In Re: Condemnation by the PA Tpk. Commission of Property Located in the Twp. of Bristol, Bucks County, PA v. Orange Hill., Inc. and Martin/Petrone, L.P. ( 2017 )


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Condemnation by the                  :
    Pennsylvania Turnpike                       :
    Commission of Property Located              :
    in the Township of Bristol, Bucks           :
    County, Commonwealth of                     :
    Pennsylvania for the I-95 Interchange       :
    Project (Parcel ID No. 05-020-048)          :
    The Pennsylvania Turnpike Commission        :
    :
    v.                       : No. 1186 C.D. 2016
    : Submitted: March 6, 2017
    Orange Hill, Inc. and Martin/Petrone, L.P., :
    :
    Appellants         :
    BEFORE:       HONORABLE ROBERT SIMPSON, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE JAMES GARDNER COLINS, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE WOJCIK                                            FILED: March 28, 2017
    Orange Hill, Inc. and Martin/Petrone, L.P.1 (collectively, Orange
    Hill) appeal the June 24, 2016 order of the Court of Common Pleas of Bucks
    County2 (trial court) denying their motion for post-trial relief from the entry of
    1
    Michael Petrone and Susan Petrone, his wife, together own 100% of Orange Hill, Inc.
    They also own 100% of Martine/Petrone, L.P., now known as M. Petrone of Pennsylvania,
    which owns a tract of land contiguous to the property at issue in this appeal.
    2
    The Honorable Robert J. Mellon, who presided in this case, presided in another appeal
    related to the same condemnation, and his decision and order were affirmed by this Court in
    Steen v. Pennsylvania Turnpike Commission, 
    3 A.3d 747
    (Pa. Cmwlth. 2010).
    judgment in favor of the Pennsylvania Turnpike Commission (Commission). The
    trial court determined that Orange Hill was not entitled to just compensation for
    advertising sign/billboard pad sites on property condemned by the Commission
    because Orange Hill purchased the property subject to an easement and never
    owned a compensable interest in the sites. The trial court also rejected Orange
    Hill’s argument that its December 2, 2015 order granting the Commission’s motion
    in limine to preclude Orange Hill from presenting certain evidence constituted
    legal error, because Orange Hill was allowed to present its proffered evidence and
    the same was considered by the trial court during the non-jury trial. We affirm.
    This appeal arises from a 2007 condemnation of property that had
    been encumbered with three billboards and was subject to an easement for use of
    and access to the billboards. See Steen v. Pennsylvania Turnpike Commission, 
    3 A.3d 747
    (Pa. Cmwlth. 2010). The relevant facts and procedural history are not in
    dispute and may be briefly summarized as follows.
    Terry L. Steen and Anita I. Steen owned four and a half acres of
    property, and three billboards erected thereon, in Bristol Township, Bucks County,
    Pennsylvania. When the Steens sold the property to Mountain Ridge Enterprises,
    Inc. (Mountain Ridge), they retained an easement to access and maintain the
    billboards. In relevant part, the Easement Agreement between Mountain Ridge
    (Grantor), Orange Hill’s predecessor in title, and the Steens (Grantees) provided:
    1. Grantor hereby grants and conveys to Grantee . . . an
    easement over the property for the purpose of ingress and
    egress . . . to the Signs for the purpose of using,
    inspecting, maintaining, replacing and repairing,
    changing the advertising message, and all other related
    uses, of the Signs . . . .
    2. The aforesaid easement includes the right of access
    and the right to have the Signs remain on the property
    2
    being granted to the Grantee . . .
    ....
    4. The Signs shall be located in the approximate area in
    which they are located on the date of this conveyance and
    these Signs shall remain the sole property of the Grantee
    despite the aforesaid conveyance of fee simple title to the
    Property by the Grantee to the Grantor.
    5. The Grantee may sell, transfer, convey, and assign all
    of Grantee’s right, title and interest in the Signs and in
    the rights created pursuant to this easement agreement.
    ....
    13. If all of the property or material portion thereof is
    taken or condemned for a public or quasi-public use, to
    the extent that the Grantee may no longer maintain, use,
    or relocate the Signs within the Property, the easement
    granted and created hereby shall automatically terminate
    as of the date title to the condemned real estate vests in
    the condemnor, with the qualification that the foregoing
    shall apply only if Grantee is unable to relocate Grantee’s
    Signs on the property . . . .
    All proceeds and awards which may be payable as a
    result of the taking or condemnation of all or part of the
    Property shall belong to and be paid to the Grantor.
    Notwithstanding the foregoing, Grantee shall have the
    right to assert a separate claim for loss of the Signs if
    said condemnation results in the taking of the Signs or in
    the elimination of Grantee’s access to the Signs.
    Pursuant thereto, Grantor and Grantee shall each file
    separate claims for condemnation 
    damages. 3 A.3d at 748-49
    (emphasis added). After the Easement Agreement was recorded,
    the Steens sold the signs to Steen Advertising, and they leased their easement to
    Steen Advertising in exchange for an annual fee.
    Mountain Ridge conveyed its interest in the property to Orange Hill in
    March 2000. On June 27, 2007, the Commission filed a Declaration of Taking
    naming Orange Hill, Inc., and Steen Advertising, Inc., as condemnees.          In
    3
    December 2007, Orange Hill, Inc. tendered possession of the property to the
    Commission in exchange for certain just compensation.
    The Steens filed a separate petition for the appointment of a Board
    of Viewers, asserting that they should have been named as condemnees based on
    their ownership of the easement. The Commission filed preliminary objections.
    Relying on the express language of the Easement Agreement, the trial court
    concluded that the Steens were attempting to recover for an easement that had
    extinguished upon the filing of the declaration of taking and no longer had value.
    On appeal, this Court agreed that the easement was extinguished by operation of
    the express language of the Easement Agreement, and, therefore, no de facto
    taking of the Steen’s property interest had 
    occurred. 3 A.3d at 751-52
    .3
    3
    We stated as follows:
    According to the Steens, the easement agreement defined the
    substantial property rights and interests vested in them, including
    the right to access the signs at all times, the right to have their
    signs remain on the property, the right to erect, use, inspect, install,
    maintain, repair and replace electrical lines to the signs, the right to
    sell, transfer, convey and assign all of their right, title and interest
    in the signs and in the rights created under the agreement. The
    Steens argue that their easement was extinguished by the
    Commission’s condemnation of the servient estate, i.e., the
    property, but because they were not named as condemnees in the
    declaration of taking, the Commission effectuated a de facto taking
    of their easement for which they are entitled to just compensation.
    Finally, the Steens argue that the language in Paragraph 13 of the
    Easement Agreement . . . expressly provided them with the right to
    file a separate claim. . . . .
    When reviewing an express easement, the rights conferred by the
    grant of an express easement must be ascertained solely from the
    language of the easement agreement, provided that the language of
    the agreement is unambiguous. . . .
    (Footnote continued on next page…)
    4
    The Board of Viewers’ April 2013 report did not include
    compensation to Orange Hill for the loss of the billboard pad sites. Orange Hill’s
    expert appraised the value of the billboard pad sites as $824,000. The Board of
    Viewers noted the unique location (along a curve of I-95) and visibility of the
    billboards and stated that it would have found damages to be at or near that figure.
    However, the Board of Viewers concluded that Orange Hill was not the
    person/entity entitled to compensation for the taking of the billboards. Instead,
    citing the Easement Agreement, the Board of Viewers concluded that the Steens’
    easement terminated automatically upon condemnation and that Steen Advertising,
    (continued…)
    Pursuant to the language of Paragraph 13 of the agreement, the
    easement automatically terminates in the event of a condemnation
    which eliminated the use of the Signs. While the provision also
    preserves “the right to assert a separate claim for loss of the Signs
    if said condemnation results in the taking of the Signs or in the
    elimination of Grantee’s access to the Signs,” the plain language
    provides a separate claim only for loss of the signs if the
    condemnation eliminates access to them, not a separate claim for
    loss of access. Once the Signs were condemned, the easement
    (allowing access to maintain and repair signs that no longer
    existed) ceased to have any value. A separate claim was
    recognized in the declaration of taking for loss of the Signs
    themselves, which by that time had been sold to Steen Advertising,
    Inc., the only entity which sustained a compensable loss other than
    the landowner, Orange Hill.
    Therefore, because the easement was extinguished by operation of
    the Easement Agreement, there is no property interest and,
    therefore, no de facto 
    taking. 3 A.3d at 751-52
    (quotations and citations omitted) (emphasis in original).
    5
    as the owner of the signs, was the only entity entitled to compensation for their
    loss. Reproduced Record (R.R.) at 45a-48a.
    Orange Hill appealed to the trial court. On October 9, 2015, the
    Commission filed a motion in limine to preclude Orange Hill from introducing any
    testimony regarding a claim of ownership and economic loss related to the
    billboards. On October 21, 2015, the trial court heard argument on the motion, but
    the court did not rule on it prior to holding the non-jury trial that day.
    Orange Hill presented extensive testimony from Richard Wolf, R.R.
    at 207a-95a, a real estate consultant and appraiser, who used a loss of income
    analysis to establish the value of the billboard pad sites. R.R. at 280a. The trial
    court asked a number of questions to clarify Wolf’s testimony, and Wolf indicated
    that his opinion was based on his interpretation of paragraph 13 of the Easement
    Agreement and the Eminent Domain Code.4 R.R. at 283a-85a.
    The Commission’s expert testified that he appraised that property at
    $800,000, adding that he considered the billboard sites but ascribed no particular
    value to them because, based on the plain language of the Easement Agreement,
    the property owner had no right to erect billboards on those sites after those rights
    were given by easement to the Steens. R.R. at 302a, 356a-58a.
    At the conclusion of the trial, the trial court took the motion in
    limine under advisement. On December 2, 2015, the trial court issued an order
    stating that the Commission’s motion in limine was granted and giving the parties
    until January 15, 2016 to settle the case. Thereafter, by order dated February 10,
    2016, the trial court entered judgment in favor of the Commission. In its opinion,
    the trial court noted that under Section 302(a)(2) of the Eminent Domain Code,
    4
    26 Pa. C.S. §§101 - 1106.
    6
    “title which the condemnor acquires in the property condemned shall pass to the
    condemnor on the date of the filing, and the condemnor shall be entitled to
    possession under Section 307 . . . .” 26 Pa. C.S. §302(a)(2). The trial court
    explained that there was no time between the Commission’s filing of the
    declaration of taking and the passing of title to the Commission during which title
    could have reverted to Orange Hill. Thus, because Orange Hill never owned or
    gained any economic gain from the condemned billboards prior to condemnation,
    it was not entitled to additional compensation for the billboard pad sites. The trial
    court further observed that Orange Hill had offered no authority to support its
    position, finding that In re City of Altoona, 
    388 A.2d 313
    (Pa. 1978), and Chew v.
    Commonwealth, 
    161 A.2d 621
    (Pa. 1960), were “readily distinguishable.”5
    On appeal to this Court, Orange Hill repeats its contention that it had a
    compensable reversionary interest in the billboard pad sites, as the grantor of an
    easement for access, which arose upon the extinguishment of the grantee’s
    easement rights on the date of condemnation. Orange Hill again cites City of
    Altoona and Chew, but neither these cases nor any authority cited by Orange Hill
    supports its novel argument.
    5
    In City of Altoona, the court held that when a municipality abandoned a dedicated street
    the property reverted automatically and simultaneously to abutting landowners.
    In Chew, the plaintiffs were the original owners of land before it was condemned and had
    conveyed fee simple defeasible title to a railroad company. The plaintiffs retained a possibility
    of reverter in the event that the railroad ever ceased railroad operations on the land, and, in fact,
    the railroad was in the process of ending railroad operations when the state condemned the
    property. The court held that the plaintiffs’ possibility of reverter had value and plaintiffs were
    entitled to just compensation because, at the time of condemnation it was “imminent and
    probable” that the plaintiffs’ reversionary interest would vest. In contrast, Orange Hill never
    owned the billboard sites, and prior to the filing of the declaration of taking there was no
    indication that Steen Advertisement’s easement would soon be terminated.
    7
    Rather, at the time of the condemnation that extinguished the
    easement, title passed to the Commission.          Section 302(a)(2) of the Eminent
    Domain Code, 26 Pa. C.S. §302(a)(2); 
    Steen, 3 A.3d at 751-52
    . Thus, the trial
    court correctly held that Orange Hill never owned the right to use the billboard pad
    sites and was not entitled to just compensation for a loss of income derived from
    those sites.
    Our resolution of this issue renders Orange Hill’s second argument
    moot. Even if the issue is not moot, however, the trial court’s order granting the
    motion in limine is of no consequence. The record reveals that the trial court
    allowed Orange Hill to present testimony and evidence, and there was virtually no
    dispute as to the value of the property interest asserted by Orange Hill. More
    important, the dispositive issue is a question of law to which the evidence and
    ruling on the motion in limine are not relevant.
    In sum, and as observed in the commendably concise brief from the
    Commission: Orange Hill did not own and never had any economic interest in the
    billboards or the billboard pad sites; the language of the order granting the motion
    in limine is irrelevant; and the trial court did not err entering judgment in the
    Commission’s favor.
    Accordingly, we affirm.
    MICHAEL H. WOJCIK, Judge
    8
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Condemnation by the                  :
    Pennsylvania Turnpike                       :
    Commission of Property Located              :
    in the Township of Bristol, Bucks           :
    County, Commonwealth of                     :
    Pennsylvania for the I-95 Interchange       :
    Project (Parcel ID No. 05-020-048)          :
    The Pennsylvania Turnpike Commission        :
    :
    v.                       : No. 1186 C.D. 2016
    :
    Orange Hill, Inc. and Martin/Petrone, L.P., :
    :
    Appellants         :
    ORDER
    AND NOW, this 28th day of March, 2017, the order of the Court of
    Common Pleas of Bucks County, dated June 24, 2016, is affirmed.
    __________________________________
    MICHAEL H. WOJCIK, Judge
    

Document Info

Docket Number: In Re: Condemnation by the PA Tpk. Commission of Property Located in the Twp. of Bristol, Bucks County, PA v. Orange Hill., Inc. and Martin-Petrone, L.P. - 1186 C.D. 2016

Judges: Wojcik, J.

Filed Date: 3/28/2017

Precedential Status: Precedential

Modified Date: 3/28/2017