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BOARD COMMISSIONERS UPPER POTTSGROVE TOWNSHIP v. RED HILL SAVINGS AND LOAN ASSOCIATION (03/03/87)

decided: March 3, 1987.

BOARD OF COMMISSIONERS OF UPPER POTTSGROVE TOWNSHIP, PETITIONER
v.
RED HILL SAVINGS AND LOAN ASSOCIATION, ET AL., RESPONDENTS



Original jurisdiction in the case of Board of Commissioners of Upper Pottsgrove Township v. Red Hill Savings and Loan Association, et al.

COUNSEL

Roger B. Wood, with him, David L. Pennington and Sherwood L. Yergey, Harvey, Pennington, Herting & Renneisen, Ltd., for petitioner.

Laura Fredricks, Deputy Attorney General, with her, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent, Department of Environmental Resources.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 104 Pa. Commw. Page 280]

In the matter now before us, the Department of Environmental Resources (DER) seeks summary judgment against the Board of Commissioners of Upper Pottsgrove Township (Commissioners) with respect to the complaint filed against DER by the Commissioners. We will grant DER's motion.

Some recitation of the procedural history of the case is necessary for an understanding of the result we have reached. In 1983, the Commissioners commenced an action in equity in Montgomery County against twenty-five defendants seeking an order from that court to abate an alleged nuisance which, the Commissioners aver, is caused by a malfunctioning community sewage system. The complaint further avers that the defendants' failure to service and repair that system has caused a pollution and health hazard in the township. The Commissioners state that the defendants have failed to obey an order of their Sewage Enforcement Officer, that they are in violation of a township ordinance regulating community sewage systems and that they are in violation of the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. ยงยง 750.1-750.20.

[ 104 Pa. Commw. Page 281]

There then followed a flurry of pleadings by defendants including counterclaims against the Commissioners who, on April 15, 1985, by praecipe for a writ of summons, joined DER and others as additional defendants.*fn1 DER filed preliminary objections to the Commissioners' complaint including an objection to the jurisdiction of the court of common pleas.

On February 25, 1986, the court of common pleas transferred the case to this Court.

[ 104 Pa. Commw. Page 282]

By prior order of this Court we overruled DER's other preliminary objections whereupon DER filed an answer*fn2 with new matter which set forth that the action against DER was barred by the defenses of sovereign immunity and the applicable statute of limitations.

DER then filed the instant motion for summary judgment, attaching thereto an affidavit and several communications from DER's file regarding relevant events in the case. The Commissioners replied to DER's motion setting forth that the applicability of either of DER's defenses cannot be determined at this time ...


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