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In re Mountaintop Area Joint Sanitary Authority

Commonwealth Court of Pennsylvania

July 12, 2017

In Re: Mountaintop Area Joint Sanitary
v.
Mountaintop Area Joint Sanitary Authority, Appellant Authority Colleen DeLuca

          Argued: April 20, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE JOSEPH M. COSGROVE, Judge (P) HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge.

         Mountaintop Area Joint Sanitary Authority (Authority) appeals an order of the Court of Common Pleas of Luzerne County (trial court) overruling its preliminary objections to the petition of Colleen DeLuca (Landowner) for the appointment of a board of viewers.[1] Landowner asserted that the Authority's discharge of sewage onto her property effected a de facto condemnation. For the reasons that follow, we affirm the order of the trial court.

         Landowner owns a single-family home in Mountaintop, Pennsylvania, which is located adjacent to the Authority's sewer treatment plant. The Authority's collection system runs under Landowner's property, and two of its manholes are located on the surface of Landowner's property. On several occasions between June 27, 2006, and April 26, 2011, Landowner's home and lawn were flooded with sewage, which included fecal matter, toilet tissue, and other sanitary items.

         On May 14, 2015, Landowner filed a petition for appointment of a board of viewers pursuant to Section 502(c) of the Eminent Domain Code[2] alleging that the repeated infiltration of sewage on her property constituted a de facto taking. Specifically, she alleged the Authority knew that its sewage system was prone to overloads that would cause infiltration of sewage onto her property. Despite this knowledge, the Authority allowed additional properties to connect to its system, thereby increasing the number of such overloads.

         In response, the Authority filed preliminary objections pursuant to Section 504(d) of the Eminent Domain Code. It objected to the legal sufficiency of the petition noting that it merely repeated the facts pled in Landowner's pending trespass action.[3] Alternatively, it challenged the facts alleged in the petition and requested an evidentiary hearing pursuant to Section 504(d) of the Eminent Domain Code. 26 Pa. C.S. §504(d).[4]

         On December 23, 2015, following oral argument, the trial court denied the Authority's preliminary objection in the nature of a demurrer but granted its request for an evidentiary hearing. That hearing was held on April 4, 2016.

         Thomas Keiper, the Executive Director of the Authority, testified. Keiper acknowledged that the Authority's customer base had increased every year from 2007 through 2011; by 2011 the Authority served approximately 5, 000 customers. During that time, the average amount of sewage being transported through the Authority's system was 4.16 million gallons per day, which was the maximum permitted by the Pennsylvania Department of Environmental Protection. Nevertheless, the Authority's plant has the capability to handle more than 10 million gallons per day.

         Keiper also testified about the two manholes on Landowner's property, i.e., Manhole 3 and Manhole 128. He explained that a manhole is a vertical channel that provides access to the underground sewage main. Three sewage pipes connect to Manhole 128: two sewer lines and one lateral pipe connected to Landowner's home. The wastewater leaves Manhole 128 by one sewer line and travels downstream to Manhole 3, which also accepts sewage waste from two other sewer lines. The lines that carry sewage into Manhole 3 measure 30 inches, 18 inches and 8 inches in diameter. The wastewater that enters Manhole 3 leaves by way of one 30-inch line. In short, in the case of both Manhole 128 and Manhole 3, sewage enters by multiple sewer lines but exits by a single 30-inch line.

         The slope of the sewer lines flowing toward Manhole 128 and Manhole 3 is steeper than the slope of the single exit pipes leaving those manholes. Accordingly, sewage enters each manhole at a faster rate than it can exit. Nevertheless, the Authority did not measure the flow of the sewage at Manhole 3 and Manhole 128 and did not install high flow alarms. Keiper testified as follows:

[Counsel]: So the pipes that flow into Manhole 3, carry more flow as a capacity, the design capacity carry more flows than the single pipe carrying anything out right?
[Keiper]: That would be the design capacity, yes.
[Counsel]: The Authority, you agree with me, does not have in place any type of device that meters the flows going in and out of Manhole 3, correct?
[Keiper]: That's correct.
[Counsel]: And it also has no meters to measure the flows going in and out of Manhole 128?
[Keiper]: That's correct.
[Counsel]: And would you agree with me that the Authority has high flow alarms at other locations in the system?
[Keiper]: It has them at pump stations and it has them at the plant. It does not have them anywhere else in the system.
[Counsel]: But you do have the capacity to measure high flows in certain parts of your system, correct?
[Keiper]: Yes.
[Counsel]: But you don't have any such facilities in Manhole 3 or Manhole 128, correct?
[Keiper]: Correct.

