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EDWARD P. DEETS v. MOUNTAINTOP AREA JOINT SANITARY AUTHORITY (08/02/84)

decided: August 2, 1984.

EDWARD P. DEETS, ELIZABETH L. DEETS, HIS WIFE, AND MOUNTAINEER ENTERPRISES, INC., APPELLANTS
v.
THE MOUNTAINTOP AREA JOINT SANITARY AUTHORITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Edward P. Deets, Elizabeth L. Deets, his wife, and Mountaineer Enterprises, Inc. v. The Mountaintop Area Joint Sanitary Authority, No. 806-C of 1983.

COUNSEL

Jerome L. Cohen, with him, John L. McDonald, for appellants.

George Spohrer, with him, Ronald P. Sweeda, for appellees.

Judges Williams, Jr., Doyle and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 84 Pa. Commw. Page 301]

Appellants, Edward and Elizabeth Deets and Mountaineer Enterprises, Inc. (Mountaineer), appeal from an order of the Court of Common Pleas of Luzerne County dismissing the appellants' petition for appointment of viewers to assess eminent domain damages.

On December 14, 1976 Edward and Elizabeth Deets entered into a right-of-way agreement with the Mountaintop Area Joint Sanitary Authority (Authority) allowing a portion of their land to be used for the installation of a sewer line. The Deetses were paid $1 by the Authority for granting the right-of-way.

[ 84 Pa. Commw. Page 302]

The Authority contracted with Chester Engineers, Inc., D & C Spinozzer and Charles F. Smith & Son, as independent contractors, to do the actual surveying and construction of the sewer line. Although the plans for the sewer line indicated it was to be placed within the right-of-way granted by the Deetses, the contractors who constructed the sewer line in 1977 placed the line on property of the Deetses and Mountaineer outside of the location specified in the agreement.

In response to this error, appellants, pursuant to Section 502(e) of the Eminent Domain Code (Code),*fn1 filed a petition in common pleas court for the appointment of viewers to assess damages caused by the incorrect placement of the sewer line. After an evidentiary hearing, the common pleas court found that the misplacement of the sewer line was the error of the independent contractors and that the Authority did not authorize or direct the contractors to deviate from the granted right-of-way. The court held that case was controlled by our decision in Espy v. Butler Area Sewer Authority, 63 Pa. Commonwealth Ct. 95, 437 A.2d 1269 (1981), and dismissed the petition for appointment of viewers holding appellants were not entitled to proceed under the Code. We affirm.

We are aware that our scope of review of a common pleas court order dismissing a petition under the Code is limited to determining whether there is competent evidence in the record to support the findings made and whether an error of law was committed. In Re Condemnation by Redevelopment Authority, 55 Pa. Commonwealth Ct. 612, 423 A.2d 1354 (1980); Breining v. Hatfield Township, 23 Pa. Commonwealth Ct. 394, 352 A.2d 230 (1976).

[ 84 Pa. Commw. Page 303]

A review of the evidence satisfies us there is competent evidence to support the common pleas court's finding that the Authority did not authorize or direct the contractors to deviate from the right-of-way granted by the Deetses. As we previously held in Espy v. Butler Area Sewer Authority, to proceed under Section 502(e) of the Code, a landowner must prove the taking was the result of the Authority's exercise of its power of eminent domain and not from the actions of the authority's agents. 63 ...


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