In Re: Condemnation by Newtown Twp. ~ Appeal of: D. Rafferty ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Condemnation by Newtown Township :
Delaware County, Municipal Authority, of :
a Permanent Easement Across the Property :
located at 4700 W. Chester Pike, Newtown :
Township, Delaware County, PA :
: No. 752 C.D. 2022
Folio Number: 30-00-02906-01 : Argued: November 14, 2022
Tax Map Number: 30-34-001-00 :
:
Dorothy Rafferty, Condemnee :
:
Newtown Township, Delaware County, :
Municipal Authority, Condemnor :
:
Appeal of: Dorothy Rafferty :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge (P.)
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 28, 2022
Dorothy Rafferty (Condemnee) appeals the May 18, 2022 opinion and
order of the Delaware County Court of Common Pleas (trial court) making findings
of fact and conclusions of law overruling each of Condemnee’s preliminary
objections to the Declaration of Taking filed by the Newtown Township (Township),
Delaware County (County), Municipal Authority (Authority) condemning an
easement over a portion of Condemnee’s five-acre property pursuant to the Eminent
Domain Code (Code), 26 Pa. C.S. §§101-1106.1 We affirm.
1
Section 306(a)(3) of the Code provides:
(Footnote continued on next page…)
I.
The trial court’s findings of fact and the facts of record may be
summarized as follows. In 2012, the Authority initiated a project known as the
Upper Crum Creek Watershed Project (Project) to expand the then-existing sanitary
sewer system for the Township, including many homes that had failing onsite
sewage systems. The Project implements the Authority’s plan under the
Pennsylvania Sewage Facilities Act2 (Act 537 Plan) including borrowing funds and
obtaining access to, and the use of, property to implement the Project. Specifically,
the Project involved the Authority securing access easements for the placement of
underground sanitary sewers and a means by which utilities may service pump
stations including a station on property adjacent to Condemnee’s property that is
owned by Newtown Village LLC (Newtown Village Property). The Project’s
completion will enable approximately 200 Township households and businesses to
connect to a public sewer. The pump station on the Newtown Village Property is
(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.
26 Pa. C.S. §306(a)(3).
2
Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §§750.1 -750.20a.
2
currently inoperative because an easement to construct an access road to reach the
station is required.
On August 6, 2018, the Authority approved a resolution (2018
Resolution) authorizing the Authority to file a Declaration of Taking regarding
properties in connection with the Project.3 In November 2018, the Authority
borrowed approximately $33.5 million dollars to support the Project. The Authority
also obtained all of the necessary permits for the Project, bid the Project, and
executed a number of contracts to start construction.
After completing these steps, between November 2018 and June 2020,
the Authority reviewed its original plans to construct the access road and considered
making changes based on a request from the owner of the Newtown Village
Property. It evaluated several different alternatives for the location of the access
road, including placing it over a small portion of Condemnee’s five-acre property at
4700 West Chester Pike, Newtown Township, on which Rafferty Subaru is located.
After considering its options for over a year, the Authority ultimately chose an
amended plan that did not change the ultimate location of the pump station on the
Newtown Village Property, which still needed to be accessed for servicing in
connection with the Project. However, the amended plan required a 20-foot wide
and 165-foot long permanent easement over an undeveloped corner of Condemnee’s
property located behind a retaining wall that she had previously constructed, and
then running along the rear portion of her property behind the retaining wall. The
3
See Section 5607(d)(15) of the Municipal Authorities Act (Act), 52 Pa. C.S. §5607(d)(15)
(“Every authority may exercise all powers necessary or convenient for the carrying out of the
purposes set forth in this section, including, but without limiting the generality of the foregoing,
the following rights and powers: . . . To have the power of eminent domain.”).
3
Authority attempted to negotiate an easement with Condemnee, through her son and
her attorneys acting on her behalf, but the negotiations proved unsuccessful.
Accordingly, on September 8, 2020, the Authority approved a
resolution (2020 Resolution) amending the 2018 Resolution that added an additional
property to the set of real properties to be taken that were necessary for the Project
including the portion of Condemnee’s property. As part of the 2020 Resolution, the
Authority ratified and confirmed not only all of the terms and conditions of the 2018
Resolution, but also the terms and conditions of the open-ended bond without
security for the Project.
