IN THE COMMONWEALTH COURT OF PENNSYLVANIA

H. Eric Becker, :

Petitioner :

:

v. : No. 184 M.D. 2016 : Submitted: July 12, 2019 Adams County Tax Claim Bureau : and Department of Environmental : Protection of The Commonwealth : of Pennsylvania, :

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge 1 HONORABLE MICHAEL H. WOJCIK , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: October 23 , 2019

Before this Court is a motion for summary judgment filed by the
Department of Environmental Protection (DEP) in response to the pro se amended
complaint filed by H. Eric Becker (Petitioner) in our original jurisdiction. The
amended complaint seeks moneta ry damages for DEP’s allegedly unlawful

demolition of buildings and equipment on a piece of property that Petitioner
purchased through the Adams County Tax Claim Bureau (County). For the reasons
that follow, we grant DEP’s motion for summary judgment.

On March 18, 2015, Petitioner filed a complaint in the Court of
Common Pleas of Adams County (common pleas court) against the County and

DEP. T hereafter

, Petitioner filed a series of amended complaints in the common

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed the status of senior judge.2

p leas court , concluding with the sixth ame nded complaint filed on December 21,

2015.
The sixth amended complaint averred that on April 30, 2013, Petitioner
submitted a bid during the County’s repository tax sale of 50.63 acres of land in
Cumberland Township (Township)

. The County advised Petitioner that he
submitted the highest bid and that the “required confirmation or approvals of the
applicable taxing authorities” had been duly received. Complaint at 3, ¶8.

The property in question had been the subject of response ac tions
conducted by DEP pursuant to the Hazardous Site s Cleanup Act. 2 On December 27,

2012, after remediation of the property, DEP issued an administrative order to then

owner CM Metals Gettysburg, Inc

. to prohibit certain activities on the property,
including a partial ban on ground water usage and restrictions on residential uses of
portions of t he property. DEP requested the County Recorder of Deeds to place the
administrative order on the deed to the subject pr operty.

The sixth amended complaint asserted four counts against the County

and DEP. Count I sought to void a “side d eal” between the County and DEP
whereby the County allegedly requested a $50,000 reduction in the contract purchase
price of the property in exchange for Petitioner ’s pay ment of $50,000 to DEP . Count
II requested the common p leas court to issue a writ of mandamus to compel DEP to
sign Petitioner’s proposed consent order and decree

. Count III requested the
common pleas court to order the Cou nty to delete the restrictions in the deed required

under DEP’s administrative order

. Finally, Count IV sought monetary damages
from DEP for its demolition of the foundry building and equipment on the property

. Complaint at 8, ¶44.

2 Act of October 18, 1988, P.L. 756, as amended , 35 P.S. §§6020.101

- 6020.1305.3 The County filed pre li minary objections . It asserted that the complaint

failed to state a claim and

, second, the complaint lacked sufficient specificity . DEP

also filed a demurrer and further asserted that the common pleas court lacked
jurisdiction over Petitioner’s counts against the Commonwealth. Petitioner filed
responses to the preliminary objections.

By memorandum opinion and orde r dated February 19, 2016, the

common p leas court granted the County’s preliminary objections in the nature of a

demurrer and dismissed Counts I and III as against the County. Regarding Count I,

t he common p leas court found that the allegation of a “side deal” was “speculative,
remote, and not substantiated through the pleadings.” Common Pleas Court
Opinion, 2/19/2016, at 1 0. The court further held, with respect to Count III

, that

there was no legal basis to strike the land use restrictions from the deed, which were imposed by DEP as a result of its remediation of the property. The court also held

that the pleading was ins ufficiently specific, because Petitioner did not attach DEP’s

administrat ive order or the deed to the amended complaint. 3

Regardi ng the counts against DEP, the common p leas court held that it
lacked jurisdiction and transferred those claims to this Court . The common p leas

court did not address DEP’s other preliminary objections.

By memorandum opinion of May 12, 2016, this Court sustained DEP’s
preliminary objections in the nature of a demurrer and dismissed Count II, reasoning

that Petitioner’s action wa s , in actuality, a request for this Court to issue a writ of

3 Pennsylvania Rule of C ivil Procedure 1019(i) states:

W hen any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set f orth the substance in writing.

P A

. R.C.P. N O

. 1019(i).4

mandamus to compel DEP to perform a discretionary act, i.e ., sign Petitioner’s
proposed consent order

, which this Court cannot do. Thus, the only remaining c ount

is Count IV of the sixth amended complaint. 4

On April 15, 2019, DEP filed a motion for summary judgment asserting

that Count IV is barred by sovereign immunity because Pet itioner seeks damages
against DEP , a Commonwealth party. 5 Petitioner responds that sovereign immunity

does not shiel d DEP from liability because his claim falls under the personal
property exception in Section 8522(b)(3) of the act commonly referred to as the
Sovereign Immunity Act. 42 Pa. C.S. §8522(b) (3)

. Petitioner also asserts that
material facts are in dispute and

, in support

, has submitted his own affidavit

, answer s

to interrogatories by a former employee of CM Metals, and the Township ’s

ordinance regulating dangerous structures. Petitioner claims that he is the assignee

of CM Metals

.

A motion for summary judg ment may be granted only where there is
no genuine issue of material fact and the moving party is entitled to judgment as a

4 Following this Court’s May 12, 2016, order, DEP filed an answer to the sixth amended complaint. DEP answered Count I of the amended complaint as if it was still pending. The bulk of the claim
in Count I , although mentioning DEP in passing, was raised against the County. As such, we conclude that the common p leas court dismissed Count I in its entirety, leaving no remaining claim against DEP. Further, both Petitioner and DEP conceded that Count IV of the sixth amended complaint is the only remaining issue pending before this Court. In his answer to this Court’s rule to show

cause why the action should not be dismissed for want of prosecution, Petitioner stated that the subject action now concerns Count IV, “the demolition by [DEP] of an industrial site.” Petitione r Answer to Rule to Show Cause, 10/19/2018, at 3, ¶8. DEP also indicated, i n a status report filed with this Court, that Count IV i s the only remaining issue in the subj ect action. DEP Status Report, 02/22/2019, at 4, ¶15.

5 DEP’s defense of sovereign immunity was not raised in its preliminary objections or answer to the amended complaint. However, sovereign immunity is “non

- waivabl e and may be asserted at any time.” Chiro

- Med Review Company v. Bureau of Workers’ Compensation , 908 A.2d 980, 985 (Pa. Cmwlth. 2006).5

matter of law. Flood v. Silfies , 933 A.2d 1072, 1074 (Pa. Cmwlth. 2007). A fact is
material if it directly affects the disposition or the outcome of a case. Department
of Environmental Protection v. Delta Chemicals, Inc ., 721 A.2d 411, 416 (Pa.
Cmwlth. 1998). The right to judgment must be clear and free from doubt. The

record “must be viewed in the light most favorable to the non

- moving party, and all
doubts as to the existence of a genuine issue of material fact must be resolved against
the moving party.” Kee v. Pennsylvania Turnpike Commission , 743 A.2d 546, 549
(Pa. Cmwlth. 1999). Parties seeking to avoid the imposition of su mmary judgment

must establish in their depositions, answers to interrogatories, admissions or
affidavits that there is a genuine issue of fact for trial. Id. at 549.

Article I, Section 11 of the Pennsylvania Constitution provides that the
Commonwealth and its agents may only be sued “in such manner, in such courts and
in such cases as the Legislature may by law direct.” P A

. C ONST

. art. I, §11.
Generally, “the Commonw ealth, and its officials and employees acting within the
scope of their duties, shall continue to enjoy sovereign immunity and official
immunity and remain immune from suit except as the General Assembly shall
specifically waive the immunity.” 1 Pa. C.S. §2310.

The General Assembly has waived sovereign immunity for
Commonwealth parties only in instances where “(1) the alleged act is a negligent act
for which damages would be recoverable under the common law or by statute, and

(2) the act falls within one of the specifically enumerated exceptions listed in Section
8522(b) of the [Sovereign Immunity Act], 42 Pa. C.S. §8522(b).” Weckel v.
Carbondale Housing Authority , 20 A.3d 1245, 1248 (Pa. Cmwlth. 2011); see also

42 Pa. C.S. §8522(a). Under Section 8522( b), the defense of sovereign immunity is
waived for claims for damages caused by (1) vehicle liability; (2) medical

-6

professional liability; (3) care, custody or control of personal property; (4)
Commonwealth real estate, highways and sidewalks; (5) pothole s and other
dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales;
(8) national guard activities; and (9) toxoids and vaccines. 42 Pa. C.S. §8522(b).

T he exceptions to sovereign immunity are strictly construed. Dean v.

Co mmonwealth , 751 A.2d 1130, 1132 (Pa. 2000). Notably, sovereign immunity “is
not waived for intentional acts committed by a Commonwealth employee acting
within the scope of his or her employment.” Paluch v. Department of Corrections

, 175 A.3d 433, 438 (P a. Cmwlth. 2017).

We need not consider whether Petitioner’s claim fits into the personal
property exception in Section 8522(b) (3) of the Sovereign Immunity Act because

Petitioner has not established that DEP ’s alleged act “is a negligent act for which

da mages would be recoverable under the common law or by statute.” Weckel , 20

A.3d at 1248 ; 42 Pa. C.S. §8522(a)

. The amended complaint set s forth , at most, a

claim for damages for trespass or conversion

. The amended complaint alleges that
DEP took possession of the subject property “ [ b ] efore, or perhaps soon after” CM
Metals acquired title of the property. Amended Complaint at 9, ¶45. Without
permission, DEP demolished more than 60,000 square feet of the foundry building
on the prop erty “either by [its] own employees, and/or those of a contractor
employed by [DE P].” Amended Complaint at 9, ¶ 46. The a mended complaint
further alleges that DEP unlawfull y disposed of foundry machinery, vehicles, and

forklifts on the property . Petition er asserts that DEP’s actions constit uted a “taking ”

because replacing the foundry building and equipment would cost millions of

dollars. Amended Complaint at 10, ¶57. It is well established that t respass and7

conversion are intentiona l tort s, for which s overeign immunity has not been waived

. 6

Paluch , 175 A.3d at 438

.

For these reasons

, we conclude that Petitioner’s damages claim against

DEP , a Commonwealth party, for its dem olition of the foundry building and
equipment on the property is barred by sovereign immunity. Accordingly, we grant
DEP’s motion for summary judgment and dismiss Petitioner’s sixth amended
complaint with prejudice. 7

_____________________________________ MARY HANNAH LEAVITT, President Judge

6 Notably, Section 703 (c) of the Hazardous Site s Cleanup Act provides that “[n]o State agency or political subdivision shall be liable under this act for costs or damages as a result of actions taken by the State agency or political subdivision in response to a release or threatened release of a hazardo us substance generated by or from a site.” 35 P.S. §6020.703(c).

7 The amended complaint also asserts in passing, as part of Count IV, that DEP violated the Taking s Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment

to the United States Constitution. U.S. C ONST

. amend. V, XIV. “[A] taking of private property is unconstitutional without payment of just compensation. [It] occurs when [an] entity clothed with the power substantially deprives an owner of the use and enjoym ent of his property.” People United to Save Homes v. Department of Environmental Protection , 789 A.2d 319, 326 (Pa. Cmwlth. 2001). As a threshold matter, to establish that a compensable taking has occurred, the property owner must establish that a valid property right has been affected. Id

. The amended complaint fails to state specific allegations to support the constitut ional claims. Petitioner alleges that DEP demolished the foundry building and equipment on the property without permission from CM Met als , which was the owner at the time and which is not a party to the subject action . Petitioner claimed that he was the recipient of a “certain [a]ssignment from CM Metals,” Amended Complaint at 8, ¶44, but he did not explain the nature of this alleged assignment of rights or provide evidence that he has a cognizable property right that was affected by DEP’s
actions. It is well established that “[a] complaint must not only give the defendant notice of what the plaintiff’s claim is and th e grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim.” Smith v. Brown , 423 A.2d 743, 745 (Pa. Super. 1980) (citing P A . R.C.P. No. 1019(a)). This Court need not “accept as true conc lusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Stone and Edwards Insurance Agency, Inc. v. Department of Insurance , 616 A.2d 1060, 1 063 (Pa. Cmwlth. 1992). In short

, to the extent Count IV of Pet itioner’s amended complaint raises constitutional takings claims, those claims are dismissed.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

H. Eric Becker, :

Petitioner :

:

v. : No. 184 M.D. 2016

: Adams County Tax Claim Bureau : and Department of Environmental : Protection of The Commonwealth : of Pennsylvania, :

Respondents :

O R D E R

AND NOW, this 23 rd day of October, 2019, Respondent’s motion for
summary judgment is GRANTED, and Petitioner’s sixth amended complaint is

DISMISSED with prejudice

.

_____________________________________ MARY HANNAH LEAVITT, President Judge