          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Condemnation of the                :
Property of Carl and Rosemary             :
LeFever, Located at                       :
445 Tyson Road, Schwenksville,            :
Lower Salford Township                    :
                                          :
Carl and Rosemary LeFever,                :
                                          :
                          Appellants      :
                                          :
                   v.                     : 1251 C.D. 2016
                                          : Submitted: May 1, 2017
Lower Salford Township                    :
Authority and Lower Salford               :
Township                                  :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: May 31, 2017



              Carl LeFever and Rosemary LeFever (Owners)1 appeal from the
June 16, 2016 order of the Court of Common Pleas of Montgomery County (trial
court) granting the preliminary objections filed by Lower Salford Township


      1
        The record reflects that Carl LeFever died prior to the June 16, 2016 hearing.
Reproduced Record (R.R.) at 39.
(Township) to Owners’ Petition for Appointment of a Board of Viewers (Petition).
We affirm.
             Owners are the record owners of property located at 445 Tyson Road,
Schwenksville, Lower Salford Township, Montgomery County, Pennsylvania. On
May 3, 2004, Owners entered into an agreement with the Township for a
“Permanent Stormwater and Guiderail Easement and Temporary Construction and
Grading Easement for Roadway Slopes.” R.R. at 67-76. The Township easement
agreement granted the Township a permanent right of way and easement for the
collection and discharge of storm water over, under, and through a portion of the
property as set forth on Exhibit A to that agreement. R.R. at 69, 76. It provided
that the Township could perform construction and grading as reflected on the plan
for the placement of 100 feet of under drain on the west side of a culvert to replace
existing piping. It also provided a guiderail easement to construct and maintain a
guiderail in the areas shown on the exhibit, as well as a temporary construction
easement for the construction and grading of roadway slopes. The work was
performed in 2005. R.R. at 56.
             On July 5, 2005, Owners executed a “Deed of Easement” to the
Lower Salford Township Authority (Authority), permitting the Authority to install
a sewer line force main along Tyson Road on Owners’ property. Owners received
approximately $9,000.00 in credit against their sewer assessment as compensation
for this easement.
             On July 15, 2011, Owners filed a Petition for Appointment of a Board
of Viewers (Petition), naming the Authority and the Township as Condemnors. In
relevant part, the Petition alleges as follows:




                                           2
               3. A Deed of Easement Agreement was entered into
               between [Owners] and the [Authority] on July 5, 2005,
               that permitted the Defendants/Condemnors to install a
               sewer force main along Tyson Road on [Owners’]
               property.

               3.[2] Pursuant to the aforesaid Easement Agreement, the
               Defendants/Condemnors installed a sewer force main
               along Tyson Road on [Owners’ property]. Construction
               began after July 15, 2005.

               4. The installation of the aforesaid force main resulted in
               damage being done to [Owners’] property, subsequent to
               the date of the Easement Agreement, in that a steep
               incline has been created along the side of Tyson Road
               upon [Owners’] property.

               5. The steep incline described above herein has resulted
               in severe puddling along [Owners’] property and has also
               resulted in the creation of a swale upon the property.

               6. As a result of the steep incline and swale caused by
               Defendants’/Condemnors’ actions it is now impossible to
               access certain portions of [Owners’] property.

               7. As a result of the above actions, Defendants/
               Condemnors (Lower Salford Authority and Lower
               Salford Township) have effected a de facto
               condemnation of [Owners’] property.
Petition, ¶¶3-7, Supplemental Reproduced Record (S.R.R.) at 3b-4b.           Further
alleging that no compensation had been paid and no declaration of taking had been
filed, Owners requested the appointment of a board of viewers for a determination
of damages. S.R.R. at 4b-5b.
               The Authority filed preliminary objections (POs) to Owners’ Petition
on August 4, 2011. On September 11, 2011, Owners filed an answer to the POs,

      2
          Two separate paragraphs are numbered “3.”



                                              3
and the Township joined in the POs. R.R. at 406. The POs assert that, in light of
the easement agreements, Owners’ vague description of the property alleged to
have been condemned as a “steep incline along the side of Tyson Road,” fails to
comply with the requirement of Section 502(a)(5) of the Eminent Domain Code,
26 Pa.C.S. §502(a)(5), that a petition must set forth a “brief description of the
property acquired.” The POs also assert that the Petition is legally insufficient
because the easement agreements reflect that the Authority and the Township were
permitted to undertake construction, including grading and modification to the
roadway slopes to permit the collection and discharge of storm water within the
40-foot wide drainage easement on the property.
             No further action was taken on the matter until, January 14, 2016,
when Owners’ new counsel requested argument on the POs. On February 22,
2016, the Authority filed a brief in support of its POs which the Township joined
on February 24, 2016. On June 2, 2016, the trial court scheduled a hearing on the
POs for June 16, 2016.
             At the start of the hearing, the parties stipulated to the dismissal of the
Authority. Robin K. Youmans, P.E., testified on behalf of the Township; Owners
offered no additional evidence. The trial court concluded that Owners’ Petition did
not set forth an adequate description of the property allegedly condemned and that
Owners’ claims of a de facto condemnation were legally insufficient. Accordingly,
the trial court sustained the POs, and Owners now appeal to this Court.3




      3
          Our scope of review is limited to determining whether the trial court abused its
discretion or committed an error of law. In re Condemnation of Certain Properties, 822 A.2d
846, 849 n.6 (Pa. Cmwlth. 2003).


                                            4
               When reviewing preliminary objections to a petition for appointment
of a board of viewers, a court must determine whether, as a matter of law, the
averments of the petition for appointment of a board of viewers, taken as true, in
addition to any stipulated facts, are sufficient to state a cause of action for a de
facto taking. Linde Enterprises, Inc. v. Lackawanna River Basin Sewer Authority,
911 A.2d 658, 661 (Pa. Cmwlth. 2006). If not, the preliminary objections must be
sustained. Id.
               Section 502(c) of the Eminent Domain Code, 26 Pa. C.S. §502(c),
allows a property owner to petition for viewers to secure damages where a
compensable injury has been sustained as a result of a condemnation by a
condemnor that has not filed a declaration of taking.4 In all cases, a party alleging
a de facto taking bears a heavy burden to establish that a de facto taking has
occurred and must allege and prove three elements: 1) the alleged condemnor has
the power to condemn the property; 2) there are exceptional circumstances that
have substantially deprived the owner of the beneficial use and enjoyment of his
property; and 3) the damage to the property interest was the immediate, necessary,
and unavoidable consequence of the exercise of the power to condemn (as opposed
to some action in the nature of a tort). Williams v. Borough of Blakely, 25 A.3d
458, 463 (Pa. Cmwlth. 2011). A de facto taking “is not a physical seizure of


       4
         Such injuries are distinguished from actions in trespass or negligence. See, e.g., Espy v.
Butler Area Sewer Authority, 437 A.2d 1269, 1271 (Pa. Cmwlth. 1981). In addition, Section 714
of the Code, 26 Pa. C.S. §714, allows for claims for consequential damages in limited
circumstances where a property abutting the area of an improvement is damaged as a result of a
“change of grade of a road or highway, permanent interference with access or injury to surface
support,” which claim may be made “whether or not any property is taken.” A claim for
consequential damages is separate and distinct from a claim for a de facto taking. Colombari v.
Port Authority of Allegheny County, 951 A.2d 409, 415 (Pa. Cmwlth. 2008).


                                                5
property; it is an interference with one of the rights of ownership that substantially
deprives the owner of the beneficial use of his property.” Id. at 465.
             The applicable standard for determining whether activity has deprived
an owner of the beneficial use and enjoyment of property depends on the type of
use involved. Genter v. Blair County Convention and Sports Facilities Authority,
805 A.2d 51, 56-57 (Pa. Cmwlth. 2002). For owner-occupied residential
properties, if the owner can still use his property as a residence and the whole
property will not be condemned, there is no substantial deprivation of the
property’s highest and best use, and, thus no de facto taking. Id.; Department of
Transportation v. Steppler, 542 A.2d 175, 178 (Pa. Cmwlth. 1988).
             Owners acknowledge that the July 5, 2005 easement agreement
permitted the Authority to install a sewer force main. However, they now contend
that, as installed, the sewer force main extended on their property well beyond the
scope of the Authority’s easement. Specifically, Owners assert that when the
easement agreements were executed, the property had five usable lots and that
subsequent to the installation of the sewer force main, their property has been
pushed up, creating a steep grade that has limited access on one lot, completely
prevented access on three lots, and made access on the final lot, where the house
and barn are situated, far more difficult. Further, Owners assert that the grading
changes have caused the residential lot to be out of compliance with state and
federal regulations, have caused structural defects to the larger barn, and flooded
the entirety of another lot. Owners also claim that the installation of the sewer and
movement of the road over 18 feet onto their property caused them to lose more
than a quarter-acre of their property that was not contemplated in the easement.




                                          6
According to Owners’ assertions on appeal, the installed sewer continues to erode
their property.
              However, Owners do not allege that any specific actions taken by the
Township substantially deprived them of the beneficial use of their property. More
important, to the extent the above factual assertions implicate the Township, they
are not set forth in the Petition, and Owners did not present any evidence to
support these assertions at the hearing.5
              On appeal, Owners first argue that the Township’s POs should have
been overruled based on the doctrine of estoppel by laches. We disagree. Laches
bars relief when the complaining party is guilty of due diligence in failing to
institute or prosecute a claim. Morgan v. Harnischfeger Corp., 791 A.2d 1273,
1277 (Pa. Cmwlth. 2002). In this matter, Owners are the complaining party. Thus,
Owners had the obligation to move the case forward, as well as the power to do so.
Owners assert they “did everything they [could] to defend their rights and seek a
resolution,” Owners’ brief at 11, but they waited more than four years before
requesting a hearing. Accordingly, we reject Owners’ contention that the POs
should have been overruled based on laches.
              Owners next argue that the trial court erred in sustaining the POs
because the “the record is clear” that the construction violated the terms of the
easement, depriving [Owners] of the beneficial use of their property.” Owners’
brief at 11. In making this argument, Owners rely on the above facts, asserted for
the first time in their appellate brief. They also cite Youmans’ testimony, and

       5
         Significant portions of the Reproduced Record are not contained in the certified record.
See docket. The certified record includes the transcript of the June 16, 2016 hearing, at which
Youmans was the only witness and testified for the Township. The documents submitted at the
hearing included Youmans’ curriculum vitae and copies of the two easement agreements.


                                               7
specifically, her statements that she did not confirm that the Township’s plans were
in accordance with “the deed of easement.”        Owners’ brief at 14.      Owners
complain that “at no point could [Youmans] indicate that the sewer plan and
construction were in accord with the Township’s plans.” Owners’ brief at 14-15.
However, Owners’ factual assertions are almost entirely addressed to conduct
undertaken by the Authority. Additionally, although Owners correctly set forth the
burden on a property owner to establish a de facto taking, they argue that the
weight of the evidence did not favor the Township. Id.
            In In re Condemnation by the Department of Transportation, 827
A.2d 544 (Pa. Cmwlth. 2003), the Department of Transportation (PennDOT) filed
a declaration of taking to obtain an easement over a portion of the landowner’s
property in connection with a road-widening project.       The landowner filed a
petition for appointment of viewers and was awarded monetary compensation.
Neither party appealed. After construction began, the landowner discovered that
the edge of the cartway was closer to his property than originally planned. The
landowner filed another petition for appointment of viewers, asserting that the
cartway’s expansion resulted in a de facto taking of his property. PennDOT filed
POs, asserting in part that the landowner received just compensation for the taking
years before and that there was no evidence of a de facto taking. The trial court
sustained the POs.
            On appeal, this Court rejected the landowner’s substantial evidence
argument, concluding that the trial court’s findings were supported by exhibits and
the landowner’s testimony. Addressing arguments related to water and snow, we
stated:
            Water overflow can constitute a de facto taking if the
            overflow becomes an “actual, permanent invasion of the
            land amounting to an appropriation thereof, and not
                                         8
              merely an injury to the property.” Landowner testified
              when the catch basins clog[,] water enters his property.
              The trial court held this proof insufficient to constitute a
              de facto taking. We decline to reconsider the weight of
              the evidence or to interfere with this determination.
Id. at 548-49 (citations omitted). See also West Penn Power Co. v Bruni, 387 A.2d
1316 (Pa. Cmwlth. 1978) (overruling a trial court’s determination that a de facto
taking had occurred because the property owners presented no evidence that the
appellant power company had exceeded the rights granted to it in a right-of-way
agreement).
              Here, Owners rely entirely on Youmans’ testimony as evidence that a
de facto taking occurred. As illustrated by the excerpts Owners cite on appeal, that
testimony is not sufficient to meet their heavy burden of proof.
              Owners’ final argument is that the trial court erred in granting the
second PO because it pertains only to the Authority and the only issue that was
properly before the trial court concerned the description of the property.
              The second PO challenges the legal sufficiency of Owners’
allegations that the Authority effected a de facto taking of their property. That PO
is supported in part by averments that: Owners entered into an easement with the
Township that permitted the Township to grade and modify the roadway slopes on
the property; Owners granted the Township a permanent storm water easement
allowing for a permanent right-of-way and easement for the collection and
discharge of storm water; and, as a result of the Authority’s and Township’s
easements, there has not been a de facto condemnation of Owners’ property.
Owners cite no authority to support the contention that the trial court erred in
considering these averments.




                                           9
            As to the legal sufficiency of the description, Owners merely assert
that the testimony of Youmans, the Township’s expert witness, demonstrates that
the Township “had a clear and full description of the property.” Owners’ brief at
17. Owners never address the specific terms of the easement(s) and failed to
demonstrate that the Township’s activity exceeded the easement(s).
            Based on the foregoing, we conclude that the trial court properly
sustained the Township’s POs. Accordingly, we affirm.




                                     MICHAEL H. WOJCIK, Judge




                                       10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation of the            :
Property of Carl and Rosemary         :
LeFever, Located at                   :
445 Tyson Road, Schwenksville,        :
Lower Salford Township                :
                                      :
Carl and Rosemary LeFever,            :
                                      :
                       Appellants     :
                                      :
                 v.                   : 1251 C.D. 2016
                                      :
Lower Salford Township                :
Authority and Lower Salford           :
Township                              :



                                 ORDER


           AND NOW, this 31st day of May, 2017, the order of the Court of
Common Pleas of Montgomery County, dated June 16, 2016, is AFFIRMED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
