20 Pa. Commw. 222 | Pa. Commw. Ct. | 1975
Opinion by
Charles A. B. Allias, Jr., and Marian J. Allias (Allias) are the owners of property in Westmoreland County which is located at a low point of a ravine and consequently the point toward which rainwater flows as it leaves lands immediately above the Allias property. As development of the area has occurred, property owners in the upper part of the ravine have piped surface water runoff toward the Allias property.
Allias decided to fill in the ravine with a damlike structure which prevented the continuous flow of water
Apparently, complaints were made to the Department of Environmental Resources (DER) which advised Allias to apply for a permit for the water obstruction, pursuant to the provisions of the Water Obstructions Act, Act of June 25, 1913, P. L. 555, as amended, 32 P.S. §681 et seq. Allias refused to make such an application, and DER filed a complaint in equity seeking to compel Allias to remove the obstruction.
Allias failed to file an answer to the complaint served on July 24, 1973, and on September 13, 1973, DER filed a praecipe for entry of a default judgment which was entered that same day. DER, in accord with Rule 1511 (b) of the Pennsylvania Rules of Civil Procedure,
However, it should be kept in mind that a default judgment does not admit the sufficiency of the pleading
Decree reversed and case remanded to the Court of Common Pleas of Westmoreland County to, after further hearing, either frame a final decree in accordance with Rule 1511(b) of the Pennsylvania Rules of Civil Procedure or strike from the record the judgment entered on September 13, 1973 against Charles A. B. Allias, Jr., and Marian J. Allias.
. “Rule 1511. Judgment upon Default or Admission
“(b) In all cases, the court shall enter an appropriate final decree upon the judgment of default or admission and may take testimony to assist in its adjudication and in framing the decree.”