In re Franklin Twp. Sewage Auth.

233 A.3d 1014

In the MATTER OF: Condemnation by the FRANKLIN TOWNSHIP SEWAGE AUTHORITY of Property of William Ott, Situate in the Municipality of Murrysville, Westmoreland County, Pennsylvania

Appeal of: William Ott

No. 1237 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted: May 15, 2020

Filed: June 8, 2020

Michael T. Korns, Pittsburgh, for Appellant.

Thomas V. Gebler, Jr., Pittsburgh, for Appellee Franklin Township Sewage Authority.

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

OPINION BY JUDGE McCULLOUGH

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 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 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.)

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 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...