S. O'Layer McCready v. DCED

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sarah O’Layer McCready, :
:
Petitioner :
:
v. : No. 778 C.D. 2018
: Argued: February 14, 2019
:
Department of Community :
and Economic Development, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY JUDGE WOJCIK FILED: March 5, 2019
Sarah O’Layer McCready (McCready) petitions for review of the
Final Adjudication and Order of the State Board of Property (Board) of the
Department of Community and Economic Development (Department)1 denying her
motion for summary judgment; granting the cross-motion for summary judgment
of the Pennsylvania Turnpike Commission (Commission); entering judgment in the
Commission’s favor; and dismissing her complaint to quiet title. We affirm.
In 1978, McCready and her husband were conveyed title to a parcel of
property in New Beaver Borough, Lawrence County, and Big Beaver Borough,
1
The Board is a departmental administrative board of the Department. Sections 202 and
901 of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S.
§§62, 1709.901; McCullough v. Department of Transportation, 578 A.2d 568, 571-72 (Pa.
Cmwlth. 1990).
Beaver County. McCready became the sole owner of the property upon the death
of her husband in 1983. On March 2, 1990, McCready conveyed title to a portion
of the property in Lawrence County to the Commission by deed in lieu of
condemnation2 for the construction of an extension of Highway 376, known as the
2
The Commission’s authority to obtain title to McCready’s real property was found in
the former Section 7(a)(6) of the Turnpike Organization, Extension and Toll Road Conversion
Act (Turnpike Act), Act of September 30, 1985, P.L. 240, 36 P.S. §651.7, repealed and replaced
by Section 8107(a)(6) of the Turnpike Act, 74 Pa. C.S. §8107(a)(6), which states, in pertinent
part, that “[t]he commission may . . . [a]cquire, hold, accept, own, use, hire, lease, exchange,
operate and dispose of . . . real property and interests in real property and make and enter into all
contracts and agreements necessary or incidental to the performance of its duties and the
execution of its powers under this chapter . . . .” See also Section 1 of the Pennsylvania
Turnpike Commission Act (Commission Act), Act of May 21, 1937, P.L. 774, as amended, 36
P.S. §652d, repealed insofar as inconsistent with the Turnpike Act (“The commission . . . shall
have power and authority to acquire, own, use, hire, lease, operate and dispose of . . . real
property and interests in real property, and to make and enter into all contracts and agreements
necessary or incidental to the performance of its duties in the execution of its powers under this
act . . . .”); Section 5 of the Commission Act, 36 P.S. §652e (“The commission . . . is hereby
authorized and empowered to acquire by purchase, whenever it shall deem such purchase
expedient, . . . interests in lands, as it may deem necessary for the construction and operation of
the turnpike, upon such terms and at such price as may be considered by it to be reasonable and
can be agreed upon between the commission and the owner thereof, and to take title thereon in
the name of the commission.”).
In turn, at the time of the conveyance in this case, the Commission’s authority to
condemn and purchase property was found in the former Section 9(a) and (b) of the Turnpike
Act, 36 P.S. §651.9(a), (b), repealed and replaced by Section 8109(a), (b)(1) of the Turnpike Act,
74 Pa. C.S. §8109(a), (b)(1), which states, in relevant part:
(a) Condemnation.—The commission may condemn, pursuant to
26 Pa. C.S. (relating to eminent domain), any lands, interests in
lands, property rights, rights-of-way, franchises, easements and
other property deemed necessary or convenient for the construction
and efficient operation of the turnpikes and the toll road
conversions . . . .
(b) Purchase.—
(Footnote continued on next page…)
2
“Beaver Valley Expressway” for the payment of $50,000.00. In relevant part, the
deed states that McCready conveyed the following to the Commission:
[McCready] for and in consideration of the sum of ONE
DOLLAR ($1.00) AND OTHER GOOD AND
VALUABLE CONSIDERATION, . . . unto them well
and truly paid by the [Commission] at or before the
sealing and delivery hereof, the receipt whereof is hereby
acknowledged, have granted, bargained and sold,
released and confirmed, and by these presents do grant,
bargain and sell, release and confirm unto the
[Commission], its successors and assigns,
***
All that certain tract or parcel of land situate in New
Beaver Borough, Lawrence County, and in Big Beaver
Borough, Beaver County, being bound and described
according to [Commission] Plan No. R/W 11102 . . . .
