           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard E. Griffith and Noreen                 :
F. Griffith, husband and wife                  :
                                               :
                     v.                        :   No. 1062 C.D. 2018
                                               :   ARGUED: May 6, 2019
Millcreek Township,                            :
                             Appellant         :


BEFORE:       MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
SENIOR JUDGE LEADBETTER                                     FILED: July 30, 2019


              Millcreek Township appeals from an order of the Court of Common
Pleas of Erie County (trial court) overruling the Township’s preliminary objections
and granting the petition for appointment of a board of viewers. The petition, filed
by Richard E. Griffith and Noreen F. Griffith, husband and wife (Landowners),
alleged a de facto taking of property1 when a 2013 storm water landslide rendered
their home uninhabitable. In this appeal, we must consider the difference between
such a taking and a simple tort claim in order to determine whether the damages to
the Griffith property (the Property) were the immediate, necessary, and unavoidable
consequence of the Township’s exercise of its eminent domain power. For the
reasons that follow, we reverse.




    1
       The property is located at 5020 Saybrook Place in Section 3 of the Garnesdiyo Subdivision
in the Township.
             The pertinent background of the subdivision is as follows: In March
1966, the original owners of the entire parcel of land encompassing the Subdivision
(Developers) applied to the Township for approval of the plot plan for Section 1 of
the Subdivision. (Trial Court’s Op. at 1-2.) In the ensuing decades, they developed
and constructed six sections. In a September 1987 letter, the Township engineer
congratulated Developers on completion of the subdivision and informed them that
the Township supervisors had officially released the remaining bonds. (Stipulated
Fact “S.F.” Nos. 95-96.)       Accordingly, with the Township’s September 1987
accepted dedication of the storm water pipes, the Township assumed ownership and
responsibility for maintaining the subdivision’s entire storm water system. (Trial
Court’s Op. at 16.)
             With respect to the Property itself, in 1979 Developers conveyed the
original Lot 13, subsequently known as 5020 Saybrook Place, to the Venables. In
1992, Mr. Griffith, one of the current Landowners, purchased the Property from the
Venables. In 2006, Mr. Griffith conveyed the Property to Landowners in a quitclaim
deed. In 2012, the owners of adjoining Lot 12, the Mrazes, divided it into Lots 12
and 12A.      Following the conveyance of Lot 12A, Landowners executed a
consolidation deed merging Lots 12A and 13 into a single parcel. (Id. at 3.) That
irregularly shaped parcel encompasses 4.09 acres, overlooks Lake Erie, and features
a single-family home near the southeastern corner of the lot. (S.F. No. 3.) The
“Property is bounded on the north by a crest of a bluff above Lake Erie, on the south
by a public street named Saybrook Place, on the west by a residential lot, and on the
east by a residential lot and ravine. . . .” (S.F. No. 4.) The corner of the house closest
to the ravine is twenty feet west of it. (Id.) In addition, “[n]umerous large, heavy,




                                            2
and tall trees with trunks as much as forty inches in diameter existed along the entire
length of [the] Property’s eastern boundary along the [r]avine.” (Id.)
             As for the September 2013 event that precipitated Landowners’
petition, a massive landslide of trees and soil fell along the entire eastern boundary
of the Property forcing Landowners to abandon their home. (Trial Court’s Op. at 3.)
In describing the landslide, the trial court stated:

             The subsidence was so severe it removed the soil
             supporting the concrete footers for the eastern half of the
             Griffiths’ residence. This loss in fundamental support
             impacted the entire structural integrity of [the] home,
             rendering it uninhabitable. An open fault line was created
             on the level area of [Landowners’] property presenting an
             ominous and dangerous condition.

(Id.)
             As for the subdivision’s storm water system, the pertinent mechanics
are as follows: Two large pipes discharging storm water into the ravine aim directly
at the west bank of the ravine at the point where the eastern part of the Property
collapsed. (Id. at 23.) The thirty-six inch pipe, which draws storm water from
Sections 1 and 2 of the subdivision and runs through drainage Easement No. 1, is
situated one or two feet above the bottom of the ravine. The forty-two inch pipe,
which draws storm water from the remaining sections and diverts it through
Easement No. 2 to Easement No. 1, is situated about four feet above the bottom of
the ravine and directly above the smaller pipe. (Id.) “Both pipes have an open flow
of water descending from these elevated positions directly onto the ground.” (Id.)
Notably, there is no anti-erosion landscaping or outlet protection such as headwalls,
wing walls, or riprap rock at the end of the two pipes to dissipate the energy of the
water cascading directly onto the hard clay bottom of the ravine. (Id. at 23-24.)



