                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In the Matter of: Condemnation by          :
the Franklin Township Sewage               :
Authority of Property of William Ott,      :
Situate in the Municipality of             :   No. 1237 C.D. 2019
Murrysville, Westmoreland County,          :
Pennsylvania                               :   Submitted: May 15, 2020
                                           :
Appeal of: William Ott                     :


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION BY
JUDGE McCULLOUGH                                               FILED: June 8, 2020

               William Ott (Landowner) appeals from the July 24, 2019 order of the
Court of Common Pleas of Westmoreland County (trial court) sustaining the Franklin
Township Municipal Sanitary Authority’s (Authority) preliminary objections to
Landowner’s petition for the appointment of a board of viewers (Petition), which
alleged that the Authority’s actions constituted a de facto taking of Landowner’s
property located in Murrysville, Westmoreland County, Pennsylvania (Property).


                               Facts and Procedural History
               On October 14, 2017, Landowner initiated an action pursuant to the
Eminent Domain Code1 by filing the Petition, alleging that flooding on the Property
from overflowing sewage lines in November 2003, August 2007, and October 2012
resulted from a de facto taking by the Authority. The Authority filed preliminary


      1
          26 Pa.C.S. §§101-1106.
objections to the Petition, arguing that Landowner filed the Petition after the statute of
limitations expired and that Landowner’s proper avenue of redress was through a
trespass action because a de facto taking did not occur. On October 9, 2018, the trial
court entered an order overruling the Authority’s preliminary objection relating to the
statute of limitations, but determined that an evidentiary hearing was necessary to
decide whether the alleged injury constituted a de facto taking. Thereafter, the trial
court conducted a hearing on January 31, 2019.
             At the hearing, the Authority’s manager, Kevin Kaplan, testified that the
Authority’s sewage collection system was installed from 1968 to 1969 using terra
cotta/clay pipes. (Notes of Testimony (N.T.) at 13, Reproduced Record (R.R.) at 4.)
Mr. Kaplan stated that although terra cotta pipes were common in the 1960s, over the
course of time, terra cotta pipes can crack and break and their joints can separate and
dislodge. (N.T. at 14, R.R. at 4.) Mr. Kaplan testified that Landowner had experienced
sewage backups on the Property. (N.T. at 15, R.R. at 4.) He explained that the
Authority had conducted an investigation of the backups, which included using CCTV
to visually inspect the sewer. Id. Mr. Kaplan stated that because of the backup issues
experienced by Landowner, the Authority installed a check valve in 2008 to try to
resolve the problem. (N.T. at 15-16, 48, 19, R.R. at 4-5, 12.) After the first check
valve failed, the Authority installed a second check valve in 2012, and Mr. Kaplan was
unaware of any flooding of the Property after the installation of the second check valve.
(N.T. at 20, 48, R.R. at 5, 12.)
             Mr. Kaplan testified that the Authority had experienced problems with its
collection system for a number of years due to the “inflow and infiltration of rainwater
and groundwater” into the system. (N.T. at 25, R.R. at 7.) Mr. Kaplan explained that
inflow occurs when landowners directly and illegally connect downspouts, French
drains, and driveway drains into the sewage system. Id. Mr. Kaplan stated that these
direct connections to the sewage system can overwhelm the system because it results

                                            2
in an excess amount of water entering the system during rain events, which can “cause
surcharging or backups due to the amount of flow.” (N.T. at 26, R.R. at 7.) Mr. Kaplan
further stated that infiltration occurs when rainwater or groundwater seeps into broken
or cracked pipes or separated joints. Id. He testified that the effect of infiltration is
similar to that of inflow. Mr. Kaplan also testified that manholes were previously
constructed using brick and that overtime the mortar in brick manholes can break down
and cause infiltration. (N.T. at 28, R.R. at 7.)
             Mr. Kaplan observed that although the typical flow into the sewage system
is 3.5 million gallons per day, during an extreme weather event the system can
experience up to 19 million gallons per day because of inflow and infiltration. (N.T.
at 30, R.R. at 8.) In an attempt to rectify the problems related to inflow and infiltration,
the Authority started a lateral inspection program of the sewage system that uses CCTV
video. (N.T. at 32, R.R. at 8.) When the Authority identifies an inflow or infiltration
issue during its inspection program, it decides what kind of corrective action needs to
be taken. (N.T. at 33, R.R. at 8.) In instances where the Authority identifies an
unapproved inflow into its sewage system, it typically sends the landowners a letter
instructing them that the inflow needs to be removed or corrected and, if that is
ineffective, files a legal action against the landowners in the magisterial district court.
(N.T. at 40, R.R. at 10.) The Authority typically conducts inspections once or twice a
week. (N.T. at 34, R.R. at 8.) The Authority started the lateral inspection program in
2011 and, since then, has inspected 1,800 homes and repaired inflow and infiltration
issues at 470 homes. (N.T. at 44, R.R. at 11.) The Authority had other inspection
programs in place before the lateral inspection program started. (N.T. at 45, R.R. at
12.)   Mr. Kaplan testified that the backups and overflows that Landowner had
experienced on his Property had been caused by inflow and infiltration surcharging.
(N.T. at 46, R.R. at 12.)