***
Containing 28.527 acres.
***
Together with all and singular the improvements, ways,
streets, alleys, roads, lanes, passages, (public or private),
(continued…)
(1) The commission may acquire by purchase, whenever it shall
deem the purchase expedient, . . . any lands, interests in lands,
property rights, rights-of-way, franchises, easements and other
property deemed necessary or convenient for the construction and
efficient operation of the turnpikes and toll road conversions . . .
upon terms and at a price as may be considered by the commission
to be reasonable and can be agreed upon between the commission
and the owner thereof and to take title thereto in the name of the
commission.
3
waters, water-courses, rights, liberties, privileges,
hereditaments and appurtenances, whatsoever unto the
hereby granted premises belonging or in anywise
appertaining thereto and the reversions and remainders,
rents, issues, and profits thereof and all the estate, right,
title, interests, property, claim and demand whatsoever
of [McCready], as well at law as in equity, of, in and to
the same.
To have and to hold the said lot or piece of ground above
described, the hereditaments and premises hereby
granted, or mentioned and intended so to be, with the
appurtenances, unto the [Commission], its successors and
assigns, to and for the only proper use and behoof of the
[Commission], its successors and assigns forever.
And [McCready] for [her] heirs, executors,
administrators, successors and assigns, do hereby release,
quitclaim and forever discharge the [Commission], its
successors and assigns of and from any and all actions,
rights-of-action, suits demands, claims and damages of
every type or character whatsoever which in law or
equity [McCready] ever had, now have or may hereafter
have for or by reason of the construction, operation and
maintenance of the Pennsylvania Turnpike through or
upon the land herein conveyed and any incidental or
consequential damage to any remaining portion of the
lands of [McCready] of which the herein conveyed land
may form a part or parcel.
And [McCready], [her] heirs, executors, administrators,
successors and assigns do covenant and agree to and with
the [Commission], its successors and assigns, by these
presents that [McCready] and [her] heirs, executors,
administrators, successors, and assigns all and singular
the hereditaments and premises hereby granted or
mentioned and intended to be, with the appurtenances
unto the [Commission], its successors and assigns against
them, [McCready] and [her] heirs, executors,
administrators, successors, and assigns and against all
and every person and persons whomever lawfully
claiming or to claim the same or any part thereof shall
and will WARRANT AND FOREVER DEFEND.
4
This Deed is being granted in lieu of condemnation.
Reproduced Record (R.R.) at 12a-13a (emphasis added).
In February 2012, McCready filed a complaint in the Lawrence
County Common Pleas Court (trial court) to quiet title to the mineral estate in the
land conveyed to the Commission in 1990. McCready alleged that although the
deed conveying title to the Commission did not expressly reserve any mineral
interest, she believed that it would only convey an interest in the surface rights to
the Commission. R.R. at 6a-7a. She asserted that the land was conveyed in
anticipation of condemnation by the Commission and that the Commission was not
required to own the mineral rights “in order to ‘perform its duties’ or ‘execute its
powers’ with regard to the ‘construction, operation, or maintenance of the
turnpike.’” Id. at 7a. She claimed that she did not intend to transfer any greater
interest in the property than the Commission “was authorized to acquire or would
have otherwise been entitled to take by eminent domain,” and that the
consideration paid by the Commission only reflected the value of the surface rights
in the property and did not adequately compensate her for value of the minerals
below the surface. Id. at 7a-8a.
As a result, McCready asked the trial court to: (1) create a separate
interest in the minerals below the surface of the property; (2) declare that she is the
owner of all of the minerals below the surface of the property; (3) declare that the
deed is reformed; (4) direct the Commission to execute a deed conveying all
interest in the minerals below the surface of the property; (5) direct the Lawrence
County Recorder of Deeds to accept for recording a copy of the court’s order; and
(6) such other relief as the court deemed proper. R.R. at 9a.
The Commission filed an answer to the complaint denying, inter alia,
that McCready believed that the deed only conveyed an interest in the surface
5
rights of the property; that the acquisition of mineral rights is not necessary to
perform its duties with respect “to the ‘construction, operation or maintenance of
the turnpike;’” and that the consideration paid reflected only the value of the
surface rights and not the mineral rights in the property. R.R. at 18a-19a.
In 2014, McCready and the Commission filed cross-motions for
summary judgment. The Commission asserted that the deed conveying the
property is an unambiguous written document that speaks for itself, that it is
irrelevant what McCready believed at the time that she executed the deed, and that
she has no interest in the property. See R.R. at 26a-27a. McCready argued that the
Commission lacked the authority to acquire a fee simple interest in the property,
including the mineral rights, through its eminent domain powers so that the deed in
lieu of condemnation conveying such an interest is a nullity. See id. at 44a-47a.
Following oral argument on the cross-motions, the trial court ordered
an evidentiary hearing to determine whether the Commission’s acquisition of the
property in fee simple was excessive. R.R. at 106a-107a. At the hearing,3
McCready presented August Arnold, a former construction engineer for the
Pennsylvania Department of Transportation, who testified that the Commission did
not need to own or control the mineral formations under the surface for the
stability of a highway to construct, maintain, or operate the highway over the
property. Id. at 163a-165a. He also stated that in 1990, at the time of conveyance,
technology only permitted vertical drilling for oil and gas and not horizontal. Id. at
170a-172a, 174a.
3
Prior to the evidentiary hearing, the judge recused himself and was replaced by another
judge of the trial court.
6
McCready also presented Dan Billman, a consulting geologist, who
testified that he was not aware of drilling beneath a highway prior to 2004. R.R. at
197a-198a. He stated that the owner of a surface estate does not have any
reasonable need to own or control the mineral formations below 1,000 feet to
protect vertical or lateral support for the surface and that fracking, or hydraulic
fracturing, does not cause any measurable geological impact on the surface of the
land. Id. at 206a-207a.
The Commission presented Samuel Lobins, district manager for the
Department of Environmental Protection’s oil and gas program, who testified that
in 1990, the one permit application for a vertical well in Lawrence County was
granted. R.R. at 229a, 231a. He stated that he was not aware of a permit being
issued for a wellhead within the turnpike’s right-of-way and raised safety as a
concern. Id. at 232a.
The Commission also presented Kenneth Heirendt, the Commission’s
manager for geotechnical engineering, who testified that it was necessary for the
Commission to obtain a fee simple interest in the property to have full control to
build, maintain, and operate the turnpike and to prevent others from impeding its
safe physical operation. R.R. 243a-244a. He opined that the Commission needs to
have full control of the property to prevent other owners of subsurface interests
from coming onto the surface for extraction or production of oil and gas. Id. at
247a. He stated that due to the technological changes since 2004, while the
Commission still needs to control the surface, it is no longer efficient to purchase
the subsurface rights, but that it is necessary to have an agreement restricting the
surface activities. Id. at 249a.
7
On September 20, 2016, the trial court issued an opinion and order
disposing of the cross-motions for summary judgment. The trial court rejected
McCready’s assertion that the deed is ambiguous with respect to the conveyance of
mineral rights or that the Commission’s acquisition of a fee simple interest was
beyond its authority. R.R. at 341a, 348a-349a (citations omitted). As a result, the
trial court concluded that the 1990 deed in lieu of condemnation conveyed a fee
simple interest in the property to the Commission, and the Commission’s taking
title to the property in fee simple was a proper exercise of its discretion. Id. at
354a. Accordingly, the trial court denied McCready’s motion for summary
judgment; granted the Commission’s cross-motion for summary judgment; and
dismissed McCready’s complaint. Id.
