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In the Matter of:

June 6, 2012

IN THE MATTER OF: CONDEMNATION OF RIGHTS OF WAY AND EASEMENTS SITUATE IN THE TOWNSHIP OF MT. PLEASANT, COUNTY OF WESTMORELAND, COMMONWEALTH OF PENNSYLVANIA, BY THE MT. PLEASANT TOWNSHIP MUNICIPAL AUTHORITY FOR SEWER PURPOSES NAME OF OWNERS OF CONDEMNED PROPERTY: MALKAN, INC. AND RAYMOND P. ALINCIC AND PATRICIA ANN ALINCIC A/K/A PATRICIA A. ALINCIC, HIS WIFE APPEAL OF: MALKAN, INC.


The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: April 16, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE BROBSON

This is an appeal from a decision of the Court of Common Pleas of Westmoreland County (trial court), sustaining Raymond and Patricia Alincics‟ (collectively, the Alincics) preliminary objections to Mt. Pleasant Township Municipal Authority‟s (Township) Declaration of Taking. For the reasons set forth below, we affirm.

This condemnation proceeding is pursuant to the Eminent Domain Code, 26 Pa. C.S. §§ 101-1106 (the Code). On June 6, 2008, the Township filed a Declaration of Taking to condemn an area of land described as a railroad right-of-way and easement, located in Mt. Pleasant, Pennsylvania. The area is identified as Westmoreland County tax map number 53-01-00-0-79 (the Property). (Reproduced Record (R.R.) at 7a, 388a.) Specifically, the Property is a temporary easement thirty (30) feet in width and a permanent easement twenty (20) feet in width and extending from a point located in Township Road 563 on the North to a point located approximately 600 feet North of the Armburst-Hecla Road (State Route 2007) on the South. (Id. at 9a, 21a, 388a.) The Township sought to condemn the Property in order to construct a public sanitary sewer system. (Id. at 8a.) The Township identified Malkan, Inc. (Malkan) as the owner of the Property based on tax records. (Id. at 180a.) In accordance with the Code, the Township filed a Declaration of Taking on June 6, 2008, notifying Malkan of the condemnation. (Id. at 4a.) Thereafter, the Alincics filed preliminary objections to the Declaration of Taking on October 15, 2010. (Id. at 16a.) In their preliminary objections, the Alincics claimed that, based on their ownership of the Property through adverse possession, the Declaration of Taking was defective as it failed to name the Alincics as a condemnee in violation ofSection 304 of the Code*fn1 and Section 302 of the Code.*fn2 (Id. at 22a, 24a.) Furthermore, the Alincics allege that the Township‟s failure to notify them within thirty (30) days of the taking was a violation of Section 305 of the Code.*fn3

At the hearing on the preliminary objections before the trial court, Malkan‟s shareholder, Dale Malinzack, testified that Malkan purchased the Property in 1993 by quitclaim deed from Penn Central Railroad. (R.R. at 345a, 349a.) Mr. Malinzack asserted that when Malkan purchased the Property from Penn Central Railroad, the rails had been removed, but the ties remained in place. (Id. at 348a.) Since the purchase in 1993, Malkan paid all of the real estate taxes owed on the Property. (Id. at 345a.) Mr. Malinzack testified that he mined for carbon fuel resources near the Alincics‟ land. (Id. at 347a.) However, he asserted that he had not personally entered the Property nor was he aware of any other employee doing so. (Id. at 347a, 348a.)

Mr. Alincic also testified at the hearing. Mr. Alincic testified that he and his wife owned approximately sixty (60) acres of property in the vicinity of Clay Pike and Udell Road in Mt. Pleasant. (Id. at 188a, 189a.) The sixty acres included land for animal grazing. (Id.) The Alincics resided on this tract of land since 1977. (Id. at 193a.) Mr. Alincic testified that, in 1983, he engaged in negotiations to purchase the Property from Penn Central Railroad, similar to Malkan. (Id. at 199a.) Specifically, Mr. Alincic received a letter from Penn Central Railroad which contained an offer to acquire Penn Central Railroad‟s interest in the Property for $15,550.00. (Id. at 208.) However, Mr. Alincic ultimately decided to reject Penn Central Railroad‟s offer to acquire an interest in the Property for the specified sum of money. (Id. at 209a.) Soon thereafter, in 1984, Mr. Alincic erected a fence around the entire perimeter of his land, including the Property. (Id. at 210a-11a.) Mr. Alincic described the fence as a twenty-siX (26) gauge, four prong, barbed wire, electric fence. (Id. at 192a, 194a.) The fence is attached to "T" posts and trees with a steel jab pole. (Id.) The fence contained orange and pink ribbons for the purpose of assisting the Alincics in identifying when a part of the fence became loose or detached. (Id. at 194.) From 1984 to 2008, the Alincics continuously maintained the electric fence surrounding the Alincics‟ land, including the Property. (Id. at 211a.) Mr. Alincic further testified that he also installed drainage pipes on the Property in order to drain the fields. (Id. at 216a.) Furthermore, the Alincics maintained and patrolled the Property since the installation of the fence. (Id. at 217a.)

Since the installation of the fence, the Alincics were never contacted by Malkan regarding ownership of the Property. (Id. at 220a.) Furthermore, the Alincics had total control of the Property and never encountered any other individual or group exercising dominion or control over the Property. (Id. at 221a-22a.)

In the early portion of 2008, the Township‟s consulting engineer, Victor Regola, met with the Alincics regarding the proposed sewer system. (Id. at 222a.) Mr. Regola met Mr. Alincic at the Alincics‟ home to discuss the plan. (Id. at 223a.) During the meeting, the two men walked the Alincics‟ land, including the Property, and Mr. Alincic voiced his concerns over the proposed sewer system, such as potential damage to the fence and surrounding trees as a result of the construction. (Id.)

Mr. Regola echoed Mr. Alincic‟s testimony regarding their meetings about the project. (Id. at 169a.) Mr. Regola acknowledged that he saw the fence during his meetings with Mr. Alincic. (Id. at 157a, 167a.) Mr. Regola further recognized the drainage pipes installed on the Property, but was unaware that the pipes were installed by Mr. Alincic. (Id. at 178a.) Finally, regarding ownership of the Property, Mr. Regola determined Malkan to be the owner of record based on the tax office information and the deeds provided. (Id. at 180a.)

Throughout the hearing, Malkan and the Township argued that the trial court did not have jurisdiction to entertain the Alincics‟ preliminary objections. Moreover, Malkan and the Township argued that the Alincics did not have standing to object to the taking because they were not a party to the action.

The trial court sustained the Alincics‟ preliminary objections. In so doing, the trial court, in its opinion, references Section 202 of the Code, which defines condemnee as "[a] person that owns property subject to the exercise of power of eminent domain by the condemnor." 26 Pa. C.S. § 202. In that definition, the trial court reasoned, there is no distinction between a property owner who acquired title by a deed transfer and one who acquired title by adverse possession. In addition, the trial court relied on precedent in which courts‟ presupposed jurisdiction to entertain claims of adverse possession in an eminent domain proceeding. Accordingly, the trial court concluded that it had jurisdiction to determine an interest in the Property through preliminary objections. Furthermore, the trial court went on to conclude that the Alincics presented sufficient evidence to establish ownership through adverse possession. As a result, the trial court ruled that the Alincics had standing to file preliminary objections.

On appeal,*fn4 Malkan raises three issues to dispute the Alincics ownership. First, Malkan argues that a title dispute cannot be properly addressed by filing preliminary objections to an eminent domain proceeding. Instead, Malkan argues that the Alincics should have filed an action for ejectment or an action to quiet title. As a result, Malkan posits that the Alincics did not have standing to raise this issue and, further, that the trial court did not have jurisdiction to hear the matter. Second, Malkan contends that even if the Alincics are able to challenge title through preliminary objections, the ...


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