             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,                   :
Department of Transportation,                   :
                        Plaintiff               :
                                                :
                      v.                        :   No. 713 M.D. 2018
                                                :   Argued: February 10, 2020
A & R Development Co.,                          :
                             Defendant          :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE J. ANDREW CROMPTON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: March 9, 2020


       The Commonwealth of Pennsylvania (Commonwealth), Department of
Transportation (Department) initiated this action in the Court’s original jurisdiction
by filing a Petition for Review in the Nature of an Action for Declaratory
Judgment (Complaint),1 requesting the Court to declare two deeds, in which A & R
Development Co. (A & R) allegedly transferred property to the Department
without its consent or knowledge, void ab initio. (Complaint ¶ 2.) In response,
A & R filed an Answer, New Matter, and Second Amended Counterclaim, alleging

       1
        The Department’s initial filing will be treated as a Complaint because it challenges the
actions of a non-governmental entity. Pennsylvania Rule of Appellate Procedure 1504,
Pa.R.A.P. 1504 (providing that “[i]f a petition for review is filed against any person, where the
proper mode of relief is . . . a petition for declaratory judgment . . . the papers whereon the
improvident matter was commenced shall be regarded and acted upon as a complaint”).
that the Department’s actions resulted in a de facto taking of the property as a
result of storm water runoff, and, if the conveyance is deemed void, asserting
negligence and trespass claims against the Department and requesting an
abatement of a nuisance resulting from the Department’s violation of the Storm
Water Management Act2 (SWMA).                 Before the Court for disposition are
Preliminary Objections (POs) filed by the Department, which assert the following:3
(1) A & R’s Answer, New Matter, and Second Amended Counterclaim was
untimely filed; (2) this Court lacks subject matter jurisdiction over A & R’s
negligence claim; (3) A & R failed to exhaust an available statutory remedy under
the Eminent Domain Code4 for its allegations based on the Department’s
intentional conduct; (4) A & R failed to state a claim upon which relief can be
granted because the Department is entitled to sovereign immunity and/or is not
subject to the SWMA; and (5) A & R has failed to sufficiently plead or state a
claim for a violation of the SWMA.

   I. Background
      A. Complaint
      The Department avers the following in the Complaint.                   This litigation
involves property (Subject Property) that is located “near the intersection of West
Steuben Street and State Route 30, also known as Shipland Road” located in North
Fayette Township (Township), Allegheny County (County). (Complaint ¶ 9.) On
approximately June 15, 2017, the Department received a letter from the Township
advising that the Department needed to perform certain corrective repairs and

      2
        Act of October 4, 1978, P.L. 864, as amended, 32 P.S. §§ 680.1-680.17.
      3
        We have rearranged the order of the POs for ease of discussion.
      4
        26 Pa.C.S. §§ 101-1106.



                                             2
routine maintenance on the Subject Property in order to comply with the
Township’s Stormwater Management Ordinance (Ordinance). (Id. ¶¶ 7-9.)
      Upon the receipt of the Township’s letter, the Department researched the
matter “and determined that the Subject Property . . . was not a part of any
Department project, environmental permits, or any Department-owned and
maintained post-construction storm[ ]water management facility.”          (Id. ¶ 12.)
After further research, however, the Department found that it was listed as the
record owner of the Subject Property in the County’s real estate records. (Id. ¶ 13.)
The Department did not know of its record owner status until the end of June 2017.
(Id. ¶ 14.)    Additional research of the County’s real estate records by the
Department revealed the following documents related to the Subject Property:

      (1) a deed reflecting that A & R conveyed the Subject Property, Lot 201 of
          the 1995 Plan (a previously approved subdivision plan), to the
          Department on or about October 29, 2013, which was recorded on
          January 15, 2014 (January 2014 Deed); and

      (2) a corrective deed involving the Subject Property executed by A & R on
          or about November 19, 2014, that re-conveyed the Subject Property to
          the Department, which was recorded on December 11, 2014 (December
          2014 Deed).

(Complaint ¶ 15, Exs. 9-10.) That research further revealed that A & R: had
purchased the Subject Property as part of a larger parcel in the 1970s; had
subdivided that parcel into three lots, of which the Subject Property is one; sold the
other two parcels but retained ownership of the Subject Property; and is required
by its subdivision plan and an easement agreement to maintain the Subject
Property as a storm water drainage facility for the benefit of the other two lots.
(Complaint ¶¶ 15, 24, 25; Exs. 4-8.)




                                          3
      Until June 2017, the Department was unaware of the January 2014 Deed and
December 2014 Deed. (Complaint ¶ 16.) The Department never consented to
A & R’s conveyance of the Subject Property to the Department, and neither the
January 2014 Deed nor the December 2014 Deed were delivered to or accepted by
the Department.    (Id. ¶¶ 17-18.)     The Department has not engaged in any
condemnation proceedings or eminent domain actions related to the Subject
Property. (Id. ¶ 21.) At no time has the Department needed to use the Subject
Property for any purposes, and the Subject Property provides no benefit to either
the Department or the Commonwealth. (Id. ¶¶ 19-20.)
      Based on these allegations, the Complaint sets forth two counts: one related
to the January 2014 Deed and one related to the December 2014 Deed. The
Department avers that A & R transferred the Subject Property without the consent
or knowledge of the Department in order to avoid its liability for providing a storm
water facility to the adjoining lots as required by the existing easement agreement
and/or the Township’s Ordinance. (Id. ¶ 33.) The Department seeks a judgment
declaring the January 2014 Deed and December 2014 Deed void ab initio and that
any liability that flows from the attempted transfers of the Subject Property be
imposed on A & R, as the legal owner of the Subject Property. Further, the
Department asks the Court to issue a decree directing the Department to file and
record a certified copy of such judgment or order declaring that the January 2014
Deed and December 2014 Deed are void ab initio in the County’s real estate
grantor-grantee index.

