In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-Of-Way for State Route 2001, Section 013, in the Township of North Cornwall

In Re: Condemnation by the Commonwealth of Pennsylvania, Department of Transportation, of Right-Of-Way for State Route 2001, Section 013, in the Township of North Cornwall

 

Civil Action-Property Law-Constitutional Law-Eminent Domain-Condemnation-School District Owned-Transportation Purposes-Deed Restriction-Property Use-Preliminary Objections-Burden of Proof-Excessive-Unnecessary-Improperly Designed-Requirement of Security-Bad Faith

 

The Commonwealth of Pennsylvania Department of Transportation (“DOT”) filed a Declaration of Taking regarding property owned by the Lebanon School District for transportation purposes to ease traffic congestion in the area.  The land is part of a tract that was conveyed to the Lebanon School District by Deed requiring that the real estate was to be used only for “school educational purposes” with heirs or assigns given the right to re-enter the real estate and repossess themselves of the interest in the event the real estate were not used for “school educational purposes.”  The Lebanon School District filed Preliminary Objections to the Declaration of Taking, asserting that it does not consent to the taking and has been notified by the heirs of the conveyor of the real estate through the Deed that they intend to take action to reclaim the real estate if it is not used for “school educational purposes.”  The Lebanon School District asserts that the condemnation is an excessive taking under the circumstances with an alternate design that could be used for the project that would not entail condemnation of the real estate.  The Lebanon School District asserts that the DOT failed to post security for the condemnation and is acting in bad faith.

 

1. In eminent domain proceedings, preliminary objections are the sole method by which a condemnee may challenge the declaration of a taking and are intended as a procedure to resolve expeditiously the factual and legal challenges to a declaration of taking before the parties proceed to determine damages.

 

2. Where there are no disputed facts and the issues before the court purely are legal, the court may rule on the preliminary objections without a hearing.

 

3. Under Title 71 P.S. § 513(e)(1), the DOT has the authority to acquire privately owned land for transportation purposes.

 

4. “Condemn” is defined by the Eminent Domain Code at Title 26 Pa.C.S. § 103 as taking, injuring or destroying property by authority of law for a public purpose.

 

5. A taking occurs when the entity clothed with the power of eminent domain substantially deprives the owner of use and enjoyment of the property.

 

6. The condemnee bears a heavy burden of proof when challenging a declaration of taking upon the basis that the taking was excessive, unnecessary and improperly designed.

 

7. The only limitation of an exercise of the condemnor’s power is that it may not appropriate more land than reasonably is required for the contemplated purpose.

 

8. The quantum of land to be acquired is a matter within the condemnor’s discretion within reasonable limitations.

 

9. Final engineering design decisions fall within the full discretion of the Secretary of the DOT.

 

10. The existence of an alternate design does not render a proposed taking arbitrary or capricious.

 

11. The court does not have the power to substitute its judgment for that of the Secretary of the DOT or to correct mistaken judgment.

 

12. In light of the fact that no facts have been pled establishing that the condemnation of the small portion of real estate is excessive in light of the scope of the project and the public benefit to the surrounding area, the Court has no discretion to pass judgment on the viability of any alternate plan and the reclamation of the deeded property is unlikely since the Lebanon School District never ceased to use the property for school educational purposes and instead is losing the real estate through no action of its own, the Lebanon School District has failed to establish that the taking is excessive, unnecessary and improperly designed.

 

13. In order to effectuate a condemnation, a condemnor is required to file security with the declaration of taking in the form of a bond.

 

14. Where the condemnor has the power of taxation, no bond is required, as the funds raised through taxes are deemed to be pledged and are made security for the damages that are determined to be due to the condemnee.

 

15. Since the DOT is an agency of the Commonwealth of Pennsylvania and backed by its power of taxation, it is not required to post bond.

 

16. When a taking is proposed, the condemnor must act properly, and its actions cannot be motivated by fraud, collusion, arbitrariness or bad faith.

 

17. The court is to presume that a condemnor performed its duties in good faith.

 

18. A condemnee bears a heavy burden to rebut the presumption that a condemnor performed its duties in good faith and must show that the condemnor acted in a fraudulent manner or its actions were based upon private motives inconsistent with the public welfare.

 

19. The Lebanon School District avers no facts indicating that the DOT is motivated by any private interest or with intent to deprive it of its real estate beyond the small amount of acreage necessary for the project.

 

L.C.C.C.P. No. 2022-01171, Opinion by John C. Tylwalk, President Judge, December 14, 2022.

 

 

 

 

 

IN THE COURT OF COMMON PLES OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

IN RE:  CONDEMNATION BY THE    :      NO. 2022-01171

COMMONWEALTH OF PENNSYLVANIA, :

DEPARTMENT OF TRANSPORTATION,    :

OF RIGHT-OF-WAY FOR STATE ROUTE            :

2001, SECTION 013, IN THE TOWNSHIP  :

OF NORTH CORNWALL                              :

:

LEBANON SCHOOL DISTRICT,                  :

Condemnee              :

1.     :

:

COMMONWEALTH OF PENNSYLVANIA,  :

DEPARTMENT OF TRANSPORTATION,     :

Condemnor                :

 

ORDER OF COURT

 

AND NOW, this 14^th day of December, 2022, upon consideration of the Preliminary Objections of Condemnee Lebanon School District to Condemnor’s Declaration of Taking, the response and Motion to Dismiss Preliminary Objections of Condemnor Commonwealth of Pennsylvania, Department of Transportation, and after conference with Counsel, it is hereby Ordered as follows:

1. Condemnee’s Preliminary Objections are OVERRULED;
2. Condemnor’s Motion to Dismiss Preliminary Objections is DISMISSED AS MOOT.

BY THE COURT:

 

____________________________, P.J.

JCT/jah

Cc:  Justin J. Pike, Esquire/PennDOT OCC/P.O. Box 8212/Harrisburg, PA  17105-

          8212

       Michael S. Bechtold, Esquire/Buzgon Davis Law Offices

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLES OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

IN RE:  CONDEMNATION BY THE    :      NO. 2022-01171

COMMONWEALTH OF PENNSYLVANIA, :

DEPARTMENT OF TRANSPORTATION,    :

OF RIGHT-OF-WAY FOR STATE ROUTE            :

2001, SECTION 013, IN THE TOWNSHIP  :

OF NORTH CORNWALL                              :

:

LEBANON SCHOOL DISTRICT,                  :

Condemnee              :

1.     :

:

COMMONWEALTH OF PENNSYLVANIA,  :

DEPARTMENT OF TRANSPORTATION,     :

Condemnor                :

 

APPEARANCES:

 

JUSTIN J. PIKE, ESQUIRE                               FOR CONDEMNOR

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF TRANSPORTATION

 

MICHAEL S. BECHTOLD, ESQUIRE             FOR CONDEMNEE

BUZGON DAVIS LAW OFFICES

 

OPINION, TYLWALK, P.J.,  DECEMBER 14, 2022.

 

On September 20, 2022, the Commonwealth of Pennsylvania, Department of Transportation (“Condemnor”) filed a Declaration of Taking regarding 0.121 acres of property (along with a 0.135-acre temporary construction easement) owned by the Lebanon School District (“Condemnee”) along Wilhelm Avenue in North Cornwall Township.  The Declaration states that the land is necessary for transportation purposes.   As indicated by the project plans, Condemnor will move the intersection of Wilhelm Avenue and Cornwall Road in an effort to ease traffic congestion in the area.  Condemnor indicates that it attempted to purchase the land from Condemnee, but Condemnee refused the sale.

The land is part of a 20.266 acre-tract which was conveyed to Condemnee by Lena A. Gaidos, who is now deceased, by Deed dated June 6, 2005.  (Exhibit “B” to Preliminary Objections)  The Deed included the restriction that the real estate was to be used only for “school educational purposes.”  The Deed contained the following provision:

In the event that the Grantee, its successors or assigns, shall at any time cease to use the said real estate for school educational purposes, or should use or allow others to use the real estate, or any part thereof, for residential, commercial, or industrial use, then the Grantor, her heirs or assigns, shall have the right, upon providing one year’s written notice, to re-enter upon the said real estate and repossess herself or themselves thereof, as her or their first and former estate therein for the consideration of One ($1.00) Dollar, and upon such re-entry, legal title to the real estate shall revert to the Grantor, her heirs or assigns.  The right of re-entry shall cease and terminate twenty (20) years from the date of this Deed, after which the Grantee, and its successors and assigns, shall have a fee simple interest in the real estate.

 

(Exhibit “B” to Preliminary Objections)

 

On October 20, 2022, Condemnee filed Preliminary Objections  to the Declaration of Taking.  In the Preliminary Objections, Condemnee avers that the land is being used for school educational purposes, that it does not consent to the taking, and that it has been notified by the heirs of Lena A. Gaidos that they intend to take legal action to reclaim the remaining portion of the 20.266-acre tract because the 0.121 acres will be taken by Condemnor. Condemnee charges that the condemnation of the 0.121 acres by Condemnor is an excessive taking under these circumstances, that an alternate design could be used for the project which would not entail the condemnation of Condemnee’s property, that Condemnor has failed to provide sufficient security, and that Condemnor is acting in bad faith in taking this land when it will lead to Condemnee losing the remainder of the 20.266 acres conveyed by the Deed.

