Morell v. Commonwealth

John and Janet Morell, h/w, Appellants v. Commonwealth of Pennsylvania, Department of Transportation

No. 625 C.D. 2021

Commonwealth Court of Pennsylvania

December 28, 2022

OPINION NOT REPORTED

BEFORE: HONORABLE ANNE E. COVEY, ELLEN CEISLER, BONNIE BRIGANCE LEADBETTER, Senior Judges

MEMORANDUM OPINION

ELLEN CEISLER, JUDGE

Appellants John and Janet Morell, h/w (collectively Morells), appeal two orders that were issued by the Court of Common Pleas of Philadelphia County (Common Pleas) on May 5, 2021. Through those orders, Common Pleas sustained Appellee Commonwealth of Pennsylvania, Department of Transportation's (DOT) preliminary objections and dismissed the Morells' Petition for Appointment of a Board of View (Petition) regarding a property that is owned by the Morells and is located at 2640 East Juniata Street in Philadelphia (Property). After thorough review, we affirm.

I. Background

On August 3, 1972, DOT filed a declaration of taking (Declaration) for a series of lots,^[1] including the Property, in furtherance of constructing a highway interchange between the Betsy Ross Bridge and what was then known as Legislative Route 1000.^[2] Reproduced Record (R.R.) at 18a, 88a-98a. Thereafter, on June 26, 1973, DOT filed an amended declaration of taking (Amended Declaration), see id. at 99a-115a, in which it agreed via stipulation with the Property's then-owner to alter the taking by

chang[ing] the width of roadway and required right of way for Juniata Street . . ., reducing the area condemned for the said Street, and limit[ing] the estate to be acquired [on the Property to that] required for limited access to an aerial easement plus a surface easement unlimited in vertical dimension for the accommodation of piers and other appurtenances between Stations 36+58 and 38+48 on Ramp H [of the highway.]

Id. at 101a; see id. at 108a-15a (exhibits showing visual depiction of this taking).^[3] In addition, this Amended Declaration of taking provided, in relevant part:

Where the estate to be acquired [by DOT] is limited to an aerial easement plus a surface easement unlimited in vertical dimension for the accommodation of piers and other appurtenances, the following limitations shall be imposed on the use of the property beneath the area affected by the aerial easement:

(5) No interference shall be made with the right which is in the Commonwealth of Pennsylvania [sic], to enter upon the property beneath the area affected by the aerial easement, for the purpose of inspection, maintenance, repairs, reconstruction or alteration of the structure and other appurtenances.

Id. at 114a. This Amended Declaration of taking also established temporary easements, to allow for construction, but stated that they would "revert to the property owner upon the acceptance of the project by [DOT]." Id.

On October 29, 2007, Mr. Morell purchased the Property from B.K. Enterprises, Inc. Id. at 122a-24a. Mr. Morell then signed a deed of confirmation on November 27, 2007, which was "recorded to correct the legal description which was erroneously recorded in the aforesaid Deed dated October 29th, 2007[.]" Id. at 116a-17a. This deed of correction describes the Property, in relevant part, as "crossing the access ramp [right-of-way] off the Betsy Ross Bridge[.]" Id. at 116a. Thereafter, on November 26, 2008, Mr. Morell conveyed the Property to himself and his wife via an indenture, which also described the Property's bounds in the same manner. See id. at 129a-32a.

At some point thereafter, DOT began making plans to improve the highway ramp that crossed the Property, as part of its broader, long-term project to rebuild the portions of I-95 that traverse Pennsylvania. See R.R. at 18a, 58a. On July 2, 2019, Interstate Acquisition Services^[4] contacted the Morells via letter, in order to notify them that "[DOT had] recently held a meeting to discuss the personal property located in [the] aerial easement area beneath the I-95 ramp" and asked the Morells to reply, due to the fact that the pending project would potentially affect the Morells' property interests. Id. at 134a. Interstate Acquisition Services then sent additional letters on September 11, 2019, and January 24, 2020, after which the Morells accepted DOT's offer to pay them $4,940 to cover the cost of transporting their personal property out of the easement area. See id. at 135a-48a.

The Morells eventually retracted their acceptance of this offer and, on September 25, 2020, filed their Petition in Common Pleas. Therein, the Morells alleged that DOT's highway improvement project went beyond the scope of its aforementioned easement interests, which it had obtained through the Amended Declaration, and, thus, constituted a de facto condemnation of the Property. See id. at 35a-38a.^[5] Accordingly, the Morells sought to have Common Pleas appoint a board of viewers and to task its members with assessing the damages incurred by the Morells as a result of this putative taking. Id. at 38a.

DOT responded on October 15, 2020, by filing preliminary objections to the Petition.^[6] In doing so, DOT argued that the Morells' de facto taking claim was speculative and without merit, because the highway improvement project, insofar as it would take place on the Property, was only happening within the bounds of the easement interests DOT had previously acquired and would not substantially deprive the Morells of the use of the Property. Id. at 56a-82a. As such, DOT maintained that the Morells were not entitled to the appointment of a board of viewers. Id. at 82a.

Common Pleas then held a hearing regarding the Petition on May 5, 2021. During the course of this hearing, Paul Shultes, a consultant project manager for DOT, explained that DOT had demolished the original highway ramp that had crossed over the Property and was in the midst of replacing it with a new ramp that was in the same location as its predecessor. See id. at 18a-21a. In Mr. Shultes' opinion, this work did not condemn any additional portions of the Property, "[b]ecause [DOT] already had the right of way it needed for the project [as a result of the Amended Declaration]." Id. at 19a. Additionally, Mr. Shultes took the position that the new highway ramp constituted permissible "reconstruction" of the original ramp, because it "rebuil[t or] replace[d] . . . a [highway] facility that already exists" and did not "construct[] a . . . facility that was never there before." Id. at 18a. Mr. Morell then confirmed that DOT had demolished the old highway ramp, but stated that DOT had also removed the pier on the Property that had supported that ramp and had built a new one that was approximately 20 feet closer to his home than the original. Id. at 22a. Mr. Morrell claimed that the new pier prevented him and his wife from using the Property's rear yard, blocked their view, and stood athwart their fence line in a manner which had both caused DOT to remove the fence and would prevent it from being reinstalled in the same location after DOT had completed the new ramp. Id. at 22a-23a. Additionally, Mr. Morell asserted that DOT's construction on the Property was excessively loud, was filling his gutters with mud and causing trees to grow in them, was spreading dirt into his home, and was using vehicles in a dangerous way, insofar as "getting in and out of our home, leaving, going, you have to be careful you don't get run over." Id. at 23a. Common Pleas then took the matter under advisement and gave DOT and the Morells leave to file supplemental, post-hearing briefs,^[7] but swiftly changed course later that day, issuing an order after the hearing's close, through which it sustained DOT's preliminary objections and dismissed the Petition. This appeal followed shortly thereafter.

II. Discussion

The Morells offer several arguments for our consideration, through which they assert that Common Pleas abused its discretion and erred as a matter of law when it dismissed the Petition. We reorder and summarize these arguments as follows.^[8] First, DOT's highway improvement project has caused a de facto condemnation of the Property via new construction within the Property's easement area. Morell's Br. at 10-17. Second, regardless of whether this construction is "new," DOT has effected a de facto condemnation by failing to secure a temporary construction easement over the Property to replace the one that expired nearly five decades ago upon completion of the original highway ramp. Id. at 21-22. Third, DOT's actions have substantially deprived the Morells of the use and enjoyment of the Property, and, as a result, a board of viewers must determine the compensation they should receive from DOT. Id. at 18-20. Finally, Common Pleas should not have contravened its own bench-issued directive by ruling upon DOT's preliminary objections without waiting for the parties to submit their respective supplemental briefs. Id. at 23-24.

As we have explained in the past:

"[A] de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property." In re De Facto Condemnation and Taking of Lands of WBF Associates, L.P. ex rel. Lehigh-Northampton Airport Authority, . . . 903 A.2d 1192, 1199 ([Pa.] 2006). A property owner carries a heavy burden of proof in de facto condemnation proceedings and must show that: (1) the condemnor has the power to condemn the land under eminent domain procedures; (2) that exceptional circumstances have substantially deprived him of the use and enjoyment of his property; and (3) the damages sustained were the immediate, necessary, and unavoidable consequences of the exercise of the eminent domain power. Genter v Blair [Cnty.] Convention and Sports Facilities Auth[.], 805 A.2d

...