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DANIEL A. MARINO v. SENECA HOMES (12/31/81)

decided: December 31, 1981.

DANIEL A. MARINO, JR. ET UX.
v.
SENECA HOMES, INC. ET AL. MICHAEL BOVE T/A BOVE ENGINEERING COMPANY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Daniel A. Marino, Jr. and Marilyn L. Marino, his wife v. Seneca Homes, Inc. and The Hempfield Township Municipal Authority and Duncan, Lagnese and Associates Inc. v. Michael Bove, t/a Bove Engineering Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 140 of 1979.

COUNSEL

Thomas J. Godlewski, Godlewski & Stewart, for appellant.

Robert L. Simmons, Deputy Attorney General, for appellee, Department of Environmental Resources.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 63 Pa. Commw. Page 536]

On January 5, 1979, Mr. and Mrs. Marino (Marinos) filed a complaint in equity against Seneca Homes, Inc. and Hempfield Township Municipal Authority seeking to enjoin those defendants from discharging upon their land water from a sewage treatment plant located on a site adjacent to their property. Several additional defendants have been added to the original suit, including Michael Bove, trading as Bove Engineering Company (Bove).*fn1 Bove subsequently filed a complaint against the Department of Environmental Resources (DER) as an additional defendant,*fn2 contending that DER negligently approved plans for the sewage plant. DER filed preliminary objections to the complaint including a demurrer alleging the defense of sovereign immunity*fn3 which was sustained by

[ 63 Pa. Commw. Page 537]

    the Court of Common Pleas of Westmoreland County. This appeal followed.

Our Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) abrogated the doctrine of sovereign immunity in Pennsylvania. In response to Mayle, the General Assembly enacted the Act of September 28, 1978, P.L. 788 (Act 152),*fn4 which reinstates the doctrine of sovereign immunity except for eight categories in which immunity was specifically waived. In determining that sovereign immunity barred the action against DER, the trial court in the instant case relied upon our decision in Brungard v. Hartman, 46 Pa. Commonwealth Ct. 10, 405 A.2d 1089 (1979). In Brungard we found that Mayle did not have retroactive effect and that Act 152 could be applied retroactively. The trial court held that since Bove asserted that its cause of action accrued prior to the decision in Mayle, the defense of sovereign immunity was available to DER under Act 152. The trial court also held that none of the allegations of Bove's complaint against DER would bring it within any of the eight categories wherein the Commonwealth had waived its defense of immunity. 42 Pa. C.S. § 8522.

[ 63 Pa. Commw. Page 538]

On June 2, 1980, after the trial court's order was filed, our Supreme Court, in Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980), held that the provisions of Act 152 could not govern causes which became actionable prior to the effective date of that statute and that Mayle must be given retroactive effect. Finally, on July 21, 1980 the Supreme Court vacated the decision of this Court in Brungard. Brungard v. Page 538} Mansfield State College, 491 Pa. 114, 419 A.2d 1171 (1980). Thus sovereign immunity presently exists as a statutory defense within the limitations of Act 152 and governs causes of action which accrued on or after September 28, 1978, contrary to the opinion of the trial court which, as we have said, was rendered prior to the recent decisions of our Supreme Court.

It is now firmly established that as to causes of action which accrued prior to September 28, 1978, the defense of sovereign immunity will not lie and with respect to causes of action which accrued on or after September 28, 1978, sovereign immunity is a bar except as to those circumstances set forth in Act 152 where the Commonwealth has waived its immunity. 42 Pa. C.S. § 8522.

Notwithstanding this change in the law with respect to the defense of sovereign immunity, DER contends, nevertheless, that the order of the trial court from which this appeal has been taken should be affirmed. Acknowledging that under the law as it now exists, the critical factor which determines whether the defense of sovereign immunity may be asserted successfully by DER is the date on which the cause of action accrued, DER contends that in this case, that date is November 10, 1978. That is the date Marinos allege in their complaint that a letter was sent to Seneca Homes, Inc., who had built the sewage treatment plant, informing that party that the anticipated discharge of effluent onto Marinos' property would constitute a continuing trespass. If we conclude that ...


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