R.L. Gallo v. N. Union Twp. & Redevelopment Auth. of the County of Fayette ~ Appeal of: C.L. Gallo

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald L. Gallo : CASES CONSOLIDATED
:
v. : No. 131 C.D. 2022
:
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Stephen R. Laskey :
:
v. :
:
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Appeal of: Cindy Lou Gallo and the :
Estate of Ronald Leo Gallo :

Ronald L. Gallo :
:
v. : No. 132 C.D. 2022
: Argued: February 6, 2024
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Stephen R. Laskey :
:
v. :
:
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Appeal of: Natalie R. Laskey and the :
Estate of Stephen R. Laskey :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED

MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: March 15, 2024

Before the Court in these consolidated appeals are challenges to the Order of
the Court of Common Pleas of Fayette County (trial court) that sustained the
preliminary objections (POs) filed by North Union Township (Township) to the
petitions for the appointment of a board of viewers (Petitions) filed by Ronald L.
Gallo (Gallo) and Stephen R. Laskey (Laskey)1 (together, Appellants), in which
Appellants claimed their separate private properties were the subject of a de facto or
inverse condemnation by Township, and dismissed the Petitions. On appeal,
Appellants challenge the trial court’s decision, claiming that Township’s POs were
untimely; the trial court erred in concluding they did not establish that Township’s
actions resulted in de facto takings of their properties; and the trial court committed
various errors of law in considering legal issues it raised sua sponte and issuing
findings of fact not supported by substantial evidence. Upon careful review, we
affirm.2

1
Both Gallo and Laskey predeceased the trial court’s Order and their estates have
continued this litigation. (Trial Ct. Decree, Findings of Fact (FOF) ¶¶ 1-2.) For ease, we, like the
trial court, will continue to refer to Appellants as Gallo and Laskey.
2
On June 14, 2022, this Court directed the parties to address whether Appellants complied
with the Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018),
overruled in part by Commonwealth v. Young, 265 A.3d 462 (Pa. 2021), relating to the need to file
multiple notices of appeals when matters are consolidated before a trial court. The parties assert
that Walker is inapplicable because Appellants’ Petitions were consolidated for discovery purposes
only and they filed separate notices of appeal at their respective dockets. We agree that this is not
a Walker situation and that Appellants’ appeals are properly before the Court.
2
I. BACKGROUND
A. The Petitions
This matter involves two separate Petitions by Appellants, who own adjoining
lots in the Mount Braddock Industrial Park (MBIP) that was developed by the
Redevelopment Authority of Fayette County (Redevelopment Authority). These lots
sit at the lowest point of the MBIP, with Gallo’s property being slightly lower than
Laskey’s property. Gallo used his property for a home heating oil distribution
business, while Laskey operated an appliance repair business on his. Township owns
a property adjacent to Gallo’s property on which a baseball field, playground, and
parking lot are located, and above that property is a lot rented by Texas Eastern,
which operates a pipe storage facility thereon. All of these properties are situated
along Ainsley Lane, a dirt and aggregate road owned, along with drainage
improvements thereto, by Township. Numerous other entities own property within
the MBIP and are situated above and/or adjacent to Gallo’s and Laskey’s properties
and ultimately discharge their stormwater onto Gallo’s property.
On September 6, 2013, Gallo filed his Petition against Township and the
Redevelopment Authority, asserting a claim for a de facto taking of his property due
to ongoing flooding caused by stormwater runoff, which had transformed some of
his property into unusable wetlands, substantially deprived him of the use and
enjoyment of his property, and prevented the use of the property for his business.
(Reproduced Record (R.R.) at 9a-15a.) Laskey filed his Petition on December 30,
2014, also against Township and the Redevelopment Authority, making nearly
identical claims. (Id. at 2407a-12a.)
The Petitions are based on alleged inadequacies of drainage and stormwater
management during the initial development of the MBIP by the Redevelopment

3
Authority, and subsequent development of the MBIP during the time when Township
was responsible for stormwater management, resulting in Gallo’s and Laskey’s
properties being flooded and damaged. (Trial Court Decree (Decree) at 2.) The
Redevelopment Authority settled with Appellants,3 which left their claims against
Township outstanding.
Township filed POs to both Petitions, asserting that no compensable taking
had occurred, to which Appellants filed answers. (R.R. at 7a, 51a-62a, 2405a,
2448a-58a.) Township subsequently filed Supplemental POs to both Petitions,
asserting the Petitions were time barred, to which Appellants filed their own
preliminary objections, challenging the propriety of Township filing Supplemental
POs. (Id. at 3a, 2241a-53a, 2402a, 2491a-2511a.)
Multiple hearings on the condemnation claims were held and the trial court
viewed the properties. Appellants introduced the testimony of Gallo and Laskey;
Patrick Gavaghan and Ryan Nelson to establish the existence of wetlands on the
properties; John Over of K-2 Engineering to prove what was causing the flooding;
and Abbey Owoc of the Pennsylvania Department of Environmental Protection
(DEP), who outlined DEP’s involvement and suggested resolution for reduction of
the flooding. Township offered the testimony of Curtis Matthews, a Township
Supervisor and Road Master who was actively involved in these matters. Based on
the evidence presented, the trial court rendered findings of fact and conclusions of
law, as set forth below, regarding the properties, their flooding, Township’s and
others’ actions, and whether Township’s actions effectuated a de facto
condemnation.

3
The Redevelopment Authority paid $45,000 to Laskey and $60,000 to Gallo. (Decree at
3.)
4
 B. The MBIP and the Properties
Beginning in the 1970s, the Redevelopment Authority acquired numerous
properties, demolished the buildings thereon, combined the properties, and then re-
subdivided them as the MBIP. (R.R. at 35a (referencing the Redevelopment
Authority’s acquisition of title to Gallo’s property via condemnation proceedings in
1972).) The Redevelopment Authority was responsible for stormwater planning in
the MBIP until 2005, when Township assumed regulatory control over stormwater
management within its jurisdiction. (Decree, Finding of Fact (FOF) ¶ 8.)
Gallo purchased his property from the Redevelopment Authority in 1994 for
$14,500, and as part of the purchase, the Redevelopment Authority added 12 acres
of property behind the Gallo and Laskey properties for no additional consideration.
(Id. ¶ 5.) Laskey purchased his property from a third party for a similar price, also
in 1994. (Id.; R.R. at 2413a.) There was alleged correspondence from the
Redevelopment Authority advising Gallo of the wet conditions of the property,
which Gallo denied receiving, but Gallo testified that the price was reasonable
because of the need for fill and the low-lying nature of the property. (FOF ¶ 5; R.R.
at 72a-74a.) Gallo brought in fill and leveled two and a half acres of his property
adjoining Ainsley Lane, which the trial court found necessarily contributed to the
flow of water onto Laskey’s property. (FOF ¶ 7.)
The additional property conveyed to Gallo by the Redevelopment Authority

was a flat recess at the uphill end of a shallow “hollow” that was drained
by a shallow swale (referred to as a ditch in some testimony) that
traveled in a generally northward direction across the back of two other
parcels (now Holt and Bugbee [(Holt)] and Dynamic Materials
[Corporation (DMC)]) in the [MBIP], which, in turn, was drained by a
culvert under a Township Road and into Gist[] Run.

5
 There was always an existing “large mud puddle” on the rear acreage
of the Gallo property. After the [MBIP] was developed, the “mud
puddle” became a much larger shallow “pond.” The soil surrounded
the pond has converted into “hydric” soil[,] which operates to hold
water like clay or a plastic liner would. Over a period of time, the
original “mud puddle” . . . has grown into a shallow pond that has
reputedly been as large as eight acres.

(Id. ¶¶ 16-17.) Part of Gallo’s de facto condemnation claim is the increase in the
size of this pond and the assertion that the pond will continue to grow until it floods
the improvements on both Gallo’s and Laskey’s properties. (Id. ¶ 6.)
The trial court described several of the properties surrounding Gallo’s and
Laskey’s properties as follows. The Holt and DMC

properties are situated to the north of the Gallo pond, and the original
drainage pathway from the Gallo pond traverses the rear of those two
properties. The Holt . . . property is immediately north of and adjoins
the Gallo property. The [DMC] property is to the north of the Holt . . .
property, and is generally further “downstream” from the Gallo pond.
From the [DMC] property, storm[]water flows through a Township
culvert under Mount Braddock Road and into Gist[] Run.

