In Re: Condemnation by Union Twp. ~ Appeal of: M.E. Mader & C.M. Mader ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Condemnation by Union : CASES CONSOLIDATED
Township, Washington County, :
Pennsylvania for Temporary :
Acquisition of Property for Municipal : Nos. 849 C.D. 2021
Purposes in the Township of : 850 C.D. 2021
Union, being the Lands of Martin E. : Submitted: February 17, 2023
Mader and Carla M. Mader being :
known as Parcel I.D. No. :
640-001-00-00-0013-00 :
:
Appeal of: Martin E. Mader and :
Carla M. Mader :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: June 22, 2023
Martin E. Mader and Carla M. Mader (Appellants) appeal, pro se, from
the orders entered June 24, 2021, in the Washington County Court of Common Pleas
(trial court), which overruled their preliminary objections to two declarations of
taking (Declarations) filed by Union Township (the Township) pursuant to the
Eminent Domain Code (Code).1 After careful review, we affirm.
I. BACKGROUND2
Appellants are the owners of property located at 65 Cardox Road in
Union Township, Washington County. Cardox Road is a public roadway; the
Township owns a 33-foot right-of-way along the road. The Township developed a
1
Eminent Domain Code, 26 Pa. C.S. §§ 101 – 1106.
2
Unless otherwise stated, we base this recitation of facts on the trial court’s opinion. See
Trial Ct. Op., 6/24/21, at 1-2.
plan for the road’s improvement that required the installation of a permanent
stormwater easement. This proposed easement would eliminate water runoff onto
the roadway and prevent icing. Additionally, the Township sought a second,
temporary, twelve-month easement for grading and tree removal for a road widening
project. The Township first attempted to voluntarily secure easements from Cardox
Road property owners, including Appellants; however, Appellants refused.
On July 8, 2020, the Township Board of Supervisors (Board) held a
public meeting to initiate the Declarations. The Declarations were filed July 9, 2020,
and July 20, 2020, in the trial court. On August 10, 2020, Appellants filed a “motion
to set aside and vacate order of declaration of taking and notice of eminent domain
condemnation.” See Mot. to Set Aside, 8/10/20, at 1-8. On September 24, 2020,
Appellants filed preliminary objections.3 In these objections, Appellants averred
that they were in federal court for a Chapter 13 bankruptcy action. The Township
received an order granting relief from the automatic stay pursuant to 11 U.S.C. § 362and Fed.R.Bank.P. 4001 and 9014 and proceeded with the condemnation actions.
On October 22, 2020, the Township filed a motion for leave of court to
amend the Declarations. The trial court held a hearing on the motion. Subsequently,
the trial court consolidated the Declarations, and the Township filed amended
Declarations. Appellants filed preliminary objections to the amended Declarations.
On August 2, 2021, the trial court held an evidentiary hearing. Both the Township
and Appellants presented evidence and witness testimony. Ultimately, the trial court
overruled Appellants’ preliminary objections. Appellants timely appealed to this
Court.
3
The preliminary objections were nearly identical in form and content to Appellants’ prior
motion.
2
II. ISSUES
Appellants list several issues with several additional subissues, which
they seek to raise on appeal.4 See Appellants’ Br. at 12-14. Appellants first contend
that the Board of Supervisors did not act lawfully in filing the Declarations. See
Appellants’ Br. at 12. In their second issue, Appellants appear to allege that there
was a viable alternative to the takings and that the Township was “putting the drain
to dump stormwater in order to flood [Appellants’] property for retaliation[.]” See
id. In their final issue, Appellants claim that the Township did not have jurisdiction
4
We caution Appellants that while we liberally construe pro se pleadings, this Court cannot
act as appellants’ counsel and develop their arguments for them. See C.M. v. Pa. State Police, 269
A.3d 1280, 1285 (Pa. Cmwlth. 2022) (stating that this Court is “neither obliged, nor even
particularly equipped, to develop an argument for a party. To do so places the Court in the
conflicting roles of advocate and neutral arbiter” (citation omitted)); Finfinger v. Unemployment
Comp. Bd. of Rev., 854 A.2d 636, 639 n.5 (Pa. Cmwlth. 2004) (acknowledging “the frequent
necessity, and incumbent difficulty, of pro se representation by unemployed claimants . . . [and
noting that], it is axiomatic that a layperson who chooses to represent himself in a legal proceeding
must assume the risk that his lack of expertise and legal training may prove to be his undoing”
(citation omitted)).
Appellants’ brief is not separated into parts that correspond to the questions they seek to
argue, lacks headings to signal the particular point therein, and fails to cite to relevant legal
authority. Accordingly, we caution them that they risk waiver of their issues. See Dobson Park
Mgmt., LLC v. Prop. Mgmt., Inc., 203 A.3d 1134, 1139 (Pa. Cmwlth. 2019); see also Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are questions to be argued;
and shall have at the head of each part--in distinctive type or in type distinctively displayed--the
particular point treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.”).
Specifically, regarding Appellants’ fourth issue, Appellants state: “Would the failure of the
[trial court] to properly inspect the record of exhibits and/or evidence warrant de novo?” See
Appellants’ Br .at 14. Appellants do not develop this argument, cite appropriate legal authority,
or, indeed, mention it in any discernible way after the statement of issues presented. Accordingly,
we conclude that they have waived this issue for purposes of appeal. Dobson Park Mgmt., LLC,
203 A.3d at 1139.
3
to file the Declarations and that the Township violated Appellants’ due process
rights. See id.5
III. ANALYSIS6
A. General Principles
The right of the Commonwealth to take private property without the
owner’s assent “on compensation made” exists in its sovereign right of eminent
domain. See In re Condemnation by Commonwealth of Pennsylvania, Dep’t of
Transportation, of Right-of-Way of State Route 0443, Section 02S, in Twp. of
Mahoning, 255 A.3d 635, 642 (Pa. Cmwlth. 2021) (Twp. of Mahoning). Article I,
section 10 of the Pennsylvania Constitution provides, in pertinent part, that “nor shall
private property be taken or applied to public use, without authority of law and
without just compensation being first made or secured.” Pa. Const. art. I, § 10. Thus,
the Pennsylvania Constitution authorizes the exercise of eminent domain for
acquiring property for public use with the payment of just compensation. See Twp.
of Mahoning, 255 A.3d at 643. The Commonwealth’s power to acquire property by
eminent domain extends to townships via Section 3401 of The Second Class
Township Code, 53 P.S. § 68401.7 Thus, the purpose of the Code is to provide
5
Appellants also contend that the Township’s engineer was not a qualified expert witness
and take issue with the trial court’s credibility determinations regarding that testimony. See
Appellant’s Br. at 13. However, they did not preserve this issue in their Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, and accordingly, have not preserved it for purposes
of appeal. See Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa. 2021).
6
“Where a trial court has either sustained or overruled preliminary objections to a
declaration of taking, our scope of review is limited to determining whether the trial court abused
its discretion or committed an error of law.” In re Condemnation of Certain Props. & Prop. Ints.
for Use as Pub. Golf Course, 822 A.2d 846, 849 n.6 (Pa. Cmwlth. 2003).
7
The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S.
§§ 65101-68701. Union Township, Washington County, is a Second Class Township.
https://dced.pa.gov/local-government/municipal-statistics/municipalities/ (last visited May 31,
2023).
4
procedures governing the exercise of the sovereign’s inherent power to condemn
property for public purposes. See Twp. of Mahoning, 255 A.3d at 643.
In condemnation proceedings, there are two distinct phases: the first
goes “to the propriety and validity of the taking, including whether a taking has been
affected;” the second goes to damages. Phila. Redevelopment Auth. v. Atuahene,
229 A.3d 1002, 1007 (Pa. Cmwlth. 2020). This first phase involves the filing of
preliminary objections, as in the instant matter. See, e.g., id. “Preliminary objections
in eminent domain proceedings are different from those in other proceedings.
Preliminary objections are the sole method by which a condemnee may challenge
the declaration of taking.” In re Condemnation Proceeding by S. Whitehall Twp.
Auth., 940 A.2d 624, 627 n.2 (Pa. Cmwlth. 2008); see also Section 306(a) of the
Code, 26 Pa.C.S. § 306(a). Accordingly, in eminent domain matters, “preliminary
objections are intended as a procedure to resolve expeditiously the factual and legal
challenges to a declaration of taking before the parties proceed to determine
damages.” Twp. of Millcreek v. Angela Cres Tr. of June 25, 1998, 142 A.3d 948,
951 n.2 (Pa. Cmwlth. 2016). Issues of damages and compensation are, therefore,
appropriately brought in a petition to appoint a board of viewers and not in
preliminary objections. See, e.g., Atuahene, 229 A.3d at 1007.
Additionally, the Code limits preliminary objections to challenges to:
(i) the power of the condemnor to take the condemned property; “(ii) [t]he
sufficiency of the security[;] (iii) [t]he declaration of taking[; and] (iv) [a]ny other
procedure followed by the condemnor.” 26 Pa. C.S. § 306(a)(3)(i)-(iv); see also In
re Condemnation by Dep’t of Transp., of Right-Of-Way for State Route 0022, Section
034 in Twp. of Frankstown v. Commonwealth, 194 A.3d 722, 734 (Pa. Cmwlth.
2018). “Objections that do not fall within those described above are not proper
5
subjects for preliminary objections to a taking, but are collateral in nature and will
not be considered.” Twp. of Frankstown, 194 A.3d at 734. “Collateral matters
include challenges to the procedure in which a municipality adopts an ordinance or
resolution authorizing a condemnation or an assertion that the taking does not
comply with a statute or regulations.” See id.When ruling on preliminary objections, the trial court’s standard of
review is limited to determining whether a township is “guilty of fraud, bad faith, or
. . . committed an abuse of discretion.” Twp. of Mahoning, 255 A.3d at 644-45
(citation omitted). Appellants bear the burden of proving that the Township abused
its discretion; the law presumes that a municipality has acted properly when filing
declarations of taking. See id. (citation omitted). Pursuant to established case law,
“a taking must be for an authorized use, follow a suitable investigation leading to an
intelligent, informed judgment, and be a well-developed plan of proper scope.
However, a condemnor is not required to follow any set criteria in choosing a site.
All that is required is that an investigation be conducted so that the decision to
condemn is an informed judgment.” See id. at 644-45 (citations omitted and
formatting altered).
B. Lawfulness of Declaration
In their first issue, Appellants argue that the Township did not act
lawfully when filing the Declarations. See Appellants’ Br. at 12. They point to four
reasons they believe the Declarations were not lawfully filed: (1) when voting on the
Declarations, there were “illegal appointments of voting members;” (2) due to these
alleged illegitimate votes, the Board had an improper quorum; (3) members of the
Board had alleged conflicts of interest; and (4) the Storm Water Management Act
6
(SWMA)8 “protects against altering the flow of stormwater from flooding private
property.” See Appellants’ Br. at 12.
Instantly, the trial court observed that this issue was not raised in
Appellants’ preliminary objections and thus was waived, and further, was not a
proper subject for preliminary objections under the Code. See Trial Ct. Op. at 8. We
agree. Collateral matters are not appropriate subjects for preliminary objections, and
these collateral matters include challenges to the procedure authorizing a
condemnation. See Twp. of Frankstown, 194 A.3d at 734. Nor is the SWMA an
appropriate preliminary objection. See id. at 737. Accordingly, the trial court did
not err or abuse its discretion in overruling the preliminary objections for this reason.
In re Condemnation of Certain Props. & Prop. Ints. for Use as Pub. Golf Course,
822 A.2d at 849 n.6.
C. Viable Alternative to Takings
In their second issue, Appellants appear to allege that there was a viable
alternative to the takings. See Appellants’ Br. at 12. They contend that the Township
could have widened the other side of Cardox Road and dispute the Township’s
averment that moving the project would cost an additional $80,000. See id.Appellants claim, without evidentiary support, that the takings were an attempt by
the Township to flood their property as some sort of retaliatory measure. See id.Although this is also not a proper preliminary objection, the trial court
found these assertions “immaterial. The Township identified the property it intended
to take” and alternative plans proposed by Appellants were “not before this [court].”
Trial Ct. Op. at 6. The trial court characterized this issue as a challenge to the
particular design of the Township’s plan and concluded this was not an appropriate
8
Act of October 4, 1978, P.L. 864, as amended, 32 P.S. §§ 680.1-680.17.
7
preliminary objection. See id. (citing Hartford Twp. v. Bandurick, 660 A.2d 189,
192 (Pa. Cmwlth. 1995). We see no error in these conclusions. Accordingly, the
trial court did not err or abuse its discretion in overruling the preliminary objections
for this reason. In re Condemnation of Certain Props. & Prop. Ints. for Use as Pub.
Golf Course, 822 A.2d at 849 n.6.
E. Jurisdiction and Due Process
In their final issue, Appellants claim that the Township did not have
jurisdiction to file the Declarations and that the Township violated their due process
rights. See Appellants’ Br. at 14. Specifically, they state that “the Township [lost]
jurisdiction to assert the takings by improper adherence to Pennsylvania law and
parliamentary law.” Id. They believe that the Township “lost jurisdiction” due to
an alleged lack of proper quorum and because the Township “did not properly
appoint voting members of the Board of Supervisors statutorily.” Id. They cite no
relevant legal authority in support of these points. Further, Appellants claim, again
without citation to relevant legal authority, that “[the Township] never had a Right
to even start the Cardox Road project or take Appellants’ property and violated the
Appellants[’] procedural due process Rights.” Id.We first address Appellants’ jurisdictional claim and note that, once
again, they have failed to cite any relevant legal authority or develop their arguments.
For instance, in support of their claim that the Township lost jurisdiction to “assert
the takings,” Appellants cite Johnson v. Zerbst, 304 U.S. 458, 468 (1938), a United
States Supreme Court case discussing a defendant’s right to counsel in criminal
cases. See Appellants’ Br. at 14. Appellants also cite generally and without further
elaboration Joyce v. United States, 474 F.2d 215 (3d Cir. 1973), a United States
Court of Appeals for the Third Circuit case involving the subject matter jurisdiction
8
of the district court to adjudicate a postal employee’s workplace injury where the
plaintiff had not first exhausted his administrative remedies. See id. at 219. To the
extent that Appellants attempt to challenge the quorum and voting procedures, we
have already determined that these are not issues properly raised in preliminary
objections. Beyond those issues, Appellants have failed to meaningfully develop
this argument, and have waived it for purposes of appeal. See Dobson Park Mgmt.,
LLC, 203 A.3d at 1139.9
In support of their claim that the Township violated Appellants’
procedural due process rights, Appellants cite World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286 (1980), which discusses due process and the power of a state
court to render a valid personal judgment against a nonresident defendant. See
Appellants’ Br. at 14 (citing World-Wide Volkswagen Corp., 444 U.S. at 291-92).
There is no dispute that Appellants are residents of Union Township; these
jurisdictional concerns do not apply here. Beyond this bare citation and statement,
Appellants have failed to meaningfully develop this argument in their brief, and
accordingly, have waived it for purposes of appeal.10 See Dobson Park Mgmt., LLC,
203 A.3d at 1139.
9
Appellants also cite to Mason’s Manual of Legislative Procedure. See Appellants’ Br. at
14. Pennsylvania Senate Rule 26 provides that Mason’s Manual of Legislative Procedure governs
“the Senate in all cases to which [it is] applicable, and in which [it is] not inconsistent with the
Standing Rules, Prior Decisions and Orders of the Senate.” RULES OF THE SENATE OF
PENNSYLVANIA (2023-24), Rule 26; see also 101 Pa. Code § 7.32. However, it is unclear from
the record or Appellants’ brief whether Union Township has adopted these rules.
10
In the trial court, Appellants argued that they had been deprived of due process because
the easement agreements were a sham and that the Township lacked transparency in its action. See
Trial Ct. Op. at 7. The trial court “found no instance of lack of due process,” particularly after the
Township filed amended declarations of taking to correct notice defects. See id. The trial court
found that Appellants were duly served and provided opportunities to be heard. See id.9
IV. CONCLUSION
For the foregoing reasons, Appellants have either waived their issues
for purposes of appeal, failed to raise an appropriate issue for preliminary objections,
or failed to establish that the trial court abused its discretion or committed an error
of law in overruling said objections. Accordingly, we affirm.
LORI A. DUMAS, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Condemnation by Union : CASES CONSOLIDATED
Township, Washington County, :
Pennsylvania for Temporary :
Acquisition of Property for Municipal : Nos. 849 C.D. 2021
Purposes in the Township of : 850 C.D. 2021
Union, being the Lands of Martin E. :
Mader and Carla M. Mader being :
known as Parcel I.D. No. :
640-001-00-00-0013-00 :
:
Appeal of: Martin E. Mader and :
Carla M. Mader :
ORDER
AND NOW, this 22nd day of June, 2023, the orders entered by the
Washington County Court of Common Pleas in the above-captioned matter on June
24, 2021, are AFFIRMED.
LORI A. DUMAS, Judge