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July 1, 1997


Before: Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Friedman.

The opinion of the court was delivered by: Friedman



FILED: July 1, 1997

Odette's, Inc. filed a complaint in equity in our original jurisdiction, seeking relief in the nature of an injunction, mandamus and declaratory judgment against the Commonwealth of Pennsylvania, Department of Conservation and Natural Resources, Bureau of State Parks (DCNR), and the Commonwealth of Pennsylvania, Department of Environmental Protection (DEP) (collectively, Respondents). Currently before this court are Respondents' Preliminary Objections to Odette's complaint.

Odette's owns certain real property upon which it operates a restaurant; the property has been used for this purpose for over 200 years. Odette's property is bordered on the west by the Delaware Canal (Canal) and on the east by the Canal's outlet. All of the property adjoining Odette's property is owned by DCNR as part of the Delaware Canal State Park. In its complaint, Odette's averred that the deterioration of the Canal walls has resulted in damage to Odette's property and restaurant; Odette's seeks to compel Respondents to perform repairs and maintenance upon sections of the Canal in the area of Odette's property. According to Odette's, these duties are incumbent upon Respondents by action of the Dam Safety and Encroachments Act (Dam Act), *fn1 the Conservation of Natural Resources Act (CNRA), *fn2 Article I, § 27 of the Pennsylvania Constitution *fn3 and the common law duty of lateral support. *fn4

We address Respondents' objections in the order of the Counts presented in Odette's pleadings. *fn5


Count I of Odette's complaint requests injunctive relief to abate the unsafe and dangerous condition of the Canal walls. Odette's alleges that DCNR has failed to carry out its statutory obligation to maintain and repair the support walls of the Canal, as required by the Dam Act. Odette's further alleges that DCNR has a constitutional obligation to preserve the Canal, its outlet, its support walls and locks and Odette's, all of which are valuable, historic, and scenic landmarks. Finally, Odette's avers that the current condition of the Canal walls constitute a dangerous condition and public nuisance.

a. Does Odette's lack capacity to sue under the Dam Act?

DCNR first argues that, because the Dam Act does not contain a citizen suit provision, Odette's does not have standing to bring suit under this act. *fn6

Odette's, on the other hand, contends that it does have standing to bring this action under the Dam Act, *fn7 which designates any unlawful conduct thereunder as a public nuisance per se, which "shall be restrained in the manner provided by law or equity for the abatement of public nuisances...." 32 P.S. § 693.19. According to Odette's, this authorizes the institution of a private suit in common law to abate nuisances resulting from failure to comply with the Dam Act. Under the common law, a citizen has standing to enjoin a public nuisance if its interest affected by the nuisance is distinguished from, and greater than, that of the general public. See Pennsylvania Society for the Prevention of Cruelty to Animals v. Bravo Enterprises, 428 Pa. 350, 237 A.2d 342 (1968). *fn8 Odette's alleges that its interest in the restaurant, and the structural integrity of the land upon which it sits, separates Odette's from the general public and gives it the interest necessary to abate the public nuisance.

We must agree with Odette's. Although many sections of the Canal are in disrepair and may present a dangerous condition to the general public, Odette's has a greater interest than the general public regarding that section of the Canal and outlet which borders Odette's property. Odette's property has already experienced significant damage resulting from the condition of the Canal walls. This past, present and potential future damage separates Odette's interest from that of the general public sufficiently to give Odette's standing to bring an action to abate what Odette's alleges is a public nuisance.

b. Is Odette's pleading legally insufficient?

DCNR next argues that Odette's pleading is insufficient because the Commonwealth is immune from the type of relief requested by Odette's and because Odette's has an adequate remedy at law. First, DCNR argues that the injunction sought by Odette's in Count I of Odette's pleading, calling for DCNR to take affirmative action, is barred by sovereign immunity. According to DCNR, the General Assembly has not waived sovereign immunity in the Dam Act.

On this issue, we return to the Discussion in our opinion and order on Odette's Motion for Preliminary Injunction, filed March 25, 1997, in which we concluded that the Commonwealth's sovereign immunity had been waived with regard to the Dam Act by virtue of the Dam Act's inclusion of the Commonwealth within the definition of "person." Section 18(a) of the Dam Act declares it unlawful for any "person" to "violate or assist in the violation of any of the provisions of [the Dam Act] or any rules and regulations adopted [thereunder]." 32 P.S. § 693.18. Thus, we concluded that, because the Dam Act provides a remedy against any person who violates the act, and because section 3 of the Dam Act includes within the definition of "person" "any department, board, commission or authority of the Commonwealth," 32 P.S. § 693.2, the General Assembly intended for Commonwealth parties to be subject to suit under the Dam Act for violations of that act. Accordingly, sovereign immunity does not bar Odette's suit under the Dam Act.

c. Does Odette's have an adequate remedy at law?

Finally, regarding Count I of Odette's pleading, DCNR last argues that, because Odette's has an adequate remedy at law, this court may not exercise equitable jurisdiction over the matter. DCNR points to other cases in which equity was denied because property owners could be monetarily compensated for damages. *fn9 DCNR argues that Odette's could be awarded damages as compensation for any damages to Odette's structures and business caused by the alleged ...

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