In the Matter of: Condemnation of Rights of Way and Easements Situate in the Twp. of Hempfield ~ Property of: E.C. & B.B. Hurst ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of: Condemnation of : CONSOLIDATED CASES
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal :
Authority of Westmoreland County : No. 777 C.D. 2021
for Sanitary Sewer Purposes :
:
Property of: Edwin C. and Brenda B. :
Hurst :
:
Tax Map No. 50-27-00-0-141 :
:
Appeal of: Edwin C. and Brenda B. :
Hurst :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 779 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: George Hapchuk and :
Ellen I. Hapchuk Tax Map :
No. 50-27-00-0-188 :
:
Appeal of: George Hapchuk and :
Ellen I. Hapchuk :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 780 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
Property of: George Hapchuk and :
Ellen I. Hapchuk Tax Map :
No. 50-27-00-0-208 :
:
Appeal of: George Hapchuk and :
Ellen I. Hapchuk :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 781 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: Erica M. Shuglie and :
Jason Shuglie :
:
Tax Map No. 50-27-00-0-332 :
:
Appeal of: Erica M. Shuglie and :
Jason Shuglie :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 782 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: George Hapchuk and :
Ellen I. Hapchuk :
:
Tax Map No. 50-27-00-0-280 :
:
Appeal of: George Hapchuk and :
Ellen I. Hapchuk :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth :
of Pennsylvania, by the Municipal : No. 783 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: John H. Robosky :
Tax Map No. 50-27-00-0-178 :
:
Appeal of: John H. Robosky :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth :
of Pennsylvania, by the Municipal : No. 784 C.D. 2021
Authority of Westmoreland County : Submitted: December 2, 2022
for Sanitary Sewer Purposes :
:
Property of: David Painter Silvis and :
Teresa Silvis :
Tax Map No. 50-27-00-0-143 :
:
Appeal of: David Painter Silvis and :
Teresa Silvis :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: June 16, 2023
Edwin C. and Brenda B. Hurst, George and Ellen I. Hapchuk, Erica M.
and Jason Shuglie, John H. Robosky, and David Painter Silvis and Teresa Silvis
(collectively, Condemnees),1 appeal from the order of the Court of Common Pleas
of Westmoreland County (trial court) overruling their preliminary objections to the
declarations of taking filed by the Municipal Authority of Westmoreland County
(Condemnor). Condemnees primarily claim that Condemnor was required to receive
approval of the condemnation from the Agricultural Lands Condemnation Approval
Board (Board) and that the condemned land was for a private enterprise. We affirm.
I. BACKGROUND
In November 2020, Condemnor filed declarations of taking against
Condemnees, who own land in Hempfield Township (Township) that Condemnor
would use to construct wastewater (sewer) pipes. Decl. of Taking, 11/6/20, ¶ 5. The
land at issue appears to be either farmlands or wetlands that purportedly fall within
the scope of the Agricultural Area Security Law (Agricultural Law).2 Hursts’ Prelim.
Objs., 11/19/20, at 3; Hapchuks’ Prelim. Objs., 11/12/20, ¶¶ 11, 16. Condemnor served
written notices of the declarations on Condemnees.
Condemnees filed preliminary objections, which generally raised two
arguments. First, Condemnees argued that Condemnor was required to receive
approval from the Board. Hursts’ Prelim. Objs., at 6-7 (citing Section 13 of the
Agricultural Law); accord Hapchuks’ Prelim. Objs. ¶¶ 10, 15. Second, Condemnees
claimed that because the condemned land was for a private enterprise, the Property
Rights Protection Act (Protection Act), 26 Pa.C.S. §§ 201-208, prohibited the
1
The Hursts are represented by one law firm, and the remaining condemnees (collectively,
Hapchuks), are represented by a different firm. We cite to either the Hurst record at 777 C.D. 2021,
or the Hapchuk record at 779 C.D. 2021. We add that some of the exhibits from the evidentiary
hearing were not transmitted to this Court as part of the original record. See, e.g., Exs. H-2A, H-
3A.
2
Act of June 30, 1981, P.L. 128, as amended, 3 P.S. §§ 901-916. We quote cited statutes as
needed, infra.
2
condemnation. Hursts’ Prelim. Objs. at 7-8; Hapchuks’ Prelim. Objs. ¶ 5.3
The trial court partially overruled Condemnees’ preliminary objections
and scheduled an evidentiary hearing. Order, 1/25/21.4 In relevant part, the trial court
held that Condemnor is a Commonwealth agency for purposes of Section 13(a) of
the Agricultural Law, 3 P.S. § 913(a), and ordered an evidentiary hearing as to
whether Condemnor was required to obtain the Board’s approval under Section
13(a). Order, 1/25/21, ¶ 1(a)-(b).5 Following an evidentiary hearing, the trial court
overruled the remaining preliminary objections. Order, 6/8/21.