On September 15, 2020, the Authority filed a Declaration of Taking in
the trial court seeking to condemn a permanent easement over the small undeveloped
portion of Condemnee’s property. On October 16, 2020, the Authority provided
Condemnee with a letter offering just compensation totaling $8,750 for the
permanent easement on her property.
The Authority maintains readily accessible funds to pay for any
expenses related to the Project, including the estimated just compensation offer to
Condemnee or any award to Condemnee from a Board of View. These funds include
an uncommitted $325,000 balance from the remaining $825,000 bond fund, from
the $33.5 million that the Authority initially borrowed for the Project, and Authority-
generated revenue from various fees. The Authority’s 2019 and 2020 financial
statements show cash and cash equivalents of $17 to $24 million and incoming rents
and fees of approximately $5 million. The Authority anticipates receiving
approximately $2 million from new tapping fees once the pump station on the
Newtown Village Property planned by the Project and serviced by the access road
becomes operational.
4
On October 16, 2020, Condemnee filed preliminary objections to the
Declaration of Taking challenging the condemnation on four bases: (1) the
Declaration of Taking is untimely under Section 302(e) of the Code4; (2) the taking
is excessive and an abuse of discretion; (3) the Authority has not provided a
sufficiently specific description of the property condemned as required by Section
302(b) of the Code5; and (4) the bond in connection with the taking is insufficient
under Section 303 of the Code.6
4
26 Pa. C.S. §302(e). Section 302(e) states: “Filing.--The condemnor shall file within
one year of the action authorizing the declaration of taking a declaration of taking covering all
properties included in the authorization not otherwise acquired by the condemnor within this time.”
5
26 Pa. C.S. §302(b)(5). Section 302(b)(5) of the Code states:
(b) Contents.--The declaration of taking shall be in writing and
executed by the condemnor and shall be captioned as a proceeding
in rem and contain the following:
***
(5) A description of the property condemned, sufficient for
identification, specifying the municipal corporation and the county
or counties where the property taken is located, a reference to the
place of recording in the office of the recorder of deeds of plans
showing the property condemned or a statement that plans showing
the property condemned are on the same day being lodged for record
or filed in the office of the recorder of deeds in the county in
accordance with section 304 (relating to recording notice of
condemnation).
In addition, Section 302(b)(6) of the Code requires the Declaration of Taking to include “[a]
statement of the nature of the title acquired.” 26 Pa. C.S. §302(b)(6). Moreover, Section 305(c)(8)
states the notice to a condemnee, provided after the filing of the Declaration of Taking, must
include, inter alia, “a reasonable identification of the property” that was taken. 26 Pa. C.S.
§305(c)(8).
6
26 Pa. C.S. §303. Section 303(a) and (c) of the Code states:
(Footnote continued on next page…)
5
Prior to hearing on the objections, Condemnee sought to compel the
Authority to engage in discovery under the Pennsylvania Rules of Civil Procedure.
On April 8, 2021, the Authority filed a Motion for Protective Order to limit the
discovery to only documents relating to the preliminary objections. See Reproduced
Record (RR) at 173a-209a. The next day, the Authority filed a Motion in Limine
identifying the evidence that the Authority sought to introduce at the hearing and
sought an order from the court precluding Condemnee from offering any additional
evidence. See id. at 215a-222a. Condemnee filed responses in opposition to both of
the Authority’s motions. See id. at 223a-233a. On July 15, 2021, the trial court
issued orders granting in part, and denying in part, the Authority’s motions. See id.
at 234a-240a.
On August 2, 2021, the Authority and Condemnee filed their witness
lists with the court. On November 15, 2021, the Authority filed another Motion in
Limine in the trial court objecting, inter alia, to the proposed testimony of Claude
DeBotton, the principal for Newtown Village LLC. See RR at 263a-64a. As
recounted by the Authority, Condemnee sought to introduce his testimony regarding
(a) Bond.-- . . . [E]very condemnor shall give security to effect the
condemnation by filing with the declaration of taking its bond,
without surety, to the Commonwealth for the use of the owner of
the property interests condemned, the condition of which shall be
that the condemnor shall pay the damages determined by law.