On November 14, 2022, Condemnor filed a Motion to Dismiss and a response to the Preliminary Objections.  Condemnor argues that there is no statutory limitation on its power to condemn property owned by a school district which is subject to a deed restriction, that the land is necessary for improvements in the roadways near the school, that the amount of land involved in the taking is not excessive for the project, that it is not required to post security, and denying that this action is taken in bad faith.

Preliminary objections in eminent domain proceedings are different from those in other proceedings; preliminary objections are the sole method by which a condemnee may challenge the declaration of taking. In re Condemnation Proceeding by South Whitehall Tp. Authority, 940 A.2d 624 (Pa. Commw. 2008).   In eminent domain cases, preliminary objections are intended as a procedure to resolve expeditiously the factual and legal challenges to a declaration of taking before the parties proceed to determine damages. Township of Millcreek v. Angela Cres Trust of June 25, 1998, 142 A.3d 948 (Pa. Commw. 2016), reargument denied, appeal denied 166 A.3d 1236 (Pa. 2017).      Issues of the scope or validity of the taking are properly asserted by preliminary objection. Carr v. Philadelphia Elec. Co., 287 A.2d 917 (Pa. Commw. 1972).

Section 406 of the Eminent Domain Code provides, in part:

• 306. Preliminary Objections

(a) Filing and exclusive method of challenging certain matters.–

 

(3) Preliminary objections shall be limited to and shall be the exclusive method of challenging:

(i) The power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated.

(ii) The sufficiency of the security.

(iii) The declaration of taking.

(iv) Any other procedure followed by the condemnor.

 

(e) The court shall determine promptly all preliminary objections and make such preliminary and final orders and decrees as justice shall require, including the revesting of title…. If an issue of fact is raised the court shall take evidence by depositions or otherwise.

 

26 Pa.C.S.A. §306(a)(3), (f).  Where there are no disputed facts, and the issues before the court are purely legal, the court may rule on the preliminary objection without a hearing.  Miller v. Dept. of Transportation, 498 A.2d 1370, 1372-1373 (Pa. Commw. 1985).

On December 6, 2022, we conducted a conference with Counsel regarding the Preliminary Objections and the Motion to Dismiss.  After conferring with Counsel, it is apparent to the Court that the facts underlying this matter are undisputed.  Therefore, no evidentiary hearing is necessary for our resolution of the matters raised in the Preliminary Objections.

Condemnor’s Power to Condemn – Excessive Taking/Availability of

                Alternate Design

 

The Department of Transportation has the authority to acquire, by condemnation, privately-owned land for transportation purposes pursuant to the Administrative Code, at 71 P.S. §513(e)(1).  Under the Eminent Domain Code, “condemn” is defined as “[t]o take, injure or destroy property by authority of law for a public purpose. 26 Pa.C.S.A. 103.  A “taking” occurs “when the entity clothed with power of eminent domain substantially deprives owner of use and enjoyment of his property.”  26 Pa.C.S.A. §103.

The Condemnee bears a heavy burden of proof when challenging a declaration of taking upon the basis that the taking was excessive, unnecessary and that the project was improperly designed.  Appeal of Mary H. Waite, 641 A.2d 25, 28 (Pa. Commw. 1994).  The only limitation of the exercise of a condemnor’s power is that it may not appropriate more land than is reasonably required for the contemplated purpose.  Id.  The quantum of land to be acquired is, within reasonable limitations, a matter within the condemnor’s discretion. Id. When an interest in property is obtained through eminent domain, the extent of the taking is determined by examining the resolution of the condemnation, the declaration of taking and the plans attached thereto in conjunction with relevant statutes.  In re Condemnation Proceeding by South Whitehall Tp. Authority, 940 A.2d 624 (Pa. Commw. 2008).

Final engineering design decisions are in the full discretion of the Secretary of the Department of Transportation.  In re Carnegie Natural Gas Company, 629 A.2d 256, 258 (Pa. Commw. 1993).  The existence of an alternative does not render a proposed taking arbitrary or capricious.  Id.  The judiciary does not have the power to substitute its judgment for that of the Secretary of the Department of Transportation nor to correct mistaken judgments.  Washington Park, Inc. Appeal, 229 A.2d 1, 5(Pa. 1967).

These Preliminary Objections are overruled.  Condemnee pleads no facts in it is Preliminary Objections to support its position that condemnation of the 0.121 acres is excessive.  A review of the project plans reveals that this small amount of land is relatively minor in light of the scope of this project and the public benefit it will have on the area immediately surrounding the school.  Condemnee likewise presents no facts in support of its statement that a viable alternative to the project exists which would eliminate the need for Condemnor’s acquisition of the 0.121 acres at issue here.  Even if Condemnee had identified an alternate plan, this Court is not authorized to substitute our judgment for that of the Secretary of Transportation.

