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JOSEPH M. FLOREK AND MARY FLOREK v. COMMONWEALTH PENNSYLVANIA (05/24/85)

decided: May 24, 1985.

JOSEPH M. FLOREK AND MARY FLOREK, HIS WIFE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Joseph M. Florek and Mary Florek his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 4425-C of 1980.

COUNSEL

David R. Lipka, for appellants.

John V. Rovinsky, Assistant Counsel, with him, Spencer Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges MacPhail and Barry and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 89 Pa. Commw. Page 485]

Joseph M. Florek and Mary Florek (Appellants) appeal from a decision and order by the Court of Common Pleas of Luzerne County which dismissed Appellants' petition for viewers and sustained the preliminary objections by the Pennsylvania Department of Transportation (DOT).

The facts as found by the trial court are that Appellants own a parcel of land in Wilkes-Barre Township which abuts Old Ashley Road, a state highway. In 1947, a storm sewer drainage system was installed along Old Ashley Road by Wilkes-Barre Township. In 1963, the Commonwealth acquired the highway and drainage system from Wilkes-Barre Township. Connected to this drainage system was an underground terra cotta pipe extending from a catch basin on the highway, across Appellants' property adjoining Appellants' parcel. When Appellants purchased their property in 1973 from the Blue Coal Corporation, a map was attached to Appellants' deed showing a manhole and catch basins on the highway, as well as the drainage system across Appellants' property. Due to contours on Appellants' land, sections of the terra cotta pipe were exposed to view.

In 1974, Appellants in an effort to prevent the discharge of sewage and storm water on their property tried to improve their property through reclamation. A neighbor pointed out to Appellants the location of DOT's drainage system, including exposed sections of the terra cotta pipes and cautioned Appellants not to damage it. Appellants, as a result of their backfilling operations, covered and crushed the terra cotta pipe, which caused drainage problems on the highway and Appellants' property. DOT notified Appellants in 1982 that it planned to conduct an exploratory excavation of their land. During this operation, attempts to flush out the terra cotta pipe proved futile. DOT

[ 89 Pa. Commw. Page 486]

    installed a new drainage pipe, in the same location, albeit at a different elevation in the ground. The original pipe was at a fourteen to fifteen foot depth, while the new pipe was placed at a five foot depth.

On December 30, 1980, Appellants filed a petition for viewers pursuant to Section 502(e) of the Eminent Domain Code,*fn1 averring that DOT permitted a storm sewer system to become blocked causing water to drain from an adjacent state highway onto Appellants' property. Appellants averred that a board of viewers should be appointed to assess the damages related to this alleged de facto taking of their property by DOT. DOT filed preliminary objections and Appellants amended their complaint.*fn2

On September 15, 1983, the trial court, after making nineteen fact findings, sustained DOT's preliminary objections. The trial court, finding that no de facto taking occurred, stated that Appellants' drainage problem on their property was not the "immediate, direct, necessary and unavoidable consequence of the presence of the Department's drainage system," rather the Appellants caused their continuing difficulties when they covered and crushed the terra cotta pipe on their property. Appellants, however, had raised the issue in their brief that there was never a valid condemnation of an easement for the terra ...


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