trial court’s factual findings based upon its site visit supported its decision to sustain condemnee’s preliminary objections to the takings
How later courts described this case
- trial court’s factual findings based upon its site visit supported its decision to sustain condemnee’s preliminary objections to the takings
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
Condemnation of the Township :
of Robinson of Certain Lands :
Owned Now or Formerly of: :
: No. 312 C.D. 2022
E&R Partners, L.P., : Argued: October 11, 2022
82 Forest Grove Road :
Coraopolis, PA 15108 :
:
James Esposito :
5852 Steubenville Pike :
McKees Rocks, PA 15136 :
(Lot & Block 266-G-51) :
:
Huntley and Huntley :
2660 Monroeville Blvd. :
Monroeville, PA 15146 :
:
Herman Edwards :
5852 Steubenville Pike :
McKees Rocks, PA 15136 :
:
Appeal of: E&R Partners, L.P. :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: April 24, 2023
E&R Partners, L.P. (E&R) appeals the March 4, 2022 order (Order) of the
Court of Common Pleas of Allegheny County (trial court) overruling its preliminary
objections (POs) to a declaration of taking (Declaration) filed by the Township of
Robinson (Township). Upon review, we reverse the trial court’s order.
BACKGROUND
1. Factual Background
E&R owns a parcel of real estate located at 5852 Steubenville Pike, McKees
Rocks, Pennsylvania, Parcel Number 266-G-51 (E&R Property). Reproduced
Record (R.R.) at 8a. E&R Property’s driveway sits along Steubenville Pike across
from Tidball Road (Tidball intersection).
James Esposito (Esposito) is the president of Capital Builders, Inc., the
general partner of E&R, and is responsible for day-to-day operations and use of E&R
Property. R.R. at 62a. Before 2003, Esposito was involved in a motor vehicle
collision when he was pulling out of E&R Property’s driveway onto Steubenville
Pike. Id. After that collision, Township and the Pennsylvania Department of
Transportation (PennDOT) installed a traffic safety light at the Tidball intersection.
Id. The Tidball intersection is signalized at all four of its “legs,” and is the subject
of a Traffic Signal Permit, which was originally approved by Township and
PennDOT in May 2003. R.R. at 68a.
On March 1, 2011, Michael Dunn (Dunn), member and manager of Five D
Development, LLC (Five D), purchased a 2.846-acre parcel of real estate located at
Steubenville Pike, Robinson Township, Lot and Block No. 266-G-49 (Five D
Property), which sits just west of E&R Property. R.R. at 63a. Dunn purchased Five
D Property for developmental purposes. Id. at 63a-64a. However, Five D Property
lacked direct access to Steubenville Pike. Id. at 63a-64a. In an effort to obtain access
2
to Steubenville Pike, Dunn hired engineers and contemplated options for ways to
gain access. Id.
In mid-2015, Dunn submitted a land development plan to Township’s
planning commission that envisioned a private right of access to and from Five D
Property from Steubenville Pike across from Tidball Road (Five D Site Plan). R.R.
at 64a. Township conditionally approved the Five D Site Plan but required that Five
D obtain a Highway Occupancy Permit (HOP) and approval from PennDOT before
proceeding. Id. However, PennDOT indicated that Five D could not put a private
entrance immediately adjacent to E&R’s signalized driveway and that for Five D to
have access to Steubenville Pike at the Tidball intersection, it would need “to be a
shared driveway in lieu of just a private entrance.” R.R. at 64a. Dunn approached
Esposito several times regarding the concept of a shared driveway, but the parties
were not able to come to an agreement. Id.
Dunn and Esposito were unable to reach an agreement for a shared driveway,
so Township began efforts in 2016 to obtain PennDOT approval for a public road
through Five D Property from the Tidball intersection to Waterford Drive. R.R. at
65a. It is common for Township to work with developers regarding upgrades, such
as public roads and intersections, because the cost of the upgrades is often absorbed
by the developer. Id.
Meanwhile, in mid-2017, Dunn fired his previous engineer and hired David
E. Wooster and Associates, Inc. (Wooster) to provide engineering services related
to this project. R.R. at 66a. Jared Crosby (Crosby), Vice President of Wooster,
handled this project. Id.
On April 19, 2018, Crosby electronically mailed (e-mailed) Dunn regarding
PennDOT’s requirements for a HOP approval and suggested the possibility of
3
Township condemning a portion of E&R Property to allow for the traffic signal and
intersection to be configured in a more standard design. Id. Crosby determined
Township would need 188 square feet of E&R Property to meet PennDOT’s turning
radius requirements and safely contain the construction. Id.
Mere days after Crosby’s e-mail, on April 25, 2018, Township’s Board of
Commissioners (Township’s Commissioners) received notice that a proposed
resolution authorizing the condemnation of a portion of E&R Property would be on
the agenda for May 7, 2018’s regularly scheduled monthly meeting.1 R.R. at 67a.
Township’s Commissioners received the proposed resolution the afternoon before
the meeting, on May 6, 2018. Id. Around noon on the date of the meeting, May 7,
2018, Crosby e-mailed Township’s solicitor John Cambest (Solicitor Cambest) and
provided him with the plans and a legal description of E&R Property that would
need to be condemned. Id. In his e-mail, Crosby indicated “the plans [were] not far
advanced,” and noted they were “conservative on what was necessary for the
taking.” Id.
At the meeting on May 7, 2018, all five of Township’s Commissioners voted
to approve Resolution Number 11 of 2018 (Condemnation Resolution). The
Resolution provides that Township “desires to construct a new public road and
signalization of the intersection with Tidball Road and [Steubenville Pike] on a
portion of [E&R Property.]” R.R. at 11a. The Condemnation Resolution indicates
Township and E&R could not agree on terms of the value of the property to be
condemned and Township desires to acquire the portion of E&R Property by
1
Under The First Class Township Code, Section 3301-A of the Act of June 24, 1931, P.L. 1206,
as amended, added by the Act of October 29, 2020, P.L. 782, the powers of the township are vested
with the board of commissioners and the board of commissioners is responsible for adopting
resolutions on behalf of the township. 53 P.S. § 58301-A.
4
condemnation pursuant to Section 1901 of The First Class Township Code.2 Id.
Section Two of the Condemnation Resolution states “it is hereby resolved by the
[Township’s Commissioners] that [E&R Property] shall be condemned for the
purpose of obtaining title in fee simple so that a new public road and traffic
signalization equipment may be constructed to signalize the new [Tidball
intersection.]” R.R. at 12a.
2. The Declaration of Taking
On May 11, 2018, Township filed its Declaration in the trial court. The
Declaration states the purpose of the condemnation is to “acquire fee simple title . .
2
According to Section 1901 of The First Class Township Code:
(a) A township may acquire property by eminent domain, including entering upon,
appropriating, taking, using and occupying private lands and property for any of
the following public purposes:
(1) The laying out, opening, widening, extending, vacating, grading or
changing the grades or lines of streets or highways.
(2) The construction of bridges and the piers and abutments for bridges.
