           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Mountaintop Area Joint              :
Sanitary Authority                         :
                                           :
Colleen DeLuca                             :
                                           :
              v.                           :    No. 1318 C.D. 2016
                                           :    Argued: April 20, 2017
Mountaintop Area Joint Sanitary            :
Authority,                                 :
                 Appellant                 :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE JOSEPH M. COSGROVE, Judge (P)
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: July 12, 2017

              Mountaintop Area Joint Sanitary Authority (Authority) appeals an
order of the Court of Common Pleas of Luzerne County (trial court) overruling its
preliminary objections to the petition of Colleen DeLuca (Landowner) for the
appointment of a board of viewers.1 Landowner asserted that the Authority’s
discharge of sewage onto her property effected a de facto condemnation. For the
reasons that follow, we affirm the order of the trial court.
              Landowner owns a single-family home in Mountaintop, Pennsylvania,
which is located adjacent to the Authority’s sewer treatment plant.                       The
Authority’s collection system runs under Landowner’s property, and two of its
manholes are located on the surface of Landowner’s property.                     On several
occasions between June 27, 2006, and April 26, 2011, Landowner’s home and

1
  The trial court granted Landowner’s petition for appointment of a board of view and held that
the condemned interest of Landowner’s property was an easement with effective dates of June
27, 2006, through April 26, 2011.
lawn were flooded with sewage, which included fecal matter, toilet tissue, and
other sanitary items.
                On May 14, 2015, Landowner filed a petition for appointment of a
board of viewers pursuant to Section 502(c) of the Eminent Domain Code2 alleging
that the repeated infiltration of sewage on her property constituted a de facto
taking. Specifically, she alleged the Authority knew that its sewage system was
prone to overloads that would cause infiltration of sewage onto her property.
Despite this knowledge, the Authority allowed additional properties to connect to
its system, thereby increasing the number of such overloads.
                In response, the Authority filed preliminary objections pursuant to
Section 504(d) of the Eminent Domain Code. It objected to the legal sufficiency of
the petition noting that it merely repeated the facts pled in Landowner’s pending

2
    Section 502(c) provides:
          (c) Condemnation where no declaration of taking has been filed. –
                (1) An owner of a property interest who asserts that the owner’s
                property interest has been condemned without the filing of a
                declaration of taking may file a petition for the appointment of
                viewers substantially in the form provided for in subsection (a)
                setting forth the factual basis of the petition.
                (2) The court shall determine whether a condemnation has
                occurred, and, if the court determines that a condemnation has
                occurred, the court shall determine the condemnation date and the
                extent and nature of any property interest condemned.
                (3) The court shall enter an order specifying any property interest
                which has been condemned and the date of the condemnation.
               (4) A copy of the order and any modification shall be filed by the
               condemnor in the office of the recorder of deeds of the county in
               which the property is located and shall be indexed in the deed
               indices showing the condemnee as grantor and the condemnor as
               grantee.
26 Pa. C.S. §502(c).

                                                2
trespass action.3 Alternatively, it challenged the facts alleged in the petition and
requested an evidentiary hearing pursuant to Section 504(d) of the Eminent
Domain Code. 26 Pa. C.S. §504(d).4
              On December 23, 2015, following oral argument, the trial court
denied the Authority’s preliminary objection in the nature of a demurrer but
granted its request for an evidentiary hearing. That hearing was held on April 4,
2016.
              Thomas Keiper, the Executive Director of the Authority, testified.
Keiper acknowledged that the Authority’s customer base had increased every year
from 2007 through 2011; by 2011 the Authority served approximately 5,000

