Forty Foot Farms v. PA Turnpike Commission

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Forty Foot Farms, :

Appellant :

:

v. : Nos. 840, 841 and 842 C.D. 2019

: ARGUED: February 9, 2021

Pennsylvania Turnpike Commission :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE CEISLER FILED: March 2, 2021

In these consolidated appeals, Appellant Forty Foot Farms (Forty Foot)

appeals from three orders issued by the Court of Common Pleas of Montgomery

County (Trial Court) which pertained to Forty Foot’s Petition for the Appointment

of a Board of Viewers, two which granted Appellee Pennsylvania Turnpike

Commission’s (Commission) motions in limine regarding expert reports submitted

by Forty Foot, and one which granted the Commission’s motion for summary

judgment.

I. Facts and Procedural History

Forty Foot owns a parcel of land in Lansdale, Pennsylvania, (Property), which

is the subject of the instant appeal. See Reproduced Record (R.R.) at 84a. “The

Property . . . is triangular in shape and [is] located on the northeast side of

Sumneytown Pike . . . at the intersection of Old Forty Foot Road.” Id. at 68a. On the

Property’s west side is “the 309 Connector[,] which is a four-lane highway that

connects Sumneytown Pike to State Route 309 to the north.” Id. To the east is the

Pennsylvania Turnpike’s Northeast Extension, while “[o]n the north side, the

Property adjoins the southbound on- and off-ramps of the [Turnpike’s] Lansdale

[i]nterchange[.]” Id.

In 2006, Forty Foot filed an application with the Zoning Hearing Board of

Towamencin Township (Zoning Board), through which it sought a special

exception, as well as a number of use and dimensional variances, in furtherance of

its desire to develop the Property. Id. at 84a-85a. Specifically, Forty Foot sought to

build a 4,500-square-foot restaurant and a 3,700-square-foot bank, which would be

supplemented by on-site parking. Id. at 89a. On January 4, 2007, the Zoning Board

granted most of Forty Foot’s application, with the exception of a single dimensional

variance pertaining to the distance of the bank and associated parking spaces from a

nearby body of water. Id. at 103a-04a. This grant was conditioned, in part, upon

Forty Foot “offer[ing] the area of the [Property] designated as the ‘FUTURE 309

CONNECTOR’ for dedication to the [Commonwealth] for . . . 1 dollar[.]” Id. at

103a. Both Forty Foot and Towamencin Township appealed the Zoning Board’s

decision to the Trial Court in February 2007. Id. at 71a. There is no proof in the

record establishing that Forty Foot or the Township ever briefed, orally argued, or

discontinued their respective statutory appeals, nor is there proof that the Trial Court

ever issued a decision or decisions on the merits.

On June 7, 2007, Forty Foot sought the Township’s approval of a preliminary

land development plan (Original Plan) for the Property, one which generally

followed the contours of the relief granted by the Zoning Board, but which,

according to Forty Foot, “required certain waivers.” Id. at 71a-72a; Forty Foot’s Br.

at 6.1 The Township’s Board of Supervisors considered the Original Plan and voted

to deny it on September 2, 2007. R.R. at 72a. Forty Foot then appealed to the Trial

1

It is not clear from the record what these “certain waivers” entailed and neither party

clarifies this issue in their respective appellate briefs.

2

Court on September 7, 2007, but, as with the appeals of the Zoning Board’s decision,

there is nothing in the record establishing that any further action has been taken

regarding this denial. Id.

In September 2008, the Pennsylvania Department of Transportation

condemned a portion of the Property, in furtherance of the 309 Connector project.

Id. at 68a. It is unclear from the record how much of the Property was affected by

this condemnation, but its effect was to reduce the Property’s area to its current

bounds of roughly 7.55 acres. Id. at 68a, 84a.

On January 3, 2011, the Commission filed a Declaration of Taking, through

which it sought to condemn 2.453 acres of the Property for use in the reconstruction

of a portion of the Pennsylvania Turnpike’s Northeast Extension. Supplemental

Reproduced Record (S.R.R.) at 312a-14a.2 Forty Foot responded on June 9, 2015,

by submitting a Petition for the Appointment of a Board of Viewers, pursuant to

Section 502 of the Eminent Domain Code, 26 Pa. C.S. § 502.3 S.R.R. at 327a-28a.

Forty Foot and the Commission then presented a joint stipulation in May 2016,

through which they agreed to have the matter resolved via jury trial, rather than

2

Forty Foot filed this supplemental reproduced record, but did not adhere to the page

numbering requirements set forth in the Pennsylvania Rules of Appellate Procedure. See Pa.

R.A.P. 2173 (“Except as provided in [Pennsylvania] Rule [of Appellate Procedure] 2174 (tables

of contents and citations), the pages of . . . any supplemental reproduced record shall be numbered

separately in Arabic figures . . . followed . . . by a small b, thus 1b, 2b, 3b, etc.”). Nevertheless, for

simplicity’s sake, we will cite to the supplemental reproduced record using the page numbers

provided by Forty Foot.

3

26 Pa. C.S. § 502.

3

through a board of viewers, which was approved by the Trial Court.4 Id. at 341a-

43a.

Forty Foot subsequently secured an expert report authored by Thomas F.

Oeste, Esquire (Oeste Report). Therein, Oeste stated that he believed the Trial Court

would have affirmed the Zoning Board’s January 2007 decision and reversed the

Board of Supervisors’ September 2007 denial of Forty Foot’s Original Plan. R.R. at

22a-29a. As a result, Oeste concluded that “it is very likely that [Forty Foot] would

have been able to obtain all approvals necessary to develop the Property in

accordance with its [Original Plan].” Id. at 29a.

On April 14, 2017, the Commission filed a motion in limine, through which it

sought to preclude Oeste from testifying at trial. The Commission argued that Oeste

was not qualified to render an opinion regarding how the Trial Court would rule on

the aforementioned statutory appeals, had provided no methodological basis in his

Report for his conclusions, and only offered testimony that would be both highly

prejudicial and not probative regarding the issues at hand. Id. at 7a-14a. The Trial

Court granted this motion over Forty Foot’s opposition on May 18, 2017, and used

language in its order that barred Oeste from testifying at trial, but did not place any

express restrictions on Forty Foot’s ability to offer another expert’s opinion for use

at trial. See id. at 158a-59a.5

4

This is permitted by Section 520(a) of the Eminent Domain Code, which states: “The

condemnor and condemnee may, by written agreement filed with and approved by the court, waive

proceedings before viewers and proceed directly to the court on agreed issues of law or fact. The

proceedings shall then be the same as on appeal from a report of viewers.” 26 Pa. C.S. § 520(a).

5

The Trial Court’s order states, in relevant part:

[A]ttorney Oeste’s testimony is precluded from trial for reasons

including, but not limited to, the following:

4

On May 24, 2017, the Trial Court issued a scheduling order that, in relevant

part, gave Forty Foot until July 22, 2017, to file its expert reports. Notably, this

scheduling order made no mention of the Oeste preclusion order. See id. at 160a.

Thereafter, Forty Foot submitted an expert report authored by John Kennedy,

AICP, (Kennedy Report), in which Kennedy considered a revised preliminary land

development plan (Revised Plan) for the Property. Id. at 201a. This Revised Plan

had not been submitted to the Township, but rather reflected the “review letters

received from Township consultants and the variances previously granted [to Forty

1. Attorney Oeste’s purported testimony is not probative of how the

[T]rial [C]ourt or an appellate court would have disposed of the

Township’s appeal docketed at Montgomery County Docket

Number 2007-02994 as the appeal was withdrawn by the Township

making the underlying [Zoning] Board ruling the law of the case.

Thus, Attorney Oeste’s speculation that a trial/appellate court would

have affirmed the [Zoning] Board’s ruling is unnecessary since the

[Zoning] Board’s ruling presently stands.

2. Attorney Oeste’s purported testimony is not probative of how the

[T]rial [C]ourt or an appellate court would have disposed of Forty

Foot[’s] appeal docketed at Montgomery County Docket Number

2007-23790 as the appeal was not pursued to disposition prior to the

declaration of taking, and to date, has been abandoned, making the

underlying ruling by the Board of Supervisors . . . [regarding the

Original P]lan the law of the case. Thus, Attorney Oeste’s

speculation that a trial/appellate court would have reversed the

Board of Supervisors’ ruling contradicts the posture and facts of

record.

