Linde Enterprises v. Lackawanna Ricer Basin Sewer Authority

911 A.2d 658

LINDE ENTERPRISES, INC. v. LACKAWANNA RIVER BASIN SEWER AUTHORITY, Appellant.

Commonwealth Court of Pennsylvania.

Argued October 17, 2006.

Decided November 22, 2006.

William P. Bresnahan, Pittsburgh, for appellant.

Ronnie Jennifer Fischer, Honesdale, for appellee.

BEFORE: JAMES GARDNER COLINS, President Judge, and DORIS A. SMITH-RIBNER, Judge, and RENÉE COHN JUBELIRER, Judge.

OPINION BY President Judge COLINS.

The Lackawanna River Basin Sewer Authority (Authority) appeals from the order of the Wayne County Court of Common Pleas (trial court) that denied the Authority's preliminary objections (Preliminary Objections) and ordered the Board of Viewers to continue to function pursuant to the Pennsylvania Eminent Domain Code (Code).¹

In June, 2005, Linde Enterprises, Inc. (Linde), owner of various parcels of property in a Wayne County subdivision, filed a civil complaint alleging counts for negligence, nuisance, and inverse condemnation. Linde alleged that the Authority had begun a major expansion of its waste water treatment plant located adjacent to Linde's property, including a new combined sewer overflow discharge point. Linde alleged that part of the expansion would greatly increase noise and noxious odors coming from the plant onto its property.

The Authority filed preliminary objections in August, 2005. The Authority contended that Linde's allegations were insufficient as a matter of law to support viable claims on all three counts because they were based on events that have not yet occurred. In September, prior to scheduling a hearing on the preliminary objections, the trial court held a status conference. According to Linde, and as stated by the trial court in a `Statement of Reasons' issued on January 10, 2006 and discussed below, the conference resulted in the parties agreeing that: 1) Linde would withdraw the negligence and nuisance counts; 2) Linde would file an amended complaint alleging inverse condemnation only; and 3) a Board of Viewers would be appointed.

Subsequent to the status conference, the trial court issued an order providing that Linde's complaint be amended within twenty days; giving the parties thirty days to view the site; and stating that a Board of Viewers would be appointed within sixty days. On October 19, 2005 Linde filed an amended complaint. On November 1, 2005 the trial court issued an order appointing a Board of Viewers. On November 10, the Authority's counsel withdrew and new counsel filed Preliminary Objections to the amended complaint, citing Linde's failure to request an appointment of viewers pursuant to the Code and failure to allege facts sufficient to sustain a de facto taking.² Linde responded with preliminary objections to, and motion to strike, the Authority's Preliminary Objections.

On January 4, 2006, a hearing was held on the Preliminary Objections. (New) counsel for the Authority argued that Linde had initiated a civil action by filing a complaint under the Pennsylvania Rules of Civil Procedure, which are not applicable in eminent domain actions, and that Linde should have properly filed a Petition for the Appointment of Viewers alleging the de facto taking in accordance with the Code, thus providing the Authority the proper avenue to challenge Linde's allegations. At this hearing, the Authority's counsel stated, "[N]o viewers have been appointed in this case, there hasn't even been a request for viewers and there has been no petition for the appointment of viewers." (R.R. at 88a) (emphasis added).

Linde's counsel countered that a Board of Viewers had in fact been appointed, pursuant to the agreement reached by the parties at the September status conference wherein counsel for the Authority had agreed that Linde would go forward with an inverse condemnation claim and that a Board of Viewers would be appointed. Counsel for the Authority then stated that he was not aware of the trial judge's order appointing viewers.

The trial court issued an order on January 10, 2006 denying both the Authority's Preliminary Objections and Linde's preliminary objections thereto, and directing that the Board of Viewers continue to operate. In March, 2006, the trial court issued a `Statement of Reasons' indicating that during the argument, it became apparent that Authority's counsel was unaware of the procedural history of the case, and especially the substance of the status conference; therefore, the trial court stated, it had issued the January 10 order. It is from that order that the Authority appeals.³

On appeal, the Authority avers that Linde failed to follow proper procedure and meet requirements pursuant to the Code when it filed an amended civil complaint alleging a de facto taking instead of a petition for the appointment of viewers; the Authority contends that the trial court had no authority to appoint viewers where no petition had been filed pursuant to the Code. The Authority further asserts that Linde failed to allege and prove that the events it claims in the inverse condemnation allegation have occurred, and therefore Linde has failed to sufficiently allege an inverse condemnation.

Linde contends that the trial court's denial of the Authority's Preliminary Objections was proper as to both the form and the content of Linde's inverse condemnation claim because the Authority waived its objections to form when it agreed at the status conference that Linde would proceed by filing an amended complaint, and any procedural defects in the amended complaint are minimal. Linde further argues that the Authority's objection as to the legal sufficiency of Linde's allegation of a de facto taking has no merit, because it can be inferred from the undisputed facts that the Authority's actions will result in deprivation to the use and enjoyment of Linde's property.

It is well established that the Code provides the exclusive method and practice governing eminent domain proceedings, including de facto takings. Section 502(e) of the Code provides that that if there has been a compensable injury suffered and no declaration of taking filed, a condemnee may file a petition for the appointment of viewers substantially in the form of Section 502(a). Section 504 of the Code provides the procedure following the filing of a petition for appointment of a board of viewers; it is from Section 504 that the trial court receives its authority to appoint viewers:

§ 1-504. Appointment of Viewers; Notice—

Upon the filing of a petition for the appointment of viewers, the court, unless preliminary objections to the validity of the condemnation or jurisdiction, warranting delay, are pending, shall promptly appoint three viewers, who shall view the premises, hold hearings, and file a report. (26 P.S. § 1-504 emphasis added).

In the case sub judice, the trial court erroneously moved to appoint a board of viewers prior to arriving at the necessary determination that a de facto taking had in fact occurred. The Court of Common Pleas, not the Board of Viewers, determines whether a petition for the appointment of viewers alleges a de facto cause of action, resolves factual issues raised by preliminary objections, and determines whether or not a de facto taking has occurred. Stein v. Department of Transportation, 24 Pa.Cmwlth. 524, 357 A.2d 738 (1976); Petition of Ramsey, 20 Pa.Cmwlth. 207, 342 A.2d 124 (1975); Jacobs v. Nether Providence Township, ...