Condemnation by the North Strabane Twp. Municipal Authority, Washington County, PA ~ Appeal of: L.D. Fowler and C.L. Fowler

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Condemnation by the North Strabane :
Township Municipal Authority, :
Washington County, Pennsylvania, :
for Acquisition of Property for :
Municipal Purposes in the Township : No. 1152 C.D. 2016
of North Strabane, Being the Lands of : ARGUED: April 6, 2017
Lawrence D. Fowler and Cynthia L. :
Fowler, and Being Known as Parcel :
ID No. 520-005-02-0006-00 :
:
Appeal of: Lawrence D. Fowler and :
Cynthia L. Fowler :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE HEARTHWAY FILED: August 18, 2017
Lawrence D. and Cynthia L. Fowler (Fowlers) appeal from the June
24, 2016 order of the Court of Common Pleas of Washington County (trial court)
that overruled the Fowlers’ preliminary objections to a Declaration of Taking
(Declaration) under the Eminent Domain Code (Code)1 filed by the North Strabane
Township Municipal Authority (Authority). For the reasons set forth below, we
reverse.
1
26 Pa. C.S. §§101 – 1106.
On November 8, 2015, the Authority filed a Declaration seeking to
take part of the real property owned by the Fowlers and convert it to a municipal
use. Specifically, the Authority seeks a 25-foot sewer easement to place and
maintain an underground sewer line.
On November 30, 2015, the Fowlers filed preliminary objections to
the Declaration, raising six points of contention. The Fowlers argued that (1) the
Authority’s resolution (Resolution) authorizing the taking is insufficient under
section 302(b)(3) of the Code, 26 Pa. C.S. § 302(b)(3), because it fails to properly
identify the Fowlers’ property; (2) it was a de facto taking because it interferes
with the Fowlers’ use and enjoyment of their property; (3) the affidavit to the
Declaration was improperly executed by the Authority’s solicitor because the
Resolution did not authorize the solicitor to sign the Declaration, the affidavit does
not contain a notary seal as required by 18 Pa. C.S. §4904, and the affidavit was
signed by the solicitor who has entered an appearance on behalf of the Authority in
violation of Pa. R.C.P. No. 1002; (4) the Authority did not properly notify the
Fowlers because the notice of condemnation (Notice) failed to include a metes and
bounds description or plan of the taking, was improperly titled, and failed to
contain information about the case, including the filing date and docket number;
(5) the Authority failed to give security for the taking because it did not post a
bond as required by 26 Pa. C.S. § 303(a); and (6) the Authority failed to properly
serve the Notice because it delivered the Notice and the Declaration at the same
time, in violation of 26 Pa. C.S. § 305, which states that notice must be delivered
“within 30 days after the declaration of taking has been filed.”
2
On June 24, 2016, the trial court issued a Memorandum Order
overruling the Fowlers’ preliminary objections. The Fowlers appealed to this
Court.2 The trial court thereafter filed its 1925(a) Opinion. Having reviewed all of
the issues raised by the Fowlers, we find that many merit no relief. However, the
issues discussed below require reversal of the trial court’s order.
The Fowlers contend that the trial court erred in not finding the taking
excessive when the Declaration purported to condemn the Fowlers’ property “in
and about, on and around the said right of way and easement, for any purposes
whatsoever….” (Declaration, ¶ 4, at 4 (emphasis added).)
The Declaration continues on to state:
including, but not limited to, the installation,
construction, maintenance, relaying, paralleling,
enlarging, and supplementing of a sewer line, manholes,
riparian vegetation, and appurtenances with the right of
ingress, egress, and regress to and from said right of way
and easement for the purpose of installing, constructing,
maintaining, relaying, paralleling, enlarging and
supplementing said sewer line, manholes, riparian
vegetation, and appurtenances, together with all
appurtenances or parts thereto pertaining and for the
transportation of personnel, equipment, and supplies by
foot, motor vehicle, and machine over and across said
right of way and easement.
2
Our review of a trial court’s order overruling preliminary objections is limited to
whether the trial court abused its discretion or committed an error of law. In re Condemnation
by the City of Coatesville of Certain Properties and Property Interests for Use as a Public Golf
Course, 822 A.2d 846, 849 n.6 (Pa. Cmwlth. 2003).
3
(Id.) The trial court determined that the “for any purpose whatsoever” language “is
used as a catch-all provision for maintenance and upkeep issues but would not
allow the [Authority] to use [the Fowlers’] property for literally any reason….”
