Opinion
Argued February 5, 1982
March 16, 1982.
Eminent domain — De facto taking — Public improvement — Sewage.
1. 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. [338]
2. Where the incursion of sewage into a dwelling is not the necessary and unavoidable consequence of the presence of the township's sanitary sewer main in the street abutting the dwelling, but is the result of a blockage in the main by foreign material, appointment of viewers is not the proper remedy for the dwelling's owners. [338]
Argued February 5, 1982, before Judges ROGERS, MacPHAIL and DOYLE, sitting as a panel of three.
Appeal, No. 49 T.D. 1981, from the Order of the Court of Common Pleas of York County in the case of In Re: Condemnation by the Springettsbury Township Sewer Authority, York County, Pennsylvania, appropriating a temporary easement over and in land of Stephen C. Kehler, et ux., in Springettsbury Township, York County, Pennsylvania, No. 79-S-3715, Eminent Domain.
Petition for appointment of viewers in the Court of Common Pleas of York County. Preliminary objections filed. Preliminary objections sustained. CASSIMATES, J. Petitioners appealed to the Superior Court of Pennsylvania. Case transferred to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Donald L. Reihart, with him Lillian M. Morgan, Laucks Monroe, for appellants.
Donald H. Yost, Blakey, Yost, Bupp Kilgore, for appellee, Springettsbury Township.
Kenneth J. Sparler, Anstine Anstine, for appellee, Springettsbury Township Sewer Authority.
Stephen C. Kehler and Beth A. Kehler, his wife, have appealed from an order of the Court of Common Pleas of York County sustaining Springettsbury Township's demurrer to the appellants' petition for the appointment of viewers. From depositions filed in the court below we learn that as the result of an obstruction by foreign matter in the sanitary sewer line serving the appellants' dwelling, sewage entered the basement of the dwelling. The results of this occurrence were that the appellants were unable to have their meals at home for a day or so and incurred cleanup expenses totalling $296.71. The court decided that the appellants had not suffered a de facto taking. This was clearly correct and we affirm.
The township was one of two public bodies named by the petitioners as condemnors, the other being the Springettsbury Township Sewer Authority.
It has long been and remains the law of Pennsylvania that 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. Some of the many cases so holding are: Appeal of Jacobs, 55 Pa. Commw. 142, 423 A.2d 442 (1980); Lehan v. Department of Transportation, 22 Pa. Commw. 382, 349 A.2d 492 (1975); Condemnation of 2719, 2721, and 2711 East Berkshire Street, 20 Pa. Commw. 601, 343 A.2d 67 (1975); Department of Transportation v. Castillo, 14 Pa. Commw. 22, 321 A.2d 394 (1974); Lizza v. City of Uniontown, 345 Pa. 363, 28 A.2d 916 (1942); Stork v. City of Philadelphia, 195 Pa. 101, 45 A. 678 (1900). The incursion of sewage into the appellants' dwelling was not the necessary and unavoidable consequence of the presence of the township's sanitary sewer main in the street abutting the appellants' dwelling; rather, as the depositions taken below show, it was the result of the blockage in the main by foreign material. The appellants' remedy is by a delictual action for improper construction or maintenance of the public sewers.
Order affirmed.
ORDER
AND NOW, this 16th day of March, 1982, the order of the Court of Common Pleas of York County made April 2, 1981 is affirmed.