***
(c) Insufficient security.--The court, upon preliminary objections
of the condemnee under and within the time set forth in section
306(a) (relating to preliminary objections), may require the
condemnor to give bond and security as the court deems proper if it
appears to the court that the bond or power of taxation of the
condemnor is insufficient security.
6
the plan for the access road in the prior condemnation plan and why the Authority
proposed moving the road onto Condemnee’s property. See id. at 263a.
On November 30, 2021, without a response from Condemnee,7 the trial
court granted in part, and denied in part, the Authority’s motion. See id. at 302a-
10a. Specifically, the trial court struck DeBotton from Condemnee’s witness list
and excluded his testimony from the hearing. Id. at 309a.8 On December 3, 2021,
the trial court denied Condemnee’s motion for reconsideration. Id. at 921a-24a.
7
In this regard, the trial court observed:
The [c]ourt recognizes that on November 22, 2021, the [Authority]
requested an opportunity to be heard on a telephone conference.
The [c]ourt exercised its discretion that it did not need a conference
to hear from the moving party. Indeed, at no time between
November 15th, when the Motion in Limine was filed, and the filing
of the Condemnee’s instant Motion [for Reconsideration], did the
Condemnee request a conference or, as noted above, decide that she
ought to file a response to the Motion in Limine promptly in light of
the upcoming hearing.
RR at 922a n.1 (emphasis in original).
8
With respect to DeBotton’s testimony, the trial court explained:
[T]he [c]ourt finds that such testimony does not appear to relate to
whether the taking at issue (with respect to [Condemnee’s]
property) is excessive and an abuse of discretion, or whether the
bond in connection with the contemplated taking is insufficient. By
[Condemnee’s] own description of [De]Botton’s proposed
testimony, this witness owns land adjacent to Condemnee’s
property who has approved construction of an access road on his
property previously. In contrast, Condemnee, by her objections to
the taking at issue, does not approve construction of the access road
on her property. [De]Botton’s proposed testimony simply does not
appear to help the [c]ourt resolve the Condemnee’s objections in
this case, which pertain to the taking of her property. There is also
no suggestion in [Condemnee’s] description of who [De]Botton is
(Footnote continued on next page…)
7
On December 6, 2021, the trial court conducted a hearing on
Condemnee’s preliminary objections. See RR at 320a-621a. Both Condemnee and
Condemnor presented testimony and exhibits in support of their respective positions.
See id. On May 18, 2022, the trial court issued the instant opinion and order making
findings of fact and conclusions of law overruling each of Condemnee’s preliminary
objections to the Declaration of Taking filed by the Authority. Condemnee then
filed the instant appeal of the trial court’s opinion and order.9
II.
On appeal, Condemnee first claims that the trial court erred in finding
that the taking was not excessive or an abuse of discretion.10 She claims that the
that would suggest he has any connection to the [Authority] that
would allow him to provide credible information as to “why the
[Authority] proposed to move the access road onto [Condemnee’s]
property”; indeed, multiple [Authority] witnesses who would have
a basis to testify about the reasons for the [Authority’s] actions are
identified on both [the Condemnee’s] and the [Authority’s] witness
lists.
RR at 306a-07a (emphasis in original).
9
“Our review of a trial court’s decision to sustain or overrule preliminary objections to a
declaration of taking in an eminent domain case is limited to determining whether the trial court
abused its discretion or committed an error of law.” Beaver Falls Municipal Authority ex rel.
Penndale Water Line Extension v. Beaver Falls Municipal Authority, 960 A.2d 933, 936 (Pa.
Cmwlth. 2008) (Beaver Falls Municipal Authority).
10
As this Court has explained:
The burden of establishing fraud, collusion, arbitrariness, bad faith,
or an abuse of power or discretion rests with the condemnee. A
condemnee alleging fraud, collusion, bad faith, or an abuse of power
or discretion has a “heavy” burden and must overcome the
(Footnote continued on next page…)
8
Authority abused its discretion because it did not adequately prepare for the taking
by failing to procure the necessary permits, approvals, or studies before filing the
Declaration of Taking. She asserts that the Authority also abused its discretion by
acquiescing to the demands of a single landowner, DeBotton, in changing the
location of the access road for future development of his property. In addition,
Condemnee contends that she would have been able to prove this claim if the trial
court had not granted the Authority’s Motion in Limine with respect to this
testimony. Relatedly, Condemnee claims that the taking was excessive because the
Authority already possessed the property necessary to construct the access road as
originally planned on DeBotton’s property.