3. Given the specific procedural posture of the case sub judice, the

proposed testimony of Attorney Oeste would be both contra the

record and based upon facts not of record.

4. The proposed testimony of Attorney Oeste would not aid the fact

finder because the best evidence, and most accurate evidence, is the

record itself as it stands. Any speculative testimony inconsistent

with the record would unnecessarily confuse the issues in the case.

R.R. at 158a-59a.

5

Foot by the Zoning Board].” Id. According to Kennedy, it was “more than

reasonably probable and highly likely” that, had it been asked to do so, the Zoning

Board would have granted variances to Forty Foot for the Revised Plan that were

“similar” to those granted regarding the Original Plan. Id. at 199a-200a.

Additionally, Kennedy asserted that “[t]he chief concerns [articulated in] the[se]

review letters have been addressed in this [Revised P]lan and no waivers are

necessary or required and [Forty Foot] would [have been] entitled to gain final

approval [from the Board of Supervisors] as of right.” Id. at 201a. Kennedy

concluded that, had it not been for the Commission’s condemnation of part of the

Property, “it [was] more than reasonably probable that” Forty Foot would have been

permitted to develop the Property in accordance with the Revised Plan. Id. at 202a.

On September 22, 2017, the Commission filed another motion in limine,

through which it requested that the Trial Court preclude Kennedy from testifying at

trial. The Commission argued that the Kennedy Report was “functionally identical”

to the Oeste Report and, therefore, that it represented “an entirely transparent attempt

to evade the import of the [Trial] Court’s [May 18, 2017] order striking and

precluding the Oeste Report and testimony of that nature.” Id. at 166a-176a. The

Trial Court heard oral argument regarding this second motion in limine on October

19, 2017, and granted the motion over Forty Foot’s opposition on November 2, 2017.

Forty Foot then requested that the Trial Court certify its November 2, 2017

order for interlocutory appeal, but the Trial Court declined to do so. See Forty Foot

Farms v. Pa. Tpk. Comm’n (Pa. Cmwlth., No. 501 C.D. 2018, filed April 2, 2019),

slip op. at 4. On March 29, 2018, the parties entered a joint stipulation of judgment

in favor of the Commission. See R.R. at 267a-69a. There is no evidence that the Trial

Court approved this stipulated judgment; nevertheless, Forty Foot then used this

6

stipulation in an “attempt[] to circumvent the [T]rial [C]ourt and facilitate an

immediate appeal of both the [May 18, 2017 o]rder and the [November 2, 2017

o]rder.” Forty Foot Farms, slip op. at 4-6. Our Court quashed this appeal as

interlocutory on April 2, 2019. Id. at 9.

On April 23, 2019, the Commission filed a motion for summary judgment.

Therein, the Commission maintained it was entitled to judgment in its favor because

Forty Foot’s valuation expert had first “relied upon . . . the Oeste [R]eport and

opinion, and then the Kennedy [R]eport and opinion, as the basis or foundation of

his own expert opinion.” R.R. at 285a. The Commission argued that the valuation

expert’s testimony was therefore speculative and inadmissible, given the Trial

Court’s rulings barring both Kennedy and Oeste from testifying, as well as Forty

Foot’s failure to offer admissible expert testimony regarding how the Property could

have been developed. Id. at 283a-85a. Accordingly, as Forty Foot had failed to offer

admissible valuation evidence, there was no genuine issue of material fact to submit

to the factfinder regarding the value of Forty Foot’s land that had been condemned

by the Commission. Id. at 285a-86a. Forty Foot responded in opposition on May 9,

2019, after which the Trial Court granted the Commission’s motion on May 15,

2019. These three appeals, one for each of the contested orders, followed.6

On June 7, 2019, the Trial Court ordered Forty Foot to file a concise statement

of errors complained of on appeal. Forty Foot complied with this order on June 13,

2019. The Trial Court then issued an opinion in support of its rulings on August 20,

2019, in which, in relevant part, it explained its preclusion of Kennedy’s testimony

thusly:

6

Our Court consolidated these appeals on July 23, 2019. See Commonwealth Ct. Ord.,

7/23/19, at 1.

