Washington Park, Inc. Appeal

Opinion by

Mr. Justice Roberts,

This is an appeal from the dismissal of preliminary objections in an eminent domain case. Pursuant to the Eminent Domain Code of 1964,¹ the Commonwealth condemned land in South Strabane Township, Washington County, for the purpose of providing access lanes connecting U.S. Interstate 70, which crosses U.S. 19 near the situs of the condemnation, and U.S. 19. As part of this project, the Commonwealth found it necessary to widen Oak Spring Road, a two lane, eighteen foot highway, which is parallel to Interstate 70 and also intersects U.S. 19. Washington Park, Inc. (also known as K-Mart), a shopping center located on the western side of U.S. 19 between Oak Spring Road and Interstate 70 and the condemnee in these proceedings, filed preliminary objections alleging that the taking was an unconstitutional exercise of the Commonwealth’s power of eminent domain because said taking was in fact for a private rather than a public purpose.²

Washington Park concedes that its objection to the condemnation stems from its belief that the principal beneficiary of the highway improvement project will be a rival shopping center, Southgate Shopping Center, Inc., which will be located directly to the west of appellant. Without this improvement Southgate’s only-connection with a major highway will be via Oak Spring Road, whereas Washington Park has frontage directly on U.S. 19. The deceleration lane from Interstate 70, on the other hand, will service both plazas. The condemnee-appellant’s assumption that the proposed improvements will benefit Southgate is supported by the record, for Southgate’s tenants have made the highway improvements a condition of their leases. Moreover, condemnee points to an agreement in which Southgate agrees to indemnify the Commonwealth for its liability to Washington Park arising out of the condemnation.

By its preliminary objections, appellant requested that the Commonwealth’s declaration of taking be stricken and title to the property be revested in its corporate name. Though Washington Park objects to the entire highway project, only a small portion of their land, approximately 1200 square feet, is involved in this appeal.³ Nonetheless at the hearing on the preliminary objections the court below permitted appellant considerable latitude in the introduction of its testimony in order to afford it ample opportunity to sustain its allegation that the entire project was conceived by Southgate, with the aid of Commonwealth officials, and was designed solely to benefit Southgate. The court below, however, concluded not only that the condemnee had failed to substantiate its charges but also that “there was not one scintilla of evidence of fraud, corruption or misfeasance.”⁴ The court’s conclusions were approved by an en banc panel; we likewise find the condemnee’s contentions to be without merit.

The Secretary of the Department of Highways has condemned the land in question under the statutory authorization contained in the Act of June 1, 1945, P. L. 1242, §210, 36 P.S. §670-210. We have no power to substitute our discretion for his, nor to correct mistaken judgments. Furthermore, it is presumed that the highway department’s officials have performed their duties in good faith; the burden upon the appellant to prove the contrary, that the officials acted in a capricious, or fraudulent manner, or that their actions were based upon private motives inconsistent with the public welfare, is a heavy one. See, e.g., Crawford v. Redevelopment Auth., 418 Pa. 549, 553-54, 211 A. 2d 866, 868 (1965); Blumensehein v. Pittsburgh Housing Auth., 379 Pa. 566, 570-74, 109 A. 2d 331, 333-35 (1954); Robb v. Stone, 296 Pa. 482, 146 Atl. 91 (1929).

We, of course, agree with appellant that the Commonwealth may condemn land only for a public purpose. Nevertheless while the power of eminent domain may not be employed “for the mere purpose of devoting it to the private use of another, even though there be involved in the transaction an incidental benefit to the public,” Belovsky v. Redevelopment Auth., 357 Pa. 329, 340, 54 A. 2d 277, 282 (1947); cf. Price v. Philadelphia Parking Auth., 422 Pa. 317, 221 A. 2d 138 (1966), the taking does not “lose its public character merely because there may exist in the operation some feature of private gain, for if the public good is enhanced it is immaterial that a private interest also may be benefited.” Belovsky v. Redevelopment Auth., supra at 341, 54 A. 2d at 283. “Highways almost always benefit the owners of land through which they are laid out, and are often constructed at the request of individuals . . . but it has never been held that the laying out of a highway ... is invalid on that account.” 2 Nichols, Eminent Domain §7.222[2] (3d ed. 1963).

