        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James M. McMaster and                   :
Mary Ellen McMaster, h/w,               :
                                        :
                  Appellants            :
                                        : No. 628 C.D. 2016
            v.                          : Argued: February 6, 2017
                                        :
The Township of Bensalem                :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                   FILED: March 13, 2017

            This matter is an appeal from an order of the Court of Common Pleas
of Bucks County (trial court) sustaining preliminary objections to a petition for
appointment of viewers. For the reasons set forth below, we affirm.
            James M. McMaster and Mary Ellen McMaster (Property Owners) are
the owners of 6001 Bensalem Boulevard, a residential property in Bensalem,
Pennsylvania (the Property). The Property is approximately 6.25 acres in size and
consists of three tax map parcels, 2-85-67, 2-55-857, and 2-85-103. (J. McMaster
Dep. at 16-17, Reproduced Record (R.R.) at 152a-153a.) The Property is located
on the east side of Bensalem Boulevard between Bensalem Boulevard and the
Neshaminy Creek, which forms the eastern boundary of the Property. (Id. at 22-
24, 37-38 & Dep. Exs. 2 & 3, R.R. at 158a-160a, 173a-174a, 259a-260a.) Husband
Property Owner and his family have lived on the Property and used it continuously
as a residence since 1986. (J. McMaster Dep. at 7, 35, 67, R.R. at 143a, 171a,
203a.)    Property Owners’ house is on tax map parcel 2-85-67, the largest of the
three parcels. (Id. at 22-24, 29-31 & Dep. Exs. 2, 3 & 4, R.R. at 158a-160a, 165a-
167a, 259a-261a.) Tax map parcel 2-55-857, on the northwest side of the Property,
and the northern part of tax map parcel 2-85-67 are heavily wooded and cannot be
developed without a variance because they are in a flood plain. (J. McMaster Dep.
at 20-24, 26-27, 29-31, 107-08 & Dep. Exs. 2, 3 & 4, R.R. at 156a-160a, 162a-
163a, 165a-167a, 243a-244a, 259a-261a.)
              On August 31, 2006, Property Owners filed a petition for appointment
of viewers, alleging that the Township of Bensalem (Township) in 1988 or 1989
constructed a storm water system that redirected storm water from the west side of
Bensalem Boulevard onto a significant portion of the Property and asserting that
this constituted a de facto taking of the Property.1 Property Owners granted the
Township an open-ended extension of time to respond and the case lay dormant
until 2014.     In 2010, while the case was inactive, the Township installed
underground piping through the Property to carry the water discharged from the
west side of Bensalem Boulevard to the Neshaminy Creek. (Amended Petition for
Appointment of Viewers ¶¶9, 25, R.R. at 81a, 83a; J. McMaster Dep. at 83-86, 92-
101, R.R. at 219a-222a, 228a-237a.)               In March 2014, the Township filed
preliminary objections to the petition for appointment of viewers. On April 15,
2014, Property Owners filed an amended petition for appointment of viewers, in
which they alleged both that the redirection of storm water that began in 1988 or


1
 The action was not time-barred because the statute of limitations in effect at the time was 21
years for “proceeding[s] in inverse condemnation, if property has been taken and the condemnor
has not made payment.” Former 42 Pa. C.S. § 5530(a)(3), deleted by Section 3 of the Act of
May 4, 2006, P.L. 112, as to actions accruing after September 1, 2006. See Act of May 4, 2006,
P.L. 112, §§ 3, 6(3), 7.


