Breck v. Pittsburgh-Butler Reg'l Airport

1

Matthew L. Breck and Crystal Anne Breck, Appellants v. Pittsburgh-Butler Regional Airport, a/k/a Butler County Airport

No. 896 C.D. 2023

Commonwealth Court of Pennsylvania

November 6, 2024

OPINION NOT REPORTED

Submitted: October 8, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge (P.) HONORABLE MATTHEW S. WOLF, Judge

MEMORANDUM OPINION

CHRISTINE FIZZANO CANNON, Judge

Matthew L. Breck and Crystal Anne Breck (collectively, Appellants) appeal from the August 3, 2023 order of the Court of Common Pleas of Butler County (Trial Court) that held that Appellants failed to prove a de facto taking of their property under the Eminent Domain Code (Code)^[1] and that the Pittsburgh-Butler Regional Airport a/k/a Butler County Airport (Airport) did not waive its right to challenge whether a de facto taking of Appellants' property had occurred. On review, we affirm.

I. Background

The instant appeal involves Appellants' residence at 384 Brownsville Road, Butler, Pennsylvania (Property), which Appellants purchased from Matthew Breck's parents and which abuts the western side of the Airport. See Trial Court Opinion and Order of Court dated August 3, 2023 (Trial Court Opinion) at 2-3. On March 30, 2021, Appellants filed their "Petition for Appointment for [sic] a Board of Viewers pursuant to 26 Pa.C.S.[ §] 502(c)" (Petition) in the Trial Court, alleging that the Airport had taken the Property through a de facto taking. See Trial Court Opinion at 1; see also Petition, Reproduced Record (R.R.) at 6-12.^[2] On April 6, 2021, the Trial Court filed an order granting the Petition and appointing a board of viewers. See Trial Court Opinion at 1; see also Order of Court Appointing Board of Viewers (Petition Grant Order), R.R. at 13.

Also on April 6, 2021, in response to the filing of the Petition Grant Order, the Airport filed its "Petition for Determination of Issues Under 26 Pa.C.S. § 502(c)(2)" (Determination Petition), in which it requested that the Trial Court issue a determination as to whether the Petition established that a de facto taking of the Property had occurred. See Trial Court Opinion at 2; see also Determination Petition, R.R. at 17-50. Appellants thereafter filed "Condemnees' Answer to Condemnor's Petition for Determination of Issues Under 26 Pa.C.S. Section 502(c)(2)" (Answer to Determination Petition), in which they argued that the Airport had waived its right to object to the allegations of the Petition by failing to timely file preliminary objections thereto. See Trial Court Opinion at 2; see also Answer to Determination Petition, R.R. at 51-71.

On May 19, 2022, the Trial Court issued a Memorandum Opinion and Order of Court (Determination Petition Opinion), in which it held that a determination as to whether a de facto taking had occurred must precede the appointment of a board of viewers, and that the filing of preliminary objections can only be filed after the appointment of a board of viewers. See Trial Court Opinion at 2; see also Determination Petition Opinion at 4-7.

The Trial Court thereafter conducted an evidentiary hearing to determine whether a de facto taking of the Property occurred. See Trial Court Opinion at 2; see also Notes of Testimony, February 10, 2023, R.R. at 293-585; Notes of Testimony, April 21, 2023, R.R. at 101-292. Following the hearing and further briefing and argument of the parties, on August 3, 2023, the Trial Court issued the Trial Court Opinion finding that Appellants failed to establish a de facto taking of the Property and that the Airport had not waived its right to challenge the occurrence of such a taking. See generally Trial Court Opinion. This appeal followed.^[3]

II. Issues

On appeal, Appellants claim the Trial Court erred in three ways. First, Appellants claim that the Trial Court committed an error of law by concluding that the Airport could not file preliminary objections in this matter until after the Trial Court determined whether a de facto taking occurred, which determination the Trial Court held it was duty-bound to make. See Appellants' Br. at 22-29. Next, Appellants claim the Trial Court erred by determining that the Trial Court was responsible for determining whether a condemnation occurred. See Appellants' Br. at 29-33. Finally, Appellants argue that the Trial Court erred by not allowing Appellants to call the Airport's attorney (Airport Counsel) as a witness and by making certain witness credibility determinations. See Appellants' Br. at 34-46.

III. Discussion

A. Waiver of Preliminary Objections and Evidentiary Hearing Thereon

We first address Appellants' first two claims, which are interrelated.^[4]Initially, we observe that Section 502(c) of the Code allows a property owner that asserts that its property interest has been condemned without the filing of a declaration of taking to file a petition for the appointment of a board of viewers setting forth the factual basis of the petition. See 26 Pa.C.S. § 502(c)(1). "[T]he Code provides the exclusive method and practice governing eminent domain proceedings, including de facto takings,^[5] and [] preliminary objections are the exclusive method of raising objections to a petition for appointment of viewers alleging a de facto taking." York Rd. Realty Co., L.P. v. Cheltenham Twp., 136 A.3d 1047, 1050 (Pa. Cmwlth. 2016) (quoting Gerg v. Twp. of Fox, 107 A.3d 849, 852 (Pa. Cmwlth. 2015)) (emphasis in original) (brackets omitted); see also Pileggi v. Newton Twp., 245 A.3d 377, 384 n.4 (Pa. Cmwlth. 2021) ("Preliminary objections are the exclusive method under the [] Code of raising legal and factual objections to a petition for appointment of viewers which alleges a de facto taking." (quoting German v. City of Phila., 683 A.2d 323, 325 n.5 (Pa. Cmwlth. 1996))); Section 502 of the Code, 26 Pa.C.S. § 502. "[P]reliminary objections in the context of proceedings under the Code are distinct from preliminary objections in the context of a proceeding under the Pennsylvania Rules of Civil Procedure." York Rd., 136 A.3d at 1050 (quoting William Schenk & Sons v. Northampton, Bucks Cnty., Mun. Auth., 97 A.3d 820, 824 (Pa. Cmwlth. 2014) (additional quotation marks omitted)). "In proceedings under the Code, preliminary objections are intended as a procedure to resolve all legal and factual challenges to a declaration of taking before proceeding to the damages issue - i.e., hearing by an appointed board of viewers." York Rd., 136 A.3d at 1050 (quoting William Shenk, 97 A.3d at 824) (additional quotation marks omitted)). As this Court has observed,

[i]n eminent domain proceedings, preliminary objections serve a broader purpose than ordinary preliminary objections and are intended as a procedure to expeditiously resolve threshold legal issues[.] Indeed, the trial court must first determine whether a de facto taking has occurred before sending the matter to a board of view[ers] to determine damages.

Hill v. City of Bethlehem, 909 A.2d 439, 442 n.8 (Pa. Cmwlth. 2006) (internal citations omitted). Therefore, when preliminary objections are filed in a de facto taking case,

[a] trial court must determine first whether, as a matter of law, the averments of the petition for the appointment of [a board of] viewers, taken as true, in addition to any stipulated facts, are sufficient to state a cause of action for a de facto taking. If not, the preliminary objections must be sustained and the petition dismissed or allowed to be amended.

Hill, 909 A.2d at 443 (quoting Stein v. City of Phila., 557 A.2d 1137, 1140 (Pa. Cmwlth. 1989)).

The decision of whether a compensable taking has occurred requires an initial determination that the act complained of was, in fact, an exercise of eminent domain power. Acts not done in the exercise of the right of eminent domain and not the immediate, necessary or unavoidable consequences of such exercise cannot be the basis of a proceeding in eminent domain.

German, 683 A.2d at 326-27.

The first question in the instant case concerns the timing of preliminary objections in response to petitions for appointment of a board of viewers that allege a de facto taking. Regarding preliminary objections to petitions for the appointment of viewers, Section 504 of the Code provides, in relevant part:

(d) Preliminary objections.-

(1) Any objection to the appointment of viewers may be raised by preliminary objections filed within 30 days after receipt of notice of the appointment of viewers.

(2) Objections to the form of the petition or the appointment or the qualifications of the viewers in any proceeding or to the legal sufficiency or factual basis of a petition filed under section 502(c) (relating to petition for appointment of viewers) are waived unless included in preliminary objections.

(3) An answer with or without new matter may be filed within 20 days of service of preliminary objections, and a reply to new matter may be filed within 20 days of service of the answer.

(4) The court shall determine promptly all preliminary objections and make any orders and decrees as justice requires.

(5) If an issue of fact is raised, the court shall conduct an evidentiary hearing or order that evidence be taken by deposition or otherwise, but in no event shall evidence be taken by the viewers on this issue.

26 Pa.C.S. § 504(d).

Thus "[p]reliminary objections are the proper response to a petition for appointment of viewers pursuant to [S]ection 504 of the [] Code[.]" Millcreek Twp. v. N.E.A. Cross Co., 620 A.2d 558, 560 (Pa. Cmwlth. 1993). While the function of preliminary objections differs from regular civil practice in matters brought under the Code, the Code clearly sets forth the timing for filing and the required content of preliminary objections in such...