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decided: December 8, 1981.


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.


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 from the undisputed fact that the sewer line was placed outside the granted right-of-way, thus inhibiting future use of that land.

[ 63 Pa. Commw. Page 98]

However, to proceed under Section 502(e) of the Code, there must be more than a showing of de facto taking. Appeal of Jacobs, 55 Pa. Commonwealth Ct. 142, 423 A.2d 442 (1980); Harborcreek Township. The Espys were also required to prove that the taking resulted from the authority's exercise of its power of eminent domain, and not from the actions of the authority's agents. Lutzko v. Mikris, Inc., 48 Pa. Commonwealth Ct. 75, 410 A.2d 370 (1979).

We cannot agree with the Espys' contention that the actions of the independent contractors were the actions of the authority itself because of the close relationship established between them. Despite any such closeness, we cannot hold that it makes the authority a condemnor by virtue of the negligent acts of its contractors or agents. Condemnation E. Berkshire Street, 20 Pa. Commonwealth Ct. 601, 343 A.2d 67 (1975); Department of Transportation v. Castillo, 14 Pa. Commonwealth Ct. 22, 321 A.2d 394 (1974). There must be further evidence to show that the authority authorized and directed the action in question. Beckman. The Espys offered no evidence that the authority directed the incorrect placement of the sewer line. On the contrary, the trial court acted well within its discretion*fn3 in accepting as credible the evidence, noted above, that the authority's officials were not aware of the wrong placement.

Therefore, the trial court correctly concluded that the Espys could not proceed under the Code. The court was also correct in concluding that the Espys were not without a remedy. Since the Pennsylvania

[ 63 Pa. Commw. Page 99]

Supreme Court's decision in Culver v. Commonwealth, 346 Pa. 262, 29 A.2d 531 (1943), the rule has been that whatever may have been done by a contractor outside the right-of-way was a trespass, for which there may be recovery in an action in trespass.*fn4

We affirm.


Now, December 8, 1981, the order of the Court of Common Pleas of Butler County, dated November 17, 1980, dismissing the petition for the appointment of viewers, is affirmed.



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