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HAROLD O. ESPY AND NORMA J. ESPY v. BUTLER AREA SEWER AUTHORITY (12/08/81)

decided: December 8, 1981.

HAROLD O. ESPY AND NORMA J. ESPY, HIS WIFE, APPELLANTS
v.
BUTLER AREA SEWER AUTHORITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Butler County in case of Harold O. Espy and Norma J. Espy, his wife v. Butler Area Sewer Authority, A.D. No. 80-326, Book 118, Page 149.

COUNSEL

Thomas W. King, III, Dillon, McCandless, King & Kemper, for appellants.

Lee C. McCandless, McCandless, Krizner & Price, for appellee.

President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 63 Pa. Commw. Page 96]

Appellants, Harold and Norma Espy, appeal from an order of the Court of Common Pleas of Butler County sustaining the preliminary objections of the Butler Area Sewer Authority and dismissing the appellants' petition for the appointment of viewers.

On January 12, 1978, the Espys entered into a right-of-way agreement with the authority allowing a specified portion of their land to be used for the installation of a sewer line. In return for granting the right-of-way, the Espys received $1,176, and the right to connect to a convenient sewer connection.

The authority contracted with Chester Engineers, Inc. and Dan Sciullo and Company, Inc., as independent contractors, to do the actual surveying and construction of the sewer line. Although the plans for the sewer line indicated that it was to be placed within the right-of-way granted by the Espys, the contractors

[ 63 Pa. Commw. Page 97]

    placed the line on the Espy property outside of the location specified in the agreement.

In response to this error, the Espys, pursuant to Section 502(e) of the Eminent Domain Code (Code),*fn1 filed a petition in the common pleas court for the appointment of a board of viewers to assess the damages caused by the incorrect placement of the sewer line.

Upon preliminary objections filed by the authority, after an evidentiary hearing, the trial court found that the misplacement of the sewer line was the error of the independent contractors and that the authority's project manager was unaware of the error until the day before the hearing. The court therefore sustained the authority's preliminary objections, dismissed the petition for the appointment of viewers, and held that the Espys were not entitled to proceed under the Code, but were limited to an action in trespass.*fn2

Before there can be a de facto taking, there must be substantial deprivation of the beneficial use and enjoyment of property. Harborcreek Township v. Ring, 48 Pa. Commonwealth Ct. 542, 410 A.2d 917 (1980); West Penn Power Co. v. Bruni, 36 Pa. Commonwealth Ct. 116, 387 A.2d 1316 (1978); Beckman v. Redevelopment Authority of City of McKeesport, 30 Pa. Commonwealth Ct. 576, 374 A.2d 985 (1977). Although the Espys did not produce extensive evidence as to deprivation, such deprivation could be inferred ...


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