In a slightly different contest, our courts have already rejected appellant’s argument, for legislation authorizing the taking of land in order to build a private road whose principal purpose was to provide an individual with access from his property to a highway has on several occasions been held to be for a public purpose and hence constitutional. See Waddell’s Appeal, 84 Pa. 90, 93-94 (1877); Pocopson Road, 16 Pa. 15 (1851) ; Marinclin Appeal, 204 Pa. Superior Ct. 552, 205 A. 2d 885 (1964); Dickinson Township Road, 23 Pa. Superior Ct. 34 (1903). The public’s utilization of the improvements on Oak Spring Road and U.S. 19 will certainly be more immediate and dramatic than in the private road cases.®

In support of its allegation that the condemnation was not for an authorized public purpose, Washington Park relies in part upon an argument which when analyzed becomes a “chicken and egg” problem: it assumes that the widening of Oak Spring Road and the construction of Southgate are interrelated, that is, without Southgate the road would not be needed and without the road Southgate would not be built. The record contains testimony Avhich casts considerable doubt upon the absoluteness of appellant’s position,^{5 6} but even if its premise was uncontested its conclusion would be a non sequitur. The Commonwealth’s officials have an obligation to consider the future, as well as the present, needs of the community.⁷ Whether or not Southgate generated the need for the work is immaterial, for Southgate could not exist if the community were unable to support it. Nor is the Commonwealth required to refrain from widening its roads simply to perpetuate Washington Park’s favorable position at this location.

Indeed appellant’s entire argument totally misconceives the extent of the public’s interest in adequate highways: “The public character of the road does not depend upon the degree of public necessity or convenience that require it or the extent to which the public uses it, or the number of persons that it accommodates, and it is no legal objection that a proposed highway will be a cul de sac, or that it will lead to the residence or place of business of but one individual, for the public may desire to visit or do business with him. If a road is to be open for public travel the purpose for which the public may wish to travel is not material, and land may be taken by eminent domain for a road which is intended solely for driving for pleasure and recreation or to furnish a view of beautiful natural scenery. Streets are frequently laid out for the purpose of opening up private land, but if a street is to be open to public travel it is well settled that it is for the public use, although it is of especial convenience or advantage to certain individuals, or even if its sole or principal object is to enhance the value of the land through which it passes and the entire cost is met by special assessments on the land thus benefited. Land may be taken for widening existing highways even if the necessity of the widening is created by a railroad corporation, and the railroad is required to pay the expense.” 2 Nichols, Eminent Domain §7.512[1] (3d ed. 1963) (footnotes omitted).

Washington Park also characterizes the agreement between Southgate and the Commonwealth, mentioned above,⁸ as an illegal one whose very existence tends to prove that the condemnation was for the benefit of a private commercial enterprise. However, the Act of June 1, 1945, P. L. 1242, §502, 36 P.S. §670-502, specifically states that it shall “be lawful for the department to enter into agreements, in the discretion of the secretary, with counties or townships or with persons, associations of corporations for sharing with the Commonwealth the cost of construction, reconstruction and maintenance of such highways, or parts thereof.” While §502 of the Act of 1945, is limited to highways in the “Rural State highway system”, Oak Spring Road, technically Legislative Route 62214, is part of that system by virtue of the Act of May 31, 1956, P. L. (1955) 1881, 36 P. S. §1738-2. The Secretary of Highways reasonably viewed the reconstruction of Oak Spring Road and Route 19 to be part of the same project. See Act of June 1, 1945, P. L. 1242, §210, 36 P.S. §670-210.

It is beyond dispute that Southgate would benefit immensely from the contemplated improvements and accordingly was directly interested in the progress of the Commonwealth’s plans. However, the Commonwealth’s ability, because of this interest, to defray a considerable portion of the cost in no way casts any doubt upon the legality of the taking. It is worth repeating the observation of the court below that “there was not one scintilla of evidence of fraud, corruption or misfeasance.”

