Summary
In St. Catherine Church v. Mountaintop Area Joint Sanitary Authority, 427 A.2d 726 (Pa. Cmwlth. 1981), the landowners filed an action in trespass and ejectment, alleging that the sewer authority constructed sewer lines across their land without filing a declaration of taking.
Summary of this case from In re PowellOpinion
Argued March 6, 1981
April 1, 1981.
Eminent domain — De facto taking — Ejectment — Trespass — Eminent Domain Code, Act of June 22, 1964, P.L. 84 — Exclusive remedy.
1. An action in trespass or ejectment does not lie against a body with condemnation powers which effects a de facto taking, as an exclusive remedy is provided by the Eminent Domain Code, Act of June 22, 1964, P.L. 84, through a petition for the appointment of viewers or by an action in equity to compel the body to proceed with proper condemnation proceedings. [182-3]
Argued March 6, 1981, before Judges BLATT, CRAIG and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 1775 C.D. 1980, from the Order of the Court of Common Pleas of Luzerne County in case of Saint Catherine Church and St. Jude Church v. The Mountaintop Area Sanitary Authority, No. 879-C-1980.
Complaint in trespass and ejectment in the Court of Common Pleas of Luzerne County to abate unlawful entry. Defendant filed preliminary objections. Preliminary objections sustained. Complaint dismissed. BROMINSKI, P.J. Plaintiffs appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John L. McDonald, for appellants.
Joseph P. Mellody, Jr., for appellee.
St. Catherine Church and St. Jude Church appeal from the order of the Court of Common Pleas of Luzerne County which dismissed their complaints in ejectment and trespass against the Mountaintop Area Joint Sanitary Authority.
The churches alleged that the authority wrongfully entered their lands and constructed sewer lines across them without filing any declaration of taking or otherwise exercising its power of eminent domain. That the authority filed no declaration and that the lines were so laid is uncontested.
In sustaining preliminary objections by the authority, the lower court reasoned that the churches' exclusive remedy here was to treat the alleged authority action as a de facto taking and petition for the appointment of viewers under § 502(e) of the Eminent Domain Code. The churches contend that remedy is inadequate because viewers can only assess damages, and that trespass and ejectment should lie to permit the abatement of the alleged unlawful entry and ouster of the authority.
Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P. S. § 1-101 et seq.
Ramad Realty Corp. v. Springettsbury Township Sewer Authority, 10 Pa. Commw. 1, 309 A.2d 80 (1973), controls this case. We there clearly held that § 406 of the Eminent Domain Code enables the common pleas court "to order removal if the construction is found to be invalid in the first instance," thus ultimately affording a complete and therefore exclusive remedy for an invalid taking.
Ramad likewise clearly stated that, in situations like this case, where a de facto taking has been accomplished, and the landowner "does not wish to proceed under § 502(e) [for damages] and there is no declaration of taking to challenge [by preliminary objections] under § 406 . . . equity may be invoked in order to force the authority to proceed with proper condemnation proceedings. This is the only method by which the landowner may protect his rights." 10 Pa. Commw. at 6, 309 A.2d at 83.
Accordingly, we affirm the common pleas court's dismissal of the complaints in trespass and ejectment, leaving the churches with their option to compel, through equity, the filing of a declaration of taking, the validity of which can then be attacked by preliminary objections under the Eminent Domain Code.
Indeed, if the allegations are well founded, we cannot see why the authority here should not obviate the need for an ancillary equity proceeding by voluntarily filing a declaration, so that the churches may proceed directly under the Eminent Domain Code.
ORDER
AND NOW, April 1, 1981, the June 30, 1980 order of the Court of Common Pleas of Luzerne County at No. 879-C of 1980 is affirmed.
This decision was reached prior to the expiration of the term of office of Judge WILKINSON, JR.