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JOHN H. LUTZKO ET AL. v. MIKRIS (12/18/79)

decided: December 18, 1979.

JOHN H. LUTZKO ET AL., PLAINTIFFS
v.
MIKRIS, INC. ET AL., DEFENDANTS



Original jurisdiction in case of John H. Lutzko, Joelene A. Lutzko, Jeffrey Kidd, Debra Kidd, Brian McCarthy, Mary McCarthy, Daniel V. Shea, Patricia K. Shea, James W. Burgess, Eula-Jean Burgess v. Mikris, Inc., Mann Homes, Inc., Robert J. Gatti, Lower Macungie Township and Commonwealth of Pennsylvania, Department of Transportation, Additional Defendant.

COUNSEL

No appearance for plaintiffs.

Lee D. Mescolotto and James J. Kutz, Assistant Attorney General, with them, Robert W. Cunliffe, Deputy Attorney General, Edward G. Biester, Jr., Attorney General, for defendants.

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

Author: Macphail

[ 48 Pa. Commw. Page 76]

On or about December 9, 1977, ten individual plaintiffs (plaintiffs) filed an action in trespass and assumpsit against Mikris, Inc., Mann Homes, Inc., and Robert J. Gatti (defendants).*fn1 The complaint in trespass alleged that defendants' negligent construction of a group of homes in a Lower Macungie Township subdivision where plaintiffs lived altered the

[ 48 Pa. Commw. Page 77]

    contour of the land and diverted natural drainage resulting in a continuous inundation and "ponding" of water on plaintiffs' land. The complaint in assumpsit alleged that defendants had breached warranties of reasonable workmanship in constructing the subdivision. Defendants filed an answer to plaintiffs' complaint and also filed a complaint joining the Commonwealth of Pennsylvania, Department of Transportation (Commonwealth) as an additional defendant. The complaint against the Commonwealth alleged that it was "alone liable" or "liable over" to the original defendants for any liability they owed to plaintiffs because the Commonwealth negligently failed to maintain proper drainage along a legislative route abutting the property and because it negligently changed the grade of the state highway without installing appropriate drainage facilities. The Commonwealth filed preliminary objections to defendants' complaint. The Court of Common Pleas of Lehigh County, upon concluding that the Commonwealth was an indispensable party to this action, transferred the case to this Court.

The matter is now before us for disposition of the Commonwealth's preliminary objections that (1) it is immune from suit pursuant to the doctrine of sovereign immunity, (2) the exclusive procedure by which the Commonwealth may be held liable for discharge of surface water is through eminent domain proceedings, not a trespass action, (3) the original defendants have alleged no facts or law upon which the Commonwealth would be liable over to them, and (4) joinder of the Commonwealth on the theory that it is "alone liable" to plaintiffs is unsupportable on the facts as alleged. We hold that the Commonwealth is subject to suit but that the case must be transferred back to the Court of Common Pleas of Lehigh County for further proceedings.

[ 48 Pa. Commw. Page 78]

We turn first to the issue of whether defendants' exclusive remedy against the Commonwealth is through eminent domain proceedings rather than by way of a trespass action. We hold that it is not.*fn2

Defendants have no standing to bring an action in eminent domain against the Commonwealth. Section 201 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess. P.L. 84, as amended, 26 P.S. ยง 1-201 defines "condemnee" as "the owner of a property interest taken, injured or destroyed, but does not include a mortgagee, judgment creditor or other lienholder." (Emphasis added.) See In Re Petition of Cornell Industrial Electric, Inc., 19 Pa. Commonwealth Ct. 599, 601, 338 A.2d 752, 753 (1975). ...


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