In re Commonwealth, Dep't of Transp., 1308 C.D. 2014

131 A.3d 625

In re CONDEMNATION BY the COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, OF RIGHT–OF–WAY FOR STATE ROUTE 0095, SECTION BSR, in the City of Philadelphia.

Appeal of: Commonwealth of Pennsylvania, Department of Transportation.

No. 1308 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued Oct. 7, 2015.

Filed Jan. 29, 2016.

Lee C. Silverman, Assistant Chief Counsel, King of Prussia, for appellant.

Daniel S. Coval, Jr., Bala Cynwyd, for appellee.

BEFORE: DAN PELLEGRINI, President Judge¹ , and MARY HANNAH LEAVITT, Judge² , and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.

OPINION BY Judge BROBSON.

The Commonwealth of Pennsylvania, Department of Transportation (PennDOT), appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), sustaining the preliminary objections of Row–Row, LLC (Row–Row), to a declaration of taking filed by PennDOT. The trial court concluded that PennDOT's declaration of taking was untimely filed under Section 302(e) of the Eminent Domain Code, 26 Pa.C.S. § 302(e). For the reasons that follow, we reverse.

On March 7, 2013, the Secretary of Transportation (Secretary) signed and authorized a plan of acquisition (2013 Plan) by eminent domain to acquire 44 properties at the base of the Betsy Ross Bridge as part of a major construction project to improve Interstate 95 in Philadelphia. Four of the properties are owned by Row–Row. On March 27, 2013, PennDOT filed the 2013 Plan to acquire the 44 properties with the Philadelphia County Recorder of Deeds. Approximately one year later, on February 27, 2014, the Secretary signed a revised plan (2014 Plan), which purported to revise and reauthorize the 2013 Plan. On March 7, 2014, PennDOT recorded the 2014 Plan by filing it with the Recorder of Deeds. On April 21, 2014, PennDOT filed a declaration of taking condemning the 44 properties.

Row–Row filed preliminary objections arguing, inter alia, that PennDOT's declaration of taking was untimely filed under Section 302(e) of the Eminent Domain Code. In its response, PennDOT requested that Row–Row's preliminary objections be dismissed or that a hearing be held on any evidentiary issues. On July 1, 2014, the trial court issued an order sustaining Row–Row's preliminary objections and striking PennDOT's declaration of taking as untimely. The trial court did so without holding a hearing. Citing In re Redevelopment Authority of City of Allentown, 31 A.3d 321 (Pa.Cmwlth.2011) ( Ribbon Works ), the trial court held that PennDOT could not extend the time for filing its declaration of taking by reauthorizing the plan of acquisition. Because PennDOT filed its declaration of taking more than one year after the Secretary's initial authorization on March 7, 2013, the trial court held that it was untimely under Section 302(e) of the Eminent Domain Code and sustained Row–Row's preliminary objections.

On appeal,³ PennDOT contends that the trial court erred in sustaining Row–Row's preliminary objections for two reasons. First, it argues that the trial court erred in concluding that PennDOT's filing of a declaration of taking was untimely. Second, PennDOT asserts that the trial court should have, at the very least, held an evidentiary hearing.

At the outset, we note that "[t]he power of the Commonwealth to acquire private property through the use of it[s] eminent domain powers directly flows from its attributes as the sovereign." In re Condemnation of 110 Washington St., Borough of Conshohocken, Pa., by Redevelopment Auth. of Cnty. of Montgomery for Urban Renewal Purposes, 767 A.2d 1154, 1158 (Pa.Cmwlth.), appeal denied, 567 Pa. 748, 788 A.2d 379 (2001). In Peters v. City of Reading, 321 Pa. 220, 184 A. 23, 24 (1936), our Supreme Court explained that "[t]he right of eminent domain is an attribute of sovereignty, inherent in the state, to be exercised subject to applicable provisions of the Constitution ^{[4 ]} and in accord with statutes regulating procedure. It is generally exercised by the state, or by agencies to which the state delegates the power...." Peters, 184 A. at 24. The Eminent Domain Code provides "a complete and exclusive procedure and law to govern all condemnations of property for public purposes." Section 102 of the Eminent Domain Code, 26 Pa.C.S. § 102. It defines the term "condemn" as "[t]o take, injure or destroy property by authority of law for a public purpose." Section 103 of the Eminent Doman Code, 26 Pa.C.S. § 103. The Eminent Domain Code, however, "does not confer or limit the authority to condemn." In re Condemnation Proceeding by Twp. of Lower Macungie, Lehigh Cnty., 717 A.2d 1105, 1107 (Pa.Cmwlth.1998), appeal denied, 558 Pa. 643, 738 A.2d 458 (1999).

Relevant to the matter now before the Court, Section 2003 of the Administrative Code of 1929⁵ (Administrative Code) grants PennDOT the power of eminent domain and requires PennDOT to file a plan of acquisition when exercising that power. To that end, Section 2003 of the Administrative Code provides, in relevant part, that the Department of Transportation

shall have the power, and its duty shall be:

....

(e)(1) To acquire, by gift, purchase, condemnation or otherwise, land in fee simple or such lesser estate or interest as it shall determine, in the name of the Commonwealth, for all transportation purposes, including marking, rebuilding, relocating, widening, reconstructing, repairing and maintaining State designated highways and other transportation facilities....

....

(6) In order to acquire land under this clause, a description or plan thereof shall be prepared, containing the names of the owners or reputed owners, an indication of the estate or interest to be acquired and such other information as the department shall deem necessary. Execution by the secretary of such description or plan shall constitute authority for the filing of a declaration of taking in accordance with ... the "Eminent Domain Code." ^{[6 ]}The description or plan shall be filed as a public record in the department.

(Emphasis added) (footnote omitted). In order to effectuate a taking, Section 302(e) of the Eminent Domain Code provides, in relevant part, that "[t]he condemnor shall file within one year of the action authorizing the declaration of taking a declaration of taking covering all properties included in the authorization not otherwise acquired by the condemnor within this time."

Turning to the issues on appeal, we consider whether the trial court erred in concluding that PennDOT's filing of a declaration of taking was untimely. PennDOT argues that, for purposes of determining timeliness, the trial court improperly considered only the date of the initial plan authorized on March 7, 2013, and ignored the revised plan authorized on February 27, 2014. Based on its reading of the above-quoted statutory provisions, PennDOT argues that "[t]here is no legal distinction under Section 2003(e)(6) of the Administrative Code between an original authorization" of a plan and a subsequent "revision and reauthorization of such plan" which occurs in "the normal course of highway design and engineering." (PennDOT's Br. at 10.) PennDOT maintains that both the 2013 Plan and the 2014 Plan constitute (1) a "plan" executed by the Secretary of PennDOT for purposes of authorizing condemnation pursuant to Section 2003(e)(6) of the Administrative Code and (2) an "action authorizing the declaration of a taking" pursuant to Section 302(e) of the Eminent Domain Code. Moreover, "[t]here is nothing limiting revisions or changes to the plans, reauthorization[,] or the drawing or filing of new plans," and the Eminent Domain Code "contains no limits on how many times authorization may occur." (PennDOT's Br. at 13.)

In support, PennDOT cites the well-settled rule that courts should "afford great deference to the interpretation rendered by the administrative agency overseeing the implementation of such legislation." Winslow–Quattlebaum v. Md. Ins. Grp., 561 Pa. 629, 752 A.2d 878, 881 (2000).

Applying the principles of statutory construction,⁷ PennDOT argues that the General Assembly could not have intended to restrict the process of condemnation to one year from the first set of plans drawn, because such a result would be absurd, impossible of execution, unreasonable, and against public interest. PennDOT explains that some complicated projects, like the instant project, involve the acquisition by partial or total condemnation of more than 40 parcels for a single construction section and that each condemnation may have multiple claims with multiple fee owners, easement holders, tenants, or outdoor advertising devices and may involve the relocation of buildings, owners, or tenants. Negotiations to reach an amicable settlement on all of the acquisitions and claims may take more than a year. Under the trial court's interpretation of the statutory provisions, PennDOT would be precluded, possibly forever, from proceeding with roadway improvements needed to address important public interests if PennDOT failed to acquire or condemn all the land needed for the project within the one-year period of the filing of the initial authorization.

PennDOT also argues that the trial court wrongly applied Section 302(e) of the Eminent Domain Code as if it were a "statute of limitations" by prohibiting reauthorization after expiration of the one-year period following the authorization. PennDOT contends that the central purposes of Section 302(e) are to release properties from potential stigma of a pending condemnation after one year if a project is delayed following action to authorize the condemnation and to prohibit administrators from condemning property under stale authorizations from the condemnor's governing body. It was not intended to prohibit artificially the completion of a public project if acquisition is not accomplished or a declaration of taking filed within one year of the authorization of the use of condemnation. Thus, applying Section 302(e) of...