IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation of the :

Property of Carl and Rosemary :

LeFever, Located at :

445 Tyson Road, Schwenksville, :

Lower Salford Township :

:

Carl and Rosemary LeFever, :

:

Appellants :

:

v. : 1251 C.D. 2016

: Submitted: May 1, 2017

Lower Salford Township :

Authority and Lower Salford :

Township :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: May 31, 2017

Carl LeFever and Rosemary LeFever (Owners)1appeal from the 

June 16, 2016 order of the Court of Common Pleas of Montgomery County (trial 

court) granting the preliminary objections filed by Lower Salford Township 

 

1

The record reflects that Carl LeFever died prior to the June 16, 2016 hearing. 

Reproduced Record (R.R.) at 39.
2

(Township) to Owners’ Petition for Appointment of a Board of Viewers (Petition). 

We affirm.

Owners are the record owners of property located at 445 Tyson Road, 

Schwenksville, Lower Salford Township, Montgomery County, Pennsylvania. On 

May 3, 2004, Owners entered into an agreement with the Township for a 

“Permanent Stormwater and Guiderail Easement and Temporary Construction and 

Grading Easement for Roadway Slopes.” R.R. at 67-76. The Township easement 

agreement granted the Township a permanent right of way and easement for the 

collection and discharge of storm water over, under, and through a portion of the 

property as set forth on Exhibit A to that agreement. R.R. at 69, 76. It provided 

that the Township could perform construction and grading as reflected on the plan 

for the placement of 100 feet of under drain on the west side of a culvert to replace 

existing piping. It also provided a guiderail easement to construct and maintain a 

guiderail in the areas shown on the exhibit, as well as a temporary construction 

easement for the construction and grading of roadway slopes. The work was 

performed in 2005. R.R. at 56. 

On July 5, 2005, Owners executed a “Deed of Easement” to the 

Lower Salford Township Authority (Authority), permitting the Authority to install 

a sewer line force main along Tyson Road on Owners’ property. Owners received 

approximately $9,000.00 in credit against their sewer assessment as compensation 

for this easement. 

On July 15, 2011, Owners filed a Petition for Appointment of a Board 

of Viewers (Petition), naming the Authority and the Township as Condemnors. In 

relevant part, the Petition alleges as follows:
3

3. A Deed of Easement Agreement was entered into 

between [Owners] and the [Authority] on July 5, 2005, 

that permitted the Defendants/Condemnors to install a 

sewer force main along Tyson Road on [Owners’] 

property. 

3.[2]Pursuant to the aforesaid Easement Agreement, the 

Defendants/Condemnors installed a sewer force main 

along Tyson Road on [Owners’ property]. Construction 

began after July 15, 2005. 

4. The installation of the aforesaid force main resulted in 

damage being done to [Owners’] property, subsequent to 

the date of the Easement Agreement, in that a steep 

incline has been created along the side of Tyson Road 

upon [Owners’] property. 

5. The steep incline described above herein has resulted 

in severe puddling along [Owners’] property and has also 

resulted in the creation of a swale upon the property. 

6. As a result of the steep incline and swale caused by 

Defendants’/Condemnors’ actions it is now impossible to 

access certain portions of [Owners’] property. 

7. As a result of the above actions, Defendants/

Condemnors (Lower Salford Authority and Lower 

Salford Township) have effected a de facto 

condemnation of [Owners’] property. 

Petition, ¶¶3-7, Supplemental Reproduced Record (S.R.R.) at 3b-4b. Further 

alleging that no compensation had been paid and no declaration of taking had been 

filed, Owners requested the appointment of a board of viewers for a determination 

of damages. S.R.R. at 4b-5b.

The Authority filed preliminary objections (POs) to Owners’ Petition 

on August 4, 2011. On September 11, 2011, Owners filed an answer to the POs,

 

2

Two separate paragraphs are numbered “3.” 
4

and the Township joined in the POs. R.R. at 406. The POs assert that, in light of 

the easement agreements, Owners’ vague description of the property alleged to 

have been condemned as a “steep incline along the side of Tyson Road,” fails to 

comply with the requirement of Section 502(a)(5) of the Eminent Domain Code, 

26 Pa.C.S. §502(a)(5), that a petition must set forth a “brief description of the 

property acquired.” The POs also assert that the Petition is legally insufficient 

because the easement agreements reflect that the Authority and the Township were 

permitted to undertake construction, including grading and modification to the 

roadway slopes to permit the collection and discharge of storm water within the 

40-foot wide drainage easement on the property. 

No further action was taken on the matter until, January 14, 2016, 

when Owners’ new counsel requested argument on the POs. On February 22, 

2016, the Authority filed a brief in support of its POs which the Township joined 

on February 24, 2016. On June 2, 2016, the trial court scheduled a hearing on the 

POs for June 16, 2016. 

