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Kusher v. Woloschuk

Commonwealth Court of Pennsylvania

May 14, 2015

Frank R. Kusher and Barbara A. Kusher, Husband and Wife, Appellants
v.
Robert Woloschuk and Kathy Woloschuk, Husband and Wife; James Excavation, Inc. and Commonwealth of Pennsylvania, Department of Environmental Protection

Argued April 13, 2015.

Appealed from No. 2012-3988. Common Pleas Court of the County of Cambria. Kiniry, J.

Russell J. Heiple, Johnstown, for appellants.

Dennis J. Stofko, Johnstown, for appellees Robert and Kathy Woloschuk.

Michael J. Parrish, Jr., Johnstown, for appellee James Excavation, Inc.

Charney Regenstein, Assistant Counsel, Pittsburgh, for appellee Department of Environmental Protection.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE McCULLOUGH.

OPINION

Page 342

PATRICIA A. McCULLOUGH, JUDGE.

Frank R. Kusher and Barbara A. Kusher (together, the Kushers) appeal from the April 30, 2014 order of the Court of Common Pleas of Cambria County (trial court), which held that the Pennsylvania Department of Environmental Protection (DEP) was an indispensable party and dismissed the Kushers' amended complaint for lack of jurisdiction. The Kushers also appeal from the May 20, 2014 order of the trial court that denied the Kushers' motion to transfer the case to this Court.

The Kushers and Robert Woloschuk and Kathy Woloschuk (together, the Woloschuks) are adjacent landowners. (Reproduced Record (R.R.) at 6a.) DEP issued water obstruction and encroachment permits on October 6, 2010, and November 4, 2010,[1] to Robert Woloschuk, authorizing him to complete stormwater drainage work on the Woloschuks' property and to properly connect the Woloschuks' water drainage pipe to the Kushers' water drainage pipe, including installing a new manhole. (Supplemental Reproduced Record (S.R.R.) at 40b-51b.) James Excavation, Inc. (James Excavation), the Woloschuks' contractor, performed the work. (R.R. at 7a.)

On November 6, 2012, the Kushers filed a complaint in ejectment and trespass against the Woloschuks and James Excavation, alleging that the Kushers never agreed to the work being performed on their property pursuant to DEP's issued permits. The Kushers averred that this work clogged their water drainage pipe, causing a potential flood risk. (R.R. at 5a-8a.) The Kushers sought to have the Woloschuks and James Excavation removed from the property and to " [c]ease any and all activities on their property to include extending a water line and excavating and [d]epositing fill onto their property."

Page 343

(R.R. at 7a.) The Kushers did not allege any wrongdoing by DEP or name DEP as a party in the complaint. (R.R. at 5a-8a.)

By order dated January 4, 2013, the trial court sua sponte issued an order directing the Kushers to join DEP as a party. (S.R.R. at 1b-2b.) On February 22, 2013, the Kushers filed an amended complaint in ejectment and trespass with DEP joined as a party.[2] The amended complaint asserted that the Kushers never agreed to allow the Woloschuks to enter or conduct activity on their property. The Kushers contended that the Woloschuks' project clogged their water drainage pipe and also that the Woloschuks deposited debris onto their property. The Kushers further asserted that DEP ignored their permitting concerns and allowed the Woloschuks and James Excavation to perform work on their property without their permission. The Kushers requested the trial court to issue an order revoking DEP's permits where they allowed entry onto their property, order the Woloschuks and James Excavation to remove the debris deposited on the property and disconnect or remove any improvement on the Kushers' property constructed without their express consent, and require the Woloschuks and James Excavation to unclog the Kushers' water drainage pipe. (R.R. at 10a-15a.)

On September 11, 2013, DEP filed preliminary objections in the nature of a motion to dismiss the case for lack of jurisdiction on the ground that this Court has sole jurisdiction over DEP pursuant to section 761 of the Judicial Code, 42 Pa.C.S. § 761. (S.R.R. at 3b-8b.) In accordance with the motion, the trial court issued an order dated October 14, 2013, dismissing DEP from the action that stated as follows:

AND NOW, on this 14th day of October, after examining [DEP's] Motion to Dismiss for Lack of Jurisdiction and CRY, Inc. v. Mill Service, Inc.,536 Pa. 462, 640 A.2d 372 (Pa. 1994), the [trial court] GRANTS ...

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