Because the instant condemnation involved underground waste pipes,
the trial court concluded that the Board lacked jurisdiction over the condemnation
pursuant to Section 306(d) of The Administrative Code of 1929 (Administrative
3
Condemnees did not object on the basis of a violation of Section 14.1 of the Agricultural
Law, added by the Act of December 14, 1988, P.L. 1202, 3 P.S. § 914.1, which governs the purchases
of agricultural conservation easements, or the Public Official and Employee Ethics Act (Ethics
Act), 65 Pa.C.S. §§ 1101-1113. Before the scheduled evidentiary hearing, the Hapchuks filed a brief
raising, for the first time, a violation of only Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a).
Hapchuks’ Br. in Supp. of Prelim. Objs., 2/24/21, at 6-7 (unpaginated).
4
The Eminent Domain Code, 26 Pa.C.S. §§ 101-1106, requires the trial court to “take
evidence by depositions or otherwise” if “an issue of fact is raised.” 26 Pa.C.S. § 306(f) & cmt.
(explaining that the intent of this section is “that the exclusive method of challenging . . . the
declaration of taking and procedure shall be by preliminary objections”).
5
On appeal, the parties did not challenge the trial court’s holding that Condemnor is a
Commonwealth agency under Section 13(a) of the Agricultural Law. See Hursts’ Br. at 18 n.8; 3
P.S. § 913(a) (addressing limitations for “an agency of the Commonwealth”); see generally Hursts’
Pa.R.A.P. 1925(b) Statement, 8/6/21, ¶¶ 1-14 (contending the Board’s approval was required under
Section 13(a)); Hapchuks’ Pa.R.A.P. 1925(b) Statement, 8/6/21, ¶ 14 (same). In contrast, Section
13(b) of the Agricultural Law provides that no “authority . . . having or exercising powers of
eminent domain shall condemn any land within any agricultural security area for any purpose,
unless prior approval has been obtained from” the Board and other bodies. 3 P.S. § 913(b). Thus,
although it appears Section 13(b) would apply as Condemnor is a “municipal authority,” the parties
nonetheless proceeded under Section 13(a). In any event, both Section 13(a) and (b) contain the
substantially identical, relevant language at issue, which is discussed below.
3
Code).6 Trial Ct. Op., 6/8/21, at 4-5. In so doing, the court rejected Condemnees’
argument that the Agricultural Law granted broader jurisdictional authority to the
Board than the Administrative Code. Id.
The trial court also rejected Condemnees’ argument that the
condemnation was for an improper private enterprise because certain third parties
that owned land near the pipes could use their land for development. Id. at 6-7.
Specifically, according to the trial court, Condemnees failed to elicit evidence that
these third parties “brought about the proposed” sewer pipes by approaching
Condemnor directly and that the third parties would operate and maintain the pipes.
Id. at 9. Condemnees timely appealed and timely filed court-ordered Pa.R.A.P.
1925(b) statements.7
II. ISSUES
Condemnees raise three issues. First, Condemnees contend that the
trial court erred by holding that the Board lacked jurisdiction to approve the
condemnation. Hursts’ Br. at 16. Second, Condemnees assert that because the
condemned land would be used for a private enterprise, the trial court should have
sustained the preliminary objections. Id. at 16-17. Third, Condemnees claim that the
trial court should have considered that one of the Township Supervisors had a
conflict of interest in approving the condemnation. Id. at 17.
6
Act of April 9, 1929, P.L. 177, as amended, added by the Act of December 7, 1979, P.L.
478, 71 P.S. § 106(d).
7
The Hursts filed a Rule 1925(b) statement raising 28 issues, and the Hapchuks filed a
statement raising around 10 issues. See generally Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa.
1993) (stating “the number of claims raised in an appeal is usually in inverse proportion to their
merit and that a large number of claims raises the presumption that all are invalid”). We add that
because the trial court did not file a responsive Rule 1925(a) opinion, it did not address the conflict-
of-interest issue that Condemnees raise on appeal, infra. Trial Ct. Order, 9/2/21.
4
III. DISCUSSION8
A. The Board’s Jurisdiction
In support of their first issue, Condemnees contend that the Board has
“jurisdiction” over Condemnor pursuant to Section 13(a) of the Agricultural Law, 3
P.S. § 913.9 Id. at 21. Condemnees note that the Agricultural Law was adopted after
the Administrative Code. Id. at 20. Because the Agricultural Law postdates the
8
An order overruling preliminary objections in an eminent domain action is appealable as
an interlocutory order. N. Penn Water Auth. v. A Certain Parcel of Land, 650 A.2d 1197, 1200 (Pa.
Cmwlth. 1994); accord Pa.R.A.P. 311(e). Our standard of review “in an eminent domain case is
limited to a determination of whether the trial court abused its discretion or committed an error of
law, and whether the findings of fact are supported by substantial evidence. Thus, we consider
factual findings deferentially and resolve legal issues de novo.” Reading Area Water Auth. v.
Schuylkill River Greenway Ass’n, 100 A.3d 572, 576-77 (Pa. 2014) (Reading). The Hursts and the
Hapchuks also incorporated by reference their appellate arguments. Compare Hursts’ Br. at 44
(incorporating by reference the Hapchuks’ argument for the third issue), with Hapchuks’ Br. at 14
(incorporating by reference the Hursts’ argument for the first issue).