(Trial Ct. Op. at 4.) We disagree.
“It is well settled that private property may be taken for public
purposes only in such an amount and to such an extent as these purposes
reasonably require.” In re Condemnation by Beaver Falls Municipal Authority for
Penndale Water Line Extension, 960 A.2d 933, 937 (Pa. Cmwlth. 2008) (citation
omitted). “[I]nasmuch as property cannot constitutionally [be] taken by eminent
domain except for public use, no more property may be taken than the public use
requires – a rule which applies both to the amount of property and the estate or
interest to be acquired.” Id. (Citation omitted). Here the Authority uses
excessively broad language in both the Declaration and the Notice stating it is
taking the property “for any purpose whatsoever.” To allow the Authority access
“for any purpose whatsoever” invites abuse, as this stated purpose is much more
than what is reasonably required.3
Next, the Fowlers contend that the trial court erred in finding that the
Notice contained all of the elements required by sections 304 and 305(c) of the
3
In the Authority’s Sanitary Sewer Easement (Easement), which was attached to the
Declaration but not signed or notarized by either party, the Authority proposes to grant a right-
of-way “for the purpose of laying, maintaining, relaying, paralleling, enlarging, supplementing,
and installing a sanitary sewer line, manholes, riparian vegetation, and appurtenances.”
(Easement, ¶ 1, at 1.) The Easement does not contain the “for any purpose whatsoever”
language, and thus, is not excessive on its face.
4
Code. Specifically, the Fowlers contend that the Authority failed to provide a plan
or metes and bounds description sufficient for identification of the condemned
property.
The trial court found that the Authority provided a plan of the
property condemned with the Declaration that was sufficient for identification, in
that pursuant to 26 Pa. C.S. § 305(c)(9), “[i]n the case of a partial taking, a plot
plan showing the condemnee’s entire property and the area taken” is sufficient
notice. We agree that a metes and bounds description is not required.4 However,
the plan referred to by the trial court is a simple drawing that fails to state whether
it is to scale. The drawing also lacks any measurements of the relative distance of
the taking from structures or property lines. With these omissions, the plot plan in
this case would not enable a landowner, or even a surveyor, to determine the area
of the taking with any degree of confidence.5 Moreover, after a careful review of
4
In Milford Traumbauersville Area Sewer Authority v. Approximately 0.753 Acres of
Land, 358 A.2d 450, 454 (Pa. Cmwlth. 1976), this Court determined that a word description or a
plan form may be used to describe the property being taken. In Milford, we stated that “the
drawing of the proposed sewer line” that did not set forth elevations and was attached to the
declaration was sufficient because it was prepared by a consulting engineer and “taken from both
deed book and tax parcel recordings” and was “sufficient to give Condemnee the requisite notice
of that portion of his tract to be taken.” Id.
5
We find Dickson v. Pennsylvania Power and Light Company, 423 A.2d 711 (Pa. Super.
1980) to be instructive on the question of whether a property description or plan is “sufficient for
identification.” In that case, enforcement was sought of a recorded document granting an
easement to a utility. The document stated that the easement was shown on an attached plan, but
no such plan was attached. Our Superior Court stated—
The basic law involved in this matter is not at issue. . . Where a description is
sufficient so that one may determine the exact limits of the property included by
reference to a plan, deed or other similar records, the law is satisfied. . . Ladner
on Conveyancing in Pennsylvania states. . . that, “no deed will be operative unless
the description is sufficient for. . . identification. While it need not be technically
(Footnote continued on next page…)
5
the original record, we cannot conclude that there exists substantial evidence to
support the trial court’s finding that the plan was actually attached to the Notice.6
Absent the plan, the Notice lacks a description of the property to be taken that
would be sufficient for identification. Based upon the record provided, this Court
is unable to affirm the trial court’s finding that the Notice satisfied sections 304
and 305(c) of the Code. See Pa.R.A.P. 1921; Eichman v. McKeon, 824 A.2d 305
(Pa. Super. 2003).
The Fowlers also contend that the trial court erred in finding that the
Authority properly served the Notice in accordance with section 305(a) and (b) of
the Code, 26 Pa. C.S. § 305(a) and (b).
Section 305(a) of the Code requires service of the Notice upon
condemnees within 30 days after the filing of the Declaration. Here, the Authority
served the Notice upon condemnees at the same time that it served the Declaration.
