Lower Perkiomen Valley Regional Sewer Auth. v. Beyer

24 Pa. D. & C.5th 437
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedApril 29, 2011
DocketNo. 09-44076
StatusPublished

This text of 24 Pa. D. & C.5th 437 (Lower Perkiomen Valley Regional Sewer Auth. v. Beyer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lower Perkiomen Valley Regional Sewer Auth. v. Beyer, 24 Pa. D. & C.5th 437 (Pa. Super. Ct. 2011).

Opinion

ALBRIGHT, J.,

Catherine Beyer, Frederick J. Kaczor and Mary T. Kaczor (collectively referred to as “condemnees”) appeal1 from this court’s orders, dated November 12, 2010, overruling the condemnees’ preliminary objections to the Lower Perkiomen Valley Regional Sewer authority’s declarations of taking of certain properties of the condemnees, pursuant to the condemnor’s resolutions 2009-172 and 2009-18,3 [439]*439respectively.4 For the reasons that follow, the undersigned believes that the condemnees’ appeals are without merit and that the trial court’s orders of November 12, 2010 should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On December 23, 2009, the Lower Perkiomen Valley Regional Sewer authority (the “Condemnor” or “authority”)5 filed two declarations of Taking (the “declarations”) for the purpose of acquiring temporary construction easements and permanent sanitary sewer easements needed to facilitate the expansion, construction, improvement, maintenance and operation of the Condemnor’sPerkiomenCreeklnterceptor. The Perkiomen Interceptor is the system through which wastewater flows by gravity from the authority’s six member municipalities to the Oaks Wastewater Treatment Plant located in Oaks, Pennsylvania.6

In response to the declarations, the condemnees filed timely7 preliminary objections on January 22, 2010, [440]*440raising the following issues:8

1. The declarations contain insufficient recital of the action by which the declaration of taking was authorized, as required by 26 Pa. C.S. § 302(b)(3).
2. The declarations contain an insufficient recital of the purpose of the condemnation, as required by § 302(b)(4) of the Eminent Domain Code, 26 Pa. C.S. §302(b).

While the condemnees did not assert in their preliminary objections that the authority’s declarations were either related to or failed to comport with the participating municipalities then current or proposed Act 537 plan,9 reference to that issue was subsequently raised in their Supplemental Brief, but failed to elicit a written response from the Condemnor. Nor, in fact, was the subject Act 537 Plan ever made part of the record in this case, as a result of which the trial court’s familiarity with the Plan itself is extremely limited, and, by implication, its relevance to this discussion, in any event, remains unproven and thus of no particular import to the resolution of the issues presented in this case. Accordingly, after argument and a thorough [441]*441review of the record presented, the undersigned overruled the condemnees’ preliminary objections by orders, dated November 12, 2010, following which the condemnees, in a timely manner, filed their notices of appeal with the Commonwealth Court of Pennsylvania. Thereafter, in response to the trial court’s directive of January 14, 2011, the condemnees filed and served upon the undersigned two identical concise statements of matters complained of on appeal (“1925(b) statements”), presenting the following issues for review:

1. The court erred in overruling the appellant’s preliminary objections to condemnor’s declaration of taken [sic] which challenged the power of condemnor to condemn land for a permanent sanitary sewer easement an [sic] location that is inconstant [sic] with the approved Act 537 Plan.
2. Does condemnor have the power to condemn land in a location inconsistent with the approved Act 537 Plan and therefore confers no public benefit in violation of article 1, section 10, of the Pennsylvania Constitution.

DISCUSSION

In eminent domain cases, the trial court is the fact finder and its findings will not be disturbed if supported by substantial evidence. In re Dept. of Transp., of the Right of Way for State Route 0202, Section 701, 871 A.2d 896, 900 n. 2 (Pa. Commw. Ct. 2005). Therefore, where [442]*442the trial court has overruled preliminary objections, the Commonwealth Court’s scope of review is limited to a determination of whether the trial court committed an abuse of discretion or an error of law. Condemnation by Valley Rural Elec. Co-op., Inc. v. Shanholtzer, 982 A.2d 566, 570 n.4 (Pa. Commw. Ct. 2009) (Quoting York City Redevelopment Auth. v. Ohio Blenders, Inc., 956 A.2d 1052, 1057 n. 4 (Pa. Commw. Ct. 2008)). In the context of eminent domain actions, preliminary objections are a mechanism to expeditiously resolve factual and legal challenges to a declaration of taking before the parties proceed to determine damages.

See 26 Pa. C.S. § 306(a). Finally, preliminary objections are the exclusive means of challenging the condemnor’s authority, the declaration of taking itself, and any alleged procedural irregularities by the condemnor. 26 Pa. C.S. § 306(a).

In this case, the “irregularities” complained of appear now to center upon the condemnees’ argument that the properties which are the subject of the Condemnor’s declarations do not appear to be included within the scheme of the Condemnor’s previously referenced, Act 537 plan. As indicated, Pennsylvania’s Act 537 mandates that all Commonwealth municipalities develop and implement comprehensive sewage management plans.10 However, in light of the condemnees’ failure to provide the trial court [443]*443with any legal authority to support their apparent contention that the declarations must comport with either a current or proposed Act 537 plan, the undersigned is not persuaded of any adverse impact or effect which such a plan might have upon the validity of the condemnor’s declarations. Accordingly, the issues raised by the condemnees will be addressed only in the context of their presentation made within the condemnees’ preliminary objections.

The declarations Contain The Requisite Statutory Recitals of authority.

As a municipal authority duly organized pursuant to the Pennsylvania Municipality Authorities Act, the Condemnor is vested with the power of eminent domain. See 53 Pa. C.S. § 5601, et seq.11; In re Condemnation of a Permanent Right-of-Way, 873 A.2d 14, 17-18 (Pa. Commw. Ct. 2005). In Pennsylvania, condemnation proceedings are governed by 26 Pa. C.S. § 101, et seq. (“Eminent Domain Code”). The condemnees’ preliminary objections appear to stem from the condemnor’s alleged failure to meet its statutory obligations under 26 Pa. C.S. § 302(b). Section 302(b) provides, in part:

(b) Contents. - The declaration of taking shall be in writing and executed by the condemnor and shall be captioned as a proceeding in rem and contain the [444]*444following:
(1) The name and address of the condemnor.

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Related

In Re Condemn. of Permanent Right-Of-Way
873 A.2d 14 (Commonwealth Court of Pennsylvania, 2005)
Condemnation by Valley Rural Electric Cooperative, Inc. v. Shanholtzer
982 A.2d 566 (Commonwealth Court of Pennsylvania, 2009)
York City Redevelopment Authority v. Ohio Blenders, Inc.
956 A.2d 1052 (Commonwealth Court of Pennsylvania, 2008)
Guttha v. Commonwealth, Department of Transportation
871 A.2d 896 (Commonwealth Court of Pennsylvania, 2005)

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Bluebook (online)
24 Pa. D. & C.5th 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lower-perkiomen-valley-regional-sewer-auth-v-beyer-pactcomplmontgo-2011.