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MILDRED STECKLEY v. COMMONWEALTH PENNSYLVANIA (10/05/79)

decided: October 5, 1979.

MILDRED STECKLEY, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DEFENDANT



Original jurisdiction in case of Mildred Steckley v. Commonwealth of Pennsylvania, Department of Transportation.

COUNSEL

John J. Krafsig, Jr., for plaintiff.

Barbara A. Brown, Assistant Attorney General, with her John L. Sweezy, Chief Attorney of Unit, Theodore A. Adler, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, DiSalle, Craig and MacPhail. Judge Blatt did not participate. Opinion by Judge DiSalle. Dissenting Opinion by President Judge Bowman.

Author: Disalle

[ 46 Pa. Commw. Page 368]

On September 8, 1978, Mildred Steckley filed a complaint in trespass against the Commonwealth of Pennsylvania, Department of Transportation (PennDOT) within the original jurisdiction of this Court. Thereafter, PennDOT filed preliminary objections to this complaint. Steckley then filed preliminary objections to PennDOT's preliminary objections. Having

[ 46 Pa. Commw. Page 369]

    had the benefit of oral argument, we now address those issues raised by these objections.

The complaint alleges that following PennDOT's construction of an extension of Route 81 in East Pennsboro Township, surface waters from the highway began draining onto Steckley's property. This drainage has allegedly caused substantial damage to both her home and the surrounding land. As a result of the ongoing nature of this situation, she maintains that a continuing trespass exists and requests compensation for the specific damage already caused to her property.

PennDOT, by way of its preliminary objections, initially challenges the jurisdiction of our Court over this matter. Specifically, the position is advanced that since Steckley is, in effect, seeking consequential damages for a de facto condemnation of her property, she should have pursued her action in accordance with the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-101 et seq. In support of this proposition, PennDOT relies upon our opinions in Lerro v. Department of Transportation, 32 Pa. Commonwealth Ct. 372, 379 A.2d 652 (1977) and Vance v. Kassab, 15 Pa. Commonwealth Ct. 328, 325 A.2d 924 (1974).

We have reviewed these cases and find them to be inapposite to the case at bar. While it is correct that both cases concern either actual or potential drainage problems caused in connection with road construction, the crucial difference between those cases and the present one is that both Lerro and Vance involved equitable actions whereas the instant case is an action at law. Moreover, Lerro involved claims sounding in trespass and nuisance to which preliminary objections were filed and sustained on the basis of sovereign immunity. It seems clear that, absent the bar of sovereign immunity, those counts would have been

[ 46 Pa. Commw. Page 370]

    considered viable. The instant case, as noted, is an action at law. In light of the preceding discussion, it follows that where, as here, a plaintiff has suffered specific damage to his or her property as a consequence of alleged negligent actions of the Commonwealth, a complaint ...


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