Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Joseph M. Florek and Mary Florek, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 4425-C of 1980.
John V. Rovinsky, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
David R. Lipka, for appellees.
Judges Rogers, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 71 Pa. Commw. Page 616]
The Commonwealth of Pennsylvania, Department of Transportation (Department) appeals from an order of the Court of Common Pleas of Luzerne County dismissing the Department's preliminary objections to the complaint of Joseph and Mary Florek in which the Floreks aver that the Department has, by permitting
[ 71 Pa. Commw. Page 617]
storm water to accumulate on their property, deprived them of its full use and enjoyment. The Floreks further aver that the offending water is collected by the impervious surface of an adjacent state highway within the Department's jurisdiction and is conducted onto and under their land by means of a storm drainage system which the Department has a duty to maintain but which has been the subject of inadequate maintenance. Finally, in their complaint the Floreks pray that a board of viewers be appointed to assess their damages related to this alleged de facto taking of their property by the Department.
The Department timely filed preliminary objections to the complaint asserting that the averments summarized above do not describe a compensable taking of the Floreks' property. An amended complaint was thereafter filed and virtually identical preliminary objections interposed with respect to the amended complaint.*fn1
Thereafter the matter of the preliminary objections was set down for argument to be conducted on June 9, 1981. The Department appeared by its counsel on the date fixed for argument and, on motion of the plaintiffs, the preliminary objections were dismissed by the trial judge for failure of the Department to have timely filed a brief as required by local Rule of Civil Procedure Number 210 which is as follows:
(a) In any case listed for argument, the proponent must furnish copies of ...