3
   The earlier civil trespass action is captioned Colleen DeLuca v. Mountaintop Area Joint
Sanitary Authority and Thomas G. Keiper, and docketed at 2011 CV 14420 in the trial court.
The complaint is included in the record. Reproduced Record at 147a-157a (R.R. ___).
4
  It states:
         (d) Preliminary objections. –
              (1) Any objection to the appointment of viewers may be raised by
              preliminary objections filed within 30 days after receipt of notice of the
              appointment of viewers.
              (2) Objections to the form of the petition or the appointment or the
              qualifications of the viewers in any proceeding or to the legal sufficiency
              or factual basis of a petition filed under 502(c) (relating to petition for
              appointment of viewers) are waived unless included in preliminary
              objections.
              (3) An answer with or without new matter may be filed within 20 days of
              service of preliminary objections, and a reply to new matter may be filed
              within 20 days of service of the answer.
               (4) The court shall determine promptly all preliminary objections and
               make any order and decrees as justice requires.
               (5) If an issue of fact is raised, the court shall conduct an evidentiary
               hearing or order that evidence be taken by deposition or otherwise, but in
               no event shall evidence be taken by the viewers on this issue.
26 Pa. C.S. §504(d) (emphasis added).

                                               3
customers. During that time, the average amount of sewage being transported
through the Authority’s system was 4.16 million gallons per day, which was the
maximum permitted by the Pennsylvania Department of Environmental Protection.
Nevertheless, the Authority’s plant has the capability to handle more than 10
million gallons per day.
             Keiper also testified about the two manholes on Landowner’s
property, i.e., Manhole 3 and Manhole 128. He explained that a manhole is a
vertical channel that provides access to the underground sewage main. Three
sewage pipes connect to Manhole 128: two sewer lines and one lateral pipe
connected to Landowner’s home. The wastewater leaves Manhole 128 by one
sewer line and travels downstream to Manhole 3, which also accepts sewage waste
from two other sewer lines. The lines that carry sewage into Manhole 3 measure
30 inches, 18 inches and 8 inches in diameter. The wastewater that enters Manhole
3 leaves by way of one 30-inch line. In short, in the case of both Manhole 128 and
Manhole 3, sewage enters by multiple sewer lines but exits by a single 30-inch
line.
             The slope of the sewer lines flowing toward Manhole 128 and
Manhole 3 is steeper than the slope of the single exit pipes leaving those manholes.
Accordingly, sewage enters each manhole at a faster rate than it can exit.
Nevertheless, the Authority did not measure the flow of the sewage at Manhole 3
and Manhole 128 and did not install high flow alarms. Keiper testified as follows:

             [Counsel]: So the pipes that flow into Manhole 3, carry more
             flow as a capacity, the design capacity carry more flows than
             the single pipe carrying anything out right?
             [Keiper]: That would be the design capacity, yes.



                                         4
                  [Counsel]: The Authority, you agree with me, does not have in
                  place any type of device that meters the flows going in and out
                  of Manhole 3, correct?
                  [Keiper]: That’s correct.
                  [Counsel]: And it also has no meters to measure the flows going
                  in and out of Manhole 128?
                  [Keiper]: That’s correct.
                  [Counsel]: And would you agree with me that the Authority has
                  high flow alarms at other locations in the system?
                  [Keiper]: It has them at pump stations and it has them at the
                  plant. It does not have them anywhere else in the system.
                  [Counsel]: But you do have the capacity to measure high flows
                  in certain parts of your system, correct?
                  [Keiper]: Yes.
                  [Counsel]: But you don’t have any such facilities in Manhole 3
                  or Manhole 128, correct?
                  [Keiper]: Correct.

Notes of Testimony at 27-28 (N.T. ___); R.R. 105a-106a (emphasis added).
                  Keiper explained that a surcharge occurs when the wastewater reaches
the top of the sewage line and surges into the vertical manhole. An overflow event
occurs when the wastewater fills the barrel of the manhole and comes out of the
system completely.5 He testified that Manhole 3 has experienced overflow events,
causing sewage waste to overflow onto Landowner’s property.


5
    Specifically, Keiper explained:
          [Counsel]: For both Manhole 128 and Manhole 3, for there to be an overflow
          event, the volume of wastewater has to be enough that its gotten outside the
          channel, it started to fill up the barrel of the pipe, it’s covered the top of the pipe []
(Footnote continued on the next page . . .)
                                       5
              Keiper testified that a duckbill valve attached to the lateral pipe
between Landowner’s home and Manhole 128 prevented backflow to Landowner’s
residence, and it apparently worked until the 2006 incident. Then, in 2006, a
surcharge caused sewage to back up through the lateral pipe and enter
Landowner’s residence.          When questioned about the 2006 flooding, Keiper
acknowledged that a surcharge in Manhole 128 bypassed the backflow valve and
traveled in the reverse direction through the lateral pipe into Landowner’s toilet
and bathtub. In response, Keiper sent an engineer to investigate.