                                              2
1989 was a de facto taking and that the 2010 pipe installation was a de facto or de
jure taking. On May 5, 2014, the Township filed preliminary objections to the
amended petition for appointment of viewers.
             Discovery was taken on the preliminary objections.            Husband
Property Owner testified in his deposition that in the spring of 1989, he noticed
that the area north of his house and lawn “was flooded with several feet of water”
and that this flooding occurred again within a week or two. (J. McMaster Dep. at
59-60, R.R. at 195a-196a.)     Until the pipe installation in 2010, this flooding
continued to occur whenever there were heavy rains or thunderstorms and the
water would remain on the northern part of the Property for days or weeks. (Id. at
63-65, R.R. at 199a-201a.) There was no noticeable flooding after light rainfall.
(Id. at 63-64, R.R. at 199a-200a.) Husband Property Owner testified that in 1990
the Township told him that the water came from a pipe that the Township installed
in 1988 to solve a drainage problem on west side of Bensalem Boulevard. (Id. at
39-46, R.R. at 175a-182a.) The Township had thought that the pipe into which its
new storm water pipe discharged ran along Bensalem Boulevard to a pipe that
discharged into the Neshaminy Creek, but the pipe into which the Township
redirected the storm water in fact discharged on the Property. (Id. at 43-46, R.R. at
179a-182a.) Husband Property Owner admitted that the Township’s 2010 pipe
installation solved the flooding caused by the Township’s redirection of storm
water. (Id. at 101-102, R.R. at 237a-238a.) The Property experiences flooding
approximately once a year from the Neshaminy Creek unrelated to the flooding
caused by the Township’s redirection of storm water. (Id. at 87-88, R.R. at 223a-
224a.)




                                         3
              All of the flooding from the redirection of storm water was on the
wooded northern part of the Property, tax map parcel 2-55-857 and the northern
part of tax map parcel 2-85-67, and Property Owners’ house was not affected. (J.
McMaster Dep. at 27-28, 60-61, 67-68, R.R. at 163a-164a, 196a-197a, 203a-204a.)
The water occasionally came onto the edge of the grass 80 to 100 feet north of the
house, but did not significantly affect Property Owners’ lawn or their ability to use
their lawn.    (Id. at 28, 60-61, 70-71, R.R. at 164a, 196a-197a, 206a-207a.)
Husband Property Owner testified that the flooded area included an area north of
the lawn where he had cleared away underbrush and that he had occasionally used
that cleared area for some activities, such as a horseshoes set-up for a picnic,
minibike riding by one of his children, and a tree fort for his children. (Id. at 27-
28, 60-61, 71-72, R.R. at 163a-164a, 196a-197a, 207a-208a.) Husband Property
Owner did not view the cleared area as part of the lawn; after it was cleared, it
remained weed-covered. (Id. at 60-61, R.R. at 196a-197a.) Other than letting the
children play in the woods, Property Owners did not use the uncleared wooded
area of the Property, but at one time had considered putting a basketball court area
on part of wooded area near Bensalem Boulevard. (Id. at 72-73, R.R. at 208a-
209a.) Husband Property Owner testified that the flooding from the Township’s
redirection of storm water caused the loss of five large trees in the wooded area of
the Property, which he estimated contains dozens and possibly over a hundred
trees, most of which are small. (Id. at 103-106, R.R. at 239a-242a.)
              Neither party requested a hearing on the Township’s preliminary
objections, and the trial court2 ruled on the preliminary objections based on the

2
 While this action was pending in the trial court, Husband Property Owner was elected to the
Bucks County Court of Common Pleas and all Bucks County Court of Common Pleas judges
(Footnote continued on next page…)
                                             4
deposition of Husband Property Owner and accompanying exhibits without a
hearing. On March 25, 2016, following briefing and oral argument, the trial court
issued an order sustaining the Township’s preliminary objections to Property
Owners’ claim with respect to the redirection of storm water onto the Property,
concluding that the storm water redirection did not constitute a de facto taking
because the flooding did not substantially deprive Property Owners of the use and
enjoyment of the Property. The trial court, however, held that the 2010 pipe
installation was a de facto taking, overruled the Township’s preliminary objections
with respect to that claim, and appointed a board of viewers to determine the
amount by which the value of the Property was diminished by the 2010 pipe
installation. Property Owners appealed to this Court the trial court’s sustaining of
the Township’s preliminary objections to their storm water redirection claim. The
Township did not appeal the overruling of its preliminary objections as to the 2010
taking claim. Because the overruling of preliminary objections to a petition for
appointment of a board of viewers is immediately appealable under Pa. R.A.P.
311(e), the trial court’s ruling that the 2010 pipe installation was a de facto taking
and Property Owners’ right to appointment of viewers with respect to that claim
cannot be further challenged by the Township.                See Pa. R.A.P. 311(g)(1)(iii)
(failure to appeal the overruling of preliminary objections in an eminent domain
case waives the right to challenge that ruling in a subsequent appeal from a
determination of the merits).




(continued…)
recused themselves from this case. As a result, the case was heard and decided by a judge of the
Monroe County Court of Common Pleas.


                                               5
               Property Owners argue that the trial court erred in rejecting their
contention that the redirection of storm water onto the Property was a de facto
taking under the Eminent Domain Code and in failing to hold that they are entitled
to consequential damages for that flooding under the Eminent Domain Code.3
Because Property Owners’ claims with respect to the redirection of storm water
onto the Property arose in the 1980s when the redirection occurred and the
flooding began, they are governed by the former Eminent Domain Code, the Act of
June 22, 1964, Special Sess., P.L. 84, as amended, formerly 26 P.S. §§ 1-101–1-
903, repealed by Section 5(2) of the Act of May 4, 2006, P.L. 112, not the current
Eminent Domain Code, 26 Pa. C.S. §§ 101–1106. Although repealed, the former
Eminent Domain Code applies to takings prior to September 1, 2006 because the
current Eminent Domain Code, with an exception not applicable here, applies only
to condemnations occurring on or after its effective date.                  Colombari v. Port
Authority of Allegheny County, 951 A.2d 409, 411 n.1 (Pa. Cmwlth. 2008); see
also Act of May 4, 2006, P.L. 112, §§ 6(1), (2), 7. As is discussed below,
however, there is no difference between the former Eminent Domain Code and the
current Eminent Domain Code on the issues in this appeal of de facto taking and
consequential damages.
               The questions before this Court are not whether the Property Owners
were damaged by the Township’s redirection of storm water and whether they may
recover from the Township, but whether the harm to the Property constitutes a de

3
  This Court’s review of the order sustaining preliminary objections to a petition for appointment
of viewers is limited to determining whether the trial court abused its discretion or committed an
error of law and whether the trial court’s findings of fact are supported by substantial evidence in
the record. Colombari v. Port Authority of Allegheny County, 951 A.2d 409, 412-13 n.5 (Pa.
Cmwlth. 2008).


                                                 6
facto taking and whether damages are recoverable in an eminent domain
proceeding. If government injury to property does not amount to a de facto taking
and consequential damages are not permitted by the applicable Eminent Domain
Code, the property owner’s remedy is a negligence action for trespass. In re
Condemnation by Department of Transportation, 137 A.3d 666, 670-73 (Pa.
Cmwlth. 2016); Poole v. Township of District, 843 A.2d 422, 424-25 (Pa. Cmwlth.
2004). We conclude that the damage caused by the Township’s redirection of
storm water onto the Property does not constitute a de facto taking and is
recoverable in only a tort action, not in a proceeding under the former or current
Eminent Domain Code.4
              Under both the former and the current Eminent Domain Codes, a de
facto taking occurs when an entity with the power of eminent domain substantially
deprives property owners of the use and enjoyment of their property.                  In re
Borough of Blakely, 25 A.3d 458, 464-65 (Pa. Cmwlth. 2011); Colombari, 951
A.2d at 413; Snap-Tite, Inc. v. Millcreek Township, 811 A.2d 1101, 1105 (Pa.
Cmwlth. 2002); Genter v. Blair County Convention and Sports Facilities
Authority, 805 A.2d 51, 55 (Pa. Cmwlth. 2002).           Property owners alleging a de
facto taking bear a heavy burden of proof and must show both that exceptional
circumstances exist that have substantially deprived them of the use and enjoyment
of their property and that that deprivation is the direct and necessary consequence
of the actions of the entity with eminent domain power. Borough of Blakely, 25

4
  Such a tort claim would not be barred by governmental immunity. Claims for flooding caused
by negligent construction of storm water systems fall within the utility service facilities
exception to governmental immunity, 42 Pa. C.S. § 8542(b)(5). Glencannon Homes Association,
Inc. v. North Strabane Township, 116 A.3d 706, 719 (Pa. Cmwlth. 2015) (en banc); DeTurk v.
South Lebanon Township, 542 A.2d 213, 215 (Pa. Cmwlth. 1988); Medicus v. Upper Merion
Township, 475 A.2d 918, 919-21 (Pa. Cmwlth. 1984).