However, in rejecting Condemnee’s former assertion, the trial court
stated:
[]Condemnee’s suggestion that the [Authority] did
not prepare for the takings in connection with the Project,
including but not limited to the taking of [Condemnee’s
p]roperty, borders on the absurd. The evidence at the
December 6 Hearing includes abundant proof of not only
the planning process for the Project, but also the extensive,
multi-year long efforts the [Authority] undertook to
implement the Project, both generally and with respect to
[Condemnee’s p]roperty. These efforts included
negotiations with the Condemnee and her representatives,
who were aware of both the Project and the request by the
[Authority] that the Project could impact and/or involve
presumption that the condemnor has acted properly. Our authority
to review the exercise of the power of eminent domain is limited
and is governed by juridical respect for the doctrine of the separation
of powers of government.
In re Condemnation of Real Estate by the Borough of Ashland, 851 A.2d 992, 996 (Pa. Cmwlth.
2004) (Ashland) (citations omitted). “[O]n judicial review, courts, absent proof of fraud, collusion,
bad faith, or abuse of power, do not inquire into the [w]isdom [] of municipal actions and [j]udicial
discretion should not be substituted for [a]dministrative discretion.” Id. at 997 (citation omitted).
9
the use of Condemnee’s property. The extensive
preparation undertaken by the [Authority] in this case, also
renders inapposite those cases in which courts found an
abuse of discretion where the condemnor “moved
precipitously and without adequate preparation.”
RR at 939a-40a (citations omitted).
With respect to Condemnee’s latter assertion, the trial court explained:
[]Condemnee also argues that the taking of [her
p]roperty is excessive because it was not required, since
the [Authority] had an alternative plan to implement the
Project that it chose not to explore--using the original plan
to route the access road to the pump station on the
neighboring property owned by Newtown Village. In
support of this argument, Condemnee ascribes bad faith to
the [Authority] and suggests that the [Authority] colluded
with the owner of the Newtown Village Property[,
DeBotton,] and relocated the access road to appease his
wishes to the detriment of Condemnee. In Ashland, the
Court rejected a similar argument based on similar
allegations. See [id.] at 997 (where condemnor knew that
condemnees planned to build on the property, there were
other options for the condemnor other than the taking of
condemnees’ property, condemnees’ attitude toward
condemn[or] “soured” prior to the condemnation, and the
parties failed to communicate prior to the condemnation,
this did not rise to the level of proof of fraud, collusion,
bad faith, or abuse of discretion needed to overcome the
presumption that condemnor acted properly).
RR at 940a.
The trial court properly distinguished In re Estate of Rochez, 558 A.2d
605 (Pa. Cmwlth. 1989), and Beaver Falls Municipal Authority, as cited by
Condemnee, because in both of those cases the condemnors took a greater estate in
the condemnees’ property, i.e., a fee simple rather than an easement, than was
necessary for the projects involved therein. The trial court observed:
10
[N]one of the cases cited by [] Condemnee--and
none that has come to the [c]ourt’s attention otherwise--
supports the conclusion that, just because the [Authority]
had authority to proceed against another set of property
owners’ properties, the [Authority] could not instead
acquire rights with respect to [Condemnee’s p]roperty to
implement the Project differently. Cf. Pidstawski v. South
Whitehall [Township], 641 A.2d 25 (Pa. [Cmwlth.] 1994)
(rejecting argument that, because of the availability of
other park and recreational facilities in the township, the
taking at issue was unnecessary and therefore excessive
and an abuse of discretion); see also In re Appeal of Waite,
641 A.2d 25 (Pa. [Cmwlth.] 1994) (evidence that authority
had options other than those taken vis-à-vis a portion of
condemnee’s property did not overcome presumption that
the authority’s actions were reasonable). Where, as in the
case before this [c]ourt, the record demonstrates’ that the
condemnor’s actions were not arbitrary, there is no basis
to conclude that the condemnor committed an abuse of
discretion. See Pidstawski, 380 at 1324-25; accord Appeal
of Waite, 641 A.2d at 29.
RR at 942a (emphasis in original).
Finally, the trial court also properly distinguished Condemnee’s
reliance on Redevelopment Authority of the City of Erie v. Owners or Parties in
Interest, 274 A.2d 244 (Pa. Cmwlth. 1971) (City of Erie), because that case involved
the taking of private property that was then transferred to a neighbor for that
neighbor’s private use. See id. at 251 (“[P]roperty cannot be taken by government
without the owner’s consent for the mere purpose of devoting it to the private use of
another.”) (citation omitted). The trial court stated:
[A]s noted above, Condemnee takes no issue with the
Project itself (which requires the [Authority] to acquire
real property for the implementation thereof) or the fact
that the Project is intended to benefit the public. Put
differently, there is no objection that says it was an abuse
of discretion by the [Authority] to proceed with
implementation of the Project as it did--by authority to
11
acquire affected real property. The objection is only that
the Condemnee prefers that the [Authority] should take
someone else’s property to effectuate the public purpose
of bringing public sewer to the affected communities in
[the] Township. There is nothing in the law that supports
an entitlement to such a preference, nor is there anything
in the record from the December 6 [h]earing that
demonstrates that the [Authority] abused its discretion by
filing a declaration of taking with respect to Condemnee’s
property and not another property.
RR at 943a (emphasis in original). Compare In Re: Condemnation of 110
Washington Street, Borough of Conshohocken, 767 A.2d 1154, 1160 (Pa. Cmwlth.
2001) (holding that a redeveloper’s surety agreement with a county redevelopment
authority was an improper delegation of authority to redeveloper, where the surety
agreement also required the redeveloper’s prior written consent before the authority
could exercise its eminent domain powers).
III.
Condemnee next claims that the Authority’s Declaration of Taking was
untimely. As noted above, Section 302(e) of the Code provides that “[t]he
condemnor shall file within one year of the action authorizing the declaration of
taking a declaration of taking covering all properties included in the authorization.”
26 Pa. C.S. §302(e). Condemnee contends that the 2018 Resolution authorizing the
taking of property for the Project did not include the easement over her property, and
that authorization expired in 2019. Rather than starting the condemnation process
anew, Condemnee asserts that the Authority attempted to skirt the statutory scheme
by passing the single-page 2020 Resolution citing the 2018 Resolution as its
authority to condemn her property.
12
However, the trial court properly determined that while the 2020
Resolution expressly incorporated by reference the 2018 Resolution, the 2020
Resolution is, by definition, its own resolution sufficient to authorize the taking of
Condemnee’s property for the Project under Section 302(e) of the Code. As the trial
court explained:
Neither the [Code] nor any case law cited by []
Condemnee stands for the proposition that a new
authorization for a taking covering a new property is
untimely because the new property was not included in a
previous authorization. Condemnee misreads both the
Code and the scant case law interpreting Section 302(e) in
objecting to the “tacking on” of her property to what [the
2018 Resolution] authorized. Under the language of
Section 302(e), the [Authority] had one year to file its
declaration of taking covering those properties identified
in [the 2018 Resolution]. Had [Condemnee’s p]roperty
been identified in [the 2018 Resolution], and thereafter the
[Authority] failed to take action within the year and
attempted to “revive or extend the expired authorization,”
then it might have run afoul of the statutory requirement.
See In re Condemnation of Right-of-Way for State Route
0095, Section BSR (“State Route 0095”), 131 A.3d 625[,
635] (Pa. [Cmwlth.] 2015) (“failure to file a declaration of
taking within the one-year time period results in the
original declaration lapsing as to any properties for which
the condemnor has not yet filed a declaration of taking”).
Neither of the two cases cited by [] Condemnee on this
point--In re Redevelopment Auth[ority] of City of
Allentown (“Ribbon Works”), 31 A.3d 321 (Pa. [Cmwlth.]
2011) (which was expressly overruled by State Route
0095, see 131 A.3d at 635), and/or the State Route 0095
case itself--requires the result [] Condemnee urges here.
In both cases, the property of the condemnee challenging
the timeliness of the taking was identified in the original
authorization for the taking, and the condemnor failed to
act on the authorization with respect to such property
within the one-year time period. That is simply not the
case here. Indeed, as the Court expressly stated in State
13
Route 0095, “[n]othing in the [Code] prohibits [the
condemnor] from starting the condemnation process over
by . . . authorizing a revised plan or the original plan again.
Once a revised plan is authorized or an old plan
reauthorized, the process starts anew. [Id.] at 636. This is
exactly what the [Authority] did in this case. [The 2020
Resolution] was the process “start[ing] anew” with respect
to [Condemnee’s p]roperty. The clock for the
[Authority’s] filing of the Declaration of Taking with
respect to [Condemnee’s p]roperty started ticking on
September 8, 2020. The Declaration of Taking was timely.
RR at 937a-38a (emphasis in original). See also State Route 0095, 131 A.3d at 635
(“Once a revised plan is authorized or an old plan reauthorized, the process starts
anew. To the extent that our decision in Ribbon Works may be interpreted as holding
that the failure of a condemnor to file a declaration of taking within one year of an
action authorizing the taking bars the condemnor from condemning the property in
the future, it is expressly overruled.”).
IV.
Condemnee next argues that the Declaration of Taking insufficiently
describes that nature of the property interest that the Authority has condemned.
Specifically, Condemnee claims that the Authority has condemned a permanent
easement and “all ownership and other legal and equitable interests of the [e]asement
on [Condemnee’s p]roperty . . . to the extent required to allow [the Authority] to
have title to and use of the defined permanent [e]asement aforementioned.” RR at
10a. Condemnee contends that “[t]his vague language does not give [her]
appropriate notice of the extent and effect of the taking, because it does not specify
what title interest [the Authority] seeks to acquire.” Appellant’s Brief at 39. That
is, “[the Authority] does not limit [its] right to the easement itself but potentially
gives the Authority rights over the entire property to the extent necessary to serve
14
the easement.” Id. Thus, she is subjected “to possible unanticipated consequences
in the future and [it] prevents [her] from securing adequate compensation for the
property interests actually acquired in the Declaration of Taking, which makes the
Declaration of Taking wholly invalid.” Id. at 39-40. In support, Condemnee relies
on this Court’s opinion in Szabo v. Commonwealth, 202 A.3d 52 (Pa. 2019).
However, the trial court properly distinguished Szabo, stating:
In our case, there is no suggestion that the property
to be taken has an incomplete description as in Szabo, or
that some of the property to be taken is not known by the
Condemnee to belong to her, and that therefore she lacks
the opportunity to protect her interests and secure just
compensation. Indeed, the facts in our case show exactly
the opposite. Instead, this case is similar to Milford
[Traumbauersville Area Sewer Authority v.
Approximately 0.753 Acres of Land, 358 A.2d 450, 454
(Pa. Cmwlth. 1976)] (affirming lower court finding that a
plan, attached to the declaration of taking, prepared by a
consulting engineer, and taken from the deed book and tax
parcel recordings, was sufficient to give condemnee
requisite notice of that portion of his tract to be taken). In
our case as in Milford, the Declaration of Taking included
maps and/or plans prepared by an engineer and taken from
both deed book and tax parcel identifications, and included
a word/narrative-based legal description of the easement
area. Very specifically, the condemned easement
described in the Declaration of Taking and the exhibits
thereto is sufficiently described by a metes and bounds
description and plans showing the width and length of the
condemned easement. This is “sufficient for
identification.” The Declaration of Taking also
specifically sets forth the nature of the interest being
condemned--a permanent easement. The Declaration of
Taking therefore fully informs the Condemnee of the
extent and effect of the taking, as well as the title and
extent of the condemned interest.
RR at 945a-46a.
15
V.
Condemnee next argues that the Authority could not have considered
the total compensation owed to her when it posted its general bond for the entire
Project based on the properties to be condemned in the 2018 Resolution.