      B. Answer, New Matter, and Second Amended Counterclaim
      On July 1, 2019, A & R filed its Answer, New Matter, and Second Amended
Counterclaim wherein A & R admits that the January 2014 Deed and December


                                         4
2014 Deed were recorded on the dates alleged. A & R denied the other averments
as legal conclusions, for lack of sufficient knowledge, or as writings that speak for
themselves.
      In its New Matter, A & R avers the following, which is relevant to the
pending PO as to the timeliness of A & R’s pleading. The Department filed the
Complaint, titled a Petition for Review, on December 18, 2018,5 and by order dated
December 27, 2018, this Court indicated that the filing was in the nature of a
complaint to which the Pennsylvania Rules of Civil Procedure applied and that,
under Pennsylvania Rule of Appellate Procedure 1504, Pa.R.A.P. 1504, an
improvidently filed “petition for review may be treated as a complaint.” (Answer,
New Matter, and Second Amended Counterclaim ¶¶ 50-51 (quoting December 27,
2018 Order) (emphasis added by A & R).) This order did not say the filing “shall
be treated as a ‘complaint,’” only that it “may” be treated as a complaint and, under
Appellate Rule 1504, “the Court may require that papers be clarified by
amendment.” (Id. ¶ 51.) At the time A & R received the December 27, 2018
order, it was not represented by counsel, and it understood the December 27, 2018
order as requiring the Department to submit and serve an additional filing on
A & R before a response was required. (Id. ¶ 52.) On March 13, 2019, the
Department filed a Notice of Praecipe to Enter Default Judgment, which prompted
A & R to obtain counsel, who entered their appearances on March 18, 2019. (Id.
¶¶ 53-54.) Following this, the Department granted several extensions to file a
response, which A & R served on the Department on or about April 12, 2019. (Id.

      5
        Although the Department initially filed the Complaint on November 9, 2018, the
Complaint was reinstated by praecipe on December 18, 2018. In accordance with Pennsylvania
Rule of Civil Procedure 401, Pa.R.C.P. No. 401, A & R was personally served with the
Complaint on December 19, 2018.



                                            5
¶¶ 55-57.) A & R subsequently filed the current Answer, New Matter, and Second
Amended Counterclaim on July 1, 2019.6
       Also in its New Matter, A & R asserts the following. Waters from the
Department’s roadways, including Steubenville Pike East and State Route 30,
collect on the Subject Property, which renders the Subject Property valueless. The
Department is an “acquiring agency” with the powers of condemnation, and the
Department’s actions “have substantially interfered with the use and enjoyment of
the [Subject] Property” resulting in a “constructive taking” or “de facto taking” of
the Subject Property. (Id. ¶¶ 67-70.) As a result of this de facto taking, the
Department “is the rightful equitable owner of the [Subject] Property and . . .
should be estopped from challenging the conveyance thereof.”7 (Id. ¶ 71.)
       In its Second Amended Counterclaim, A & R asserts claims for trespass
(Count I) and a violation of the SWMA (Count II). In Count I, A & R contends
that if it is determined that there was no de facto taking or valid conveyance of the
Subject Property to the Department, as the Department claims, A & R has a ripe
negligence action for trespass because the Subject Property has been subjected to
uncontrolled storm water runoff from the Department’s roadways, A & R has not
consented to that intrusion, the Department has a duty to refrain from such
discharge, the Department has breached that duty, and the breach has rendered the
Subject Property valueless. (Id. ¶¶ 73, 75-82.) As a result, “A & R demands

       6
         The Department filed POs and a Motion to Strike A & R’s April 2019 response as
untimely. Following argument and by agreement of the parties, the Court granted the Motion to
Strike by order dated July 23, 2019. That order indicated that the operative pleadings in this
matter are the Department’s Complaint, A & R’s July 1, 2019 Answer, New Matter, and Second
Amended Counterclaim, and the Department’s POs thereto.
       7
         Although A & R initially included a counterclaim for a de facto taking in its prior filing,
which was stricken, A & R does not reassert that counterclaim.



                                                 6
compensation for the damages to the [Subject] Property resulting from the
Department’s activities.” (Id. ¶ 84.) According to A & R, these counterclaims fall
within the Court’s ancillary jurisdiction because they “are derived from the same
transaction as the Department’s action seeking to void the conveyance of
property.” (Id. ¶ 85.)
      In Count II, A & R avers that Section 13 of the SWMA, 32 P.S. § 680.13,
requires property developers to manage the storm water runoff from their
developments and that the Department is in direct violation of this section. A & R
asserts that the Department violated Section 13 of the SWMA when it altered its
land, which affected the land’s storm water runoff characteristics, and did not
implement measures under the applicable watershed storm water plan necessary to
prevent injury to the Subject Property.       (Answer, New Matter, and Second
Amended Counterclaim ¶¶ 87-91.) Pursuant to Section 15(b) of the SWMA, 32
P.S. § 680.15(b), A & R claims, a person injured by a Section 13 violation is
authorized to bring an action to prevent, abate, or restrain a violation thereof, and
the costs of pursuing such a claim are recoverable against the violator. (Answer,
New Matter, and Second Amended Counterclaim ¶¶ 92-93.)              A & R further
contends that the Department’s actions in allowing the storm water runoff are
intentional and unreasonable and such actions have caused A & R to suffer and
continue to suffer damages. (Id. ¶¶ 95-96.) Therefore, the Department’s actions
have created a nuisance, and A & R seeks equitable relief to abate that nuisance, as
well as compensation for the damages to the Subject Property should the
conveyance of the Subject Property be deemed void. (Id. ¶¶ 97-99.)




                                         7
   II. The Department’s POs and A & R’s Answer to the POs
      Before the Court are the Department’s POs to A & R’s Answer, New Matter,
and Second Amended Counterclaim, and A & R’s opposition thereto.                  The
Department asserts the following POs: “failure of a pleading to conform to law or
rule of court”; “lack of jurisdiction over the subject matter of the action”; “failure
to exercise or exhaust a statutory remedy”; “legal insufficiency of a pleading
(demurrer)”; and “insufficient specificity in a pleading.” Pennsylvania Rule of
Civil Procedure 1028(a)(1)-(4), (7), Pa.R.C.P. No. 1028(a)(1)-(4), (7). We address
each PO in turn.

