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BUCKS COUNTY WATER AND SEWER AUTHORITY v. ROBERT L. RAWLINGS (11/15/89)

decided: November 15, 1989.

BUCKS COUNTY WATER AND SEWER AUTHORITY, APPELLANT,
v.
ROBERT L. RAWLINGS, APPELLEE



Appeal from Common Pleas Court, Bucks County; Honorable Oscar S. Bortner, Judge.

COUNSEL

Nicholas A. Leonard, Jaczun, Grabowski & Leonard, Perkasie, for appellant.

Robert M. Donovan, with him, Alan D. Williams, Jr., Williams, Schildt & MacMinn, P.C., Doylestown, for appellee.

Crumlish, Jr., President Judge, and Barry (p.) and McGinley, JJ.

Author: Barry

[ 129 Pa. Commw. Page 512]

OPINION

This is an appeal by the Bucks County Water and Sewer Authority, in an eminent domain proceeding, from an order which entered judgment against the appellant on November 2, 1988. The sole issue raised by the appellant is that the trial court abused its discretion in allowing evidence of a de facto rather than a de jure taking and in failing to allow evidence of the liability of the independent contractor who constructed the sewage extension project and who admittedly placed a pump station building outside of the area of the formal condemnation. The trial court ruled prior to the start of the case (R. 63(a)) that the contractors were agents of the authority and that the authority had a non-delegable

[ 129 Pa. Commw. Page 513]

    duty to see that the building was built according to a de jure taking. The trial court requested the jury to enter what it called a "real" verdict assuming a de facto taking and an advisory verdict which assumed that the building had been constructed de jure. The jury entered a "real" verdict in favor of the appellee in the amount of $55,000 and an advisory verdict in the amount of $10,000.

The appellant argues to this Court that the case of Deets v. Mountaintop Area Joint Sanitary Authority, 84 Pa. Commonwealth Ct. 300, 479 A.2d 49 (1984), is controlling. Deets held under the facts of that case that the property owner's sole remedy in a case involving negligent actions of an independent contractor is an action in trespass against the offending contractor. No post-trial motions were filed by the appellant in this case and no opinion was filed by the trial court. We, accordingly, have no review by the trial court of the propriety of its rulings or an analysis of the Deets case. The trial court stated that the issue of de facto or de jure condemnation was reserved for appeal. The appellant argues in its brief that the issue is preserved here.

We are of the opinion that the appellant is mistaken. Rules of Civil Procedure No. 227.1(b) entitled "Post-Trial Relief" states as follows:

(b) Post-trial relief may not be granted unless the grounds therefor,

(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of ...


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