However, on appeal to this Court, we held that the trial court was
without jurisdiction to dispose of the action to quiet title and that the Board was the
proper tribunal to adjudicate McCready’s action. See McCready v. Pennsylvania
Turnpike Commission (Pa. Cmwlth., No. 1762 C.D. 2016, filed April 26, 2017),
slip op. at 8-10. Accordingly, we vacated the trial court’s order and remanded the
matter to that court to transfer the record to the Board for disposition.
Following remand, the parties agreed that the Board could
appropriately dispose of the cross-motions based on the trial court record and the
filing of supplemental motions. Initially, the Board rejected McCready’s assertion
that she intended to convey only the surface rights and not the mineral rights in the
property that was conveyed by the deed. The Board explained that “in construing a
deed the intent must be gleaned solely from its language,” and that “[i]n the
absence of fraud, accident or mistake, parol evidence is inadmissible to vary or
limit the scope of a deed’s express covenants, and the nature and quantity of the
8
interest conveyed must be ascertained by the instrument itself and cannot be orally
shown; it is not what the parties may have intended by the language used but what
is the meaning of the words.” R.R. at 428a (footnote and citations omitted). The
Board determined that “[McCready]’s deed is clear on its face: it grants to the
Commission the described real estate ‘Together with all [. . .] the estate, right, title,
interests, property, claim and demand whatsoever of [McCready], [. . .] and
without any reservation of mineral rights. This language is not capable of being
understood as excluding the mineral rights.” Id. at 428a-429a.
The Board also rejected McCready’s assertion that the deed is
ambiguous because the Commission could not condemn the subsurface mineral
rights because they were not needed for the construction or operation of its
highway system. The Board noted that “no more property may be taken [by
eminent domain] than the public use requires – a rule that applies both to the
amount of property and the estate or interest to be acquired,” but that “[w]here the
condemnor has a valid reason to prefer taking in fee simple rather than an
easement, the taking is not excessive and not an abuse of discretion.” R.R. at
429a-430a (citations and footnote omitted).
The Board explained that McCready “has pointed to no evidence to
support a finding that at the time of the condemnation and deed the Commission
would have abused its discretion in choosing to acquire the property in fee simple
(including both surface and mineral estates), rather than acquiring only the surface
estate and not the mineral estate,” that McCready’s “construction engineer testified
that horizontal drilling was not available technology being utilized in 1990,” “[a]nd
[that] her consulting engineer was not aware of drilling beneath a highway prior to
2004.” R.R. at 430a (citations omitted). The Board observed, “[n]or has
9
[McCready] identified any evidence that – in addition to being not necessary – it
was not convenient for the Commission to acquire both the surface and mineral
estates,” and “[w]ithout being able to point to evidence to support her burden of
proof, [McCready] cannot identify any genuine issue of material fact to defeat the
Commission’s motion for summary judgment.” Id. at 430a-431a.
Based on the foregoing, the Board concluded:
In the absence of evidence to show that acquiring the
mineral estate would be excessive, an abuse of discretion
or otherwise unlawful, reciting merely that the “deed is
being granted in lieu of condemnation” without reference
to any mineral estate does not make the deed susceptible
to an alternate construction that the mineral estate is
excepted from the conveyance. Because the language of
[McCready]’s deed is not capable of any alternate
construction, it is not ambiguous. Therefore,
[McCready] may not present parol evidence that she did
not intend to convey the mineral estate. Without such
evidence, [McCready] cannot overcome the clear
language of the deed and cannot prevail on her claim that
she did not convey the mineral estate. The Commission
is therefore entitled to judgment as a matter of law.
R.R. at 431a. Accordingly, the Board issued the instant Final Adjudication and
Order denying McCready’s motion for summary judgment; granting the
Commission’s cross-motion for summary judgment; entering judgment in the
Commission’s favor; and dismissing McCready’s action to quiet title. Id. at 432a.