              [Counsel]: And when [Landowner] made her complaint to the
              [A]uthority initially about the problem she had in her home, did
              you ask [the Engineer] to explore what the problem was?
              [Keiper]: Yes, I did.
              [Counsel]: And what exactly did he tell you?
              [Keiper]: He went out and he opened the manhole, Manhole
              128, and checked the duckbill valve and found that there was
              debris in the valve and that’s what, in his opinion, what caused
              the backflow because the valve was kept open with the debris
              and it didn’t close.

N.T. 66; R.R. 115a.
              Four years later, in November 2010, sewage again entered
Landowner’s home. Similar events occurred in January 2011, March 2011, and
April 2011. In response, Keiper directed the Authority’s engineers to look for



(continued . . .)
       taking flow out, it’s kept on going up and to get out of Manhole 3 and 128, it has
       to be at least ten feet tall because that’s how high it is to the top?
       [Keiper]: Yes.
N.T. 31; R.R. 106a.

                                               6
alternative valves to prevent the flooding to Landowner’s property.                          The
Authority’s engineer recommended that the Authority install a check valve in the
sewage line on Landowner’s property to prevent another backflow incident.6
Although the Authority had installed check valves in other parts of its system, it
did not act upon the engineer’s recommendation with respect to the lines on
Landowner’s property.
               In late 2011, the Authority upgraded its collection system, and there
have been no overflow events since the upgrade.                    Keiper testified that the
Authority has replaced the duckbill valve at Manhole 128 twice since the upgrade.
               Landowner testified.        She described her home as a “basic three
bedroom, two-bath ranch.” N.T. 74; R.R. 117a. Three bedrooms, a kitchen, and a
living area are located on the ground level, which is accessible from the street. The
finished lower level of the home includes a “two-car garage[,] … a sewing room, a
living room and a full bathroom with a washer and dryer.” N.T. 75; R.R. 117a.
               Landowner testified that the first incident occurred on June 27, 2006,
when “fecal matter and toilet tissue” began seeping out of the toilet and bathtub
located in the lower level of the home. N.T. 77; R.R 118a. The seepage continued
for several hours resulting in knee-deep levels of sewage throughout the lower
level. When Landowner contacted the Authority, it informed her that the incident
was a “fluke” and that it was “not a sewer issue but rather … a fresh water run-off




6
  A check valve is described as a device that allows water to travel in one direction only. If
water starts to come in from the opposite direction, the valve “pivots” closed and the pressure of
the water keeps the valve shut. N.T. 71; R.R. 116a.

                                                7
problem.”7 N.T. 79; R.R. 118a. She was advised to install sump pumps, which
she did. Thereafter, Landowner remodeled the lower level of the home.
                 Four years later, in November 2010, Landowner experienced the
“[s]ame thing that happened in 2006.” N.T. 81; R.R. 119a. The sewage was knee-
deep and consisted of debris, toilet paper, prophylactics, blood, and tampons.
Landowner testified that she “completely lost everything again.” N.T. 82; R.R.
119a.
                 Landowner explained that the recurring flooding has precluded
normal use of the home:

                 I was in house arrest. I couldn’t use the toilets, the shower, the
                 laundry. I couldn’t make food. I had to find somewhere to live
                 with my kids when [the Authority] chose to come over on
                 several occasions.

N.T. 84; R.R. 120a. She explained that the Authority came to her home on several
occasions and plugged her sewer lines with “balls” in order to prevent further
flooding, causing her to be displaced from her home:

                 [Counsel]: Now, did there come to be a point where the
                 Authority proposed that it would try and solve your problem by
                 using what they called balls?
                 [Landowner]: No, they just showed up.
                 [Counsel]: They just showed up. Okay. In that instance, can
                 you tell me what happened?
                 [Landowner]: Yeah. I had come home from work and
                 [Authority employee] was walking down my driveway with
                 balls in his hand. And he told me that he was sent over by
                 [Keiper] because we were supposed to get potential rain and
                 that he was going to plug my lines, and I didn’t know what that

7
    Landowner’s property is located within feet of a flood plain. N.T. 63; R.R. 114a.

                                                  8
              meant. And he explained to me that I needed to find some
              place to go for the weekend until Monday or Tuesday when the
              water tables would drop because I couldn’t use my home.
                                                 ***

              [Counsel]: What did [Authority’s employee] tell you why you
              couldn’t stay at your house?
              [Landowner]: He told me that the insertion of the balls was to
              prevent any future back up at that point or the potential for a lot
              of rain coming that particular weekend. That’s all I knew.
              [Trial Court]: And when was this?
              [Counsel]: When was this?
              [Landowner]: This was in 2011, January. And once again in
              March. And I asked him to leave when he was going to do it a
              third time because I had nowhere to go.

N.T. 87-90; R.R. 120a-121a.
              Following the hearing, the trial court issued an order on June 29,
2016, which stated:

              1)    A de facto condemnation occurred;
              2) The condemned interest of [Landowner] was an easement
              with effective dates of June 27, 2006 through April 26, 2011;
              and
              3) [Landowner’s] Petition for an Appointment of View [is]
              GRANTED.

Trial Court Order, 6/29/2016; R.R. 139a. The Authority appealed to this Court.
              On appeal,8 the Authority argues the trial court erred in holding that a
de facto condemnation resulted from an involuntary easement on Landowner’s

8
  Our review of a trial court’s order dismissing preliminary objections to a petition for the
appointment of viewers is to determine whether the trial court abused its discretion or committed
(Footnote continued on the next page . . .)
                                       9
land for the period June 27, 2006, through April 26, 2011. Landowner’s sole
remedy lies with her trespass action that is pending before the trial court. In the
alternative, the Authority posits that the trial court incorrectly calculated the
effective period of the taking because (1) the June 27, 2006, overflow incident,
used to establish the beginning of the easement period, is time-barred by statute,
and (2) Landowner continued to reside on the property throughout the entirety of
the easement period.
               Landowner responds that this Court lacks jurisdiction because the
Authority did not file post-trial motions as required by the Pennsylvania Rules of
Civil Procedure. She also contends that her trespass action does not preclude a
separate action for condemnation.
               We begin with Landowner’s jurisdictional argument. Pennsylvania
Rule of Civil Procedure 227.1 states, in relevant part, as follows:

               (c) Post-trial motions shall be filed within ten days after
                       (1) verdict, discharge of the jury because of
                       inability to agree, or nonsuit in the case of a jury
                       trial; or
                       (2) notice of nonsuit or the filing of the decision
                       in the case of a trial without jury.

PA. R.C.P. No. 227.1(c). The Authority did not file post-trial motions upon receipt
of the trial court’s order.


(continued . . .)
an error of law. Maurizi v. Department of Transportation, 658 A.2d 485, 486 n.2 (Pa. Cmwlth.
1995). The trial court, as fact finder, must resolve evidentiary conflicts, and its findings will not
be disturbed if supported by substantial evidence. In re Condemnation by Department of
Transportation, 827 A.2d 544, 547 n.4 (Pa. Cmwlth. 2003), appeal denied, 848 A.2d 930 (Pa.
2004).

                                                10
               The Authority filed preliminary objections to Landowner’s petition
for the appointment of a board of viewers.9 Count I presented a demurrer pursuant
to Section 504(d)(2) of the Eminent Domain Code, 26 Pa. C.S. §504(d)(2). Count
II requested an evidentiary hearing pursuant to Section 504(d)(5) of the Eminent
Domain Code because it disputed the facts alleged in Landowner’s petition. 26 Pa.
C.S. §504(d)(5). The trial court denied the Authority’s demurrer but granted the
Authority’s request for an evidentiary hearing under Section 504(d)(5) of the
Eminent Domain Code, which states:

               If an issue of fact is raised, the court shall conduct an
               evidentiary hearing or order that evidence be taken by
               deposition or otherwise, but in no event shall evidence be taken
               by the viewers on this issue.

26 Pa. C.S. §504(d)(5).10
               Based upon the facts established at the hearing, the trial court held
that a de facto taking had occurred. Accordingly, it directed the appointment of a




9
  In eminent domain cases, “[p]reliminary objections are the exclusive method under the Code of
raising legal and factual objections to a petition for appointment of viewers that alleges a de facto
taking….” Linde Enterprises, Inc. v. Lackawanna River Basin Sewer Authority, 911 A.2d 658,
662 (Pa. Cmwlth. 2006).
10
   This court has explained:
        [I]f the preliminary objections raise an issue of fact, the resolution of which is
        necessary for determining whether a de facto taking has occurred, the court must
        hold an evidentiary hearing. If the preliminary objections do not raise any such
        issues of fact, the trial court must simply examine the petition and sustain the
        preliminary objections if the averments of the petition are not sufficient to
        establish a de facto taking, or dismiss the preliminary objections if the averments
        do establish a de facto taking.
Millcreek Township v. N.E.A. Cross Company, 620 A.2d 558, 560-61 (Pa. Cmwlth. 1993).

                                                11
board of viewers.     We reject Landowner’s contention that this Court lacks
jurisdiction over the Authority’s appeal.
             First, post-trial motions need not be filed where preliminary
objections are overruled in an eminent domain case. Under the Pennsylvania Rules
of Civil Procedure, post-trial motions are to be filed after a board of viewers does
its work. Rule 227.1(h) states:

             A motion for post-trial relief shall be filed following a trial
             upon an appeal from the decision of viewers pursuant to the
             Eminent Domain Code.

PA. R.C.P. No. 227.1(h) (emphasis added).
             Second, the Pennsylvania Rules of Appellate Procedure expressly
authorize an appeal as of right of court order that denies preliminary objections in
an eminent domain case. Rule 311(e) states:

             (e) Orders overruling preliminary objections in eminent
             domain cases. – An appeal may be taken as of right from an
             order overruling preliminary objections to a declaration of
             taking and an order overruling preliminary objections to a
             petition for appointment of a board of viewers.

PA. R.A.P. 311(e) (emphasis added).
             The Authority did not have to file post-trial motions upon receipt of
the trial court’s decision to overrule its preliminary objections. Post-trial motions
would have been premature. Instead, the Authority appealed, and its appeal was
expressly authorized by Pennsylvania Rule of Appellate Procedure 311(e). We
reject Landowner’s jurisdictional argument and turn, then, to the merits of the
Authority’s appeal.
             The Authority first argues that Landowner’s sole remedy is to pursue
trespass damages. The Law distinguishes between the two remedies.
                                            12
            The Pennsylvania Constitution provides that private property cannot
be taken for a public use without just compensation. Pa. CONST. art. I, §10. “[A]
de facto taking occurs when an entity clothed with the power of eminent domain
substantially deprives an owner of the beneficial use and enjoyment of his
property.” In re De Facto Condemnation and Taking of Lands of WBF Associates,
L.P. ex rel. Lehigh-Northampton Airport Authority, 903 A.2d 1192, 1199 (Pa.
2006). A property owner carries a heavy burden of proof in de facto condemnation
proceedings and must show that: (1) the condemnor has the power to condemn the
land under eminent domain procedures; (2) that exceptional circumstances have
substantially deprived him of the use and enjoyment of his property; and (3) the
damages sustained were the immediate, necessary, and unavoidable consequences
of the exercise of the eminent domain power. Genter v. Blair County Convention
and Sports Facilities Authority, 805 A.2d 51, 56 (Pa. Cmwlth. 2002). Finally,
when determining whether a de facto taking has occurred, we focus on the
governmental action in question.    Appeal of Jacobs, 423 A.2d 442, 443 (Pa.
Cmwlth. 1980).
            On the other hand, acts that are not the immediate, necessary or
unavoidable consequence of the exercise of eminent domain will not form the basis
of de facto condemnation. Fulmer v. White Oak Borough, 606 A.2d 589, 590 (Pa.
Cmwlth. 1992). “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.” Poole v. Township of District, 843
A.2d 422, 424 (Pa. Cmwlth. 2004). Nevertheless, the two species of action are not
mutually exclusive.    A judgment in trespass does not bar a subsequent



