Opinion
No. 1556 C.D. 2011
05-21-2012
In Re: Condemnation by the Pennsylvania Turnpike Commission of Property Located in the Township of South Fayette, Allegheny County, Commonwealth of Pennsylvania, for the Southern Beltway Route 22 to I-79 Project (Parcel ID No. 0573-F-00010-0000-00) Appeal of: Wayne E. Bisbey
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Wayne E. Bisbey (Condemnee) appeals from the Allegheny County Court of Common Pleas' (trial court) July 27, 2011 orders. The first order sustained the Pennsylvania Turnpike Commission's (Commission) Preliminary Objections filed in response to, and overruled, the Condemnee's Preliminary Objections to the Commission's Declaration of Relinquishment (Relinquishment). The second order granted the Commission's Motion for Protective Order precluding Condemnee from deposing Doreen McCall and Jeffrey Z. Garret, or from seeking any documents identified in Condemnee's request for production of documents. There are two issues before the Court: (1) whether the trial court erred in holding that there is no legal authority to file preliminary objections to a Declaration of Relinquishment (Relinquishment); and (2) whether the trial court erred in rejecting Condemnee's request for an evidentiary hearing on the issue of whether the Commission acted in bad faith in filing the Relinquishment. We affirm.
Condemnee owns a two-acre parcel of land containing two buildings on County Line Road, Bridgeville in South Fayette Township, Allegheny County (Property). The Property is zoned commercial and Condemnee uses it for his bakery equipment supply company. On June 10, 2010, the Commission filed a Declaration of Taking (Taking), notifying Condemnee of its plans to use the Property as an access ramp to a limited-access highway.
On July 9, 2010, Condemnee filed Preliminary Objections to the Taking. On August 3, 2010, the Commission filed Preliminary Objections to Condemnee's Preliminary Objections. Condemnee subsequently withdrew his Preliminary Objections. On May 5, 2011, the Commission filed a Relinquishment. On May 27, 2011, Condemnee filed Preliminary Objections to the Relinquishment. On June 20, 2011, the Commission filed Preliminary Objections to Condemnee's Preliminary Objections, and a Motion for a Protective Order.
The trial court held a hearing on July 8, 2011. On July 27, 2011, the trial court issued two orders. The first order sustained the Commission's Preliminary Objections, and overruled Condemnee's Preliminary Objections. The second order granted the Commission's Motion for a Protective Order. Condemnee appealed to this Court.
"Our standard of review of an order of the trial court sustaining preliminary objections is limited to a determination of whether the trial court committed an error of law or abused its discretion." Appeal of: Redevelopment Auth. of the City of Allentown, 31 A.3d 321, 323 n.1 (Pa. Cmwlth. 2011) (quoting Bradley v. O'Donoghue, 823 A.2d 1038, 1040 (Pa. Cmwlth. 2003)).
Condemnee argues that the filing of preliminary objections is the proper method for challenging a declaration of relinquishment pursuant to Section 306(a)(3)(iv) of the Eminent Domain Code, 26 Pa.C.S. § 306(a)(3)(iv). We agree.
Section 306(a)(3) of the Eminent Domain Code specifically provides in pertinent part: "Preliminary objections shall be limited to and shall be the exclusive method of challenging: . . . (iv) Any other procedure followed by the condemnor." Section 308(a)(1) of the Eminent Domain Code, 26 Pa.C.S. § 308(a)(1), provides:
The condemnor, by filing a declaration of relinquishment in court within two years from the filing of the declaration of taking and before having made the payment . . . or as to which the condemnee has not tendered possession of the condemned property . . . may relinquish all or any part of the property condemned that it has not taken actual possession of for use in the improvement.Here, the Commission properly filed the Relinquishment, so Condemnee had the right to file preliminary objections thereto. There is no case law to state otherwise. In fact, there were several cases before this Court, wherein, preliminary objections to a declaration of relinquishment were involved, and their propriety in those circumstances was not deemed an issue. See Appeal of Victory Glass, Inc., 433 A.2d 581 (Pa. Cmwlth. 1981); see also In the Matter of Rights of Way & Easements Situate in the Twp. of North Huntingdon, 404 A.2d 430 (Pa. Cmwlth. 1979). Thus, the trial court erred in holding that there is no legal authority to file preliminary objections to a declaration of relinquishment.
Having determined that preliminary objections were proper, the issue becomes whether the trial court could rule on them without an evidentiary hearing. Here, Condemnee alleges in his Preliminary Objections that the parties entered into a settlement which caused him to withdraw his Preliminary Objections to the Commission's Taking, and the Commission's filing of a Relinquishment is a breach of that settlement. However, under the statute as long as the Commission filed its Relinquishment within two years, and had not made payment or taken possession of the Property, the Commission is entitled to Relinquishment. As there are no factual issues related to whether the Commission properly filed its Relinquishment, the trial court was not required to hold a hearing. See 26 Pa.C.S. § 306(f)(2). Accordingly, we hold that preliminary objections are the proper mechanism to challenge a relinquishment, however, the trial court did not err in sustaining the Commission's Preliminary Objections and overruling Condemnee's Preliminary Objections.
The settlement consisted of an agreement by Condemnee to withdraw his original preliminary objections in consideration of the Commission making a commitment to: obtain an appraisal of Condemnee's goods, deliver a copy of the appraisal to Condemnee, and make an offer to Condemnee based on the appraisal. See Reproduced Record at 123a, 124a. --------
Condemnee next argues that the trial court erred in rejecting Condemnee's request for an evidentiary hearing on the issue of whether the Commission acted in bad faith in filing the Relinquishment. We disagree.
Our Supreme Court enunciated . . . in Weber v. Philadelphia, 437 Pa. 179, 183, 262 A.2d 297, 299 (1970) (citations omitted)[:]Appeal of Joseph J. Kenenitz & Michelle L. Kenenitz, his wife, 851 A.2d 992, 996-97 (Pa. Cmwlth. 2004).
First, it is to be presumed that municipal officers properly act for the public good. Second, courts will not sit in review of municipal actions involving discretion, in the absence of proof of fraud, collusion, bad faith or arbitrary action equating an abuse of discretion. Third, on judicial review, courts, absent proof of fraud, collusion, bad faith or abuse of power, do not inquire into the Wisdom [sic] of municipal actions and Judicial discretion should not be substituted for Administrative discretion.
Our law is replete with this sort of admonition. We are to give deference to the judgment of municipal officials in the exercise of their discretion in eminent domain matters and will disturb their decisions only where the condemnee can offer proof of fraud, collusion, bad faith, or an abuse of power or discretion.Id. at 997 (emphasis added). Here, Condemnee alleges that the Commission failed to notify him of the option of turning his goods over for sale, that the Commission breached its settlement agreement, and that the Commission had not abandoned its project. The burden of proving fraud, bad faith, or an abuse of discretion is a heavy burden and it is carried by the objector. Simco Stoes, Inc. v. Redevelopment Authority of the City Philadelphia, 302 A.2d 907 (Pa. Cmwlth. 1973). Nothing that Condemnee alleges here rises to the level of proof necessary to carry the heavy burden imposed on him. Thus, a hearing to prove said allegations was not warranted, and the trial court properly overruled Condemnee's Preliminary Objections.
For all of the above reasons, we affirm the trial court's orders.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 21st day of May, 2012, the Allegheny County Court of Common Pleas' July 27, 2011 orders are affirmed.
/s/_________
ANNE E. COVEY, Judge