                                            3
               Also with regard to the storm water system, the trial court observed that
the Township in 1979 permitted the elimination of a planned Easement No. 3 and a
discharge point for storm water into a sedimentation basin. (Id. at 13-14.) In
contemplating the elimination, the trial court observed that the only storm water
being discharged into the ravine when the building permit was issued to the
Venables, the original owners, came from Section 1.2 (Id. at 14.) With the
Township’s 1979 acceptance of plans without Easement No. 3, “[a]ll of the storm
water that was intended to be discharged within Easement No. 3 instead got diverted
into larger pipes that ultimately got discharged through the [forty-two]-inch pipe in
Easement 1.” (Id.) The trial court characterized the elimination as having “a direct
impact on the reasons why the . . . landslide occurred . . . .” (Id.) Accordingly, the
trial court concluded that “[t]he overwhelming weight of the engineering evidence
is that the Township’s storm water system . . . was the primary cause of accelerated
erosion of the west ravine bank along the eastern border of [Landowners’] property.”
(Id. at 24.)
               In August 2015, Landowners filed their petition alleging that the
Township’s design, construction, review, acceptance, operation and/or maintenance
of the subdivision’s storm water system caused a landslide on the property, rendered
their home uninhabitable, and constituted a de facto taking under Section 502 of the
Eminent Domain Code, 26 Pa.C.S. § 502.3 In September 2015, the Township filed
preliminary objections asserting that there was no taking, that Landowners
improperly asserted a trespass claim, and that the petition was untimely. In March

    2
      The 1977 building permit provided: “Owner assumes total responsibility for locating
dwelling in close proximity to top of ravine.” (Trial Court’s Op. at 13.)
    3
      Landowners also filed a five-count complaint in the lower court alleging, inter alia, trespass,
private nuisance, public nuisance, and negligence. (August 15, 2015, Complaint, Docket No.
12376-15; Appendix to Township’s Brief at 44-54.)


                                                 4
2018, the parties entered into a comprehensive stipulation of facts. Subsequently,
the trial court conducted an April 2018 hearing at which only Mr. Griffith and his
expert testified. In July 2018, the trial court overruled the preliminary objections
and granted the Petition. The Township’s appeal followed.4
               Pursuant to 26 Pa.C.S. § 502(c)(1), the owner of a property interest may
file a petition for the appointment of viewers seeking compensation for an alleged
injury to property by asserting “that the owner’s property has been condemned
without the filing of a declaration of taking.” There is a heavy burden of proof in de
facto taking cases. Rowland v. Dep’t of Gen. Servs., 820 A.2d 896, 899 (Pa. Cmwlth.
2003). Specifically, the owner must allege and prove the following: 1) condemnor
has the power to condemn the land under eminent domain procedures; 2) exceptional
circumstances have substantially deprived the owner of the use and enjoyment of the
property; and 3) the damages sustained were the immediate, necessary, and
unavoidable consequences of the exercise of the power of eminent domain. Appeal
of Jacobs, 423 A.2d 442, 443 (Pa. Cmwlth. 1980). The power of eminent domain
has been characterized as “the power to take property for public use” without the
consent of the property owner. Hill v. City of Bethlehem, 909 A.2d 439, 444 (Pa.
Cmwlth. 2006).        We have noted that, “a de facto taking must result from a
governmental body’s actual exercise of the power of eminent domain.” Rowland,
820 A.2d at 898.
               However, to the extent that the “actual exercise of the power of eminent
domain” suggests actions identical to a de jure condemnation but without the filing


    4
      In this appeal, we are asked to consider whether the trial court erred as a matter of law, a
question over which we exercise plenary review. Pacella v. Washington Cty. Tax Claim Bureau,
10 A.3d 422, 425 n.4 (Pa. Cmwlth. 2010).



                                                5
of a declaration, such as the acquisition of property by consent,5 our cases make clear
that is too restrictive a view. Rather, “[a] ‘de facto taking’ occurs when an entity
clothed with the power of eminent domain has, by even a non-appropriative act or
activity, substantially deprive[d] an owner of the beneficial use and enjoyment of his
property.” Genter v. Blair Cty. Convention & Sports Facilities Auth., 805 A.2d 51,
55 (Pa. Cmwlth. 2002).          Further, “a de facto taking requires that the injury
complained of [be] a direct result of intentional action by an entity incidental to its
exercise of its eminent domain power.” DeLuca v. Mountaintop Area Joint Sanitary
Auth., 166 A.3d 553, 562 (Pa. Cmwlth. 2017) (emphasis added); see also Williams
v. Borough of Blakely, 25 A.3d 458, 463 (Pa. Cmwlth. 2011). On the other hand,
where injuries result from the negligence of a condemning body’s agents, there is no
de facto taking. Jacobs, 423 A.2d at 443; see also Williams, 25 A.3d at 467 n.6 (tort
claims such as trespass do not support a claim for a de facto taking). In this regard,
it must be noted that many, if not most, negligence cases involve some intentional
conduct by the tortfeasor. The critical question is whether the actor knew—or
willfully closed his eyes to that which he should have known—that his action would
cause the harm, or whether that harm was merely foreseeable.
              Two cases illustrate the distinction between governmental action which
constitutes negligence and that which amounts to a de facto taking: Jacobs and
DeLuca. In Jacobs, the owners experienced serious drainage problems attributable
to a change in natural topography caused by the upstream erection of a high school,
a retirement home, and several single residential homes. They alleged a de facto
taking, maintaining that the township unlawfully issued the building permits,

    5
      Interestingly, the 1987 acceptance of the dedication of the storm water system could be so
characterized, although that act was remote in time from Landowners’ injury, and in no way could
the landslide be said to be the immediate and necessary consequence of that acquisition.


                                               6
improperly approved the subdivision, and wrongfully contributed to the design of
the drainage plans for the high school. We disagreed, concluding that the township’s
issuance of the building permits, approval of the subdivision, and contribution to the
design of the drainage plans “were in no manner related or incidental to the
[t]ownship’s condemnation powers.” Jacobs, 423 A.2d at 443. Additionally,
observing that the owners were charging the township with negligence in performing
the aforementioned actions, we concluded that no recovery could be obtained
through eminent domain proceedings. Further, we stated that courts were more
likely to find a taking where the government’s action complained of was purposeful
and deliberate, such as the drainage plans at issue in Greger v. Canton Township,
399 A.2d 138 (Pa. Cmwlth. 1979).6
               In DeLuca, we considered whether the sanitary authority’s repeated
infiltration of sewage onto the owner’s property effected a de facto condemnation.
In determining that the discharge amounted to a de facto taking, we focused on the
authority’s intentional action. Specifically, we cited the authority’s choice to operate
its system in a manner that would sporadically result in reoccurring sewage
infiltration events. In affirming the lower court’s order granting the owner’s petition
for appointment of a board of viewers, we noted the authority’s failure to take
appropriate steps to remedy the structural defects in its system despite its knowledge
that the system as designed and built continued to cause the reoccurring events.




    6
      In Greger, the lower court concluded that the flooding of the owners’ property was the direct
and necessary consequence of the township’s drainage plans and, therefore, constituted a de facto
taking. This Court, however, did not discuss the distinction between negligence and willful
conduct and it is impossible to determine whether the trial court’s use of the term “necessary”
meant that the township knew that flooding would result from its actions. Therefore, we do not
find the holding in Greger applicable here.


                                                7
             In the case at hand, the trial court focused on the cumulative nature of
the Township’s actions or failure to act with respect to the storm water system over
the course of decades. In general, the trial court noted the Township’s incremental
approvals, power to impose conditions, imposition of conditions, failure to impose
conditions such as additional discharge points and easements, acceptance of the
dedicated storm water system, and subsequent maintenance. More specifically, the
trial court determined that, from 1966 to 1987, “[t]he Township had the authority to
review, place conditions on, demand changes to, [and] refuse the approval and/or
ownership of the storm water system within the Subdivision.” (Trial Court’s Op. at
9.) In addition, “[s]ince [1987], the Township has owned and had the responsibility
to maintain all of the storm water system for the entire Subdivision knowing that it
discharges into the ravine in Easement 1 adjacent to [Landowners’] property.” (Id.
at 16.) In that regard, the trial court emphasized “the Township’s proactive role in
the diversion of storm water that dramatically changed the normal flow and manner
of storm water coming into the ravine in Easement 1.” (Id. at 17.) In so doing, the
trial court dismissed the notion that the Township’s actions over time were
ministerial, instead characterizing the Township’s planning and approval from 1966
to 1987 as intentional and active. The trial court did not however find, or even
suggest, that the Township knew or turned a blind eye to a likelihood that its acts
would cause a landslide, let alone one that would destroy Landowners’ home.
             We must conclude that the trial court’s rationale, based on the parties’
stipulated facts and the evidence adduced at the hearing, relates to a trespass claim
rather than a de facto taking. While the Township might have been negligent in the
planning and operation of the storm water system, a question which is not before us




                                         8
and which we do not decide, it did not effect a de facto taking pursuant to the
Eminent Domain Code.7
               Accordingly, we reverse.8




                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




    7
      Actions in trespass and claims for condemnation are not mutually exclusive. DeLuca, 166
A.3d at 561. In other words, “[a] judgment in trespass does not bar a subsequent condemnation
claim.” Id.
    8
      In light of our determination that Landowners failed to establish a de facto taking, we need
not address the applicability of the statute of limitations or any issues regarding the effect of
Landowners’ purchase of the Property with presumed knowledge of the easements.


                                                9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard E. Griffith and Noreen         :
F. Griffith, husband and wife          :
                                       :
                  v.                   :   No. 1062 C.D. 2018
                                       :
Millcreek Township,                    :
                        Appellant      :


                                    ORDER


            AND NOW, this 30th day of July, 2019, the order of the Court of
Common Pleas of Erie County is hereby REVERSED.




                                     ____________________________ _________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
