Washington Twp. Municipal Authority v. K.L. McCauley ( 2023 )

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
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 restated1 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 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.
2
(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.
3
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
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 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.
4
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.
5
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
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Washington Township :
Municipal Authority :
:
v. :
:
Kevin L. McCauley, : No. 372 C.D. 2022
Appellant :
ORDER
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