Gerner v. Borough of Bruin
Gerner v. Borough of Bruin
Opinion of the Court
Opinion by
E. A. Gerner and Margaret Gerner (appellants) have asked us to review the decision of the Court of Common Pleas of Butler County which sustained the preliminary objections of the Borough of Bruin (Borough) to their complaint in equity.
The appellants are owners of a property to which access is provided by an alley maintained by the Borough. They have alleged that, as a result of the Borough’s grading and paving of this alley, surface water is now being deposited on their property, causing damage to pine trees being grown there. In May, 1973, the appellants petitioned the lower court for the appointment of viewers pursuant to Section 502 of the Eminent Domain Code
Subsequently, the Borough filed preliminary objections to the complaint in equity asking that it be dismissed because the matter had been previously decided
We believe that our decision here is controlled by our holding in the recent case of Lerro v. Department of Transportation, 32 Pa. Commonwealth Ct. 372, 379 A.2d 652 (1977). The petitioners in Lerro also sought injunctive relief against the discharge of water onto their property, and we dismissed their petition to the extent that it sought an equitable remedy. Section 303 of the Code, 26 P.S. §1-303, specifically states that the Code is the exclusive procedure for de facto condemnation cases. Clearview Land Development Company, Inc. v. Kassab, 24 Pa. Commonwealth Ct. 532, 357 A.2d 732 (1976). Furthermore, our Supreme Court has held that:
[T]he Eminent Domain Code fully protects the rights of the property owner.... Since the legislature has provided under the Code the exclusive proceedings in eminent domain cases, no remedy in equity is available to an injured property owner.
Valley Forge Golf Club v. Upper Merion Township, 422 Pa. 227, 230, 221 A.2d 292, 293-94 (1966).
The law is now clear that a property owner may not obtain an injunction where the subject matter of the complaint involves a condemnation, either de facto or by declaration. In alleging in their equity action that the Borough’s grading of the alley here “rendered the property valueless for the use intended, ’ ’ the appellants have attempted to state a cause of action amounting to a de facto taking. The exchisive remedy for such a taking is provided by the Code. The appel
Order
And Now, this 18th day of August, 1978, the order of the Court of Common Pleas of Butler County dismissing the appellants’ complaint in equity is hereby affirmed.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-101 et seq.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.