R. Miller & M.L. Miller v. The Borough of Indian Lake ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Miller and Mary Lou Miller, :
Appellants :
: No. 573 C.D. 2022
v. :
: Argued: February 7, 2023
The Borough of Indian Lake :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZANNO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: June 23, 2023
Richard Miller and Mary Lou Miller (Millers) appeal the May 12, 2022
order of the Court of Common Pleas of Somerset County (trial court), which dismissed
with prejudice their Motion for Appraisal, Attorney and Engineering Fees (Motion for
Fees) pursuant to Section 710 of the Eminent Domain Code (Code), 26 Pa. C.S. § 710.1
The Millers assert that the trial court erred and/or abused its discretion by dismissing
their Motion for Fees as untimely and waived. Upon review, we affirm.
FACTS AND PROCEDURAL HISTORY
The facts of this case are not in dispute. This matters stems from a dam
remediation project undertaken by the Borough of Indian Lake (Borough) at the
direction of the Pennsylvania Department of Environmental Protection. On May 21,
2013, the Borough filed a Declaration of Taking in the trial court to expand the existing
flowage easement to an elevation of 2,295.5 feet across the Millers’ property. The
Millers filed a Petition for a Board of Viewers (Board), which was appointed.
1
26 Pa. C.S. §§ 101-1106.
Following a hearing, the Board issued its report and awarded no damages. The Millers
appealed the Board’s award to the trial court seeking just compensation for the taking.
On September 15, 2020, following a two-day jury trial, the jury rendered a verdict of
no damages. Following the filing and denial of post-trial motions, the trial court
entered final judgment on the verdict on December 3, 2020. The Millers appealed the
trial court’s final judgment to this Court, which affirmed the verdict on November 16,
2021.2 This Court returned the record to the trial court on January 27, 2022.
On February 14, 2022, the Millers filed the Motion for Fees seeking, for
the first time, $8,699.75 in fees and costs pursuant to Section 710. 3 On February 22,
2022, the Borough sent a letter to Judge Scott Bittner of the trial court arguing that the
Millers waived their ability to request reimbursement because the request was
untimely. (Reproduced Record (R.R.) at 23a-25a.) The trial court issued an order
scheduling the matter for oral argument on May 2, 2022, and ordered the Millers to file
a memorandum identifying where in the record they made a claim for reimbursement
of fees and submitted evidence of such claim. On April 18, 2022, the Millers filed a
brief. Upon agreement of the parties, oral argument was canceled, and the trial court
decided the matter on the parties’ filings.
By order dated May 12, 2022, the trial court dismissed with prejudice the
Millers’ Motion for Fees. Relying on In re Matter of Condemnation of a Certain Parcel
of Land in South Park Township By South Park Township, 506 A.2d 511 (Pa. Cmwlth.
1986) (South Park), the trial court concluded the Millers waived their ability to request
reimbursement for failing to timely raise the issue prior to the entry of the final
judgment. The trial court further noted that the Millers “had no reason to wait until
2
Richard Miller and Mary Lou Miller v. The Borough of Indian Lake (Pa. Cmwlth., No. 1269
C.D. 2020, filed November 16, 2021).
3
It is undisputed that the Millers did not seek in the trial court reimbursement under Section
710 until after the conclusion of their appeal.
2
their appeal was finished to request reimbursement of fees because they paid fees
exceeding the maximum statutory amount of reimbursement well before this case even
made it to trial.” (Trial Court Opinion at 6; R.R. at 33a.)
Subsequently, the Millers timely appealed to this Court. The trial court
did not file a separate opinion in response to the Millers’ concise statement of errors
complained of on appeal, but instead relied on its May 12, 2022 memorandum.
ISSUES
On appeal, the Millers raise the following three issues:
1. What time limit, if any, applies to a Motion for Appraisal,
Attorney and Engineering Fees under 26 Pa. C.S. § 710?
2. Is a Condemnee required to file a motion under 26 Pa. C.S.
§ 710 as soon as expenses reach $4,000?
3. Is the In re Matter of Condemnation of a Certain Parcel
of Land in South Park Township By South Park Township,
506 A.2d 511 (Pa. Cmwlth. 1986) either “controlling” or
applicable to a case that is neither settled nor closed by
court order?
(Appellants’ Br. at 2.) Because the Millers’ three issues relate to the same central
question, namely, whether their Motion for Fees was timely filed in the trial court, we
address all the issues together.