McCready then filed the instant petition for review.4
4
The Department filed a Notice of Non-Participation in McCready’s appeal, but the
Commission filed a Brief of Intervenor. This Court’s scope of review on appeal requires that we
affirm the Board’s adjudication in a quiet title action unless the adjudication is in violation of
McCready’s constitutional rights, or it is not in accordance with the law, or if any of the Board’s
findings of fact necessary to support its adjudication is not supported by substantial evidence;
however, we exercise de novo review over questions of law. Long Run Timber Company v.
(Footnote continued on next page…)
10
On appeal, McCready claims that the Board erred in considering the
conflicting testimony at the trial court evidentiary hearing regarding whether the
Commission’s purchase of a fee simple estate was excessive and in granting
summary judgment based on its finding that the Commission’s taking was not
excessive or an abuse of discretion. Specifically, McCready contends that the
Commission was not statutorily empowered to obtain a fee simple estate because
the mineral rights in the property were not necessary or convenient for the
Commission’s construction or efficient operation of the Turnpike, and that the
Board was required to resolve the material questions of fact in McCready’s favor
as the non-moving party.
However, McCready’s reliance on the summary judgment provisions
of the Pennsylvania Rules of Civil Procedure as a basis for reversing the Board’s
Final Adjudication and Order in this matter is misplaced. Pursuant to Section
35.54 of the General Rules of Administrative Practice and Procedure, “[a]
respondent may . . . file . . . a motion to dismiss a complaint because of lack of
legal sufficiency appearing on the face of the complaint.” 1 Pa. Code §35.54. As
this Court has stated:
The [Department] has not adopted inconsistent rules or
regulations nor has the [Department] adopted the
Pennsylvania Rules of Civil Procedure. Thus, with
regard to quiet title actions before the [Board], the Rules
of Administrative Practice and Procedure apply.
According to 1 Pa. Code §35.54, ‘a respondent may also
file with his answer a motion to dismiss a complaint
(continued…)
Department of Conservation and Natural Resources, 145 A.3d 1217, 1226 n.7 (Pa. Cmwlth.
2016).
11
because of lack of legal sufficiency appearing on the face
of the complaint.’ Thus, it was proper for the
Department to have filed a motion to dismiss and it was
not error for the Board to have granted the motion.
McCullough, 578 A.2d at 572. See also Malt Beverages Distributors Association
v. Pennsylvania Liquor Control Board, 966 A.2d 1188, 1197-98 (Pa. Cmwlth.
2009) (“[T]he Pennsylvania Rules of Civil Procedure do not apply to proceedings
before administrative agencies and commissions.”) (citations omitted).
With respect to the merits of the claims raised in McCready’s
complaint, as the Superior Court has noted:
In the absence of fraud, accident or mistake, the nature
and quantity of the real estate interest conveyed must be
ascertained from the deed itself and cannot be shown by
parol. When the language of the deed is clear and free
from ambiguity, the intent of the parties must be
determined from the language of the deed. With respect
to unambiguous deeds, a court must ascertain what is the
meaning of the words used, not what may have been
intended by the parties as shown by parol. To permit a
variation of a deed description which is complete and
unambiguous on its face, there must be evidence of a
mutual mistake which is clear, precise and convincing.
Pennsylvania Electric Company v. Waltman, 670 A.2d 1165, 1169 (Pa. Super.
1995) (citations omitted). Thus, the Board was first required to determine whether
the deed is ambiguous, and whether it explicitly conveyed a fee simple estate to the
Commission or whether McCready explicitly retained the mineral estate.5
5
The Superior Court has explained:
The terms “exception” and “reservation” have been used
interchangeably in deeds. Walker v. Forcey, [151 A.2d 601, 606
(Pa. 1959)]. A reservation pertains to incorporeal things that do
not exist at the time the conveyance is made. Id. See Lauderbach–
Zerby Co. v. Lewis, [129 A. 83, 84 (Pa. 1925)] (reservation is
(Footnote continued on next page…)
12
As outlined above, the deed states, in relevant part, that McCready
conveyed the following property to the Commission:
All that certain tract or parcel of land situate in New
Beaver Borough, Lawrence County, and in Big Beaver
Borough, Beaver County, being bound and described
according to [Commission] Plan No. R/W 11102 . . . .