         Notes of Testimony at 27-28 (N.T. ___); R.R. 105a-106a (emphasis added).

         Keiper explained that a surcharge occurs when the wastewater reaches the top of the sewage line and surges into the vertical manhole. An overflow event occurs when the wastewater fills the barrel of the manhole and comes out of the system completely.[5] He testified that Manhole 3 has experienced overflow events, causing sewage waste to overflow onto Landowner's property.

         Keiper testified that a duckbill valve attached to the lateral pipe between Landowner's home and Manhole 128 prevented backflow to Landowner's residence, and it apparently worked until the 2006 incident. Then, in 2006, a surcharge caused sewage to back up through the lateral pipe and enter Landowner's residence. When questioned about the 2006 flooding, Keiper acknowledged that a surcharge in Manhole 128 bypassed the backflow valve and traveled in the reverse direction through the lateral pipe into Landowner's toilet and bathtub. In response, Keiper sent an engineer to investigate.

[Counsel]: And when [Landowner] made her complaint to the [A]uthority initially about the problem she had in her home, did you ask [the Engineer] to explore what the problem was?
[Keiper]: Yes, I did.
[Counsel]: And what exactly did he tell you?
[Keiper]: He went out and he opened the manhole, Manhole 128, and checked the duckbill valve and found that there was debris in the valve and that's what, in his opinion, what caused the backflow because the valve was kept open with the debris and it didn't close.

N.T. 66; R.R. 115a.

         Four years later, in November 2010, sewage again entered Landowner's home. Similar events occurred in January 2011, March 2011, and April 2011. In response, Keiper directed the Authority's engineers to look for alternative valves to prevent the flooding to Landowner's property. The

         Authority's engineer recommended that the Authority install a check valve in the sewage line on Landowner's property to prevent another backflow incident.[6]Although the Authority had installed check valves in other parts of its system, it did not act upon the engineer's recommendation with respect to the lines on Landowner's property.

         In late 2011, the Authority upgraded its collection system, and there have been no overflow events since the upgrade. Keiper testified that the Authority has replaced the duckbill valve at Manhole 128 twice since the upgrade.

         Landowner testified. She described her home as a "basic three bedroom, two-bath ranch." N.T. 74; R.R. 117a. Three bedrooms, a kitchen, and a living area are located on the ground level, which is accessible from the street. The finished lower level of the home includes a "two-car garage[, ] … a sewing room, a living room and a full bathroom with a washer and dryer." N.T. 75; R.R. 117a.

         Landowner testified that the first incident occurred on June 27, 2006, when "fecal matter and toilet tissue" began seeping out of the toilet and bathtub located in the lower level of the home. N.T. 77; R.R 118a. The seepage continued for several hours resulting in knee-deep levels of sewage throughout the lower level. When Landowner contacted the Authority, it informed her that the incident was a "fluke" and that it was "not a sewer issue but rather … a fresh water run-off problem."[7] N.T. 79; R.R. 118a. She was advised to install sump pumps, which she did. Thereafter, Landowner remodeled the lower level of the home.

         Four years later, in November 2010, Landowner experienced the "[s]ame thing that happened in 2006." N.T. 81; R.R. 119a. The sewage was knee-deep and consisted of debris, toilet paper, prophylactics, blood, and tampons. Landowner testified that she "completely lost everything again." N.T. 82; R.R. 119a.

         Landowner explained that the recurring flooding has precluded normal use of the home:

I was in house arrest. I couldn't use the toilets, the shower, the laundry. I couldn't make food. I had to find somewhere to live with my kids when [the Authority] ...

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