            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Condemnation By Gulich      :
Township Of Property Located       :
In Gulich Township, Clearfield     :
County, Pennsylvania               :
                                   :
            v.                     : No. 184 C.D. 2015
                                   : Submitted: November 16, 2015
Jack K. and Carla F. Mullen,       :
(Tax Map No. 110.0-K16-509-00012), :
                   Appellants      :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                                   FILED: December 11, 2015


               Jack K. and Carla F. Mullen (collectively, Condemnees) appeal the
order of the Clearfield County Court of Common Pleas (trial court) overruling their
preliminary objections1 to the declaration of taking filed by Gulich Township

      1
          Section 306 of the Eminent Domain Code provides, in relevant part:

               (a) Filing and exclusive method of challenging certain
               matters.—

                                           *   *    *

                       (3) Preliminary objections shall be limited to and shall be
               the exclusive method of challenging:
(Footnote continued on next page…)
(Township) condemning a 20’ by 120’ parcel of Condemnees’ property2 alleging
that the Township’s taking is excessive based on the stated purpose and motivated
by animus and bad faith. We affirm.

(continued…)

                              (i) The power or right of the condemnor to
               appropriate the condemned property unless it has been previously
               adjudicated.

                               (ii) The sufficiency of the security.

                               (iii) The declaration of taking.

                               (iv) Any other procedure followed by the
               condemnor.

                                             *    *   *

               (f) Disposition.—

                       (1) The court shall determine promptly all preliminary
               objections and make preliminary and final orders and decrees as
               justice shall require, including the revesting of title.

                      (2) If an issue of fact is raised, the court shall take evidence
               by depositions or otherwise.

                      (3) The court may allow amendment or direct the filing of a
               more specific declaration of taking.

26 Pa. C.S. §306(a)(3), (f).

       2
         Gulich Township is a Second Class Township. 121 The Pennsylvania Manual 6-124
(2013). Section 1701(a) of the Second Class Township Code (Township Code), Act of May 1,
1933, P.L. 103, as amended, 53 P.S. §66701(a), provides, in relevant part, that “[t]he board of
supervisors may procure by … the exercise of eminent domain a lot or lots of ground located
within the township and erect or use buildings thereon for township purposes….” See also
Section 1502(a) of the Township Code, 53 P.S. §66502(a) (“The board of supervisors may
purchase, acquire by gift or otherwise, … any real … property it judges to be to the best interest
(Footnote continued on next page…)

                                                  2
              The Township’s Municipal Building is located at 525 Walnut Street in
the Township. Initially, the Municipal Building, an 83’ long structure, sat on a
single parcel of land when the Township acquired it in 1959. However, the lot was
subsequently subdivided and Condemnees acquired the adjacent 62’ by 120’ parcel
located at 513 Walnut Street. There is a house on the adjoining lot that was built
back in the early 1900s that Condemnees use for storage. As a result of the
subdivision, the Municipal Building encroached onto Condemnees’ adjoining lot
by approximately three feet.


              As a result, in August 2014, the Township filed a declaration of taking
condemning a 20’ by 120’ strip of Condemnees’ parcel3 stating, in relevant part:

              No challenge was made to the encroachment until
              Condemnees asserted a conflicting chain in January
              2014. The purpose of this condemnation is to square the
              Township line and acquire enough of the adjoining

(continued…)

of the township.”). In turn, Section 3401 of the Township Code, added by Act of November 9,
1995, P.L. 350, states, in pertinent part:

              When the right of eminent domain or the ascertainment and
              assessment of damages and benefits in viewer proceedings is
              exercised by a township, the proceeding shall be as set forth in this
              article. In addition to any provisions of this act, all eminent
              domain proceedings shall conform to … the “Eminent Domain
              Code.”

53 P.S. §68401.

       3
         Lateral waterlines serving both Condemnees’ structure and the Township’s Municipal
Building are within the area of Condemnees’ parcel that the Township condemned.




                                               3
            property to provide an appropriate set back as well as
            resolve the encroachment contest.


(Reproduced Record (RR) 5a).


            In September 2014, Condemnees filed preliminary objections to the
declaration of taking, alleging that “[t]he amount of the encroachment is miniscule
in comparison to the taking and represents animus, bad faith and abuse of the
[Township’s] eminent domain power….” (RR 14a). Condemnees asserted that
“[a] twenty (20) foot taking is not necessary to resolve an approximately three (3)
foot maximum encroachment,” and that the stated setback purpose “is
disingenuous” because “there is no zoning ordinance in [the] Township requiring a
twenty (20) foot setback and the taking will leave Condemnee with only a two to
three foot setback.” (Id.). Condemnees also claimed that the taking was “grossly
disproportionate to any reasonable necessity” and “represents retribution for prior
disputes between [them] and certain Township officials” because it “will deny
[them] access to their outside basement entry by taking a portion of the entry, will
take away [their] off-street parking area, take [their] public water underground
lateral and hookup.” (Id. 14a-15a).