7

By agreement, the [T]rial [C]ourt gave Forty Foot . . .

permission to submit a new expert report to replace the

precluded Oeste Report. The new report clearly had to be

within the confines of the [Trial C]ourt’s May 18, 2017[]

order which precluded speculation on how the [T]rial

[C]ourt would have ruled on the zoning appeals and

precluded evidence going contra to the record. [The

Kennedy R]eport violated the May 18, 2017[] order and

was a repeat of the Oeste Report.

....

The Kennedy . . . Report is not new; both the Oeste and

Kennedy Reports address the same issue and render the

same conclusion/opinion. Further, the . . . Kennedy Report

violates the mandates of the [T]rial [C]ourt’s May 18,

2017[] ruling by opining on the very issue that had been

precluded therein.

Further, to the extent that Forty Foot . . . argues that the

[Kennedy R]eport was based on a new plan, the [T]rial

[C]ourt did not give permission to submit a new plan, only

a new report addressing the state of the record as it was.

Trial Ct. Op., 8/20/19, at 4-6.7

II. Discussion

Forty Foot presents a number of arguments for our consideration, which we

summarize as follows: First, the Trial Court erred by granting the Commission’s

motion in limine regarding Kennedy’s expert testimony and Report, as both are

admissible under well-settled case law and do not violate the terms of the Trial

Court’s May 18, 2017 order, which pertained to Oeste. Forty Foot’s Br. at 15-24.

Second, the Trial Court’s May 18, 2017 order is legally erroneous, to the extent it

can be construed as only allowing Forty Foot to offer evidence regarding the

expressly authorized uses of the Property at the time of the Commission’s

7

Curiously, the Trial Court cited no law whatsoever in its opinion, with the exception of

two passing references to Pennsylvania Rule of Appellate Procedure 1925(a). See Trial Ct. Op.,

8/20/19, at 3-6.

8

Declaration of Taking. Id. at 22-23. Third, the Trial Court erred in granting the

Commission’s motion for summary judgment, as Kennedy’s improperly precluded

expert testimony and Report create genuine issues of material fact that should be

submitted to the jury. Id. at 13.8

Under both the United States and Pennsylvania Constitutions, a landowner is

entitled to just compensation in the event the government takes their property via

eminent domain.9 Twp. of Chester v. Dep’t of Transp., 433 A.2d 1353, 1355 (Pa.

1981). “The fundamental principle underlying the requirement of ‘just

compensation’ is one of indemnity: a condemnee is entitled to be placed in as good

a position pecuniarily as if [their] property had not been taken.” Id. The definition

of “just compensation” under Pennsylvania law is set forth in Section 702(a) of the

Eminent Domain Code: “Just compensation shall consist of the difference between

the fair market value of the condemnee’s entire property interest immediately before

8

When considering a trial court’s ruling upon a motion in limine, our review is limited to

determining whether the trial court abused its discretion. Grimes v. Dep’t of Educ., 216 A.3d 1152,

1159 (Pa. Cmwlth. 2019). “In order for an appellate court to find that the [lower] tribunal abused

its discretion in making the evidentiary ruling, the appellate court must find that the ruling was

manifestly unreasonable, partial, prejudiced, biased, based on ill-will, or lacks such support as to

constitute a clear error.” Id. “Further, discretion is abused [in the context of motions in limine]

when the law is either overridden or misapplied.” Com. v. Hoover, 107 A.3d 723, 729 (Pa. 2014);

accord Condemnation by Pa. Tpk. Comm’n v. Lands of Tarlini, 185 A.3d 1177, 1182 (Pa. Cmwlth.

2018) (“The law is well-established that ‘[a] trial court is vested with wide discretion in deciding

whether to allow the admission of expert testimony into evidence, and is not subject to reversal

absent a clear abuse of discretion.’ Daddona v. Thind, 891 A.2d 786, 805 (Pa. Cmwlth. 2006).”).

When ruling upon a motion for summary judgment, a trial court must resolve all doubts

against the movant, examining the record in the light most favorable to the non-moving party, and

“may grant summary judgment only where the right to such a judgment is clear and free from

doubt.” Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). As with orders addressing the

aforementioned evidentiary matters, our review of an order granting summary judgment is limited

to determining whether the trial court’s decision constituted an abuse of discretion or an error of

law. Salerno v. LaBarr, 632 A.2d 1002, 1003 (Pa. Cmwlth. 1993).

9

See U.S. CONST. amend. V and PA. CONST. art. I, § 10.

9

the condemnation and as unaffected by the condemnation and the fair market value

of the property interest remaining immediately after the condemnation and as

affected by the condemnation.” 26 Pa. C.S. § 702(a). Furthermore, per Section 703

of the Eminent Domain Code:

Fair market value shall be the price which would be agreed

to by a willing and informed seller and buyer, taking into

consideration but not limited to the following factors:

(1) The present use of the property and its value for that

use.

(2) The highest and best reasonably available use of the

property and its value for that use.

(3) The machinery, equipment and fixtures forming part of

the real estate taken.

(4) Other factors as to which evidence may be offered as

provided by [26 Pa. C.S. §§ 1101-1106] (relating to

evidence [in eminent domain proceedings]).

Id., § 703.

The process of determining a property’s highest and best use, for purposes of

fair market value, is not restricted to contemplation of what uses were expressly

allowed at the time of condemnation. As remarked by our Supreme Court,

[i]n estimating the market value of the land[,] everything

which gives it intrinsic value is a proper element for

consideration. Land may be applied to various purposes

and possesses value for distinct objects. It may be devoted

to agriculture; improved by the erection of buildings or the

opening of mines; or it may be adorned for the sole object

of contributing to the pleasure or gratifying the taste of the

owner. The construction of a railroad through it might

utterly destroy its value for some purposes, and yet greatly

increase it for others. It is its general market value for any

purpose that will induce persons to purchase, which is the

true test.

Shenango & A.R. Co. v. Braham, 79 Pa. 447, 453 (Pa. 1875) (emphasis added). To

that end,

10

the condemnee is not limited to the present use of the

property but may also offer testimony of the highest and

best reasonably available use of the property at the time of

taking. Testimony as to highest and best use, however, is

subject to several limitations. Such testimony will not be

admitted unless the condemnee has established that the

tract in question is physically adaptable for such a use and

that there is a market for property available for such use at

the time of condemnation. . . . In addition, the condemnee

must show that the need for property for such use is based

upon more than mere speculation.

Dep’t of Transp. v. WWSW Radio, Inc., 383 A.2d 552, 554 (Pa. Cmwlth. 1978)

(internal citation omitted); accord Stoner v. Metro. Edison Co., 266 A.2d 718, 721

(Pa. 1970) (“[W]hile a property owner may expect compensation for reasonable

certainties inherent in the present, he may not recover for remote chances or future

possibilities and may not submit evidence to a jury based on a speculative

contingency.”); Snyder v. Com., 192 A.2d 650, 652 (Pa. 1963) (“The property owner

may show the highest and best use of his land, provided such use is not speculative

or remote.”).10

Returning to the matter at hand, we discern several flaws in the Trial Court’s

reasoning. First, contrary to the Trial Court’s assertion that “both the Oeste and

Kennedy Reports address the same issue and render the same conclusion/opinion[,]”

Trial Ct. Op., 8/20/19, at 5, the Oeste Report speaks to a different development

scenario than that of the Kennedy Report. The former was based upon Forty Foot’s

Original Plan, as well as Oeste’s speculative conclusions regarding how the Trial

Court would have ruled if called upon to decide the parties’ respective appeals of the

Zoning Board’s 2007 decisions. See R.R. at 20a-29a. As for the latter, it was

10

We note that the Snyder Court also stated “[i]t is quite clear that one factor which strongly

affects market value of property is zoning as it exists at the time of purchase or condemnation and

as it may be changed in the reasonably near future to permit economically higher (or lower) use.”

192 A.2d at 652.

11

predicated upon Kennedy’s opinion that, absent the Commission’s taking, there was

a reasonable probability that Forty Foot would have been allowed to develop the

Property in line with the Revised Plan. See id. at 199a-202a. Kennedy based this

conclusion upon his interpretation of Forty Foot’s by-right development abilities, as

well as his belief that the Zoning Board would have likely granted variances to Forty

Foot that were “similar” to those issued regarding the Original Plan. See id.

Second, though the Trial Court maintains that it “did not give permission [to

Forty Foot] to submit a new plan, only a new report addressing the state of the record

as it was[,]” this assertion is not supported by the record. The Trial Court’s May 18,

2017 order merely addressed the Oeste Report’s inadequacies, while also stating

generally that “the best evidence, and most accurate evidence, is the record itself as

it stands. Any speculative testimony inconsistent with the record would

unnecessarily confuse the issues in the case.” R.R. at 158a-59a. The Trial Court’s

May 24, 2017 scheduling order, as mentioned above, simply set the deadline by

which Forty Foot was required to submit its expert reports. Id. at 160a. Neither of

these orders, nor anything issued by the Trial Court prior to its August 20, 2019

opinion, explicitly discussed or placed preemptive limitations on the expert reports

Forty Foot could submit or on what evidence those reports could be based.

Finally, even if the Trial Court had broadly prohibited Forty Foot from

presenting expert reports that relied upon a new development plan, it would have

done so in error. To reiterate, a condemnee may offer evidence regarding a

property’s highest and best use, unless that evidence is based on speculation or

conjecture. Stoner, 266 A.2d at 721. The salient issue is not whether such evidence

is “new,” so to speak, but rather whether it rests upon solid factual conclusions or,

instead, upon mere wishful thinking. A sweeping prohibition, such as the one

12

apparently envisioned (but not actually imposed) by the Trial Court, would run afoul

of this distinction.

As already discussed, Kennedy stated in his Report that it was “more than

reasonably probable that, absent the imminence of condemnation,” Forty Foot would

have received all necessary governmental dispensations and approvals for the

Revised Plan, which would have enabled it to develop the Property accordingly. See

R.R. at 199a-202a. Kennedy based this conclusion upon the particulars of the

Property, his interpretation of the relevant Township ordinances, and the Township’s

handling of the Original Plan. See id. His Report was thus rooted not in speculation,

but rather reasoned determinations and opinions of the type that should be

considered and weighed by the factfinder. As such, the Trial Court erred by granting

the Commission’s September 22, 2017 motion in limine and thereby precluding

Kennedy from testifying at trial. Furthermore, as Kennedy’s expert opinion creates

genuine issues of material fact regarding both the highest and best use of the Property

and the value of the land condemned by the Commission, the Trial Court also erred

by granting the Commission’s motion for summary judgment.

III. Conclusion

In light of the foregoing analysis, we reverse the Trial Court’s November 2,

2017 order granting the Commission’s motion in limine regarding Kennedy’s expert

testimony and Report, as well as the Trial Court’s May 15, 2019 order granting the

Commission’s motion for summary judgment. In addition, we dismiss as moot Forty

Foot’s appeal of the Trial Court’s May 18, 2017 order granting the Commission’s

13

motion in limine regarding Oeste’s expert testimony and Report. Finally, we remand

this matter to the Trial Court for further proceedings consistent with this opinion.

__________________________________

ELLEN CEISLER, Judge

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Forty Foot Farms, :

Appellant :

:

v. : Nos. 840, 841 and 842 C.D. 2019

:

Pennsylvania Turnpike Commission :

ORDER

AND NOW, this 2nd day of March, 2021, it is hereby ORDERED that the

Court of Common Pleas of Montgomery County’s (Trial Court) November 2, 2017

and May 15, 2019 orders granting, respectively, Appellee Pennsylvania Turnpike

Commission’s (Commission) motion in limine regarding John Kennedy’s expert

testimony and expert report and the Commission’s motion for summary judgment,

are hereby REVERSED. It is FURTHER ORDERED that Appellant Forty Foot

Farms’ appeal of the Trial Court’s May 18, 2017 order granting the Commission’s

motion in limine regarding Thomas F. Oeste’s expert testimony and expert report is

DISMISSED AS MOOT. It is FURTHER ORDERED that this matter is

REMANDED to the Trial Court for proceedings consistent with the foregoing

opinion.

Jurisdiction relinquished.

__________________________________

ELLEN CEISLER, Judge