[] In 2006, [DMC] obtained a stormwater management permit from . . .
Township. Stormwater management improvements were installed that
match the permitted plan, but specific elevations and grades for the
DMC drainage improvements relative to the elevation of the Gallo pond
were never supplied to the [trial c]ourt. No direct evidence was offered
to show that the plan was faulty, or that the improvements were installed
in a faulty manner. Nevertheless, the drainage pathway from the Gallo
pond has clearly been “degraded.” There was testimony that the
retention pond on the [DMC] property has never had to hold water.

(Id. ¶¶ 9-10.) No witness could state how, where, or when the drainage swale or
ditch was filled, raised, or narrowed. (Id. ¶ 19.)

6
 C. The Flooding of the Properties and Township’s Actions
It is unclear from the record exactly when the flooding of Gallo’s property
began, but Gallo testified that it gradually began as an occasional issue around 2004,
with an increase in flooding in the front of his property around 2007 or 2008. (R.R.
at 96a-97a; FOF ¶ 13.) The trial court found that this flooding occurred after heavy
rainfalls, including rainfalls that “were historically significant in terms of the amount
of precipitation that fell in a short period of time, and coincided with other flooding
in the general area.” (Id. ¶ 13.) Per the trial court, this

[f]looding was exacerbated because property development and road
maintenance uphill of [Gallo’s and Laskey’s] properties altered the
natural water flows into a faster and more concentrated pattern. The
uphill development that contributed to this condition included []
Township’s construction of a “baseball field,” and [] Township’s
maintenance of Ainsley Lane and the associated drainage ditches and
culverts. Another uphill development that contributed to the flooding
condition was a “pipe yard” developed by Texas Eastern[], and Texas
Eastern’s permitted private maintenance of Ainsley Lane. Laskey’s
claims associated with these specific uphill developments were litigated
separately [(Trespass Action)]. Most of the claims were resolved by
settlement . . . [except] Texas Eastern assigned its cross-claim against
[Township] to Laskey[, which remained] . . . pending [at docket No.
981 G.D. 20114] on appeal following a jury trial.

(Id. ¶ 14.) The trial court purported to “incorporate[] by reference” the entire record
in the Trespass Action in this matter. (Id. ¶ 15.)
Additional drainage onto Gallo’s property, the trial court found, may also
come from the Holt property, which although “downstream,” was filled in and raised
to an elevation above the Gallo pond. (Id. ¶ 21.) At some point, Gallo sold or leased
part of the rear of his land for a railway siding and associated development, which

4
There are presently appeals relating to the Trespass Action before the Court. Laskey v.
N. Union Twp. (Pa. Cmwlth., Nos. 919 & 987 C.D. 2021).
7
the trial court likewise found Appellants had not proven that this did not contribute
to the flooding. (Id. ¶ 20.) In regard to uphill drainage from other properties within
the MBIP, Appellants claimed the flooding from this drainage was the result of
Township’s failure to enforce its Stormwater Management Ordinance (Stormwater
Ordinance) as to those properties. (Id. ¶¶ 12, 22, 40.)
The trial court found that when flooding of the properties became an issue,
Township, through Matthews, attempted to alleviate it by digging a ditch along the
Gallo/Laskey property line so as to drain water away from the improved portions of
the properties. (Id. ¶ 28.) Without seeking professional advice or consulting with
Township, Appellants agreed to fill the ditch, citing concerns over the legal liability
of having an open ditch and their belief that the ditch was not working. (Id. ¶¶ 29,
31.) When the trial court inquired about whether the ditch could have connected
with Gist Run via an unnamed tributary and an existing sump and culvert on
Laskey’s property, which, from the trial court’s view, may have been low enough to
be a possible solution, Appellants maintained it could not have been connected.
However, the trial court found that Appellants did not provide evidentiary support to
establish that the elevation of the respective properties precluded this solution
despite the trial court’s request for that information after its view of the properties.
(Id. ¶¶ 30, 48.) Further, the trial court did not credit Appellants’ testimony that the
ditch did not help and, therefore, it held they did not prove that their own actions in
filling the ditch did not contribute to their flooding problems. (Id. ¶ 31.)
After experiencing repeated flooding, Laskey reached out to DEP in 2010 to
inquire what could be done about the flooding; Gallo eventually also communicated
with DEP about his property. (R.R. at 107a-09a.) DEP held meetings, attended by
entities within the MBIP, Township, Laskey, and Gallo to discuss potential solutions

8
for the flooding. A plan was developed and, for a time, the Pennsylvania Department
of Transportation (DOT) intended to fund the project, but eventually the funding was
withdrawn due to, among other issues, the existence of underground utility lines.
(Id. at 836a, 839a, 841a.) Although Township initially supported the plan, which
sought to recreate the drainage swale across Holt’s and DMC’s properties and the
potential installation of a new, larger culvert under Mount Braddock Road to replace
the existing culvert, it subsequently indicated it would not participate at this time
citing the cost, DOT’s discovery of underground issues, and the ongoing litigation
with Laskey. (FOF ¶ 54.)
As for Ainsley Lane, Township had agreed to pave Ainsley Lane and install a
drain in front of Laskey’s property parallel to and downhill from Ainsley Lane, as
designed by Laskey’s engineer, as part of an agreement with Texas Eastern, which
provided $50,000 to Township to do so. (Id. ¶¶ 24, 60.) Township claimed it sought
an easement from Laskey to install the drain, but Laskey refused to give an easement
and, therefore, Township did not construct the drain. (Id. ¶ 24.) Eventually, Texas
Eastern filed a counterclaim in the Trespass Action seeking the return of its monies,
which Texas Eastern subsequently assigned to Laskey as part of its settlement with
Laskey in that action. (Id. ¶ 60.) Laskey then asserted Texas Eastern’s claim against
Township seeking payment of the $50,000 to him. Matthews testified that Township
was not proceeding with the paving at this time given the uncertainty relating to the
ongoing litigation and the concern that paving the roadway would merely increase
the impervious surfaces over which stormwater would flow. (R.R. at 923a-24a,
994a, 997a.)
Ultimately, Gallo and Laskey had their properties inspected to ascertain if
there were any wetlands thereon. Following inspections of the Gallo property,

9
Gavaghan opined that the historic drainage path for Gallo’s property, across the Holt
and DMC properties, was no longer functioning and that a portion of Gallo’s
property was wetlands as defined by federal regulations and could not be filled or
drained without permission from DEP or the United States Army Corps of Engineers
(ACE). (FOF ¶¶ 36-37.) Nelson testified similarly that part of Laskey’s property
was a wetland. (R.R. at 301a.) In February 2013, Gallo was advised by DEP that
he could not use, access, or alter the back of his property if it was determined to be
a wetland, absent a permit from either DEP or ACE. (FOF ¶ 35.) As of November
20, 2018, DEP had not delineated either property as containing wetlands. (R.R. at
848a; FOF ¶¶ 36, 38, 63.)

