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JACOB GORDON ET AL. v. GEORGE PULAKOS ET AL. (01/11/80)

decided: January 11, 1980.

JACOB GORDON ET AL., PLAINTIFFS
v.
GEORGE PULAKOS ET AL., DEFENDANTS. ALBERT E. YOUNG, INC. ET AL., PLAINTIFFS V. MILLER & BROWN CONSTRUCTION CO., INC., DEFENDANTS. ALBERT E. YOUNG, INC. ET AL., PLAINTIFFS V. GEORGE PULAKOS ET AL., DEFENDANTS



Original jurisdiction in cases of Jacob Gordon et al., Plaintiffs v. George Pulakos et al., Defendants, Albert E. Young, Inc. et al., Plaintiffs v. Miller & Brown Construction Co., Inc. Defendants and Albert E. Young, Inc. et al., Plaintiffs v. George Pulakos et al., Defendants.

COUNSEL

Michael A. Kramer, with him Steven Kapustin, Arthur Nakazato, of Kramer and Salus, for plaintiffs.

Marie Inyang, Special Assistant Attorney General, for George Pulakos and Commonwealth of Pennsylvania, Department of Transportation, defendants.

Alfred Sarowitz, for Slattery Associates, Inc., defendant.

Gerald A. Inglesby, for Philadelphia Gas Works, defendant.

John J. Tinaglia, with him Andrew R. Rogoff, for Philadelphia Electric Company, defendant.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judges Crumlish, Jr. and DiSalle concur in result only. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Macphail

[ 48 Pa. Commw. Page 444]

These cases are before us because they arguably fall within the original jurisdiction of this Court pursuant to Section 761 of the Judicial Code (Code), 42 Pa. C.S. ยง 761. We find, however, upon an examination of the briefs and records submitted to us, that we do not have jurisdiction over these proceedings and, therefore, must transfer them back to the Court of Common Pleas of Philadelphia County where they originated.

A summary of the procedural history in these cases will be helpful to an understanding of our disposition. All three cases arose out of alleged injuries caused to Plaintiffs*fn1 by Defendants*fn2 during the construction of the Delaware Expressway (Interstate 95) and the Frankford elevated train station in the City of Philadelphia. All of the Plaintiffs own or lease commercial businesses or property within the area of the construction and all of the Defendants have allegedly participated in the construction projects. Plaintiffs in No. 28 T.D. 1979 originally filed a suit in trespass*fn3 against Defendants in that case in the Court of

[ 48 Pa. Commw. Page 445]

Common Pleas of Philadelphia County. The same Plaintiffs then filed a second suit in trespass against Defendant Miller & Brown Construction Company (No. 26 T.D. 1979). Defendants Pulakos and Department of Transportation filed preliminary objections with the Court of Common Pleas alleging, inter alia, that the Court lacked jurisdiction over the suit because original jurisdiction of cases brought against the Commonwealth or its officers acting in their official capacity rested with the Commonwealth Court. The Court of Common Pleas agreed with the Secretary and Department and ordered that No. 26 and No. 28 be consolidated and transferred to this Court. The trespass action filed by Plaintiffs in No. 21 T.D. 1979 was also transferred to this Court.

All of the Defendants, with the exception of Scruggs and the City of Philadelphia, have preliminary objections pending before us. In essence, the objections challenge Plaintiffs' complaints as improperly alleging a cause of action in trespass rather than in eminent domain, as failing to state a cause of action in trespass, and as being so unspecific as to preclude Defendants from answering the complaints. None of the Defendants have challenged our jurisdiction to hear this case. Nevertheless, a Court may raise sua sponte the issue of its own subject matter jurisdiction. McMahon v. Pennsylvania Liquor Control Board, 42 Pa. Commonwealth Ct. ...


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