Therefore, the Notice, which was served within 30 days, not after 30 days, was
timely. The statute does not require the items to be served separately.
However, pursuant to section 305(b)(1) of the Code, Notice is
required to be served “by any competent adult in the same manner as in a civil
(continued…)
accurate, the description must be clear and sufficiently precise to enable a
surveyor to locate and identify the property.”
Dickson, 423 A.2d at 712-13 (emphasis added).
6
The Notice is located at section 1 of the original record. Though the plan can be found
in other sections of the original record, the plan is not included in section 1.
6
action or by registered mail to the last known address of the person being served.”
Here, the Authority did not personally serve the Fowlers, but sent the documents
via certified mail7 and regular mail. The certified mail was returned as unclaimed,
while the first-class mail was not returned.
Section 305(b)(2) of the Code provides that “[i]f service cannot be
made in the manner set forth under paragraph (1), then service shall be made by
posting a copy of the notice upon the most public part of the property and by
publication of a copy of the notice, omitting the plot plan required by subsection
(c)(9), one time each in one newspaper of general circulation and the legal journal,
if any, published in the county.” (Emphasis added.) The Authority did not attempt
service pursuant to section 305(b)(2) after service was not made pursuant to
305(b)(1). Thus, the Authority failed to properly serve the Fowlers.8
Next, the Fowlers contend that the trial court erred in permitting the
Authority to file the Declaration without a bond in violation of section 303(a) of
the Code. Section 303(a) of the Code states:
7
The Statutory Construction Act of 1972, 1 Pa. C.S. § 1991, provides that registered mail
includes certified mail.
8
The Authority also argues because the Fowlers received the information required in
section 305(d) of the Code, that service was proper. We disagree. Section 305(d) of the Code
provides that: “Service of a copy of the declaration of taking, together with the information and
notice required by subsection (c)(2), (8), (9), and (13), shall constitute compliance with the
notice requirements of this section.” 26 Pa. C.S. §305(d) (emphasis added). Section 305(d) of
the Code still requires “service.” Thus, the service would still be improper.
7
Except as provided in subsection (b), [which allows a
condemnor with the power of taxation to forgo filing a
bond with the declaration of taking,] every 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.
26 Pa. C.S. §303(a) (emphasis added).
Here, the Authority failed to file a bond with the Declaration. There
is an exception to the bond requirement in situations where the condemnor has
taxing power. See 26 Pa. C.S. § 303(b). However, the Authority does not have
taxing power. In In re City of Scranton, 572 A.2d 250, 256 (Pa. Cmwlth. 1990),
this Court looked at the sufficiency of a bond and determined that “where
sufficient funds were available from other sources to cover the costs,
condemnation would constitute sufficient surety.” However, In re City of Scranton
deals with the amount of the security and an authority’s ability to provide sufficient
security, not with a bond not being filed at all. Id. at 255-56. In In re
Condemnation of Redevelopment Authority, (Pa. Cmwlth., No. 41 C.D. 2011, filed
February 22, 2013) (unreported), this Court determined that a bond did not need to
be posted for fees and costs, but did need to be posted to secure a taking.
Here, the trial court determined that the Authority has sufficient funds
to cover the costs and is not required to file a bond. “[T]he judgment of the trial
court as to the amount of the security will only be disturbed where there is a
manifest abuse of discretion.” In re City of Scranton, 572 A.2d at 256. However,
the amount of the security is not in dispute; it is the fact that the Authority failed to
8
post a bond at all. Thus, we must find that the trial court abused its discretion in
determining that no bond need be filed. The Authority is required to file a bond to
secure the taking because it is not a taxing authority. See 26 Pa. C.S. §303(a).
For the reasons set forth above, we reverse the order of the trial court.
__________________________________
JULIA K. HEARTHWAY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Condemnation by the North Strabane :
Township Municipal Authority, :
Washington County, Pennsylvania, :
for Acquisition of Property for :
Municipal Purposes in the Township : No. 1152 C.D. 2016
of North Strabane, Being the Lands of :
Lawrence D. Fowler and Cynthia L. :
Fowler, and Being Known as Parcel :
ID No. 520-005-02-0006-00 :
:
Appeal of: Lawrence D. Fowler and :
Cynthia L. Fowler :
ORDER
AND NOW, this 18th day of August, 2017, the order of the Court of
Common Pleas of Washington County in the above-captioned matter is reversed.
__________________________________
JULIA K. HEARTHWAY, Judge