Assembly enacted, effective immediately, Act No. 152-1978, retroactively restoring the doctrine of sovereign immunity except with respect to eight categories of claims. The claim in this case is not within any of the eight categories. We therefore set this matter, as well as others, down for reargument in order to gain enlightenment for our consideration of the effect of both Mayle, supra and Act 152.

The appellees, Evelyn M. Lishon and Tidewater Inland Express, Inc. are, respectively, the owner and tenant of a parcel of real estate designated and known as 4185 East Thompson Street, Philadelphia. They commenced this litigation by filing a complaint in equity in the Court of Common Pleas of Philadelphia County in which they averred that the defendant Commonwealth of Pennsylvania, Department of Transportation (PennDOT), had filed a Declaration of Taking of a part of the East Thompson Street premises in August 1972; that in June 1973 the parties to their action and others had entered into a stipulation concerning the amendment of the Declaration of Taking; and that the plaintiffs' execution of the stipulation was upon condition and pursuant to an "understanding"

[ 46 Pa. Commw. Page 93]

    with PennDOT (a) that Thompson Street*fn1 would be closed off, (b) that a gate would be erected across Thompson Street, (c) that the appellees would have a key to the gate, and (d) that PennDOT would obtain for the plaintiffs a lease of land owned by the Delaware River Port Authority. The plaintiffs, here appellees, further alleged that PennDOT failed to erect the fence across Thompson Street in the manner required by the alleged "understanding" or agreement and instead had commenced construction of a fence near and across Thompson Street inconsistent with its obligation, and that PennDOT has failed to obtain for the plaintiffs a lease of land from the Port Authority. The plaintiffs' prayer for relief asks for a decree enjoining PennDOT from erecting a fence across Thompson Street in any manner inconsistent with the appellees' alleged agreement with PennDOT; ordering PennDOT to obtain a lease from the Port Authority; enjoining PennDOT from erecting a fence across any part of Thompson Street without providing the plaintiffs with access to Thompson Street and their property; and enjoining PennDOT from erecting a fence which would interfere with the use by the plaintiffs of Port Authority land.*fn2

PennDOT filed preliminary objections, one of which was a petition raising a question of the jurisdiction of the Court of Common Pleas, citing Section 401(a)(1)*fn3 of the Appellate Court Jurisdiction Act of

[ 46 Pa. Commw. Page 941970]

, Act of July 31, 1970, P.L. 673, as amended, formerly, 17 P.S. ยง 211.401(a)(1), which confers original jurisdiction of civil actions against the Commonwealth except, inter alia, "proceedings under the Eminent Domain Code," upon the Commonwealth Court. The Court of Common Pleas of Philadelphia County overruled this preliminary objection on the ground that the exception to Section 401(a)(1) for "proceedings under the Eminent Domain Code" applied because the agreement sued on arose out of an eminent domain case. Our reading of the complaint convinces us that the only connection of this litigation with "proceedings under the Eminent Domain Code" or eminent domain generally -- that the filing of an amended Declaration of Taking was the occasion or perhaps the consideration for the alleged "understanding" or agreement that PennDOT would erect a fence and obtain a lease -- is too tenuous to justify a conclusion that this case is a proceeding under the Eminent Domain Code. There is no allegation in the complaint that the eminent domain proceedings, if they have not already been completed, will be in any way involved in this equity action. Therefore, it seems to us that this Court had original jurisdiction. We will therefore vacate the order of the court below but in order to save time, treat the matter as though transferred to this Court.

As we have already noted, the Commonwealth filed a preliminary objection based on the doctrine of sovereign immunity, and in Mayle v. Pennsylvania Department of Highways, supra, the doctrine was abrogated. However, as we have also noted, Act 152 restored the doctrine of sovereign immunity with reference to some claims against the Commonwealth, including those made here, and it restored it retroactively. In ...


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