D. The Trial Court’s Decree and Order
The trial court examined the evidence regarding the flooding of the properties,
Appellants’ actions, Township’s actions, and the actions of third parties and
addressed the various alleged causes of that flooding to determine if Township was
liable for a de facto condemnation. The trial court found that the real issue causing
the flooding related to the pond and the lack of drainage it once had. In particular,
the trial court found that there had to be some upstream obstructions of the drainage
swale, either on Gallo’s or Holt’s property, that prevented the drainage of the pond;
otherwise, it would drain as it had in the past. (FOF ¶ 11.) The trial court also
pointed to drainage from other sources, such as Holt’s property and Gallo’s own
actions in selling or leasing a portion of his property, as possible causes of the
flooding, none of which had to do with Township’s actions. (Id. ¶¶ 20-21.)
The trial court further reasoned that, although Appellants argued that the
stormwater runoff from Township’s baseball field and Ainsley Lane was one of the
bases for their inverse condemnation claims, those claims were more in the nature

10
of negligence/real estate claims and were, or should have been, resolved in the
Trespass Action. (Id. ¶¶ 33, 53, 57.) Thus, the trial court concluded that “[t]he uphill
water drainage from [] [Township] property and roadway [could not] properly be the
basis for a finding of inverse condemnation.” (Id. ¶¶ 33, 50.) The trial court
acknowledged that Laskey reserved his inverse condemnation claims in his
settlement of the Trespass Action with Township, but the trial court found that the
reserved claims did not relate to the uphill flooding sources, i.e., the baseball field
and Ainsley Lane. (Id. ¶ 50.)
The trial court also addressed the claims related to Township’s actions, or
inaction, in relation to improving Ainsley Lane. The trial court noted that Laskey
had not sought other relief, either in mandamus or as specific performance, to force
Township to install the drain. (Id.) To the extent Township had not used monies
that Texas Eastern paid to pave Ainsley Lane and install this drain, the trial court
found Township’s failure to do so at this time was justifiable because Laskey had
sued Township seeking to recover those monies based on the assignment of that
claim Laskey received in his settlement with Texas Eastern in the Trespass Action.
(Id. ¶ 60.) If Township made the improvements and Laskey prevailed in his suit on
the assigned claim, the trial court reasoned, Township, and its taxpayers, would have
to expend twice the amount of money to fix problems caused by Texas Eastern. (Id.)
It also reiterated that, regardless of the reason for Township’s failure to do this, the
flooding issues stemming from the uphill properties (Texas Eastern and the baseball
field) and Ainsley Lane could not be the basis of a de facto condemnation. (Id. ¶ 61.)
As to the extent other uphill land developments existed and may have reduced
or eliminated the absorbative properties of existing vegetative cover or native soils,
contributing to the speed at which precipitation flows to the Gallo property, the trial

11
court held that the total amount of water had not been significantly increased and the
contours and size of the drainage basin were unchanged. (Id. ¶ 23.) The trial court
found that it was possible that some of these developments took place before
Township assumed control of the area’s stormwater management. In that respect,
the trial court concluded that “it [was] apparent that the subdivisions prepared and
recorded by [the Redevelopment Authority] did not adequately address storm[]water
management[] and did not expressly set forth drainage easements or responsibilities
through the properties now owned by Gallo, by Holt . . . , and by [DMC].” (Id. ¶¶ 3,
9.) The trial court also held it was not possible “to attribute causation to faulty
enforcement by [] Township.” (Id. ¶ 41.) This was because, the trial court posited,
all of the upstream properties had always drained through the Gallo property, with
only the speed and location of where the upstream water arrives changing, and no
long-term ponding would be an issue on Gallo’s property had the downstream
drainage of Gallo’s property, through the Holt and DMC properties, not been
degraded. (Id. ¶ 42.) The trial court found there were no allegations that Township
itself installed any of the drainage pathways to the pond, and Appellants’ assertions
that Township should be liable because of the failure of the MBIP drainage system
were untenable because it was the Redevelopment Authority that was responsible
for that failure. (Id. ¶¶ 43-44.)
With respect to the solution proposed by DEP, the trial court did not accept
Appellants’ proposed finding that DEP’s Owoc told Laskey that Township would
not permit the installation of a pipe to reopen the ditch unless Laskey dropped the
Trespass Action, citing the multiple layers of uncorroborated hearsay in Laskey’s
testimony. (Id. ¶ 54.) The trial court also rejected the idea that a new culvert was
needed as the existing one had drained the entire watershed in the past and observed

12
that the responsibility for degradation of the prior ditch was on Holt and DMC, which
had a common law obligation not to restrict that drainage and cause flooding. (Id.
¶¶ 54, 64.)
Based on its findings, the trial court concluded that Appellants had not met
their burden of proving that Township had effectuated a de facto condemnation of
their properties. (Decree, Conclusion of Law (COL) ¶ 23.) It held that while
Township had the legal authority to condemn property, the rear of Gallo’s property
never had significant value and the conditions at the time of its acquisition precluded
substantial development of that property, and any deprivation to Appellants’ use and
enjoyment of their properties was not the result of Township’s exercise of its
condemnation power. (Id. ¶¶ 2-4.) The trial court explained that Township was not
responsible for any improper stormwater management planning before it became
responsible for that planning in 2005, Township was not a guarantor of the efficacy
of those improvements, and common law principles regarding surface water and
upstream and downstream property owners were still applicable. (Id. ¶ 6.)
As to the flooding caused by upstream property owners, the trial court
concluded that problems caused by Texas Eastern, the baseball field, and Ainsley
Lane were not condemnation claims but negligence claims, and that the problems
caused by other entities or properties were not fully developed or shown to be the
result of Township’s intentional actions to allow excessive volume or velocity of
stormwater drainage any time after 2005. (Id. ¶¶ 8-9.) The trial court concluded the
evidence established that it is obstructions restricting the flow of water from the
Gallo pond, which must be present below the pond (either on Gallo’s, Holt’s, and/or
DMC’s properties), that are causing the pond to grow. (Id. ¶¶ 11-12.) As there was
no evidence that Township took affirmative action to allow or cause the obstruction

13
of the drainage pathway, “[n]o intentional conduct by [] Township in obstructing the
flow downstream of the Gallo pond has been proven.” (Id. ¶ 18.) To the extent there
are wetlands now on Gallo’s and Laskey’s properties, precluding their development
without a permit from DEP or ACE, the trial court concluded no official designation
by those entities has taken place and, if development is prohibited, that issue should
be addressed to those governmental agencies, as Township is not responsible for the
enforcement of those regulations. (Id. ¶¶ 21-22; FOF ¶¶ 36, 38, 63.) Accordingly,
the trial court sustained Township’s POs and dismissed the Petitions.
Appellants filed separate notices of appeal at their respective dockets and filed
Concise Statements of Errors Complained of on Appeal pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b), as directed by the trial
court. The trial court issued a statement in lieu of opinion. This Court sua sponte
consolidated the appeals. Following briefing and oral argument, these appeals are
ready for disposition.5

II. DISCUSSION
A. Were Township’s POs Timely and Supplemental POs Permitted?
1. Parties’ Arguments
Appellants first argue the trial court erred in sustaining Township’s POs
because those POs were not timely filed and the Supplemental POs were improperly
filed, and, therefore, the trial court should have dismissed those filings. Gallo asserts
his Petition was filed on September 6, 2013, and Township’s initial POs were not

5
In reviewing a trial court’s decision on preliminary objections in an eminent domain
proceeding, we must “determine whether the trial court abused its discretion or committed an error
of law.” In re Mountaintop Area Joint Sanitary Auth., 166 A.3d 553, 559 n.8 (Pa. Cmwlth. 2017)
(DeLuca). As factfinder, the trial court “must resolve evidentiary conflicts, and its findings will
not be disturbed if supported by substantial evidence.” Id.
14
filed until February 4, 2014, and May 29, 2014,6 and its Supplemental POs were
filed in June and July 2020. Laskey maintains that he filed his Petition on December
30, 2014, and Township did not file its POs until March 23, 2015, and its
Supplemental POs were filed in June 2020. Appellants argue that, pursuant to
Section 504(d)(1) and (2) of the Eminent Domain Code (Code), 26 Pa.C.S.
§ 504(d)(1), (2), preliminary objections must be filed within 30 days of the receipt
of notice of the appointment of viewers, that issues not raised in the preliminary
objections are waived, and that the amendment to the preliminary objections was not
authorized here.7 While acknowledging that no appointment of viewers occurred
here, Appellants point out that the Code contains no specific deadline for filing
preliminary objections to a petition for the appointment of viewers and assert there
must be a deadline for doing so. Whether that deadline is 30 days under Section
504(d)(1) or 20 days pursuant to Section 504(d)(3) (giving 20 days for the filing of

6
Two sets of POs were filed by separate attorneys who entered their appearances on behalf
of Township, and Gallo’s subsequent response to the POs made no procedural objections to the
POs and was served on both counsel. (Original Record (O.R.) Item 12.)
7
Appellants cite Pennsylvania Rule of Civil Procedure 1033(a), Pa.R.Civ.P. 1033(a). Rule
1033(a), for support, which states:

A party, either by filed consent of the adverse party or by leave of court, may at any
time change the form of action, add a person as a party, correct the name of a party,
or otherwise amend the pleading. The amended pleading may aver transactions or
occurrences which have happened before or after the filing of the original pleading,
even though they give rise to a new cause of action or defense. An amendment may
be made to conform the pleading to the evidence offered or admitted.