***
Containing 28.527 acres.
***
(continued…)
creation of a right or interest that did not exist prior to grant).
However, even if the term “reservation” is used, if the thing or
right reserved is in existence, then the language in fact constitutes
an exception. Walker, 151 A.2d at 606; Silvis v. Peoples Natural
Gas Co., [126 A.2d 706, 708 (Pa. 1956)] (where no new rights are
created, language treated as exception). If there is a reservation, it
ceases at the death of the grantor, because the thing reserved was
not in existence at the time of granting and the thing reserved vests
in the grantee. [126 A.2d at 708]. An exception, on the other
hand, retains in the grantor the title of the thing excepted. Id.
Because the exception does not pass with the grant, it demises
through the grantor’s estate absent other provisions. Id. at 709.
Instantly, paragraph 1 speaks to coal, oil, timber, gas and
minerals. These are things that are corporeal, and in existence
prior to the deed. Paragraph 1 did not create a new right.
Therefore, paragraph 1 created an exception. . . . The trial court did
not err in concluding that the language of paragraph 1 created an
exception, rather than a reservation.
Ralston v. Ralston, 55 A.3d 736, 742-43 (Pa. Super. 2012). Additionally, “[t]he intent of the
grantor must be disclosed by the words used.” Lauderbach–Zerby Co., 129 A. at 84.
13
Together with all and singular the improvements, ways,
streets, alleys, roads, lanes, passages, (public or private),
waters, water-courses, rights, liberties, privileges,
hereditaments and appurtenances, whatsoever unto the
hereby granted premises belonging or in anywise
appertaining thereto and the reversions and remainders,
rents, issues, and profits thereof and all the estate, right,
title, interests, property, claim and demand whatsoever
of [McCready], as well at law as in equity, of, in and to
the same.
R.R. at 12a (emphasis added).
As conceded by McCready in her complaint, there is absolutely no
retention of the mineral rights by her through an exception or reservation that is
stated in the deed. See R.R. at 6a-7a, 12a-13a. As a result, in the absence of any
additional allegation of mutual mistake in the complaint by McCready, she may
not alter the express and unambiguous deed provisions through parol evidence
regarding her intent with respect to the deed. Pennsylvania Electric Company.
Moreover, with respect to McCready’s assertion that the conveyance
of a fee simple interest to the Commission was excessive and an abuse of
discretion, and that the Board erred in its allocation of the burden of proof in this
regard, this Court has explained:
In its review of a decision to condemn property
and the extent of the taking, the trial court is limited to
determining whether the condemnor is guilty of fraud,
bad faith, or has committed an abuse of discretion. In re
Condemnation of Property of Waite, [641 A.2d 25, 28
(Pa. Cmwlth.), appeal denied, 651 A.2d 543 (Pa. 1994)].
The burden of proving that the condemnor has abused its
discretion is on the objector or condemnee and the
burden is a heavy one. Id. In such cases, there is a
strong presumption that the condemnor has acted
properly. Id.
In re Pennsylvania Turnpike Commission, 84 A.3d 768, 776 (Pa. Cmwlth. 2014).
14
McCready has failed to allege or demonstrate the requisite fraud, bad
faith or abuse of the Commission’s discretion6 in the estate that the Commission
purchased from her in 1990 for $50,000.00. Contrary to McCready’s bald
assertions, the allegations raised in her complaint are that the Commission was
only required or authorized to obtain a lesser estate and that it should have paid
more for the estate that was purchased. However, there are no allegations
regarding the Property’s true value in 1990 at the time of the Commission’s
purchase.
Clearly, the Commission had the authority and discretion to obtain a
fee simple estate in the Property at the time of its purchase. See 74 Pa. C.S.
§8109(b)(1) (“The commission may acquire by purchase, whenever it shall deem
the purchase expedient, . . . any lands, interests in lands, [or] property rights . . .
deemed necessary or convenient for the construction and efficient operation of the
turnpikes and toll road conversions . . . upon terms and at a price as may be
considered by the commission to be reasonable . . . .”); Section 5 of the
Commission Act, 36 P.S. §652e (“The commission . . . is hereby authorized and
empowered to acquire by purchase, whenever it shall deem such purchase
expedient, . . . interests in lands, as it may deem necessary for the construction and
operation of the turnpike, upon such terms and at such price as may be considered
by it to be reasonable . . . . ”).
