IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Township : Municipal Authority :
:
v. :
: Kevin L. McCauley, : No. 372 C.D. 2022

Appellant : Submitted: Novem ber 23

, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED : June 13, 2023

Kevin L. McCauley ( Appellant ) appeals pro se from the March 16

, 202 2 order of the Court of Common Pleas of Clarion County (trial court) overruling Appellant’s preliminary objections to a Declaration of Taking filed by the Washington Township Municipal Authority (Authority)

. The Auth ority seeks to acquire a temporary construction right

- of

- way and a permanent right

- of

- way over Appellant’s land for the purpose of extending an existing public sewer system and appurtenances thereto. The Authority has filed a “Motion to Quash or Dismiss

A ppeal” (Motion to Dismiss). The Motion to Dismiss was not answered and the facts that have developed making it moot are not challenged. For the reasons stated

below , we grant the Motion to Dismiss and dismiss the appeal with prejudice

.

In October of 2021, Appellant owned property located at 749 Dempseytown Road, Fryburg, Clarion County, Pennsylvania (Property) , which is2

located within the boundaries of Washington Township (Township)

. See Property Deed, Supplemental Reproduced Record (SR R) at 30a. On October 25, 2021, the Authority authorized a Declaration of Taking, to which t he Property was subject , for the purpose of “acquir[ing] a temporary construction right

- of

- way and permanent right

- of

- way over a piece of land to extend the public sanitary sewer system and appurtenances that are part of the [Township’s sewer s]ystem

. ” See Declaration of Taking at 2 , SRR 2 5 a . The Authority filed the Declaration of Taking and served

notice of the same on Appellant on November 5, 2021. See Declarat ion of Taking,

SRR at 23a

- 28a; see also Notice to Condemnee, SRR 21a

- 22a ; Notice of Filing of Declaration of Taking, SRR at 36a

- 39a. On December 16, 2021, Appellant filed preliminary objections to the Declaration of Taking , which raised four claims that

the trial court restated 1 as:

1 In their entirety, paragraphs 3

- 6 of the Preliminary Objections stated Appellant’s objections to the Declaration of Taking as follows:

3. The Condemnor has not acted in the best interest of the residents of Washington Township as pursuant to the April 2 011 Act 537 and September 2018 Act 537 revision of sanitary sewage extension of Washington Township.

4. The Condemnor has knowingly deceived, lied, and falsified records. Whom has not acted by required guidelines and laws enacted by the state of Pennsyl vania and the Department of Environmental Protection in application and approval of the 537 Sanitary Sewage Extensions.

5. The Condemnor and the EADS GROUP purposely and deliberately “leveraged” and bullied residents into signing easements for the purpos e of sewage extensions.

6. The Condemnee along with other Resident easement holders have exhausted all financial and legal means to adjudicate the Washington Township Authority 537 extensions only to have this dismissed solely upon the 30 days requiremen t for appeal.3 (1) The Authority has not acted in the best interest of the residents of the Township; (2) the Authority has knowingly deceived, lied, and falsified records, (3) the Authority and its engineers have leveraged and bullied residents into signing easements, and (4) [Appellant] and other respondents ha ve exhausted financial and legal means to adjudicate the sewer extensions only to have their claims dismissed upon the 30 day requirement for appeal.

Opinion and Order of Court dated March 16, 2022 (Trial Court Order) at 1

- 2; se e
also Condemnee Objection to Declaration of Taking ( Preliminary Objection s )

, SRR

at 41a

- 43a. On January 10, 2022, the Authority filed a n answer to the Preliminary Objection s , to which Appellant replied on January 27, 2022. See Reply to Condemnee Objection to Declaration of Taking, SRR at 47a

- 58a; Reply to Condemnor Declaration of Taking, SRR at 59a

- 61a. The trial court conducted a hearing on the Preliminary Objections on February 25, 2022

. At the hearing, Appellant argued that the Authority’s proposed easem ent “on his land is not a public
use or for a public purpose because his land is the last in line and the right

- of

- way is not needed to serve other properties.” Trial Court Order at 2. Appellant also argued at the hearing that he has his own sewage syste m and therefore does not want to connect to the public sewer system. See id.

O n March 16, 2022, the trial court issued the Trial Court Order overruling the Preliminary Objections. See Trial Court Order. In the Trial Court
Order, t he trial court treated Appellant’s first objection as a challenge to the power

Preliminary Objections at 1

- 2 (pagination supplied) (all errors in original). The “Act 537” mentioned in the Preliminary Objections refers to the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965) 1535, as amended , 35 P.S. §§ 750.1

- 750.20a.4

or right of the Authority to appropriate a right

- of

- way on the Property, which objection the trial court overruled. See id. at 2

- 4. T he trial court noted , however,
that the Eminent Domain Code (Code) 2 does not authorize Appellant’s second, third,

and fourth objections, which the trial court accordingly overruled

. See Trial Court

Order at 2. Additionally, the trial court noted that, although the Preliminary Objections included a section titled “Security/Just Compensation,” Appellant did not actually challenge the sufficiency of the bond posted by Authority, so the trial court did not consider such an objection. See id. at 2. This timely appeal f ollowed.

O n April 24, 2023, the Authority filed the Motion t o Dismiss , which alleg es that the matter is moot because, during the course of the appeal, Appellant 3
sold the Property to Andrew McCullough and Marissa Hartzell (collectively,
Buyers). See Mot ion to Dismiss at 2 (pagination supplied) ; see also Property Deed from Appellant to Buyers dated November 23, 2022, Motion to Dismiss Exhibit A

. 4
The Motion to Dismiss explains that the Buyers do not contest the temporary construction right

- of

- way or the permanent right

- of

- way over the Property to extend the public sanitary sewer system and have entered into a written Right

- of

- Way and Easement Agreement with the Authority for the installation of the sewer line. See

Motion to Dismiss at 2

- 4 ; see also Righ t

- of

- Way and Easement Agreement between

2 26 Pa.C.S. §§ 101

- 1106

.

3 The Motion to Dismiss alleges that Appellant currently resides in Barbour County, Alabama. See Motion to Dismiss at 1 (pagination supplied)

.

4 We note that supporting papers are attached to the application for relief as required by Rule 123(a) of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 123(a) (providing that “[i]f an application is supported by briefs, verified statements, or other papers, they shall be served and filed w ith the application”). T his Court may, in its discretion, accept the fact s set forth in the Motion to Dismiss without verification. See Pa.R.A.P. 123(c). Here, where Appellant does not challenge the averments of the Motion to Dismiss , and where the aver ments illustrate that the matter is now moot, we accept the allegations contained in the Motion to Dismiss.5

Buyers and the Authority dated January 4, 2023, Motion to Dismiss Exhibit B. Appellant did not file an answer to the Motion to Dismiss.

Before addressing the parties’ substantive contentions on appeal, we

first con sider whether this matter is moot. A s a general rule, an actual case or controversy must exist at all stages of the judicial process or a case will be dismissed

as moot. In re Gross , 382 A.2d 116, 119 (Pa. 1978). Cases that present an issue of mootness involve litigants that had standing to sue at the outset of the litigation but, after the lawsuit has gotten underway, changes in the facts or in the law occur that may deprive the litigant s of the necessary stake in the outcome. Id

. As this Cou rt

has observed:

The existence of a case or controversy requires

(1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for a reasoned adju dication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.

A controversy must continue through all stages of judicial proceedings, trial and appellate, and the parties must continue to have a personal stake in the outcome of the lawsuit.

Mistich v. Pa. Bd. of Prob. & Parole , 863 A.2d 116, 119 (Pa. Cmwlth . 2004) (internal citations and quotation marks omitted). Further, i f a change in facts or law renders it impossible for the court to gran t relief, then the question is moot. Gross
, 382 A.2d at 120.6 Here, Appellant has sold the Property to Buyers and thus no longer maintains a personal stake in the Property subject to the instant litigation. Further, to the extent Appellant’s personal sta ke could have transferred to Buyers as successors in interest through the sale of the Property, we note that Buyer s do not continue Appellant’s challenge to the condemnation/easement on the Property for
the purpose of the Authority extending the sewer syst em, but instead have acquiesced thereto an d executed an agreement to accomplish the same. See Motion

to Dismiss at 2

- 4 & Exhibit B. As such, a legal controversy requiring judicial resolution no longer exists between the parties, and the matter is moot. See Gross ;
Mistich

. Accordingly

, we grant the Motion to Dismiss and dismiss the matter with prejudice

.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Township : Municipal Authority :
:
v. :
: Kevin L. McCauley, : No. 372 C.D. 2022

Appellant :

O R D E R

AND NOW, this 13 th day of June , 20 2 3 , the “Motion to Quash or

Dismiss Appeal” filed by the Washington Township Municipal Authority on April 24, 2023 is GRANTED, and Appellant Kevin L. McCauley’s appeal of the March 16, 2022 order of the Court of Common Pleas of Clarion County is DISMISSED with prejudice.

______________ ____________________ CHRISTINE FIZZANO CANNON, Judge