                                       13
condemnation claim. Matter of Condemnation by Urban Redevelopment Authority
of Pittsburgh, 458 A.2d 622, 623 (Pa. Cmwlth. 1983).
             The Authority argues that it did not effect a de facto taking because
Landowner’s damages did not result from the immediate, necessary, and
unavoidable consequences of an eminent domain action. In support, it cites this
Court’s decision in In re: Condemnation by the Youngwood Borough Authority,
(Pa. Cmwlth., No. 203 C.D. 2014, filed December 5, 2014), where we held that the
landowner’s only recourse was an action in trespass and not a de facto
condemnation action under the Eminent Domain Code.
             Youngwood concerned a railroad museum and café owned and
operated by the Youngwood Borough Railroad Association. Beginning in 2007
and escalating in 2009, the local sewer authority’s main sewer line overloaded and
contaminated the Railroad Association’s basement with “feces, toilet paper,
effluent and blackened water having a strong odor.” Id., slip op. at 2. The
Railroad Association filed a petition for the appointment of viewers alleging a de
facto taking. The sewer authority responded with preliminary objections arguing
that the petition did not state a claim for a de facto taking because the Railroad
Association had a full, complete, and adequate remedy at law in a separate trespass
action already pending before the trial court.
             After an evidentiary hearing, the trial court sustained the preliminary
objections. The trial court held that the Railroad Association’s sole remedy was in
trespass because the sewer authority’s acts were negligent, not intentional.
             This Court affirmed, noting that the sewer authority had made good
faith efforts to correct the problem.            We acknowledged that a de facto
condemnation does not require an intention to acquire a property but only that the


                                         14
injury “is a direct result of intentional action by an entity clothed with the power of
eminent domain.” Id., slip op. at 8, n.2 (quoting McGaffic v. City of New Castle,
74 A.3d 306, 315 (Pa. Cmwlth. 2013), appeal denied, 85 A.3d 485 (Pa. 2014))
(emphasis in original). In Youngwood, the losses suffered by the plaintiff were
“merely the unintended consequence” of the sewer authority’s inability to separate
storm water from the sanitary sewer system despite their efforts, and was “not part
of a purposeful and deliberate drainage plan nor related to or incidental to [the
Authority’s] condemnation powers….” Id., slip op. at 7.
             The Authority argues the facts in this case are nearly identical to those
in Youngwood. Therefore, this case warrants the same conclusion: Landowner’s
sole remedy lies in trespass.
             Landowner responds that it was the intentional operation of the
Authority’s collection system that led to the foreseeable and repeated flooding of
her property. She asserts the sewage overflow was the direct and immediate
consequence of Authority decisions made with the knowledge that flooding would
reoccur on her property. Specifically, Landowner maintains that the Authority: (1)
designed and built a system to direct a volume of wastewater into two manholes on
Landowner’s property that exceeded the capacity of those manholes; (2) failed to
monitor the level of wastewater in its manholes despite having installed monitoring
systems at other points in the system; (3) continued to allow more properties to
connect to the system, which increased the volume of wastewater passing through
the manholes on Landowner’s property; (4) failed to fix leaks or take steps to
prevent rain or groundwater from entering the system; and (5) used Landowner’s
residence as the “pressure relief valve” in its system for the conditions that were
causing the repeated surcharges. By doing so the Authority avoided having to


