IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Township :

Municipal Authority :

:

v. :

:

Kevin L. McCauley, : No. 372 C.D. 2022

Appellant : Submitted: November 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, 

2022 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 Authority 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 

Appeal” (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 is 
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located within the boundaries of Washington Township (Township). See Property 

Deed, Supplemental Reproduced Record (SRR) at 30a. On October 25, 2021, the 

Authority authorized a Declaration of Taking, to which the 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 25a. The Authority filed the Declaration of Taking and served 

notice of the same on Appellant on November 5, 2021. See Declaration 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 restated1as:

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 2011 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 Pennsylvania 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 purpose 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 requirement 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 have 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; see

also Condemnee Objection to Declaration of Taking (Preliminary Objections), SRR 

at 41a-43a.

On January 10, 2022, the Authority filed an answer to the Preliminary 

Objections, 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 easement “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 system and therefore does not want to 

connect to the public sewer system. See id.

On March 16, 2022, the trial court issued the Trial Court Order

overruling the Preliminary Objections. See Trial Court Order. In the Trial Court 

Order, the 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. The 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 

Objectionsincluded 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 followed.

On April 24, 2023, the Authority filed the Motion to Dismiss, which

alleges that the matter is moot because, during the course of the appeal, Appellant3

sold the Property to Andrew McCullough and Marissa Hartzell (collectively, 

Buyers). See Motion 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 Right-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 with the application”). This Court may, in its discretion, accept the facts 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 averments 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 consider whether this matter is moot. As 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 litigants of the necessary stake in the outcome. Id. As this Court 

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 adjudication, 

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, if a change in facts or law 

renders it impossible for the court to grant relief, then the question is moot. Gross, 

382 A.2d at 120.
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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 stake could have transferred to Buyers as 

successors in interest through the sale of the Property, we note that Buyers do not 

continue Appellant’s challenge to the condemnation/easement on the Property for 

the purpose of the Authority extending the sewer system, but instead have 

acquiesced thereto and 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, Judge
IN 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 13th day of June, 2023, 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