                                             3
             Mr. Kaplan stated that the Authority does not intend to permit infiltration
and inflow into the sewage system because it is detrimental to the system. (N.T. at 47,
R.R. at 12.) He stated that, ideally, the Authority would replace all of its terra cotta
pipes, but that the Authority has 245 miles of terra cotta lines and he estimates it would
cost at least $245 million to replace all of the lines. (N.T. at 41, 47-48, R.R. at 11-12.)
Thus, the Authority has been unable to replace its entire system of terra cotta lines due
to the enormous cost involved. Id.
             At the hearing, an expert in the field of civil engineering and sanitary
sewage, Joseph Dietrick, testified on behalf of Landowner. (N.T. at 60, R.R. at 15.)
Mr. Dietrick testified that, based on an investigation he undertook, it was his conclusion
that the Property experienced sewage backups due to an excess of flow in the sewage
system. (N.T. at 61, R.R. at 16.) More specifically, Mr. Dietrick stated that the
problems associated with the Property occurred because of inflow and infiltration.
(N.T. at 73, R.R. at 19.) He thought that the Authority should have implemented a
program to deal with the issues on the Property and should have been able to resolve
the issues. Id. Mr. Dietrick testified that it was his understanding that since the second
check valve was installed around 2012, overflow in the area of the Property had been
limited to a retention pond, which was separated from the building on the Property by
a parking lot. (N.T. at 85, 95, R.R. at 22, 24.) Mr. Dietrick acknowledged that the
Authority’s lateral inspection program is intended to reduce inflow and infiltration
problems. (N.T. at 88-89, R.R. at 22-23.) He also stated that the infiltration problems
stem from the original installation of terra cotta pipes, which develop problems and
deteriorate over time. (N.T. at 89, R.R. at 23.) He admitted that it would cost hundreds
of millions of dollars to replace all of the terra cotta pipe lines and that the Authority’s
lateral inspection program is making progress in fixing inflow and infiltration issues.
(N.T. at 90, R.R. at 23.) Mr. Dietrick further testified that the flooding on the Property
was caused by problems occurring miles up the sewer line from the Property, and that

                                             4
the Property had only experienced overflow problems when there had been significant
rainfall. (N.T. at 90, 93, R.R. at 23-24.)
             Landowner also testified. Landowner stated that the Property, which is a
commercial rental property, was connected to the Authority’s sewage system in 1968.
(N.T. at 110-11, R.R. at 28.) He testified that the Property first experienced sewage
problems in 2003, when sewage seeped up through the floor drains into the counseling
office in the basement of the building on the Property. (N.T. at 111-12, R.R. at 28.)
He explained that following that incident, several dump truck loads of sewage,
carpeting, toilet paper, drywall, and baseboard were removed from the Property, and
that the basement had to be rebuilt. Id.
             Landowner testified that the Property next experienced sewage issues in
2007. By that time, a hairdresser occupied the remodeled basement space. (N.T. at
112, R.R. at 28.) Landowner stated that during the second incident, about six inches
of water seeped up through the floor drain into the basement. Landowner was forced
to remove the damaged carpeting, insulation, and drywall, replace the flooring, and
disinfect, rebuild, and repaint the basement area. (N.T. at 113, R.R. at 29.) Thereafter,
the Authority installed a check valve, which Landowner understood was intended to
resolve the problem. (N.T. at 113, 116-17, R.R. at 29-30.) Landowner testified that
during the next several rain storms, the check valve was dislocated by the rain and had
to be reinstalled by the Authority. (N.T. at 117, R.R. at 30.) When the Authority
reinstalled the check valve it modified the valve so that it would not become dislocated
during a rainfall. (N.T. at 119, R.R. at 30.)
             Landowner stated that the next sewage incident occurred in 2012. (N.T.
at 119-20, R.R. at 30.) Again, the basement flooded from the floor drains, and
Landowner had to disinfect and remove the baseboard, drywall, and insulation in the
basement. Id. Landowner testified that after the 2012 incident, the Authority replaced
the check valve with a “heavier duty” check valve that had a higher “PSI rating.” (N.T.