Pa.R.Civ.P. 1033(a). However, the Rules of Civil Procedure are not applicable in eminent domain
cases. In re Condemnation by City of Coatesville, 898 A.2d 1186, 1189 n.7 (Pa. Cmwlth. 2006).
Instead, a trial court may allow amendments to preliminary objections filed in eminent domain
proceedings where doing so “would [] serve the administration of justice” and there was no
prejudice to the adverse party. Dep’t of Transp. v. Schodde, 433 A.2d 143, 145 (Pa. Cmwlth.
1981).
15
an answer with or without new matter to the preliminary objections), Township’s
POs were not timely filed and its Supplemental POs, filed without permission by
either of Appellants or the trial court, are impermissible. Accordingly, Appellants
contend the trial court should have dismissed those filings and appointed viewers.
Township responds that Section 504(d)(1) requires that preliminary
objections be filed within 30 days of receiving notice of the appointment of viewers
and no such appointment has occurred in this matter. Thus, Township argues its
POs, which alleged questions of law and fact, required the trial court to hold a
hearing and its Supplemental POs were properly filed given the development of
evidence during the consolidated discovery process.

2. Analysis
Section 502(c) of the Code authorizes the filing of a petition for the
appointment of viewers when a condemnation occurs without a declaration of taking
being filed, stating:

(1) An owner of a property interest who asserts that the owner’s
property interest has been condemned without the filing of a declaration
of taking may file a petition for the appointment of viewers . . . .

(2) The court shall determine whether a condemnation has occurred,
and, if the court determines that a condemnation has occurred, the court
shall determine the condemnation date and the extent and nature of any
property interest condemned.

(3) The court shall enter an order specifying any property interest which
has been condemned and the date of the condemnation.

(4) A copy of the order and any modification shall be filed by the
condemnor in the office of the recorder of deeds of the county in which
the property is located and shall be indexed in the deed indices showing
the condemnee as grantor and the condemnor as grantee.

16
26 Pa.C.S. § 502(c). Section 504 discusses a court’s appointment of viewers after
the filing of a petition, and subsection (d) addresses preliminary objections,
providing:

(1) Any objection to the appointment of viewers may be raised by
preliminary objections filed within 30 days after receipt of notice of the
appointment of viewers.

(2) Objections to the form of the petition or the appointment or the
qualifications of the viewers in any proceeding or to the legal
sufficiency or factual basis of a petition filed under [S]ection 502(c)
(relating to petition for appointment of viewers) are waived unless
included in preliminary objections.

(3) An answer with or without new matter may be filed within 20 days
of service of preliminary objections, and a reply to new matter may be
filed within 20 days of service of the answer.

(4) The court shall determine promptly all preliminary objections and
make any orders and decrees as justice requires.

(5) If an issue of fact is raised, the court shall conduct an evidentiary
hearing or order that evidence be taken by deposition or otherwise, but
in no event shall evidence be taken by the viewers on this issue.

26 Pa.C.S. § 504(d). Preliminary objections are the exclusive means in an eminent
domain proceeding to raise legal and factual challenges to a petition for appointment
of viewers alleging a de facto taking. In re Mountaintop Area Joint Sanitary Auth.,
166 A.3d 553, 560 n.9 (Pa. Cmwlth. 2017) (DeLuca).
Appellants fault the trial court for not dismissing the POs and Supplemental
POs due to being either untimely or improperly filed. However, a review of the
record reflects that Appellants did not challenge the timeliness or propriety of
Township’s POs to Gallo’s Petition or to Laskey’s Petition, by filing their own
preliminary objections raising that issue. (See R.R. at 7a (docket reflecting no

17
preliminary objections to Township’s POs filed to Gallo’s Petition on those dates),
2405a (docket reflecting that no preliminary objections were filed to Township’s
POs filed to Laskey’s Petition on that date).) Instead, Appellants, respectively, filed
answers to the POs responding to the merits of the POs but not challenging the
timeliness of them. (Id. at 7a, 2405a; Original Record (O.R.) Item 12 (Gallo); O.R.
Item 13 (Laskey).) This Court has held, however, that

the proper manner in which to raise a challenge to [a] preliminary
objection[] would [ ] be[] by a preliminary objection to the preliminary
objection[] in the form of a motion to strike for lack of conformity to
the law or rule of court.

German v. City of Philadelphia, 683 A.2d 323, 326 (Pa. Cmwlth. 1996) (quoting In
re Condemnation of Premises 320 Crestview Circle, 449 A.2d 820, 822 (Pa.
Cmwlth. 1982)). If a challenge is not raised this way, “the petitioners are deemed to
have waived their objection to the untimeliness of [the] pleading.” Id. (quoting 320
Crestview Circle, 449 A.2d at 822). Appellants did not file preliminary objections
to Township’s POs or challenge timeliness in their answers. Rather, the legal and
factual issues raised in Township’s POs were before the trial court, and the latter
issues required the holding of a hearing. DeLuca, 166 A.3d at 560. Thus, we discern
no error in the trial court not dismissing Township’s POs on this basis. 8
As for the Supplemental POs, which reasserted Township’s claims that the
Petitions were factually and legally insufficient and also challenged the Petitions on
the basis that they were time barred based on evidence obtained during the hearings,

8
Even had the issue been raised, Section 504(d)(1) requires the filing of preliminary
objections within 30 days of notice of the appointment of the viewers, not to the filing of a petition
for the appointment of viewers. 26 Pa.C.S. § 504(d)(1). Accepting Appellants’ arguments that
they are entitled to the appointment of viewers and a calculation of damages because Township’s
POs to the Petitions were untimely appears to be inconsistent with that statutory language because
Township could have, under that language, filed its POs after the trial court appointed the viewers.
18
(R.R. at 2241a-43a, 2499a-2502a), Appellants did file preliminary objections to the
Supplemental POs, arguing that the supplemental filings were not authorized by the
Code and moving to strike those pleadings, (id. at 2246a-50a, 2504a-08a). We agree
with Appellants that, in providing that challenges to a petition to appoint viewers or
to the appointment of viewers are to be made via preliminary objections, the
legislature expressed its intent that legal or factual issues not included therein were
waived. 26 Pa.C.S. § 504(d)(2). However, we have held that a trial court may allow
amendments to preliminary objections filed in eminent domain proceedings where
doing so “would [] serve the administration of justice” and there was no prejudice to
the adverse party. Dep’t of Transp. v. Schodde, 433 A.2d 143, 145 (Pa. Cmwlth.
1981). The trial court did not rule on Appellants’ preliminary objections to
Township’s Supplemental POs, which likely should have been sustained and the
Supplemental POs stricken as unauthorized. Nonetheless, any error in not doing so
is harmless because the only issue newly raised was that the Petitions were barred
by the statute of limitations, and the trial court did not grant Township relief on that
basis. Accordingly, this is not a reason to reverse the trial court’s Order.