9
We quote Section 13(a) to provide context for Condemnees’ argument:
(a) Approval required for condemnation and for certain other actions by an
agency of the Commonwealth.—No agency of the Commonwealth having or
exercising powers of eminent domain shall condemn for any purpose any land
within any agricultural security area which land is being used for productive
agricultural purposes (not including the growing of timber) unless prior approval
has been obtained in accordance with the criteria and procedures established in this
section from the Agricultural Lands Condemnation Approval Board as established
in section 306 of the act of April 9, 1929 (P.L. 177, No. 175), known as “The
Administrative Code of 1929.” The condemnation approval specified by this
subsection shall not be required [(1)] for an underground public utility facility that
does not permanently impact the tilling of soil or [(2)] for any facility of an electric
cooperative corporation or [(3)] for any public utility facility the necessity for and
the propriety and environmental effects of which has been reviewed and ratified or
approved by the Pennsylvania Public Utility Commission or the Federal Energy
Regulatory Commission. . . .
3 P.S. § 913(a). Framed affirmatively, Section 13(a) provides that the Board’s approval is required
for certain categories of condemned land unless the condemnation at issue falls within one of the
above three exceptions. See id.; accord id. § 913(b).
5
Administrative Code, Condemnees specifically contend that Section 13 “should be
interpreted to amend” Section 306(d) of the Administrative Code, 71 P.S. § 106(d).
Id. at 21. Therefore, Condemnees reason, the jurisdictional limitations of Section
306(d), i.e., the Board has no jurisdiction over a condemnation for “underground
pipes used to transport waste,” do not exist and cannot apply to Condemnor. Id. at
19-20.
Condemnees then discuss the three Section 13(a) exceptions and argue
that the Board’s approval was required because Condemnor is “not a public utility
within the meaning of the section.” Id. at 21-22 (discussing In re Condemnation of
Springboro Water Auth. of Prop. of Gillette, 898 A.2d 6 (Pa. Cmwlth. 2006)
(Springboro)). In Condemnees’ view, Springboro stands for “the determination that
the phraseology in the exception set forth in § 913(a) is limited to a regulated public
utility,” and Condemnor is not a public utility. Id. at 22 (cleaned up and emphasis
added). Condemnees conclude that because Condemnor is a municipal authority
and “since a municipal authority is not regulated, [Condemnor] does not fit within
the [public utility] exception” at Section 13(a). Id. (emphasis added).10
Condemnor counters that Section 306(d) of the Administrative Code
provides that the Board has no jurisdiction over condemnations for underground
sewage pipes. Condemnor’s Br. at 7-8 (discussing 71 P.S. § 106(d)). Because the
10
Condemnees’ argument appears to transpose (a) the three exceptions for which the
Board’s approval is not required for certain condemned property, with (b) the agency exercising
the power of condemnation. Compare Hursts’ Br. at 21, with id. at 22. But even accepting
Condemnees’ argument as framed, it does not address the Board’s lack of jurisdiction over sewage
pipes. See Section 306(d)(2) of the Administrative Code, 71 P.S. § 106(d)(2). Thus, it apparently
does not matter whether Condemnor is an unregulated municipal authority or a regulated public
utility that can invoke any of the Section 13(a) exceptions properly, because the instant
condemnation involves sewage pipes outside the Board’s jurisdiction. Further, Condemnees’
argument does not address whether a sewage pipe is an “underground public utility facility that
does not permanently impact the tilling of soil.” See 3 P.S. § 913(a).
6
instant case involves such pipes, Condemnor reasons that the Board has no
jurisdiction. Id. at 8. Alternatively, Condemnor reasons that even if the Board has
jurisdiction under Section 13(a) of the Agricultural Law, then the Board’s approval
is not required because the condemnation is for “an underground public utility
facility that does not permanently impact the tilling of soil,” i.e., the underground
sewer pipes at issue. Id. at 9.
By way of guidance, in statutory construction, a court is obligated to
effectuate the General Assembly’s intent, which we discern by examining the plain
language of the statute. Retina Assocs. of Greater Phila., Ltd. v. Retinovitreous
Assocs., Ltd., 176 A.3d 263, 270 (Pa. Super. 2017) (Retina).11 “If the [plain] language
of the statute clearly and unambiguously sets forth the legislative intent, it is the duty
of the court to apply that intent and not look beyond the statutory language to
ascertain its meaning.” Id. (citation omitted). Finally, it is well settled that we read
all decisions against their facts. Maloney v. Valley Med. Facilities, Inc., 984 A.2d
478, 485-86 (Pa. 2009).
This issue involves two statutory acts: the Administrative Code and the
Agricultural Law. In 1979, the General Assembly enacted Section 306 of the
Administrative Code, which created the Board and required it to review certain
condemnation requests of agricultural land. 71 P.S. § 106.12 The Board “shall have
11
We may cite to Superior Court cases to the extent we find their reasoning persuasive.
Pa. State Police v. Madden, 284 A.3d 272, 278 n.13 (Pa. Cmwlth. 2022).