                                             5
at 121-122, R.R. at 31.) Landowner stated that after the Authority installed the more
robust check valve there have been sewage overflows into a retention pond located on
the Property. (N.T. at 122, R.R. at 31.) Landowner explained that the overflows into
the retention pond occur on average four times per year. (N.T. at 123, R.R. at 31.)
When the sewage overflows occur he is able to see toilet paper in the retention pond
and there is an odor. (N.T. at 125, R.R. at 32.) On cross-examination, Landowner
stated that there were no flooding incidents between 2007 and 2012 and that the 2012
incident occurred after Hurricane Sandy. (N.T. at 129, R.R at 33.) He also testified
that since the Authority installed the heavier duty check valve in 2012 there has been
no damage to the building on the Property. (N.T. at 129-130, R.R. at 33.)
             Following the hearing, the trial court issued an order on July 23, 2019,
sustaining the Authority’s preliminary objections. In its opinion in support of its order,
the trial court concluded that the instant matter was analogous to our decision in In re
Condemnation by the Youngwood Borough Authority (Pa. Cmwlth., No. 203 C.D.
2014, filed December 5, 2014) (Youngwood) (unreported), wherein we concluded that
a de facto taking had not taken place. (Trial court op. at 3.) The trial court observed
that in Youngwood, the landowner alleged that a de facto taking occurred because its
property was continuously flooded by sewage. The trial court noted that in that case
the flooding had also resulted from inflow and infiltration of storm water into the
sewage system, that the borough authority had developed a corrective plan to reduce
infiltration and inflow, and that the harm that resulted to the property was not the
intended consequence of a deliberate and purposeful drainage plan. Id. Like that case,
the trial court found that, here, the damage to the Property resulted from illegal inflow
by downspouts, French drains, etc. and by infiltration from cracked or broken pipes
and severed joints. Id. at 4. Also, similar to the facts in Youngwood, the trial court
found that the Authority had a corrective action plan to reduce infiltration and inflow,
which involved inspections and repairs, that the Authority did not intend to allow

                                            6
inflow and infiltration because it was detrimental to the sewage system, and that the
Authority had made a good faith effort to fix the problem. (Trial court op. at 4.)
Moreover, given the Authority’s inspection program and the Authority’s “inability to
adequately separate the storm water from the sewage system despite [its] efforts to do
so,” the court found that “the Authority’s actions were not part of a deliberate and
purposeful drainage plan and were not related to or incidental to the use of [its]
condemnation powers.” Id. at 5.
             The trial court distinguished this case from Central Bucks Joint School
Building Authority v. Rawls, 303 A.2d 863 (Pa. Cmwlth. 1973), and Hereda v. Lower
Burrell Township, 48 A.2d 83 (Pa. Super. 1946), wherein the Commonwealth Court
and Superior Court, respectively, concluded that de facto takings had occurred because
flooding was the direct consequence of the authorities’ direct and purposeful decisions
to alter their drainage plans. (Trial court op. at 4-5.) Contrasting the present matter
with those cases, the trial court concluded that, here, the Authority did not take any
direct or purposeful actions because “no lines were placed in a deliberate fashion that
resulted in the flooding” of the Property. Id. at 5.
             While Landowner urged the trial court to rely on our decision in In re
Mountaintop Area Joint Sanitary Authority, 166 A.3d 553 (Pa. Cmwlth. 2017)
(Mountaintop), the trial court concluded that that case was also distinguishable. (Trial
court op. at 5.) The trial court observed that in Mountaintop, we concluded that a de
facto taking had occurred because the authority chose to operate its system in a manner
that would sporadically flood the landowner’s property, that the authority made
specific decisions that caused the flooding, including designing its system so that
multiple sewage lines entered onto the property, and that the authority was aware of
the adverse consequences of its action. (Trial court op. at 6-7.) Conversely, the trial
court found that in the instant case, “nothing in the testimony presented demonstrate[d]
the existence of purposeful and deliberate actions by the Authority.”         Id. at 7.