                                             7
A.3d at 465; Colombari, 951 A.2d at 413; Snap-Tite, Inc., 811 A.2d at 1106;
Genter, 805 A.2d at 55-56. Where a de facto taking claim is based on harm from
surface waters, the property owner must also show that the entity with eminent
domain power diverted the water from its natural channel or changed the quality or
quantity of water flowing onto the property. Colombari, 951 A.2d at 413; Snap-
Tite, Inc., 811 A.2d at 1106.
             Both the nature of the government actions and the type of damage to
the property must be considered in determining whether a de facto taking has
occurred.    If the government actions that harmed the property were intentional,
that supports the conclusion that the harm is a de facto taking; if the harm to the
property is due to negligence, that weighs against finding a de facto taking and
supports the conclusion that owner’s remedy lies in an action for trespass.
Condemnation by Department of Transportation, 137 A.3d at 670-71; Poole, 843
A.2d at 424-25.

             Generally, where a landowner suffers specific damage to his
             property as a result of the negligent acts of a party with the
             power of eminent domain, the proper action lies in trespass.
             However, where the damages amount to a de facto taking that
             deprives a landowner of the use or access to his property, a
             landowner’s exclusive remedy lies in eminent domain.
Condemnation by Department of Transportation, 137 A.3d at 670 (citations
omitted).   Speculative and conjectural harms are insufficient to show the
substantial deprivation of use and enjoyment necessary to a de facto taking claim.
Borough of Blakely, 25 A.3d at 467; Genter, 805 A.2d at 58; Petition of 1301
Filbert Limited Partnership for Appointment of Viewers, 441 A.2d 1345, 1360 (Pa.
Cmwlth. 1982). An injury to property also does not constitute a de facto taking if



                                         8
it is abatable, preventable or reparable.      Condemnation by Department of
Transportation, 137 A.3d at 670, 672-73; Colombari, 951 A.2d at 413-14.
            Here, Property Owners showed that the Township diverted water from
its natural channel and caused flooding on the northern part of the Property that
was substantial and recurring. However, neither the nature of the Township’s
conduct nor the damage to the Property rose to the level of a de facto taking.
While the flooding was due to an intentional redirection of storm water, the
discharge on the Property was the result of negligence, not an intentional selection
of the Property as the discharge location. Moreover, there was no showing that the
flooding caused by the Township deprived Property Owners of any use of the
Property. The Township’s flooding did not interfere with Property Owners’ use of
their house or lawn. Property Owners did not show that they actually used the
wooded area of the Property in any way that was affected by the flooding or that
the flooding prevented any development of that area that would otherwise have
been likely to occur. Property Owners showed only some sporadic use of the
cleared area that may have been affected by the flooding and some damage to trees
from the flooding. In addition, the fact that the 2010 pipe installation solved the
flooding showed that the flooding was abatable and preventable, although this
remediation was something that only the Township could do.
            None of the cases relied on by Property Owners holds that the type of
conduct and damage here constitutes a de facto taking. In Arkansas Game & Fish
Commission v. United States, _ U.S. _, 133 S. Ct. 511 (2012), the United States
Supreme Court held that the fact that government-caused flooding was not
permanent did not prevent it from constituting a taking of property for which
compensation must be paid. The property in Arkansas Game & Fish Commission,