12
In relevant part, Section 306(b) of the Administrative Code states as follows: “Before
condemning for any of the purposes set forth in subsection (d) any agricultural lands, as classified
by the Agricultural Soil Conservation Service of the United States Department of Agriculture,
which lands are being used for productive agricultural purposes, but not including the growing of
timber,” the condemnor must request the Board “to determine that there is no reasonable and
prudent alternative to the utilization of such lands for the project.” 71 P.S. § 106(b). Subsection
(d), infra, establishes the Board’s jurisdiction.
7
jurisdiction over condemnation for the following purposes: . . . Disposal of solid or
liquid waste material, but not including underground pipes used to transport waste.”
Id. § 106(d)(2).
Subsequently, in 1981, the General Assembly enacted the Agricultural
Law, which was intended to protect agricultural lands. 3 P.S. §§ 901-916. In order
to achieve that goal, the Agricultural Law imposed certain limitations on
condemnation. Id. § 913. In relevant part, the Agricultural Law added that the
Board’s approval would “not be required for an underground public utility facility
that does not permanently impact the tilling of soil . . . or for any public utility facility
the necessity for and the propriety and environmental effects of which has been
reviewed and ratified or approved by the” relevant agency. Id. § 913(a); accord id.
§ 913(b).
In Springboro, the Court addressed whether the Board’s approval was
required under Section 13(b) of the Agricultural Law for a condemnation to build a
water line. Springboro, 898 A.2d at 7-8. In that case, the condemnor was a
municipal authority that argued that because the water line was an “underground
public utility facility,” the Board’s approval was not required under Section 13(b).
Id. at 8-9. The condemnees countered that the “underground public utility facility”
exception applied only to “regulated public utilities,” and the condemnor provided
“unregulated public utility services.” Id. at 9 (emphasis in original). The Springboro
Court, with one dissent, agreed with the condemnees that the Board’s approval was
required for a water line because Section 13(b) exempted only regulated public
utilities from requesting the Board’s approval. Id. at 9-10.13
The dissent disagreed, reasoning that the majority improperly imported the Public Utility
13
Code, 66 Pa.C.S. §§ 101-3316, “to define the term ‘underground public utility facility’” in the
8
Instantly, the General Assembly explicitly stated that the Board’s
jurisdiction would not include underground sewer pipes. See 71 P.S. § 106(d)(2).
Here, it is undisputed that the sewer pipes at issue are underground. See Notes of
Testimony (N.T.) Hr’g, 3/18/21, at 89; accord Hursts’ Br. at 19. Because the Board’s
jurisdiction does not include the instant underground sewer pipes, we perceive no
abuse of discretion or error of law by the trial court. See Trial Ct. Op. at 4.
We also disagree with Condemnees’ suggestion that the 1981
Agricultural Law amended the Board’s jurisdiction set forth in the 1979
Administrative Code. See Hursts’ Br. at 21-22. The plain statutory language of the
Agricultural Law does not address the Board’s jurisdiction let alone reflect
legislative intent to amend or replace Section 306(d) of the Administrative Code.
See 3 P.S. § 913(a) (stating the “condemnation approval specified by this subsection
shall not be required for an underground public utility facility” or a public utility);
Retina, 176 A.3d at 270. Nothing in Section 13(a) of the Agricultural Law explicitly
addresses the Board’s jurisdiction, unlike Section 306(d) of the Administrative Code.
Compare 3 P.S. § 913(a), with 71 P.S. § 106(d).14
Agricultural Law. Springsboro, 898 A.2d at 12 (Cohn Jubelirer, J., dissenting). In the dissent’s
view, the plain meaning of the undefined term included the water line at issue. Id. at 14.
14
The parties did not address Section 13(d)(2)(i) of the Agricultural Law, which governs
the Board’s review of proposed condemnations. See 3 P.S. § 913(d)(2)(i); see also Gibraltar Rock,
Inc. v. Dep’t of Env’t Prot., 286 A.3d 713, 725 (Pa. 2022) (cautioning this Court from sua sponte
resolving issues “never preserved or raised on appeal”). In relevant part, Section 13(d)(2)(i)
mirrors the jurisdictional language at Section 306(d) of the Administrative Code. Compare 3 P.S.
§ 913(d)(2)(i) (stating in “the case of condemnation for highway purposes (but not including
activities relating to existing highways such as, but not limited to, widening roadways, the
elimination of curves or reconstruction, for which no approval is required) and in the case of
condemnation for the disposal of solid or liquid waste material[,]” the Board must conditionally
approve the condemnation), with 71 P.S. § 106(d) (stating the “[B]oard shall have jurisdiction over
condemnation for the following purposes: (1) Highway purposes, but not including activities
relating to existing highways such as, but not limited to, widening roadways, the elimination of
9
With respect to Condemnees’ reliance on Springboro, that case did not
address Section 306(d) of the Administrative Code. In fact, the Springboro parties
did not even raise or otherwise address the Board’s jurisdiction under the
Administrative Code. See generally Br. (Pa. Cmwlth., No. 1128 C.D. 2005, filed
Aug. 18, 2005), 2005 WL 5121143, 2005 WL 5366908; Br. (Pa. Cmwlth., No. 1128
C.D. 2005, filed Sept. 15, 2005), 2005 WL 5366907. Because the Board’s
jurisdictional statute, 71 P.S. § 106(d), was not raised before the Springboro Court,
that decision must be read in context to the facts and laws at issue. See Maloney,
984 A.2d at 485-86. For instance, Springboro involved a water line and Section
13(b) of the Agricultural Law, unlike here, which involves sewer pipes and Section
13(a). See id. As we stated above, and as the parties dispute in the instant case, the
Board’s jurisdiction excludes “underground pipes used to transport waste.” 71 P.S.
§ 106(d).15 For these reasons, Condemnees failed to establish that the Board had
jurisdiction and should have approved the condemnation at issue.16
curbs or reconstruction. (2) Disposal of solid or liquid waste material, but not including
underground pipes used to transport waste”). The corresponding statutory language tends to
buttress the presumption that the General Assembly was aware of the Board’s jurisdiction when it
enacted the Agricultural Law.
15
Whether the Agricultural Law expanded the Board’s jurisdiction to include
condemnations for a water pipe was not an issue before the Springboro Court. See Maloney, 984
A.2d at 485-86. Cf. Gibraltar Rock, 286 A.3d at 725.
16
We therefore need not address Condemnees’ public policy arguments. In any event,
Condemnees assert that the trial court improperly ignored the public policy arguments in
Springboro, despite that case being distinguishable. Hursts’ Br. at 23-26. In Condemnees’ view,
public policy requires the Board’s approval of any condemnation of agricultural land, particularly
when underground sewer pipes are involved. Id. at 26. Condemnees similarly contend the trial
court disregarded the legislative findings in the Agricultural Law to generally protect agricultural
lands from public sewer pipes. Id. at 27.
Our Supreme Court, however, has “sharply restricted” “the power of the courts to declare
pronouncements of public policy” because “it is for the legislature to formulate the public policies
of the Commonwealth.” Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009). The Weaver Court
10
B. Condemned Land Used for a Private Enterprise
We discuss the testimony presented at the evidentiary hearing before
summarizing Condemnees’ argument for their second issue. At the hearing,
Condemnees presented witnesses to establish their position that third-party owners
of undeveloped private properties near the sewer pipes had a potential “private
development interest.” See N.T. Hr’g at 38, 42-43; accord Hursts’ Br. at 14-15
(asserting that third parties, apparently an extended family, own properties “capable
of being served” by the proposed sewer pipes). Because the sewer pipes could
service the third parties’ private properties, Condemnees reasoned those third parties
could use or sell their land for private development. N.T. Hr’g at 38-39, 42-43.17
Framed differently, Condemnees argued that because the condemnation could
benefit those third parties, the condemnation was for an improper private enterprise.
See id.At the hearing, Condemnees called Dan Schmitt, Condemnor’s
engineer and planner of the sewer pipes, as on cross. Id. at 53, 77. Schmitt explained
that Condemnor had “overflow events” in which excess sewage overflowed
manholes into fields, which was an environmental concern. Id. at 86-87.18 Schmitt
explained that the “right of a court to declare what is or is not in accord with public policy exists
only when a given policy is so obviously for or against public health, safety, morals, or welfare
that there is a virtual unanimity of opinion in regard to it. Only in the clearest of cases may a court
make public policy the basis of its decision.” Id. (emphasis added and cleaned up). As noted
herein, the clearest expression of legislative intent is unambiguous statutory language. Retina, 176
A.3d at 270; accord Crown Castle NG E. LLC v. Pa. Pub. Util. Comm’n, 234 A.3d 665, 674 (Pa.
2020). The unambiguous statutory language of Section 306(d) excludes underground sewage
pipes from the Board’s jurisdiction. See 71 P.S. § 106(d); see also 3 P.S. § 913(d)(2)(i).
17
Condemnees’ counsel agreed with the trial court’s question: “if there’s a private
development interest, that . . . may be enough to overturn this as being a public project?” N.T.
Hr’g at 42.
18
The manholes are buried under two to three feet of soil to permit farming. N.T. Hr’g at
11
testified that the purpose of the proposed sewer pipes was to ensure the system could
“carry sewage from other areas at a greater volume” and improve the environment.
Id. With respect to the location of the sewer pipes, Schmitt repeatedly testified that
when he planned the pipes, he focused only on the topography of the land and did
not know the identities of the property owners. Id. at 72, 77, 79, 80-81.
Regarding financial feasibility, Schmitt also explained that although
Condemnor is a “business” that must balance expenditures with revenues,
municipalities have comprehensive plans that anticipate growth areas. Id. at 90.
Schmitt stated that he designed the pipes to “pick up a growth area” but that he was
not instructed to include any particular growth area. Id. at 71-72, 78. Schmitt
acknowledged that properties with public sewer access have more value. Id. at 78,
99. He testified that development in the “growth area” would occur when owners
develop their own property or sell it to others for development. Id. at 98-99. In
contrast, Keith Vasas, Condemnees’ engineer, testified that because the proposed
sewer pipes could only service seven properties, the pipes were not financially
feasible. Id. at 44-45.19 We next summarize Condemnees’ argument in support of
their second issue.
88, 101-02. As noted herein, the proposed sewer pipes are underground and transport solid and
liquid waste to Condemnor’s treatment plant. Id. at 89.
19
After studying the land, Schmitt testified “it became apparent” that certain facilities could
be omitted that would maximize cost effectiveness. N.T. Hr’g at 77. Schmitt explained that the
land permitted an unpowered “gravity line” (pipe) that did not require a “pump station,” which
resulted in cost savings by not having to install and power pumps. Id. Schmitt also testified that
Condemnor’s 2016 budget listed potential long-term capital projects for the next five years and
that list did not include the sewer pipes at issue. Id. at 56-58. Apparently, in mid-2016, the instant
sewer pipes “became a high priority project” for Condemnor but Schmitt could not explain why.
Id. at 63, 68. Finally, although not referenced in the trial court’s opinion, Michael Kukura,
Condemnor’s manager, similarly testified that he did not know any of the property owners when
he co-approved the pipes. Id. at 124, 130-31. Kukura explained that it was preferable to connect
properties to sewer pipes because on-lot systems, e.g., septic tanks, could fail. Id. at 134.
12
Condemnees argue that under the Protection Act, condemnation for use
in a private enterprise is prohibited. Hursts’ Br. at 31 (quoting 26 Pa.C.S. § 204(a)).
In Condemnees’ view, even if the condemnation had an ostensible public use
purpose, because the condemnation would be used ultimately for a private
enterprise, the trial court erred. Id. at 32-34 (discussing Reading). Condemnees cite
evidence that they construe as establishing that the condemnation was not cost
effective. Id. at 34-35; see generally N.T. Hr’g at 44-45, 77. Condemnees also
apparently challenge the trial court’s statement that they bore the burden of proving
the condemnation was for a private purpose. Hursts’ Br. at 36.20
Condemnor counters that the condemnation is for a “public sewage
connection plan,” which involves extending “a sewer line to meet potential demand
increases and future development.” Condemnor’s Br. at 13-14. In Condemnor’s
view, it “is well settled that construction of a sewer is a public benefit.” Id. at 14.
In 2006, the General Assembly enacted the Protection Act as part of the
Eminent Domain Code. See 26 Pa.C.S. §§ 101-1106. In relevant part, the Protection
Act provides that a condemnor cannot condemn private property for a private
20
Condemnees also challenge whether certain third parties would qualify as a singular
“private enterprise” such as to bar condemnation. Hursts’ Br. at 37-38. Condemnees, however,
concede that “the question was not raised in the trial court at the time of hearing.” Id. at 37. The
Hapchuks similarly argue for the first time on appeal that the condemnation violated 3 P.S. §
914.1(c)(1). Hapchuks’ Br. at 14-15.
Because Condemnees failed to raise either argument before the trial court, they waived
them for appellate review. See Pa.R.A.P. 302(a); Gibraltar Rock, 286 A.3d at 725 (explaining that
appellate court consideration of issues never raised before the trial court renders the trial a
meaningless “dress rehearsal”); see also Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d 114, 116 (Pa.
1974) (plurality) (opining that the “ill-prepared advocate’s hope is that an appellate court will come
to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error,”
and that the appellee is “penalized when an entire case is retried because an appellate court reverses
on the basis of an error opposing counsel failed to call to the trial court’s attention”).
13
enterprise but subject to nine exceptions. Id. § 204(a)-(b).21
Because we presume the condemnor acted properly, the condemnee has
the heavy burden of proving the condemnor abused its discretion. In re
Condemnation by Dep’t of Transp. v. Bennett Fam. Props., LLC, 255 A.3d 635, 638
(Pa. Cmwlth. 2021) (Bennett) (noting the “burden of proving that the condemnor has
abused its discretion is on the objector or condemnee”); Appeal of Waite, 641 A.2d
25, 28 (Pa. Cmwlth. 1994). For example, our Supreme Court resolved whether the
condemnor abused its discretion in condemning land “where the sole purpose of the
[taking was] to supply a private developer with land to install sewer drainage
facilities needed for a proposed private residential subdivision.” Reading, 100 A.3d
at 573.
In Reading, the record established that the condemnor’s condemnation
was at the private developer’s request “and that it would be used for water, sewer,
and stormwater purposes specifically to enable” the developer to build a planned
development. Id. at 574. Further, the developer “would be responsible for initiating
eminent domain proceedings in conjunction with [the condemnor’s] solicitor, and
21
Section 204 states in relevant part:
(a) Prohibition.—Except as set forth in subsection (b), the exercise by any
condemnor of the power of eminent domain to take private property in order to use
it for private enterprise is prohibited.
(b) Exception.—Subsection (a) does not apply if any of the following apply:
(1) . . .
(ii) the condemnee does not file or does not prevail on preliminary objection
filed to a declaration of taking for the acquisition of condemnee’s property.
26 Pa.C.S. § 204. The Reading Court explained that the Protection Act was passed “to curb what
legislators perceived as eminent domain abuse, and with the goal of striking a reasonable balance
between (a) the need to defend private property rights from takings accomplished for economic
development purposes, and (b) the legitimate needs of urban centers to rehabilitate blighted areas
imposing substantial, concrete harm upon the public.” Reading, 100 A.3d at 583.
14
would be required to pay all costs associated with such proceedings, including just
compensation . . . .” Id.
Following an evidentiary hearing, the Reading trial court sustained the
condemnee’s preliminary objections, reasoning that because the resulting sewage
“facilities would be privately owned,” “the condemnation was effectuated solely to
benefit a private commercial developer . . . .” Id. at 576. On appeal, this Court
reversed, reasoning that although the facilities “would make [the] developer’s homes
more valuable, this alone would not negate the project’s public purpose of providing
[sewage] services to citizens . . . .” Id. The condemnee appealed.
In resolving the issue, the Reading Court explained that the “question
of what constitutes a public use is highly fact-dependent.” Id. at 580. Our Supreme
Court acknowledged that the “main difficulty” was the “significant private overlay”
intertwined with the condemnation. Id. at 580-81. The Court then turned to the
Protection Act, in which the General Assembly “elected to phrase the central
prohibition broadly in terms of whether the subject property is being condemned ‘to
use it for private enterprise,’ 26 Pa.C.S. § 204(a), rather than ‘to use it solely for
private enterprise[.]’” Id. at 583 (emphasis in original). Despite the condemnation’s
“colorable public-use facet,” the Reading Court held that the condemnor essentially
condemned the land in order for a private developer “to occupy and use it for private
enterprise—namely, to develop a residential subdivision.” Id. Because the land was
to be used for a private enterprise, the Reading Court held that the taking violated
the Protection Act, regardless of any public benefit. Id. & n.15 (noting that even a
significant public benefit cannot save a condemnation from the scope of the
Protection Act).
Instantly, unlike Reading, Condemnees did not present any evidence of
15
a private enterprise, including any private developer or development. Cf. id. As the
trial court accurately observed, Condemnees did not introduce evidence that the third
parties initiated the sewer project and would operate and maintain the sewers. Cf.
id. at 574. Condemnees did not present evidence that the third parties would initiate
and finance condemnation proceedings. Cf. id. Rather, Condemnees presented
evidence purportedly demonstrating that because the sewer pipes could service the
properties of third parties, those third parties could potentially improve or sell their
land for private development. See, e.g., N.T. Hr’g at 38-39, 42-43. On this record,
accepting Condemnees’ argument seemingly requires speculation as to whether the
third parties would, in fact, sell or otherwise improve their properties for private
enterprises. In contrast, in Reading, the evidence of private enterprise was less
attenuated. Cf. Reading, 100 A.3d at 580-81. Accordingly, we agree with the trial
court’s reasoning that on this record, Condemnees failed to carry their heavy burden
of proving the condemnation was for an improper private enterprise. See id. at 573;
Bennett, 255 A.3d at 638.
C. Conflict of Interest
Last, Condemnees contend that one of the Township’s Supervisors,
John Silvis, had a conflict of interest. Hapchuks’ Br. at 16. When Silvis voted to
approve Condemnor’s declarations of taking, Condemnees assert that Silvis violated
65 Pa.C.S. § 1103(a) and (j) of the Ethics Act, which essentially forbids public
officials from voting on matters presenting a conflict of interest. Id. at 17; see
generally 65 Pa.C.S. § 1103(a) (stating, “[n]o public official or public employee shall
engage in conduct that constitutes a conflict of interest”). In support, Condemnees
cite testimony that they construe as essentially establishing a conflict of interest.
16
Hapchuks’ Br. at 17-18.22
Condemnor counters that Condemnees failed to raise and preserve a
challenge under Section 1103(j) of the Ethics Act. Condemnor’s Br. at 16-17.
Condemnor asserts that Condemnees failed to present any testimony on that issue
and “instead now construe [hearing] testimony to fit this new argument.” Id. at 17,
19-20.
In condemnation proceedings, a condemnee may file preliminary
objections. 26 Pa.C.S. § 306(a). Section 306(a)(3)(i)-(iv) limits a condemnee’s
preliminary objections to four grounds, which challenge (1) a condemnor’s power or
right to condemn; (2) the sufficiency of the security; (3) the declaration of taking;
and (4) “[a]ny other procedure followed by the condemnor.” Id. § 306(a)(3)(i)-(iv).
The phrase “any other procedure” encompasses certain notice requirements at
Section 305. Simco Stores, Inc. v. Redevelopment Auth. of City of Phila., 302 A.2d
907, 910 (Pa. Cmwlth. 1973) (per curiam). The statutory language of the Protection
Act, as well as the overarching Eminent Domain Code, does not reference the Ethics
Act.
Under the Ethics Act, the State Ethics Commission investigates and
penalizes violations of that Act. 65 Pa.C.S. §§ 1108-1109. A complaint must be filed
with the State Ethics Commission to prompt such an investigation. Id. § 1108(a).
Penalties for violating the Ethics Act do not include voiding or nullifying votes. Id.