                                            7
Therefore, the trial court concluded that it could not “rely on the Mountaintop case to
reach a conclusion that the flooding at [Landowner’s] property [was] an immediate,
direct, necessary, and unavoidable consequence of the making of a public improvement
by the Authority.” (Trial court op. at 7.)
             Landowner also argued that the Authority’s decision not to spend the
money to replace all of the terra cotta pipes, in order to eliminate inflow and infiltration,
was a deliberate action taken by the Authority that established a de facto taking. Id.
However, the trial court noted that Mr. Kaplan testified that it would cost $245 million
to replace 245 miles of terra cotta pipes, and determined that the Authority was not
making “an intentional choice for the purposes of establishing a deliberate and
purposeful action required for a de facto taking merely because its board had not
authorized the spending of millions of dollars to replace 245 miles of piping.” Id. The
trial court also concluded that “[i]f the Authority had the available funding, and chose
not to use it to replace the pipes and eliminate all inflow and infiltration problems,”
then it “could potentially find that the flooding on the [Property] was deliberate and
purposeful to meet the definition of a de facto taking.” Id. Yet, the trial court
determined that the Authority did “not even have the option of making that choice in
the current matter because the evidence [did] not establish that the funding exists to put
that choice on the table.” Id. at 8.
             In sum, the trial court concluded as follows:
             Based on these facts, the Court finds more of a comparison
             to the facts of Youngwood than it does to Mountaintop, Rawls
             and Hereda. The Authority did not deliberately lay any new
             lines or make any deliberate choices that resulted in the
             flooding on [Landowner’s] property. New piping was not
             laid to increase the flow, new customers were not added to
             increase the flow to [the Property], and there was no
             testimony that the design of the system itself created a
             situation of likely overflow at [the Property] as occurred in
             Mountaintop. No ditches or piping were redirected. No one

                                             8
              suggested that the piping was the wrong size, was cracked
              and ignored, or was failing to flow properly. Instead, all
              testimony agreed that the flooding was the result of the
              Authority’s inability to eliminate inflow and infiltration into
              the sewage system, just as it was in the Youngwood case.
              And, as in Youngwood, the testimony clearly shows that the
              Authority has made good faith efforts to remediate the
              problem. Therefore, the flooding on [the Property] was the
              unintended consequence of the authority’s inability to
              separate the storm water from the sewer system, which could
              potentially amount to a trespass, but does not satisfy the
              requirements to establish a de facto taking. As a result,
              [Landowner] has failed to meet its heavy burden and the
              Authority’s preliminary objections to [Landowner’s] request
              to appoint a board of viewers are sustained.

Id.


                                           Discussion
              On appeal,2 Landowner argues that the trial court erred as a matter of law
and abused its discretion in sustaining the Authority’s preliminary objections.
Landowner contends that, pursuant to Mountaintop, 166 A.3d at 562, a series of sewage
overflows on a property constitutes a de facto taking when sewage overflows are
caused by the manner in which the authority chooses to operate its system. Under this
standard, Landowner argues that in order to prove that a de facto taking occurred, he
need only demonstrate that the overflows were caused by the Authority’s intentional
decisions regarding the operation of its system. Landowner asserts that the Authority



       2
          “Our review of a trial court’s decision to sustain or overrule preliminary objections to a
declaration of taking in an eminent domain case is limited to determining whether the trial court
abused its discretion or committed an error of law.” Beaver Falls Municipal Authority ex rel.
Penndale Water Line Extension v. Beaver Falls Municipal Authority, 960 A.2d 933, 936 (Pa. Cmwlth.
2008).



                                                 9
was aware that overflows on the Property were still occurring and that the Authority
failed to undertake the necessary maintenance and upgrades required to prevent the
Property from serving as a pressure release valve for the Authority’s system.
             Landowner maintains that the Authority’s decision to not repair and
remediate the issues causing overflows on the Property, because the Authority decided
the issues were too expensive to repair, was part of a purposeful and deliberate drainage
plan. Landowner contends that despite the Authority’s efforts to resolve the overflow
problems on the Property, overflows are still occurring outside the building in the
retention pond, which was installed for storm water purposes, rather than sewage
overflows. Thus, Landowner alleges that the Authority has deliberately “chosen to
operate its system in such a manner as to cause sanitary sewage overflows to occur on
[the Property] as a deliberate alternative to spending the necessary funds to correct the
infiltration issues [a]ffecting the system as a whole, or the part of the system at issue.”
(Landowner’s Br. at 13.) Landowner further argues that he “has lost the use of a portion
of [the Property], and suffered damages including but not limited to lost ability to raise
rents, lost tenants, odors, lost property values, and other damages.” (Landowner’s Br.
at 14.) Landowner also contends that the trial court erred in relying on Youngwood
instead of Mountaintop. Landowner asserts that, like Mountaintop, the Authority had
knowledge of the issues on the Property and engaged in “ad hoc” remedies that did not
resolve the problem. (Landowner’s Br. at 15.)
             Finally, Landowner argues that the trial court erred in finding that the
overall cost and practicality of remediating the system was relevant. Landowner
maintains that the Authority’s decision to not spend the necessary funds to remediate
the system was a deliberate decision and that whether or not it might have been cost
prohibitive to make the repairs was not relevant to the trial court’s determination
regarding a de facto taking.



                                            10
             In contrast, the Authority claims that the trial court correctly relied on
Youngwood rather than Mountaintop. The Authority asserts that, like Youngwood,
where flooding was also caused by inflow and infiltration and where the local authority
attempted to fix the problem, the trial court properly analogized that case to the present
situation to conclude a de facto taking had not occurred.
             The Authority further alleges that the trial court’s decision was supported
by substantial evidence. The Authority contends that the evidence established that
inflow and infiltration caused the overflow problems on the Property and that the
Authority had an inspection and repair program in place to try to remediate the
problem.
             Additionally, the Authority asserts that for a de facto taking to occur, the
resulting injury must be the immediate, direct, necessary, and unavoidable consequence
of the exercise of an eminent domain action and, therefore, recovery may not be
obtained through eminent domain proceedings where the injury resulted from a trespass
or from negligent acts committed by the condemning body. The Authority contends
that because the harm to the Property was the unintended consequence of its inability
to adequately separate storm water from sewage and was not part of a deliberate and
purposeful drainage plan, the proper action lies in trespass rather than eminent domain.
The Authority also alleges that its good faith effort to correct the inflow and infiltration
problems demonstrates that it was not its intention to allow the same.
             Finally, according to the Authority, the trial court did not improperly rely
upon evidence of the cost of replacing the terra cotta pipes; instead, the trial court
discussed the high cost of remediation in relation to Landowner’s argument that the
decision to not expend such funds was a deliberate action. The Authority asserts that
the trial court concluded that the Authority’s decision was not deliberate, in part, based
on the lack of evidence that the Authority had the necessary funding to replace the terra
cotta pipe system.

                                            11
             A landowner asserting that a de facto taking has occurred bears a heavy
burden of proof. Griffith v. Millcreek Township, 215 A.3d 72, 75 (Pa. Cmwlth. 2019),
appeal denied, 223 A.3d 660 (Pa. 2020). In particular, the landowner must allege and
prove the following elements:
             (1) [the] condemnor has the power to condemn the land under
             eminent domain procedures; (2) exceptional circumstances
             have substantially deprived the [landowner] 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.

Id. Thus, “[a] de facto taking must result from the governmental body’s actual exercise
of the power of eminent domain.” Id. Accordingly, “an injury which is not the
immediate, direct, necessary, and unavoidable consequence of the making of a public
improvement by an entity having the power of eminent domain is not a de facto taking.”
Appeal of Kehler, 442 A.2d 409, 410 (Pa. Cmwlth. 1982).
             Moreover, “‘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.’” Griffith, 215 A.3d at 75 (emphasis in original) (quoting Mountaintop,
166 A.3d at 562).      Conversely, “where injuries result from the negligence of a
condemning body’s agents, there is no de facto taking.” Griffith, 215 A.3d at 75
(emphasis in original); see also McMaster v. Township of Bensalem, 161 A.3d 1031,
1037 (Pa. Cmwlth. 2017) (holding that, typically, “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”); Appeal of Jacobs, 423 A.2d 442,
443-44 (Pa. Cmwlth. 1980) (holding that “[n]o recovery may be obtained through
eminent domain proceedings where the injury resulted from trespass and no de facto
taking may result from negligent acts committed” by the condemning body).



                                            12
              As pertains to the instant matter, generally “where the evidence shows that
the flooding of land and buildings is the direct and necessary consequence of the
[condemning body’s] drainage plan . . . there is a de facto taking.” Greger v. Canton
Township, 399 A.2d 138, 140 (Pa. Cmwlth. 1979); see also Griffith, 215 A.3d at 76
(holding that courts are more likely to find a taking where the action complained of
was part of a purposeful and deliberate drainage plan). In Youngwood,3 which the trial
court relied on to reach its decision, the landowner, a nonprofit corporation that
operated a local railroad museum and café (Museum), filed a petition for appointment
of a board of viewers alleging that the local sewer authority’s sewer line became
overloaded and flooded the Museum’s basement with feces, toilet paper, effluent, and
blackened water having a strong odor. Id., slip op. at 1-2. At a hearing on preliminary
objections, the Museum’s president testified that sewage flooded the basement
whenever it rained heavily or steadily for several days. Id., slip op. at 2-3. An engineer
who worked for the local authority testified that although the sewage system was only
intended to collect sewage, and not storm water, infiltration occurred when storm water
entered into the system’s aging terra cotta clay pipes. Id., slip op. at 4. He explained
that the local authority had a collective action plan to reduce infiltration and inflow into
the sewage system. Id. The trial court sustained the local authority’s preliminary
objections because it concluded that the local authority had not acted deliberately or
intentionally and therefore, that no recovery could be maintained through eminent
domain proceedings. Id., slip op. at 4-5.
              On appeal, we concluded that the trial court had correctly concluded that
a de facto taking had not occurred because the local authority’s actions “were not
purposeful and deliberate” and because it “made good faith efforts to correct the storm

       3
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).



                                                13
water and sanitary sewage overload problem.” Id., slip op. at 7. We further held that
the landowner’s harm “was merely the unintended consequence of the [local
authority’s] inability to adequately separate the storm water from the sanitary system[,]
despite [its] efforts to do so, and was not part of a purposeful and deliberate drainage
plan nor related to or incidental to [its] condemnation powers.” Id. (emphasis added).4
               Conversely, Landowner argues that the trial court should have relied on
Mountaintop because it is more analogous to the instant matter factually.                          In
Mountaintop, the landowner’s home and lawn were flooded with sewage on several
occasions between 2006 and 2011. 166 A.3d at 555. The landowner filed a petition
for appointment of a board of viewers, alleging that a de facto taking had occurred
because the local authority knew that its sewage system was prone to overloads that
would cause flooding onto her property and that, despite this knowledge, allowed
additional properties to connect to the system, thereby increasing the number of
overloads. Id. at 556. At a hearing on preliminary objections, the local authority’s
executive director testified that the authority’s customer base had increased every year
from 2007 through 2011. Id. He also testified that there were two manholes on the
landowner’s property, that several different sewer lines connected at the two manholes,
and that the sewage exited the manholes from a single line. Id. at 557. In sum, sewage
entered the manholes by multiple sewer lines, but exited by a single line. Id. The


       4
          See also Griffith, 215 A.3d at 76-77; Appeal of Kehler, 442 A.2d at 409-10. In Griffith, a
landslide, which rendered a landowner’s home uninhabitable, was caused by the township’s storm
water system’s erosion of a ravine adjacent to the home. 215 A.3d at 76-77. We concluded that a de
facto taking had not occurred because, although the township may have been negligent in the
maintenance and operation of the storm water system, the landslide did not result from any intentional
actions taken by the township. Id.
        Likewise, in Appeal of Kehler, we concluded that because the flooding of sewage into the
basement of a dwelling resulted from an obstruction by foreign matter in the sewer line serving the
dwelling, the flooding was “not the necessary and unavoidable consequence of the presence of the
township’s sanitary sewer main in the street abutting the dwelling” and, thus, a de facto taking had
not occurred. 442 A.2d at 409-10.

                                                 14
executive director additionally testified that the slope of the sewer lines entering the
two manholes was steeper than the slope of the single exit pipe leaving the manholes.
Id. Therefore, sewage entered the manholes at a faster rate than it could exit. Id. Due
to the “design capacity” of the sewage system, overflow events occurred when
wastewater filled the barrel of the manhole and exited the sewage system completely.
Id. The landowner testified that on several occasions, the lower level of the house was
flooded with knee-deep sewage. Id. at 558. She stated that the local authority
attempted to fix the problem several times by plugging the sewer lines with “balls.” Id.
at 559.
             Based on this testimony, the trial court concluded a de facto taking
occurred because the flooding resulted from the “manner in which the [local authority]
chose to operate its system.” Id. at 562. On appeal, we agreed with the trial court,
concluding that “[s]pecific decisions of the [local authority] caused the overflow events
and [it] was aware of the adverse consequences of those decisions.” Id. at 563. We
based our decision on the fact that the local authority “decided to expand its customer
base from 2007 through 2011 and increase the volume of sewage flowing through its
system”; that the local authority “designed” the two manholes “to have sewage enter
from multiple steep-sloped manholes but exit through a single, narrower, and less-
sloped exit line”; and that “these decisions alone affected the amount of sewage flowing
through [the local authority’s] system and increased the likelihood of overflow events
occurring on [the landowner’s] property.” Id. (emphasis added). We also based our
decision on the fact that the local authority was aware of the likelihood of overflow
events and that, “[d]espite this knowledge, the [local authority] did not take appropriate
steps to remedy the structural defects,” but instead pursued ad hoc remedies. Id. Thus,
we held that the flooding was the “direct result of intentional action” taken by the local
authority incidental to its eminent domain power. Id.