      A. Whether A & R’s Answer, New Matter, and Second Amended
         Counterclaim fails to conform to law because it was untimely.
      The Department contends A & R’s Answer, New Matter, and Second
Amended Counterclaim should be stricken because it is untimely and, therefore,
does not conform to the Pennsylvania Rules of Civil Procedure. It argues as
follows. The Complaint was served on A & R on December 19, 2018, and no
responsive pleading was filed within the 20 days required by Pennsylvania Rule of
Civil Procedure 1026, Pa.R.C.P. No. 1026. Instead, A & R’s first responsive
pleading was filed on April 16, 2019, more than three months late, and A & R
cannot establish just cause for the untimeliness. Because A & R cannot meet its
burden, the Department is not required to establish that it was prejudiced by the
delay. Further, the Department did not waive its objection to the untimeliness of
A & R’s Answer, New Matter, and Second Amended Counterclaim; rather, its
agreement not to file a default judgment until a specific date only waived its right
to seek that relief and not its objection to timeliness. Therefore, A & R’s filing
must be stricken and the allegations contained in the Complaint deemed admitted.


                                          8
      A & R responds as follows.              The Department waived the timing
requirements of Civil Rule 1026 by granting A & R extensions to respond per
Pennsylvania Rule of Civil Procedure 1003, Pa.R.C.P. No. 1003 (allowing for the
waiver of the time to file or serve pleadings by agreement of the parties). Even if
the Department had not waived the timeliness argument, A & R had just cause for
the delay based on this Court’s December 27, 2018 order. Prior to its receipt of the
Department’s Notice of Praecipe to Enter Default Judgment, it had no reason to
believe it had to file a response to the Complaint. When it realized a response was
required, A & R obtained counsel, who requested and received extensions from the
Department. These circumstances constitute just cause for the delay, and the
Department has not demonstrated it has been prejudiced by the late filing.
      Civil Rule 1026(a) provides, in relevant part, that “every pleading
subsequent to the complaint shall be filed within [20] days after service of the
preceding pleading, but no pleading need be filed unless the preceding pleading
contains a notice to defend or is endorsed with a notice to plead.” Pa.R.C.P. No.
1026(a). When a party moves to strike a pleading, the party that filed the untimely
pleading must establish just cause for the delay, and it is only after evidence of just
cause is presented that the moving party must prove it was prejudiced by the
pleading’s lateness. Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167, 170 (Pa.
1996). However, the 20-day pleading requirement is permissive, not mandatory,
and a court has the “discretion [to] accept[] late pleadings in the absence of
prejudice and where justice so requires.” Mazur v. Cuthbert, 186 A.3d 490, 497
(Pa. Cmwlth.) (emphasis added), appeal denied, 198 A.3d 1052 (Pa. 2018).
      It appears the Department’s Complaint was improvidently filed under
Chapter 15 of the Appellate Rules, thus necessitating the December 27, 2018 order,



                                          9
in which the Court treated the filing as a complaint notwithstanding the defect. In
that order, this Court does use language that could be interpreted as allowing for an
additional filing by the Department to perfect its “Petition for Review” based on its
reference to Appellate Rule 1504 and stating an “improvident petition for review
may be treated as a complaint.” Dep’t of Transp. v. A & R Dev. Co. (Pa. Cmwlth.,
No. 713 M.D. 2018, filed Dec. 27, 2018) (emphasis added). Although not quoted
in the December 27, 2018 order, Rule 1504 also states, as pointed out by A & R,
that “[t]he court may require that the papers be clarified by amendment.”
Pa.R.A.P. 1504; (A & R’s Brief (Br.) at 10). Compounding the situation is the
correspondence between the parties, which reflects A & R’s requests for “an
extension . . . to respond to [the] Complaint (Petition),” to which the Department
agreed that it would “hold off on the Department’s Application . . . for default
judgment.” (Answer, New Matter, and Second Amended Counterclaim, Ex. B.)
A & R filed its initial response within that extension period. We acknowledge the
Department’s assertion that it only waived its right to seek a default judgment. In
exercising our discretion, we note that the effect of striking the Answer, New
Matter, and Second Counterclaim would result in A & R’s admission of all of the
averments in the Complaint, that there was confusion related to the Department’s
filing of the Complaint as a Petition for Review, and that there is a lack of
prejudice, and, therefore, find that the interests of justice will be better served to
allow the late filing here. We, therefore, overrule the Department’s PO seeking to
strike the Answer, New Matter, and Second Amended Counterclaim as untimely.

      B. Whether this Court lacks subject matter jurisdiction over Count I of the
         Second Amended Counterclaim.
      The Department objects to Count I of A & R’s Second Amended
Counterclaim, the negligence/trespass claim, on the basis that this Court lacks

                                         10
subject matter jurisdiction over that claim.     It argues as follows.    A & R’s
negligence/trespass claim does not fall within this Court’s original jurisdiction as
set forth in Section 761(a) of the Judicial Code, 42 Pa.C.S. § 761(a), which excepts
“actions or proceedings conducted pursuant to Chapter 85 [of the Judicial Code]
(relating to matters affecting government units)” and “actions or proceedings in the
nature of trespass as to which the Commonwealth government formerly enjoyed
sovereign or other immunity.” Because a common law claim based in negligence
falls within Chapter 85 and the Commonwealth formerly enjoyed sovereign
immunity to an action in the nature of trespass, these claims are excluded from this
Court’s original jurisdiction. (POs ¶¶ 24-25 (citing Pastore v. Com. State Sys. of
Higher Educ., 618 A.2d 1118, 1123 (Pa. Cmwlth. 1992)).) There is no ancillary
jurisdiction over A & R’s Counterclaim because the underlying facts pertaining to
that claim do not arise out of transactions related to the Department’s Complaint,
which solely arise out of A & R’s “illegal and fraudulent transfer of real property,”
and not from any alleged uncontrolled storm water runoff from the state roadways
adjacent to the Subject Property. (Id. ¶ 26.) Thus, this matter is distinguishable
from Department of General Services v. Frank Briscoe Company, Inc., 466 A.2d
1336, 1339 (Pa. 1983), because in that case both the Commonwealth’s complaint
against a contractor and the contractor’s counterclaim arose out of the same
construction contract. A & R cannot expand this Court’s jurisdiction by raising a
defense, particularly de facto taking, which is not an affirmative defense. Peters
Township v. Russell, 121 A.3d 1147, 1152 n.12 (Pa. Cmwlth. 2015). For these
reasons, the Court lacks jurisdiction over Count I, and that count must be
dismissed.