§ 1109 (listing various fines and penalties); accord Salem Twp. Mun. Auth. v. Twp. of
Salem, 820 A.2d 888, 894 n.17 (Pa. Cmwlth. 2003) (Salem). In relevant part, the
Although the Hapchuks filed a brief in support of their preliminary objections raising a
22
violation of only Section 1103(a) of the Ethics Act, neither the Hapchuks nor the Hursts moved to
amend their preliminary objections to include that ground. We also note that Condemnees cite no
legal authorities establishing a remedy under the Eminent Domain Code if there was a violation of
the Ethics Act. See generally Hapchuks’ Br. at 16-18, 20.
17
Salem Court opined that even if a public official “had a conflict of interest in
violation of the Ethics Act,” the Act “does not permit the Court to void the public
official or employee’s vote.” Id. The Court pointed out that the “General Assembly
omitted the voiding of votes as a penalty for violating the Ethics Act,” and thrice
amended the Ethics Act without adding it as a remedy. Id.Although not involving the Ethics Act, our Supreme Court has
addressed whether a public official violated the applicable conflict-of-interest statute
in voting for various resolutions “necessary for and leading to [a] condemnation.”
In re Certain Parcels of Real Estate in Lehigh-Washington St. Dev. Project, 216 A.2d
774, 775 (Pa. 1966) (Lehigh). Upon construing the relevant statutory language, the
Lehigh Court held that a conflict of interest did not “void or nullify” the official’s
votes, “but merely [rendered an] undisclosed conflict of interest a ‘misconduct in
office’.” Id. at 776-77 (discussing Section 8 of the Urban Redevelopment Law).23
Finally, it is well settled that issues not raised before the trial court are waived for
appellate review. See Pa.R.A.P. 302(a).
Instantly, because Condemnees did not file preliminary objections on
the basis of either Ethics Act violation, they failed to preserve them for appellate
review. See id. But even assuming Condemnees raised and preserved the Ethics Act
claims, neither the Eminent Domain Code nor the Protection Act permits
Condemnees to level an Ethics Act violation in resolving a declaration of taking.
See 26 Pa.C.S. § 306(a). Section 306(a) limits the grounds for challenging a
declaration of taking and none of those grounds includes an alleged Ethics Act
violation. See id. Regardless, any alleged violation of the Ethics Act requires a
complaint be filed before the State Ethics Commission, which is not the trial court.
23
Act of May 24, 1945, P.L. 991, as amended, 35 P.S. § 1708.
18
See 65 Pa.C.S. § 1108. But even assuming Silvis violated the Ethics Act,
Condemnees cannot void or otherwise nullify his vote because the Act does not
provide for such a remedy. See id. § 1109; Salem, 820 A.2d at 894 n.17; see also
Lehigh, 216 A.2d at 776-77.
IV. CONCLUSION
For these reasons, we affirm the trial court’s order overruling the
Condemnees’ preliminary objections.
LORI A. DUMAS, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of: Condemnation of : CONSOLIDATED CASES
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal :
Authority of Westmoreland County : No. 777 C.D. 2021
for Sanitary Sewer Purposes :
:
Property of: Edwin C. and Brenda B. :
Hurst :
:
Tax Map No. 50-27-00-0-141 :
:
Appeal of: Edwin C. and Brenda B. :
Hurst :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 779 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: George Hapchuk and :
Ellen I. Hapchuk Tax Map :
No. 50-27-00-0-188 :
:
Appeal of: George Hapchuk and :
Ellen I. Hapchuk :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 780 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
Property of: George Hapchuk and :
Ellen I. Hapchuk Tax Map :
No. 50-27-00-0-208 :
:
Appeal of: George Hapchuk and :
Ellen I. Hapchuk :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 781 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: Erica M. Shuglie and :
Jason Shuglie :
:
Tax Map No. 50-27-00-0-332 :
:
Appeal of: Erica M. Shuglie and :
Jason Shuglie :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth of :
Pennsylvania, by the Municipal : No. 782 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: George Hapchuk and :
Ellen I. Hapchuk :
:
Tax Map No. 50-27-00-0-280 :
:
Appeal of: George Hapchuk and :
Ellen I. Hapchuk :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth :
of Pennsylvania, by the Municipal : No. 783 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: John H. Robosky :
Tax Map No. 50-27-00-0-178 :
:
Appeal of: John H. Robosky :
In the Matter of: Condemnation of :
Rights of Way and Easements Situate :
in the Township of Hempfield, County :
of Westmoreland, Commonwealth :
of Pennsylvania, by the Municipal : No. 784 C.D. 2021
Authority of Westmoreland County :
for Sanitary Sewer Purposes :
:
Property of: David Painter Silvis and :
Teresa Silvis :
Tax Map No. 50-27-00-0-143 :
:
Appeal of: David Painter Silvis and :
Teresa Silvis :
ORDER
AND NOW, this 16th day of June, 2023, we AFFIRM the order entered
by the Court of Common Pleas of Westmoreland County on June 8, 2021, which
overruled the preliminary objections filed by Edwin C. and Brenda B. Hurst, George
and Ellen I. Hapchuk, Erica M. and Jason Shuglie, John H. Robosky, and David P.
and Teresa Silvis.
LORI A. DUMAS, Judge