Accordingly, she alleges that the bond is insufficient under Section 303(c) of the
Code, requiring the Authority to post a bond relative to the taking of her property as
well. Because the Authority does not have taxing authority, it posted an open-ended
bond without surety, which requires it to provide an adequate plan to provide just
compensation. It could not have known what just compensation was due when
Condemnee’s property was not a part of the taking at that time. See Appellant’s
Brief at 40-41.
However, the trial court properly rejected this claim, stating:
At the December 6 [h]earing, the [Authority]--like
the Redevelopment Authority in [In re Taking in Eminent
Domain of Certain Parcels of Real Estate Located in the
Northside Urban Renewal Area #1, Project Panna. R-389,
349 A.2d 781 (Pa. Cmwlth. 1976)]--presented sufficient
credible testimony from its Chairman, as well as
documentary proof ([Authority] financial statements for
2019 and 2020) demonstrating sufficient cash and cash
equivalents and revenue-generating activities enabling the
[Authority] to satisfy an award of estimated just
compensation to [] Condemnee, as well as to satisfy any
potential claims against the [Authority]. Put differently,
and more accurately in light of the fact that the burden is
on [] Condemnee to prove that the security provided for
the condemnation is insufficient, there is insufficient
proof--particularly in the fact of the affirmative proof
presented by the [Authority]--that the security provided by
the [Authority] is insufficient or that additional security
must be posted to supplement the open-ended bond
attached to the Declaration of Taking.
16
RR at 947a. See also, generally, In re: Condemnation by Newtown Township
Delaware County, Municipal Authority (Pa. Cmwlth., 752 C.D. 2022, filed
September 1, 2022), slip op. at 3 (“After review of the parties’ submissions and
following a telephonic argument wherein each party had the opportunity to present
its arguments, this Court finds that [Condemnee] has failed to establish the
requirements for issuance of a stay. Specifically, [Condemnee] relies, at least in
part, on facts not found by the trial court, and has failed to make a strong showing
that the trial court’s findings are not supported by substantial evidence of record.
Additionally, the court is not persuaded that the 200 homes and businesses that will
be able to connect to public sewer upon completion of the access road will not be
harmed by a delay in construction.”).
VI.
Finally, Condemnee claims that the trial court erred in its evidentiary
rulings regarding DeBotton’s testimony, and the documentary evidence, relating to
the addition of her property to the taking in the 2020 Resolution. Specifically, she
contends that the trial court erred in holding that the Pennsylvania Rules of Civil
Procedure regarding discovery generally do not apply to eminent domain
proceedings, and that DeBotton’s testimony and related documentary evidence were
not relevant to the consideration of that issue. Such evidence would clearly support
her assertion that the Authority acted in bad faith by permitting DeBotton’s interests
control what property would be taken.
17
Although the Rules of Civil Procedure do not generally apply to
eminent domain proceedings,11 the rules relating to discovery do apply in an eminent
domain matter, particularly with respect to proceedings before a Board of View.
Indeed, the Comment to Rule 4001 states, in pertinent part:
Before the amendment, Rule 4001(a) stated a scope
which included “any civil action or proceeding at law or
in equity brought in or appealed to any court which is
subject to these rules.” Taken literally, these words
embrace every conceivable form of action. They are
unchanged by these amendments. However the
application of the Rules to eminent domain and to divorce,
custody and support proceedings was not uniform. The
amendments clarify the application of the Rules to those
proceedings.
Viewers’ proceedings to assess damages in eminent
domain actions were historically brought in the Courts of
Quarter Sessions, which were courts not originally subject
to the Rules of Civil Procedure. Even after the enactment
of the Eminent Domain Code of 1963, vesting jurisdiction
over eminent domain proceedings in the unified Common
Pleas Court, Sec[tion] 703(2) of the Eminent Domain
Code provided only for limited discovery of experts’
valuation reports on appeal to the Common Pleas,
provided they had not already testified before the viewers.
The Code made no provision whatsoever for discovery for
use in the initial proceedings before viewers. The viewers’
proceedings were the discovery proceedings. This often
left litigants at a disadvantage before the viewers, in some
cases leading to needless appeals.