(3) The construction of slopes, embankments and storm water sewers and
storm water facilities, the changing of watercourses, and the construction of
sanitary sewer mains, drains or treatment works.
(4) The erection and extension of water systems, wharves and docks, public
buildings, public works or land for a public works related function,
municipal waste processing and disposal facilities, including municipal
waste landfills, libraries, and the establishing of parks, playgrounds and
recreation places.
(5) For all other purposes authorized by this act.
(b) Eminent domain proceedings shall be subject to and conform with the
provisions of 26 Pa.C.S. (relating to eminent domain).
53 P.S. § 56901.
5
. [of E&R Property] for the purpose of constructing a new public road and traffic
signalization at the new intersection of Tidball Road and [Steubenville Pike].” R.R.
at 9a. The Declaration specifies that the condemnation was carried out pursuant to
Township’s approval of Resolution Number 11 of 2018. R.R. at 11a.
3. E&R’s POs
On June 12, 2018, E&R filed POs to the Declaration3 asserting, in relevant
part, that Township acted in violation of the Takings Clause of the Fifth Amendment
to the United States Constitution,4 the Pennsylvania Constitution,5 and the Property
3
Section 306 of the Eminent Domain Code provides for the exclusive method of challenging a
Declaration as follows:
(1) Within 30 days after being served with notice of condemnation, the condemnee
may file preliminary objections to the declaration of taking.
(2) The court upon cause shown may extend the time for filing preliminary
objections.
(3) Preliminary objections shall be limited to and shall be the exclusive method of
challenging:
(i) The power or right of the condemnor to appropriate the condemned
property unless it has been previously adjudicated.
(ii) The sufficiency of the security.
(iii) The declaration of taking.
(iv) Any other procedure followed by the condemnor.
26 Pa. C.S. § 306.
4
The Takings Clause of the Fifth Amendment to the United States Constitution states: “[N]or shall
private property be taken for public use, without just compensation.” See U.S. Const. amend. V.
5
Pursuant to article I, section 10 of the Pennsylvania Constitution, “nor shall private property be
taken or applied to public use, without authority of law and without just compensation being first
made or secured.” Pa. Const. art. I, § 10.
6
Rights Protection Act (the Protection Act).6 R.R. at 21a. E&R argued that the
purpose of the condemnation was an attempt, by Township, to take E&R Property
on behalf of, and for the benefit of, Five D. Id. Specifically, E&R asserted that
Township was acting on behalf of Five D to improve access to Five D Property for
a nonpublic, private purpose under the guise of public convenience or safety. Id.
4. Trial Court’s Opinion
On March 4, 2022, the trial court issued a memorandum opinion and order
overruling E&R’s POs.7 See generally Trial Ct. Op. at 1-5 (pagination supplied);
Original Record (O.R.) at 3051-3056.8 The trial court cited to its review of the
deposition testimony and indicated that “the testimony of the five [Township’s
Commissioners] clearly demonstrates that their decision was based on the advice of
the various professionals who testified that the primary reasons for the taking of the
property was to improve the safety of the intersection.” Trial Ct. Op. at 5
(emphasis added). Regarding E&R’s assertion that Township’s condemnation was
done on behalf of and for the benefit of another private party, Five D, the trial court
stated that “any such inference would require [the trial court] to use speculation
which cannot outweigh the direct credible evidence.” Id. at 4. Citing In Re
Condemnation of .036 Acres, More or Less, of Land Owed by Wexford Plaza
Association, 674 A.2d 1204 (Pa. Cmwlth. 1996), the trial court relied on this Court’s
6
The Protection Act states that, except in limited circumstances, “the exercise by any condemnor
of the power of eminent domain to take private property in order to use it for private enterprise is
prohibited.” 26 Pa. C.S. § 204(a).
7
We note that the trial court elected not to file a Pa.R.A.P. 1925(a) statement and is relying on its
March 4, 2022 Memorandum and Order of Court to satisfy its Pa. R.A.P. 1925(a) requirements.
8
For ease of reference, Original Record page numbers reflect electronic pagination.
7
prior determination that it was immaterial that a private interest may also benefit
from a condemnation. Id. at 4-5. The trial court concluded that based on the
evidence, “it was clear that the current intersection required changes for the
benefit of the public at large[.]” Id. at 4 (emphasis added).
ISSUES ON APPEAL9
On appeal to this Court, E&R argues the trial court erred in overruling its POs
to Township’s Declaration on the basis that it ignored substantial evidence presented
by E&R that E&R Property was condemned for the benefit of Five D Property rather
than the public. E&R Br. at 24. E&R argues Township’s assertion that the
condemnation was for public safety purposes was merely a pretext developed after
E&R Property was condemned. Id.
E&R further asserts the condemnation was not the result of an investigation
leading to an intelligent, informed decision by Township. Id. at 31-32. In support
of this argument, it points to various discrepancies between the trial court’s factual
findings and the deposition testimony regarding what Township’s Commissioners
knew about the condemnation at the time of their vote to condemn E&R Property.
Id. at 31. Additionally, E&R notes there was ample evidence that the intersection
9
In its Statement of Questions Involved, E&R framed its issues as follows:
Did the Trial Court err in overruling E&R’s Preliminary Objections to the
condemnation of E&R’s property despite the substantial evidence presented that
the Township condemned the property: (i) for the benefit of a private property
owner; and (ii) without appropriate investigation leading to an intelligent informed
decision?
E&R Br. at 4.
8
was safe, further supporting its argument that Township’s purported basis for the
condemnation, “public safety,” was pretextual. Id. at 25-26.
In response, Township argues its condemnation of E&R Property was within
the power afforded to it by The First Class Township Code and is presumed to have
been lawful. Township Br. at 8. It argues the authorization was based on “a desire
for a safer geometrically designed [i]ntersection with better access to [E&R
Property] and [Five D Property], to open access to vacant developable land, and to
provide signalized access to Steubenville Pike for residents of the Waterford Plan.”
Township Br. at 8. Township asserts the mere fact that the developer is benefitted
“does not cast a shadow of doubt as to [its] public purpose.” Township Br. at 8.
ANALYSIS
Eminent Domain Legal Discussion
In an eminent domain proceeding where the appeal involves preliminary
objections to a declaration of taking,10 as it does here, this Court’s scope of review
is limited to determining whether the trial court abused its discretion or committed
an error of law. In re Condemnation by City of Coatesville of Certain Props., 822
A.2d 846 (Pa. Cmwlth. 2003). We recognize that in the trial court’s review of
Township’s decision to condemn E&R Property, the trial court was limited to
determining whether Township was “guilty of fraud, bad faith, or [] committed an
abuse of discretion.” In re Condemnation by Dep’t of Transp., of Right-of-Way of
State Route 0443, Section 02S, in Twp. of Mahoning, 255 A.3d 635, 644-45 (Pa.
