decided: July 2, 1987.
IN RE: CONDEMNATION BY THE COMMONWEALTH OF PENNSYLVANIA, ACTING BY AND THROUGH THE DEPARTMENT OF GENERAL SERVICES OF THE PROPERTY OF BENART ASSOCIATES, A PENNA. LIMITED PARTNERSHIP; BLUE RIDGE REAL ESTATE COMPANY (A PENNA. CORP.); ET AL. IVAN M. POPKIN AND SUSAN A. POPKIN, APPELLANTS
Appeal from the Order of the Court of Common Pleas of Carbon County, in case of Ivan M. Popkin, et ux, et al. v. Commonwealth of Pennsylvania, No. 82 S 374.
Jerry M. Gewirtz, with him, Allan B. Schneirov, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for appellants.
David A. Fitzsimons, Assistant Counsel, with him, H. Warren Ragot and P. Alan Zulick, Assistant Counsels, and Anthony P. Krzywicki, Chief Counsel, for appellee.
Judges Colins and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge Palladino concurs in the result only.
[ 107 Pa. Commw. Page 236]
Ivan Popkin and Susan Popkin, his wife (Popkins) appeal from an order of the Court of Common Pleas of Carbon County dismissing their preliminary objections to a declaration of taking filed by the Department of General Services (DGS). For the reasons set forth below, we affirm.
[ 107 Pa. Commw. Page 237]
On August 30, 1982 a declaration of taking was filed by the DGS as part of a regional condemnation undertaken by the DGS for the creation of the Lehigh Gorge State Park (Lehigh Gorge). Included in the acquisition is a parcel of land owned by the Popkins, and located in Kidder Township, Pennsylvania. The declaration of taking cited Section 2401.1 of The Administrative Code of 1929 (Code),*fn1 as the statutory authority for the taking, and also made reference to two resolutions made by the General State Authority which authorized the taking.*fn2
Although the relevant facts in this matter are not disputed, the Popkins filed preliminary objections on September 30, 1982 alleging: (1) Section 2401.1 of the Code, 71 P.S. § 631.1 did not confer authority upon the DGS to condemn Appellants' property; (2) the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. (WSRA), is the controlling law, and the DGS in violation of the WSRA has failed to give the Popkins the right to use or occupy the condemned property during their lifetime; and (3) the DGS has condemned more land than is necessary and has otherwise acted arbitrarily and discriminatorily in determining which properties or what portions thereof are to be condemned for the development of the Lehigh Gorge.
The Popkins first argue that pursuant to Section 2401.1, Clause 2 (Clause 2) and Clause 4 (Clause 4) of the Code, the DGS is not authorized to condemn the
[ 107 Pa. Commw. Page 238]
Popkins' property for the purpose of acquiring land for Lehigh Gorge.*fn3 However, the Popkins' reliance on Clause 2 is misplaced. The Popkins incorrectly assert that Clause 2 and Clause 4 should be read together. However, Section 2401.1 is an enumeration of the specific powers of the DGS. Thus, Clause 2 and Clause 4 are two different and distinct powers of the DGS.
The purpose of the taking is indicated in paragraph four of the declaration of taking:
4. The use of which the properties is taken is the access to, and preservation, dedication and conservation of the upper Lehigh River, its banks, surrounding land and waters which are
[ 107 Pa. Commw. Page 239]
needed for recreation, health and scenery of the citizens of the Commonwealth of Pennsylvania.
In paragraph two of the declaration of taking, the DGS indicated that the authority for the taking was Section 2401.1 of the Code, but no reference was made to any particular clause in Section 2401.1 of the Code. However, The Eminent Domain Code*fn4 only requires a condemnor, under the power of condemnation given by law, to set forth the "statute, article and section thereof under which the condemnation is authorized". The authority relied upon by the DGS for the taking is Clause 4 which provides:
To acquire land in the name of the Commonwealth by purchase or eminent domain proceedings, in fee or in such right, title, interest, or easement as the department may deem necessary for the project as specifically authorized in a capital budget or other legislation, excluding, however, highways, bridges and other transportation facilities. (Emphasis added.)
The other legislation referred to in Clause 4 includes the Supplemental Capital Budget Act of 1980, Act of December 18, 1980, P.L. 1252 (Act 228). Act 228 is cited by the DGS in paragraph 3 of its declaration of taking.*fn5 Capital budget authorization for Lehigh Gorge is
[ 107 Pa. Commw. Page 240]
also found in the Act of December 30, 1974, P.L. 1101, and the Act of June 30, 1972, P.L. 721.*fn6 Accordingly, we conclude that Clause 4 confers specific authority upon the DGS to acquire lands, including the Popkins' property for Lehigh Gorge.
Secondly, the Popkins contend that the DGS has not given the Popkins an option to retain or utilize their property during their lifetime as required by the WSRA. As support for their position, the Popkins argue that the WSRA is applicable to the present case because the DGS has received federal funds for the Lehigh Gorge project. Although the WSRA does provide for a condemnee's right of use or occupancy of condemned property, this provision applies only to situations where condemnation proceedings have been initiated on the federal level by the Secretary of Interior or the Secretary of Agriculture.*fn7 The instant matter, whereby the DGS has acted to acquire land for Lehigh Gorge, involves state action.
[ 107 Pa. Commw. Page 241]
Moreover, the Lehigh River is not a component of the national system but rather is a component of the Pennsylvania Scenic Rivers System. See Lehigh Scenic River Act, Act of April 5, 1982, P.L. 222, as amended, 32 P.S. § 820.61 and the Pennsylvania Scenic Rivers Act, Act of December 5, 1972, P.L. 1277, as amended, 32 P.S. § 820.21. Furthermore, the sources of federal funding regarding the Lehigh Gorge project are the WSRA and the Land and Water Conservation Fund Act of 1965, P.L. 88-578, 78 Stat. 897 (codified as amended in scattered sections of 16 U.S.C.). There is no language in either of these statutes requiring states receiving federal funds to comply with Section Six of the WSRA. Therefore, we conclude that the WSRA has no application to the instant matter.
Lastly, the Popkins argue that the DGS has condemned more land than is necessary and has otherwise acted arbitrarily and discriminatorily. As already indicated by the trial court, the Popkins did not raise this issue in their preliminary objections. Rather this argument was first raised by the Popkins in a brief submitted three years after the declaration of taking was filed. The trial court, noting that the Popkins failed to offer any explanation for the delay, held that the objection was untimely.*fn8 We agree, and therefore this argument cannot be considered by this Court. Appeal of Edgewood Building Co., Inc., 43 Pa. Commonwealth Ct. 91, 402 A.2d 276 (1979); Smith v. Department of Transportation, 25 Pa. Commonwealth Ct. 56, 358 A.2d 734 (1976).
[ 107 Pa. Commw. Page 242]
Accordingly, the decision and order of the Court of Common Pleas of Carbon County, dismissing the Popkins' preliminary objections, is affirmed.
And Now, this 2nd day of July, 1987, the order of the Court of Common Pleas of Carbon County in the above-captioned matter is affirmed.
Judge Palladino concurs in the result only.