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, Judge1

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 monetary 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. Thereafter, 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

pleas court, concluding with the sixth amended 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 actions 

conducted by DEP pursuant to the Hazardous Sites Cleanup Act.2 On December 27, 

2012, after remediation of the property, DEP issued an administrative order to thenowner 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 the property. DEP requested the County Recorder of Deeds to place the 

administrative order on the deed to the subject property.

The sixth amended complaint asserted four counts against the County 

and DEP. Count I sought to void a “side deal” 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 payment of $50,000 to DEP. Count 

II requested the common pleas 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 County to delete the restrictionsin 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 preliminary 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 order dated February 19, 2016, the 

common pleas 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, 

the common pleas 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 10. 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 insufficiently specific, because Petitioner did not attach DEP’s 

administrative order or the deed to the amended complaint.3 

Regarding the counts against DEP, the common pleas court held that it 

lacked jurisdiction and transferred those claims to this Court. The common pleas

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 was, in actuality, a request for this Court to issue a writ of 

 

3 Pennsylvania Rule of Civil Procedure 1019(i) states:

When 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 forth 

the substance in writing.

PA. R.C.P. NO. 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 count

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 Petitioner seeks damages

against DEP, a Commonwealth party.5 Petitioner responds that sovereign immunity 

does not shield 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, answers

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 judgment 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 pleas 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.” Petitioner 

Answer to Rule to Show Cause, 10/19/2018, at 3, ¶8. DEP also indicated, in a status report filed 

with this Court, that Count IV is the only remaining issue in the subject 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-waivable 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 summary 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.” PA. CONST. art. I, §11. 

Generally, “the Commonwealth, 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) potholes 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). 

The exceptions to sovereign immunity are strictly construed. Dean v. 

Commonwealth, 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 (Pa. 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 

damages 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 sets 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 property “either by [its] own employees, and/or those of a contractor 

employed by [DEP].” Amended Complaint at 9, ¶46. The amended complaint 

further alleges that DEP unlawfully disposed of foundry machinery, vehicles, and 

forklifts on the property. Petitioner asserts that DEP’s actions constituted a “taking”

because replacing the foundry building and equipment would cost millions of 

dollars. Amended Complaint at 10, ¶57. It is well established that trespass and 
7

conversion are intentional torts, for which sovereign 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 demolition 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 Sites 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 

hazardous 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 

Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment 

to the United States Constitution. U.S. CONST. 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 enjoyment 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 constitutional 

claims. Petitioner alleges that DEP demolished the foundry building and equipment on the property 

without permission from CM Metals, 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 the 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 PA. R.C.P. No. 1019(a)). This Court need not “accept as true conclusions 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, 1063 (Pa. 

Cmwlth. 1992). In short, to the extent Count IV of Petitioner’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 23rd 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