Moreover, the reasonableness of the Commission’s exercise of
discretion in this regard at the time of purchase is supported by the testimony of
6
An abuse of discretion “is not merely an error of judgment, [but is a] judgment [that is]
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the
evidence or the record . . . .” Mielcuszny et ux. v. Rosol, 176 A. 236, 237 (Pa. 1934).
15
Kenneth Heirendt, its manager for geotechnical engineering, who stated that it was
necessary for the Commission to obtain a fee simple interest in the property to
have full control to build, maintain, and operate the turnpike and to prevent others
from impeding its safe physical operation. R.R. 243a-244a. He further opined that
the Commission needs to have full control of the property to prevent other owners
of subsurface interests from coming onto the surface for extraction or production
of oil and gas. Id. at 247a. He stated that due to the technological changes since
2004, while the Commission still needs to control the surface, it is no longer
efficient to purchase the subsurface rights, but that it is necessary to have an
agreement restricting the surface activities. Id. at 249a. Thus, the Board’s
determination that the Commission did not abuse its discretion or exceed its
authority in obtaining the Property in fee simple is supported by substantial record
evidence and will not be disturbed by this Court on appeal. See, e.g., In re
Condemnation of Property of Waite, 641 A.2d at 27-28 n.1 (“A finding by the trial
court that a condemnor acted in good faith precludes this Court from scrutinizing
the wisdom of the condemnor’s exercise of its power.”) (citation omitted).7
Finally, in the absence of any credible evidence that the compensation
paid by the Commission for the Property in 1990 was inadequate, we will not
disturb the Board’s determination that the Commission properly purchased a fee
simple estate for $50,000.00. See, e.g., Fuller v. Lehigh-Northampton Airport
Authority, 172 A.3d 1166, 1171-72 (Pa. Cmwlth. 2017), appeal denied, 183 A.3d
7
See also Department of Transportation v. Brown, 576 A.2d 75, 77 (Pa. Cmwlth. 1990)
(“The Board, as fact-finder, is entitled to accept or reject the testimony of any witness, in whole
or in part. If evidence is such that a reasonable mind might accept it as adequate to support the
conclusion reached, we are precluded from disturbing the finding even though this Court might
have resolved the conflict differently.”) (citations omitted).
16
970 (Pa. 2018) (“As our Supreme Court has stated, a property owner should
receive the value of his or her property [under the Eminent Domain Code, 26 Pa.
C.S. §§101-1106,] as nearly as may be to the date of the loss.”) (citation omitted
and emphasis in original); In re Pennsylvania Turnpike Commission, 84 A.3d at
776 (“In the present case, Condemnees have offered no evidence that the
Commission acted fraudulently, in bad faith, or that it abused its discretion.
Instead, Condemnees assert that even Schwab, the Commission’s engineer, agreed
with their engineer, Magalotti, that all work could be done by simply acquiring an
easement.”).
Accordingly, the Board’s order is affirmed.8
MICHAEL H. WOJCIK, Judge
8
It is well settled that this Court may affirm the Board’s Final Adjudication and Order on
other grounds where grounds for affirmance exist. Miller v. State Employees Retirement System,
137 A.3d 674, 680 n.6 (Pa. Cmwlth.), appeal denied, 160 A.3d 758 (Pa. 2016) (citations
omitted).
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sarah O’Layer McCready, :
:
Petitioner :
:
v. : No. 778 C.D. 2018
:
:
Department of Community :
and Economic Development, :
:
Respondent :
ORDER
AND NOW, this 5th day of March, 2019, the Final Adjudication and
Order of the State Board of Property of the Department of Community and
Economic Development dated April 20, 2018, is AFFIRMED.
MICHAEL H. WOJCIK, Judge