10
While preliminary objections serve a different purpose in other civil actions, preliminary
objections in eminent domain cases are the procedure intended to expeditiously resolve factual and
legal challenges to a declaration of taking before the parties move on to determine damages. In
re Condemnation of .036 Acres, More or Less, of Land Owned by Wexford Plaza Assocs., 674
A.2d 1204 (Pa. Cmwlth. 1996); N. Penn Water Auth. v. A Certain Parcel of Land, 650 A.2d 1197
(Pa. Cmwlth. 1994).
9
Cmwlth. 2021) (citation omitted). We are also mindful that E&R bore the burden
of proving that Township abused its discretion because the law provides a strong
presumption that a municipality has acted properly. Id. (citation omitted).
The power of eminent domain permits the Commonwealth to take private
property for public use upon payment of just compensation. Pa. Const. art. I, § 10
(“nor shall private property be taken or applied to public use, without authority of
law and without just compensation[.]”). The Commonwealth’s power to acquire
property by eminent domain extends to Township via Section 1901 of The First
Class Township Code, 53 P.S. § 56901. However, Township’s eminent domain
power is limited by constitutional and statutory law.
First, we address the constitutional limitations on Township’s exercise of
eminent domain power. Under the Takings Clause of the Fifth Amendment to the
United States Constitution, land may only be taken without the landowner’s consent
if it is taken for public use. U.S. Const. amend. V; Reading Area Water Auth. v.
Schuylkill River Greenway Ass’n, 100 A.3d 572, 580 (Pa. 2014). Likewise, the
Pennsylvania Constitution authorizes the exercise of eminent domain power to
condemn privately owned property only if it is done for public use. See Pa. Const.
art. I, § 10 (“[N]or shall private property be taken or applied to public use, without
authority of law and without just compensation being first made or secured.”).
Thus, our constitutions require that for a municipality’s condemnation of private
property to be lawful, it must be for a public purpose.
Next, we turn to the statutory limitations on Township’s exercise of eminent
domain power. The Eminent Domain Code (Code), 26 Pa. C.S. §§ 101-1106,
governs eminent domain proceedings in Pennsylvania and provides “a complete and
exclusive procedure and law to govern all condemnations of property for public
10
purposes.” 26 Pa. C.S. § 102. In 2006, the General Assembly amended the Code
by enacting the Protection Act, 26 Pa. C.S. § 204. In relevant part, the Protection
Act expressly prohibits, subject to several exceptions, the taking of one’s private
property for another private enterprise. 26 Pa. C.S. § 204(a). We find it noteworthy
that our legislature’s enactment of the Protection Act followed the United States
Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005).
In Kelo, the United States Supreme Court addressed the issue of whether the
city’s taking of private property for economic development and use by a private
developer satisfied the “public use” requirement of eminent domain power. Id. In
the 5-4 decision, the majority concluded that economic development qualified as a
public purpose because, although the properties to be taken were not blighted, the
economic rejuvenation of the development was in the public interest. See id. at 483.
In Justice O’Connor’s dissenting opinion, in which Chief Justice Rehnquist, Justice
Scalia, and Justice Thomas joined, she wrote, in criticism of the majority’s opinion:
To reason, as the Court does, that the incidental public benefits resulting
from the subsequent ordinary use of private property render economic
development takings “for public use” is to wash out any distinction
between private and public use of property- and thereby effectively to
delete the words “for public use” from the Takings Clause of the Fifth
Amendment.
Id. at 494 (O’Connor, J., dissenting).
Our legislature, perceiving the Kelo decision as an abuse of eminent domain
power, passed the Protection Act. See, e.g., House Legislative Journal, Nov. 1, 2005,
at 2169-72; Senate Legislative Journal, April 25, 2006, at 1552. The purpose of the
Protection Act is to balance individual private property rights and the needs of urban
centers to rehabilitate blighted areas imposing harm upon the public. See, e.g.,
House Legislative Journal, Nov. 1, 2005, at 2169-72; Senate Legislative Journal,
11
April 25, 2006, at 1552. The legislature designed the Protection Act to diminish the
ability of condemnors to take private property. Reading, 100 A.3d at 583.
Considering the intent and purpose of the Protection Act, we note its broad
prohibition in terms of whether private property is being condemned “to use it for
private enterprise.” 26 Pa. C.S. § 204(a). Because both the United States
Constitution and the Pennsylvania Constitution require a condemnation be for a
public use, a condemnation intended solely for the benefit of a private party would
be unconstitutional. Thus, it is clear from the legislature’s language in the Protection
Act that it intended to further limit the application of the public use standard.
Reading, 100 A.3d at 583. Our Pennsylvania Supreme Court has acknowledged that
the Protection Act is more restrictive in scope than preexisting constitutional
protections against the government’s power of eminent domain. Id. Additionally,
the Supreme Court noted that the government’s eminent domain power “is
necessarily in derogation of a private right, and the rule in that case is that the
authority is to be strictly construed: what is not granted is not to be exercised.”
Middletown Twp. v. Lands of Stone, 939 A.2d 331, 337 (Pa. 2007).
In consideration of the relevant constitutional standards combined with the
Protection Act, it is clear that without a public use purpose, the government lacks
authority to take property from private owners. Middletown, 939 A.2d at 337. As
our Supreme Court has indicated, what constitutes a “public use is highly fact-
dependent.” Reading, 100 A.3d at 580. The Court has established that “public use”
equates to a “public purpose” and has indicated that to determine whether a public
purpose exists, the court must look for the “real or fundamental” purpose behind a
condemnation. Middletown, 939 A.2d at 337. A public purpose exists only when
the public is “the primary and paramount” beneficiary of the condemnation. Id.
12
While we acknowledge that a condemnation “does not lose its public character
merely because there may exist in the operation some feature of private gain[,]”
Reading, 100 A.3d at 577 (citation omitted), a condemnation cannot be “under the
mere pretext of a public purpose, when its actual purpose was to bestow a private
benefit.” Kelo, 545 U.S. at 478. In determining whether an asserted public purpose
is pretextual, the court must consider whether the condemnation was executed
pursuant to a carefully developed plan. Kelo, 545 U.S. at 478 (citation omitted). A
condemnation is only valid where the property is condemned “after a suitable
investigation leading to an intelligent, informed judgment by the condemnor.”
Middletown, 939 A.2d at 338 (citation omitted).
In Pidstawski v. South Whitehall Township, 380 A.2d 1322, 1324 (Pa.
Cmwlth. 1977), a township’s taking was upheld “because rather than being arbitrary,
the record demonstrated that it was carefully planned and painstakingly thought out
with a view toward present and future requirements.” Middletown, 939 A.2d at 338.
Evidence of a well-developed plan provides proof that an authorized purpose
motivates a condemnation. Id. We note that the government cannot give “mere lip
service to its authorized purpose” or “act precipitously and offer retroactive
justification” for its condemnation of private property. Id. at 338. To be valid, a
condemnation must be supported by a condemnation proceeding informed by an
intelligent judgment to use the condemned property for its asserted purpose. Id.
Standard of Review
E&R argues the trial court’s findings are not supported by substantial
evidence. This Court has stated that “[a]n abuse of discretion occurs when the
findings are not supported by substantial evidence in the record. Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
13
support a conclusion.” Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing
Bd., 944 A.2d 832, 838 n.9 (Pa. Cmwlth. 2008). For evidence to be substantial, it
must be “more than a scintilla and must do more than create a suspicion of the
existence of the fact to be established.” Bennett v. Bureau of Pro. & Occupational
Affs., State Bd. of Chiropractic, 214 A.3d 728, 735 (Pa. Cmwlth. 2019) (citation
omitted). We review the trial court’s findings to determine whether its findings are
based on substantial evidence. We begin by reviewing the trial court’s findings
regarding Township’s Commissioners because the “corporate power of a township
of the first class [is] vested in [the board] of commissioners[,]” Section 1502 of The
First Class Township Code, 53 P.S. § 56502, and, therefore, in reviewing whether
Township, as the condemnor, complied with the law regarding its condemnation of
E&R Property, the trial court necessarily considered the testimony of Township’s
Commissioners.
Evidence of Record
Township’s Commissioners
In its decision, the trial court indicates that it reviewed the deposition
testimony of the five Township Commissioners and made specific findings
regarding each of Township’s Commissioners.
Commissioner Abatta
First, the trial court stated that “Commissioner Sam Abatta [(Commissioner
Abatta), who was chairman of Township’s Commissioners,] testified that he put
significant weight upon the recommendations of the Planning Commission.” Trial
Ct. Op. at 2. However, the evidence of record does not substantially support this
conclusion. The record reveals that Commissioner Abatta’s testimony indicated he
was unaware that Township had condemned E&R Property and further unable to
14
indicate precisely what he relied on during the decision to do so. When asked about
the condemnation of E&R Property during his deposition on January 8, 2019,
Commissioner Abatta testified as follows:
Q: Will you agree with me that the Township has
condemned a portion of [E&R Property] . . . ?
A: No
Q: [Township] hasn’t taken any property to your
knowledge?
A: No
Q: At any time?
A: No.
Q: [Commissioner Abatta,] we’re taking your deposition
today in relation to a matter that’s pending before [trial
court]. Do you know what that matter relates to?
A: It’s a situation between [Esposito] and [Dunn].
Q: Okay, it doesn’t have to do with [Township] as far as
you know?
A: Well, it’s occurring on Township property, I mean, the
confines.
Q: Is [Township] a party to that litigation, or is it
effectively just a witness?
A: I think it would be just a witness. I don’t think
[Township] has any interest one way or another what
happens.
R.R. at 371a-72a. Upon further questioning, Commissioner Abatta stated the
following:
15
Q: Is it your understanding that [Township] has taken
property of [E&R]?
A: No. [Township] – we haven’t taken anything.
Q: Okay. From your perspective, this remains a dispute
between [Dunn] and [Esposito], and that’s the end of it as
far as you’re concerned, correct?
A: Yes.
R.R. at 372a-73a. When questioned specifically about whether he recalled having
voted on a resolution to condemn [E&R Property], he stated “we vote on so many
different motions during any public meetings. Specifically [,] do I remember every
one, and this one specifically? No.” Id. When asked whether he was provided with
a copy of any plans indicating precisely what was condemned, he said “[n]o.” R.R.
at 381a. Therefore, the record offers no support for the trial court’s conclusion that
Commissioner Abatta put significant weight upon the recommendations of the
Planning Commission in his decision to vote to pass the Resolution.
Commissioner Kisow
Next, the trial court indicates that Commissioner Kenneth Kisow
(Commissioner Kisow) “relied on the professional advice of the engineer, PennDOT
and Solicitor.” Trial Ct. Op. at 2. However, the evidence of record does not
substantially support this conclusion. Upon review of the record, Commissioner
Kisow is the “head of the Public Safety Commission” for Township. R.R. at 264a.
When asked why Township was taking E&R Property, he stated “[f]rom my
understanding, from the Solicitor and PennDOT viewed it as an issue to straighten
that light out, is the way I took it.” R.R. at 266a.
16
His testimony regarding his knowledge of the condemnation of E&R Property
was as follows:
Q. Okay. Do you recall what was the basis for the decision
to condemn a portion of [E&R Property]?
A. Before the meeting in executive session, we discussed
from the advice of the [S]olicitor and the PennDOT
recommendation is solely what I went on.
Q. When you refer to the PennDOT recommendation?
A. The realignment thing that we were told that they said
they need that place for. Need the piece of property for
the realignment of the light. That’s the way I understood
it in that meeting.
R.R. at 271a. When asked whether safety of the intersection was discussed when
they were making the decision to condemn E&R Property, he stated “[n]o, solely on
professional advice of the engineer, PennDOT, and the [S]olicitor, whoever
designed it.” R.R. at 273a.
When asked whether Commissioner Kisow, as the head of Township’s Public
Safety Commission, had any reason to believe there was a safety issue with the
Tidball intersection, he indicated he did not. He indicated that over the five years
that he had been with Township, no one approached him regarding an issue with the
safety of the Tidball intersection. He stated that as far as he was aware, none of the
accidents at the intersection were unusual. He has never been asked to evaluate
safety considerations of the intersection, has never had any discussions with other
Township officials regarding safety concerns of the Tidball intersection, and he
never concluded at any time that Township needed to take action to improve the
operation of the safety signal or the intersection’s alignment. R.R. at 269a-70a.
17
Commissioner Barefoot
Next, the trial court found that Commissioner James Barefoot (Commissioner
Barefoot) “weighed all of the professional opinions such as the Planning
Department[,] the Township Engineer, and . . . PennDOT.” Trial Ct. Op. at 3. The
evidence of record does not substantially support this conclusion. Commissioner
Barefoot, who was chair of planning and zoning, testified regarding his
understanding of the reason Township condemned E&R Property as follows:
Q. And what was the reason the Township condemned [E&R
Property]?
A. My understanding is for an entrance to –
Q. So [Township] condemned the property so that there would be an
entrance to what?
A. I understand a strip mall there.
....
Q. Would you say it’s the primary reason for the take, for the
condemnation, that was approved by [Township] was for development
of the [Five D Property]?
A. Yes.
....
Q. What is your personal reasoning, your personal understanding, as to
why it was a good idea to condemn this property?
A. My personal reason, there was a business in there prior to it, and it
seemed good, if it was a strip mall in there, to have another exit.
R.R. at 642a, 644a.
Regarding a plan, Commissioner Barefoot testified that he did not observe any
plans regarding the purported road going through Five D Property before voting on
18
the condemnation. R.R. at 659a. He indicated that he did not conduct any
investigation into the merits of the condemnation, and when asked if anyone else
did, he stated “[t]o my knowledge, probably the people in the Township did.” R.R.
at 645a. Upon further questioning, he was not able to indicate that anyone, even the
professionals he referenced, had provided him with information, a
recommendation, or any plans regarding the condemnation. R.R. at 647a. When
specifically questioned about whether he recalled looking at any plans before voting,
he stated, “No.” R.R. at 647a. Therefore, the record does not support the trial court’s
conclusion that Commissioner Barefoot actually weighed any professional opinions
before voting to pass the resolution.
Commissioner Mancici
Next, the trial court found that Commissioner James Mancici (Commissioner
Mancici) was “presented with information from the Planning Commission,
Township Engineer[,] and others and relied on that information in making a
decision.” Trial Ct. Op. at 3. Upon review of the evidence, while Commissioner
Mancici referenced that he “would have” been provided with information from the
Planning Commission, Township Engineer and “from whoever they would work
with to address that[,]” he was not able to articulate what, if any, information those
parties provided to him. R.R. at 613a-14a. Specifically, Commissioner Mancici
testified as follows:
Q. And do you recall having any conversations with the Township
Engineer with respect to the [Tidball intersection]?
A. I don’t recall the conversation, so I couldn’t tell you the date or
anything like that. I would say there was probably – there was a
conversation; I just don’t know when it was.
19
Q. Anything with respect to the merits of it, why it was a good idea to
condemn the property that came from the Township Engineer?
A. Again, I wouldn’t be able to tell you specifics.
Q. What led you to decide that it was a good idea to condemn the
property?
A. I would have made that decision based on the information that was
given to me at that time.
Q. Okay. You don’t remember what it is, but you would have relied on
something; is that your –
A. I would have. I would have relied on that information.
Q. But you don’t know what it is?
A. I do not.
R.R. at 613a-14a. When asked whether he had any discussions with the other
Township Commissioners regarding the merits or the pros and cons of the
condemnation, Commissioner Mancici stated, “I don’t recall any.” R.R. at 620a.
Commissioner Shiwarski
The trial court found that Commissioner Ronald Shiwarski “relied on the
expertise of the Engineer, Solicitor, and Planning director and listened to what their
opinion [was] for the best interest of [Township].” Trial Ct. Op. at 3. Upon review
of the record, Commissioner Shiwarski testified as follows regarding the reason for
the condemnation:
Q. . . . . What was the reason for [Township] condemning a portion of
[E&R Property] that’s at issue in this case?
A. I don’t have an answer to that, okay? I’d have to refer – I know it
was brought before our board that’s how it became – we acted to use
your word, condemn the property.
20
R.R. at 679a. While it is true, as the trial court found, that Commissioner Shiwarski
indicated that he relied on various individuals, it is clear upon further review of the
record that he was unable to articulate any information upon which he relied or
specify who provided him information based on the following testimony:
Q. Do you remember any pros or any cons at all with respect to it?
A. I’m trying to remember, but I don’t recall. And again, I don’t want
to sound redundant, but in my position, okay, I rely heavily on the
Township Manager, the appointed engineer, the planning director, or
our solicitor to give us the information, and then I formulate what I feel
is best.
Q. Do you recall anything with respect to the information they provided
you in relation to this condemnation?
A. Specifically, no, except that whatever they did tell me that led me to
vote yes for the –
Q. Do you recall having asked any questions with respect to the
information that they were providing you?
A. I’m sure I did, okay, but I don’t recall because . . . I usually ask
questions.
R.R. at 681a. When asked about the size of the condemned property, Commissioner
Shiwarski indicated, “I heard it was minimal.” R.R. at 688a. When asked about the
location of the condemned property, he indicated, “I can’t recall it specific that way.”
R.R. at 689a.
Reliance on Others
We recognize Township’s Commissioners justifiably rely upon trusted
advisors, such as experts and municipal staff in reaching these decisions. Because
the trial court’s basis for upholding Township’s condemnation was because
Township’s Commissioners’ decision was based on the “advice of the various
21
professionals who testified that the primary reasons for the taking of the property
was to improve the safety of the intersection[,]” Trial Ct. Op. at 5, we must consider
whether Township staff and other professionals actually relayed this as the reason
for the taking to Township’s Commissioners.
Township Staff and Professionals
First, we review the record containing the testimony of Rick Urbano (Urbano),
Township’s Planning Director. The trial court found that Urbano “testified that the
current intersection as it exists has deficiencies and is unsafe.” Trial Ct. Op. at 3.
Urbano has been on Township’s planning commission since 1981 and has been
planning director since 1998. R.R. at 65a. Regarding the safety of the Tidball
intersection, Urbano testified as follows:
Q. . . . Do you believe there are deficiencies with that intersection?
A. Most definitely. It’s unsafe.
Q. What are they?
A. Turning lanes, radiuses, the whole bit.
R.R. at 283a. However, upon further questioning, Urbano was unable to articulate
any further basis for his contention that the intersection was not safe. He testified
that he “didn’t seek any police reports[,]” could not verify a number of accidents at
that intersection, and he had not heard of anyone from the public who has a concern
about the safety of that intersection. R.R. at 283a-84a. Urbano testified several times
that it was PennDOT that first brought up the idea of condemning E&R Property.
Next, we review the testimony of Frank Piccolini (Piccolini), Township’s
Manager. The trial court found that Piccolini “testified that the plan was to condemn
22
a specific small parcel to have a better signalization of the [Tidball intersection]
which would make it safer.” Trial Ct. Op. at 3.
When specifically asked, Piccolini stated:
Q. Do you believe that the intersection is unsafe as it exists today at [the
Tidball intersection]?
A. I couldn’t answer that. I’m not an engineer.
Q. You don’t have an opinion either way?
A. No.
R.R. at 564a.
Piccolini believed that PennDOT had informed Crosby that it wanted
Township to condemn E&R Property. R.R. at 565a. Piccolini testified:
Q. And was the fact that [Township] heard that PennDOT told [Crosby]
that PennDOT thought it was a good idea to take property at this
intersection, was that a factor – [d]id that influence [Township’s]
decision to take [E&R Property]?
A. I believe it did.
....
Q. If PennDOT had said to [Township] the developer could just simply
have a driveway that entered into Waterford and not have any access to
[Steubenville Pike], would there be a need for this condemnation?
A. I don’t think so. I can’t speak for the board[,] but I don’t think so.
....
Q. . . . What was the reason why the property was condemned?
A. To basically make the signal safer. I think there was a more
geometric term, a 90-degree radius. That was the reason for PennDOT.
23
Q. It came from PennDOT?
A. Yes.
Q. If it weren’t for PennDOT making that suggestion, this wouldn’t
have happened?
A. Yes. Correct.
....
Q. At this point other than PennDOT’s statement as reflected in
[Crosby’s] [e-mail], is there any other reason why you think it would
be appropriate to take [E&R Property]?
A. None that I’m aware of.
R.R. at 566a, 571a.
Piccolini testified that at the time Township’s Commissioners passed the
resolution and the condemnation occurred, the plans for the roadway were not yet
developed. R.R. at 563a. Piccolini also testified that Township’s Commissioners
did not receive the plans for the condemnation or the metes and bounds until
“sometime before four o’clock via [e-mail]” on the date of the meeting. R.R. at
584a. Township’s Commissioners were provided a hard copy of the packet at the
meeting. R.R. at 584a. Piccolini further indicated that it was Crosby’s e-mail that
triggered moving forward with the condemnation. R.R. at 574a. He stated his
understanding was that the developer would pay for the costs associated with the
changes to the signalization and that if the developer refused to pay, then Township
would not proceed. R.R. at 568a.
Next, we review the testimony of Michael Meyers (Meyers), Township’s
Engineer. The trial court found that Meyers “testified that he believes that the
intersection as it stands is unsafe.” Trial Ct. Op. at 3. When asked why he did not
24
believe the intersection was safe, he indicated “when you don’t have an intersection
that is at 90 degrees or 180 degrees from each other, and you have an angled
intersection like that, I think it leads to concerns.” O.R. at 2302. Other than the
geometric deficiencies, Meyers testified that he had no other concerns with the
intersection. O.R. at 2309. Regarding the condemnation, Meyers testified as
follows:
Q: . . . At some point [Township] decides to condemn a portion of [E&R
Property]. Were you involved in that decision making process where
[Township] goes from not condemning it to deciding to condemn it?
A: I believe at one time I had discussions with Township officials
concerning a response from PennDOT that required the condemnation
of these areas.
Q: And so there was a communication from PennDOT saying that the
condemnation is required?
A: I was part of those conversations, however, I cannot remember
specifically the communication.
Q: Do you remember when that was?
A: No.
O.R. at 2319.
PennDOT Employees
Next, we review the record evidence regarding the PennDOT employees’
testimony as several witnesses testified that the condemnation was brought about by
PennDOT’s concerns of safety at the Tidball intersection.
First, we review the testimony of Frank Cippel (Cippel), a PennDOT civil
engineer. The trial court found that Cippel “believed bringing the intersection
directly across from Tidball would make it safer.” Trial Ct. Op. at 4. When asked
25
directly whether Cippel believed that the Tidball intersection, as it exists today, is
unsafe, he stated “I think it could be made safer.” R.R. at 434a. When asked whether
PennDOT considers safety in its approval of intersections, he stated, “Yeah.” R.R.
at 430a. Cippel testified that “PennDOT . . . . compiles a listing of the top crash
intersections. And a lot of times that’s how [PennDOT] find[s] out which traffic
signalized intersections are problem areas.” R.R. at 452a. He specified that he
“[didn’t] ever recall this specific intersection ever coming up on any of those lists.”
Id.
Regarding his understanding of the purpose of the intersection, Cippel
indicated, “I mean, if there was nobody developing their property, we obviously
wouldn’t be having a meeting to discuss a new driveway location onto
[Steubenville Pike].” R.R. at 446a (emphasis added). When specifically asked if
the primary purpose of the meeting where the intersection was discussed was for the
purpose of safety, he indicated, “No. No. The primary reason for that meeting
was to discuss a potential development and an access point for that development
onto [Steubenville Pike].” R.R. at 447a (emphasis added).
The trial court failed to make any findings of fact with respect to PennDOT
employee Jason Molinero’s (Molinero) testimony. Upon review of the record, we
note that despite Crosby’s testimony that he was told by Molinero, a PennDOT
employee, that the condemnation would be an acceptable and more desirable way
forward to provide the best possible intersection, Molinero denied making that
statement to Crosby. R.R. at 427a-28a. Further, Molinero testified that he did not
know anyone at PennDOT who would have relayed that to Crosby. Id. Molinero
specified he did not suggest condemnation to Township and “[does] not know
enough about eminent domain to ever suggest it in a conversation.” R.R. at 419a.
26
Therefore, the record lacks support for the proposition that Township’s
fundamental purpose in exercising its eminent domain power was to improve the
safety of the intersection based on advice from PennDOT. Similarly, the record
lacks support for the trial court’s conclusion that Township’s Commissioners relied
on advice from other Township staff and professionals when they voted to pass the
Condemnation Resolution to exercise Township’s eminent domain power.
Application of Evidence
Whether this Court, not having heard any of the witnesses, believes
Township’s condemnation was a ploy to benefit Five D is irrelevant; the only
relevant inquiry is whether the record supports the trial court’s conclusions. For the
following reasons, we conclude that it does not.
First, we note the record demonstrates a lack of plan by Township to condemn
E&R Property. While the trial court noted one-line snippets of each Township’s
Commissioner’s testimony to support its conclusion that their testimony “clearly
demonstrates that their decision was based on the advice of the various professionals
who testified that the primary reasons for taking of the property was to improve the
safety of the intersection[,]” Trial Ct. Op. at 5, upon review of the totality of the
record, including the testimony of Township’s Commissioners and various
professionals, this conclusion is not supported by substantial evidence.
Additionally, the record lacks evidence of any carefully developed plan to
effectuate Township’s stated purpose of “public safety.” Township’s
Commissioners were notified that there would be a resolution for a condemnation
days before their scheduled meeting and they received the resolution and plans on
the day of the meeting. While several of Township’s Commissioners testified that
they relied on the advice of the various professionals in making the decision to
27
condemn E&R Property, it is clear upon review of those individuals’ testimony, as
well as the testimony of the identified professionals, that Township’s
Commissioners did not exercise informed judgment. Township’s Commissioners
asserted reasonings for the condemnation of E&R Property were inconsistent. While
some made broad assertions about “safety,” none were able to articulate the safety
concerns being addressed. While some made assertions about straightening the
intersection, none were able to articulate what public benefit that would confer.
Some of Township’s Commissioners testified that their understanding was that
PennDOT was proposing that it needed the portion of E&R Property to improve
safety of the intersection. See R.R. at 266a-67a, 564a-66a. However, the record is
devoid of evidence to support the idea that PennDOT recommended condemnation
of E&R Property for safety or any other purpose.
At the time Township’s Commissioners acted to invoke Township’s eminent
domain power, they did not discuss the source of their authority or note that “safety”
was the primary purpose authorizing the decision to invoke the power of eminent
domain. As our Supreme Court stated in Middletown, it cannot “be sufficient to
merely wave the proper statutory language like a scepter under the nose of a property
owner and demand that he forfeit his land for the sake of the public.” Middletown,
939 A.2d at 340. We require “substantial and rational proof by way of an intelligent
plan” to prove that a public purpose is the actual goal of a condemnation. Id. This
record does not support a finding that the condemnation proceeding was informed
by intelligent judgment or a concrete plan to use the land to implement a public
roadway to improve public safety.
Conversely, the record demonstrates that Township’s assertion that the
condemnation was for public safety is pretextual. Commissioner Kisow,
28
Township’s head of the public safety commission, testified at length regarding the
safety of the Tidball intersection. Commissioner Kisow testified that he had no
reason to believe that there was any issue with safety at the Tidball intersection, that
no one had ever come to him with a concern about the safety of the Tidball
intersection, and that he was not aware of any unusual traffic accidents at that
intersection. R.R. at 266a-67a. As the head of the public safety commission,
Commissioner Kisow indicated that he has never evaluated safety considerations at
the Tidball intersection, that he has never had any discussions with other Township
officials regarding safety of the intersection, and that he has not concluded at any
time that Township needed to take action to improve the intersection. Id. at 270a.
Notably, Commissioner Kisow testified that the safety of the Tidball intersection
was never discussed in reference to condemning E&R Property. Id. at 273a.
Similarly, Commissioner Abatta, who was chairman of Township’s Commissioners,
testified that he had no knowledge of Township evaluating the safety of the Tidball
intersection. R.R. at 368a. Likewise, Commissioner Barefoot, who was chair of
planning and zoning, testified that he has no knowledge of any safety concerns with
the Tidball intersection. R.R. at 641a. Commissioner Barefoot stated that he did not
review anything from any professional with respect to safety of the Tidball
intersection. R.R. at 642a. Consistently, Commissioner Shiwarski testified that he
did not have any conversations with respect to the safety of the Tidball intersection.
R.R. at 686a.
Therefore, the record evidence does not support the trial court’s conclusion
that Township’s condemnation of E&R Property was for a public purpose. Rather,
the evidence demonstrates that Township’s condemnation of E&R Property was on
behalf of and for the benefit of Five D. The condemnation process was initiated by
29
Crosby, the engineer working on behalf of Five D. It was Crosby’s e-mail
referencing PennDOT’s alleged recommendation to condemn the property that was
relied on by Township’s Commissioners in making the decision for Township to
condemn E&R Property. Even Township’s Commissioners assert that the
condemnation was for Five D. Specifically, when asked why Township condemned
the E&R Property, Commissioner Barefoot indicated “my understanding for an
entrance to . . . I understand a strip mall there.” R.R. at 642a. When asked whether
the condemnation was done for the development of Five D Property, Commissioner
Barefoot indicated, “Yes.” R.R. at 642a. Piccolini, Township Manager, testified:
Q. If PennDOT had said to [Township] the developer
could just simply have had a driveway that entered into
Waterford and not have any access to [Steubenville Pike,]
would there be a need for this condemnation?
A. I don’t think so. I can’t speak for the board[,] but I
don’t think so.
R.R. at 566a.
The record demonstrates that the public is not the “primary and paramount”
beneficiary of the condemnation, as is required to conclude that Township’s
condemnation of the E&R Property was for a public purpose. While the law may
permit development as a broad public purpose, the trial court’s conclusion that the
condemnation was for the purpose of public safety is not supported by the record. It
cannot be sufficient to conclude Township’s Commissioners relied on various
professionals when (1) Township’s Commissioners did not indicate they relied on
various professionals’ opinions regarding the safety of the intersection and (2) the
testimony of the professionals does not support the conclusion that the taking was
for public safety or any other public purpose.
30
CONCLUSION
The trial court’s conclusion that Township’s condemnation of E&R Property
was for the purpose of public safety is not substantially supported by the evidence
of record.11 The law requires “more than a scintilla [of evidence] creating a mere
suspicion” that Township’s condemnation of E&R Property was for a public
purpose. Barnes v. Dep’t of Justice, 452 A.2d 593 (Pa. Cmwlth. 1982). While the
public may benefit from an additional road and a geometric signalized intersection,
the record demonstrates that the primary purpose of the condemnation is for
development of Five D Property. Additionally, this record does not support any
finding that Township’s Commissioners, acting on behalf of Township, were
involved in a condemnation proceeding that was informed by intelligent judgment
or a concrete plan, which is required for a condemnation to be valid. See
Middletown, 939 A.2d at 338. Thus, the condemnation of the portion of E&R
Property for the installation of the road to connect Five D Property to Steubenville
Pike falls within the Protection Act’s prohibitive scope. Therefore, this Court
concludes that by failing to consider the Protection Act’s requirements and
overruling E&R’s POs, the trial court abused its discretion and erred as a matter of
law.
Accordingly, we reverse the trial court’s order.
______________________________
STACY WALLACE, Judge
11
We acknowledge the trial judge visited the Tidball intersection and that this is a factor which is
to be given substantial weight by this Court when reviewing an award in an eminent domain case.
See In re Dep’t of Transp., 393 A.2d 41, 43 (Pa. Cmwlth. 1978). However, the trial judge’s visit
and observation of the property does not circumvent the requirement that the taking be for a public
purpose.
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
Condemnation of the Township :
of Robinson of Certain Lands :
Owned Now or Formerly of: :
: No. 312 C.D. 2022
E&R Partners, L.P., :
82 Forest Grove Road :
Coraopolis, PA 15108 :
:
James Esposito :
5852 Steubenville Pike :
McKees Rocks, PA 15136 :
(Lot & Block 266-G-51) :
:
Huntley and Huntley :
2660 Monroeville Blvd. :
Monroeville, PA 15146 :
:
Herman Edwards :
5852 Steubenville Pike :
McKees Rocks, PA 15136 :
:
Appeal of: E&R Partners, L.P. :
ORDER
AND NOW, this 24th day of April 2023, the March 4, 2022 order of the Court
of Common Pleas of Allegheny County overruling E&R Partners, L.P.’s preliminary
objections is REVERSED.
______________________________
STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: :
:
Condemnation of the Township :
of Robinson of Certain Lands :
Owned Now or Formerly of: :
: No. 312 C.D. 2022
E&R Partners, L.P., : Argued: October 11, 2022
82 Forest Grove Road :
Coraopolis, PA 15108 :
:
James Esposito :
5852 Steubenville Pike :
McKees Rocks, PA 15136 :
(Lot & Block 266-G-51) :
:
Huntley and Huntley :
2660 Monroeville Blvd. :
Monroeville, PA 15146 :
:
Herman Edwards :
5852 Steubenville Pike :
McKees Rocks, PA 15136 :
:
Appeal of: E&R Partners, L.P. :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY SENIOR JUDGE LEAVITT FILED: April 24, 2023
The majority has done a careful and thoughtful review of this case.
Respectfully, however, I must dissent.
This case concerns the Township of Robinson’s (Township)
condemnation of less than one acre of land owned by E&R Partners, L.P.
(Condemnee) to improve the intersection of Tidball Road and Steubenville Pike in
the Township. The Court of Common Pleas of Allegheny County (trial court) found
that the improvement was necessary on the basis of credited testimony from a traffic
engineer with the Pennsylvania Department of Transportation, as well as the
testimony of the Township manager and the Township engineer. The trial court
credited the Township’s evidence that “the intersection as it stands is unsafe” and
“required changes for the benefit of the public at large.” Trial Court Op. at 4.
Perhaps most importantly, the trial court’s own site visit confirmed the need for a
reconfiguration of the intersection. The trial court’s findings based on the site visit
are entitled to deference, as are all its factual findings. See Township of Millcreek v.
Angela Cres Trust of June 25, 1998, 25 A.3d 1288, 1291 (Pa. Cmwlth. 2011) (trial
court’s factual findings based upon its site visit supported its decision to sustain
condemnee’s preliminary objections to the takings).
As to the vote on the condemnation, the trial court credited the
testimony of the Township Commissioners that their decision was based upon the
advice of Township staff and professionals that “the current intersection required
changes for the benefit of the public at large[.]” Trial Court Op. at 4. The majority
concludes that the trial court erred or abused its discretion in making this factual
finding because while “some made broad assertions about ‘safety,’” the
Commissioners were not able to articulate “the safety concerns being addressed” or
“what public benefit that would confer.” In Re: Condemnation of Township of
Robinson of Certain Lands (Appeal of: E&R Partners, L.P.) (Pa. Cmwlth., No. 312
C.D. 2022, filed April 24, 2023, slip op. at 28. The majority finds significant the
testimony that there have not been an unusual number of accidents at the intersection
in recent years. The majority further reasons that because the Township
MHL-2
Commissioners were not presented with a “carefully developed plan” on public
safety, they did not exercise “informed judgment.” Id. There are several problems
with this analysis.
To begin with, the relevant inquiry is not whether there is evidence in
the record to support a factual finding contrary to the one made but, rather, whether
there is substantial evidence to support the factual finding that was made. Mulberry
Market, Inc. v. City of Philadelphia, Board of License and Inspection Review, 735
A.2d 761, 767 (Pa. Cmwlth. 1999). Here, the trial court referred to precise
deposition testimony in finding that each Commissioner in question relied on the
recommendation of professionals or staff that the new road would improve safety.
The trial court’s factual findings on each Commissioner’s vote are supported by
substantial evidence and cannot be disturbed. Appeal of Waite, 641 A.2d 25, 27 n.1
(Pa. Cmwlth. 1994). We cannot give different weight to the testimony of the
Commissioners or reverse the trial court’s credibility determinations thereon,
without assuming the fact-finding function of the trial court. See In re
Condemnation of Land for the South East Central Business District Redevelopment
Area # 1, 946 A.2d 1143, 1149 (Pa. Cmwlth. 2008).
In its challenge to the declaration of taking, Condemnee bore the burden
of proving that the Township condemned its land fraudulently, or in bad faith, for a
private purpose, and that burden is a heavy one. Appeal of Waite, 641 A.2d at 28.
There is “a strong presumption that the condemnor has acted properly.” Id. Here,
Condemnee tried to meet its burden with circumstantial evidence, i.e., using
depositions of the Township Commissioners to show that they “did not conduct a
suitable investigation leading to an intelligent, informed judgment” before
condemning the property. Condemnee Brief at 32. Thus, Condemnee believes it
MHL-3
can be inferred that the true purpose of the condemnation was to benefit a private
development. The majority agrees, citing to Middletown Township v. Lands of
Stone, 939 A.2d 331 (Pa. 2007).
The majority’s reliance on Middletown Township is misplaced. In
Middletown Township, the township condemned a 175-acre working farm “for
recreation and open space purposes.” Id. at 333. Our Supreme Court reversed the
trial court’s denial of the condemnee’s preliminary objection although it did so while
leaving “undisturbed the factual findings made by the trial court.” Id. at 338. The
Supreme Court held, first, that the Open Space Lands Act1 prohibited the township
from using its eminent domain power to preserve open space. Second, there was no
record evidence that recreation was the actual purpose for the condemnation because
“recreation” did not appear in the township’s planning resolution. Other than
preservation for open space, the township had “no specific plan” for the farm, and
the trial court so found. Middletown Township, 939 A.2d at 334. In that context,
the Supreme Court ruminated on the desirability of a “carefully developed plan” and
noted that a condemnation based on sound judgment will be upheld. Id. at 340.
However, the issue in Middletown Township was not whether the township’s
condemnation plan was “carefully developed” but, rather, whether the township
even had the power to condemn land for open space. The Supreme Court held that
the township “took the land for purposes outside its limited authority” because it
lacked authority to condemn land to preserve open space. Id.
Unlike Middletown Township, where the township had no recreational
development plan whatsoever for a 175-acre farm, here the Township’s resolution
stated expressly that the property shall be condemned “so that a new public road and
1
Section 8 of the Act of January 19, 1968, P.L. (1967) 992, as amended, 32 P.S. §5008.
MHL-4
traffic signalization equipment may be constructed to signalize the new intersection
of Tidball Road and State Route 60[.]” Reproduced Record at 12a (emphasis added).
This resolution states a “carefully considered development plan.” Further, the
Township is expressly authorized to condemn land for “laying out, opening,
widening, extending, vacating, grading or changing the grades or lines of streets or
highways.” Section 1901 of The First Class Township Code, Act of June 24, 1931,
P.L. 1206, as amended, 53 P.S. §56901.
Middletown Township did not establish that a condemnor must prepare
a written development plan before it can exercise the power of eminent domain.
Nothing in Section 1901 of The First Class Township Code, 53 P.S. §56901, or the
Eminent Domain Code, 26 Pa. C.S. §§101-1106, requires the condemnor to prepare
a “carefully developed plan” on public roadway use before filing a declaration of
taking. Neither statute provides that the governing body of a condemnor must
exercise “informed judgment.” Further, the General Assembly has instructed that
the Eminent Domain Code provides “a complete and exclusive procedure and law
to govern all condemnations of property for public purposes[.]” 26 Pa. C.S. §102.
Finally, courts review what a local government or agency does, not
why. Whether the condemnation was done for a public purpose is determined by
review of what the Township Commissioners approved, not why or how they
approved it, i.e., on the same day they received the resolution for a condemnation.
Under the Morgan Doctrine, it is inappropriate to depose an agency
head to explain the process by which she made a decision, including “the manner,
extent of study of the record and consultation with subordinates.” U.S. v. Morgan,
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313 U.S. 409, 422 (1941).2 Agency heads must rely upon staff when they act, lest
the work of government grind to a halt. Courts look, instead, to the merits of the
decision and do not “try to penetrate the precise course of the Secretary’s reasoning.”
Id. at 420. Morgan cautioned against depositions that “probe the mental processes”
of the responsible government official, explaining that the “integrity of the
administrative process” requires no less. Id. at 422. The depositions of the
Township Commissioners were inappropriate in their line of inquiry but, in any case,
did not prove Condemnee’s case.
In its appeal, Condemnee has conflated the condemnor, the Township,
with its governing body, the Township Commissioners. The Township has to show
a primary public purpose for its condemnation when challenged, but it did not have
to show that its Board of Commissioners is comprised of Solons. Simply, the
depositions into the mental processes of the Township Commissioners were not
relevant to the question of whether the reconfigured road will serve a public purpose.
I would affirm the trial court’s well-reasoned opinion.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
2
This process is also known as the deliberative process privilege. See Joe v. Prison Health
Services, Inc., 782 A.2d 24, 33 (Pa. Cmwlth. 2001). The deliberative process privilege “permits
the government to withhold documents containing confidential deliberations of law or
policymaking, reflecting opinions, recommendations or advice.” Id. “The privilege recognizes
that if governmental agencies were forced to operate in a fishbowl, the frank exchange of ideas
and opinions would cease and the quality of administrative decisions would consequently suffer.”
Id.
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