B. Did Appellants Establish Township’s De Facto Taking of Their
Properties?
1. Parties’ Arguments
The trial court concluded Appellants did not meet their heavy burden of
proving that Township’s actions resulted in a de facto taking of their properties under
the above standards. Appellants argue9 the trial court erred in reaching this
conclusion because they established by a fair preponderance of the evidence that
their properties have been subjected to continuous and pervasive flooding resulting

9
Appellants’ arguments in their separately filed briefs are practically identical.
19
from stormwater runoff, creating wetlands, and interfering with their use and
enjoyment of those properties. According to Appellants, Township is liable for that
interference and the de facto taking of their properties because it knew of the
stormwater runoff in 2010 but did not take any efforts to resolve the issue, and,
instead, engaged in activities that worsened the runoff. Appellants point to the
following actions of Township (or inactions) as the basis for their de facto
condemnation claim: the creation and maintenance of the baseball field; the grading
and maintenance of Ainsley Lane; the improper regulation of stormwater facilities
within the MBIP and the permitting of unchecked development in the MBIP since
the passage of the first Stormwater Ordinance in 2005; and the refusal to take
remedial actions, suggested by DEP, to resolve the stormwater issues. These actions
were intentional, Appellants contend, and resulted in the diversion of stormwater
runoff and change in the quantity and rate of stormwater flowing onto their
properties, foreseeable flooding of their properties, and creation of wetlands that
hinder their ability to use the properties. Specifically, Appellants argue Township’s
improper administration of its Stormwater Ordinance, by allowing unchecked or
unregulated development in the MBIP, along with its failure to fix issues with
Ainsley Lane, is akin to the improper operation of the sanitary authority’s facilities
in DeLuca that formed the basis of the de facto taking in that matter. Appellants
further assert that Township’s refusal to resolve issues with Ainsley Lane or
cooperate with DEP’s plan was not reasonable, as the trial court found, but was
intended to force Laskey to withdraw his lawsuits.
Township argues the trial court correctly held that Appellants did not meet the
heavy burden of proving all of the elements of a de facto condemnation of their
respective properties. It first asserts that the water flow and flooding Appellants

20
argue are caused by Township’s actions are really the result of extremely heavy
rainfall common to the county as well, the natural flow of water downhill to their
respective properties, and the Redevelopment Authority’s failure to include
appropriate stormwater facilities when developing the MBIP, a failure the
Redevelopment Authority recognized when it settled Appellants’ de facto
condemnation claims against it. Township next argues Appellants did not establish
that the periodic and intermittent flooding by stormwater runoff has significantly
interfered with Appellants’ use and enjoyment of their properties, as they both
continued to operate their respective businesses thereon. To the extent Gallo’s
business is no longer operational at the time of the filing of its brief, Township
contends it is not because of any stormwater flooding but due to personal decisions
made by Gallo’s children. It maintains Appellants were aware that their properties
were subject to flooding, which was reflected in their sales prices, Gallo’s
subsequent action in adding fill to increase the height of part of his property to above
Ainsley Lane, and Laskey’s purchase of flood insurance from which he recovered
damages at one point.
Township maintains that, as was found by the trial court in Laskey’s Trespass
Action, Gallo’s elevation of his property caused stormwater to flow from Gallo’s
property onto Ainsley Lane and Laskey’s property. According to Township, Over’s
expert testimony revealed it was the Redevelopment Authority’s actions that were
the primary cause of the flooding issues and preceded Township’s adoption of the
Stormwater Ordinance, along with the natural flow of water to the lowest point
within the MBIP, which is Appellants’ properties. The flooding of such properties,
Township argues, is not a basis for a de facto condemnation absent a showing that
Township altered the flow of the water or unreasonably increased the quantity of

21
water. Snap-Tite, Inc. v. Millcreek Township, 811 A.2d 1101, 1106 (Pa. Cmwlth.
2002). Contrary to Appellants’ arguments, and consistent with the trial court’s
findings, Township asserts its changes to the baseball field and regular maintenance
of Ainsley Lane, which were not alterations to the grade of that roadway and has
been inspected by DOT and found to be sufficient, improved the situation by
diverting water onto Township property and away from private properties. It argues
that DeLuca is distinguishable, as Township cannot control rainfall or the way that
stormwater normally flows from higher properties to lower properties, it did not
engage in any intentional action in order to burden a particular property, and the
intermittent flooding did not preclude the continued use of the properties, making
this matter more like McMaster v. Township of Bensalem, 161 A.3d 1031 (Pa.
Cmwlth. 2017). Township disagrees it has any legal obligation to fix Appellants’
properties as it has done nothing to cause the issues thereon and no evidence was
presented to demonstrate that the actions it did take altered the natural flow or
increased the quantity of water flowing onto the properties. Township further points
to actions taken by both Gallo and Laskey that did not help the flooding, including
Gallo’s filling in the drainage ditch Township installed and Gallo’s raising the
elevation of his property to above Ainsley Lane, and Laskey’s paving of his
driveway and increasing the impervious surface on his property. For these reasons,
Township argues Appellants did not meet their burden of proof, the POs were
properly sustained, and the Petitions were correctly dismissed.

2. Analysis
It is well settled that

[article I, section 10 of t]he Pennsylvania Constitution provides that
private property cannot be taken for public use without just

22
 compensation. PA. CONST. art. I, § 10. “[A] de facto taking occurs
when an entity clothed in the power of eminent domain substantially
deprives an owner of the beneficial use and enjoyment of his property.”
In re De Facto Condemnation [&] Taking of Lands of WBF Assoc[s.],
L.P. ex rel. Lehigh-Northampton Airport Auth[.], . . . 903 A.2d 1192,
1199 ([Pa.] 2006). A property owner carries a heavy burden of proof
in de facto condemnation proceedings and must show that[] (1) the
condemnor has the power to condemn the land under eminent domain
procedures; (2) [] exceptional circumstances have substantially
deprived him of the use and enjoyment of his property; and (3) the
damages sustained were the immediate, necessary, and unavoidable
consequences of the exercise of the eminent domain power. Genter v.
Blair C[nty.] Conv[. &] Sports Facilities Auth[.], 805 A.2d 51, 56 (Pa.
Cmwlth. 2002). Finally, when determining whether a de facto taking
has occurred, we focus on the governmental action in question. Appeal
of Jacobs, . . . 423 A.2d 442, 443 ([Pa. Cmwlth.] 1980).

On the other hand, acts that are not the immediate, necessary or
unavoidable consequence of the exercise of eminent domain will not
form the basis of [a] de facto condemnation. Fulmer v. White Oak
Borough, . . . 606 A.2d 589, 590 ([Pa. Cmwlth.] 1992). “Generally,
where a landowner suffers specific damage to his property as a result
of the negligent acts of a party with the power of eminent domain, the
proper action lies in trespass.” Poole v. Township of District, 843 A.2d
422, 424 (Pa. Cmwlth. 2004). Nevertheless, the two species of action
are not mutually exclusive. A judgment in trespass does not bar a
subsequent condemnation claim. Matter of Condemnation by Urban
Redevelopment Auth[.] of Pittsburgh, . . . 458 A.2d 622, 623 ([Pa.
Cmwlth.] 1983).

DeLuca, 166 A.3d at 561 (some alterations added). “Where a de facto taking claim
is based on harm from surface waters, the property owner must also show that the
entity with eminent domain power diverted the water from its natural channel or
changed the quality or quantity of water flowing onto the property.” McMaster, 161
A.3d at 1036. The change in quality or quantity of water must be “unreasonabl[e]
or unnecessar[y].” Snap-Tite, Inc., 811 A.2d at 1106. “Speculative or conjectural
harms are insufficient to show the substantial deprivation of use and enjoyment

23
necessary to a de facto taking claim.” McMaster, 161 A.3d at 1037. Injuries to a
property that are abatable, preventable, or reparable similarly do not constitute a de
facto taking. Id. To constitute a de facto taking, the overflow must become an
“actual, permanent invasion of the land amounting to an appropriation thereof, and
not merely an injury to the property.” Snap-Tite, Inc., 811 A.2d at 1106-07 (quoting
Oxford v. Dep’t of Transp., 506 A.2d 990, 994 (Pa. Cmwlth. 1986)).
Here, Appellants allege a de facto condemnation due to Township’s actions
related to the baseball field and the maintenance of Ainsley Lane and improper
administration of its Stormwater Ordinance, thereby allowing development within
the MBIP, including the alleged “filling in” of the ditch on the Holt and DMC
properties, without consideration of the effect on Appellants’ properties.