            At a hearing in the trial court, Carla Mullen testified that at the time
that she purchased the adjacent property, there were three different Township
supervisors in office and that they had a verbal agreement for reciprocal use of the
property whereby the Township entered her property to maintain the property such
as cutting weeds. She stated that this agreement also permitted her to encroach




                                         4
onto the Township property by dumping manure thereon. In explaining why she
thought that the Township’s taking in this case was excessive, Mullen testified:

                     Well, it’s excessive because we’re talking about a
             building that’s sitting on less than three feet. They not
             only want the three feet the building is on, but they want
             additional land as well and have given every conceivable
             reason why they believe it may be necessary when, in
             fact, it’s not.

                    The building has been there for how many years
             and there’s been no problem. If they approach us and
             have a reasonable discussion as to why it is that it’s
             necessary for them to enter our property in order to do
             things such as maintenance with cutting weeds, things
             like that, that has never been denied them, ever.


(RR 50a-51a).


             However, she testified that they had an agreeable relationship until
2013 when the Township severed the agreement. She explained that she was
involved in litigation with the Township regarding access to its Rails to Trails line
in which summary judgment was granted regarding the boundaries of the
properties and the Township’s ownership of an adjoining parcel. She stated that
she has been involved in other disputes with the Township such as a report that she
made to the Board of Ethics regarding the Township’s Chairman and an occasion
when she directed roofers working on the Township Municipal Building to remove
a dumpster that had been placed on her property. She also identified an exhibit
which depicted where the Township had placed a waterline lateral on her property
to remove gray water from the Township Municipal Building and where the



                                         5
waterline lateral to her structure is located, both of which are located within the
area condemned by the Township. She acknowledged that she sent the Township a
letter during the litigation demanding rent from April 2013 and maintaining that
she owned a portion of the Township Municipal Building. She stated that she
would have taken action to evict the Township from the 32” by 83’ encroachment
if it failed to pay the demanded rent. (RR 64a-65a). She also testified that,
following notice, she has continually refused to permit the Township’s surveyor to
enter the property regarding the condemnation4 and that the surveyor called the
State Police when he attempted to do so. (Id. 74a-78a).


               Alex Solan, Chairman of the Township’s Board of Supervisors,
testified that the condemnation was not based on animus or bad faith stating,
“Absolutely not, it’s something that we offered to make settlement at the meeting
and she said no. So to take care of our problem there with the waterline and
everything, we voted to take it.” (RR 92a-93a). He testified that the buried
waterline lies outside of the Township Municipal Building’s exterior wall on
Condemnees’ property and the Township does not have any ability to access it for
maintenance, repair or replacement. He stated that the reason for the taking was
for the building encroachment and access to the waterline, and that the Board
decided to condemn a 20’ wide parcel “[b]ecause when – if you would have to go
in there to work on it, the outriggers on the backhoe when you lay them down, it’s


       4
          Section 309(a) of the Eminent Domain Code states that “[p]rior to the filing of the
declaration of taking, the condemnor or its employees or agents shall have the right to enter upon
any land … in order to make studies, surveys, tests, soundings and appraisals.” 26 Pa. C.S.
§309.




                                                6
12 foot 9 inches, that’s 13 feet, and you’ve got to set away from the building a little
bit to work…,” so they were giving themselves room for a backhoe and a truck for
pipe to get into the area next to the Township Municipal Building. (Id. 102a,
111a).5 He also testified that the amount of land condemned by the Township does
not interfere with Condemnees’ use of their outside basement door. (Id. 103a-
104a).

         5
      See Defendant’s Exhibit 7 at 1, a December 2014 letter from the Township’s counsel to
Condemnees’ counsel, that states, in relevant part:

                       While your proposal included an access easement, the
              Board feels strongly that given the conduct of your clients that it
              would be in the best interest for the Township to own. As your
              clients’ easement proposal of 100 feet may reflect, the township
              water line lies approximately four feet from the building wall for
              approximately that depth. Eight (8) feet of access would be
              insufficient to accommodate a backhoe or other equipment to
              repair, replace or improve the line.

                      The Supervisors have no faith that [Condemnees] would be
              anything but difficult in the future. Previously, when a contractor
              attempted to repair the roof on that side of the building,
              [Condemnees] confronted the contractor and made him move his
              dumpster. In this case, despite the clear legal authority in the
              Eminent Domain Code for his access, [Condemnees] refused to
              permit our surveyor access for the purposes of doing the survey for
              the taking even after Mrs. Mullen agreed with me on arrangements
              to do so.

See also Section 3404 of the Township Code, 53 P.S. §68404 (“When land or property is taken
under eminent domain proceedings, other than for road purposes, … the title obtained by the
township is in fee simple. In particular instances, a different title may by agreement be
acquired.”); Section 1 of the Act of April 14, 1949, P.L. 442, 26 P.S. §201 (“When any political
subdivision of this Commonwealth shall hereafter, in the exercise of the power of eminent
domain, acquire by appropriation and condemnation any real estate, the title thereto which shall
vest in such … political subdivision shall be a title in fee simple, unless prohibited in the
ordinance or resolution authorizing the appropriate and condemnation thereof.”).




                                               7
             The trial court dismissed Condemnees’ preliminary objections. The
trial court rejected Condemnees’ assertion that the Township acted in bad faith or
with animus, explaining:

                     Evidence was not offered by [Condemnees]
             sufficient to meet their burden of proving fraud, bad
             faith, or abuse of discretion on the part of the Township.
             Testimony was offered indicating that the Township
             attempted to amicably resolve the encroachment issue by
             offering to purchase the land from [Condemnees] prior to
             initiating any condemnation action. However, Carla
             Mullen rejected this offer. [(RR 91a-92a)].

                    It appears that the relationship between
             [Condemnees] and the Township has recently grown
             somewhat contentious to say the least. However,
             throughout the course of the litigation in this matter it has
             become apparent to the trial court that blame for the
             deterioration in this relationship largely rests with
             [Condemnees]. Evidence was offered to indicate that
             [Condemnees] engaged in antagonistic actions toward the
             Township such as placing heaps of manure on or near
             Township property. [(RR 60a, 62a, 65a-66a, 86a)].
             Furthermore, Carla Mullen’s demeanor at trial was
             abrasive and antagonistic suggesting antipathy for the
             Gulich Township Board of Supervisors. The Court does
             not find that the Township was motivated by animus or
             ill-will toward [Condemnees]. Rather, upon analyzing
             the facts presented at the hearing on the matter, the trial
             court found that the Township acted reasonably with
             respect to resolving the building encroachment.


(RR 130a).


             The trial court also rejected Condemnees’ claim that the taking was
excessive explaining:


                                          8
                     The trial court will not second guess the Township
               regarding the amount of land acquired; this is within the
               Township’s discretion and the trial court sees no reason
               to substitute its judgment for that of the condemning
               authority. In the alternative, upon analysis of the
               evidence presented at the hearing on the matter, and
               given     the    deteriorating    relationship   between
               [Condemnees] and the Township, the Court does indeed
               find that the quantum of land condemned was a
               reasonable amount of land necessary to resolve the
               encroachment, under the circumstances.


(RR 131a).


               In this appeal,6 Condemnees claim that the trial court erred and abused
its discretion in dismissing the preliminary objections. Condemnees argue that the
Township’s taking of a 20’ wide strip of land, nearly one-third of their property, to
relieve a 2’ to 3’ building encroachment is excessive because only a 4’ taking is
necessary to correct the Township Municipal Building’s encroachment and, while
the waterline is not mentioned in the declaration of taking, only an easement is
required to maintain the building and waterline.7 We do not agree.



       6
           When 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 by Beaver Falls Municipal
Authority, 960 A.2d 933, 940 (Pa. Cmwlth. 2008) (citations omitted).

       7
         Condemnees raise additional claims regarding the condemnation’s impact on their own
waterline, vehicular access to the rear of the property, and future commercial use of the property.
However, such claims are not properly raised or disposed of by preliminary objection to the
Township’s declaration of taking. In re Condemnation by Department of Transportation, 798
A.2d 725, 732 (Pa. 2002); Appeal of Keith, 861 A.2d 387, 392-93 (Pa. Cmwlth. 2004).




                                                9
               As this Court has explained:

                      In its review of a decision to condemn property
               and the extent of the taking, the trial court is limited to
               determining whether the condemnor is guilty of fraud,
               bad faith, or has committed an abuse of discretion. The
               burden of proving that the condemnor has abused its
               discretion is on the objector or condemnee and the
               burden is a heavy one. In such cases, there is a strong
               presumption that the condemnor has acted properly.
               Nevertheless, we have previously held that the issue of
               whether a proposed taking is excessive is a legitimate
               inquiry and raises an issue of fact, requiring a common
               pleas court to hear evidence on the issue.[8]

                      In that regard, “[t]he quantum of land to be
               acquired is, within reasonable limitations, a matter within
               the condemnor’s discretion.” Additionally, “[i]nasmuch
               as property cannot constitutionally [be] taken by eminent
               domain except for public use, no more property may be
               taken than the public use requires—a rule which applies
               both to the amount of property and the estate or interest
               to be acquired.”