                                           15
               Moreover, we determined that the case was distinguishable from
Youngwood. Mountaintop, 166 A.3d at 563. We concluded that unlike in Youngwood,
where “there was no finding the landowner’s harm derived from ‘a purposeful and
deliberate drainage plan,’” in the case before us the trial court specifically found that
the overflow onto the landowner’s property “resulted from the manner in which the
[local authority] operated its system.” Mountaintop, 166 A.3d at 563 (emphasis added)
(quoting Youngwood, slip op. at 7).5
               Because the facts, here, are more akin to Youngwood than to Mountaintop,
we conclude that the trial court properly relied on the former case to conclude that a de

       5
          See also Brown v. Pennsylvania Turnpike Commission (Pa. Cmwlth., No. 235 C.D. 2018,
filed January 7, 2019) (unreported); Rawls, 303 A.2d at 864; Hereda, 48 A.2d at 83-85. In Brown,
the Pennsylvania Turnpike Commission (Commission) undertook a widening project, which
significantly changed the grade of the turnpike and increased the flow of storm water. Brown, slip
op. at 3. In order to control the flow of storm water, the Commission constructed a retaining wall,
drainage pipe, and “riprap swale” to collect storm water runoff, which resulted in the runoff being
discharged onto the landowner’s property. Id., slip op. at 3, 16. Following the widening project,
storm water flow was concentrated at a specific point on the landowner’s property and increased by
500%. Id., slip op. at 3, 7. On appeal, we held that a de facto taking had occurred because the
evidence supported the trial court’s determination that the injury to the property was the “immediate,
necessary and unavoidable consequence[] of [the Commission’s] construction project, which
intentionally diverted a greatly increased and concentrated storm[]water flow directly onto” the
landowner’s property. Id., slip op. at 17 (emphasis in original). We concluded that the Commission’s
“construction project created a drainage system that intentionally discharged a greatly increased and
concentrated flow of storm[]water onto the rear” of the landowner’s property. Id., slip op. at 18
(emphasis in original).
        Likewise, in Rawls, the local authority installed a 27-inch diameter pipe that emptied into a
stream that flowed onto the landowner’s property. 303 A.2d at 864. The emptying of the pipe into
the stream caused an increased quantity of effluent that flooded the landowner’s property, unpleasant
odors, and erosion of the stream bank. Id. We held that a de facto taking had occurred because the
flooding was the direct and necessary consequence of the authority’s intentional action of installing
the 27-inch pipe. Id. at 866-67.
        Further, in Hereda, the flooding of sewage onto the landowner’s property resulted from the
township’s decisions to install a 55-foot-long, 18-inch diameter steel pipe ending at the landowner’s
property and close a ditch, adjacent to the property, which had previously collected storm water. 48
A.2d at 83. The Superior Court concluded that because the injury to the property “resulted from the
consummation of [the township’s] drainage plan” and the water and sewage would not have diverted
and discharged onto the property, but for the township’s actions, such injury was “the direct,
immediate, necessary, and unavoidable consequence of the exercise” of the township’s eminent
domain power. Id.

                                                 16
facto taking had not occurred. By all accounts, when the Authority first constructed its
sewage system in 1968-69 using terra cotta/clay pipes, the system operated as intended.
However, since 2003, the Property has been flooded by sewage on several occasions.
Mr. Kaplan testified that the flooding on the property was caused by infiltration and
inflow of storm water into the system. Infiltration occurs when the terra cotta pipes
crack, break and separate, due to aging, and inflow occurs when landowners illegally
connect downspouts and other drains into the sewage system. Mr. Kaplan stated that
inflow and infiltration can overwhelm the sewage system because it results in an excess
of storm water entering the system during rain events. According to Mr. Kaplan, the
Authority did not intend to allow infiltration and inflow, because it is detrimental to the
sewage system, and began a lateral inspection program to identify and repair infiltration
and inflow problems. With respect to the Property, the Authority installed a check
valve that eventually stopped the flooding of the basement on the Property; however,
sewage still flows into the retention pond on the Property several times a year. Mr.
Dietrick, an expert who testified on behalf of Landowner, also acknowledged that the
flooding on the Property occurred due to inflow and infiltration.
             Because the facts, here, are nearly identical to those in Youngwood, we
hold that the trial court correctly determined that the Authority’s actions did not
constitute a de facto taking. Like Youngwood, the flooding of the Property was caused
by the inflow and infiltration of storm water into the Authority’s older terra cotta pipe
sewage system, the Authority did not intend to allow storm water to enter its sewage
system, and the Authority developed a program to try to eliminate inflow and
infiltration. Thus, similar to Youngwood, because the Authority’s “actions were not
purposeful and deliberate” and because the Authority “made good faith efforts to
correct the storm water and [] sewage overload,” we conclude that a de facto taking did
not occur. Youngwood, slip op. at 7. Indeed, as in that case, the injury to the Property
was “merely the unintended consequence of the Authority’s inability to adequately

