The following are recent Pennsylvania appellate court cases of note to real estate law practitioners.

• In re Condemnation by the Franklin Township Sewage Authority, 1237 C.D. 2019 (2019), the Pennsylvania Commonwealth Court held that sewage overflows from a public sewage treatment facility onto private lands did not constitute a de facto taking.

William Ott was the owner of a commercial rental property that was serviced by the Franklin Township Sewage Authority. The sewage system at issue was more than 50 years old, and was constructed of terra cotta pipes, which had begun to deteriorate over time. As a result, stormwater, tree roots and other matter began to infiltrate the system. Further complicating the situation was the fact that many property owners whose lands were serviced by the system had improperly connected their stormwater pipes into the system, thereby further increasing the amount of water directed into the already compromised pipes. While the authority was aware of the problems facing the system, repeatedly inspected the system and took steps to disconnect the unauthorized connections, a total upgrade of the system was cost-prohibitive.

Starting in the early 2000s, the property began to experience sewage backups into its basement. Despite the authority's undertaking numerous efforts to prevent any further infiltration, similar backups continued for the next decade. Finally, in 2012, the authority installed a high-grade check valve, which was successful in preventing further sewage infiltration into the basement. However, sewage sludge continued to collect in a retention pond that had been constructed on the property. In 2007, Ott filed a petition for appointment of a board of viewers asserting a de facto taking of the property. In response, the authority filed preliminary objections, asserting that the overflows were the direct result of the unauthorized diversion of stormwater into the sewer system, not an exercise of eminent domain. The trial court sustained the preliminary objections and dismissed the petition with prejudice. On appeal, our Commonwealth Court affirmed concluding that, since the overflows were not the result of any intentional conduct on the authority's part, no de facto taking had occurred.

• In Baribault v. Zoning Hearing Board of Haverford Township, 1211 C.D. 2019 (2020), the Commonwealth Court held that a township board of commissioners' failure to comply with the Sunshine Act did not nullify a settlement agreement that had been entered into with a landowner in a pending zoning appeal.

Scott and Joan Baribault were the owners of five residential properties in Haverford Township Delaware County, Pennsylvania. The Baribaults had used the properties as rentals for college students until being issued a cease and desist order by the township's zoning hearing officer in 1993. Immediately thereafter, the Baribaults filed separate land use appeals for each of the properties, asserting their right to continue renting them to students as nonconforming preexisting use. The township's zoning hearing board denied the appeals, and the Baribaults appealed to the Delaware County Common Pleas Court, which stayed the imposition of all fines during the pendency of the action.