Appeal of Dukovich, 84 A.3d 768, 776 (Pa. Cmwlth. 2014) (citations omitted).


               As the trial court noted in this case, Condemnees failed to present any
credible evidence to support their heavy burden of demonstrating the Township’s

       8
          As this Court has explained, “[q]uestions of credibility and conflicts in the evidence are
for the trial court to resolve. If sufficient evidence supports the trial court’s findings as fact-
finder, we will not disturb these findings. Additionally, we may not disturb a trial court’s
credibility determinations.” In re Condemnation by Beaver Falls Municipal Authority, 960 A.2d
at 940 (citations omitted). Moreover, the evidence must be viewed in a light most favorable to
the Township, the party that prevailed in the trial court. Billings v. Upper Merion Township, 405
A.2d 967, 969 (Pa. Cmwlth. 1979).




                                                10
purported fraud, bad faith or abuse of discretion in condemning the 20’ strip of
land. Rather, the trial court properly found that, based on the credible evidence,
Condemnees engaged in a course of conduct designed to antagonize and harass the
Township officials while disputes over the boundaries of their adjoining parcels
were litigated. Clearly, the condemnation in fee of some portion of Condemnees’
land was necessary and proper to correct the encroachment of the Township
Municipal Building onto their land and to avoid their demand for rent for the
Township’s use of its own facility and their threatened eviction of the Township
from its own facility in the absence of such payment. Sections 1701(a) and 3404
of the Township Code, 53 P.S. §§66701(a), 68404.


              Additionally, the Township presented substantial competent evidence
explaining why the 20’ strip was designated for condemnation in fee with respect
to the ownership and maintenance of the existing Township facilities.9 While the
waterline was not specifically mentioned in the Township’s declaration of taking,
the Chairman of the Township’s Board of Supervisors explained why the
“appropriate set back” contained therein was required for the maintenance of the
Township Municipal Building and its waterline. In sum, there is substantial record
evidence to support the trial court’s finding “that the quantum of land condemned
was a reasonable amount of land necessary to resolve the encroachment, under the


       9
         In these respects, the instant case is distinguishable from those cited by Condemnees
regarding the condemnation of land needed for an unfunded future use or a temporary use or
where a total fee interest was not necessary. Cf. Winger v. Aires, 89 A.2d 521 (Pa. 1952); Estate
of Rochez, 558 A.2d 605 (Pa. Cmwlth. 1989); Appeal of Octorara Area School District, 556
A.2d 527 (Pa. Cmwlth. 1989).




                                               11
circumstances,” and the court’s determination in this regard will not be disturbed
by this Court on appeal.10


               Accordingly, the trial court’s order is affirmed.



                                             ___________________________________
                                             DAN PELLEGRINI, President Judge



Judge Cohn Jubelirer did not participate in the decision in this case.
Judge McCullough dissents.




       10
           See, e.g., Appeal of Dukovich, 84 A.3d at 776 (“Upon questioning from the Court,
Schwab conceded that, with respect to reconstruction of the Middle Road Bridge, a slope
easement would be sufficient. However, immediately thereafter, Schwab indicated that a slope
easement would not be sufficient for purposes of maintenance. Later, on re-direct Schwab
explained why the taking in fee was necessary: … [‘]I mean, they need the land to have a road.
They want to be able to maintain the road without having legal fights over what their rights are.
So my understanding is that in order to fulfill their mission, they found that it’s advantageous to
have land in fee simple….[’]”) (citations omitted); Appeal of Waite, 641 A.2d 25, 28 (Pa.
Cmwlth. 1993) (“Although the testimony offered by Waite’s witnesses demonstrated, at best, the
possibility of options other than those taken by the Authority, this evidence was not sufficient to
meet her burden and did not overcome the presumption that the Authority’s actions were
reasonable. The evidence failed to show that it was unreasonable for the Authority to condemn a
300-foot-wide strip parallel to its existing runway for the provision of a buffer between the
airport and further development.”).



                                                12
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Condemnation By Gulich      :
Township Of Property Located       :
In Gulich Township, Clearfield     :
County, Pennsylvania               :
                                   :
            v.                     : No. 184 C.D. 2015
                                   :
Jack K. and Carla F. Mullen,       :
(Tax Map No. 110.0-K16-509-00012), :
                   Appellants      :




                                 ORDER


            AND NOW, this 11th    day of   December, 2015, the order of the
Clearfield County Court of Common Pleas dated January 19, 2015, at No. 2014-
1198-CD, is affirmed.



                                  ___________________________________
                                  DAN PELLEGRINI, President Judge