DISCUSSION
In full, Section 710 reads as follows:
(a) General rule.--The owner of any right, title or interest
in real property acquired or injured by an acquiring
agency, who is not eligible for reimbursement of fees
under section 306(g) (relating to preliminary
objections), 308(d) (relating to revocation of
condemnation proceedings) or 709 (relating to
condemnee’s costs where no declaration of taking
filed), shall be reimbursed in an amount not to
exceed $4,000 per property, regardless of right, title
3
or interest, as a payment toward reasonable
expenses actually incurred for appraisal, attorney
and engineering fees, except where the taking is for
an easement related to underground piping for water or
sewer infrastructure, in which case the reimbursement
is limited to $1,000, regardless of right, title or interest.
(b) Attorney fees.--In determining reasonable attorney
fees under sections 306(g), 308(d), 709 and this
section, the court shall consider all of the
circumstances of the case including, but not limited to,
time records if available.
26 Pa. C.S. § 710 (emphasis added). Section 710 is located in Chapter Seven of the
Code titled, “Just Compensation and Measure of Damages,” which outlines the
procedures for valuing condemned property. 26 Pa. C.S. § 710 (emphasis added).
Under this section, a condemnee who is not otherwise eligible for reimbursement of
fees under provisions relating to preliminary objections, revocation of condemnation
proceedings, or the condemnee’s costs where no declaration of taking is filed, must
nevertheless be reimbursed in an amount not to exceed $4,000 per property as a
payment toward reasonable expenses actually incurred in defending the condemnation
for appraisal, attorney, and engineering fees.4 In other words, a condemnee who
unsuccessfully challenged a declaration of taking may request reimbursement for
professional fees up to $4,000 for some of the fees and costs he incurred challenging
the litigation condemnation.
The clearest indication of legislative intent is generally the plain language
of the statute. 1 Pa. C.S. § 1921. This provision, and its placement in the Code in the
chapter titled, “Just Compensation and Measure of Damages,” clearly indicates a
legislative intent to compensate a condemnee for the expenses incurred in the
4
There is an exception for instances where the taking is for an easement related to
underground piping for water or sewer infrastructure, which is not applicable here.
4
condemnation litigation including reasonable appraisal, attorney and engineering fees.
The amount of the fees which can be reimbursed is limited to $4,000. Reimbursement
of these fees is not contingent upon the condemnee’s success in the condemnation
litigation or subsequent appeals. An unsuccessful condemnee can still incur damages
as the result of the condemnation by having to pay for appraisal, attorney, and
engineering fees. It is clear that limited reimbursement of these fees ($4,000) as a
measure of damages under Section 710 is not a separate suit for fees, but instead, a part
of the condemnation action itself. Because appraisal, attorney and engineering fees are
items of damages, they must be included in the court’s final judgment. It follows then
that the condemnee must necessarily provide evidence of, and request reimbursement
for, these damages before the final judgment is entered.
In South Park, the condemnees filed a petition for appointment of viewers
in response to the township’s declaration of taking. 506 A.2d at 512. There, the Board
of Viewers filed a report wherein it fixed the amount of just compensation that became
final because neither party appealed the report. Id. Because there were issues with
payment, the township filed a petition to pay the amount of just compensation into
escrow, which the common pleas court granted. Id. Thereafter, the township made the
payment into escrow, and the docket was marked as settled, discontinued, and ended
with prejudice. Id. Forty-three days later, the condemnees petitioned to authorize
payment of funds in escrow and to modify the common pleas court’s order to include
delay damages and reimbursement for appraisal and attorneys’ fees under former
Section 610 of the Code.5 Id. The common pleas court denied the condemnee’s
petition to modify. Id.5
The former Section 610 of the Code provides:
The owner of any right, title, or interest in real property acquired or
injured by an acquiring agency, who is not eligible for
(Footnote continued on next page…)
5
On appeal, this Court in South Park considered the question of whether a
petition to modify a final judgment to include delay damages and reimbursement for
appraisal, attorney, and engineering fees was timely. Id. at 512-514. This Court
concluded that reimbursement for the fees the condemnees incurred in defending the
condemnation under Section 610 was not self-executing, and the language of Section
610 required that a claim for reimbursement must be presented prior to the entry of the
final order, or it was deemed waived. Id. This Court based its conclusion on the fact
that in order to obtain reimbursement or these fee-related damages, the condemnee had
to prove it was not entitled to damages under other provisions of the Code and submit
evidence that it had expended funds for fees and costs in the case. Id. at 514. Because
the condemnees did not timely file their modification petition, this Court concluded the
condemnees had waived their claim for fees. Id.Here, following a jury trial, the jury rendered a verdict of no damages on
September 15, 2020. Upon the filing of the Borough’s praecipe, the trial court entered
its final judgment in favor of the Borough on December 3, 2020. (Trial Court Op. at
4; R.R. at 31a.) The Millers did not file a Motion for Fees at any time prior to the entry
of final judgment, and thus failed to preserve the issue for the trial court’s
determination. As in South Park, the request for reimbursement for fees was not filed
with the trial court prior to its entry of final judgment. In fact, here, it was not filed
reimbursement of such fees under sections 406(e), 408 or 609 of this
act, shall be reimbursed in an amount not to exceed five hundred
dollars ($500) as a payment toward reasonable expenses actually
incurred for appraisal, attorney and engineering fees.