At the start of the hearing, the parties stipulated to the dismissal of the 

Authority. Robin K. Youmans, P.E., testified on behalf of the Township; Owners 

offered no additional evidence. The trial court concluded that Owners’ Petition did 

not set forth an adequate description of the property allegedly condemned and that 

Owners’ claims of a de facto condemnation were legally insufficient. Accordingly, 

the trial court sustained the POs, and Owners now appeal to this Court.3 

 

3 Our scope of review is limited to determining whether the trial court abused its 

discretion or committed an error of law. In re Condemnation of Certain Properties, 822 A.2d 

846, 849 n.6 (Pa. Cmwlth. 2003).
5

When reviewing preliminary objections to a petition for appointment 

of a board of viewers, a court must determine whether, as a matter of law, the 

averments of the petition for appointment of a board of viewers, taken as true, in 

addition to any stipulated facts, are sufficient to state a cause of action for a de 

facto taking. Linde Enterprises, Inc. v. Lackawanna River Basin Sewer Authority, 

911 A.2d 658, 661 (Pa. Cmwlth. 2006). If not, the preliminary objections must be 

sustained. Id. 

Section 502(c) of the Eminent Domain Code, 26 Pa. C.S. §502(c), 

allows a property owner to petition for viewers to secure damages where a 

compensable injury has been sustained as a result of a condemnation by a 

condemnor that has not filed a declaration of taking.4 In all cases, a party alleging 

a de facto taking bears a heavy burden to establish that a de facto taking has 

occurred and must allege and prove three elements: 1) the alleged condemnor has 

the power to condemn the property; 2) there are exceptional circumstances that 

have substantially deprived the owner of the beneficial use and enjoyment of his 

property; and 3) the damage to the property interest was the immediate, necessary, 

and unavoidable consequence of the exercise of the power to condemn (as opposed 

to some action in the nature of a tort). Williams v. Borough of Blakely, 25 A.3d 

458, 463 (Pa. Cmwlth. 2011). A de facto taking “is not a physical seizure of 

 

4

Such injuries are distinguished from actions in trespass or negligence. See, e.g., Espy v. 

Butler Area Sewer Authority, 437 A.2d 1269, 1271 (Pa. Cmwlth. 1981). In addition, Section 714 

of the Code, 26 Pa. C.S. §714, allows for claims for consequential damages in limited 

circumstances where a property abutting the area of an improvement is damaged as a result of a 

“change of grade of a road or highway, permanent interference with access or injury to surface 

support,” which claim may be made “whether or not any property is taken.” A claim for 

consequential damages is separate and distinct from a claim for a de facto taking. Colombari v. 

Port Authority of Allegheny County, 951 A.2d 409, 415 (Pa. Cmwlth. 2008). 
6

property; it is an interference with one of the rights of ownership that substantially 

deprives the owner of the beneficial use of his property.” Id. at 465. 

The applicable standard for determining whether activity has deprived 

an owner of the beneficial use and enjoyment of property depends on the type of 

use involved. Genter v. Blair County Convention and Sports Facilities Authority, 

805 A.2d 51, 56-57 (Pa. Cmwlth. 2002). For owner-occupied residential 

properties, if the owner can still use his property as a residence and the whole 

property will not be condemned, there is no substantial deprivation of the 

property’s highest and best use, and, thus no de facto taking. Id.; Department of 

Transportation v. Steppler, 542 A.2d 175, 178 (Pa. Cmwlth. 1988).

Owners acknowledge that the July 5, 2005 easement agreement 

permitted the Authority to install a sewer force main. However, they now contend 

that, as installed, the sewer force main extended on their property well beyond the 

scope of the Authority’s easement. Specifically, Owners assert that when the 

easement agreements were executed, the property had five usable lots and that 

subsequent to the installation of the sewer force main, their property has been 

pushed up, creating a steep grade that has limited access on one lot, completely 

prevented access on three lots, and made access on the final lot, where the house 

and barn are situated, far more difficult. Further, Owners assert that the grading 

changes have caused the residential lot to be out of compliance with state and 

federal regulations, have caused structural defects to the larger barn, and flooded 

the entirety of another lot. Owners also claim that the installation of the sewer and 

movement of the road over 18 feet onto their property caused them to lose more 

than a quarter-acre of their property that was not contemplated in the easement. 
7

According to Owners’ assertions on appeal, the installed sewer continues to erode 

their property. 

However, Owners do not allege that any specific actions taken by the 

Township substantially deprived them of the beneficial use of their property. More 

important, to the extent the above factual assertions implicate the Township, they 

are not set forth in the Petition, and Owners did not present any evidence to 

support these assertions at the hearing.5 

On appeal, Owners first argue that the Township’s POs should have 

been overruled based on the doctrine of estoppel by laches. We disagree. Laches 

bars relief when the complaining party is guilty of due diligence in failing to 

institute or prosecute a claim. Morgan v. Harnischfeger Corp., 791 A.2d 1273, 

1277 (Pa. Cmwlth. 2002). In this matter, Owners are the complaining party. Thus, 

Owners had the obligation to move the case forward, as well as the power to do so. 

Owners assert they “did everything they [could] to defend their rights and seek a 

resolution,” Owners’ brief at 11, but they waited more than four years before 

requesting a hearing. Accordingly, we reject Owners’ contention that the POs 

should have been overruled based on laches.

Owners next argue that the trial court erred in sustaining the POs 

because the “the record is clear” that the construction violated the terms of the 

easement, depriving [Owners] of the beneficial use of their property.” Owners’ 

brief at 11. In making this argument, Owners rely on the above facts, asserted for 

the first time in their appellate brief. They also cite Youmans’ testimony, and 

 

5

Significant portions of the Reproduced Record are not contained in the certified record. 

See docket. The certified record includes the transcript of the June 16, 2016 hearing, at which 

Youmans was the only witness and testified for the Township. The documents submitted at the 

hearing included Youmans’ curriculum vitae and copies of the two easement agreements.
8

specifically, her statements that she did not confirm that the Township’s plans were 

in accordance with “the deed of easement.” Owners’ brief at 14. Owners 

complain that “at no point could [Youmans] indicate that the sewer plan and 

construction were in accord with the Township’s plans.” Owners’ brief at 14-15. 

However, Owners’ factual assertions are almost entirely addressed to conduct 

undertaken by the Authority. Additionally, although Owners correctly set forth the 

burden on a property owner to establish a de facto taking, they argue that the 

weight of the evidence did not favor the Township. Id. 

In In re Condemnation by the Department of Transportation, 827 

A.2d 544 (Pa. Cmwlth. 2003), the Department of Transportation (PennDOT) filed 

a declaration of taking to obtain an easement over a portion of the landowner’s 

property in connection with a road-widening project. The landowner filed a 

petition for appointment of viewers and was awarded monetary compensation. 

Neither party appealed. After construction began, the landowner discovered that 

the edge of the cartway was closer to his property than originally planned. The 

landowner filed another petition for appointment of viewers, asserting that the 

cartway’s expansion resulted in a de facto taking of his property. PennDOT filed 

POs, asserting in part that the landowner received just compensation for the taking 

years before and that there was no evidence of a de facto taking. The trial court 

sustained the POs. 

On appeal, this Court rejected the landowner’s substantial evidence 

argument, concluding that the trial court’s findings were supported by exhibits and 

the landowner’s testimony. Addressing arguments related to water and snow, we 

stated:

Water overflow can constitute a de facto taking if the 

overflow becomes an “actual, permanent invasion of the 

land amounting to an appropriation thereof, and not 
9

merely an injury to the property.” Landowner testified 

when the catch basins clog[,] water enters his property. 

The trial court held this proof insufficient to constitute a 

de facto taking. We decline to reconsider the weight of 

the evidence or to interfere with this determination.

Id. at 548-49 (citations omitted). See also West Penn Power Co. v Bruni, 387 A.2d 

1316 (Pa. Cmwlth. 1978) (overruling a trial court’s determination that a de facto 

taking had occurred because the property owners presented no evidence that the 

appellant power company had exceeded the rights granted to it in a right-of-way 

agreement). 

Here, Owners rely entirely on Youmans’ testimony as evidence that a 

de facto taking occurred. As illustrated by the excerpts Owners cite on appeal, that 

testimony is not sufficient to meet their heavy burden of proof. 

Owners’ final argument is that the trial court erred in granting the 

second PO because it pertains only to the Authority and the only issue that was 

properly before the trial court concerned the description of the property.

The second PO challenges the legal sufficiency of Owners’ 

allegations that the Authority effected a de facto taking of their property. That PO 

is supported in part by averments that: Owners entered into an easement with the 

Township that permitted the Township to grade and modify the roadway slopes on 

the property; Owners granted the Township a permanent storm water easement 

allowing for a permanent right-of-way and easement for the collection and 

discharge of storm water; and, as a result of the Authority’s and Township’s 

easements, there has not been a de facto condemnation of Owners’ property. 

Owners cite no authority to support the contention that the trial court erred in 

considering these averments. 
10

As to the legal sufficiency of the description, Owners merely assert 

that the testimony of Youmans, the Township’s expert witness, demonstrates that 

the Township “had a clear and full description of the property.” Owners’ brief at 

17. Owners never address the specific terms of the easement(s) and failed to 

demonstrate that the Township’s activity exceeded the easement(s).

Based on the foregoing, we conclude that the trial court properly 

sustained the Township’s POs. Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Condemnation of the :

Property of Carl and Rosemary :

LeFever, Located at :

445 Tyson Road, Schwenksville, :

Lower Salford Township :

:

Carl and Rosemary LeFever, :

:

Appellants :

:

v. : 1251 C.D. 2016

: 

Lower Salford Township :

Authority and Lower Salford :

Township :

O R D E R

AND NOW, this 31st day of May, 2017, the order of the Court of 

Common Pleas of Montgomery County, dated June 16, 2016, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge