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JOHN SCHERBICK AND ELIZABETH SCHERBICK v. COMMUNITY COLLEGE ALLEGHENY COUNTY (08/14/80)

decided: August 14, 1980.

JOHN SCHERBICK AND ELIZABETH SCHERBICK, HIS WIFE, PLAINTIFFS
v.
COMMUNITY COLLEGE OF ALLEGHENY COUNTY, ORIGINAL DEFENDANT. DICK CORPORATION AND STATE PUBLIC SCHOOL BUILDING AUTHORITY, ADDITIONAL DEFENDANTS



Original jurisdiction in case of John Scherbick and Elizabeth Scherbick, his wife v. Community College of Allegheny County and Dick Corporation and State Public School Building Authority.

COUNSEL

George R. Specter, with him Arnold D. Wilner, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for plaintiffs.

John Edward Wall, Dickie, McCamey & Chilcote, for defendant.

James R. Clippinger, Assistant Counsel, for additional defendants.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 53 Pa. Commw. Page 459]

John Scherbick and Elizabeth Scherbick (plaintiffs) filed a complaint in 1973 in the Court of Common Pleas of Allegheny County, charging that the Community College of Allegheny County (College), while engaged in construction on property adjacent to plaintiffs' property, destroyed valuable trees and shrubbery belonging to plaintiffs and altered the drainage flow in the area so as to cause unlawful discharge of drainage water onto plaintiffs' property. Dick Corporation, the contractor on the job, was joined as an additional defendant by the College.

Subsequently, it was discovered that the State Public School Building Authority (Authority) was the record owner of the fee simple in the land where the construction had taken place. The court below ordered plaintiffs to join the Authority as an additional defendant

[ 53 Pa. Commw. Page 460]

    and, because the Authority was within the definition of "Commonwealth" found in Section 102(a)(2) of the Appellate Court Jurisdiction Act of 1970 (Act),*fn1 certified the matter to this Court, pursuant to Section 401 of the Act, formerly 17 P.S. ยง 211.401.*fn2

We determined that the Authority was not an indispensable party*fn3 and, on the basis of Ross v. Keitt, 10 Pa. Commonwealth Ct. 375, 308 A.2d 906 (1973), ordered the suit transferred back to the Court of Common Pleas of Allegheny County. Plaintiffs appealed this decision to the Supreme Court of Pennsylvania, which determined that the Authority was an indispensable party, vacated our decree, and remanded the case to this Court.*fn4

While this long and arduous journey through the courts of Pennsylvania was taking place, the doctrine of sovereign immunity was abrogated by the Supreme Court of Pennsylvania*fn5 and thereafter restored by the Legislature.*fn6 Because we believed that this case might be affected by the resulting evolution of the law, we asked the parties to submit briefs*fn7 addressing any jurisdictional ...


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