26 P.S. § 1-610. Notably, the language of former Section 610 of the Code is identical in pertinent
part to that of the current Section 710, except that the amount of reimbursement was limited to only
$500. Act of June 22, 1964, Special Sess., P.L. 84, as amended, formerly, 26 P.S. §§ 1-101-1-903,
repealed by Section 5(2) of the Act of May 4, 2006, P.L. 112, effective September 1, 2006, or the Eminent
Domain Code, 26 P.S. §§ 101-1106.
6
until February 14, 2022, over two months after the trial court’s final entry of judgment.
We are compelled to find that as in South Park, the Millers’ claim for reimbursement
of fees as a measure of damages under Section 710 was waived by their failure to
present it to the trial court prior to the entry of final judgment.
The Millers argue that the Court should attempt to devise a 30-day rule
such that any request for reimbursement damages could be filed within 30 days of final
judgment or the conclusion of any appeal. From what this Court can surmise, the
Millers’ argument seems to stem from Section 2503(10) of the Judicial Code, which
provides for attorneys’ fees in certain circumstances specified by statute within 30 days
of the entry of final judgment. 42 Pa. C.S. § 2503(10). Section 102(a) of the Code
already provides that it is the “complete and exclusive procedure and law” to be
followed in condemnation proceedings. 26 Pa. C.S. § 102(a); see also Township of
Millcreek v. Angela Cres Trust, 142 A.3d 948, 955 (Pa. Cmwlth. 2016) (noting that
Section 102(a) of the Code “leaves no room” for the procedure set forth in Section
2503(10) of the Judicial Code). This Court has also stated that no other “procedure and
law” set forth in the Pennsylvania Rules of Civil Procedure may apply in condemnation
proceedings. See Gilyard v. Redevelopment Authority of Philadelphia, 780 A.2d 793,
794 (Pa. Cmwlth. 2001) (stating that “this Court has repeatedly held that the Rules of
Civil Procedure are not applicable to eminent domain proceedings”). Therefore,
although filing a motion for attorneys’ fees in other cases within 30 days of the
conclusion of the case may be standard, the Code governs here. Both the text of the
Code and South Park clearly indicate that a claim for reimbursement damages is
waived if it is not presented before final judgment is entered. If the motion for fees is
filed at any time after final judgment, it must be deemed untimely.
Finally, with regard to whether such a claim for reimbursement of
damages must be raised when attorneys’ fees incurred by the condemnees have reached
the $4,000 maximum, we find no basis in the text of the Code to support this. The trial
7
court’s suggestion that any claim for reimbursement damages must be raised when a
condemnee reaches $4,000 of incurred expenses is belied by the plain text of the statute.
Section 710 does not provide for any specific method for the request, just that the claim
be raised and evidence submitted prior to the entry of final judgment. This
interpretation is consistent with the notion that the request for reimbursement damages
be filed, in any such form, prior to the entry of final judgment under Section 710.6
CONCLUSION
Accordingly, we are constrained to conclude the Millers’ Motion for Fees
was untimely filed. The order of the trial court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
6
Our holding is limited to the determination that under Section 710, a motion for fees must
be raised before the trial court prior to the entry of final judgment. We decline to establish a specific
method to raise Section 710 claims.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Miller and Mary Lou Miller, :
Appellants :
:
v. : No. 573 C.D. 2022
:
The Borough of Indian Lake :
ORDER
AND NOW, this 23rd day of June, 2023, the order of the Court of
Common Pleas of Somerset County dated May 12, 2022, is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge