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York OPA, LLC v. Commonwealth

Commonwealth Court of Pennsylvania

March 20, 2018

York OPA, LLC
v.
Commonwealth of Pennsylvania, Department of Transportation, Appellant

          Argued: September 14, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          PATRICIA A. MCCULLOUGH, JUDGE

         The Commonwealth of Pennsylvania, Department of Transportation (DOT) appeals from the December 9, 2016 opinion and order of the Court of Common Pleas of York County (trial court), which overruled DOT's preliminary objections to the petition for appointment of a board of viewers filed by York OPA, LLC (OPA). We affirm in part and reverse in part.

         Facts and Procedural History

         On June 20, 2011, DOT filed a formal declaration of taking (Declaration) pursuant to the Eminent Domain Code (Code), [1] seeking to acquire 0.154 acres in fee simple title for the purpose of widening State Route (SR) 124, also known as Mt. Rose Avenue, and 0.127 acres as a temporary construction easement from real estate owned by OPA in Springettsbury Township (Township), York County, which commercially operates as the Eagle's Nest Restaurant (the OPA Property). (Reproduced Record (R.R.) at 21a-27a.) DOT filed a plan of condemnation (Plan) with the Declaration that identified the areas subject to the requested taking. In addition to the OPA Property, the Plan also identified a 0.142-acre area that DOT set forth as an existing legal right-of-way. (R.R. at 27a.) OPA did not file preliminary objections to the Declaration. (R.R. at 76a-77a; OPA's Petition for Appointment of Board of Viewers dated 1/6/14, at ¶2.) The matter before us pertains solely to the 0.142-acre area.

         On January 6, 2014, two years after DOT filed the Declaration, OPA petitioned for the appointment of a board of viewers to assess damages for DOT's taking of the OPA Property, as well as the additional 0.142-acre area. (R.R. at 76a-77a.) At a two-day hearing held before the board of viewers in September 2014, OPA claimed ownership of the 0.142-acre area that was designated as an existing right-of-way in the Plan. (R.R. at 3a; OPA's Petition for Appointment of Board of Viewers dated 10/30/14, at ¶15.) OPA asserted that it first discovered that the 0.142-acre area was not an existing right-of-way during its preparations for the proceeding before the board of viewers. (Id. at ¶12.) DOT objected to OPA's assertion, arguing that OPA had not properly challenged the Plan's designation of the 0.142-acre area as an existing right-of-way by filing preliminary objections to the Declaration. Ultimately, the board of viewers awarded damages for the OPA Property taken pursuant to the Declaration and depicted on the Plan (i.e., the 0.154-acre and 0.127-acre tracts), but did not award damages with respect to the 0.142-acre area. OPA appealed the board of viewers' decision, requesting a jury trial de novo, and that action remains pending with the trial court.

         On October 30, 2014, following the board of viewers' proceeding regarding the formal condemnation, OPA initiated a collateral action and filed the second petition for the appointment of a board of viewers pursuant to Section 502(c) of the Code, and it is that second petition that is now before this Court. (R.R. at 1a-10a.) In its second petition, OPA attacked the Plan through an allegation of inverse condemnation. (Id.) Specifically, OPA argued that DOT never acquired the 0.142-acre area from OPA or otherwise, and that OPA did not receive just compensation for that 0.142-acre area from DOT. (Id. at ¶16.) Thus, OPA contended DOT inversely condemned that area once construction to expand SR 124 began, and, accordingly, OPA requested additional just compensation under the Code for the 0.142-acre area. (Id. at ¶17.)

         On December 1, 2014, DOT filed preliminary objections to OPA's second petition for appointment of a board of viewers, asserting, inter alia, that OPA waived any challenge to the nature and extent of the OPA Property's ownership, including the 0.142-acre area, as represented in the Declaration, because OPA failed to file preliminary objections to the Declaration. (R.R. at 11a-41a; DOT's Preliminary Objections.) DOT further asserted that OPA lacked standing to bring the action because it was not the record owner of the property at the time of the alleged taking when the Township accepted the 0.142-acre area in 1991. On February 22, 2016, the trial court held oral arguments to consider DOT's preliminary objections.

         On February 23, 2016, the trial court ordered both parties to submit a rendering of the 0.154-acre required right-of-way and the 0.142-acre right-of-way depicted in DOT's Plan. (R.R. 85a-86a; Order Requesting Additional Information.) The trial court also directed the parties to provide a brief narrative regarding title to the 0.142-acre area. (Id.) In response to the trial court's directives regarding the 0.142-acre area, DOT submitted (1) a 1799 deed establishing a 33-foot width right-of-way along the current SR 124 (R.R. at 101a-105a; DOT's Response to Order Requesting Additional Information (Response), at Exhibit 2.);[2] (2) Resolution 90-43 passed by the Township on October 25, 1990, which adopted certain rights-of-way from various properties along SR 124 in the Township (explicitly including the OPA Property) to be used in the expansion of Mt. Rose Avenue (R.R. at 106a-107a; Response, at Exhibit 3.); (3) a deed of transfer dated May 14, 1991, and recorded on May 30, 1991, which conveyed 2.433 acres, including 3, 299 square feet of the OPA Property, from the Township to DOT, to be used for a required right-of-way in fee simple along SR 124 (R.R. at 108a-113a; Response, at Exhibit 4.); (4) the plan accepting the dedication of the right-of-way for SR 124, which was recorded following the deed transfer (R.R. at 114a-116a; Response, at Exhibit 5.); (5) the 2005 deed of purchase, evidencing OPA's purchase of the property from Arthur Murphy to OPA and containing a metes and bounds description of the property that falls within the cartway of SR 124 (R.R. at 117a-121a; Response, at Exhibit 6.). (Appellant's brief, at 8-9.)

         On August 17, 2016, the trial court conducted an evidentiary hearing to determine whether a de facto taking occurred. OPA presented the testimony of Pamela Seay, a title abstractor employed by OPA's legal counsel. (R.R. at 153a; Notes of Transcript (N.T.), 8/17/16, at 12.) Ms. Seay testified that, when performing a title search of the OPA Property, she did not locate the 1991 deed of dedication from the Township to DOT in the chain of title. (R.R. at 156a; N.T., 8/17/16, at 18.) The deeds searched by Ms. Seay, which dated back to 1935, all contained metes and bounds descriptions that included a portion of the roadbed of SR 124. (R.R. at 154a-156a; N.T., 8/17/16, at 16-18; see also R.R. at 201a-210a; N.T., 8/17/16, at OPA Exhibits 2-7.) OPA also presented the testimony of Arthur Murphy, the predecessor in title to OPA. (R.R. at 160a; N.T., 8/17/16, at 26.) Mr. Murphy testified that, during his ownership of the OPA Property, he did not receive notice that the Township had acquired a right-of-way. (R.R. at 161a; N.T., 8/17/16, at 28.)

         DOT presented the testimony of Richard Reisinger, P.E., a professional engineer and the District 8-0 Right-of-Way Administrator. (R.R. at 165a-166a; N.T., 8/17/16, at 37-38.) Mr. Reisinger testified that he had personal knowledge of the chain of title and history of the property. (R.R. at 166a; N.T., 8/17/16, at 38.) He also explained how DOT calculated the 0.142-acre area, and that a portion of that area extends into the roadbed of SR 124. (R.R. at 174a; N.T., 8/17/16, at 54.) Mr. Reisinger further testified that the Plan included all of DOT's documents of title to its legal areas.

         On December 12, 2016, the trial court issued its opinion and order overruling DOT's preliminary objections and finding a de facto taking. (R.R. at 132a-140a; Opinion and Order Overruling Preliminary Objections of DOT dated December 9, 2016.) In doing so, the trial court considered whether the Township properly obtained the 0.142-acre area that it dedicated to DOT, as well as the fact that the Property owner did not receive notice of DOT's acquisition of the right-of-way because the deed of dedication was allegedly not indexed to each property owner impacted by the dedication and there is no record of the Township taking that 0.142-acre area. DOT timely appealed the trial court's order to this Court.

         Discussion and Analysis

         On appeal, [3] DOT argues that (1) OPA waived its right to file a separate de facto taking action, collaterally challenging the nature and extent of its property interest condemned, where it did not file preliminary objections to the declaration of taking; (2) OPA lacks standing to bring a de facto claim because it was not the owner of the property allegedly taken at the time of taking; (3) the Board of Property has exclusive subject matter jurisdiction to determine the title of property to which the Commonwealth claims ownership; (4) the trial court's finding of a de facto taking based upon an alleged defect in the indexing of the deed of transfer to DOT was unsupported by substantial evidence; and (5) the trial court erred in its order overruling DOT's preliminary objections by failing to specify the property interest condemned and the date of condemnation as required by Section 502(c) of the Code.

         OPA's Failure to File Preliminary Objections

         Initially, DOT contends that OPA waived its right to file a separate de facto taking action, collaterally challenging the nature and extent of the property interest condemned, because it did not file preliminary objections to the Declaration.

         OPA admits that it did not file preliminary objections to the Declaration. However, OPA argues that preliminary objections are not the exclusive method of challenging a taking of a portion of land not condemned in the Declaration, and that filing a de facto taking action is permitted in this case. Specifically, OPA asserts that its right to file a de facto taking action was not waived because DOT failed to include the 0.142-acre right-of-way in its Declaration.

         "It is well established that the Code provides the exclusive method and practice governing eminent domain proceedings, including de facto takings." Linde Enterprises, Inc. v. Lackawanna River Basin Sewer Authority,911 A.2d 658, 661 (Pa. Cwmlth. ...


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