a. Township’s Baseball Field and Ainsley Lane
We begin with the allegations related to Township’s baseball field and
maintenance of Ainsley Lane, including that Township has intentionally not
maintained Ainsley Lane in order to coerce Laskey into withdrawing his lawsuit.
The trial court found that these issues could not be the basis of a de facto
condemnation claim because they were negligence/real estate claims that were
resolved, or should have been resolved, in Laskey’s Trespass Action. As to Laskey,
we agree that these claims could not be the basis of his condemnation action. During
Laskey’s testimony, Laskey’s counsel specifically disclaimed, as being a basis for
Laskey’s inverse condemnation claim, any issues related to runoff from the baseball
field and Ainsley Lane as being a part of Laskey’s eminent domain case. (R.R. at
2150a-52a.) Rather, counsel stated, “Mr. Laskey has only alleged that the flooding
from the rear of his property that [is] coming off the Gallo property, which began in
2011, 2012, is the flooding that has not stopped and has not ceased and will not stop

24
and, therefore, that is the eminent domain taking.” (Id. at 2151a, 2162a-64a
(indicating the eminent domain case was about flooding in the back of his property).)
Thus, we cannot say the trial court erred in rejecting these allegations as supporting
Laskey’s de facto condemnation claim.
Gallo, on the other hand, made no such concession and argues that the
established stormwater runoff from the baseball field and Ainsley Lane, exacerbated
by Township’s failure to maintain that road, have substantially deprived him of the
use and enjoyment of his property and inability to operate his business. Whether
Gallo met his burden on this issue is a close question, as the trial court found that
“property development and road maintenance uphill of [Gallo’s] propert[y] altered
the natural water flow[] into a faster and more concentrated pattern,” and the baseball
field and maintenance of Ainsley Lane “contributed” to this process. (FOF ¶ 14.)
However, the trial court also found that “the total amount of water flow ha[d] not
been significantly increased, as the general contours and size of the drainage basin
[were un]changed” by the uphill land developments, which had always drained onto
Gallo’s property, and the issue of the flooding thereof was related to the downhill
drainage of the pond, rather than stormwater flowing onto Gallo’s property. (Id.
¶¶ 23, 42.) Notably, to prove a de facto taking based on harm from surface water,
the change in quality or quantity of water had to be unnecessary or unreasonable.
Snap-Tite, Inc., 811 A.2d at 1106. Here, Over testified that the baseball field and
Ainsley Lane were “factors” in the stormwater runoff, but he provided no detail as
to the extent they increased or changed the stormwater runoff or whether any such
increase or change was “unreasonable or unnecessary.” (R.R. at 388a-91a, 403a-
04a.) According to Over, there were ways to determine the amount of stormwater
runoff from individual properties that ended up on Gallo’s property, but he did not

25
perform any of those calculations in this matter. (Id. at 748a-51a, 761a-62a, 768a-
69a.)
Further, while Gallo argues that Township’s “refusal” to pave Ainsley Lane
or otherwise maintain Ainsley Lane based on the ongoing Laskey litigation reflects
intentional action to increase the stormwater runoff onto Gallo’s property, the trial
court found Township’s action justifiable given the uncertainty caused by Laskey’s
litigation. (FOF ¶¶ 24, 60.) Matthews did not testify that Township was never going
to make the improvements in Ainsley Lane but questioned doing so during the
ongoing litigation because of a concern of increased stormwater runoff paving could
cause, which could affect the current litigation. (R.R. at 924a-25a, 997a.) In
addition, as the trial court noted, Township runs the risk of expending monies to
improve Ainsley Lane, potentially increasing stormwater runoff, and then having to
pay Laskey the same amount pursuant to the assignment of Texas Eastern’s claim to
Laskey. (FOF ¶ 60.) Under these circumstances, we cannot say the trial court erred
in finding that Gallo did not meet his burden of proof on his Petition based on the
allegations related to the baseball field and Ainsley Lane.10

b. The increase in size of the pond on Gallo’s property
Appellants next claim that Township is liable for a de facto condemnation due
to the flooding of the properties and creation of wetlands resulting from the increase
in size of the pond on Gallo’s property. The trial court concluded these issues were
the result in the elimination of the drainage for Gallo’s property through the drainage
ditch or swale on Gallo’s, Holt’s, and/or DMC’s properties and/or manmade changes

While our reasoning differs from the trial court’s, we may affirm on different grounds
10

where such grounds for affirmance exist. Smart Commc’ns Holding, Inc. v. Wishnefsky, 240 A.3d
1014, 1016 n.2 (Pa. Cmwlth. 2020).
26
to the elevation of the various properties involved, and that Appellants did not prove
that Township engaged in intentional conduct that caused these situations. (COL
¶¶ 11-12, 18.) We agree with the trial court’s assessment.
As to the drainage swale or ditch on the Holt property that had drained the
pond in the past, the trial court found that no witness stated how, where, or when the
drainage swale had been filled, raised, or narrowed or became “degraded.” (FOF
¶ 19.) As for DMC’s 2006 stormwater management plan, the record reveals that
Township’s engineer did review that plan and found it to comply with the
Stormwater Ordinance, and Township issued a letter so indicating. (R.R. at 1136a-
37a.) That it may have been mistaken in its conclusion does not mean that Township
took action that “diverted [] water from its natural channel or changed the quality
or quantity of water flowing onto the property.” McMaster, 161 A.3d at 1036. Of
note, even Gallo himself testified that he was unsure how DMC’s filling in the ditch
would affect the stormwater flow on his property. (R.R. at 1875a-77a.)
Accordingly, we discern no error in the trial court’s conclusion that Appellants did
not meet their heavy burden of proving that Township’s actions, as related to the
drainage of the Gallo property, constituted a de facto taking of Appellants’
respective properties.
This leaves Appellants’ general arguments that Township’s insufficient
administration of the Stormwater Ordinance and allowing unchecked development
within the MBIP without consideration of the stormwater effects of that
development has caused flooding on Appellants’ properties. To the extent
Appellants rely on the development of the MBIP prior to 2005, Township had no
responsibility for stormwater management at that time and any deficiencies are the
result of the Redevelopment Authority, which settled with Appellants. As for post-

27
2005 development, Appellants point to several development projects that, upon
Over’s review, did not have a letter of concurrence reflecting Township’s review
and approval of a stormwater management plan related to the project. (Id. at 372a-
81a.) However, it is unclear from the record that the non-issuance of a concurrence
letter reflected Township’s abdication of its obligations or something else. Over
testified that when a land development plan is filed with the county, the county was
supposed to send it to Township for review for compliance with the Stormwater
Ordinance, which would then issue a concurrence letter if it was, after which the
county would issue building permits. (Id. at 358a-59a.) Per Over, the filing of a
concurrence letter is part of the county’s approval process. (Id.) Thus, it is possible
that, if no concurrence letter was issued, it was the county that improperly approved
the plans, or that, as those plans were approved by the county, concurrence letters
were issued, but not made a part of the files. On this record, it is difficult to say that
Township intentionally abdicated its obligations to review and approve plans under
the Stormwater Ordinance such that the trial court erred in finding that Township
did not effectuate a de facto condemnation on this basis.
The lack of evidence of established intentional conduct by Township in the
administration of the Stormwater Ordinance makes this matter distinguishable from
DeLuca. In DeLuca, a landowner filed a de facto condemnation claim against a
sewer authority alleging that the way the authority was intentionally operating its
sewage system caused sewage to infiltrate her home on multiple occasions. 166
A.3d at 556. The authority argued the landowner was limited to bringing a trespass
action because the damage to her property was not the “immediate, necessary, and
unavoidable consequences of an eminent domain action.” Id. at 561. We upheld a
trial court’s rejection of this argument, reasoning the evidence showed that the

28
authority was aware of the flooding of the landowner’s property and intentionally
operated its sewage system in a way it knew would result in new flooding of the
landowner’s property by accepting new customers, not installing recommended
valves on the landowner’s property even though it did so elsewhere on the system,
and plugging her sewer lines when flooding was imminent thereby forcing her out
of her home for a period of time. We concluded the authority took no efforts to fix
the structural defects in its system, pursuing ad hoc remedies it knew would flood
the landowner’s property, resulting in her damages being a direct result of the
authority’s intentional actions taken incident to its power of eminent domain and a
“purposeful and deliberate drainage plan.” Id. at 563 (citation omitted). Here, unlike
in DeLuca, the record, consisting only of an absence of concurrence letters, does not
support that Township intentionally operated or administered the Stormwater
Ordinance in a way that would support a finding of a de facto condemnation. Thus,
DeLuca does not require us to reverse the trial court’s Order.

