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BOROUGH JEFFERSON v. CENTURY III ASSOCIATES ET AL. (06/18/81)

decided: June 18, 1981.

BOROUGH OF JEFFERSON, PETITIONER
v.
CENTURY III ASSOCIATES ET AL., RESPONDENTS



Original jurisdiction in case of Borough of Jefferson v. Century III Associates; USS Realty Corporation, a corporation; The Edward J. DeBartolo Corporation, a corporation; Borough of West Mifflin, a Pennsylvania municipal corporation; Department of Environmental Resources of the Commonwealth of Pennsylvania; and Department of Transportation of the Commonwealth of Pennsylvania.

COUNSEL

Lloyd H. Fuge, for petitioner.

Donald C. Fetzko, for respondent, Borough of West Mifflin.

John J. McLean, Jr., Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for respondent, Century III Associates and The Edward J. DeBartolo Corporation.

Eric P. Reif, Reed, Smith, Shaw and McClay, for respondent, U.S.S. Realty Division of United States Steel Corporation.

Richard S. Ehmann, Assistant Attorney General, for respondent, Department of Environmental Resources.

Jeffrey L. Giltenboth, Special Assistant Attorney General, with him, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent, Pennsylvania Department of Transportation.

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

Author: Rogers

[ 60 Pa. Commw. Page 96]

The Borough of Jefferson (Borough) filed a complaint in equity in the Court of Common Pleas of Allegheny County, naming as defendants the Pennsylvania Department of Environmental Resources (DER), the Pennsylvania Department of Transportation (PennDot), the Borough of West Mifflin (West Mifflin) and three private enterprises which we gather from the complaint built a shopping center called Century III Mall in West Mifflin Borough. The gravamen of the single count of the complaint is that, from 1979 until the present, the defendants' negligent and unreasonable actions, (or, in the cases of DER, PennDot and West Mifflin, the defendants' negligent and unreasonable inaction) have caused damage to certain roadways, sewers and other facilities due to increased water runoff from the shopping center. The plaintiff asks for injunctive relief and money damages.

DER, PennDot and West Mifflin each filed preliminary objections. The DER's and PennDot's objections included, inter alia, a challenge to the trial court's jurisdiction based upon Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. ยง 761(a)(1), which vests original jurisdiction of civil actions against the Commonwealth government in the Commonwealth Court. The trial court considered only the preliminary objections of DER and PennDot based on jurisdiction and properly transferred this matter to our Court. Thus, we now have before us the remaining preliminary objections of DER, PennDot and West Mifflin.

DER and PennDot contend that the Borough's claims against them are barred by the doctrine of sovereign immunity and that they must fall before its demurrer. We agree.

The complaint alleges that DER and PennDot, as the Defendants with regulatory authority over the [Mall] ...


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