We understand Condemnee’s concern with the potential effect that the taking of this small amount of land may have on its ownership of the remainder of the 20.266 acres due to the intentions of Lena A. Gaidos’ heirs to reclaim the remainder of the tract.  However, we believe this result would be unlikely based upon our review of the language of the Deed and the circumstances of this taking.

Condemnee has never “ceased” to use the property, even the portion sought to be taken by Condemnor, for school educational purposes and does not do so on its own accord. The land was continuously used by Condemnee for the benefit of Condemnee’s students.  This is not a sale or voluntary transfer of the property. The filing of a declaration of taking is the formal process by which a condemnor acquires property without the consent of a condemnee.  See In re Stormwater Management Easements, 829 A.2d 1235, 1237 (Pa. Commw. 2003).   Condemnee has refused to sell the land to Condemnor and is not using or allowing others to use any of the land included in the 2005 conveyance for “residential, commercial, or industrial use.”  The land will be used for a specific public need – the relocation of an intersection for transportation purposes which will ultimately benefit the school as well as the general public, not for any purpose prohibited by the Deed.  Condemnee will be deprived of this small portion of the property due to this condemnation; however, there is no indication that Condemnee will cease to use the remainder of the 20.266-acre tract for school educational purposes or will use or allow it to be used for residential, commercial or industrial purposes as a result of this condemnation.

Sufficient Security

Condemnee next contends that Condemnor has failed to file sufficient security because Condemnee may lose the entire 20-acre tract of land due to the taking of the 0.121-acre portion.   Generally, in order to effect condemnation, condemnors are required to file security with the declaration of taking in the form of a bond.  26 Pa.C.S.A. §303(a).  However, where a condemnor has the power of taxation, no bond is required as the funds raised through taxes are deemed to be pledged to and are made security for the damages which are determined to be due the condemnee.  26 Pa.C.S.A. §303(b)(2).  Upon preliminary objections, the court may require the condemnor to give bond and security if it appears that the bond or power of taxation of the condemnor is insufficient security. 26 Pa.C.S.A. §303(c).

In this matter, Condemnor is an agency of the Commonwealth and is backed by the Commonwealth’s power of taxation.  Therefore, it is not required to post security.  Condemnee fails to assert any factual averments to indicate that this taxing power is inadequate security for any damages which might be determined.  Therefore, we will overrule this Preliminary Objection.

Bad Faith

Condemnee argues that Condemnor acted in bad faith by pursuing the Declaration of Taking knowing that condemnation of a portion of Condemnee’s land may result in Condemnee losing the remainder of the 20.266-acre tract of land as well.   When a taking is proposed, the party requesting the taking must act properly and its actions cannot be motivated by fraud, collusion, arbitrariness or bad faith.  See In re Condemnation of Real Estate by Borough of Ashland, 851 A.2d 996 (Pa. Comme. 2004).  The courts are to presume that a condemnor has performed its duties in good faith.  Simco Stores v. Redevelopment Authority of Philadelphia, 317 A.2d 610, 613 (Pa. 1974).  A condemnee bears a heavy burden to rebut the presumption that a condemnor performed its dutes in good faith and must show that the condemnor acted in a fraudulent manner or that their actions were based upon private motives inconsistent with the public welfare.  Washington Park, Inc. Appeal,  229 A.2d 1 at 5.  All private contracts are subordinate to the exercise of the power of eminent domain and private matters pertaining to land subject to condemnation have no effect on a condemnor’s right to exercise that power for transportation purposes.  Brown v. Corey, 43 Pa. 495, (Pa. 1863); Kemble v. Philadelphia, Germantown & Norristown R.R. Co., 21 A. 225 (Pa. 1891); Arnold v. Buffalo, Rochester & Pittsburg Ry. Co., 32 Pa.Super. 452 (1907).

Condemnee fails to set forth any facts to support its argument that Condemnor’s taking is excessive or taken in bad faith.  Neither the Administrative Code nor the Eminent Domain Code contain any prohibition against Condemnor’s acquisition, by condemnation, of lands belonging to a school district.  The fact that the Deed for this property contained a restriction on the use of the property and a reversionary clause has no effect on Condemnor’s authority to exercise its power.  Condemnee avers no facts to indicate that Condemnor is motivated by any private interest or with the intent of depriving Condemnee of any portion of its land beyond the small amount of acreage necessary for this project.

For these reasons, we will overrule these Preliminary Objections.  Based on our decision on the Preliminary Objections, the Motion to Dismiss is rendered moot.