The amendment to Rule 4001(a) makes clear that
the entire chapter of deposition and discovery proceedings
applies at all stages of an eminent domain action.
11
See, e.g., In re Condemnation by City of Coatesville, 898 A.2d 1186, 1189 n.7 (Pa.
Cmwlth. 2006) (“Not only are the Rules of Civil Procedure not applicable to eminent domain
proceedings, but preliminary objections filed pursuant to Section 406 of the [Code] serve a very
different purpose than those filed under the Rules of Civil Procedure.”) (citations omitted).
18
Pa.R.Civ.P. 4001 cmt. See also Pa.R.Civ.P. 4001(a) (“The rules of this chapter apply
to any civil action or proceeding brought in or appealed to any court which is subject
to these rules including any action pursuant to the Eminent Domain Code of
1964. . . .”); Pa.R.Civ.P. 4001(b) (defining the term “trial” as “includ[ing] a hearing
before . . . viewers”).
Nevertheless, it is not necessary to outline the exact contours of Rule
4001’s application herein. As the Supreme Court has explained: “[W]e are guided
by the principle that ‘[t]he admission or exclusion of evidence is within the sound
discretion of the trial court[.]’ Lehigh–Northampton Airport Authority v. Fuller, 862
A.2d 159, 168 (Pa. Cmwlth. 2004) (citations omitted).” Lower Makefield Township
v. Lands of Chester Dalgewicz, 67 A.3d 772, 778 (Pa. 2013). As exhaustively
outlined in the July 15, 2021 Order, the November 30, 2021 Order, and the
December 3, 2021 Order, the trial court explained its rationale for its evidentiary
rulings that do not demonstrate an abuse of its “sound discretion.” See RR at 234a-
40a, 302a-10a, 921a-24a. In short, the trial court’s findings of fact are supported by
substantial record evidence and Condemnee sought to introduce merely cumulative
evidence of the Authority’s intent because it was undisputed that the taking was
amended to include Condemnee’s property based on DeBotton’s request for
amendment.12 As this Court has observed:
12
As the trial court explained:
It is undisputed that the reason for the [Authority’s]
evaluation of alternative access road locations was a request made
in November 2018 from the owner of the Newtown Village
Property, [DeBotton,] on which the pump station was located. It is
also undisputed that even with the new proposal--to run the access
road over a small portion of [Condemnee’s p]roperty--the remaining
part of the access road to the pump station will be on the neighboring
(Footnote continued on next page…)
19
A review of the record reveals that the Airport
Authority was not precluded from admitting any relevant,
competent evidence at trial. “The trial court may exclude
evidence that is irrelevant, confusing, misleading,
cumulative or prejudicial.” Concorde Investments, Inc. v.
Gallagher, [497 A.2d 637, 641 (Pa. Super.] 1985). The
Airport Authority attempted to present specific testimony
from various witnesses which was objected to by the
Condemnees. We find nothing improper with these
exclusions by the trial court.
Lehigh–Northampton Airport Authority, 862 A.2d at 168-69. See also Pa.R.E. 403
(“The court may exclude relevant evidence if its probative value is outweighed by a
danger of . . . confusing the issues . . . or needlessly presenting cumulative
evidence.”). Thus, the trial court did not abuse its discretion in limiting the evidence
that was presented at the hearing herein and Condemnee’s claim to the contrary is
without merit.
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
property as a result of a 1900-foot-long easement running along the
entire righthand side of [Condmnee’s p]roperty on the neighboring
property.
RR at 934a (emphasis in original and citations omitted).
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Condemnation by Newtown Township :
Delaware County, Municipal Authority, of :
a Permanent Easement Across the Property :
located at 4700 W. Chester Pike, Newtown :
Township, Delaware County, PA :
: No. 752 C.D. 2022
Folio Number: 30-00-02906-01 :
Tax Map Number: 30-34-001-00 :
:
Dorothy Rafferty, Condemnee :
:
Newtown Township, Delaware County, :
Municipal Authority, Condemnor :
:
Appeal of: Dorothy Rafferty :
ORDER
AND NOW, this 28th day of December, 2022, the order of the Delaware
County Court of Common Pleas in the above-captioned matter is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge