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CONDEMNATION BY SPRINGETTSBURY TOWNSHIP SEWER AUTHORITY ETC. STEVEN C. KEHLER ET UX. (03/16/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 16, 1982.

CONDEMNATION BY THE SPRINGETTSBURY TOWNSHIP SEWER AUTHORITY ETC. STEVEN C. KEHLER ET UX., APPELLANTS

Appeal 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.

COUNSEL

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.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 65 Pa. Commw. Page 337]

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.*fn1 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

[ 65 Pa. Commw. Page 338]

    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 totaling $296.71. The court decided that the appellants had not suffered a de facto taking. This was clearly correct and we affirm.

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. Commonwealth Ct. 142, 423 A.2d 442 (1980); Lehan v. Department of Transportation, 22 Pa. Commonwealth Ct. 382, 349 A.2d 492 (1975); Condemnation of 2719, 2721, and 2711 East 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); 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.

Disposition

Affirmed.


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