                                          15
expend funds to remedy its design flaw. Landowner’s Brief at 22-24. Landowner
urges that the Authority’s deliberate actions support the trial court’s finding of a de
facto taking. That the Authority did not intend to effect a taking is irrelevant.
             As noted, a de facto taking requires that the injury complained of is a
direct result of intentional action by an entity incidental to its exercise of its
eminent domain power. McGaffic, 74 A.3d at 315. Here, the trial court agreed
with Landowner that the reoccurring sewage infiltration events resulted from the
manner in which the Authority chose to operate its system.            The trial court
specifically noted that the infiltration events ended when the Authority upgraded
its system in late 2011. Ultimately, the trial court concluded:

             The evidence was overwhelming as to the conditions that
             [Landowner] endured after these occurrences. Raw sewage
             flowed out of the toilets and tubs throughout the residence into
             the lower level of the house and the garage. The sewage
             consisted of various items including fecal matter and toilet
             tissue. The sewage was not contained to the bathroom areas but
             through the [Landowner’s] living area and laundry area. As
             [Landowner] testified, the entire lower level was destroyed.
             Based on the facts outlined above [Landowner] has shown that
             the [Authority’s] action has deprived her of her availability to
             fully use her residence, that a[] de facto condemnation
             occurred, that the [Landowner’s] interest condemned was an
             easement, and the effective dates of the condemnation is from
             June 27, 2006 through April 26, 2011.

Trial Court Opinion, 6/29/2016, at 5; R.R. 145a. We agree.
             The trial court’s finding that the Authority chose to operate its system
in a manner that would sporadically flood the interior and exterior of Landowner’s
property is well supported by the evidence. Specific decisions of the Authority
caused the overflow events and the Authority was aware of the adverse
consequences of those decisions.

                                          16
             First, the Authority decided to expand its customer base from 2007
through 2011 and increase the volume of sewage flowing through its system.
Second, the Authority designed Manhole 3 and Manhole 128 to have sewage enter
from multiple steep-sloped sewer lines but exit through a single, narrower, and
less-sloped exit line. It requires no extended discussion that these decisions alone
affected the amount of sewage flowing through its system and increased the
likelihood of overflow events occurring on Landowner’s property.           Third, the
Authority was aware of this likelihood. This is evidenced by Authority employees
“showing up” at Landowner’s property, on several occasions, and requiring her to
vacate her home so the Authority could plug her sewer lines with “balls” to prevent
flooding. N.T. 87-90; R.R. 120a-121a.
             Despite this knowledge, the Authority did not take appropriate steps
to remedy the structural defects in its system. Instead, it pursued ad hoc remedies
that required Landowner to vacate her home. Stated otherwise, it is clear that the
flooding and loss of the use and enjoyment of Landowner’s home were the “direct
result of intentional action [taken] by” the Authority incident to its power of
eminent domain. McGaffic, 74 A.3d at 315.
             This case is distinguishable from Youngwood. In that case, there was
no finding that the landowner’s harm derived from a “purposeful and deliberate
drainage plan” as was the case here. Youngwood, slip op. at 7. Here, the trial court
specifically found that the infiltration onto Landowner’s property resulted from the
manner in which the Authority operated its system. This Court will not disturb a
trial court’s dismissal of preliminary objections to a petition for the appointment of
a board of viewers unless the trial court abused its discretion or committed an error



                                         17
of law. Maurizi, 658 A.2d at 486 n.2. The Authority has failed to make its case in
this regard.
               We next address the Authority’s argument that the trial court erred in
holding that “[t]he condemned interest of Plaintiff was an easement with effective
dates of June 27, 2006 through April 26, 2011.” Trial Court Order, 6/29/2016;
R.R. 139a. The Authority argues: (1) using the June 2006 occurrence to determine
the easement period is time-barred by statute, and (2) the evidence did not establish
a five-year easement but only five discrete occurrences of sewage infiltration,
which did not require Landowner to abandon her home. Landowner responds that
the Authority waived the statute of limitations defense by failing to raise it in its
preliminary objections. She also observes that a taking can occur even where a
property owner remains in her home.
               We begin with the statute of limitations issue. Section 5527(a)(2) of
the Judicial Code states:

               If the condemnor has not filed a declaration of taking, a petition
               for the appointment of viewers for the assessment of damages
               under 26 Pa. C.S. must be filed within six years from the date
               on which the asserted taking, injury or destruction of the
               property occurred or could reasonably have been discovered by
               the condemnee.

