63 Pa. Commw. 534 | Pa. Commw. Ct. | 1981
Opinion by
On January 5, 1979, Mr. and Mrs. Marino (Marinos) filed a complaint in equity against Seneca Homes, Inc. and Hempfield Township Municipal Authority seeking to enjoin those defendants from discharging upon their land water from a sewage treatment plant located on a site adjacent to their property. Several additional defendants have been added to the original suit, including Michael Bove, trading as Bove Engineering Company (Bove).
Our Supreme Court in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) abrogated the doctrine of sovereign immunity in Pennsylvania. In response to Mayle, the General Assembly enacted the Act of September 28, 1978, P.L. 788 (Act 152),
On June 2, 1980, after the trial court’s order was filed, our Supreme Court, in Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980), held that the provisions of Act 152 could not govern causes which became actionable prior to the effective date of that statute and that Mayle must he given retroactive effect. Finally, on July 21, 1980 the Supreme Court vacated the decision of this Court in Brungard. Brungard v.
It is now firmly established that as to causes of action which accrued prior to September 28, 1978, the defense of sovereign immunity will not lie and with respect to causes of action which accrued on or after September 28, 1978, sovereign immunity is a bar except as to those circumstances set forth in Act 152 where the Commonwealth has waived its immunity. 42 Pa. C. S. §8522.
Notwithstanding this change in the law with respect to the defense of sovereign immunity, DER contends, nevertheless, that the order of the trial court from which this appeal has been taken should be affirmed. Acknowledging that under the law as it now exists, the critical factor which determines whether the defense of sovereign immunity may be asserted successfully by DER is the date on which the cause of action accrued, DER contends that in this case, that date is November 10, 1978. That is the date Marinos allege in their complaint that a letter was sent to Seneca Homes, Inc., who had built the sewage treatment plant, informing that party that the anticipated discharge of effluent onto Marinos’ property would constitute a continuing trespass. If we conclude that Bove’s cause of action against DER accrued on November 10, 1978, the defense of sovereign immunity may be asserted successfully by DER since such date is after the effective date of Act 152.
“The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.” 51 Am. Jur. 2d Limitation of Actions, §107 (1970) (footnote omitted). As a general rule, in tort cases a cause of action accrues at the time of the act or failure to act upon which the claim is based. 22 P.L.E. Limitation of Actions §64 (1959). Bove’s complaint, as we have noted
In the alternative, Bove alleges that if he is found liable to Marinos, then DEE is “liable over” to Bove. A determination of when that cause of action accrues is more difficult. It is true that DEE’s alleged neg
Bove contends, however, that even though the provisions of Act 152 may bar his cause of action, the Act itself is unconstitutional. DER claims that argument is moot in view of our Supreme Court’s decision in Gibson. Of course, DER is wrong. Gibson held that insofar as Act 152 would make its provisions applicable to causes of action which accrued prior to its effective date, the Act was unconstitutional. As we noted in Picariello v. Commonwealth, 54 Pa. Commonwealth Ct. 252, 421 A.2d 477 (1980), the Supreme Court in Gibson specifically avoided addressing the constitutional challenge to the act in its entirety.
Bove’s constitutional challenge here is grounded upon the Federal and State constitutional due process clauses and Article I, Section 11 of the Pennsylvania Constitution.
Recently our Supreme Court addressed a constitutional challenge to the validity of Sections 8541-8564 of the Judicial Code, 42 Pa. C. S. §§8541-8564, formerly the Political Subdivision Tort Claims Act,
We think the reasoning in Carroll disposes of the constitutional challenge here asserted.
Accordingly, having found that Act 152 is constitutional and that the provisions of that statute apply to the facts in the pleadings now before us, we will affirm the decision of the trial court which sustained the demurrer of DEB raising the defense of sovereign immunity.
Order
And Now, this 31st day of December, 1981, the order of the Court of Common Pleas of Westmoreland County dated March 18, 1980 is affirmed.
Bove says that in fact Bove Engineering Company is incorporated and that Bove was an employee, servant, workman and agent of the corporation.
Pa. R.C.P. No. 2252(a) provides that any defendant or additional defendant may join as an additional defendant “any person . . . who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.” In the instant ease Bove alleges that by reason of its negligence, DEB is liable solely or jointly and severally to the Marinos for any damages Marinos may have sustained, and, in the alternative, that if Bove is found to be liable to the Marinos, then DEB is “liable over” to Bove.
Pa. B.C.P. No. 1030 requires that the affirmative defense of sovereign immunity shall be set forth in a responsive pleading under “New Matter.” No objection to DEB’s demurrer was made, however, and therefore this procedural defect has been waived. As
Statutory provisions relating to sovereign immunity now appear at 1 Pa. C. S. §2310 and 42 Pa. C. S. §§8521-8528.
Although Bove has attempted to argue that Marinos’ original cause of action falls within the provisions of 42 Pa. C. S. §8522 (b) (4) as an exception to sovereign immunity because the effluent will
In its opinion, the trial court refers to December 29, 1977 as the date when the approval was given but that date nowhere appears in Bove’s complaint against DEB. In ruling upon a demurrer, of course, the court is limited to the allegations set forth in the challenged pleading.
See note 2 supra.
Article I, Section 11 of the Pennsylvania Constitution provides as follows:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
Act of November 26, 1978, P.L. 1399, 63 P.S. §§5311.101-5311. 803, repealed by Section 333 of the JARA Continuation Act of 1980, Act of October 5, 1980, P.L. 693, 42 P.S. §20043.