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RAWLS v. CENTRAL BUCKS JOINT SCHOOL BUILDING AUTHORITY (05/01/73)

decided: May 1, 1973.

RAWLS
v.
CENTRAL BUCKS JOINT SCHOOL BUILDING AUTHORITY



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Margaret M. Rawls v. Central Bucks Joint School Building Authority, No. 1470 March Term, 1971.

COUNSEL

Thomas F. J. MacAniff, with him Eastburn and Gray, for appellant.

Brenden E. Brett, with him Pratt, Clark, Gathright & Price, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 8 Pa. Commw. Page 492]

This is an appeal from an Order of the Court of Common Pleas of Bucks County dismissing preliminary objections to a petition for the appointment of viewers.

The appellee, Margaret Rawls ("Rawls"), owns residential property in Buckingham Township, Bucks County. In May of 1967, appellant, the Central Bucks Joint School Building Authority ("Authority"), entered into a contract for the construction of a sewerage treatment plant on its property, incident to which was the construction in September, 1968, of a twenty-seven inch in diameter outfall line in the legal right of way of Anderson Road which was contiguous to the Authority's property. This outfall line ran parallel to the Authority's property in the legal right of way for approximately one thousand feet, after which it continued in the legal right of way for approximately three hundred additional feet. At this point, the line emptied into a stream which traversed the legal right of way at right angles. This stream flows onto Rawls' property. Rawls alleges that the emptying of the outfall line into the stream on or about September 2, 1969, has created the following conditions: a quantity of effluent greater than any surface water which may otherwise

[ 8 Pa. Commw. Page 493]

    have flowed onto her land; unpleasant odors; erosion of the stream bank and bed; an unsightly thick growth of weeds on both banks of the stream; a danger of raw sewage being discharged into the stream; and the existence of a conspicuous sewer pipe, the operation and presence of which have depreciated the value of appellee's property.

On the basis of these averred developments, on April 16, 1971, Rawls petitioned for the appointment of viewers pursuant to Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sess., P.L. 84, 26 P.S. ยง 1-502(e), alleging compensable injury to her property for which no declaration of taking had been filed. After viewers were appointed, the Authority filed preliminary objections asserting, inter alia, the failure of Rawls to set forth what property was condemned, the absence of any condemnation of Rawls' property, the lack of a compensable injury, and the fact that there had been no taking. These preliminary objections were sustained, the lower court holding that no compensable injury had been alleged. Rawls filed an amended petition setting forth the alleged compensable injury; viewers were appointed; the Authority filed a second set of preliminary objections identical to the first. The lower court dismissed the preliminary objections and the Authority brought this appeal.

There are two issues presently before this Court, the first of which is whether or not the dismissal of preliminary objections to a petition for the appointment of viewers where there has been no declaration of taking is an appealable order. The second issue goes to the sufficiency of the complaint, i.e., whether a compensable injury was alleged, taking the well-pleaded averments as true.

In Jacobs v. Nether Providence Township, 6 Pa. Commonwealth Ct. 594, 297 A.2d 550 (1972), this Court discussed the ...


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