42 Pa. C.S. §5527(a)(2).         The first flooding occurred on June 27, 2006.
Landowner filed the petition for appointment of viewers nearly nine years later, on
May 14, 2015. Had the Section 5527(a)(2) defense been preserved, the June 2006
incident would be time-barred by statute. However, we agree with Landowner that
the Authority waived the statute of limitations by not raising it in its preliminary
objections.


                                           18
             Preliminary objections in eminent domain proceedings should not be
confused with the rules of pleading governed by the Pennsylvania Rules of Civil
Procedure.    “Preliminary objections are the exclusive method under the Eminent
Domain Code of raising legal and factual objections to a petition for an
appointment of viewers which allege a de facto taking.”             In re Petition for
Appointment of Board of Viewers, 149 A.3d 911, 913 n.1 (Pa. Cmwlth. 2016)
(quoting German v. City of Philadelphia, 683 A.2d 323, 325 n.5 (Pa. Cmwlth.
1996)). Section 504 of the Eminent Domain Code specifically states:

             Objections in the form of the petition or the appointment or the
             qualifications of the viewers in any proceeding or the legal
             sufficiency of the factual basis of a petition filed under section
             502(c) (relating to petition for appointment of viewers) are
             waived unless included in preliminary objections.

26 Pa. C.S. §504(d)(2). The Authority did not raise the statute of limitations
defense in its preliminary objections to Landowner’s petition for appointment of a
board of viewers. It was raised for the first time in the Authority’s Reply Brief in
Opposition to Landowner’s Petition for the Appointment of a Board of Viewers,
filed April 13, 2016. Although the reply brief was filed prior to the issuance of the
trial court’s June 29, 2016, opinion, it is well-settled that raising an issue in a brief
will not cure previous waiver of that issue. See Moore v. City of Philadelphia, 571
A.2d 518, 524 n.8 (Pa. Cmwlth. 1990). Accordingly, the Authority’s statute of
limitations defense has been waived.
             We turn, then, to the Authority’s challenge to the easement period of
five years. The evidence proved five discrete occurrences of sewage infiltration.
The Authority argues that these incidents did not create an easement period that




                                           19
began with the first flooding and ended with the last. It argues that the easement
period should be limited to the specific dates of sewage infiltration.
             Precedent from this Court has established that an easement period can
be based on sporadic occurrences of flooding.         Indeed, condemnors regularly
institute de jure condemnations for the occasional overflow, flood, or submersion
of a condemnee’s property. See Bucks County v. 800 Acres of Land in Middletown
Township, 379 A.2d 903, 904 (Pa. Cmwlth. 1977); Pennsylvania Game
Commission v. Renick, 342 A.2d 824 (Pa. Cmwlth. 1975); Commonwealth v.
Herold, 330 A.2d 890 (Pa. Cmwlth. 1975). It follows, then, that the obverse is also
true. Where it is the landowner that has instituted a condemnation proceeding,
occasional flooding incidents can be used to establish the period of easement.
             The trial court held the easement period spanned from June 27, 2006,
the date of the first overflow incident, to April 26, 2011, the date of the last. We
agree that this was the extent of the taking, and the fact that the overflow incidents
occurred only occasionally is inconsequential. Nevertheless, the sporadic nature of
the overflow events is a consideration for the board of viewers in its determination
of the amount of just compensation owed to Landowner.
             For the reasons stated above, we affirm the order of the trial court.

                                    ______________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          20
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Mountaintop Area Joint       :
Sanitary Authority                  :
                                    :
Colleen DeLuca                      :
                                    :
            v.                      :   No. 1318 C.D. 2016
                                    :
Mountaintop Area Joint Sanitary     :
Authority,                          :
                 Appellant          :


                                  ORDER


            AND NOW, this 12th day of July, 2017, the order of the Court of
Common Pleas of Luzerne County dated June 29, 2016, in the above-captioned
matter is AFFIRMED.
                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