                                         9
however, was a wildlife and hunting preserve from which timber was harvested
and the repeated flooding caused the loss of 18 million board feet of timber and
changes in the plant life in the preserve that required reclamation efforts. Id. at _,
133 S. Ct. at 515-17. In contrast, in this case there was no showing of interference
with Property Owners’ use of the flooded, wooded part of the Property. The other
cases relied on by Property Owners are likewise distinguishable. In Central Bucks
Joint School Building Authority v. Rawls, 303 A.2d 863 (Pa. Cmwlth. 1973), the
discharge that was held to be a de facto taking was effluent from a sewage
treatment plant and it caused not merely flooding, but also unpleasant odors on the
property. Bretz v. Central Bucks School District, 86 A.3d 306 (Pa. Cmwlth. 2014),
involved an equity action to enjoin a continuing trespass, not a claim for de facto
taking or for any eminent domain relief.
             Property Owners’ contention that they are entitled to consequential
damages under the Eminent Domain Code also fails. Under both the former and
current Eminent Domain Codes, a property owner can recover consequential
damages for certain types of government actions regardless of whether there is a de
facto taking of his property.     Former 26 P.S. § 1-612; 26 Pa. C.S. § 714;
Colombari, 951 A.2d at 413, 415-16; Capece v. City of Philadelphia, 552 A.2d
1147, 1149 (Pa. Cmwlth. 1989). Section 612 of the former Eminent Domain Code
provided:

             All condemnors, including the Commonwealth of
             Pennsylvania, shall be liable for damages to property abutting
             the area of an improvement resulting from change of grade of
             a road or highway, permanent interference with access
             thereto, or injury to surface support, whether or not any
             property is taken.



                                           10
Former 26 P.S. § 1-612. The language of Section 714 of the current Eminent
Domain Code is essentially identical.5
               Such consequential damages without a taking are recoverable in an
eminent domain proceeding only where the property damage resulted from a
change of the grade of a road or highway, a permanent interference with access, or
an injury to surface support.           Former 26 P.S. § 1-612; 26 Pa. C.S. § 714;
Condemnation by Department of Transportation, 137 A.3d at 672 (damages for
harm to walls, fences, curbs, and a building exterior caused by highway ramp
construction were not recoverable under Section 714 of the Eminent Domain
Code); Daw v. Department of Transportation, 768 A.2d 1207, 1210-11 (Pa.
Cmwlth. 2001) (damages from water drainage caused by road resurfacing were not
recoverable under Section 612 of the former Eminent Domain Code because there
was no change in grade of the road), appeal dismissed, 832 A.2d 1064 (Pa. 2003);
In re Condemnation by Rockwood Area School District of Property of Benford,
(Pa. Cmwlth., No. 202 C.D. 2009, filed December 21, 2009), slip op. at 9-10, 2009
WL 9096499 at *4-*5 (damages for flooding were not recoverable in eminent
domain proceeding where there was no taking, no change in grade of a road or
highway and no showing of injury to surface support).6 The Township’s actions
here involved no change in grade of a road or highway or interference with access




5
  Section 714 of the Eminent Domain Code provides that “[a]ll condemnors, including the
Commonwealth, shall be liable for damages to property abutting the area of an improvement
resulting from change of grade of a road or highway, permanent interference with access or
injury to surface support, whether or not any property is taken.” 26 Pa. C.S. § 714.
6
  Because it is an unreported decision, this opinion is not binding precedent, but is considered by
the Court for its persuasive value. 210 Pa. Code § 69.414(a).


                                               11
and Property Owners did not allege an injury to surface support of any part of the
Property.
             Because the trial court correctly concluded that the Township’s
redirection of storm water did not constitute a de facto taking and consequential
damages were not recoverable in this eminent domain proceeding absent a taking,
we affirm.



                                       _______________ ____________________
                                       JAMES GARDNER COLINS, Senior Judge



Judge Covey did not participate in the decision in the case.




                                         12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



James M. McMaster and                :
Mary Ellen McMaster, h/w,            :
                                     :
                 Appellants          :
                                     : No. 628 C.D. 2016
           v.                        :
                                     :
The Township of Bensalem             :




                                 ORDER


           AND NOW, this 13th day of March, 2017, the March 25, 2016 order
of the Court of Common Pleas of Bucks County in the above captioned matter is
AFFIRMED.



                                   ________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge
