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Home My WebLink About12-6241JEFFREY 8~ BARBARA HAWKINS, Plaintiffs vs. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendants COMPLAINT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ~3 ~ ~: ^ t ' ~ ~ ~ d~~ ~ l V t ~ NO , ~ ~r ~ ~~ . a ' ~. c n ~ "~ -~ r ~.-,~ c.n c:~ , JURY TRIAL DEMANDED ~ ~' A. K ~ ' CIVIL ACTION -LAW ~~~'~. ~ , °_`~ • r- ~.~ ~ ~- > 1. Plaintiffs, Jeffrey and Barbara Hawkins, are adult individuals who currently reside at 1450 Main Street (Lisburn), Mechanicsburg, PA 17055. 2. Defendant, Commonwealth of Pennsylvanian, Department of Transportation (hereinafter "PennDOT") is a Commonwealth agency located at Keystone Building, 400 North Street, Harrisburg, PA 17120. 3. Plaintiffs, on or about July 17, 2012, served notice on the Office of Attorney General and PennDOT that it intended to file a civil action against PennDOT seeking to recover damages under Section 417 of the State Highway Law, 36 P.S. §670-417. 4. Plaintiffs originally filed a complaint against PennDOT on August 1, 2012 with Magisterial District Judge Charles A. Clement, Jr. ("Judge Clement"), Docket No. MJ-09101-CV-0000301-2012. 5. Judge Clement issued a Notice of Judgment dated September 7, 2012 stating that complaint was being dismissed without prejudice apparently because the p~~~~ ~s~1~~~ C b S (k- ~,kkaPl(~32 jurisdiction of a district justice does not extend to claims by or against a Commonwealth party under Section 1515(a)(3) of the Judicial Code, 42 Pa.C.S. §1515(a)(3). 6. Plaintiffs sent a letter to Judge Clement and counsel for PennDOT on September 14, 2012 requesting that the complaint be transferred to the Cumberland County Court of Common Pleas pursuant to Section 5103(a) of the Judicial Code, 42 Pa. C.S.A. §5103(a), which provides: General rule.--If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. A matter which is within the exclusive jurisdiction of a court or magisterial district judge of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal. 7. Plaintiffs were advised by staff for the magisterial district judge and the court clerk for the Cumberland County Court of Common Pleas ("Common Pleas Court") that the transfer under the Section 5103(a) of the Judicial Code could not occur and that Plaintiff would need to file a new complaint with the Common Pleas Court. 8. Plaintiffs file this civil complaint pursuant to Section 417 of the State Highway Law, 36 P.S. §670-417, for damages caused by a work crew from PennDOT's Cumberland County Maintenance- Office. 2 9. Specifically, the PennDOT work crew entered Plaintiffs property without permission or prior written or oral notice on or about April 4, 2012 supposedly to perform maintenance on a small drainage ditch along State Route 114. 10. The small drainage ditch covers approximately sixty (60) square feet of Plaintiffs' property and is lined with rip rap. 11. When Plaintiffs' neighbor, Mr. Ray Deremer, approached the PennDOT work crew and inquired as to what they were doing the crew leader advised him that: (1) they could do whatever they wanted to do in the right-of-way; (2) they "had their marching orders"; and (3) they did not need to advise Plaintiffs of PennDOT's activities on their property. 12. The PennDOT work crew came in with heavy construction equipment (Gradall) and removed several mature shrubs, extensive groundcover, numerous flowers, bulbs, and ferns, and the topsoil from approximately 550 square feet of Plaintiffs' property. 13. During a meeting with Plaintiffs, Mr. Steven Sayers, Assistant Highway Maintenance Manager in Cumberland County, stated that he had directed the PennDOT work crew to clean out drainage ditches along State Route 114 during the first week of April 2012. 14. The area that PennDOT destroyed is not part of the drainage ditch. 15. PennDOT's destructive actions resulted in the removal of mature vegetation that served to limit runoff and the washing out of the four-foot high, steep embankment that supports State Route 114. 3 16. As a result of PennDOT's negligence water runoff now collects in the drainage ditch creating a small pond of water during and after rain storms. 17. The loss of mature vegetation has resulted in a loss of privacy for Plaintiffs and their neighbors. 18. Based on Plaintiffs' conversations with a few neighbors and Mr. Steven Sayers, there has not been any complaints of flooding associated with the drainage ditch. 19. To the contrary a small stream is created over Plaintiffs and their neighbor's property during heavy rains, which is created by runoff from the roadway and from the small drainpipe (approximately 14 inches). 20. The PennDOT work crew did not clean out the drainpipe, which is connected to a drain on the opposite side of State Route 114, as part of its maintenance of the drainage ditch. 21. Over the past six years Plaintiffs have cleared out a significant amount of brush from the drainage ditch, including a three inch diameter tree that was growing directly in front of the small drainpipe. 22. Plaintiffs were in the process of naturalizing the area with species of plants that would tolerate the runoff from the roadway and had recently cut down a six inch diameter tree in the runoff area and were in the process of cleaning up the debris from the cut-up tree. 23. As property owners along State Route 114 Plaintiffs are responsible to provide vertical and lateral support for the state roadway and can be held liable for 4 restoration of the roadway under Section 419 of the State Highway Law, 36 P.S. §670- 419. 24. The unnecessary removal of mature vegetation by the PennDOT work crew has created the potential for erosion of the lateral support of State Route 114 and needlessly exposes Plaintiffs to significant liability. 25. This is particularly the case since, as previously noted, the drainage ditch now fills up with a significant amount of standing water when it rains before flowing over Plaintiffs' yard to a wetland area behind Plaintiffs' neighbor's property. COUNT I -NEGLIGENCE 26. Paragraphs 1 through 25 are incorporated by reference as if set forth herein. 27. Plaintiffs file this civil complaint against PennDOT pursuant to Section 417 of the State Highway Law, 36 P.S. §670-417, 36 P.S. § 670-417, which provides: The department [PennDOT] shall have authority to enter upon any lands or enclosures, and cut, open, maintain, and repair such drains or ditches, inlets or outlets through the same as are necessary to carry the waters from roads, highways, or within, at the top, or base of, slope areas, constructed or improved at the expense of the Commonwealth or under its supervision. Any damages sustained by the owner or owners of land entered upon by the department for such purposes, shall be paid in the same manner as provided by this act in the construction of State highways. The determination of the amount of damage shall be in accordance with the provisions of Article III of this act. Emphasis added. 5 28. Plaintiffs suffered damages in excess of $2,000, including actual damages, court costs, loss of privacy, loss of use of property, and interference with peaceful possession of real estate as a result of the negligent and destructive actions of a work crew from the PennDOT's Cumberland County Maintenance Office. 29. Plaintiffs are entitled to damages for the breach of PennDOT's duty to clean the 50 to 60 square foot drainage ditch without completely and needlessly clearing approximately an additional 550 square feet of Plaintiffs' property, which is situated outside the area of the drainage ditch. 30. PennDOT's negligent and destructive actions have resulted in Plaintiffs being unnecessarily exposed to liability for restoration of the roadway under Section 419 of the State Highway Law, 36 P.S. §670-419, since Plaintiffs are responsible to provide vertical and lateral support for State Route 114. WHEREFORE, Plaintiffs, Jeffrey and Barbara Hawkins, request this Honorable Court to enter a judgment including costs of this action. Date: ~o~s ~/ z- Respectfully submitted, By: __ arbara A. Hawkins 1450 Main Street Mechanicsburg, PA 17055 717/697-0277 or 717/439-1172 6 CERTIFICATE OF SERVICE AND NOW, this day of October, 2012, I hereby certify that I have served the foregoing Complaint on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: Commonwealth of Pennsylvania, Department of Transportation Keystone Building 400 North Street Harrisburg, PA 17120 arbara A. Hawkins Daniel R. Goodemote Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15t'' Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-3147 E-Mail: d~oodemote~c~attorneygeneral.~ov JEFFREY & BARBARA HAWKINS, Plaintiffs v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PA No. 12-6241 CIVIL ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, Commonwealth of Pennsylvania, Department of Transportation, in regard to the above case. Respectfully submitted., LINDA L. KELLY Attorney General ~'~ ~~ 1 7 y ~ ~ ~ ___ ____ r : , ~. Goodemote Senior Deputy Attorney General Supreme Court No. 30986 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document(s) upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Barbara A. Hawkins 1450 Main Street Mechanicsburg, PA 17055 ''. '~ ~_°, By: ____ _ Dan'e~. . Goodemote S~Sieme Court No. 30986 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-3147 -Direct Dial DATED: October 26, 2012