                                         11
      A & R responds with the following. A & R’s Counterclaim falls within the
Court’s ancillary jurisdiction because it has raised the Department’s substantial
interference with the use and enjoyment of the Subject Property without the formal
exercise of eminent domain as a defense to the Department’s Complaint and those
actions should estop the Department for challenging the conveyance of the Subject
Property.     The Court has jurisdiction to hear this defense and, if A & R is
unsuccessful in that defense, the Court should be able to consider A & R’s
negligence action for trespass. Relying on Frank Briscoe, 466 A.2d at 1336,
A & R argues its Counterclaim derives from the same transaction as the
Department’s Complaint and, therefore, falls within the Court’s ancillary
jurisdiction.
      Section 761(a) and (c) of the Judicial Code sets forth this Court’s original
jurisdiction and ancillary jurisdiction, providing, in relevant part:

      (a) General rule.--The Commonwealth Court shall have original
          jurisdiction of all civil actions or proceedings:

             (1) Against the Commonwealth government, including any
             officer thereof, acting in his official capacity, except:
               ...
               (iii) actions or proceedings conducted pursuant to Chapter 85
               (relating to matters affecting government units [and relating to
               sovereign immunity]);
               ...
                (v) actions or proceedings in the nature of trespass as to which
               the Commonwealth government formerly enjoyed sovereign or
               other immunity and actions or proceedings in the nature of
               assumpsit relating to such actions or proceedings in the nature
               of trespass.

             (2) By the Commonwealth government, including any officer
             thereof, acting in his official capacity, except eminent domain
             proceedings.
            ....


                                           12
      (c) Ancillary matters.-- . . . . To the extent prescribed by general rule
          the Commonwealth Court shall have ancillary jurisdiction over
          any claim or other matter which is related to a claim or other
          matter otherwise within its exclusive original jurisdiction.

42 Pa.C.S. § 761(a), (c) (emphasis added). A & R contends Count I falls within
this Court’s ancillary jurisdiction under Section 761(c) because it arises out of the
same transaction or transactions as the Department’s Complaint.
      “An action or proceeding includes the entire case arising out of a single
transaction or series of transactions.” Frank Briscoe, 466 A.2d at 1339. In Frank
Briscoe, the Commonwealth filed a breach of contract action against a contractor,
to which the contractor filed a counterclaim asserting that the Commonwealth had
breached the same contract. This Court granted the Commonwealth’s preliminary
objection based on a lack of jurisdiction over the counterclaim, but the Supreme
Court reversed.     The Supreme Court explained the contractor asserted its
competing breach of contract claim, which ordinarily would have gone to the
Board of Claims, as a counterclaim to the Commonwealth’s assumpsit action, but
that a “party sued may assert a claim derived from the same transaction as a basis
for recoupment, even though the claim could only have been commenced as an
original matter in the Board of Claims.” Id. The Supreme Court then expanded
this concept to the grant of an affirmative recovery, stating:

      Surely if the Commonwealth Court has jurisdiction to hear a
      counterclaim for purposes of recoupment, a claim which will, if
      successful, reduce or even nullify entirely a judgment for the
      Commonwealth, there is no sound jurisprudential or policy reason
      why the Commonwealth Court should be unable to utilize the same
      trial to grant an affirmative recovery. Indeed, as noted by both [the
      contractor] and the [Commonwealth], who [sic] have joined in urging
      this Court to hold that [the contractor’s] counterclaim is within the
      Commonwealth Court’s jurisdiction, judicial economy is advanced by



                                          13
      allowing the parties to obtain a comprehensive disposition of the
      litigation in one proceeding.

Id. Noting that the “scope of the ‘civil action’ over which the Commonwealth
Court has statutorily been granted jurisdiction” was “deemed to include not only
the [Commonwealth’s] allegations of breach of contract against” the contractor but
also the contractor’s “claim for damages against the [Commonwealth], both of
which arise out of the same contractual undertaking,” the Supreme Court
reversed and remanded the matter for a merits determination.         Id. at 1340
(emphasis added).
      Citing this language, A & R asserts that judicial economy requires that the
Court address its Counterclaim at the same time we address the Department’s
declaratory judgment action as they relate to the same transaction. We cannot
agree. The Department’s Complaint is based on the actions of A & R, occurring in
2013 and 2014, through which, the Department claims, A & R conveyed the
Subject Property to the Department without its knowledge or consent.          The
Department seeks a declaratory judgment reflecting that such conveyances are void
and that any liabilities associated with the Subject Property are to be imposed on
A & R, not the Department. The Department does not claim or seek damages. In
contrast, the allegations set forth in Count I, A & R’s negligence action for
trespass, are premised on A & R’s ownership of the Subject Property, and relate to
an alleged “uncontrolled storm water runoff from the Department’s roadways and
facilities” onto the Subject Property. (Answer, New Matter, and Second Amended
Counterclaim ¶ 78.) These allegations do not arise from A & R’s recording of
deeds conveying the Subject Property to the Department; thus, they are not from
the same transaction or transactions at issue in the Complaint. Therefore, the
principles of judicial economy served by allowing the counterclaim in Frank

                                       14
Briscoe to proceed are not served by allowing A & R to assert its counterclaim
here.
        A & R’s assertion that its de facto condemnation defense provides this Court
with ancillary jurisdiction to consider the negligence action is unpersuasive. An
assertion of de facto condemnation is neither an affirmative defense nor a proper
counterclaim. Peters Township, 121 A.3d at 1152 n.12. Such claims must be
raised in a petition under the Eminent Domain Code. Id. While A & R disclaims
any desire to proceed under the Eminent Domain Code, (see A & R’s Br. at 17), it
may not use those assertions as a means to expand this Court’s jurisdiction beyond
that authorized by law.
        Because this Court lacks ancillary jurisdiction to consider Count I of the
Second Amended Counterclaim, we sustain the Department’s PO and dismiss
Count I.

        C. Whether A & R failed to exercise and/or exhaust its statutory remedy for
           the allegations in Count II under the Eminent Domain Code.
        The Department avers that Count II must be dismissed because A & R has
not exhausted an available statutory remedy, arguing as follows. Because A & R is
alleging that the Subject Property was damaged and rendered valueless by the
Department’s intentional actions, A & R has a statutory remedy under Section
502(c) of the Eminent Domain Code, 26 Pa.C.S. § 502(c). The equitable relief
A & R seeks in Count II under the SWMA is unavailable at this time because the
allegations are in the nature of a de facto taking and A & R has not exhausted its
remedies under the Eminent Domain Code, which is the exclusive remedy for a de
facto taking. Because the Eminent Domain Code protects A & R’s legal rights and
provides an adequate remedy by allowing for compensation for any alleged loss of
the use and enjoyment of the Subject Property, A & R cannot seek a remedy under

                                         15
this Court’s equitable jurisdiction. Lerro v. Dep’t of Transp., 379 A.2d 652, 654
(Pa. Cmwlth. 1977).8
       A & R asserts that it has pled that the Department, through its actions that
resulted in a de facto taking, is the equitable owner of the Subject Property and
should be estopped from challenging that conveyance. In A & R’s view, its
conveyance of the Subject Property to the Department essentially was “a ‘deed in
lieu of condemnation’ for valueless property.” (A & R’s Br. at 17.) It does not
seek relief under the Eminent Domain Code in the form of just compensation for
the Subject Property and, therefore, the Department’s PO should be overruled.
       The Department responds that A & R’s arguments admit that A & R’s
remedy rests in the Eminent Domain Code. The Department asserts the Court
should reject A & R’s efforts to forgo the judicial process to obtain a determination
that a de facto taking occurred, even though A & R believes such taking occurred,
by using other means to obtain relief for the damages allegedly caused by the
Department’s intentional actions.
       The Department’s PO attempts to transform Count II of the Second
Amended Counterclaim into something it is not. While A & R initially filed a
counterclaim asserting a de facto taking claim, A & R’s current Answer, New
Matter, and Second Amended Counterclaim does not reassert that counterclaim.
Rather, it asserts a statutory basis for Count II, the SWMA, and the Department’s
alleged violation of that statute’s provisions. Because A & R is not asserting a de
facto claim or seeking relief for a de facto taking, it was not required to exhaust the

       8
          The Department further claims that A & R’s conduct in filing the Second Amended
Counterclaim is dilatory, obdurate, vexatious, and arbitrary, and reflects bad faith thereby
entitling the Department to reasonable attorney’s fees under Section 2503(7) and (9) of the
Judicial Code, 42 Pa.C.S. § 2503(7), (9).



                                            16
Eminent Domain Code’s provisions before asserting its claim under the SWMA.
Thus, the Department’s PO seeking dismissal of Count II for this reason is
overruled.

       D. Whether A & R has stated a claim upon which relief can be granted in
          Count II.
       The Department demurs to Count II of the Second Amended Counterclaim,
which is based on an alleged violation of the SWMA, claiming that it is legally
insufficient for three reasons: the Department is entitled to sovereign immunity;
the SWMA does not authorize private suits for damages against it; and A & R has
failed to plead the required elements for stating a claim under the SWMA. The
Court reviews demurrers using the following standards. “[T]he Court must accept
as true all well-pleaded allegations of material fact and inferences reasonably
deducible therefrom.” Kee v. Pa. Turnpike Comm’n, 685 A.2d 1054, 1057 (Pa.
Cmwlth. 1996). It is only in cases where it is clear and free from doubt and it
appears with certainty that the law will permit no recovery under the allegations
pled that a demurrer should be sustained. Id.

       1. Whether the Department is entitled to sovereign immunity because the
          allegations in Count II are not based on any alleged negligence by the
          Department.9
       The Department demurs to this claim on the ground it is entitled to sovereign
immunity because A & R is not seeking “damages arising out of a negligent act,”

       9
          Pennsylvania Rule of Civil Procedure 1030(a), Pa.R.C.P. No. 1030(a), provides that
immunity of suit is an affirmative defense that should be pled as new matter. However,
“Pennsylvania Courts have long recognized a limited exception to this rule” and allowed the
defense to be raised “as a preliminary objection where the defense is clearly applicable on the
face of the complaint.” Feldman v. Hoffman, 107 A.3d 821, 829 (Pa. Cmwlth. 2014). A & R did
not file a preliminary objection to the Department’s assertion of this affirmative defense as a
preliminary objection.



                                              17
arguing as follows.           (POs ¶¶ 39-41, 43 (emphasis omitted) (quoting Section
8522(a) of what is known as the Sovereign Immunity Act, 42 Pa.C.S. § 8522(a)).)
A & R’s claim does not fall within one of the enumerated exceptions to sovereign
immunity set forth in Section 8522(b) of the Sovereign Immunity Act because
A & R’s claim is predicated on a nuisance theory under the SWMA claiming
intentional conduct by the Department, and there is no exception for intentional
acts by a state agency beyond a claim under the Eminent Domain Code. (Id. ¶¶ 43-
44 (citing Faust v. Dep’t of Revenue, 592 A.2d 835, 839 (Pa. Cmwlth. 1991));
Department’s Br. at 15.) To the extent this count seeks affirmative action on its
part, such relief is barred by sovereign immunity.
       A & R does not directly address the Department’s demurrer based on
sovereign immunity. Rather, A & R asserts that it can proceed on its claims, at
least in part, pursuant to Section 15(b) of the SWMA. A & R also argues that the
Court’s decision in Kee supports its argument that the SWMA can be used to
obtain relief against the Department.
       It is well established that sovereign immunity is the law in Pennsylvania and
is grounded in article 1, section 11 of the Pennsylvania Constitution. E–Z Parks,
Inc. v. Phila. Parking Auth., 532 A.2d 1272, 1276 (Pa. Cmwlth. 1987). The
General Assembly has provided that the Commonwealth enjoys sovereign
immunity and is immune from suit except when and where the General Assembly
has otherwise provided. 1 Pa.C.S. § 2310.10 Section 8522(a) of the Sovereign

       10
            This provision states, in relevant part:

      Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is
      hereby declared to be the intent of the General Assembly that the Commonwealth
      . . . shall continue to enjoy sovereign immunity . . . and remain immune from suit
      except as the General Assembly shall specifically waive the immunity. When the
(Footnote continued on next page…)


                                                   18
Immunity Act describes the extent of the General Assembly’s waiver of the
Commonwealth’s sovereign immunity and provides:

       (a) Liability imposed.--The General Assembly, pursuant to section
       11 of Article I of the Constitution of Pennsylvania, does hereby
       waive, in the instances set forth in subsection (b) only and only to the
       extent set forth in this subchapter and within the limits set forth in
       section 8528 (relating to limitations on damages), sovereign
       immunity as a bar to an action against Commonwealth parties, for
       damages arising out of a negligent act where the damages would be
       recoverable under the common law or a statute creating a cause of
       action if the injury were caused by a person not having available the
       defense of sovereign immunity.

42 Pa.C.S. § 8522(a) (emphasis added). Section 8522(b) of the Judicial Code
describes the nine “[a]cts which may impose liability” on the Commonwealth if
engaged in negligently.11 42 Pa.C.S. § 8522(b). These provisions reflect that the
General Assembly has waived sovereign immunity only for damages arising from
negligent acts that fall within the exceptions in Section 8522(b), not for claims
based on intentional actions. Faust, 592 A.2d at 839.
       After examining A & R’s allegations, we agree with the Department in part.
A & R asserts claims for nuisance and a violation of the SWMA, seeking damages
_____________________________
(continued…)
       General Assembly specifically waives sovereign immunity, a claim against the
       Commonwealth and its officials and employees shall be brought only in such
       manner and in such courts and in such cases as directed by the provisions of Title
       42 (relating to judiciary and judicial procedure) or 62 (relating to procurement)
       unless otherwise specifically authorized by statute.

1 Pa.C.S. § 2310.
         11
            The exceptions to sovereign immunity are: vehicle liability; medical-professional
liability; care, custody or control of personal property; Commonwealth real estate, highways, and
sidewalks; potholes and other dangerous conditions; care, custody, and control of animals; liquor
store sales; National Guard activities; and toxoids and vaccines. 42 Pa.C.S. § 8522(b).



                                               19
and abatement of the nuisance. This Court addressed similar claims in Youst v.
Pennsylvania Department of Transportation, 739 A.2d 625, 627 (Pa. Cmwlth.
1999), wherein landowners filed an action against the Department in this Court’s
original jurisdiction raising claims for nuisance under Section 13 of the SWMA
and seeking an order requiring the Department to maintain its storm water pipes.
The Department responded with multiple demurrers, including that the suit was
barred by sovereign immunity. Id. The Court concluded that the landowners’
claims were barred by sovereign immunity because “while the General Assembly
has waived sovereign immunity against Commonwealth agencies for damages
arising out of a negligent act, it has not waived immunity for equitable claims
seeking affirmative action by way of injunctive relief.” Id.
      Although A & R cites Kee in support of its claim, Youst distinguished Kee.
In Kee, landowners brought an action against the Pennsylvania Turnpike
Commission (Commission) seeking, among other relief, an order directing the
Commission to file certain SWMA-required storm water management plans for a
construction project enlarging a service plaza. 685 A.2d at 1055, 1058. The
Commission objected, claiming it was entitled to sovereign immunity. This Court
disagreed, holding that the landowners’ mandamus action seeking to have the
Commonwealth agency file a storm water management plan, as required by the
SWMA, was not barred by sovereign immunity. Id. at 1059. Here, A & R is not
asserting a mandamus action; it is seeking equitable relief and damages based on
its contention that the Department engaged in intentional and unreasonable conduct
that damaged the Subject Property. Accordingly, to the extent A & R seeks
injunctive relief requiring the Department to take affirmative actions, those claims




                                         20
are barred by sovereign immunity pursuant to Youst, and we sustain the
Department’s demurrer in part and dismiss those claims of Count II.
      This conclusion, however, does not resolve A & R’s claim for monetary
damages and abatement under the SWMA. Like the Court in Youst, which also
addressed the Department’s other preliminary objection, we will do the same here.

      2. Whether the SWMA authorizes a private suit for damages against the
         Department.
      The Department also asserts Count II is legally insufficient because the
SWMA does not authorize a private suit for damages against the Department. It
argues as follows. The definition of “person” under Section 4 of the SWMA, 32
P.S. § 680.4, specifically excludes any department of the Commonwealth, and any
provision of the SWMA that uses that term, including those imposing penalties,
cannot apply to the Department. Therefore, A & R’s claims for monetary damages
based upon the Department’s alleged violation of the SWMA cannot be asserted
against the Department and A & R has not pled a legally sufficient claim against
the Department. Pastore, 618 A.2d at 1124.
      A & R argues as follows. Pursuant to Kee, Section 13 of the SWMA does
apply to state actors, requiring that those actors implement measures under any
applicable storm water management plan to prevent injury. A & R concedes that
Kee precludes recovery of monetary damages and other penalties under Section
15(c) of the SWMA. Nevertheless, Section 15(b) of the SWMA allows A & R to
bring an action against the Department for its violation of Section 13 of the
SWMA in order to require the Department to implement measures under the
relevant storm water management plan to prevent injuries. Section 15(b) also
allows A & R to recover the expenses for these proceedings, which should not be
considered “penalties” subject to the Section 15(c) limitations. Because A & R has

                                       21
stated a claim upon which relief can be granted, the Department’s demurrer in this
regard should be overruled.
      In Count II, A & R asserts that the Department has violated Section 13 of the
SWMA, which provides:

      Any landowner and any person engaged in the alteration or
      development of land which may affect storm water runoff
      characteristics shall implement such measures consistent with the
      provisions of the applicable watershed storm water plan as are
      reasonably necessary to prevent injury to health, safety or other
      property. Such measures shall include such actions as are required:

      (1) to assure that the maximum rate of storm water runoff is no greater
      after development than prior to development activities; or

      (2) to manage the quantity, velocity and direction of resulting storm
      water runoff in a manner which otherwise adequately protects health
      and property from possible injury.

32 P.S. § 680.13. This violation, A & R argues, allows it to pursue civil remedies
under Section 15 of the SWMA, which states:

      (a) Any activity conducted in violation of the provisions of this act or
      of any watershed storm water plan, regulations or ordinances adopted
      hereunder, is hereby declared a public nuisance.

      (b) Suits to restrain, prevent or abate violation of this act or of any
      watershed storm water plan, regulations or ordinances adopted
      hereunder, may be instituted in equity or at law by the department,
      any affected county or municipality, or any aggrieved person. . . . .
      The expense of such proceedings shall be recoverable from the
      violator in such manner as may now or hereafter be provided by
      law.

      (c) Any person injured by conduct which violates the provisions of
      section 13 may, in addition to any other remedy provided under this
      act, recover damages caused by such violation from the landowner
      or other responsible person.


                                        22
32 P.S. § 680.15 (emphasis added). However, Section 4 of the SWMA specifically
excludes “any department, board, bureau or agency of the Commonwealth” from
the definition of “person” in “any section prescribing or imposing a penalty.” 32
P.S. § 680.4.
      In Kee, this Court distinguished actions seeking to enforce the SWMA, such
as an action in mandamus seeking to require a Commonwealth agency to file a
storm water management plan for a construction project, which was a ministerial
act, from an action seeking to “impos[e] monetary and other penalties” on a
Commonwealth agency for violations of the SWMA. 685 A.2d at 1059. While the
former action was authorized under the SWMA, the latter was not based on the
exclusion relied on by the Department here.         Id.   The Court did, however,
recognize that Section 13 of the SWMA did apply to state actors and “reject[ed]
the notion that compliance with a clearly stated statutory duty,” in that case the
filing of the storm water management plan, “constitute[d] a ‘penalty’ rather than a
ministerial act.” Id.
      Based on Kee, it is clear and free from doubt that A & R’s requests for
monetary damages and penalties under Section 15(c) are precluded. See also
Pastore, 618 A.2d at 1124 (granting summary judgment to state agency on
landowners’ claim for monetary damages arising out of a violation of the SWMA).
A & R concedes as much in its brief. (A & R’s Br. at 14.) Therefore, to the extent
A & R seeks monetary damages and penalties, the Department’s demurrer is
sustained in part and those claims are dismissed.
      This leaves A & R’s claims for abatement based on the Department’s
alleged violation of Section 13 of the SWMA and that it should be able to recover
the costs related to obtaining that relief under Section 15(b) of the SWMA. To



                                        23
address these claims, we consider the Department’s last two POs, which we will
address together.

      E. Whether A & R has sufficiently pled or stated a claim for a violation of
         the SWMA in Count II.
      Finally, the Department asserts two related POs based on its contentions that
Count II should be dismissed because A & R has not pled sufficient factual details
regarding the alleged alteration or development of the land and has not pled the
required elements for a SWMA claim. As to the asserted deficiency in the factual
pleading, the Department asserts that without facts as to what the alleged alteration
or development of the land was, when such alteration occurred, and what approved
storm water management plan it violated, the Department lacks sufficient
information to investigate those claims and raise any proper defense thereto. As to
the second deficiency, the Department argues that, to state a valid claim under the
SWMA, a party has to allege, at a minimum, the existence of a Department of
Environmental Protection (DEP)-approved storm water runoff plan covering the
subject area and a violation of that plan. (PO ¶ 50 (citing Lincoln Inv’rs, L.P. v.
King, 152 A.3d 382, 390 (Pa. Cmwlth. 2016)).) Here, the Department argues that
the pleading deficiencies cited above require the claim to be dismissed as legally
insufficient for not pleading the elements for a violation of the SWMA. Youst, 739
A.2d at 628. It maintains that while there may be circumstances where a claim can
be filed without having to allege the existence of a storm water runoff plan, such as
the mandamus action in Merlino v. Delaware County, 711 A.2d 1100, 1105-06 (Pa.
Cmwlth. 1998), where the petitioners sought to have a county to prepare such a
plan, the SWMA does not impose a general duty on the Commonwealth or other
property owners to retrofit existing properties to be consistent with a later-enacted
storm water management plan. Rather, such duty arises only in the location,

                                         24
design, and construction of projects, and common sense dictates that there can be
no violation of this duty if no plan existed at the time of its actions. Section 11(a)
of the SWMA, 32 P.S. § 680.11(a).
      A & R maintains that it has sufficiently stated a claim under Section 15(b),
pointing to Paragraph 90 of its Answer, New Matter, and Second Amended
Counterclaim, wherein it pleaded: “The Department has failed to implement such
measures consistent with the provisions of the applicable watershed storm water
plan as are reasonably necessary to prevent injury to the [Subject] Property.”
According to A & R, the Department acknowledges the existence of two County-
adopted watershed storm water plans approved by the DEP and, even if neither of
these apply, a violation of the SWMA itself can result in liability. Lincoln Inv’rs,
152 A.3d at 387. A & R further argues its pleadings sufficiently allege that the
violations occurred “prior to the challenged conveyance” in 2014 “and continue
potentially to this date.” (A & R’s Br. at 16.) Accordingly, A & R asserts, Section
15(b) of the SWMA permits recovery for Count II as pleaded and the demurrer
should be overruled.
      In reviewing a preliminary objection challenging the specificity of a
pleading, “[t]he pertinent question[s are] . . . whether the complaint is sufficiently
clear to enable the defendant to prepare [a] defense” and “whether the . . .
complaint informs the defendant with accuracy and completeness of the specific
basis on which recovery is sought so that [the defendant] may know without
question upon what grounds to make [a] defense.” Podolak v. Tobyhanna Twp.
Bd. of Supervisors, 37 A.3d 1283, 1288 (Pa. Cmwlth. 2012) (emphasis added)
(internal quotation marks omitted). “If it is possible that the pleading can be cured
by amendment, a court must give the pleader an opportunity to file an amended



                                         25
complaint. . . . This is not a matter of discretion with the court but rather a positive
duty.” Jones v. City of Philadelphia, 893 A.2d 837, 846 (Pa. Cmwlth. 2006)
(internal quotation marks omitted).
      In regard to the Department’s demurrer based on the legal insufficiency, we
note that by its terms, Section 15(b) of the SWMA authorizes a party aggrieved by
a violation of Section 13 to bring an action seeking the abatement of the violating
conduct. 32 P.S. § 680.15(b). While Section 15(b) liability can arise out of
violations of the SWMA itself, such as the failure of a county to adopt a storm
water plan, Merlino, 711 A.2d at 1105-06, or a developer’s failure to file the
SWMA-required storm water management plan, Kee, 685 A.2d at 1059, both of
which involved mandamus actions, this principle does not apply to Section 13
violations. To state a claim for violating Section 13 requires “a showing that the
landowner’s conduct violated the terms of a county-adopted watershed storm water
plan.” Lincoln Inv’rs, 152 A.3d at 390. As the existence of a county-adopted
watershed storm water plan is a prerequisite to a violation of Section 13, any claim
for damages for such a violation is limited to those incurred after the adoption of a
county watershed storm water plan. Id.
      Here, A & R is not seeking mandamus relief or asserting a violation of a
section of the SWMA other than Section 13. It is apparent from Count II that
A & R is asserting a violation of Section 13 of the SWMA and, therefore, must
allege that the Department’s “conduct violated the terms of a county-adopted
watershed storm water plan.” Lincoln Inv’rs, 152 A.3d at 390. A & R does aver
that “[t]he Department has engaged in the alteration or development of the
Department’s land which affects said land’s storm[ ]water run[ ]off characteristics”
and that the Department “failed to implement such measures consistent with the



                                          26
provisions of the applicable watershed storm water plan as are reasonably
necessary to prevent injury to the [Subject] Property.” (Answer, New Matter,
Second Amended Counterclaim ¶¶ 89-90.) Thus, this is not like Youst, wherein the
Court sustained the Department’s demurrer to the landowners’ claim of a violation
of Section 13 of the SWMA because the landowners did “not aver an alteration or
development of land affecting the land’s storm[ ]water run[ ]off characteristics.”
739 A.2d at 628.
      However, A & R’s averments at this time are “barebones,” (Department’s
Br. at 18), in that they do not set forth any details of the alleged alteration or
development, the time of that alteration or development, or which of the two
County watershed storm water plans the Department is alleged to have violated.
Without that information, the Department is not informed “with accuracy and
completeness of the specific basis on which recovery is sought” making it difficult
for the Department to investigate and “know without question upon what grounds
[it must] make [a] defense.” Podolak, 37 A.3d at 1288. But, because the Court
concludes it is possible that the lack of specificity in Count II could “be cured by
amendment,” we are duty-bound to provide A & R the opportunity to do so.
Jones, 893 A.2d at 846.      Therefore, while we sustain the Department’s POs
challenging the factual specificity and legal sufficiency of Count II as that count
relates to A & R’s claim for abatement and costs of recovery, we grant A & R
leave to amend Count II of its Counterclaim. Any amendment shall be filed within
20 days of this opinion and order.

   III.   Conclusion
      For the foregoing reasons, we overrule the Department’s PO asserting that
the Answer, New Matter, and Second Amended Counterclaim failed to conform to


                                        27
law because it was untimely filed. We sustain the Department’s PO asserting that
this Court lacks subject matter jurisdiction over Count I of the Second Amended
Counterclaim and dismiss Count I with prejudice. We overrule the Department’s
PO asserting that A & R failed to exhaust the available statutory remedy under the
Eminent Domain Code for the allegations relevant to Count II of the Second
Amended Counterclaim. We sustain the Department’s demurrers to Count II to the
extent A & R sought injunctive relief requiring the Department to take affirmative
actions and the payment of monetary damages and penalties, and those claims are
dismissed with prejudice. Finally, we sustain the Department’s POs as to the
factual specificity and legal sufficiency of Count II as it relates to A & R’s claims
for abatement and costs of recovery, but we grant A & R leave to amend Count II.
Any amendment shall be filed within 20 days of this opinion and order, or Count II
will be dismissed as a matter of course.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                           28
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,            :
Department of Transportation,            :
                        Plaintiff        :
                                         :
                   v.                    :   No. 713 M.D. 2018
                                         :
A & R Development Co.,                   :
                         Defendant       :

                                    ORDER


      NOW, March 9, 2020, the Commonwealth of Pennsylvania, Department of
Transportation’s (Department) preliminary objection asserting that A & R
Development Co.’s (A & R) Answer, New Matter, and Second Amended
Counterclaim failed to conform to law is OVERRULED.             The Department’s
preliminary objection challenging this Court’s jurisdiction over Count I of A & R’s
Second Amended Counterclaim is SUSTAINED, and Count I is dismissed with
prejudice. The Department’s preliminary objection to Count II of the Second
Amended Counterclaim based on the failure of A & R to exhaust an available
statutory remedy is OVERRULED. The Department’s demurrers to Count II of
the Second Amended Counterclaim are SUSTAINED to the extent A & R seeks
injunctive relief requiring the Department to take affirmative actions and the
payment of monetary damages and penalties, and those claims are dismissed with
prejudice. The Department’s preliminary objections as to the factual specificity
and legal sufficiency of Count II of the Second Amended Counterclaim as it relates
to A & R’s claims for abatement and costs of recovery are SUSTAINED, but
A & R is GRANTED LEAVE TO AMEND Count II. Any amendment shall be
filed within 20 days of this opinion and order or Count II of the Second Amended
Counterclaim will be dismissed as a matter of course.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