The order of the court dismissing Washington Park’s preliminary objections must be affirmed, without prejudice to appellant’s right to proceed to the ascertainment of its damages resulting from the taking.

We turn next to a consideration of the appeal of S. ¡3. Kresge Company, a tenant in the Washington Park shopping center. The Commonwealth concedes it did not give Kresge notice as a condemnee under the Eminent Domain Code of 1964.⁹ However, on the third day of the hearing, the trial court sua sponte notified Kresge and other affected tenants of the proceedings, and invited them to join as “objectors, intervenors, or to obtain relief at the foot of the decrees.” When the hearings were resumed, after a five day recess, Kresge entered an appearance and requested that it be given thirty days in which to file its own preliminary objections. The trial judge refused to treat his notice as being equivalent to a notice of taking by the Commonwealth and denied the request. Thereupon Kresge informed the court that it would not participate in the proceedings.

Kresge contends that because the recorded memorandum of its lease with Washington Park, provided that it has an easement in the parking areas, common areas, roadways, sidewalks and accessways to the public streets and highways, it was entitled to formal notice as a condemnee. The Commonwealth, on the other hand, asserts that Kresge’s rights in these areas do not amount to an easement and hence Kresge was not entitled to notice. We find it unnecessary to decide this issue.¹⁰

In light of what we have said in the first part of this opinion, we are frankly somewhat skeptical of Kresge’s claim that it “has defenses or evidence either not discovered by or not available to the landlord.” Nevertheless we agree with Kresge that its appeal must be quashed because, if it was entitled to notice as a condemnee, the order of the court dismissing Washington Park’s preliminary objections could not constitute a final and binding order against Kresge. Indeed the adjudication of the court below specifically disclaimed any such intention: “It is not necessary today to decide if the tenants still have the right to file preliminary objections of their own.”¹¹

Under the circumstances, Kresge’s appeal in No. 235 March Term, 1966, is quashed.

In No. 225 March Term, 1966, the appeal of Washington Park, Inc., the order of the court below is affirmed.

Mr. Justice Cohen dissents.

1 Act of Juue 22, 1964, P. U. 84, 26 P.S. §1-101 et seep (Supp. 1966).

2 While the condemnation, affected other property besides Washington Park, appellant is the only landowner who has pressed objections. S. S. Kresge Company, a tenant of Washington Park, has also appealed from the adjudication below; Kresge’s appeal will be considered separately in a later portion of this opinion.

3 The extent of appellant’s damages resulting from the condemnation are in no way involved in the present litigation.

4 The record in this case consists solely of the evidence adduced by the appellant in support of its preliminary objections.

5 Compare Sturgill v. Commonwealth, Department of Highways, 384 S.W. 2d 89 (Ky. 1964), where the court held that the taking of private land in order to provide an access road for a motel Avas for a public purpose.

6 For example, a District Engineer for the Department of Highways testified the affected roads were already in need of constant repair and the subject of continuous complaints. Midway in the proceedings the road supervisors intervened and informed the court below that the unreconstructed intersection could not safely handle existing traffic. Moreover, in a petition filed in opposition to the granting of a supersedeas in the instant case, South Strabane Township, asserted that completion of the highway reconstruction was essential to the public safety of its citizens. See also note 4, supra.

7 Compare Oliver v. Clairton, 374 Pa. 333, 342, 98 A. 2d 47, 52 (1953); Valmont Developing Co. v. Rosser, 297 Pa. 140, 149, 146 Atl. 557, 560 (1929).

8 See p. 351-2, supra.

9 Act of June 22, 1964, P. L. 84, §405, 26 P.S. §1-405 (Supp. 1966).

10 Washington Park has also argued that the failure to give Kresge proper notice invalidates the taking as to it. We fail to see how the Commonwealth’s failure to properly notify Kresge, if such notice was required, in any way prejudices Washington Park from adequately protecting its rights.

11 On the same day as the opinion and order was filed dismissing Washington Park’s preliminary objections, Kresge filed its own preliminary objections. No disposition has been made of Kresge’s preliminary objections, or several related motions, inasmuch as the court below stayed all further proceedings pending the disposition of Washington Park’s appeal.