C. Did the Trial Court Commit Other Reversible Errors?
1. Parties’ Arguments
Appellants further assert the trial court committed numerous errors that
require reversal and the appointment of viewers. They contend the trial court erred
in some of its evidentiary rulings, including sua sponte incorporating the record from
Laskey’s Trespass Action into this condemnation proceeding; finding that certain
testimony by Owoc regarding Township’s refusal to cooperate with DEP’s
recommended solution was inadmissible hearsay; and finding that only the ACE
could designate an area a wetland and had not done so here. Appellants also argue
that certain findings of fact were not supported by substantial evidence and,
therefore, could not support the trial court’s Order. Finally, Appellants contend the

29
trial court erred in sua sponte considering various legal issues in sustaining the POs,
such as Appellants’ failure to join DEP or seek mandamus or injunctive relief, and
Laskey’s settlement with Township’s insurer in the Trespass Action. Beyond not
being asserted in Township’s POs and, therefore, improperly raised sua sponte,
Appellants argue, these issues are not relevant to the condemnation proceeding
and/or that the other actions the trial court stated Appellants should have sought
could not have provided the relief Appellants seek in this proceeding.
Township does not appear to dispute that the trial court may have sua sponte
addressed certain legal issues but maintains no reversible error occurred because the
court was simply reviewing the evidence presented and issues developed at the
hearings to ensure a legally correct decision was made. It disagrees with the
assertion that Laskey’s settlement with Township’s insurer in the Trespass Action is
irrelevant because that settlement reflects Laskey’s attempt to recover multiple sets
of damages arising out of the same basic problem, the flooding of his property by
stormwater runoff. Township asserts the trial court did not err in concluding the
properties are not wetlands as they have not been designated as such by any entity,
including the ACE.

2. Analysis
Upon careful review of the parties’ arguments, the trial court’s Decree, and
the record, we conclude that none of the claimed errors or allegedly unsupported
findings of fact warrant reversal of the trial court’s Order. Any error the trial court
may have made in this regard did not affect the ultimate outcome of this matter, and
any findings of fact that were not supported by substantial evidence were not
necessary to the final decision. “It is axiomatic that we will not disturb a judgment,
order, or decree on appeal for harmless error.” Campbell v. Dep’t of Env’t Res., 396

30
A.2d 870, 870 (Pa. Cmwlth. 1979). An error is harmless if “it does not affect the
outcome of the appeal.” Weiler v. Stroud Twp. Zoning Hearing Bd., 300 A.3d 1121,
1131 (Pa. Cmwlth. 2023). See also Garner v. Pa. Hum. Rels. Comm’n, 16 A.3d
1189, 1200 (Pa. Cmwlth. 2011) (“[R]eversible error requires the determination ‘must
not only be erroneous, but also harmful or prejudicial to the complaining party.’ D.Z.
v. Bethlehem Area Sch[.] Dist[.], 2 A.3d 712, 726 (Pa. Cmwlth. 2010).”). Further,
“[i]t is well established within our jurisprudence that an unsupported finding of fact
which is not necessary to the adjudication merely constitutes harmless error.”
Borough of Schuylkill Haven v. Prevailing Wage Appeals Bd., 6 A.3d 580, 585 (Pa.
Cmwlth. 2010).

a. Laskey’s Trespass Action
We begin with Appellants’ claims about Laskey’s Trespass Action, the record
of which they argue should not have been incorporated by reference in this matter
and the settlement of which is not relevant to Appellants’ de facto condemnation
proceedings. While we agree with Appellants that the sua sponte incorporation of a
factual record from the Trespass Action into this de facto condemnation proceeding
was error, particularly when it occurred without the parties’ opportunity to object,
we disagree that this requires reversal. It is unclear what findings the trial court
made based on the incorporated evidence from that record, as our review of the trial
court’s findings reflects that they are premised on the evidence specifically presented
in the de facto proceedings. Further, to the extent it is argued that the Trespass Action
(and settlement thereof) is irrelevant, Laskey made it relevant when his counsel
specifically represented that Laskey’s condemnation claims were not based on
stormwater runoff from the baseball field and Ainsley Lane because those issues
were addressed in the Trespass Action. In fact, Laskey’s counsel asked the trial court

31
to take judicial notice of the Trespass Action during Owoc’s testimony. (R.R. at
822a.) Further, that separate action, or at least Laskey’s continued assertion of Texas
Eastern’s cross-claim for return of $50,000, is relevant to Township’s explanation as
to why it is not improving Ainsley Lane at this time. Accordingly, we discern no
reversible error on these bases.

b. Other legal actions and wetlands determination
To the extent that the trial court sua sponte referenced other legal actions
Appellants could have brought or parties Appellants could have joined, this, too, did
not affect the outcome of this matter. In sustaining the POs and dismissing the
Petitions, the trial court ultimately focused on Township’s actions or inactions and
whether that evidence supported the conclusion that no de facto condemnation
occurred. It concluded that the evidence did not, and as explained above, we see no
error in that determination. Appellants’ assertion of error based on the trial court’s
finding that only the ACE can delineate property wetlands fairs no better. Whether
the ACE, DEP, or a private consultant like Nelson or Gavaghan can delineate
property wetlands has no bearing on the ultimate conclusion that Appellants did not
prove that it was Township’s actions that created any such wetlands on Gallo’s and/or
Laskey’s properties.

c. Rejection of Owoc’s testimony
As for Owoc’s testimony about Township’s refusal to participate in DEP’s
plan, which Appellants argue, citing finding of fact 54, was impermissibly rejected
as being based on multiple levels of hearsay where no objection to that testimony
was made and other testimony corroborates Owoc’s testimony, we discern no
reversible error. Finding of fact 54 rejected Gallo’s proposed finding of fact that

32
“Owoc advised Laskey by telephone that [Township’s s]olicitor [] told [] DEP that
[Township] was not going to permit the pipe necessary to reopen the ditch . . . unless
Laskey dropped a lawsuit he had filed in 2011 against [Township] related to runoff
from Ainsley Lane.” (FOF ¶ 54.) The proposed finding of fact cited Laskey’s
testimony as to what Owoc told him the solicitor said, and not to Owoc’s testimony.
Unlike Owoc’s testimony, which was not subject to a hearsay objection, Township
did object to Laskey’s testimony on the basis that it was hearsay. (O.R. (Laskey),
Item 87 ¶ 220; R.R. at 831a-32a, 1965a-66a.) Notably, in response to the objection,
Laskey’s counsel responded it was not being offered for the truth of statement, yet
the proposed finding of fact did just that. (R.R. at 1965a-66a.) Even if Laskey’s
hearsay statements were corroborated (in their essence) by Owoc’s testimony that
Matthews told her this and were subject to an exception to the hearsay rule related
to a statement by a party-opponent, the trial court nonetheless rejected the premise
of the need for Township’s participation in this project, reasoning that the existing
culvert was of sufficient size and did not need to be replaced. Accordingly, any error
the trial court may have made in rejecting Gallo’s proposed finding of fact on the
basis of hearsay was harmless.

d. Challenged findings of fact
This leaves Appellants’ challenges to six findings of fact and the trial court’s
statement that Laskey’s claim was limited to downhill drainage issues, rather than
stormwater runoff from Ainsley Lane, the baseball field, and Texas Eastern, as being
unsupported by substantial evidence or irrelevant to the issues. With regard to the
challenge to the trial court’s statement as to the scope of Laskey’s condemnation
claim, (Decree at 2), Laskey specifically disclaimed the stormwater runoff from
Ainsley Lane and the baseball field as being a part of his de facto condemnation

33
claim, as discussed above. Similarly, Appellants challenge the trial court’s reference
to Laskey’s separate litigation and settlement thereof, (FOF ¶ 14), as being irrelevant
because it related to Laskey’s business property. But, as set forth above, Laskey
requested that the trial court take judicial notice of that case and that Laskey’s de
facto condemnation claim was not based on flooding issues that had been resolved
in that litigation.
Appellants’ remaining challenges are as follows. They argue that the letter
from the Redevelopment Authority advising Gallo of the wet conditions of the
property, (FOF ¶ 5), to show that Gallo was aware of the existing condition of the
property, which Gallo testified he never received, was not admitted into evidence,
although Appellants’ counsel acknowledged the existence of the letter. (R.R. at
1894a-95a.) However, any error in this regard was harmless because Gallo testified
independently that the price he paid for the property was reasonable because of the
low-lying nature of the property compared to the surrounding properties. (Id. at 72a-
74a.) Appellants next argue the trial court’s finding that there was a lack of credible
evidence that Township’s culvert, through which stormwater would drain as part of
the proposed solution, was insufficient, (FOF ¶ 47), where Owoc testified that the
proposed plan “required the resizing and replacement of the [Township] culvert,”
(Gallo’s Brief (Br.) at 59 (citing R.R. at 831a-32a); Laskey’s Br. at 61 (same)). A
review of Owoc’s testimony, however, was that it was “likely” that the culvert
needed to be enlarged, not that it had or was required to be enlarged. (R.R. at 831a.)
The challenged finding reflects that the trial court did not credit Owoc’s testimony
in this regard, and that determination was for the trial court, not this Court, to make.
Parkview Ct. Assocs. v. Delaware Cnty. Bd. of Assessment Appeals, 959 A.2d 515,
521 (Pa. Cmwlth. 2008).

34
 Appellants further challenge the trial court’s rejection of Gallo’s proposed
finding of fact that the Gallo and Laskey properties lay below Gist Run and,
therefore, water could not be discharged into it, on the basis that the actual elevations
of the properties as they relate to Gist Run were never provided, despite being
requested. (FOF ¶ 48.) Appellants argue the exact elevations were not required for
them to prove their case, Owoc testified that they were lower than Gist Run, and,
therefore, the fact that they were not established was irrelevant. Over testified that
knowing the elevations of the properties as they relate to Gist Run was important to
what solutions were available to resolve the issues and were not provided, (R.R. at
786a-91a), and the evidence reflects that the elevations of the properties changed
through manmade processes (such as Gallo adding fill to his property). Thus, we
discern no error in the trial court wanting more specificity in the evidence to support
Gallo’s proposed finding of fact. Moreover, as the trial court held, and we affirm,
that Appellants did not satisfy their heavy burden of proving that Township’s actions
constituted a de facto condemnation, the finding relating to a solution for the
flooding issue was not necessary to the trial court’s determination. This makes any
lack of record support for that finding harmless error. Borough of Schuylkill Haven,
6 A.3d at 585.
The last two challenged findings of fact relate to Township’s actions in regard
to improving Ainsley Lane. Appellants challenge the trial court’s findings that
Township was justified in not paving Ainsley Lane and installing the drainage pipe
on Laskey’s property pending resolution of ongoing litigation and that Laskey
refused to provide an easement for Township to accomplish the latter task. (FOF
¶¶ 58, 60.) On the latter point, Appellants cite Laskey’s testimony that he was not
asked for an easement and was only offered money to put in the pipe himself. (R.R.

35
at 2130a, 2392a-93a.) Matthews testified that Township offered to put the drain in
for Laskey, and “[Laskey] denied having anything to do with it” and denied the
money to install the drain himself. (Id. at 924a.) Thus, while the trial court’s
characterization of Laskey’s refusal as the denial of an “easement” may have been
inaccurate, the finding that Laskey refused to allow Township to install the drain on
his property is supported by Matthews’ testimony. As for Township’s actions being
“justified,” we discern no error in the trial court’s finding where the testimony
established that Township was not refusing to perform the work at all but was
waiting for the outcome of the ongoing litigation, which related to the $50,000
payment from Texas Eastern, and there was a concern about paving the road
increasing the impervious surfaces over which stormwater runoff would flow.
For the foregoing reasons, the trial court did not commit any other legal errors
that require reversal of its Order. Further, upon our review of the record, the
challenged findings of fact are either supported by substantial evidence or, if not,
were not necessary to the ultimate determination in this case, making any error
harmless.11

11
On February 1, 2024, Township filed a “Motion to Amend Reply Brief” (Motion to
Amend), seeking to advise the Court that Gallo’s estate had sold the property in two parts: a 10.15-
acre parcel at the rear of the property to Holt for $325,000; and a 2-acre parcel on which Gallo’s
business facilities are located to a third party, which is owned by Gallo’s brother, for $40,000.
(Motion to Amend at 3-4.) Although not stated expressly in the Motion to Amend, Township
appeared to be asserting that the Gallo case is now moot, but at oral argument, Township
represented that this information went to the credibility of Gallo’s testimony regarding the
property’s lack of value due to the flooding. While we grant the Motion to Amend, the information
provided does not affect this appeal. As for Township’s argument regarding Gallo’s credibility,
questions of credibility are for the trial court as factfinder, and not for this Court. DeLuca, 166
A.3d at 560 n.8. More importantly, as to an implied assertion that the Gallo petition is moot,
because “[t]he right to [] damages [resulting from a governmental taking] is personal, belonging
to the owners of the land when the entry and injury takes place, and the damage[s] do not run with
the land nor pass by a subsequent conveyance[,]” the conveyance of the property does not affect
(Footnote continued on next page…)
36
III. CONCLUSION
It is undisputed that stormwater runoff flows from numerous properties within
the MBIP onto the lowest properties in the MBIP, which are Gallo’s and Laskey’s
properties. It is further undisputed that something occurred to the drainage swale or
ditch on Gallo’s, Holt’s, and DMC’s properties to block Gallo’s property from
draining, as it once did, into Gist Run. Appellants have chosen to assert that
Township is liable for the damages caused by these facts, but in doing so, they bore
a heavy burden of proving a de facto condemnation. The trial court concluded, based
on the evidence and arguments submitted, that Appellants failed to satisfy that heavy
burden. For the reasons set forth supra, we discern no reversible error or abuse of
discretion in the trial court’s conclusions. Accordingly, we affirm the trial court’s
Order sustaining Township’s POs and dismissing Appellants’ Petitions.

__________________________________________
RENÉE COHN JUBELIRER, President Judge

Gallo’s personal claim for damages arising from the alleged de facto condemnation. Kaufmann v.
City of Pittsburgh, 93 A. 779, 780-81 (Pa. 1915). See also Synes Appeal, 164 A.2d 221, 223 (Pa.
1960) (same) (quoting Kaufmann); Palm Corp. v. Dep’t of Transp., 688 A.2d 251, 254 (Pa.
Cmwlth. 1997) (same) (citing Synes Appeal); Florek v. Dep’t of Transp., 493 A.2d 133, 136 (Pa.
Cmwlth. 1985) (same) (citing Synes Appeal).
37
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald L. Gallo : CASES CONSOLIDATED
:
v. : No. 131 C.D. 2022
:
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Stephen R. Laskey :
:
v. :
:
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Appeal of: Cindy Lou Gallo and the :
Estate of Ronald Leo Gallo :

Ronald L. Gallo :
:
v. : No. 132 C.D. 2022
:
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Stephen R. Laskey :
:
v. :
:
North Union Township and :
Redevelopment Authority of the :
County of Fayette :
:
Appeal of: Natalie R. Laskey and the :
Estate of Stephen R. Laskey :
 ORDER

NOW, March 15, 2024, the Order of the Court of Common Pleas of Fayette
County, entered in the above-captioned matters, is hereby AFFIRMED.
Additionally, North Union Township’s “Motion to Amend Reply Brief” is
GRANTED.

__________________________________________
RENÉE COHN JUBELIRER, President Judge