Argued: April 20, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE JOSEPH M. COSGROVE, Judge (P) HONORABLE JAMES
GARDNER COLINS, Senior Judge
HANNAH LEAVITT, President Judge.
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. 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.
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
14, 2015, Landowner filed a petition for appointment of a
board of viewers pursuant to Section 502(c) of the Eminent
Domain Code 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
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. 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.
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.
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.
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.
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?
[Counsel]: But you don't have any such facilities in
Manhole 3 or Manhole 128, correct?
of Testimony at 27-28 (N.T. ___); R.R. 105a-106a (emphasis
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. He testified that Manhole 3 has
experienced overflow events, causing sewage waste to overflow
onto Landowner's property.
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
[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.
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
engineer recommended that the Authority install a check valve
in the sewage line on Landowner's property to prevent
another backflow incident.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.
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.
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.
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." 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.
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.
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] ...