                                            17
separate the storm water from the [sewage] system,” despite the Authority’s efforts to
remedy the problem, and was “not part of a purposeful and deliberate drainage plan.”
Id. The facts in the instant case are also comparable to the situation in Appeal of Kehler,
where flooding resulted from a sewer pipe being blocked by a foreign material, rather
than an intentional action.
              Moreover, we agree with the trial court that the facts, here, are
significantly distinguishable from Mountaintop and the other cases where flooding
resulted from deliberate and purposeful drainage plans. In Mountaintop, the flooding
resulted from the local authority’s decision to design the sewage system in such a way
that several steep-sloped sewer lines converged at the landowner’s property, but only
exited through a single less-sloped exit line, and from its decision to expand its
customer base and, thus, increase the volume of sewage in the system. We held that a
de facto taking occurred because the flooding resulted from the intentional “manner in
which the local authority chose to operate its system.” Mountaintop, 166 A.3d at 563.
Similarly, in Brown, Rawls, and Hereda, we concluded that de facto takings had
occurred because flooding resulted from the condemning bodies’ intentional operation,
design, and/or installation of their drainage and sewage systems.
              Unlike those cases, here, the flooding of Landowner’s property did not
occur due to a deliberate and purposeful drainage plan, but rather, stemmed from the
Authority’s inability to eliminate the inflow and infiltration problems arising from the
deterioration of its aging terra cotta pipe system. Therefore, because the injury to
Landowner’s property was not the “direct result of intentional action by [the Authority]
incidental to its exercise of its eminent domain power,” we hold that a de facto taking
did not take place.6 Griffith, 215 A.3d at 75.


       6
         While we conclude that Landowner could not obtain recovery through eminent domain
proceedings, we do not address or decide the separate questions of whether the Authority’s actions
were negligent or whether Landowner can seek redress through a trespass or similar action.


                                               18
             We also conclude that the trial court did not err in examining the cost of
remediation of the Authority’s terra cotta pipe sewage system. While Landowner
asserts that the cost of replacing the sewage system was not relevant to determining
whether a de facto taking occurred, as argued by the Authority, the trial court only
addressed the cost of remediating the system in relation to Landowner’s argument,
made before the trial court, that the Authority’s decision to not replace the pipes was a
deliberate action that established a de facto taking.
             Our review of the trial court’s opinion confirms that the trial court
discussed the cost of replacing the pipes in relation to Landowner’s arguments. In
response to Landowner’s contention that the Authority’s decision to not replace the
pipes was a “deliberate action taken by the [A]uthority,” the trial court noted that Mr.
Kaplan testified that the sewage system consisted of “245 miles of sewer, most of
which [were] terra cotta or clay pipes, and [that] removing all of them would be large
scale and cost over 245 million dollars.” (Trial court op. at 7.) The trial court
concluded that the Authority “was not making an intentional choice for the purposes
of establishing a deliberate and purposeful action required for a de facto taking merely
because its board had not authorized the spending of millions of dollars to replace 245
plus miles of piping.” Id. The trial court found that “[i]f the Authority had the available
funding, and chose not to use it to replace the pipes and eliminate all inflow and
infiltration problems, then [the] [c]ourt could potentially find that the flooding on [the
Property] was deliberate and purposeful to meet the definition of a de facto taking.”
Id. Nonetheless, the trial court determined that the Authority “did not even have that
choice in the current matter because the evidence [did] not establish that the funding
exist[ed] to put that choice on the table.” Id. at 8.
             Because the trial court only considered the cost of replacing the sewage
system as part of its general analysis into whether the flooding resulted from a
deliberate or purposeful action taken by the Authority, we discern no error.

                                            19
                                       Conclusion
             Accordingly, because we conclude that a de facto taking did not occur, we
affirm the order of the trial court.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          20
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In the Matter of: Condemnation by       :
the Franklin Township Sewage            :
Authority of Property of William Ott,   :
Situate in the Municipality of          :    No. 1237 C.D. 2019
Murrysville, Westmoreland County,       :
Pennsylvania                            :
                                        :
Appeal of: William Ott                  :


                                    ORDER


            AND NOW, this 8th day of June, 2020, the July 24, 2019 order of the
Court of Common Pleas of Westmoreland County is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
